Health and Social Care (Safety and Quality) Bill
(9 years, 9 months ago)
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Lord Turnberg
Lord Turnberg (Lab)
My Lords, I am grateful to the noble Lord, Lord Ribeiro, and to the Minister and his team for spending some time last week discussing the Bill with us. That was helpful but I fear that I am still very concerned about the potential impact of the Bill in its current form.
I say at the outset that I will not be arguing against the case that we should be doing everything we possibly can to avoid harming patients; nor am I arguing against the underlying purpose of the Bill, which I am convinced is meant with the best possible motives in mind. But we know that even in the best hospitals occasional mistakes will be made and someone will be harmed, and the question we have to face is whether legislating for mistakes never to be made is the best way of achieving that purpose.
During our discussions it was helpful to hear that the new regulations will apply only to institutions, such as hospital trusts and care homes, and not to individual healthcare workers—nurses, doctors and other carers. They, as we know, are regulated by other bodies and held to account by them if they cause harm. But it is not at all clear that that is the intention of the Bill as it is currently written. Indeed, it was pretty obvious at Second Reading that much of the debate focused on individual surgeons who operated on the wrong leg—regrettable and devastating though that may be—but now we are told that that is not what the Bill is about. We even heard from one noble Lord details about which hernia he was having operated on and you cannot get much more personal than that.
We now know that the Bill is about ensuring that all the precautions necessary to avoid harm are taken by institutions. It is obvious that that is where we should be aiming our efforts to try to avoid those terrible stories that we hear about of neglect and abuse, particularly of elderly people, in hospitals and care homes. These are far too common for comfort. They are largely due to institutional failings and that is where we need to aim the Bill. But the problem is that it is not clear in the wording of the Bill that it applies to institutions and not individual care workers. I fear it is not much clearer in the proposed regulations, which I have now had a chance to look at.
My anxieties are increased, rather than the reverse, when I read those regulations, where there is much reference to individual persons providing the care—for example,
“the things which a registered person must do to comply”;
there is then a long list of things they must do “to mitigate such risks”. The regulations also,
“make provision as to the persons who are fit to carry on a regulated activity”.
I have been told that “a registered person” refers to a trust manager or chief executive, not someone registered with the GMC, for example. But I fear if that is the case the room for misinterpretation is too great.
My first amendment tries to make it absolutely clear that the Secretary of State’s duty applies to institutional service providers as a whole, not individual healthcare workers. I have also included in the amendment the proposal that the responsibility of institutions is not to produce zero harm but to aim at a continuing reduction in harm over time. That at least is in the realm of the possible, which is what legislation should be about. My second amendment is designed to ensure that institutions take this responsibility very seriously by regularly monitoring the effectiveness of the systems of harm reduction that they have put in place.
There is yet another problem with the current wording of the Bill, and that is the possibility of the harm that the Bill itself could cause if it is not amended. Let us suppose that we can be convinced by the noble Earl that the Secretary of State’s duty applies to institutions, not individuals. We can then easily imagine that fearful hospital trusts, with the Secretary of State and CQC breathing down their necks and trying to ensure that absolutely no avoidable harm is ever inflicted on a patient, will place a severe burden on their doctors and nurses. They in turn will be very cautious indeed about any medical innovation they might consider offering to their patients. The whole atmosphere that we are desperate to introduce into the NHS of an innovative service keen to take up new ideas and treatments will be frustrated.
Furthermore, it is not too difficult to imagine that a culture and oppression could follow—I cannot believe that that is the intention of the noble Lord, Lord Ribeiro, or of the Minister. We need a culture of openness and willingness to admit mistakes and those errors of judgment that are bound to be made, so that lessons can be learnt. I am afraid that errors are inevitable even in the most safety-aware trusts and care homes, yet fearful employees may feel that they are better off covering up rather than admitting to their mistakes.
Baroness Finlay of Llandaff (CB)
My Lords, I also have an amendment in this group. My intention is very similar to that of the noble Lord, Lord Turnberg, who has just spoken. I, too, state categorically that I do not believe that harming patients is acceptable. Pressure sores, neglect of patients, hospital-acquired infections and so on are not acceptable, and we should aspire to eliminate avoidable harm from our systems in healthcare. However, when we legislate, we must be careful that our wording is accurate, clear and does not raise the probability of unintended consequences. It is that which concerns me, hence my amendment.
The Berwick advisory group has advised that the correct goal is the continual reduction of harm, because patient safety experts report that zero harm is impossible, that cultures must be addressed to reduce harm, and that that is where resources should be focused. We must ensure that open, honest and transparent working cultures exist across the NHS, and that the clause does not inadvertently inhibit innovation, which often involves taking controlled risks, and does not stifle open discussion and reporting of errors. We must not legislate in a way that seeks blame and reverses our move towards such an open culture.
That is why I have suggested that the clause be retitled “Reducing harm in care”. The amendment would amend the National Health Services Act 2006 to include among the Secretary of State’s duties,
“the continuous reduction of avoidable harm”.
Given the time and progress of the Bill, can the Minister confirm that any subsequent regulations will be consulted on and be subject to affirmative resolution?
Can the Minister confirm that the duty in Clause 1 applies to organisations overall rather than to an individual practitioner, who may find himself or herself working in an uphill struggle to decrease harm in a poorly run organisation? As the noble Lord, Lord Turnberg, outlined, my concern is that such an individual could be scapegoated and hung out to dry by such an organisation unless it is absolutely clear that the onus of responsibility in Clause 1 rests on the provider organisation to have appropriate infrastructure in place to reduce avoidable harm. Can the Minister confirm that it is all organisations with which the NHS contracts in any form that must have a harm reduction policy, including private and voluntary sector care organisations, and that this must go across all health and social care?
Harm reduction must recognise the need to take risks at times with the intention of achieving a good outcome. Paralysis caused by risk-averse cultures is beginning to pose a great risk to patients, because not acting or taking the guidance or protocol-type approaches to care can sometimes pose a greater risk to an individual patient with complex individual needs than acting in a way that is outside what might be considered to be the normal confines of activity.
Lord Warner (Lab)
My Lords, I support all four amendments in this group, but I added my name to those of my noble friend Lord Turnberg. I speak from the perspective of someone who nearly 12 years ago as a Minister approved a new system to improve patient safety by reporting serious incidents. We did not try at that point to go for unrealistic approaches to improving safety in the NHS. That was not because we were spineless; it was because we needed to get people behind the agenda and bring out into the open serious instances of the poor practice that was going on and jeopardising the safety of patients. I do not think that Clause 1 meets that test. It is likely either to produce excessive caution or simply to drive some of the poor practice underground.
I support every word that my noble friend said and very much of what the noble Baroness, Lady Finlay, said, so I will not repeat them, but I want to draw attention to the briefing that we have all had from three significant organisations: NHS Providers, the Health Foundation and the BMA. I do not always stand up and advocate the policies of the BMA in a number of areas, but in this area it is absolutely right.
I draw attention to what those organisations say in some of that briefing—I shall not read it all out. The Health Foundation makes it clear that introducing a duty such as that in Clause 1 would go against the evidence of what is possible in delivering safe health and care services. It states that the NHS has already demonstrated considerable progress towards building a genuine safety culture and that it is concerned that the message sent to NHS staff through the wording of the Bill may hinder further progress on this. It draws out in a summary of its concerns three very simple points, which might be a consequence of passing the Bill as it stands. First, patient safety experts tell it that causing no avoidable harm is impossible; secondly, legislation is not a solution for cultural problems; and, thirdly, a duty of no avoidable harm will divert further resources from what we know improves safety. My noble friend Lord Turnberg alluded to shifting priorities of what organisations and staff do in a way that is not always helpful to patients.
NHS Providers said very similar things but added something important. It said that should the Bill pass into law, further regulations may be laid by a new Government who have not engaged or given assurances in this area. It urges amendment to ensure that any regulations are fully consulted on and passed by affirmative resolution.
This is an extraordinary point in the electoral cycle to bring forward a provision of this seriousness in the form of Clause 1. The Government have to think again; they should consider whether they really want to be involved with a Bill containing a provision of this kind. It is full of possibilities for unintended consequences; potentially it could do harm to patients. I do not doubt the good intentions of the people behind the Bill and I do not doubt that they will be pretty grumpy about some of us drawing attention to our concerns. This has become the Government’s Bill—let us not mince our words. It may have started off and still nominally be a Private Member’s Bill, but the Government have put a lot of effort into it, as the sheer number of civil servants standing by to help shows. This is, to all intents and purposes, a government Bill. If the Government really want this legislation in this Parliament, they have to consider doing much more than they are currently providing for to meet the concerns expressed not just by Members of this House but by people whose opinions we all respect. With all due respect to my noble friend Lord Turnberg, the easiest way to meet many of those concerns would be to accept the amendment of the noble Baroness, Lady Finlay. The Department of Health needs to consider whether this would be the wisest thing to do.
Baroness Masham of Ilton (CB)
I agree that there should be a culture of openness, honesty and transparency. When things go wrong, most people say, “I don’t want this to happen to anyone else”. There should be lessons learnt from mistakes, not cover-ups. This should be made as clear as possible.
Lord Hunt of Kings Heath (Lab)
My Lords, as noble Lords know, the Opposition support the Bill. However, issues have been raised which I hope the noble Earl, Lord Howe, will help to clarify.
I should like to pick up my noble friend’s point about whether this issue is raised at institutional or individual level. It looks as though the Bill focuses on individuals. Will the noble Earl confirm that it is his view that responsibility ultimately lies with the corporate boards which are responsible for the activities taking place in the National Health Service? If that is so, why does the Bill not list those bodies which it covers so that it would be clear who should take corporate responsibility?
Secondly, I take the noble Earl back to the Statement he made last week about Morecambe Bay. It was very telling when he talked about the concerns raised by Dr Bill Kirkup about the lack of a culture of openness and transparency. He said that,
“this report makes clear that there is a long way to go. It seems medical notes were destroyed and mistakes covered up at Morecambe Bay, quite possibly because of a defensive culture where the individuals involved thought they would lose their jobs if they were discovered to have been responsible for a death. However, within sensible professional boundaries, no one should lose their job for an honest mistake made with the best of intentions. The only cardinal offence is not to report that mistake openly so that the correct lessons can be learnt”.—[Official Report, 3/3/15; col. 160.]
Will the noble Earl say very clearly that that point, which I agree with, is not in conflict with the Bill, and in particular with Clause 1? It is very important—the last thing we want to do is discourage people from being open about mistakes. We do not want that to be an unintended consequence of the Bill.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, I shall first address a concern that several noble Lords have flagged up most prominently: that the regulations are not sufficiently clear that the duties that we are talking about here are duties on providers rather than individuals. The regulations apply to registered persons. Schedule 1 to the Interpretation Act 1978 makes it clear that in legislation “person” includes not only natural persons but legal persons, such as companies. Under the Health and Social Care Act 2008, the registered persons are providers, not individual members of staff.
The noble Lord, Lord Hunt, asked why the clause does not list the bodies covered by the Bill. The clause amends Section 20 of the Health and Social Care Act 2008. It is the 2008 Act which sets out who the regulations apply to. They apply to registered persons who, under the Act, are the providers, not individual staff, as I said. He also asked whether almost all providers would be likely to be in breach of the regulations for one reason or another. The clause amends the Secretary of State’s regulation-making powers. It would not by itself impose requirements on providers. Those requirements will be as laid down in the fundamental standards regulations, to which I shall come in a moment. On the specific example that the noble Lord gave, where a surgeon did not engage meaningfully with the WHO checklist prior to an operation, my answer is that that would be a disciplinary issue for the employer and/or the professional regulator, if it became known.
Lord Hunt of Kings Heath
That is an extremely helpful answer, but will it be made absolutely clear to employers in the guidelines to be issued alongside the regulations that they have not only a right to take disciplinary action but a duty to do so? If that is set from the centre, that will give a lot of authority to boards, which they sometimes feel that they do not have at the moment.
Earl Howe
That is a very important point, which I shall be happy to take away.
Amendment 1, tabled by the noble Lords, Lord Turnberg and Lord Warner, would replace the reference to “no avoidable harm” with “take steps to reduce” avoidable harm. I accept that in some settings regulated by the CQC, including the NHS, that phrase may better reflect the scale of what can be achieved. However, regulation by the CQC is not just about the NHS. In the case of some health and adult social care services, I believe that it is reasonable to strive to eradicate all avoidable harm. It is for that reason that I prefer the current wording. Yes, it is more ambitious, but its ambition contains an incentive to strive towards a continuous reduction of avoidable harm across all settings regulated by the CQC.
The amendment would also result in requirements on providers to monitor the steps they take to reduce avoidable harm and to train staff in the reduction of avoidable harm. That is clearly desirable, but I must question whether it needs to be a duty set out in primary legislation. The training of staff in reducing avoidable harm is important, and Section 20(3)(d) of the Health and Social Care Act 2008 already expressly provides for regulations to include requirements on the training of staff.
The fundamental standards regulations, to which I referred a minute ago, which were passed by this House in November and come into force in April, already meet the test of the Bill, and no change to regulations is required. The fundamental standards require that care and treatment is provided in a safe way for service users. They give the CQC power to take action against providers where a failure to take steps to provide care in a safe way results in avoidable harm.
The regulations are breached not whenever avoidable harm occurs, but where there has been a significant failure effectively to manage the risks of harm. They are clear that that involves assessing the risks and taking steps to mitigate them. They ensure that staff have the right skills and qualifications, that premises and equipment are safe and that medicines are properly managed. They also require providers to have systems in place to assess, monitor and improve the quality and safety of services.
Noble Lords have cautioned that the clause might lead to staff taking a risk-averse approach. The noble Lord, Lord Hunt, expressed the concern that it could encourage staff to lose sight of the patient and instead focus on covering up mistakes. I firmly believe that the reverse is the case. What it does is to underpin our efforts to strive for the very thing so strongly advocated by the noble Lord, Lord Turnberg: an open reporting culture where identifying errors helps organisations to improve the safety of care. Where providers take the steps to manage the risk to safety, front-line staff can focus on the needs of patients and service users, content in the knowledge that the environment in which they work promotes safety and quality.
Our debate up to now has perhaps given the erroneous impression that the fundamental standards are just about the systems and processes. They are not. They focus on the outcomes of care and treatment. The new regulations, which come into force in less than three weeks, place patients and service users at the heart of service provision. They require that treatment and care meet the needs of service users and reflect their preferences. They prohibit providers from providing care without consent. They also put in place a new duty of candour that requires providers to inform service users where there have been failings in their care.
In those ways, patients and service users are central to the fundamental standards. Clause 1 rightly ensures that safety and the reduction of avoidable harm will always be the foundation of the regulatory system operated by the CQC.
I turn to Amendment 4, in the name of the noble Baroness, Lady Finlay. I am confident that all noble Lords share the same objective as that of Clause 1, which is to place patient safety at the heart of the delivery of services. The Committee will be aware of the importance that the Government place on improving safety. The recent report of the Morecambe Bay investigation has re-emphasised that that is the right approach. Moving towards the reduction of avoidable harm requires action across the health and social care system.
I agree with those who say that the main way to reduce avoidable harm is through changes in culture. None the less, there is also a role for legislation. The role of the law in this area is straightforward: it can define minimum acceptable standards and introduce ways to protect patients who are put at risk when those standards are not met. It provides a safety net that protects people from harm.
I stress that the regulations issued under Section 20 of the Health and Social Care Act 2008, which Clause 1 amends, apply to registered providers of health and adult social care in England. There are two important points here. First, the regulations do not apply to individual members of staff but to the providers of care. In that respect, they offer protection to staff as well as to patients and service users. Secondly, the scope of the regulations is not restricted to the health service but applies also to adult social care. In that respect, the scope of the clause is broader than that of the noble Baroness’s amendment. For that reason, I prefer the current wording, which offers the same protection to patients and service users wherever they receive care, not just in the NHS.
The noble Baroness asked whether the clause applies to all care organisations, including those in the voluntary sector. All providers of regulated activities must register with the CQC and meet the registration requirements, including voluntary sector and independent sector providers. She also asked whether the regulations will be consulted on and subject to affirmative resolution. The answer to both questions is yes, but having said that, the fundamental standards regulations are consistent with the objective of Clause 1. Those regulations were consulted on and were subject to affirmative resolution. Any future regulations amending or replacing those regulations would also be consulted on and, unless the changes are minor, would be subject to affirmative resolution.
Lord Warner
Can the Minister clarify something for me, because I am increasingly puzzled? He keeps talking about the fundamental regulations which are coming into force in three weeks’ time being consistent with Clause 1. If they are consistent with Clause 1 as they are framed, why do we need Clause 1?
Earl Howe
What Clause 1 does is to amend the provision whereby the Secretary of State may require the CQC to have safety as its prime objective to one where it must have that requirement as its prime objective. That is what Clause 1 essentially does, so there is a good reason for having the Bill alongside the regulations.
Lord Warner
I am sorry but this is quite a key point. If the Minister is right and those regulations were drafted in accordance with the law as it stood before this Bill, they presumably make the same requirement. The Minister is saying that they meet the requirements of the Bill. I still cannot reconcile why you need to change the law, particularly if we are now into “may” and “must” territory, which always delights your Lordships’ House. I am obviously being very dim but I still cannot understand why you need to change the law—the primary legislation—but do not then need to revisit the regulations which were made under other primary legislation. I thought I saw the Minister proceeding, uncharacteristically, with a degree of caution on this. There is an issue here on which, so far, the Government have not given me a particularly convincing explanation.
Earl Howe
I am very sorry that I have not given that explanation clearly enough. The point was well drawn out at Second Reading by my noble friend Lord Ribeiro that what Clause 1 essentially does is to bring patient safety absolutely to the fore in the context of the CQC’s work. That is entirely consistent with the approach that we took in the fundamental standards regulations which, as the noble Lord knows, flowed out of the work done by Sir Robert Francis QC in his report on Mid Staffordshire. If I can be clearer to the noble Lord before the conclusion of this debate, I will be glad to do so but I find it difficult to say more than I already have on this.
The noble Lord, Lord Turnberg, asked about the CQC’s guidance. Its guidance on the new fundamental standards has been consulted on. The CQC has a range of actions that it can take when a provider does not meet the fundamental standards, ranging from a warning notice to cancelling registration. The CQC’s enforcement policy is clear that any action that it takes will be proportionate to the risks to patients and that its most serious sanctions will be used only in response to the most serious service failings.
Lord Elton (Con)
My Lords, would another way of addressing the concerns of the noble Lord, Lord Warner, be to say that Clause 1 removes from the Secretary of State a discretion to produce regulations which are not as satisfactory as the current ones are?
Lord Turnberg
My Lords, I listened extremely carefully to what the noble Earl has just said and I am grateful to him for clarifying what a registered person is—I think that it is the word “person” that gets very personal here. I remain somewhat concerned about whether legislation to stop avoidable harm is a feasible proposition.
Lord Hunt of Kings Heath
Perhaps I may say to my noble friend that I think that the noble Lord, Lord Ribeiro, should wind up first and then he should come back.
Lord Ribeiro (Con)
My Lords, I thank the noble Lord for that intervention, and I thank my noble friend the Minister for his succinct answers in respect of Clause 1 and the four amendments that have been tabled. Before I respond to the amendments in the names of the noble Lords, Lord Turnberg and Lord Warner, and the noble Baroness, Lady Finlay, I would point out that I have heard reference in the Chamber again today to zero harm. Clause 1 is not about zero harm but rather about reducing harm. It is very important that we make that clear right at the beginning as well as right at the end.
The noble Lords, Lord Turnberg and Lord Warner, do not object in their amendments to placing a clear duty on the Secretary of State, as defined in the Bill, and they recognise that the clause places an obligation on the Secretary of State to include steps to reduce avoidable harm in the requirements for registration with the CQC. However, they argue against including the term “no avoidable harm” and would prefer it to be replaced by “reducible harm”. We will get there. It is important to note that it is the providers of health and adult social care services in England that are required to register with the CQC, not individual members of staff. Again, the concerns that the noble Lord, Lord Turnberg, expressed at the beginning were about the perception that this obligation would fall to individual practitioners or health and care workers. It does not. It is very much defined as being on those who are registered with the CQC. That cannot be clarified enough. I think that my noble friend the Minister made that point.
At Second Reading, the noble Lord, Lord Willis of Knaresborough—he is unfortunately not here today, but has been supportive of the Bill—and I attempted to blow away the myth of zero harm, which implies something negative that will impact adversely on healthcare professionals when something goes wrong. The fundamental standards, which have been referred to, become law on 1 April. They will not be changed by the Bill, which places a duty on providers to ensure that safe systems are in place for the care of patients. It is about putting safe systems into place, just as in the airline industry you need safe systems in place to ensure that disasters do not occur.
Clause 1 is in no way critical of the new fundamental standards, which meet the demands of the clause. As the noble Lord, Lord Warner, said, NHS providers have sought assurances on this point, and I think they have been given. In their report, they also asked how the Government will avoid the clause creating a clinical culture with staff fearful of taking controlled risks and reporting mistakes. I think that education and training of the workforce will be used to ensure that that does not happen.
The noble Lord, Lord Warner, was also concerned about some aspects of Clause 1 and the effect that the Bill will have on the Secretary of State’s position. The Bill removes the Secretary of State’s discretion in determining whether the legal minimum standards for providers of health and adult social care cover the requirement to move towards no avoidable harm. This is so central to the quality and safety of services that it is right that there is no possibility of future Secretaries of State electing not to cover this area in the registration requirements. That is one of the principal reasons why it is important to have Clause 1 in the Bill and not just rely on the fundamental standards.
I mentioned training and education. The noble Lord, Lord Turnberg, expressed his considerable concerns about the culture, fear and frustration that the Bill will create, rather than openness and willingness. I will address his Amendments 2 and 3 by referring to the Department of Health’s response to the Francis report in its document Culture Change in the NHS, which recognises the importance of health education and safety. The Berwick advisory group has been mentioned a lot during our discussions, along with the health foundation. The Berwick review recommended that,
“all healthcare professionals receive initial and ongoing education on the principles and practices of patient safety, on measurement of quality and patient safety, and on skills for engaging patients actively”.
Health Education England’s commission on education and training for patient safety, chaired by Sir Norman Williams, a past president of the Royal College of Surgeons, and Sir Keith Pearson, the current president of NHS England, set out proposals for enhancing safety training for all health and care professionals covering four themes: how to raise concerns about patient safety; human factors, which are increasingly important for patient safety, particularly in surgery; mandatory training to improve patient safety; and service improvement for patient-centred outcome and patient safety.
The noble Baroness, Lady Finlay, expressed concern that the Bill might stifle the reporting of errors. Berwick recommended a number of measures to ensure the effective reporting of serious incidents and prompt action in response. Many such measures, such as the new national patient safety alerting system, are already in place, and 17 alerts have been issued in the past year. I believe that the learning and training tools are in place, and NHS England is working with the Health Foundation to implement Berwick’s recommendations. Where a provider takes the necessary steps to mitigate the safety risks, this will allow front-line staff to focus on the treatment and care needs of patients and service users. Far too often we have heard it said that practitioners are looking up to managers rather than looking down at their patients. This Bill, if implemented, will provide them with the knowledge and comfort that safety systems are in place and that, if they fail, it will be the provider who stands accused, not the professional. I hope that that will give some reassurance to the noble Lord, Lord Turnberg.
I was heartened to see the heading of Amendment 4, which was tabled by the noble Baroness, Lady Finlay. Although I do not agree with the substance of the amendment, it does make the point that “reducing harm in care” is what this Bill is about. Many speakers in our earlier debate, including my noble friend the Minister, referred to reducing avoidable harm. The noble Lord, Lord Hunt, also talked about the checklist. At Second Reading, in response to the point about checklists, I said that colleges and speciality associations totally support the proposal. As the Minister pointed out, the checklists are mandatory and disciplinary action will be taken if they are not followed.
Lord Hunt of Kings Heath
Does the noble Lord agree that there is a problem at the moment in that organisations feel somewhat inhibited in taking action against consultants? There are two things—the checklist itself, and then the consultant’s approach and attitude to the checklist. It would be very helpful to have support from the Royal College of Surgeons and other bodies alongside that of the Government to put a bit of backbone into the boards of organisations.
Lord Ribeiro
I entirely agree. This should be taken forward in all the colleges and, in particular, in the Academy of Medical Royal Colleges. Checklists do not stop with surgeons. There is a lesson here for many medical disciplines which could adopt similar practices. This is something that we should hear more about in future.
I have reflected on this in the light of today’s debate and the concerns expressed by the noble Lord, Lord Warner, and others, and I feel that the amendment tabled by the noble Baroness, Lady Finlay, provides an opportunity to look again at the heading of Clause 1 and to change it to “reducing harm in care”. I am assured by the Public Bill Office that it is possible to change a heading in a Bill without an amendment. I propose to accept the noble Baroness’s suggestion and recommend a change in the heading which will be printed when the Bill is enacted, although I may well ask her not to move her amendment in respect of the rest of the content.
I hope that that and the other assurances I have given about the progress in education and training following the recommendations of the Berwick report will reassure those who remain concerned that this clause implies zero harm. It does not, but it will encourage the reduction of harm in any health setting. It is progressive and does not imply that from the day that the Bill becomes law we will outlaw avoidable harm. To err is human. Our job should be to create a climate through the education and training of medical students—who from this autumn will become patient safety champions—trainees and all healthcare workers whereby they recognise that reducing harm is their responsibility. As a result, I hope noble Lords will not press their amendments.
Lord Warner
Will the noble Lord clarify the change in heading? On the first page of the Bill there are two references to “harm-free care”. Will both be changed to “reducing harm in care”?
Lord Ribeiro
No. The heading “harm-free care” will be changed to “reducing harm in care”.
Earl Howe
My Lords, before the noble Lord, Lord Turnberg, decides what to do with his amendment, I shall reinforce the explanation I gave earlier in answer to the noble Lord, Lord Warner. This clause removes the Secretary of State’s discretion around whether the requirements for registration with the Care Quality Commission should cover the safety of care. That is the approach at the moment, but the impact of the change we are making is to embed current policy and practice. As my noble friend Lord Ribeiro has helpfully explained, without this change a future Secretary of State could in theory decide not to include patient safety requirements in future regulations. The Bill ties the hands of future Secretaries of State on this important matter. It would require a change to primary legislation to alter that. That has substantive significance as well as presentational significance.
Lord Turnberg
My Lords, I apologise to the House and to the noble Lord, Lord Ribeiro, for leaping to my feet in my eagerness to respond.
I listened very carefully to the noble Earl and to the noble Lord, Lord Ribeiro, both of whom were able to reassure me to an extent about the meaning of the term “registered persons” and to whom that refers, so I am happy about that. Incidentally, I am also happy that there should be a duty that the Secretary of State “must” put forward regulations.
However, the question remains, is legislation to stop avoidable harm a feasible proposition? I remain unhappy about the possibility that this will result in excessive caution, lack of will to innovate in clinical practice and the potential to drive underground the bad behaviour of some doctors who may not wish to admit to it. Therefore, there is still some worry there.
I am particularly concerned after having spent some time going through that rather weighty document, the CQC’s guidance notes, which are particularly heavy-handed. They are extremely clear and dogmatic, and rather light on how to achieve what it wants to do. They seem designed to inhibit any innovative practice, and I fear that the document itself, following on from this legislation, will be unacceptable to people in the field.
I take the point, incidentally, about not having training, education and supervision in the Bill, even though I know that that is critical to the way in which this whole programme—what we all want—can be delivered. That is entirely dependent at the local level on people who will oversee and ensure high standards of care in their institutions. Therefore, clearly this is an important element which comes out in the CQC guidance, but not as strongly as one would wish. I noted that the noble Earl said that he would take away the possibility of looking at the CQC guidance—I am not sure whether I understood that correctly, but I hope that that is the case.
For the moment, as I have expressed, I am still somewhat unhappy about the nature of this bit of the legislation. I will ponder further on what has said. I beg leave to withdraw my amendment.
Baroness Finlay of Llandaff
My Lords, first, I apologise to the House for not declaring my interest as president of the BMA at the opening of this debate, given that the BMA has briefed about problems with the Bill.
My Amendment 5 focuses on the word “best” in the term “best interests”. I have had a concern about this because of the way “best interests” is now used. I have looked back, thanks to help from the Library, at 147 pieces of legislation in which the term “best interests” has been used. If one looks at those that came after 2005, when the Mental Capacity Act was passed, it is notable that that term has been included when it concerns the best interests of children, young carers, safeguarding, protection of those who lack capacity, or with regard to organisations such as charities—but not with regard to adults, who would be considered to have capacity as individuals. The term is also used in connection with the storage of gametes and the provision of local services and pension funds, which must act out of the collective best interest of people with whom the legislation is concerned.
I have also understood—I stand to be corrected—that in legislation the most recent use of a term supersedes all preceding use of that terminology in legislation. Therefore, the Mental Capacity Act should be the Act we look to. However, here we have a specific decision to be made in the so-called best interests of an individual, who can be assumed to have capacity, about the decision over their data, and that decision is being made by another person. My concern is that we are legislating for one person, the health or adult social care commissioner or provider, to decide that inclusion of the NHS number as a consistent identifier is, or is not, in the individual’s best interest, even though the individual with capacity may, if consulted, feel very differently. My concern is because there are quite serious implications about not including the NHS individual identifier.
I turn to the principle of best interests. For years we have tried to make sure that that term was used properly in both health and social care. We had a very interesting debate earlier this week on the post-legislative scrutiny of the Mental Capacity Act. Strenuous efforts have been made to roll out empowerment of individuals to enhance capacity and not to take paternalistic decisions of one person over another. Indeed, I have been involved in trying to teach the principles of the Mental Capacity Act, and I am fearful that this wording—as in this piece of legislation—could be seen to undermine the laudable intentions of that Act in terms of empowering individuals to take decisions.
I turn to Amendment 6 and how the NHS function of the unique identifier is important. In our society, we have several different identifying numbers—national insurance numbers, bank account numbers, passport numbers and so on. The national insurance and passport numbers are held from within the province of government. Perhaps it would be more honest to state that, if you do not wish your NHS unique identifier to be available to be available to you, you have effectively signed yourself out of NHS services.
Indeed, I am grateful for a briefing that I have only just received this morning, which points out—if I have understood it correctly—that opting out of the use of the NHS identifier opts you out of systems such as “choose and book”, screening programmes and so on. So effectively you are in part removing yourself from services that are available as a public health measure, as well as services that would be available to you as a patient. I wonder whether we should state clearly that the onus is only on you as the individual to explain why you wish such a number to be excluded, perhaps because you are a public figure and wish to use an alias—or should we begin to think about whether there should be the occasional possibility for people to have two numbers to use in different situations, rather as you can, in exceptional circumstances, hold two passports?
The NHS number makes links across the whole system of pathways of care. Indeed, it is there to reduce risk. For example, if you have two patients with a similar name who are going for surgery, the NHS number will be used as a checklist identifier to make sure that the right patient of that name is taken down for surgery. We are all aware that, when patients are in hospital and frightened and feel disempowered, they are less likely to challenge the processes that are happening to them than when they are fit and well.
Another problem concerns me. What about the person who is coerced or pressurised into withholding their NHS number because somebody is badly intentioned or abusive towards them and does not wish that abuse to be revealed? A person may appear in different parts of the healthcare system but, without that NHS identifier number, the dots cannot be joined up to protect them or to detect that there is a problem.
I seek confirmation in summing up from the Minister that I am correct in understanding that, if you decide not to use your NHS number, you are opting out of things such as screening programmes, as well as having to present your NHS number to be able to opt out of systems such as care.data, and so on. At the moment, if you opt out of care.data, you are opting out of screening programmes as well.
Another problem for the NHS is that hospital episode statistics rely on the NHS number, which is effectively how the hospital is paid. If there is no number, the only identifier that the hospital has is your name and address, which is a far greater threat to privacy in the system than is the NHS number.
With those comments, I await the Minister’s response to the questions I have posed. I emphasise again that I have real concern about how the term “best interests” is being used. I seek clear clarification in his answer so that we can have clarity on the record about how the term is used in the context of the Bill.
Baroness Hollins (CB)
My Lords, Amendment 7 in my name focuses on the proposed duty in Clause 3 to share information between health professionals and social care professionals. I apologise that I was out of the country during Second Reading and was unable to speak. I congratulate the noble Lord, Lord Ribeiro, for championing the Bill through the House. I also thank the noble Lord, Lord Hunt, for supporting this amendment, together with the noble Lord, Lord Low, who unfortunately cannot attend today.
From my own research and the work of the confidential inquiry into the premature deaths of people with a learning disability, I know that there are some appalling patient safety outcomes for people with learning disabilities, where improved information sharing has a real prospect of helping. Data scaled up from the confidential inquiry show that 1,200 people with a learning disability die avoidably in NHS care every year. In many cases this is due to poor or inadequate care or diagnostic overshadowing, where, put simply, professionals fail to see past the learning disability to what is really affecting the patient, may not recognise that the person has a learning disability, or may have had no training on what a learning disability is.
Lord Hunt of Kings Heath
My Lords, this has been an interesting debate. I thought that the noble Baroness, Lady Finlay, raised some important points in relation to the definition of “best interests”. Because she referred to a number of identification streams within the health service, I ought to declare my interest as president of GS1 UK, the barcode association. Barcoding is, of course, another indicator that can be used.
I recently had an interesting discussion in Solihull with people who are helping the integration board that is aiming to bring health and social care together to provide integrated services. It was interesting to get an insight from a company that is helping the statutory providers to do this by confronting situations in which individuals are provided with services from a number of different statutory agencies but where there is, seemingly, no co-ordination at all between them. One often gets professionals arriving at the same time but not communicating with each other. This is partly due to the problem over information systems.
I should like to ask whether the noble Earl considers that the passage of the Bill will help the integration of that information, provided that the public have confidence in the process under which information is shared. There is clearly a balance to be drawn between the benefit of information sharing between statutory bodies in terms of integrating provision, alongside the safeguards necessary to the public. One should be in no doubt that this is quite a tension. Yesterday, the parliamentary Intelligence and Security Committee published a report on the holding of information by the security services. Reading it gives some cause for concern, in many cases, about the amount of information available about individuals. Although, as I understand it, the committee report says that that information is often never referred to or used, it none the less could be. The whole issue regarding the integrity of confidential information is important. On the other hand, we know that we have considerable failures in service because there is no sharing of information. The point that the noble Baroness raised about what we mean by “best interests” and the issue of how we can ensure public confidence is extremely important.
I support the amendment in the name of the noble Baroness, Lady Hollins, which offers an opportunity to debate the importance of including people’s communication needs in the information shared between health and care professionals. I have received helpful briefing from Mencap, the RNIB, the National Autistic Society and Sense. It has become abundantly clear that failure to understand the best way in which to talk to individuals can result in misunderstandings, misdiagnosis and, ultimately, poor care. Accessible and easy-to-read information, perhaps with pictures, to which the noble Baroness, Lady Hollins, referred, and the presence of family, advocates or interpreters, can make the difference between diagnosis and misdiagnosis.
It would be very helpful if the noble Earl could clarify that the communication needs of disabled people and the reasonable adjustments that they might need will be an important part of the health information that should be shared between professionals. I certainly hope that he is willing to place on record that guidance associated with the Bill will reflect this and that it will reach the relevant professionals.
Earl Howe
My Lords, let me turn first to Amendment 5. I understand the noble Baroness’s concern that there should be no confusion over the “best interests” wording in the Bill and the more technical and prescribed “best interests” checklist test in the Mental Capacity Act 2005. The key point for me to emphasise straightaway is that in this Bill the phrase “best interests” is ascribed its ordinary meaning: the consideration of a range of factors, including the wishes of the individual. Nothing in the Bill detracts from patient autonomy or the importance of supportive partnership working between clinicians and patients. This is in marked contrast to the “best interests” test checklist found in the Mental Capacity Act, which the noble Baroness was instrumental in shaping. In that Act, which concerns individuals who lack capacity, the term is not defined. A checklist of considerations helps professionals to determine what a patient’s best interests are.
The information-sharing provisions of the Bill respond to concerns expressed by the National Data Guardian. Dame Fiona Caldicott, in her 2013 review of information sharing, identified a risk-averse culture and concluded that the duty to share information for a person’s own direct care should be considered as equally important as the duty of confidentiality. I quote from her review:
“Health and social care professionals should have the confidence to share information in the best interests of their patients”.
These provisions seek to establish that sentiment in law.
The presence of the phrase “best interests” in this Bill ensures that it complies with the central principle of the Data Protection Act and the Caldicott review: to share information only where necessary and relevant. The term “best interests” is used elsewhere in primary legislation, including in the Human Fertilisation and Embryology Act 1990 and Section 38 of the Medical Act 1983. It was also used more recently in the Charities Act 2011, the Legal Services Act 2007, and in the Pensions Schemes Act 2015, which received Royal Assent last week—all are without reference to the checklist in Section 4 of the Mental Capacity Act. It is a term used across a wide-ranging legislative landscape with its ordinary meaning.
The “best interests” test in this Bill is no different from that in the pensions Act or the Legal Services Act. It requires a professional to apply a common-sense approach. I appreciate the noble Baroness’s concern that the use of the word “best” could herald a return to a “doctor knows best” kind of paternalism and to disempowering patients in the process. I sincerely hope that I can convince her that this is neither the intent nor the effect of this Bill. I am sure that the whole House will agree that the focus of information sharing should be on the needs of the individual, rather than defensive, risk-adverse behaviour of the type we have sometimes seen in the past.
I can confirm that the Department of Health will provide guidance to support the interpretation of these new duties. This will include a clarification that the term “best interests” is ascribed its ordinary meaning. The Government will also amend the Explanatory Notes to that effect.
Lord Hunt of Kings Heath
My Lords, that was a very helpful response. May I just ask the noble Earl whether explicit examples will be given in the guidance? The issue of professional defensiveness is very important. He will know that, out in the field, people often have a different view about data protection. Sometimes it gets in the way of sensible, professional working together. I urge that the guidance should be as practical as possible and that it should be aimed at field workers, rather than just the organisations they work for. Let us take as examples care workers, health service workers, health visitors and nurses, in regard to whom it is clearly in an individual’s best interests that information is shared about visits, and that sometimes responsibilities are shared, and that they are not inhibited because of some myth about their inability to share information.
Earl Howe
The noble Lord makes some very good points. The duty to share information will, we trust, ensure consistency in the sense that it will make it clear when the duty to share applies. It is clear that there is a real commitment throughout health and adult social care to overcome the cultural barriers that Dame Fiona referred to. For example, the sharing of information for the purposes of an individual’s direct care is already required as part of the professional duties of health and care professionals, and sharing for direct care purposes can be undertaken in accordance with the common-law duty of care.
The department is already working with its national partners to offer practical support to local provider and commissioner organisations on information governance and sharing. For example, the department is partner to the Information Governance Alliance, a group of national health and care organisations which has been established to provide a single authoritative source of guidance and support on information sharing. I confirm to the noble Lord that the guidance will include specific examples and will be prepared in consultation with our key stakeholders.
Turning to Amendment 6, the NHS number helps to ensure that an individual’s health and adult social care history is readily accessible when they move along their care pathway. This will improve safety and the experience of care. The adoption of the use of the NHS number as a consistent identifier has been a long-standing government objective.
It may help if I explain a little about the purpose and use of the NHS number. An individual does not need to know their NHS number to get treatment. Conversely, having an NHS number does not imply entitlement to the free use of all NHS services. The NHS number helps to confirm the identity of patients and link health records. There are some electronically based services for which an NHS number is essential and from which a patient who objects to the number being shared may not be able to benefit—for example, as the noble Baroness said, screening programmes, choose and book referrals, and electronic prescriptions in primary care. In these instances, the implications of objecting may be serious, which underlines why the decision to opt out should always be considered carefully and discussed with professionals.
That said, there is an important principle at stake here. The Government are committed to empowering the individual. In the future, it will increasingly be the citizen who determines who has access to their data, with care professionals respecting their preferences. For that reason, the Bill provides that if an individual objects, or is considered likely to object, then no duty to share information will arise under these new provisions. I hope that that is a useful explanation for the noble Baroness.
I am pleased to reassure her also that the Bill will not have any effect on the existing systems to protect victims of abuse. The Care Act 2014 sets out clear duties on adult safeguarding. Under the Act, local authorities must make inquiries, or cause others to do so, if they reasonably suspect that an adult who has needs for care and support is, or is at risk of, being abused or neglected.
Statutory guidance will provide that the early sharing of information is key to providing an effective response where there are emerging concerns. Where an adult has refused to consent to information being disclosed, practitioners must consider whether there is an overriding public interest that would justify information sharing.
There are equally robust mechanisms in place to protect children. The Department for Education has produced statutory guidance entitled Working Together to Safeguard Children, which clearly sets out that professionals should share information with local authority children’s social care where they believe that a child is at risk of abuse or neglect. It states:
“Fears about sharing information cannot be allowed to stand in the way of the need to promote the welfare and protect the safety of children”.
Existing guidance on information sharing for practitioners and managers states that if a child is suffering or is likely to suffer significant harm, professionals should share information even if consent is refused or withdrawn. The interests of the child are paramount.
I agree wholeheartedly with the sentiment behind the amendment in the name of the noble Baroness, Lady Hollins. It is critical that an individual’s communication needs are identified and shared appropriately with those responsible for providing and commissioning care and services. This Bill requires the sharing of information where this information is,
“likely to facilitate the provision to the individual of health services or adult social care in England, and … in the individual’s best interests”.
An individual’s particular communication needs would be a good example of such information. This will be made clear in guidance.
The concerns that the amendment seeks to address reflect those Mencap has recently raised with the Department of Health. I am pleased to say that my officials have had constructive discussions with Mencap and we welcome its offer to help shape the guidance. Mencap welcomes the Bill as it has the potential not only to improve information sharing between health and social care, especially for people with a learning disability, but also has, in its words, the potential to “save lives”. I would add that, provided the patient or his or her attorney have consented to its inclusion, any information from a GP record that can be coded can be included on a summary care record. Work is already under way to expand the summary care record inclusion data set to include specific communication needs items.
Lord Ribeiro
My Lords, I thank the Minister for clarifying the issues around the consistent identifier. It is interesting that the use of the consistent identifier and the sharing of information was welcomed at Second Reading by the noble Lords, Lord Turnberg, Lord Willis of Knaresborough and Lord Hunt of Kings Heath. The noble Lord, Lord Hunt, confirmed that the Opposition were very supportive of sharing a patient’s information, which, as he said, was,
“clearly in the best interests of their patients”.—[Official Report, 6/2/15; col. 961.]
That slides me very easily and comfortably into Amendment 5 and the question of best interests, which, again, has been addressed. I must confess that I have always used, and continue to use, the term “best interest” without assuming that this can be used only about those without mental capacity, as defined by the Mental Capacity Act 2005. It is my understanding that in these clauses the phrase “best interests” assumes its general meaning and provides a relevant person with a duty to act in the individual’s best interest when providing information for direct patient care. That is my understanding of the term.
As regards Amendment 6, patient control and choice about how their information is used is the subject of wider government policy. I believe that what needs to be done in that respect has already been illustrated. It is about empowerment of the individual and giving them control over their own information. I also welcome the intervention of the noble Baroness, Lady Hollins, in highlighting a key piece of information in patient care. Her description of a patient who died after surgery for want of the right word when asked a question—the patient answered incorrectly, which led to a fatal outcome—was truly revealing. In my experience, it is critical that if an individual has particular communication needs, those who provide care or treatment should know about them beforehand.
I am confident that the requirements to share information in support of direct care in the Bill already encompass communication needs. The Minister commented that Mencap has sought reassurances that health professionals should become more aware of the ways in which people can communicate their health and care needs. I am sure that, from his statement earlier, work on this will take place to ensure that those concerns are met. With those comments, I hope the noble Baroness will be happy to withdraw her amendment.
Baroness Finlay of Llandaff
My Lords, I am grateful to the Minister for being so clear in addressing the issues that I have raised and for the supportive further clarification sought by the noble Lord, Lord Hunt, of Kings Heath. It will ensure that the term “best interests” is attributed only its ordinary meaning and not misinterpreted for the purposes of this Bill as meaning “best interests tests” as outlined in the Mental Capacity Act. I am also grateful that the guidance and the Explanatory Notes will be amended as both noble Lords have outlined. I appreciate the welcome of the noble Lord, Lord Ribeiro, for how the debate has gone and what has happened. I therefore beg leave to withdraw my amendment.
Lord Warner
“Children
(1) The Secretary of State shall, as soon as practicable, make regulations to apply the provisions of sections 2 and 3 to services for children that benefit their health and wellbeing and protect them from abuse.
(2) Such regulations shall be applicable in the first instance to relevant health and children’s social care commissioners and providers.
(3) These regulations may be extended to other public bodies by order where there is an established body of evidence that such extension would improve the health and wellbeing or protection of children.
(4) All such regulations shall be approved by resolution of both Houses of Parliament.”
Lord Warner
My Lords, Amendment 8 follows the slightly unsatisfactory debate at Second Reading on 6 February on the issue of a common identifier for children. As I said then, I welcome the provisions in the Bill for consistent identifiers for adults across health and social care, but I still cannot see why the same considerations do not apply in this Bill to children. Indeed, I would go even further and say that the absence of a common identifier for children poses even greater risk than that for adults.
I declare an interest as the Children’s Commissioner for Birmingham, appointed by the Secretary of State for Education. I do not intend to speak about my work there except to tell the House that Birmingham, like many other parts of the country, is experiencing huge rises in the numbers of children at risk and in need.
A key element of tackling this problem is all agencies speedily sharing information about individual children. To do this means a common identifier. It is not only me saying this. As far back as 2003 the noble Lord, Lord Laming, in his excellent report on the tragic case of Victoria Climbié, called for a common identifier database for all children under 16. This Government halted work on it. Nevertheless, professionals working in the area have battled on, trying to improve information sharing in order to reduce risks to children.
The child protection information sharing project is being implemented to allow—I emphasise “allow”, not “require”—healthcare staff in unscheduled care settings to be alerted to the existence of a child protection plan. However, this is a long way short of using the NHS number, given to all individuals at birth and a lifelong identifier, to link data sets for the protection of children. All these professionals cannot understand why politicians across the parties—I am not making a party-political point—simply will not commit to doing the same for children as they do for adults on interagency information sharing and to making it easier to share information through a common identifier.
I am not going to detain the House today with various attempts to patch up children’s data sharing. I simply suggest that all Front Benches read the 2014-15 report on information sharing from the Children and Young People’s Health Outcomes Forum. This makes it clear why the NHS number should be used as the link identifier and provides a process map for doing so.
Amendment 8 attempts to build on all the hard work that I have mentioned by an army of committed professionals to improve the lot of vulnerable children. Instead of the almost endless bureaucratic dithering and squabbling by various public bodies both nationally and locally, we need to put children on the same basis as adults in terms of information sharing and linked identifiers. My amendment provides that a Secretary of State—frankly, I do not care which one, and anyway they may all have different functions after 7 May—should have the responsibility to make regulations to apply the provisions of Sections 2 and 3 of the Act to services for children that benefit their health and well-being and protect them from abuse. It is a deliberately broad remit, but I believe that it is within the scope of the Long Title of the Bill. If the Minister wants to argue that it is not within scope, I would like to hear the legal arguments for that. I have gone through the Long Title and I cannot see that it states anywhere that the Bill is limited to adults.
The amendment does not tie the hands of any Government in terms of detail or precise timing. Initially, it restricts the scope to children’s commissioners and providers in the health and social care sectors, but it provides for later extension where there is a body of evidence to show that doing so could improve the health and well-being of children—something which I suspect all noble Lords in the House support.
I recognise that my amendment will not have improved my popularity rating in government departments, among the Bill’s sponsors, and probably on the Front Benches as well at this stage of the electoral cycle. However, if people want this Bill speedily, I want to see some movement from the Front Benches—not just the Minister; this is also a matter for our Benches. I do not intend to press matters further today, but I would like to hear whether the Front Benches can demonstrate a willingness to commit to act on this issue at the earliest legislative opportunity if they are part of the next Government. I know that no one can commit the next Government, but it is possible for all the main parties to take a view on the issue going into an election. I hope that we can bring a bit more positivity to this issue and I beg to move.
Baroness Masham of Ilton
My Lords, I would like to ask a question of the noble Lord, Lord Warner. Would Amendment 8 help to protect children such as Baby P, who suffered around 50 abuses, including a broken back, which had been neglected? Many other children have suffered abuse and neglect since then. Children need extra shared protection.
Lord Warner
I know of the commitment of the noble Baroness in this area. The answer is that a linked identifier would have helped in many of these cases. We have to move beyond exhortation in central government guidance for people to share information across the agencies to providing them with the practical tools that will make it easier for these data systems actually to share information and make it readily accessible. That means providing a common linked identifier for the agencies to use in matching their data sets. So, yes, in all probability Baby P might have been protected, as well as the many others we have seen since Victoria Climbié.
Lord Elton
My Lords, given the undertaking that we are not going to divide on this, I am tempted on to my feet to remind your Lordships that, although we have talked about the Climbié case, this goes back to the case of Maria Colwell in 1975, when Lord Goronwy-Roberts, the Labour Minister for Health in this House, was successful in beginning the setting up of at-risk registers. That was a long time ago and yet we still have not solved the issue of the breakdown of information sharing between agencies, voluntary and otherwise. I encourage my noble friend to leave a note on his desk, to which we all hope he will return after the election, reminding himself to get on with this.
Lord Hunt of Kings Heath
My Lords, I am not sure about the noble Lord’s latter point. I think my noble friend has done us a great service in raising this issue. Since we are talking about unique personal identifiers again, perhaps I may first remind the House of my presidency of the bar-coding association, GS1.
As a resident of Birmingham, I thank my noble friend for his work as the Children’s Commissioner, which has been invaluable. Your Lordships will have a great opportunity to discuss these matters further on Monday night after we debate standardised packaging of cigarettes, because I have a Motion to Take Note on the Birmingham electoral order, which changes the electoral cycle in Birmingham following the work of the three commissions and the Permanent Secretary at the DCLG.
On the substantive point, my noble friend raised the case of Victoria Climbié, on which I well remember making the Statement to this House a long time ago now. What was so striking in that report was that she went through, I think, at least eight or nine public agencies. If any one of them had talked to another, it is likely that she would still be alive today. It was a shocking report, because there were so many failures by so many different organisations. Although, inevitably, the local authority always tends to be the focus of concern, neither the health service nor the police covered themselves in glory. I am not really in a position to commit the Opposition in exactly the way that my noble friend wants, but if the noble Earl would like to institute some urgent cross-party discussions with my noble friend, we would certainly be very happy to take part.
Earl Howe
My Lords, to start with a given, I am sure I speak for the whole Committee when I say that we are all committed to taking whatever steps are necessary to protect children from abuse and neglect. Clauses 2 and 3 are, as they stand, based on long-standing policy intentions. They have real buy-in and support from those who will need to deliver them.
As regards children’s social care and wider children’s services, the difficulty with proceeding without delay in the direction that the noble Lord, Lord Warner, is advocating is that we do not yet have robust evidence on the impact of the potential burdens and risks of an extension of these duties. Moving to the use of a common identifier for the education and children’s social care sector would represent a substantial change. In the discussions that I have had on this, I have been persuaded that it is only right that we fully understand and assess the impact before considering legislation.
However, I can give the noble Lord, Lord Warner, some hopeful news. I am pleased to inform him that the Department for Education has committed to undertake an evidence-gathering exercise to understand fully the impact of adopting a consistent identifier for these types of provision. That exercise is expected to report before the end of the year. I hope the noble Lord will understand that we would not want to pre-empt the outcome of that or make decisions now on behalf of Ministers in the next Government, who will wish to consider the evidence once it is available.
The amendment would also have the effect of creating a power to extend Clauses 2 and 3 to other public bodies where there was evidence that this would benefit the health and well-being or protection of children. I recognise and welcome the sentiment and reasoning behind the desire to extend the information-sharing duty under this Bill to encompass child protection issues. As I have already assured the noble Baroness, Lady Finlay, there are clear requirements on professionals to share information to protect children. I hope that reassurance is helpful.
Lord Elton
In fact, Reg Wells-Pestell, not Goronwy Roberts, was the Minister. I want to get that right for anyone who is old enough to remember and reads Hansard.
Lord Ribeiro
My Lords, the amendment tabled by the noble Lord, Lord Warner, seeks to extend the use of the NHS number to services that benefit children, particularly those in social care, and which protect them from abuse. The Minister addressed the amendments in some detail and I was pleased to hear the assurances he gave, which I hope will have an effect. But I also note that the noble Lord, Lord Warner, was pretty impartial in his criticism of both Front Benches, and the suggestion that they come together and provide some movement is something that perhaps could happen when we have the report from the Department for Education at the end of the year. I will leave it to the noble Lord to decide. He has already intimated that he will not be pressing his amendment.
Lord Warner
I just want to register something with the Minister. I am grateful for what he had to say, but the whole issue of trying to make progress in this area is littered with attempts at reviewing the information that is available on making the world a better place. As the noble Lord opposite has reminded us, we have to go back 40 years for the first really serious child abuse scandal, involving Maria Colwell, which came to light. Since then it has been 40 years of agencies, in case after bad case, failing to share information that would have saved a child’s life. As I said, 12 years ago the noble Lord, Lord Laming, said his piece on one of those cases and made it very clear that a common database was required, with a linked identifier.
It is no good the Department for Education crawling all over the ground again and finding 27 reasons why we should not do anything. We need some action. There is plenty of evidence about why a common identifier would make things a lot safer for children. They are pretty much the same arguments that you would use in relation to adults; they are not fundamentally different. The Government and the Opposition Front Bench need to understand what is going on around the country—it is happening in Birmingham—where the agencies are coming together in multiagency safeguarding hubs. But when they come together, they find that their data systems cannot talk to each other, even if they are in the same room, because there is no easy linkage between the different databases.
If we wish to make kids safe, we have to progress this issue quickly. Frankly, I am not wildly reassured by a DfE review by the end of this year in an area that is littered with information about the need to make progress. It is not just me; I think that many of those hard-working professionals I have talked about cannot see why the government bureaucracy—whoever is in government—cannot make some progress in this area. Having got that off my chest, I beg leave to withdraw the amendment.
Baroness Finlay of Llandaff
My Lords, I will also address Amendment 10 in my name. Amendment 9 seeks to ask how a regulator can, through its fitness to practise panels, judge well-being. I can see how health and safety can be judged objectively but well-being is a subjective judgment and it is very difficult to dispute a person’s view of a professional’s action having adversely impacted on their well-being. I have a concern that, as a sole criterion, it could be used in a vexatious way where there are other issues that somebody wishes to address against a professional, perhaps at a personal level, rather than it being focused on their professional conduct.
Amendment 10 seeks clarification of the prioritisation of the issues to be considered by fitness to practise panels. Such panels should not assess public confidence on the basis of purely personal condemnation of a person or the media’s response to what has happened—the so-called trial by media.
Baroness Pitkeathley (Lab)
My Lords, I thank the noble Baroness, Lady Finlay, for tabling these amendments to Clause 5 and for her characteristically clear introduction. As noble Lords may remember from Second Reading, I too have concerns about Clause 5 in my role as chair of the Professional Standards Authority. I said then that there had been a misunderstanding of the role of the authority and that I was afraid that the Bill would make our objectives unclear and narrow the scope of our work. I was also concerned lest the Bill would in any way make it less clear that the primary and overarching role of the Professional Standards Authority is public protection. The Minister said then that his officials were happy to continue discussions, and I am pleased to say that there have been helpful conversations and meetings with the noble Lord promoting the Bill, the Minister and his officials. I am grateful for the care and attention that have been given to our concerns.
None the less, I take the opportunity that the noble Baroness’s amendment gives me to ask the Minister again to clarify that the Professional Standards Authority will never be required to prioritise the objective of promoting public confidence in the professions over its primary purpose of protecting and promoting the health, safety and well-being of patients, service users and other members of the public. In other words, could there ever be circumstances in which public confidence might conflict with public health, safety and well-being? Such circumstances might be where the authority identified a poorly performing regulator. If the Minister could give me this clarification, it would help the authority address any arguments that might in future be raised that it should conceal a regulator’s poor performance or otherwise prioritise the objective in new paragraph (b) over that in new paragraph (a).
The confusion about the hierarchy between the objectives in new paragraphs (a) and (b) may have arisen because of the conflation of the PSA’s role with that of the regulators which it oversees. It may have arisen also because Clause 5 does not follow the Law Commission’s recommendation, which proposed a clear main objective for the authority followed by two general objectives. Although the Minister has acknowledged the role of the authority as an overseer of the regulators, it would be helpful if he could provide an assurance that under Clause 5 the main and primary aim and focus of the authority will continue to be to promote the health, safety and well-being of patients, service users and other members of the public.
Lord Hunt of Kings Heath
My Lords, some very important points have been raised by the noble Baroness, Lady Finlay, and my noble friend Lady Pitkeathley. My regret is that we are dealing with these regulatory matters in this Bill. A number of statutory instruments will also come through your Lordships’ House, one from the GMC, in the next few days.
We had a Law Commission draft Bill which should have been a fifth Session Bill and would have enabled your Lordships to look at the statutory regulation provisions in the round. However, because of the Government’s decision not to proceed with that Bill, not even in pre-legislative scrutiny, we now have to look at this matter in a piecemeal way. It is wholly unsatisfactory. I am very sorry that we are having to deal with these issues in this way without enough time to focus on them properly. I am worried about Clause 5; I think that we are going to let it through without understanding its implications. We would be very grateful for anything that the noble Earl can do to clear this up.
Earl Howe
My Lords, I very much hope that I can allay the concerns of both noble Baronesses and the noble Lord. In its report, the Law Commission recommended a consistent main objective for professional regulators and the PSA around patient safety. It also recommended two subsidiary objectives: maintaining confidence in the profession and proper professional standards and conduct. The Law Commission’s report describes this proposal as restating the existing legislative position that public protection is the regulators’ main objective. The Government’s view is that public protection is sufficiently important that it should be expressly adopted in the legislation.
The noble Baroness, Lady Pitkeathley, asked whether public confidence might conflict with public health, safety and well-being. In the example of the Professional Standards Authority identifying a poorly performing regulator, it is clear that the interests of public protection and public health, safety and well-being would require the PSA to take action. In this example, any argument that the objective of promoting and maintaining public confidence in the professions would require the PSA to conceal poor performance would clearly run counter to public protection. The objective of promoting and maintaining public confidence in the professions does not mean that the PSA or the regulatory bodies should be promoting the reputation of the professions generally. Rather, it is about taking action where there is a risk that confidence in the profession as a whole is undermined to the extent that it may deter people from seeking the treatment or care that they need and impact on public protection. This example highlights the fact that while the objectives are all linked to public protection, in practice they may not always necessarily be relevant, or relevant to the same extent in particular cases. It is not a case of one objective overriding another or preventing it being considered but ensuring that they are pursued only where they are relevant to public protection.
The Bill does not prioritise or weight one element of public protection over another. It is for the PSA to determine how it applies those elements in carrying out its functions in relation to the regulators and considering the issues of the case. My view is that health, safety and well-being will always be relevant to public protection when the PSA is carrying out its functions in relation to the regulators. It will be for the PSA to determine how to apply the objectives appropriately.
The noble Baroness asked whether the objective to promote and maintain public confidence might inadvertently lead the regulators to be less transparent in highlighting bad practice. Equally, that might lead to regulatory committees and panels punishing professionals who do not pose any threat to the public. If the actions of a doctor appear likely to reduce confidence in the medical profession and influence the decision of individuals as to whether to seek medical help at all, it may be right to take action. However, panels and committees will be asked to reach their own objective judgment as to whether particular acts or omissions would affect public confidence if no action were taken. A subjective view, uncritically influenced by public opinion or the media, would be an unacceptable basis for a decision.
Turning to the term “well-being”, the BMA has raised concerns with my ministerial colleague Dr Dan Poulter about how it would be interpreted by fitness to practise panels and committees. Well-being has been a long-standing and established feature of the legislation for three of the regulators. It encompasses those aspects of a professional’s role that may have an impact on individual patients but not directly impact on their health or safety. Dignity, compassion and respect are all important in delivering care, and it would not be right to disregard them.
It will be for the regulators to formulate and issue guidance for fitness to practise panels on interpreting and applying the objectives in practice, including the term well-being. The legislation makes clear that those objectives are considered only under the umbrella of public protection.
My officials will draw the regulators’ attention to those concerns should the overarching objective become law. That is in order to inform any guidance that will be needed to implement both this Bill and the secondary legislation for the GMC.
The noble Baroness, Lady Finlay, also asked about how we view the definition of “public” in the Bill. It of course includes patients and service users, as well as other parts of the collective public. I hope that that reassures the noble Baroness that the objectives in relation to well-being and public confidence will not be pursued outside the regulators’ objective to protect the public.
Lord Ribeiro
In following the Minister, perhaps I may deal, first, with “well-being”. At paragraph 3.20, the Law Commission’s report states:
“We disagree with the criticism of ‘well-being’. This term has already been incorporated without difficulty into the main duties or objectives of many of the regulators”.
Within that context, it feels strongly that that term cannot be misinterpreted.
The Bill introduces consistent objectives for the PSA and the regulators based on the proposals of the Law Commission’s review last year. Most of the professional regulators have some form of main objective. Although they are not consistently expressed they are generally to protect, promote and maintain the health and safety of the public. It is the health aspect with which the noble Baroness, Lady Pitkeathley, was particularly concerned at Second Reading. I think that that concern has been allayed today.
It is clear that public protection—by “public” I of course include patients—is sufficiently important that it should be adopted expressly in legislation. Defining public protection in terms of these three elements to be pursued by the regulators and the PSA as their overarching objective enables public protection to be considered in its fullest sense. That should give comfort and reassurance to the noble Baronesses who have spoken. With that, I hope that the noble Baroness will agree to withdraw the amendment.
Baroness Finlay of Llandaff
My Lords, I am most grateful to the noble Baroness, Lady Pitkeathley, for having expanded on and brought better definition to the points that I was trying to make on the amendments and for the clarification that we have had from the Minister and the noble Lord, Lord Ribeiro. I therefore beg leave to withdraw the amendment.