Health and Care Bill

Baroness Brinton Excerpts

Committee stage
Wednesday 9th February 2022 Lords Chamber

[The Principal Deputy Chairman of Committees (The Earl of Kinnoull) (CB)]

My Lords, the noble Baroness, Lady Brinton, is participating remotely, and I invite her to speak now.

[Baroness Brinton (LD) [V]]

My Lords, I will speak against Amendments 297F and 297G, spoken to just now by the noble Baroness, Lady Nicholson. One incident last week explains why they are dangerous and unnecessary. A woman, whom I will not name, was in hospital said the following on Twitter:

“This is incredibly hard to say, and I couldn’t feel more foolish, embarrassed, awkward and dumbfounded as I do now, but it’s been confirmed that the person I believed to be male on the hospital all female bay I was on, was … in fact, a female. This has been 100% verified … I have no words other than how on earth did I mistake a woman for a man? Delicately and with respect I say she was a very emasculated woman and I’m just totally stunned right now at the mistake, my mistake… and am … mortified that I took to Twitter utterly convinced that the woman who looked and sounded like a male, turns out to be quite genuinely a female. I apologise for causing a storm and will take some time off here while I let it sink in. I cannot understand how I got it so wrong … I feel a complete idiot.”


The problem is that these two amendments feed into the conspiracy movement against trans people and prey on vulnerable women such as this who believe that there is a problem. The fear inculcated by the gender-critical movement means that she felt entitled to aggressively call out a complete stranger minding her own business in her own hospital bed, in case she was a trans woman. Yet the reality is that there is absolutely no evidence whatever of trans people causing problems on single-sex wards. All the examples of assault given by the noble Baroness, Lady Nicholson, were by men, not trans women.

What is more, trans people, just like people who are not trans, have a right to privacy and dignity in hospital, just like everyone. Imagine if the patient who had been aggressively called out by this woman had been a trans woman. Is that sort of behaviour towards someone ill in hospital in any way appropriate? Of course not.

Amendment 297F, also in the name of the noble Lord, Lord Blencathra, sets out how to record instances where people complain about trans people simply on the basis that they are trans. Such behaviour may be part of a pattern of behaviour that may result in risks to any patient who is trans, visibly gender non-conforming or, as in this case, a woman. Not allowing the recording of such incidents may then place the NHS trust at risk of failure in its duty of care if something subsequently happens between the two parties.

The noble Baroness, Lady Nicholson, started to outline the definition of “harassment” under the Equality Act: “violating” a person’s “dignity” or

“creating an intimidating, hostile, degrading, humiliating or offensive environment”.

The amendment would only restrict recording of incidents involving trans people—not other gender non-conforming people. As such, it would be discrimination because trans people would be prevented from having discriminatory actions against them recorded, while everyone else would not be so prevented.

Amendment 297G flies in the face of current hospital practice. The NHS already has policies relating to where trans people should be housed, which reference the types of treatment required and the requirement for respecting the privacy and dignity of the trans person, alongside the privacy and dignity of all other patients too. This amendment would overrule those policies and therefore override the privacy and dignity of trans patients. It would clearly breach basic human rights legislation. And, by the way, trans people may require medical treatment for conditions relating to their lived-in sex: trans women may get breast cancer, for example. Requiring them to be housed in different accommodation could mean that the specialist nursing care required for their recovery may not be available.

But there might also be an unintended consequence of this amendment. If trans people know that they will be housed with people of their birth sex, rather than of their lived and legal sex, many will avoid going to hospital altogether, leading to many having increased and dangerous health complications. This could be potentially life-threatening, which is implicit discrimination under the Equality Act.

As the recent incident highlighted on Twitter shows, there actually is no real problem to be solved, and all that these amendments do is seek to demean and ostracise trans women in our society. I hope that the Minister will not support them.

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[The Deputy Chairman of Committees (Baroness Fookes) (Con)]

My Lords, the noble Baroness, Lady Brinton, is taking part remotely. I invite the noble Baroness to speak.

[Baroness Brinton (LD) [V]]

My Lords, I am delighted to support Amendment 297L from the noble Baroness, Lady Hollins, which proposes mandatory training on learning disability and autism and how to care for people in the health sector. The amendment is also signed by the noble Baronesses, Lady Bull and Lady Merron.

People with learning disabilities and autism need to be cared for by those who really understand their condition so that they can carry out their roles effectively. This amendment formalises that in terms of the plan, what needs to be covered and what the code itself needs to cover. Those of us who have family members with learning disabilities or who have worked closely with them know that this specialist understanding is vital, and for a broader range of people working with them than is usually understood.

The noble Baroness, Lady Hollins, highlighted the need to ensure good understanding of health issues and how they are managed. Oliver McGowan’s story is shocking and we need to ensure that it is not repeated at a strategic level. During the pandemic we heard of far too many “do not attempt resuscitation” orders for people with learning disabilities. Indeed, it took some considerable time to get access to Covid vaccines for people with Down’s syndrome and other learning disabilities, even though they were more susceptible. It took too long to get that changed. My Down’s nephew in Spain is still not entitled to a vaccine.

In an earlier amendment we discussed abuse in institutional settings. Last year, there were some appalling undercover videos of staff physically abusing autistic students at a residential school. One of the comments was that it was evident that some staff had not been trained to understand and manage autism. Training is not needed just to prevent bad behaviour; well-trained staff in health and education settings are a joy to watch when they are working with those they are supporting, and it can truly enrich their lives.

[Lord Warner (CB)]

My Lords, I rise briefly to speak in support of this amendment. I declare my interest as a vice-chairman of the All-Party Group on Autism and the grandfather of a child with very serious autism. In particular, I want to emphasise a point which I think I have made before in this Chamber about the problems of achieving a diagnosis. You achieve a diagnosis when people start to recognise the problems that a young person is suffering from. Carers do not get any kind of services until there is a recognition of the condition by people in the different agencies.

I thoroughly support this amendment, because it would put on a statutory basis the need to improve training for a range of people who are likely to come in contact with the family from time to time, so that they are on the lookout for this condition, which, I can tell the Committee, can be very disruptive to family life and very difficult to deal with. The people who are carers of young people with autism have a terribly difficult job and a tremendously difficult road to travel. So the more help we can give clinicians and professionals in recognising the condition and bringing help to these families, the better.

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[Baroness Brinton (LD) [V]]

My Lords, I will speak to first three amendments in this group, but I support the others.

The office of the Health Services Safety Investigations Body is vital. It has the capacity to make the step change in patient safety that Parliament has been asking for on a regular basis, over many years. Amendment 308 makes it clear that it is vital that there needs to be scrutiny of the appointment of the chair and the chief investigator by Parliament. The history, outlined by the noble Lord, Lord Hunt, but also in the amendments your Lordships’ House has considered during the course of the Bill, arises very much out of the recent First Do No Harm report, which the noble Baroness, Lady Cumberlege, led. This was a recommendation, as the noble Lord, Lord Hunt, said, of the Joint Select Committee, pre 2019. It emphasises the public scrutiny of these appointments, the importance of the HSSIB and the fact that it must fulfil its duty to the best of its ability and be very much in the public eye.

Amendment 308A talks about financial stability over a period of years. It is all too easy for new bodies being set up by the Government to have a one-year budget. I am thinking, just as an example of the moment, about the position the public health budget has been in, where there is no stability at all. Quite often, in March, health bodies find out exactly what they will get to start the next financial year in April. Let us not do that with the HSSIB. Let us give it a three-year plan for financial stability.

Amendment 309 is vital if the HSSIB is going to succeed. It has to have adequate funds and resources to carry out one of its core roles—that of investigation.

I also echo the concerns of the noble Lord, Lord Hunt, about coroners, and support the amendments in the name of the noble Baroness, Lady Young.

[Baroness Young of Old Scone (Lab)]

My Lords, I will speak to our Amendments 310A, 311A, 312A and 319, and I thank the noble Lord, Lord Patel, and my noble friend Lord Hunt of Kings Heath for their support. I declare former interests as a chair of the Care Quality Commission and a recent chancellor of Cranfield University, which has a major teaching research role in air, rail and accident investigation in the UK and globally.

I share the view of my noble friend Lord Hunt that this is an important step forward for patient safety. The whole point of setting up the HSSIB is its independence and the concept of safe space and protected material. However, the Government, having made a good call in proposing that it be set up in these terms, have immediately screwed up—if noble Lords will pardon the technical term—by eroding its foundations from birth.

I know we are not supposed to rely on Explanatory Notes, but I will quote them, as they give some indication of the original and admirable intentions of Government:

“The Bill creates a ‘safe space’ within which participants can provide information to the HSSIB for the purposes of an investigation without fear that it will be disclosed to others.”


This good model can be compared with the air, rail and marine accident bodies. Safe space enables the improvement of safety by promoting learning and not attribution of blame. This is a founding principle behind establishing a safe space.

The importance of safe space is well documented in air accident investigation. The key point is that the evidence is collected on a not-for-blame basis and cannot be utilised in another, different sort of investigation. There are UK and international examples of the chilling effect of the impact of compromising the safe space principle. I can provide them for the Minister, if she would like them.

One of the most graphic examples I heard was a fatal air accident in New Zealand where police seized the cockpit voice recorders. The result was that pilots across New Zealand no longer trusted the CVR data to be protected as a matter of principle and withdrew their co-operation from the collection of cockpit voice recorder data. In fact, they routinely disabled the CVRs after the start of each flight and reported it as a fault. This withdrawal of co-operation continued until full protection of the CVR data was put in place in line with international standards. That is a sign of what can happen to a community of interest if they do not feel they can trust the rules.

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[The Principal Deputy Chairman of Committees (The Earl of Kinnoull) (CB)]

Thank you very much for reminding me. I am frightfully sorry. I invite the noble Baroness to make a speech now.

[Baroness Brinton (LD) [V]]

My Lords, I am grateful to the noble Lord, Lord Hunt, for outlining the amendments in this group, and look forward to my noble friend Lord Clement-Jones’s contribution shortly.

I want to speak particularly to Amendments 298, 299 and 300. Before I do that, I want to support my noble friend Lady Tyler of Enfield and her Amendment 307. I thank the Minister for the meeting last week on children’s issues, and just want to say that my noble friend’s proposal is a neat way of resolving what has been, up until now, a nightmare, through which children at risk of abuse or with other care needs have been missed by officers in different departments using different identifying numbers. A unique identifying number can close that lacuna.

The national plan for open government published a “reset” on health data, and it is worth repeating here its commitment 4, objective 1. Objective 1 is “accountability and transparency”:

“Improving communication and engagement with the public about the access and transparency of health data, and decision-making relating to public health.”


It then asks:

“What is the problem that the commitment will address?


Civil society groups have raised concerns that health data collected and used by government is not clear, transparent or accountable enough. It leads to a failure of trust between citizens and government.”


How right that is. I pick up the points made by the noble Lord, Lord Hunt, on shared care records. There is a definite need for a solution to the problem that he outlined. Opting out is patchy, complex and—worse—inconsistent.

Last year, on part 2 of care.data, the Government decided to change the way they held and used confidential patient data, and thought it appropriate, in the 21st century, just to announce the changes on the web. There was no direct contact with patients about the changes and, unlike the debacle the time before, there was not even a leaflet going to every household. There certainly was not a wider discussion with civil society. Worst of all, there was not even a discussion with GPs. Unsurprisingly, GPs and patients were horrified and the idea was ditched last summer. However, there is one serious long-lasting result. There is now real concern that this Government are trying to be cavalier with patient data, and the NHS does not understand the problems that it is has.

Data collection and sharing are important and have been instrumental in advancing medical capabilities and improving population health. Equally, individuals have the right to understand how and why their health data is being used, and to give permission on any confidential data. Frankly, the wealth of data held by the NHS should be used only for the benefit of the health service and for research; it should not be shared for marketing or insurance purposes, or as a benefit for a provider to make use of outside the original contract, as happened with the big data firm Palantir at the beginning of the pandemic. In February 2021, the tech justice firm Foxglove issued a law suit on behalf of openDemocracy over the NHS contract with Palantir, because of a failure to consider the impact of the deal on patients and the public without an impact assessment or consultation.

If the Government are to live up to their commitment, they need to set up a clear framework on health data with the public that sets out the fundamental principles and responsibilities for assessing whether a data-sharing partnership is in their interests and those of the NHS, while protecting privacy. That is why we need Amendment 298, because new subsection (6B) in Clause 81 appears to remove the explicit obligation that was in Section 250(6)(b) of the Health and Social Care Act 2012 that NHS England

“must have regard to an information standard published under this section”

and replaces it with a power for such obligations to be waived by regulations. That completely contradicts objective 1, “accountability and transparency”, as set out in the national plan, as I outlined at the start.

I will leave my noble friend Lord Clement-Jones to explain how the data can be protected in a much more effective way. Access to health data must be for public and patient benefit. These amendments set out to protect that patient data and put a responsibility on the Government to live up to what they claim they want to do in their national plan.

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[The Principal Deputy Chairman of Committees (The Earl of Kinnoull) (CB)]

My Lords, the noble Baroness, Lady Brinton, is participating remotely and I call her to speak.

[Baroness Brinton (LD) [V]]

My Lords, I want to speak very briefly to thank the Ministers for listening to the noble Baroness, Lady Sugg, and the noble Lord, Lord Patel, and others who have been working with the RCOG and others to ensure that both virginity testing and hymenoplasty procedures are banned. As the noble Baroness, Lady Penn, said, to ban one without the other would have been unhelpful, because they are inextricably linked. It is particularly good to see that extraterritorial jurisdiction is included too.

I am also delighted to hear about the creation of resources for education and training, which is vital for working with young people and their communities to ensure that they are kept safe from virginity testing and hymenoplasty. Will there be special funding for this? Without funding and resources, it will be difficult to make sure that this work is carried out throughout the at-risk communities.

[Baroness Sugg (Con)]

My Lords, I originally had an amendment down to criminalise hymenoplasty in this Bill, but I have been pleased to withdraw that and put my name to the government amendment instead.

I asked a question on banning hymenoplasty of my noble friend Lord Kamall back in October. He gave me his word that he would push this as much as possible to make sure that we ban both virginity testing and hymenoplasty. He has kept to his word, and I am very grateful to him.

It is late in the evening—well, early in the morning—but I want very briefly to give your Lordships a first-hand account of why this is such an important amendment. Hafsah—which is not her real name—was raped as a child. Afterwards, her parents became obsessed with the idea of presenting her as “pure” on her wedding night, and her father told her that surgery would “fix her shame”. This surgery is widely available on Harley Street and in private clinics at a cost of around £2,000. In support of this amendment, Hafsah said:

“If hymenoplasty had been illegal when I was a teenager, it would have saved me a lot of emotional abuse. I’m sure it will be a great comfort to vulnerable girls in a similar position to know that the law is on their side. It should give them the strength to stand up for themselves.”


This ban on both virginity testing and hymenoplasty will be a substantial step forward in tackling the damaging myths and stigmas about virginity. Neither procedure has any medical benefit. Both are harmful practices that create and exacerbate social, cultural and political beliefs that attach a false value to women and girls in relation to whether they have a sexual history.

I am grateful to my noble friend the Minister for explaining the work that the Government will do on education in community and clinical settings. I hope that they will also ensure that they implement the other recommendations of the expert panel on hymenoplasty and sustainably fund the specialist organisations that support women and girls at risk of honour-based abuse.

Finally, there have been many campaigners involved over a number of years to bring about this change in the law: IKWRO, Karma Nirvana, MEWSo, Nimco Ali, the Royal College of Obstetricians and Gynaecologists, the Royal College of Midwives, Garden Court Chambers, Richard Holden MP, all those on the expert panel, and many others. I pay tribute to their hard work, tenacity, perseverance and patience. It has been my privilege to speak on their behalf in this place. This amendment will make a difference to the lives of many women and girls, and it has my full support.