Criminal Justice and Courts Bill

Baroness Finlay of Llandaff Excerpts

Monday 20th October 2014 Lords Chamber

[Baroness Meacher (CB)]

My Lords, I shall speak also to Amendment 43A, which takes the place of Amendment 43 on the Marshalled List. The intention was to have withdrawn Amendments 45 and 46, so I shall not refer to those two amendments today.

I must apologise to the Minister and your Lordships for coming into this debate rather late in the day. The noble Baroness, Lady Finlay, who I was going to say is not in her place but who now is, is the person who has raised the concerns about Clause 19 at earlier stages and had a very helpful meeting with the Minister.

Clause 19 introduces a new offence of ill-treatment or wilful neglect by care workers, including doctors and nurses. A similar offence for care providers is introduced in Clause 20. I have less of a problem with an offence of ill-treatment—it seems to me that that is a proactive act which is a little bit clearer—but I have no doubt that an offence of wilful neglect of an individual would lead to criminal investigations of good clinicians simply because patients may believe that they should have had medications or treatments which were not appropriate at the time or may have been judged not appropriate by the relevant clinician.

Our amendments would raise the bar for such offences for individual doctors and nurses by introducing the requirement that the care worker commits an offence only if their activities amount to a gross breach of a relevant duty of care owed to the individual who is allegedly ill-treated or neglected. Of course, I understand the history behind Clause 19 and the fact that offences already exist for ill-treatment and wilful neglect of children in certain circumstances and of adults who lack capacity. I suggest that such situations are rather different from those of competent adults in, for example, an acute hospital or GP surgery. My concern is that we have lost sight of proportionality here, and the consequences will be disastrous, both for good, conscientious clinicians and for the NHS, with its impending £30 billion funding gap.

Of course, none of us can accept ill-treatment or wilful neglect of patients—and I will come back to that in a while. I wonder whether those in the Government who designed this new offence for individual clinicians have really appreciated the devastating effect on conscientious care workers if they find themselves under criminal investigation when it is clear that they have used their clinical judgment in good faith or done their very best with the resources available to them.

The Government have stated that the offences are intended to deal only with the most serious incidents—that has to be right. However, the offence is broadly drafted and the police will have an obligation to investigate cases of alleged neglect unless it is absolutely clear at the outset that there is no case to answer. Almost any decision could potentially be investigated for wilful neglect, even though, later, the vast majority and probably the whole lot would not go all the way to prosecution and a guilty verdict. The question of proportionality is therefore highly relevant.

Criminal investigations are incredibly disruptive, time-consuming and costly. The potential cost to the NHS of disproportionate criminal investigations is impossible to estimate accurately, but my main concern is the unwarranted distress and catastrophic nightmare that such investigations would cause for the conscientious worker—and the vast majority facing investigation probably would be conscientious workers. It is not acceptable for the Government to say that it would be up to prosecutors not to prosecute other than in serious cases. It would be far too late at that stage to prevent the damage. Doctors and nurses are likely to find themselves suspended during a criminal investigation—it is very different from a disciplinary investigation. Their self-respect, and professional and public respect, will be in ruins. Huge damage will have been done before the matter comes anywhere near prosecutors. Does the Minister agree that the problem with Clause 19 is the investigations rather than, later down the line, the prosecutions?

I am aware of the Government’s consultation in March this year on the proposed formulation of the new offence. They claim, and I do not doubt it, that the 130 responses indicated broad support for the proposals. On the face of it, they sound eminently reasonable—how could one disagree with them that we need to deal with these problems—but I question the clarity of the consultation documents on the consequences of Clause 19 and those investigations. I do not believe that the British people would support the cost, disruption to services, and devastation caused to good workers, doctors and nurses that criminal investigations would create under these provisions.

I understand that the appalling consequences for doctors in hospital settings have been debated at earlier stages of the Bill. I agree with others that Clause 19 will be entirely disproportionate in its consequences for those hospital staff. I will focus on GPs because they are incredibly vulnerable to malicious complaints.

As things stand, we know that GPs daily experience fear of complaints. We know, and the Minister knows, that GPs regularly have to see 60-plus patients in a day. Many of those patients will have relatively minor ailments, but in that list will undoubtedly be patients with life-threatening illnesses. This means 10 hours of stressful, direct patient contact. Any one of those patients may leave the surgery dissatisfied, rightly or wrongly, with the outcome of the consultation. The patient may want an antibiotic and the doctor may know that it is not the right thing. The issue then is whether the doctor really has the time to explain the whole business about why an antibiotic may not be a good idea. That is their vulnerability: if they had all the time in the day slowly to explain to patients, or to people with learning difficulties or language problems or whatever it is, there would be no problems, but doctors do not have that luxury, and GPs certainly do not. Any angry patient could regard this as wilful neglect. Of course, it is not, and ultimately there would not be a prosecution, but the investigation will nevertheless have to take place.

The point then is not about the prosecution. Does the Minister really believe it appropriate for the threat of a criminal investigation to hang over GPs, nurses and doctors every time they go to work? I could not cope with work if every day—and every 10 minutes—I was worried that I might face a criminal prosecution for the judgment I was making. I say it again: we will not tolerate ill treatment or wilful neglect of patients. The question is whether Clause 19 and criminal investigations are the best way of dealing with these issues.

Have the Government assessed the likely impact of this new offence on the willingness of doctors to become GPs and on their early retirement plans? In this country we already have a shortage of doctors willing to train as GPs. Large numbers of doctors—six in 10, we understand—are planning early retirement. What will happen to the supply of GPs if Clause 19 comes into effect? The BMA describes the situation already as having reached crisis point. GPs are moving abroad as the pressures in this country become more and more unpleasant.

Applicants for GP training are at their lowest level for five years. Advertisements for GP partners that we know five or 10 years ago would have had 30 responses now receive maybe none. Nobody wants to be a GP partner these days even in quite desirable areas—and I happen to know a few. At the same time the pressure to transfer more care into the community rises year on year. I appeal to the Minister to think again before Third Reading. The Minister can quote from the ambitious figures for the number of GP training places to be made available, but will there be any trainees to fill those places? There is also the expectation—I would say a wish—that the number of trainee doctors becoming GPs will increase from 40% to 50%. Well, I doubt it if this clause becomes law.

Amendments 42 and 43A seek to raise the threshold for a criminal investigation of a professional care worker. I read the Minister’s letter to the noble Baroness, Lady Finlay, but I have to confess that I was not persuaded by the arguments. As I said, none of us can condone ill treatment or wilful neglect of patients. I have repeated that again and again because that is not the point here. The point is how we deal with these things not whether we do so. The Government have strengthened the Care Quality Commission and I applaud them for doing that. The Care Quality Commission needs to be able to deal with these things effectively, and much better they be dealt with through the Care Quality Commission than in this way. I hope the Minister can assure us that further thought will be give to this damaging clause before Third Reading. I beg to move.

[Baroness Finlay of Llandaff (CB)]

My Lords, I apologise for coming in just after my noble friend Lady Meacher had started speaking, due to traffic congestion. I am most grateful to her for having put the amendment so clearly. I endorse the point that nobody, but nobody, thinks that wilful neglect is all right. It is not all right. It is not to be allowed to even happen let alone condoned. The problem is that the burden of proof on the individual and on the organisation that employs them has been set at different levels as the clauses are currently drafted. The requirement is to prove gross neglect for an organisation but that had not appeared in relation to the offence committed by the individual. The difficulty is proving intent.

I had a meeting with the Minister at which he spent a great deal of time—I am very grateful to him—and he replied fulsomely with a long letter following that conversation. I remain unconvinced that the Bill will not effectively result in healthcare professionals being hung out to dry—that was a phrase I used before and I use it again—by an organisation that does not support its clinical staff adequately when serious complaints come in. At the end of the day, it is not wilful neglect but it is interpreted and viewed by understandably distressed relatives as neglect of their relative who may have suffered serious harm within the system or become extremely ill because of the progress of the disease. Although the work conditions for the staff have made it extremely difficult for them to function well, they have not been guilty of wilful neglect.

I stress that I do not think this applies only to nurses and doctors. If a physiotherapist or an occupational therapist declines to comply with a request from a patient or their family, that could be interpreted by the family or patient as wilfully withholding something that they feel they need. There is then some unintended adverse incident further down the line that was not predicted and the complaint goes against that healthcare professional. No one should underestimate how damaging it is to a healthcare professional to have a complaint made against them, and how most extremely conscientious healthcare professionals can feel quite destroyed by a complaint. However, an accusation of wilful neglect that goes to the police would certainly destroy somebody’s professional reputation. Even if it proceeds no further, they will find it very difficult to shed the trauma of that experience of being referred to and investigated by the police.

I hope the Minister can clarify exactly how intent will be interpreted and implemented, and how it will be proven that an organisation has intent to neglect patients. I suggest that the organisation can prove that it did not directly intend to but, actually, if it is really badly managed and is not supporting its front-line workers, it is neglecting patients because it is not allowing its staff to do their duty properly. However, I can see that such an offence would be very difficult to stick anyway. Certainly, if the burden of proof is higher for the organisation than for the individual, as I said before, I foresee that people will be hung out to dry.

[Lord Winston (Lab)]

My Lords, I hope I will be forgiven a short interjection on the amendment, which I fully support, particularly the points raised by the noble Baronesses, Lady Meacher and Lady Finlay. Perhaps I can best illustrate the point I want to make by telling a true story to the Minister, who I know is a very compassionate man. I think, like me, he will feel extremely angry about this particular incident within our health service.

My next-door neighbour was ill for years with Parkinson’s disease and, eventually, was so incapacitated that he had to be taken into care because he could not be looked after at home. His wife reluctantly saw him go into care. When eventually he became comatose, he was admitted to the Royal Free Hospital in Hampstead. His wife went to visit him every day while he was comatose. She used to speak to him and a nurse came up and said, “Madam, I don’t know why you are speaking to him because, of course, he can’t hear a word you are saying”. The nurse did not recognise that an unconscious patient is often fully capable of hearing and at least mentally responding if they cannot physically respond. In a sense, that is a pretty neglectful issue.

After a while, my neighbour’s wife—I should say that her husband has since died—then went to the nursing station and said, “My husband has not been washed or shaved for five days. He is lying in bed in a very dishevelled state and I feel very unhappy about this”—she is a very polite woman. The nurse in charge said, “That is not my job. I have nothing to do with that”. She was then rather cursorily directed towards a ward orderly. She said to the ward orderly, “I wonder if there is any possibility that my husband could be washed and shaved”. The orderly simply said to her, “That is not my priority at the moment”.

Does the Minister feel that that is wilful neglect? It seems to me to be a question of definition. I am sure that he feels, as I do, that this is not a criminal offence and not suitable for punishment with imprisonment. It is certainly suitable for a reprimand and for proper management in a ward of a teaching hospital.

Sadly, this kind of incident is not rare. It goes on all the time and goes on particularly, as we all know, in wards with distressed, elderly people, some of whom are sometimes completely irrational and sometimes mentally disturbed and wandering. Often they are treated with grave disrespect at the least—and often they seem to be treated with a good deal worse. I do not believe that that is wilful neglect, but if this amendment is not passed or some form of it is not accepted, there is a real possibility that people who should not be in court and should not be charged by the police may find themselves charged with a criminal offence. That would be absolutely wrong and very bad for our National Health Service.