Health and Social Care (Safety and Quality) Bill
Baroness Finlay of Llandaff Excerpts(10 years, 8 months ago)
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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 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 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.
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.
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.
Health Service Commissioner for England (Complaint Handling) Bill
Baroness Finlay of Llandaff Excerpts(10 years, 8 months ago)
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Baroness Finlay of Llandaff (CB)
My Lords, I should like to express my gratitude to the right honourable Member David Davis, MP for Haltemprice and Howden, for inviting me to sponsor his Private Member’s Bill in this House. The Bill has the support of the Government and the Opposition, as I understand it. As noble Lords may be aware, the Bill was motivated by the tragic death of Sam Morrish and subsequent events. Sam died of septic shock at the age of three, on 23 December 2010. In June 2014, the health service ombudsman published a report on an investigation into a complaint made by Mr and Mrs Morrish about the care and treatment provided to their son Sam. Mr and Mrs Morrish also complained about the way in which the NHS investigated the circumstances surrounding Sam’s death.
Sam Morrish and his family came into contact with a number of NHS organisations in the days before he died: the Cricketfield surgery, Devon Doctors Ltd, NHS Direct and the South Devon Healthcare NHS Foundation Trust. In her investigation, the ombudsman found that each of these organisations had in some way failed Sam. In the ombudsman’s report into Sam’s death, Dame Julie Mellor, the health service ombudsman makes reference to her report on sepsis, Time to Act—Severe Sepsis: Rapid Diagnosis and Treatment Saves Lives. This report highlighted the lack of action being taken to save the lives of people with sepsis because a failure rapidly to diagnose and treat can have tragic consequences. Indeed, the tragedy is that the ombudsman found that had Sam received appropriate care and treatment, he would have survived.
However, it took the ombudsman more than two years to investigate and report on the NHS’s handling of Sam’s case. During that time there was a series of factual errors, which Mr and Mrs Morrish repeatedly had to correct. The Patients Association, which supported the Morrish family in its complaints, said that the ombudsman was not fit for purpose. Dame Julie personally apologised to the family and offered to meet to discuss the case. Importantly for this Bill, she said:
“We took too long to investigate this case and made errors in the draft report. I recognise the family’s experience of us has contributed to their distress”.
I agree. Any unreasonable delay in investigating cases adds to the distress of those involved. As David Davis explained in the other place, delay impacts adversely on those grieving and also means that it takes more time to act to correct failings. Reducing unnecessary delay in investigating cases also reduces the distress of those involved, and the Bill seeks to do just that.
This is a simple Bill. Clause 1 is the important part. In summary, it makes provision about the handling of complaints by the Health Service Commissioner for England, which is the legal name for the health service ombudsman. It requires the ombudsman to notify a person making a complaint of the reason for the delay if the investigation of the complaint is not concluded within a 12-month period, and to include in her annual report to Parliament details of how long investigations of complaints have taken to be concluded and action taken, with a view to concluding all investigations within a 12-month period.
As noble Lords will be aware, the health service ombudsman carries out independent investigations about unfair, improper or poor service by the NHS in England. This is the second and final stage of the NHS complaints process. The ombudsman is independent of government and accountable directly to Parliament through the Public Administration Select Committee. She annually lays before each House of Parliament a general report on the performance of her functions. Having looked at her annual reports, I commend Dame Julie for modernising the way that her office works. In challenging circumstances, and across both its parliamentary and health service functions, she has increased the number of cases investigated from 421 in 2011-12 and 384 in 2012-13, to 2,199 in 2013-14, with that figure expected to rise further in 2014-15.
The majority of complaints are reviewed and assessed with strong judgment and in a timely fashion, but certain high-profile cases, particularly that of Sam Morrish, suggest that the ombudsman might benefit from legislative backing to reduce the number of investigations that take longer than 12 months to complete.
I am glad to see the noble Lord, Lord Colwyn, in his place. It is worth noting that concern over NHS complaints is long-standing. Some years ago, he introduced a Bill to try to address this, long before the ombudsman was in place. It was also long before we had the excellent review of NHS hospitals’ complaints systems by the right honourable Ann Clwyd MP and Professor Tricia Hart. They made a number of recommendations to improve the way NHS complaints are handled. I know that from her loss Ann Clwyd MP has put her heart and soul into trying to tackle the system and to raise awareness of the right way to complain about the NHS and the right of people to make such complaints. It is important for all involved in the NHS complaints process to get it right at every stage.
Likewise, when the ombudsman makes mistakes it is important that she takes an open and transparent approach both to the person making the complaint and to Parliament through the Public Administration Committee. In Committee in another place, Bernard Jenkin, who chairs the Public Administration Committee, gave his support to the Bill. He stated that it was important for his committee to see cases that had gone wrong. He referred to the wider programme of public service ombudsman reform taking place. Last year, the committee produced the report Time for a People’s Ombudsman Service, and I understand that the Cabinet Office is conducting a review into the reform of ombudsmen.
The Bill is therefore deliberately limited in its aims. It seeks to make small but important changes to the way the health service ombudsman operates. It recognises that a future Administration will determine how to proceed on wider, more general reform, while acknowledging that some changes made in the shorter term will significantly improve the experience of people taking their complaints to the health service ombudsman and better enable Parliament to hold the ombudsman to account. I thank David Davis MP for introducing this important Private Member’s Bill. I feel quite honoured to have been asked to do this, particularly because I know in some depth about the inquiry that Ann Clwyd MP conducted. I beg to move.
Baroness Finlay of Llandaff
My Lords, I thank all noble Lords who have taken part in this short but important debate. I appreciate the support of all noble Lords who have spoken.
This is a simple Bill that seeks to reduce unnecessary delay in investigating cases and, in so doing, reduce the distress of those making a complaint to the health service ombudsman. I have corresponded with Mr Morrish and am aware that he gains comfort from knowing that this issue is being addressed.
I thank everyone involved with the Bill, particularly David Davis MP, who originally brought it forward.
Smoke-free (Private Vehicles) Regulations 2015
Baroness Finlay of Llandaff Excerpts(10 years, 9 months ago)
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Lord Foulkes of Cumnock (Lab)
My Lords, I greatly welcome this legislation. I want to ask two questions, which I hope the Minister will be able to deal with. Before doing so, though, I want to say why I am particularly pleased about this. In the early 1980s I tried to introduce a Bill in the other place to ban smoking in public places. I was almost literally laughed out of the House because everyone thought that it was ridiculous to have a ban on smoking in public places. Of course, it is now accepted as the norm.
I was also vilified, as indeed were all the anti-smoking campaigners, by an organisation called FOREST, the so-called Freedom Organisation for the Right to Enjoy Smoking Tobacco. I do not know how anyone can enjoy it—they just have to do it because they become addicted—but there we are. The organisation, which was funded by the tobacco companies, twisted all the figures. It was not a very pleasant experience. I know that my friends who worked in Action on Smoking and Health at the time, as well as other people, were subject to the same kind of criticism and attacks. I am very pleased that things have moved on since then and I commend the Government for pursuing this matter.
However, I have two questions. One relates to enforcement. The ban on smoking in public places has been effectively self-enforcing because the penalties and the problems that would be created by people smoking, particularly for publicans, shopkeepers and people responsible for public places, would be substantial, not just in terms of the fines that they might be subjected to but in terms of losing licences and other problems. Therefore, as I said, the ban has been effectively self-enforcing, with all but 100% compliance, I am pleased to say.
However, the legislation concerning the use of mobile phones in cars has not been so effective. I have seen a lot of people continuing to use mobile phones in cars while driving but I understand that there have been relatively few prosecutions of this extremely dangerous habit. I get the impression that the police are not particularly good at making sure that people are pursued in relation to that offence, and I am a little concerned that the offence of smoking in a car with children present will be more akin to using a mobile phone while driving than smoking in public places such as pubs, shops and so on. I would be grateful if the Minister could deal with that and give an assurance that enforcement and compliance will be more effective.
Secondly, unlike the noble Lord, Lord Ribeiro—who I commend for the way in which he has pursued this issue—I am not sure that £50 is a sufficient penalty. I understand that it is similar to the penalty for parking in an inappropriate or illegal place, a much less grave offence than one that causes danger and harm to children. Many people will take the risk of smoking in a car with children present, particularly as, with no disrespect, a £50 fine to Ferrari drivers and drivers of large, expensive cars will not mean very much in terms of their regular expenditure. I wonder whether this is an appropriate penalty for the offence. The Minister mentioned a review; perhaps this matter could be looked at in that review.
Those are my only two reservations, neither of which takes away from my warm welcome to the Government for these regulations. As the Minister knows, I do not regularly welcome the things that this Government do, but on this occasion I am pleased to do so.
Baroness Finlay of Llandaff (CB)
My Lords, I welcome these regulations and congratulate the noble Lord, Lord Ribeiro, on his work to achieve this position. Children themselves have asked for this measure. In the 2011 British Lung Foundation survey, 86% of children between the ages of eight and 15 said that they wanted protection. It is worth noting that the Welsh Fresh Start campaign, which was aimed at cutting down smoking in cars when children were present, did not have as great a success as one would have hoped, but these regulations send an important message that will change behaviour. Quite apart from encouragement to change behaviour, there needs to be a clear message out there.
The data from Wales have shown that 4% of children reported being in a car when someone was smoking almost every day, and 23% reported that they were sometimes in a car when someone was smoking. Where a parent smoked, one in five children reported that smoking was allowed in the family car. These regulations are welcome and will have a major part to play in bringing about behaviour change. Of course the fact that there are provisions for a fine is important, but behaviour change will be most sustainable in the long term.
I am grateful to the Minister for his comment that he will keep a watching brief on e-cigarettes and that that consultation will continue. I worry that we are at the beginning of an explosion of a highly addictive substance.
Alcohol: Impact on Accident and Emergency Services
Baroness Finlay of Llandaff Excerpts(10 years, 10 months ago)
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Earl Howe
My Lords, alcohol-related attendances at A&E are certainly a matter of concern; we fully recognise that. Having said that, there is no evidence to suggest that current pressures in A&E departments are related to trends in alcohol-related attendances. We are taking a range of actions to prevent and reduce harm both nationally and in many local areas. We are certainly not just treating this as a financial issue. This is an issue to do with people’s health, and it is important. The industry is playing its part through the responsibility deal, which is already yielding some encouraging results.
Baroness Finlay of Llandaff (CB)
Do the Government accept that currently, the cost to the NHS of these attendances is about £120 per taxpayer for England? The arguments for minimum unit pricing are very strong, given that the attendance range peaks between the ages of 35 and 55 and yet, in that age group, you can drink your whole maximum weekly recommended amount of alcohol for less than £10 with the current pricing system. Minimum unit pricing might bring in more money to cover the cost to the NHS.
Earl Howe
My Lords, we are keeping the developing evidence on a minimum unit price under review. It has only ever been part of our alcohol strategy—which, as I said, includes a range of actions. We acknowledge the need to give careful consideration to any possible unintended consequences of MUP, such as its potential to impact on the cost of living, the economic impact of the policy and, importantly, a possible increase in illicit alcohol sales that could ensue.
NHS: Clinical Negligence
Baroness Finlay of Llandaff Excerpts(10 years, 10 months ago)
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Baroness Finlay of Llandaff (CB)
My Lords, does the Minister agree that complaints need to be dealt with rapidly, preferably by a phone call or home visit, rather than in the current slow systems that often compound the anger of those who feel that they have been wronged by the NHS and which therefore make the procedure of litigation more likely? There should, rather, be rapid settlement, a very sincere apology and lessons learnt with follow-up.
Earl Howe
I agree with the noble Baroness. We view it as important that NHS organisations manage complaints in a positive manner and use the information obtained to improve service delivery. Saying sorry is important. People who complain often want an apology, an explanation and an assurance that the same thing will not happen to someone else.
London Health Commission: Smoking
Baroness Finlay of Llandaff Excerpts(10 years, 10 months ago)
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Baroness Finlay of Llandaff (CB)
My Lords, like other noble Lords, I welcome this debate and congratulate the noble Lord, Lord Darzi, both on securing the debate and of course on his work on the important report from the London Health Commission. I, also, have had many conversations with patients dying from tobacco-related diseases. I have never had a patient who is glad that they smoked and that their life has been shortened by it, but I have had enormous numbers of patients who regret that they are leaving children orphaned early, because their lives are coming to an end prematurely and there is no way that that can be stopped.
I strongly support the findings of the London Health Commission report and, as has already been said, the Royal Parks becoming smoke-free sets a very clear example and message that these are open spaces—we are fortunate enough to have fresh air in London. I question the assertion from the noble Lord, Lord Naseby, as regards New York, because I have not seen any evidence that the tourist industry there has suffered at all. In fact, anecdotally, I have heard people say it is welcome that in Central Park there is smoke-free and a sporting open area.
The advantage of Parliament setting an example to the rest of us by having Parliament Square Garden smoke-free is of course clear. The city-wide working against illicit tobacco certainly needs to be strengthened, but that is a secondary part of tackling the issue of tobacco overall. As the report states, there are still 1.2 million smokers in London and smoking-related disease causes 8,400 premature deaths in the city and more than 51,000 hospital admissions. We have heard in recent weeks how the whole NHS is creaking under the strain—in London as much as anywhere, though it is widespread. Boroughs with a high prevalence of smoking are also among the poorest, and smoking remains a cause of health inequalities.
The NHS needs a radical upgrade in prevention and public health, as was stated in the NHS Five Year Forward View. The cause of preventable deaths through tobacco is the same as the next six causes put together, including alcohol, obesity and illegal drugs. I hope that the Government will undertake to renew their very successful coalition Government’s Tobacco Control Plan when it expires.
We do, indeed, have the necessary measures to tackle this in the Children and Families Act 2014. There is evidence that two-thirds of smokers start before the age of 18. In 2011, it was estimated that more than 200,000 children aged 11 to 15 started smoking. I warmly welcome the regulations to prohibit smoking in cars that were laid before Parliament in December last year and are due to come into effect this October. I urge the Government to set a date for the regulations to be voted on at the earliest opportunity.
I shall take a moment to address e-cigarettes because I am concerned that they contain nicotine, which is a highly addictive element in cigarettes. That risk certainly needs to be assessed and tackled. There is evidence that e-cigarettes are helping people who are smokers to quit smoking, but I was worried by the Trading Standards Institute’s finding that 40% of retailers are willing to sell these products to young people under 18, despite the fact that the vast majority—about 80%—of the products carry warnings that they should not be sold to people under 18. The consultation on the regulations to bring forward the primary legislation in the Children and Families Act enabling regulations to prohibit the sale of e-cigarettes to under-18s was launched before Christmas. I hope that that will proceed without delay.
Perhaps I may turn to the issue of standardised packs. More than half a million children have taken up smoking since the Government first announced in 2011 that they would consult on this measure. A vote on the necessary regulations has to happen before the general election. If the Government table them immediately this can happen. I am concerned that we have been told that we cannot have them laid before the end of the period of notification to Europe on 2 March this year. That is, in fact, a red herring. I do not understand why they cannot be laid now, so that as soon as 2 March is past a vote can be held. In the extremely unlikely event of an amendment being required, a short timeframe could be used to review whatever recommendation comes out from the relevant committees. I was interested to hear on the “Today” programme this morning that Labour now plans to incorporate this in its manifesto, if I have understood correctly. Perhaps other noble Lords will clarify that.
The security markings on the proposed packs would be no easier to counterfeit than the current security markings. The evidence from Australia has been overwhelmingly positive. Over the last few weeks, more than 4,000 doctors and allied medical professionals have called on the Government to stop dragging their feet on regulations. Section 94 of the Children and Families Act allows the Secretary of State to introduce regulations for these packs and was overwhelmingly passed in both the House of Lords—nem con—and the House of Commons, where only 24 MPs voted against the move. A poll on support for standard packs conducted for ASH found that 64% of adults in Britain were in favour; but what I found interesting is that in Australia the number of smokers supporting the measure has risen from 28.2% before its introduction to 49% after implementation. Therefore, I hope that, in answering today’s debate, the Minister will have some good news for us about the progress on standardised packs.
NHS: Accident and Emergency Services
Baroness Finlay of Llandaff Excerpts(10 years, 10 months ago)
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Baroness Finlay of Llandaff (CB)
Can the Government confirm that they are working with the College of Emergency Medicine—and I declare an interest as a fellow of that college—to manage their STEP programme? It requires sustainable staffing levels within emergency medicine departments, renegotiation of the tariff to make sure that they are adequately funded and dealing urgently with exit block. The college has calculated it would free 20,000 bed days if delayed discharges from the rest of the system were able to happen on time. The “P” of course is for primary care co-location which has already been addressed. Does the Minister recognise that these departments are working incredibly hard? Although people are waiting longer, by and large they are managing to protect outcomes for individuals who are severely ill and who are seen.
Earl Howe
I am grateful to the noble Baroness. It is worth observing that while the standard is that 95% of people arriving at A&E should be seen and treated within four hours, that standard has not been met in recent weeks. Nevertheless, on average, hospitals are seeing and treating around 90% of patients. The department is working closely with the College of Emergency Medicine. Indeed, I have the college’s paper in front of me. I am well aware of the issues that it has identified, but it is worth noting that the college says that the latest figures show that in England hospitals and their staff have coped extraordinarily well.
Medical Innovation Bill [HL]
Baroness Finlay of Llandaff Excerpts(11 years, 1 month ago)
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Lord Giddens (Lab)
My Lords, I am neither a medical specialist nor a lawyer and it is pretty near impossible to follow a speech such as that given by my noble friend Lord Winston. However, I am a sociologist and we deal in unintended, or what we often call perverse, consequences. Therefore, to me it is highly important that this Bill, which itself is an innovation, covers the question of whether perverse consequences could arise and whether the Bill could therefore end up subverting some of its own intentions.
With this in mind, I ask the noble Lord, Lord Saatchi, to think again about Amendments 13, 15 and 17 and perhaps to be a bit less dismissive of them than he was in his speech, because I think they would enrich the Bill. A clinical ethics committee would be a more robust way of affirming decisions than the existing way in the Bill. Amendment 13 spells out procedure to be followed. More importantly, it also insists that written records are kept. Critics say that it would add to the bureaucracy but there is no reason why such a committee could not be quite small and have a limited brief.
I regard Amendment 17 as very important. It is crucial that if it becomes law the Bill applies to very specific and limited circumstances. Especially important in my view, and I again speak as a lay person with no direct expertise, are the clauses limiting the legislation to drug treatments and excluding surgery and conditions involving acute trauma. It is important to spell these things out and I do not think they in any way undermine the Bill. They could contribute to what I think should be a key concern of noble Lords to close any avenues to perverse consequences that could arise, especially with legislation dealing with vulnerable people. We all know the issues here are twofold—what do you do about reckless doctors and how do you make sure that vulnerable patients are not exploited? The more loopholes we can close, the better for the progress of the Bill.
Baroness Finlay of Llandaff (CB)
My Lords, I have added my name to Amendment 15 and I hope that the Minister will give it due consideration. It is really important that the process laid out in the Bill is recorded in the patient’s clinical record. That is the one way that you can verify that things have been done properly. It is also important that there is notification to the central register, as referred to by the noble Lord, Lord Saatchi.
I also hope that the Minister will be able to give due consideration to the situations already mentioned by the noble Lord, Lord Winston, and others. It is very important that we do not make it more complicated than it is already for clinicians to be able to treat patients as they feel appropriate. It is also important that patients have the appropriate safeguards in place. While quite a lot will go into guidance, there is merit in having emergency treatment actually in the Bill as a situation where the Bill would not apply and that treatment in the best interests of the patient in an emergency can proceed by whichever means appear to be best at the time.
Lord Kakkar (CB)
My Lords, I declare an interest as Professor of Surgery at University College in London and as a member of the General Medical Council. I welcome the interventions of my senior clinical colleagues, the noble Lords, Lord Turnberg and Lord Winston. They have helped us to understand that, although it is hard, this is a vitally important Bill to drive forward the practicalities of innovation in clinical practice. I hope that it will also drive forward a positive culture of putting innovation at the heart of all clinical thinking. However, there must be safeguards to ensure the protection of vulnerable patients. A number of amendments in this grouping try to address that issue. When this Bill was first made available for public comment some years ago, I was initially anxious about the fact that there were insufficient safeguards. The approach that I wished to adopt was one that I know has been considered but has been also dismissed. I have, however, become reassured by the process under the supervision of the Medical Director of the NHS, Sir Bruce Keogh. He has consulted widely among the profession and I believe that the amendments in the name of the noble Lord, Lord Saatchi, particularly Amendments 12 and 16, bring us to a place where appropriate safeguards have now been introduced. I hope that they will be judged sufficient to provide the protection that all responsible and reasonable clinical practitioners would want in a Bill of this nature.
There are two other amendments being considered in this group that I believe to be vital, Amendments 15 and 19, dealing with the registration and reporting of the results of innovation. There is no doubt that if this Bill is to achieve what it hopes to, the innovations that are provided as a result of having this provision available to us in clinical practice must be reported widely and be available for other clinical practitioners to consider. I know that, at this stage, the view is that other mechanisms are available that provide the opportunity for that reporting to be made, but I wonder whether the Minister might consider during the further passage of the Bill how very powerful a provision of the kind suggested in the two amendments would be in securing the greatest benefit for the largest number of patients.
Another question to have been raised on this group of amendments is that of being certain that the Bill does not apply to situations of emergency care and does not in any way interfere with the mechanisms available for ethical and appropriate clinical research. A strong research governance structure supported by strong legislation is available in our country, and this Bill should not be seen to impinge on that in any way. I am reassured by the noble Lord, Lord Saatchi, saying that the Bill does not relate to the conduct of research and should not be confused as doing so, nor does it in any way interfere with what are, as the noble Lord, Lord Winston, said, acute and deeply stressful decisions that have to be taken in the situation of providing emergency care. I hope that the Minister will be able to reassure us that other legislation, guidance and mechanisms exist to ensure that the Bill does not impinge on those two areas.
Baroness Butler-Sloss (CB)
My Lords, I strongly support the Bill as it is drafted. I am relieved that the noble Lord, Lord Saatchi, produced a short Bill; I hope that the House does not think that it was a bad idea to suggest that a short Bill might be more attractive than a longer one. For that reason I am not at all happy about the various amendments that were in the first part of our discussions today.
I do have reservations about the words in brackets in Clause 1(1), and I take the view that the noble Lord, Lord Pannick, is probably right to say that they should be excluded.
Baroness Finlay of Llandaff
My Lords, I added my name to the amendment deleting “reckless” because I felt quite strongly that it detracted from the overall intention of the Bill. This is not about reckless innovation; it certainly must deter irresponsible innovation, but it is about encouraging responsible innovation. I also added my name to Amendment 3, on treatment for the “relevant conditions”, because many of these patients who are seriously ill will have multiple co-morbidities and may have many things happening to them. This Bill is aimed, as far as I have understood, at the principal condition—the condition for which patients are often desperate for some innovative treatment. It should not inadvertently allow lots of other strange things to be presented to patients to cope with many of the other co-morbidities that they may have.
My feeling about that comes particularly from my own specialty, which the House knows is palliative medicine, where we see time and again patients who are very emotionally vulnerable, psychologically fragile and potentially in despair, so they are unable to make sense of what is going on. In that state, they are quite vulnerable to people presenting all kinds of strange treatments with false claims. I will give a specific example from my own practice. We came across a group of patients on a ward who all had small crystals by their bed, and we discovered that a member of staff strongly believed that holding on to these crystals would shrink the patients’ cancers. The evidence for it was absolutely zilch; I think that the patients had paid to have the crystals given to them. That type of so-called experimentation is completely outside the scope of the Bill—and must be outside its scope. That is why it struck me that the wording about the relevant medical condition should feature in the Bill, because of the potential for exploitation otherwise.
Earl Howe
My Lords, this group of amendments seeks to alter the purpose clause of the Bill. Under the law of negligence, the words “reasonable” and “responsible” have the same meaning, as the noble Lord, Lord Pannick, reminded us. As such, the addition of “reasonable” is not necessary and risks creating confusion. Existing clinical negligence law commonly refers to a responsible body of professional opinion. The addition of “reasonable” may suggest that the test under this Bill differs from the existing Bolam test.
The noble Lord, Lord Pannick, asked me whether the Bill required a rational judgment of success. Proposed new subsection (3)(d) in Amendment 12 requires the doctor to consider a number of factors in relation to the proposed treatment. This includes a requirement to consider,
“the risks and benefits that are, or can reasonably be expected to be, associated with the proposed treatment”,
other accepted treatments, or,
“not carrying out any of those treatments”.
In weighing this up, the doctor must apply an objective standard as to what could reasonably be expected in relation to those treatments. This provides a further safeguard for patients in ensuring that a doctor may not offer an innovative treatment in accordance with the Bill unless he has acted in an objectively responsible way. I hope that that helps the noble Lord, Lord Pannick.
My noble friend’s Amendment 11 seeks to ensure that a doctor must be acting responsibly in an objective sense when deciding to depart from the existing range of accepted medical treatments.
On Amendment 3, the Government do not feel that there is anything to be gained by restricting the scope of the Bill in this way. To set out specific medical treatments or circumstances that would or would not be covered by the Bill would make the Bill complicated for doctors to follow and less flexible to individual patients’ circumstances. This might limit the Bill’s usefulness to patients and doctors alike.
On Amendments 4 and 5, the Government support the amendment to remove the reference to deterring “reckless irresponsible innovation” from the purpose clause. Recklessness has a very specific meaning in criminal law, and the term is out of place in a Bill about the law of negligence. Furthermore, the substantive provisions of the Bill focus on how a doctor can demonstrate that he has acted responsibly. This amendment therefore ensures that the purpose clause better reflects the focus of the Bill. I hope that noble Lords will accept Amendment 4, which brings clarity to the purpose of the Bill.
Baroness Finlay of Llandaff
My Lords, I will be brief; this will probably turn out to be a probing amendment. We have an interesting situation in Wales because health and healthcare provision is completely devolved. The experience of patients under the Welsh NHS falls completely within the legislative competence of the Assembly. However, if I am right, this relates to the law of negligence, and the Ministry of Justice does not have any devolved functions. The concern expressed to me within Wales has been about the use of resources and the possibility of practitioners being answerable as regards legislation that covers England and Wales, when the provision of healthcare is something for which they are answerable to the National Assembly. I tabled this amendment with a view to seeking clarification over that.
Sadly, we have had experience of extremely strange medical practices sometimes being put forward in the past. The Assembly is particularly concerned that, with its move toward prudent healthcare, which is a whole policy direction for NHS Wales, the Bill should not inadvertently cut across the principles of prudent healthcare, the first of which is, of course, to do no harm. I tabled the amendment with that in mind.
Earl Howe
My Lords, this amendment seeks to ensure the Bill would not apply in Wales unless a legislative consent Motion had been passed. The operative provisions of the Bill relate entirely to modifying the law of tort, which is a reserved matter. The Bill can fairly and realistically be classified as relating to a non-devolved subject, and therefore not within the competence of the National Assembly for Wales. The Government cannot accept this amendment, and I urge noble Lords to resist it.
Baroness Finlay of Llandaff
I am grateful to the Minister for the clarification. I expected that answer, but it is important to have it on the record. I beg leave to withdraw the amendment.
NHS: Cancer Diagnosis and Treatment
Baroness Finlay of Llandaff Excerpts(11 years, 1 month ago)
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Earl Howe
My Lords, my noble friend is absolutely right. He will know that medical opinion is clear that a variety of reasons such as lifestyle and others account for regional variations. We want to see a uniformity of speedy diagnosis throughout the country. That depends on early presentation by the patient and speedy diagnosis when the GP first sees the patient. It is with those two things in mind that a lot of work has been going on, particularly to support GPs, but also to inform the public.
Baroness Finlay of Llandaff (CB)
I declare my interest as president of the BMA. Will the Minister outline what action has been taken? Given the crisis in recruitment in general practice, the increased pressures on GPs now that they are also involved in commissioning services and the pressures in emergency medicine, how will GPs have time to tackle obesity? In the obese patient, early diagnosis is much more difficult than in the less obese patient. Also, the incidence of some cancers such as breast cancer is higher in those who are obese.
Earl Howe
My Lords, the noble Baroness makes a number of important points. In August, my right honourable friend the Secretary of State announced a joint piece of work with Cancer Research UK and Macmillan, which will see GPs offered more support to ensure that cancers are diagnosed as quickly as possible. More generally, NICE is updating its referral guidelines for suspected cancer to ensure that they reflect the latest evidence. GPs already have a guide related specifically to direct referral for diagnostic tests, for which we have provided extra money, and early last year the department part-funded a six-month pilot run by Macmillan of an electronic cancer decision support tool for GPs. That pilot is being evaluated, but Macmillan is working with IT software companies to disseminate an updated version of that tool.
Health: Cancer
Baroness Finlay of Llandaff Excerpts(11 years, 4 months ago)
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Earl Howe
My Lords, there is no shortage of investment in radiotherapy and no barrier, indeed, to clinically appropriate access to radiotherapy. A lack of trained staff to operate the machines is not the reason that the use of SABR has fallen. The reason is that the clinical and commissioning decisions have been taken to reflect the evidence of what is clinically effective for certain cancers. That is why clinicians are no longer commissioning this form of radiotherapy for cancers which do not respond adequately to that form of treatment.
Baroness Finlay of Llandaff (CB)
Do the Government recognise, though, that there are times when commissioning has to invest to save and has to support evaluation while a treatment is ongoing, and that the new forms of stereotactic radiotherapy have very good local control rates? For example, in lung cancer the rates have improved from 20% to 30%, with 15 to 20 treatments, to about 70%-plus with only three to five treatments. For patients to be treated nearer home, the costs saved to other parts of the care system need to be considered in the commissioning decisions, where you have better local control and lower knock-on healthcare effects.
Earl Howe
Yes, my Lords. Radiotherapy, particularly of this kind, is highly cost effective when it is clinically indicated. In fact, SABR is available in eight radiotherapy centres in England. The number of centres providing this treatment is increasing, with over a quarter having equipment capable of delivering the treatment. Current evidence supports treating only a small number of patients with this treatment: that is, in early-stage lung cancers for patients who are unsuitable for surgery. That is about only 1,000 patients a year.