Health and Social Care Bill

Debate between Baroness Finlay of Llandaff and Baroness Williams of Crosby

Monday 13th February 2012 Lords Chamber

[Baroness Williams of Crosby]

My Lords, we have had an extraordinarily well argued debate and I do not want to involve myself for more than a minute or two because it would waste the time of the House. Perhaps I may pursue for a moment, in the hope that my noble friend Lord Howe will respond, to the point made by the noble Lord, Lord Walton of Detchant, earlier in the debate. When teams of people are involved, as they clearly often are in the case of major surgery or other major treatment systems, the team has to be persuaded with regard to the duty of candour. Very often, it is not the most senior members of such teams, such as the consultants, or the most junior members of such teams who know best about what has gone wrong. It is often true of nurses. It can even be true of assistant care workers, as we learnt all too severely from the case of Southern Cross and the cases in Bristol.

I simply want to ask whether we should not couple whatever we decide on this amendment with a complete refusal to accept gagging orders on junior staff when inquiries are made of those who are senior to them, whether they are private companies or senior figures in the National Health Service. It was encouraging to hear the noble Lord, Lord Walton of Detchant, say that there is a long way to go. Unfortunately, gagging orders are very common in the health area, and they are something that must be addressed if we are serious about getting to the bottom of things that go wrong in medical treatment.

[Baroness Finlay of Llandaff]

My Lords, I considered long and hard whether to add my name to this amendment. The gagging orders to which the noble Baroness, Lady Williams, has just referred run completely counter to openness and candour, and there has to be candour. I hope that the Government will take away from this debate the fact that, first, something has to be done to stop people being gagged; and secondly, whether it is in guidance or on the face of the Bill, there must be a way to ensure that there is candour throughout the whole system and that it applies to everyone. The implication that general practitioners, dentists and so on are not on an equal footing with other organisations is invidious.

Patients need to know what has happened. I admire my noble friend Lady Masham for persevering with her research into this issue and presenting it to us today. The tension arises between an individual, a doctor registered with the GMC, on whom there is a duty of candour as an individual to be open and honest with patients if things go wrong—indeed, in the relevant paragraph in Good Medical Practice 2012, the word “must” appears, which means what it says, as opposed to “should”, which is advisory—and organisations. When things go wrong, there is often a series of errors that become compounded, along with other events that may seem insignificant. For example, a patient’s notes were not available on one occasion when they were seen so the wrong investigation was ordered, and things went on from there. Another difficulty is that it is sometimes the patient’s own behaviour which contributes to the cascade. It can be difficult to confront a patient who is already distressed with the fact that the way in which they have behaved—perhaps by discharging themselves or by going off to some alternative practitioner—has contributed to the way in which things have gone wrong. Another simple example is, if you do not know that a patient is taking a certain medication, it can be very difficult to predict an interaction with a prescribed medication.

I should declare my interests, which I did not do earlier in our debates—I hope that the House will forgive me—as a fellow of the Royal College of Physicians, a fellow of the Royal College of General Practitioners, a member of the British Medical Association and a practising clinician. I will always remember as a medical student meeting a general practitioner who took me for a walk in a small village on a Welsh hillside. He took me to the churchyard and said, “I want to walk you around the churchyard”. I asked him why, and he replied, “Because I want to introduce you to my errors”. He had been working in the village for many years. Sadly, as a junior doctor I was in a hospital where there was a catastrophic medical error. What that taught me more than anything is that you have to be open from the first moment you realise that an error has been made. Anything other than openness fails.

To reinforce the remarks made by the noble Lord, Lord Newton, and the noble Baroness, Lady Pitkeathley, whenever I have had to tell patients that something has gone wrong, however minor it may be, I have been astounded at how grateful both they and their families have been for the fact that I have told them. They are also grateful when we institute intensive monitoring procedures, which can mean that patients are woken every hour through the night, and express relief touched with a sense of humour when such intensive monitoring is no longer required. Time and time again when things have gone wrong, there is an overwhelming sense that whatever it was should not happen to anyone else, along with the realism of knowing that you cannot put the clock back, and that medicine is about not absolutes but all shades of grey.

The difficulty with having this clause in the Bill is the potential for unintended consequences. That is why I hesitated about adding my name to it. I hope the Minister will take the matter forward, because this has been a very powerful debate, and put something in guidance. In 2009, the CMO recommended a duty of candour. We really must make it a reality if the implication of “nothing about me without me” is to be honoured. We need to be open, honest and realistic with our patients.

Health and Social Care Bill

Debate between Baroness Finlay of Llandaff and Baroness Williams of Crosby

Wednesday 21st December 2011 Lords Chamber

[Baroness Finlay of Llandaff]

My Lords, I am grateful to the Committee for allowing this question of whether Clause 285 should stand part of the Bill to be taken today. Previous commitments from the Minister have outlined that the Secretary of State’s annual report is an important mechanism through which he will account for the system, and the Bill sets out extensive powers of intervention in the case of failure, which are essential if Ministers are able to retain ultimate accountability for the health service. However, the Secretary of State’s duty of keeping performance under review applies only to national arm’s-length bodies, although we are also debating—and will be, I am sure, on Report—how it might also refer to the clinical commissioning groups.

The aim of this debate is to explore what will happen if Monitor and the CQC do not co-operate. I am simply seeking some clarification from the Minister in response to certain questions. The Bill sets out a formal duty of co-operation between these two bodies—but what practical actions will be taken if this does not happen? On 7 December, the noble Earl, Lord Howe, stated at the Dispatch Box that the Secretary of State would be able to write formally and publicly to organisations if the duty to co-operate is being breached. How will the Secretary of State monitor how effectively Monitor and the CQC are working together? Will they report on how well they have worked together and where they seek to improve their working relationships in the future? What will trigger the Secretary of State to intervene? Can the Secretary of State take responsibility for any services that have been responsible for triggering a dispute?

The Minister also stated that:

“If the breach is significant, sustained and having a detrimental effect on the NHS, the Secretary of State will have a further ability to lay an order specifying that the organisation should take certain actions only with the approval of another specified body, other than the Secretary of State himself”.—[Official Report, 7/12/11; col. 747.]

Will the Government please give a definition of the meaning of,

“significant, sustained and having a detrimental effect on the NHS”,

and explain what this will mean in practice? In subsection (7) there is mention of arbitration, but who will the arbitrator be in the event of a dispute? Is that the Secretary of State?

There may be examples of work between CQC and Monitor that may not be considered significant breaches of their duty to co-operate but may not be best practice in integrated working. This is a particular risk for complex work such as setting the tariff, especially for care pathways for complex conditions that take into account multiple providers. How will the Government ensure that these two bodies do not meet just bare minimum standards but continue to improve the quality of their integrated working, innovate to find new ways of co-operating and share good practice throughout their organisations, so that integrated working is strategically built in at their every level?

There is a particular concern about the effect on long-term conditions if Monitor and the CQC do not work seamlessly together. We have had debates already about the importance of care being integrated to treat patients with long-term conditions. The Secretary of State must be proactive in ensuring that both Monitor and the CQC themselves work proactively to facilitate such integrated working. I would be grateful for some further elaboration on how this will be achieved. I hope that the Minister will be able to assure the Committee that Monitor and the CQC will be required to report to the Secretary of State on how they have collaborated, including an evaluation of how they have co-operated, and that they will be given goals by the Department of Health on how to improve continuously in such working.

When considering potential failure that is recognised by one party but not the other, who will have the power to intervene? This becomes particularly important as Monitor has powers to intervene in failure but not, as I understand it, at the point when an organisation is at risk of working in a way that may result in failure—in other words, in a pre-failure state. At that point, Monitor does not have powers to intervene. I would be grateful if the Minister were able to answer at least some of my questions today. I realise that I have posed a lot of questions, and that some may come better in writing later.

[Baroness Williams of Crosby]

My Lords, I follow the noble Baroness, Lady Finlay, and very much share her questions—not least about who will be the arbiter in a situation where co-operation cannot be reached between two of the major bodies involved in responsibilities for the health service. I would add just a couple of things. I very much apologise to the Committee for the fact that, when Amendments 350 and 351 were reached—we were already going through at a rattling pace—I was out of the Chamber so did not move those two amendments. I will not refer back to them or move them now; it would obviously be inappropriate to do so. However, I stress the concern that I have about Clause 285.

The trouble is that there is a very long and elaborate procedure under which, if co-operation fails between the board and Monitor, they have then to exchange views with one another and tell each other what their opinions are, and so forth. They and the Secretary of State then have to make statements of their opinions. This seems most unfortunate, because co-operation and integration are at the very heart of what all of us have been saying in Committee are absolutely crucial elements in the attempt to deal with the problems that confront the NHS, and the health service more generally, at the moment. Therefore, to have a procedure which is as elaborate and which has as many stages in it as this one—with, in many ways, the chances to fuel rather than heal any difference between them—seems not to be a sensible clause at all.

Our amendments simply suggested that it would be much better, at a certain point when we were in what the noble Baroness, Lady Finlay, described as the pre-failure period, to allow the Secretary of State to come into the picture. This goes back to what the noble Lord, Lord Mawhinney, was talking about earlier. We are not talking about an immediate intervention. We understand the need to try to get agreement and to decentralise decision-making but in the end, if they cannot agree on how to co-operate and resolve that, either there has to be an arbiter whose voice is such that he or she carries real authority or, since we do not know who that arbiter is, in our view the proper arbiter is indeed the Secretary of State, responsible as he is to Parliament and to the public. Therefore I strongly support the noble Baroness, Lady Finlay. I am very grateful for what she has said. I hope we can hear from the Minister who will be the arbiter, and whether there might be a more rapid and effective way of dealing with a failure of co-operation. I put on record that I think this is absolutely crucial to what this is all about. We need to be able to deal with it reasonably urgently and quickly.

Health and Social Care Bill

Debate between Baroness Finlay of Llandaff and Baroness Williams of Crosby

Monday 19th December 2011 Lords Chamber

[Baroness Finlay of Llandaff]

My Lords, this Bill in vast part concerns England only. This amendment concerns both England and Wales. I have tabled it to try to clarify an area in the role of the ombudsman which is currently not clear. Having spoken to the ombudsman in Wales at length about this, and discussed it with the ombudsman in England, with the emergence of any qualified provider and a range of licensed providers in this system, it seems that there is a need to clarify the role of the ombudsman, to make sure that patients have a final port of call when the complaints system has failed them.

I will quote from the Complaints and Litigation report of the House of Commons Health Committee from the previous Session. It states:

“Many people see the role of the Ombudsman as a general appeals process for the complaints system, but the remit under the Health Service Commissioners Act is much narrower than that. The Committee is of the view that a complainant whose complaint is rejected by the service provider should be able to seek independent review. The legal and operational framework of the Ombudsman’s office should be reviewed to make it effective for this wider purpose”.

The Health Service Commissioners Act 1993 set out the principle that the ombudsman should be able to investigate an issue if the provider was providing services,

“under arrangements with health service bodies or family health service providers”.

The Public Services Ombudsman for Wales was established in 2005, and also has a responsibility for cross-border work. Last year, however, there was an investigation into a children’s hospice in Wales which revealed the ombudsman’s difficulty when investigating an organisation that provides services for and on behalf of, and receives funding for providing services to, patients in an area but which does not fall under the NHS jurisdiction in any way, and simply has a contractual service-level agreement. The report from the ombudsman in Wales states:

“The Ombudsman does not have jurisdiction for the hospice and was unable to investigate Mr & Mrs A’s concerns about the hospice’s actions”.

It goes on to say:

“The Ombudsman commented on his lack of jurisdiction for the hospice, and that there was no other independent body able to investigate Mr & Mrs A’s concerns about the hospice. This is profoundly unsatisfactory. The Ombudsman asked the Welsh Assembly Government to consider what action it could take to bring the hospice into his jurisdiction”.

Hospices are just one area of provision. They are well known, and it is very unusual for there to be complaints in hospices. However, they do occur, and it seems that those using the services of any independent provider in such a way should have the same right of redress as if they were in an NHS facility. The purpose of the amendment is to simply clarify that wherever a patient is being treated, if the NHS has any interest whatever—if this patient is being treated as part of an NHS provision —it should come under the remit of the ombudsman to investigate should the ombudsman feel it is warranted.

I looked back through the report of the Health Service Ombudsman for England and noted that there were 325 complaints last year that did not fall into the remit because they were for privately funded healthcare. This amendment does not ask that the ombudsman’s report should necessarily cover privately funded healthcare. In all honesty, however, if somebody is receiving healthcare, however it is funded, and if that is part of our licensed, inspected and regulated system in this country, where it goes seriously wrong and those bringing a complaint feel it has not been handled satisfactorily, my own view is that we have a national duty to be able to investigate. In doing so, we may find that our inspection processes have failed and that our regulatory processes are not functioning as they should.

That is the background to what might seem a very simple amendment. I really hope the Government will look kindly on it, because having discussed it and its wording in detail with the ombudsman in Wales, I know that it is certainly supported there. I also know that it is not opposed by the ombudsman in England.

[Baroness Williams of Crosby]

My Lords, the combination of the noble Baroness, Lady Finlay, and the noble Lords, Lord Walton of Detchant and Lord Wigley, is a pretty powerful triad by any standards. I express my support for what the noble Baroness said. We have seen some remarkable work done by the ombudsman for England—who I think is retiring from her post—particularly in respect of the care of elderly people. It has been very important in giving the public a sense that they have access to the highest levels when they have a complaint.

My only concern about this amendment is that it is very important indeed that as far as possible complaints are dealt with by health and well-being boards locally, because very often local knowledge is crucial in understanding why something has gone badly wrong. I always think it is significant that the ombudsman for England has been most effective when she has written reports that cover an area. When it comes to a personal complaint, very often it is the local level which is the appropriate one to deal with it. More than that, very much part of the education and understanding that a health and well-being board can bring to the whole issue of patient responses and patient care in the NHS is that people should at least see the local level as the first point of complaint. Having said that, it is obviously important that there is a final, as it were, court of appeal —I do not mean that in a legal sense of the word —and that is what the ombudsman ought to be. Clearly he or she should be independent of any particular interest in the health service, and I agree with the noble Baroness, Lady Finlay, that it should apply across the board to all providers whether private, voluntary or within the NHS structure.

With those few words, I support the amendment and think it is an important one. However, I emphasise that the starting point should always be, wherever possible, at the local level, and that the ombudsman should be seen as the last and final resort.

Health and Social Care Bill

Debate between Baroness Finlay of Llandaff and Baroness Williams of Crosby

Thursday 15th December 2011 Lords Chamber

[Baroness Williams of Crosby]

I have listened closely to the noble Baroness. I should perhaps add that within these Benches we discussed, and at one stage talked to Monitor about, the possibility of an individual cap for hospitals outside London. I completely take the noble Baroness’s point that in places such as Newcastle the figure for private patients is less than 2 per cent—even though the hospital there is renowned. One can think of many similar examples. We would therefore be perfectly open to reaching an agreement under which Monitor was responsible for there being lower caps in different parts of the country. The proposal that the number of patients from the NHS should be greater than the number from the private sector is an overall statement of principle that virtually every hospital can easily meet. We hope that it might, among other things, disincline our friends from the competition area from deciding that foundation trusts were undertakings and not private agencies.

[Baroness Finlay of Llandaff]

My Lords, this has been an interesting short debate because the whole business of the cap has imposed wide variations on trusts. Where trusts cannot have any private activity, there has been an unintended consequence if some staff, particularly consultants, undertake private work. They have carried out that work offsite and not been available if there has been an emergency onsite, and travel times also have worked against patient care.

I can therefore completely understand why these amendments are before us and why the Government wish to act as has been outlined. Perhaps in his closing remarks the Minister can provide us with an assurance that any guidance—it is not necessary to include this in the Bill—will ensure that trusts do not inadvertently double-pay staff. The point of splitting private and NHS treatment was precisely to ensure that staff do not carry out private work in their NHS time and receive double pay, and that the accounts are clear. There are advantages to staff doing private work on NHS premises and to a flexible interpretation whereby, when there is a medical emergency, staff can run down the corridor. Private patients completely understand when someone has to be called away because there is a life-threatening emergency. They are happy to wait until the staff return. That system operates at the hospital in which I work. Although I do not do any private work, some of the oncologists have clinics in the evenings.

There is a need for clarity and I hope that some reassurance will be given that in removing the cap there will be good husbandry of public money.

Health and Social Care Bill

Debate between Baroness Finlay of Llandaff and Baroness Williams of Crosby

Wednesday 30th November 2011 Lords Chamber

[Baroness Williams of Crosby]

My Lords, I have a great deal of sympathy with the intention behind this amendment. Noble Lords will remember that from the very beginning of the discussion about this Bill, there has been a great deal of concern about the conflict of interest that could so easily arise. Many of us recognise that the relationship between patients and general practitioners crucially depends upon that relationship being one of trust. The same will apply, if the commissioning groups work well, to the relationship between them and the patients who are within the practices of which they are part. So I sympathise very much with what the noble Baroness, Lady Thornton, has proposed, and also with what the noble Baroness, Lady Finlay, has proposed in Amendment 161.

Our concerns on this side of the House are not with the whole motivation behind this. We believe that that is extremely important and we completely share it. It is our feeling, rather, that the remedies are not adequate to the scale. We feel, for example, that one of the weaknesses of both amendments is the lack of any effective sanctions against those who breach what would be a relationship of trust. At the moment there is not provision within the Bill for effective sanctions, which can be used to ensure that these high-minded and perfectly proper principles are lived by.

The Nolan principles have been very effective in local government—as we all know—and increasingly effective in national Government. There are references to those in the course of the Bill, but there is no specific determination that members of the partnership groups or the CCGs would be dealt with, if they were in breach of the requirement that they should not ever put their own interests ahead of those of their patients.

I suggest to the noble Baronesses, Lady Thornton and Lady Finlay, and her associates in moving these various amendments, that they would look at the amendment we have put down—and I suggest this with due humility—which effectively brings into practice powerful sanctions. We believe these will be effective in ensuring that this relationship of trust is upheld, and also that powerful requirements lie on every CCG, as well as on the board itself, that it would be absolutely clear that all interests must be declared publicly.

These will ensure that once people’s names are on the register, and they have made a declaration of the appropriate kind about their own interest never being put forward as the reason for a decision, there are then effective measures that will enable the whole issue to be dealt with in detail, with appropriate requirements of sanctions and of effective punishment for those who breach them. We believe this to be absolutely central to the working of the clinical commissioning groups and to the whole relationship of doctors to their patients.

So, with those few words, I hope I can persuade the noble Baronesses, Lady Thornton and Lady Finlay, to have a look at the proposals that we have put forward, which, I am pleased to say, have at least to some extent the support of the noble Baroness, Lady Finlay.

[Baroness Finlay of Llandaff]

My Lords, I certainly support the amendments tabled by the noble Baroness, Lady Williams, who has just spoken, and they go further than the amendments to which I have added my name. I would just draw the attention of the House to the conflicts of interest guidance from the General Medical Council, which makes it quite clear that doctors,

“must be honest in financial and commercial dealings with employers, insurers or other organisations or individuals”.

It goes on to say:

“If you have a financial or commercial interest in an organisation to which you plan to refer a patient for treatment or investigation, you must tell the patient about your interest”.

I would also remind the House that the ultimate sanction is to be struck off, and that if you are struck off, you lose your livelihood. I have a concern that when it comes to the implementation, warnings may actually be issued rather than stronger sanctions taken against those who might breach such guidance, because this is guidance, and it is therefore subject to interpretation.

This whole group of amendments has really gone to the heart of the problem of conflicts of interest, both for the individual general practitioner, who would be on a clinical commissioning group, but also their families and all those others around. It may be friends of theirs, who they know really well, with whom they are inclined to place some commissioning contract, or enter into some arrangement. There is a really fine line between having a personal interest, and going to that person because professionally you think that they are the best person to do the job.

Of course, I will say as a doctor, we all know the doctors that we would like to be referred to, and we all know the people who we want to work with in our teams. That is human nature. It is a mixture of competence and attitude, but there is also something about having a shared set of values, and so on, because you tend to gravitate towards people who share the same set of values as yourself. The highest principles and values would of course fall, I would hope, outside of the conflicts of interest, but financial interest is a really difficult one.

While I would suggest that none of these amendments are absolutely perfect, this group of amendments illustrates the fact that we need to come back to this at Report with a definitive amendment that really crystallises the whole problem around conflict of interest in commissioning.

Health and Social Care Bill

Debate between Baroness Finlay of Llandaff and Baroness Williams of Crosby

Monday 28th November 2011 Lords Chamber

[Baroness Williams of Crosby]

My Lords, the Department of Health will be aware that with a freedom of information request there are always considerable burdens on those who argue that the information should not be conceded. Has the Minister given any thought to the possibility of a limited redaction of the report rather than not making it available at all, or alternatively whether there are parts of it that he feels could be made available so that the House can consider more deeply the issues that are coming up? I share the view of the noble Lord, Lord Campbell-Savours, that on the issue of how Parliament handles the legislation and the implications for the transition, certain things from the register might be useful, although I recognise that some extreme cases might be picked up by the tabloids and be changed into sensational reporting. Could the Minister possibly consider that qualification more seriously than we have been able to do so far?

[Baroness Finlay of Llandaff]

My Lords, I would be grateful if the Minister could let us know whether the department considered the BMA resolution in council at the end of last week to now oppose the Bill and campaign against it, when the BMA was coming to its decision to appeal against the release of the information. If not, will it be considered in the next steps the Government take, given that it signals a major loss of confidence in the Bill by the BMA?

Health and Social Care Bill

Debate between Baroness Finlay of Llandaff and Baroness Williams of Crosby

Monday 14th November 2011 Lords Chamber

[Baroness Finlay of Llandaff]

My Lords, I rise to speak to this amendment, which is also in my name, and to support the other amendments in this group. They have the effect of ensuring that public health considerations and public health expertise are given due weight in the new arrangements set out in the Bill.

Public health covers three main domains: health improvement; health protection; and health service delivery. Public health specialists are trained and skilled in interpreting data and information about populations, understanding health needs and securing the services required to meet those needs. That expertise is vital to having effective commissioning at every level, particularly that of the NHS Commissioning Board, which will have the overarching responsibility for commissioning health services, so as to ensure that the services are effective, appropriate, equitable, accessible and cost-effective. It therefore seems only sensible to make sure that that expertise is incorporated at board level.

The Commissioning Board exists to secure and improve the health of the population through the NHS services it commissions, and indeed through the services which are not NHS-provided, if I have understood this Bill correctly. To do this, the board would benefit from public health input. Public health specialists have an unparalleled overview of a community's need for health services and how they are best commissioned, including changing, adapting or even decommissioning services which could work better in other ways. The role of a public health specialist would also be to provide the essential expertise needed to commission preventive services, such as screening and immunisation, and to look at the evidence relating to those services. The board may need the courage to decommission some of those services as well, or to substantially alter the way that they are delivered.

It would be inappropriate to say that this is going to be too expensive, because a public health specialist should pay for themselves many times over with their presence on the board. It is only by having such an expert at board level that we can ensure their expertise is incorporated into decision-making, rather than only feeding into the process in an advisory capacity.

[Baroness Williams of Crosby]

My Lords, one of the most interesting aspects of the proposals in this Bill is the greater status to be given to public health. I think we all recognise that for some years public health has been something of a Cinderella in the medical establishment. To have public health lifted, as it should be, on to board representation seems to me absolutely central in our attempt to put greater accent on prevention, education and information; there are future amendments by some of my noble friends on some of those issues. I wish to say very briefly that I think that this amendment is absolutely right. It is crucial that public health recognition is given at board level, and I hope we can echo that in having it also represented in the clinical commissioning groups as they emerge.

One other question to raise in relation to public health, which we have been considering very carefully, is how we deal with chronic illness. Chronic illness is obviously not unrelated to lifestyles and life behaviour, so here again, raising the influence of public health in the attempt to bring about a healthier lifestyle among our fellow citizens and ourselves is absolutely essential. I therefore completely agree with what has been said by the noble Baroness, Lady Finlay, and the noble Lord, Lord Warner, in moving this amendment: that it is vital that public health be represented at the highest level.