Health and Social Care Bill

Baroness Masham of Ilton Excerpts

Monday 27th February 2012 Lords Chamber

Moved by

[Baroness Masham of Ilton]

38A: Clause 19, page 14, line 9, at end insert—
“( ) The regulations must require the Board to include in terms and conditions prepared by virtue of subsection (5)(a) provision for a requirement to be placed upon any organisation that enters into a commissioning contract to provide healthcare with the Board or with a clinical commissioning group to take all reasonable steps to ensure that a patient or, in the event of death or incapacity, their next of kin, is fully informed about incidents which occur as a consequence of providing the contracted healthcare to that patient where the incident has resulted in—
(a) any injury to a patient which, in the reasonable opinion of a health care professional, has resulted in—(i) an impairment of the sensory, motor or intellectual functions of the patient which is not likely to be temporary,(ii) changes to the structure of a patient’s body,(iii) the patient experiencing prolonged pain or prolonged psychological harm, or(iv) the significant shortening of the life expectancy of the patient; or(b) any injury to a patient which, in the reasonable opinion of a health care professional, requires treatment by that, or another, health care professional in order to prevent—(i) the death of the patient, or(ii) an injury to the patient which, if left untreated, would lead to one or more of the outcomes mentioned in paragraph (a).”

[Baroness Masham of Ilton]

My Lords, in moving Amendment 38A, I must explain to your Lordships why it is so important. I wish only that the Minister, the noble Earl, Lord Howe, was moving it.

When legislation is before your Lordships it is our duty to try to improve it. For years there has been a serious cover-up and a closing of ranks in many cases when something has gone wrong with patients’ treatment and they or their next of kin have not been kept informed. If there is not openness and honesty, there could be years of frustration and consternation resulting from trying to find the truth through litigation. The only winners are the lawyers.

Last Monday at 8 pm on Radio 4, and today, there was a programme entitled “Doctor—Tell Me the Truth”. The programme explores how patient safety can be improved by doctors admitting to mistakes. In some states in America, medical practitioners must be open about their errors. Instead of increasing litigation, this has lessened it.

I was involved through the Patients Association with some of the next of kin of the patients who tragically died in the Mid Staffordshire NHS Foundation Trust hospital. I congratulate the Government on holding a review into the hospital, where the culture was the very worst and there was a fear to disclose the truth. Surely it is time we put something into legislation to help change this culture.

I was sorry that the amendment which I previously moved—which would have introduced a statutory obligation to provide a duty of candour applying to all providers registered with the Care Quality Commission—did not succeed. However, it was made clear by the Minister that the CQC could not undertake this role. Perhaps it has too much to do satisfactorily and it is just not up to it.

The Minister, the noble Earl, Lord Howe, said:

“I remind the House that the Government’s preferred position is to place a duty of candour in the NHS standard contracts. We have chosen that route because we feel that it has the best chance of working. The view that we have taken, on the basis of clinical advice, is that responsibility for ensuring openness needs to rest as close to the front line as possible, rather than being the responsibility of a remote organisation such as the CQC”.—[Official Report, 13/2/12; col. 591.]

An independent body still seems to me to be the best option as it is transparency and honesty that we need, and front-line medical personnel may still try to cover the mistakes made by members of their profession. I hope not.

Amendment 38A covers what the Government say is the best route to go down. I have had letters imploring me not to give up as so many members of the public, who have been patients or who are their next of kin, have had bad experiences and feel now is the time to change this culture of fear and secrecy. The amendment makes provision for,

“a requirement to be placed upon any organisation that enters into a commissioning contract to provide healthcare with the Board or with a clinical commissioning group to take all reasonable steps to ensure that a patient or, in the event of death or incapacity, their next of kin, is fully informed about incidents which occur as a consequence of providing the contracted healthcare to that patient where the incident has resulted in”—

and the amendment goes on to mention various harms. If the amendment is not quite correct, perhaps the Minister would accept it and correct it for Third Reading. It would be a start to something that must happen if patients and families are to have much-needed trust in the professionals who care for them. I beg to move.

[Lord Walton of Detchant]

My Lords, I added my name to this amendment for one reason and one reason only: in the hope of seeking assurances from the Minister. When I first joined the General Medical Council in 1971, the president was the late Lord Cohen of Birkenhead, who was a wonderful man. He was a fine physician, but he was an autocrat and his views were very traditional and in some respects, I have to say, somewhat backward. He told me, “Never apologise to a patient. The lawyers will get after you”. He told me, as a young man, “Never speak to the press or to the television. They will misquote you always”. Happily, since that time the General Medical Council has progressively changed its view. Now the recommendation made to all medical practitioners is that, if you have made a mistake, if you have committed an error, it is your duty to apologise to that patient sincerely. An apology does not mean an admission of liability; it is simply a sincere apology for a mistake. I hope that is the case in respect of all other healthcare professionals whose activity is regulated by law. I would like an assurance from the Minister that that is the case.

The purpose of this amendment, which has been so well proposed by my noble friend, is to confer on health bodies, whether clinical commissioning groups, independent foundation trusts or other organisations providing medical care, a similar obligation and, indeed, the duty to apologise for errors that have occurred under the auspices of those organisations. I simply ask the Minister whether, in the contracts that these bodies hold with the NHS, such an obligation is a part of the contract. If it is, it may not be necessary to have such an amendment on the face of the Bill. I hope the Minister can give me those assurances.

--- Later in debate ---

I reiterate on the record the Government’s and my commitment to introduce a contractual duty of candour to require openness and transparency in the NHS. I understand the strength of feeling on the topic; indeed, it is for exactly that reason that I promised in our earlier debate that the Government would undertake a review in future of the effectiveness of the contractual duty of candour, and to include that within a specific analysis of whether its effectiveness was being substantially held back by the lack of a reference in primary legislation. If that review were to highlight that this was indeed happening, the Government would give that fact significant consideration and take it fully into account in the context of any future primary legislation. On top of that, I reiterate the commitment that I have given today that the Government intend to use the “standing rules” regulations to specify that the contractual duty of candour must be included in the NHS standard contract. I hope that I have provided the noble Baroness with cast-iron reassurance upon this topic, and I therefore ask her to withdraw her amendment.

[Baroness Masham of Ilton]

My Lords, I thank all noble Lords who have spoken. I think that because I was thanking the Minister last time, I forgot to thank all those who had spoken then, so I thank them now as well.

This is a complicated Bill, and I do not think it is a very popular one—certainly not outside your Lordships’ House. I worry intensely that while patients were said to have been centred in the Bill, in fact they are getting less and less so. However, we will come on to that later.

I am passionate about patient safety. I thank the Minister for his assurances. We have moved on a little. Things take a long time, but a lot of people now feel that doctors, patients, and all those looking after them should be a team. I hope that this will happen.

I am pleased that the GMC has come out against the gagging clause. It was terrible and extremely confusing for doctors when they were told by managers that they were not allowed to say when something had gone wrong. I am glad. We are moving on, and I hope that this debate has been useful. With that, I beg leave to withdraw the amendment.

Amendment 38A withdrawn.

--- Later in debate ---

[Baroness Masham of Ilton]

My Lords, I would like to ask the movers of the amendment a question just for my own concern. Health is free at the point of delivery so there should be no problem with integration between primary and secondary care. However, this is not the case in social care as there is means testing. How does this affect integration?

[Baroness Thornton]

My Lords, I am not going to attempt to answer the noble Baroness’s question. I shall leave that for my noble friend Lord Warner or the noble Lord, Lord Patel. The noble Lord, Lord Patel, and my noble friends Lord Warner, Lady Pitkeathley and Lord Turnberg made a very good job of introducing these amendments, stressing the importance of joint commissioning, the work of the Health Select Committee in the Commons and its recommendations, and indeed the vital nature of tariff reform. This is a modest but very important amendment that strengthens the Bill.

Every time we meet on Report on this Bill we are in a different world. The world we are in today is not the same one we were in 10 days ago. As we speak, the Royal College of Physicians has decided by a majority of 80 per cent to ballot its members about how they feel about the Health and Social Care Bill. By my counting that leaves only two royal colleges which have not consulted their membership so far. We all know what the results of the consultations have been, but still we plough on with this Bill.

The remarks of the noble Lords, Lord Mawhinney and Lord Newton, and the noble Baroness, Lady Jolly, together underline the defects of this Bill. Why are we having a debate about integration at this point in the passage of this Bill? It occurred to me that perhaps those debates should have been had before we had the Bill. However, because you cannot achieve everything does not mean that you should not try to achieve something. That is what these amendments do and that is why we on these Benches are very keen to support them. It seems to me that through all the many definitions of integration that we have discussed in this House, the one that is going to have the most effect on budget and finance is in these amendments here before us today. I hope the Minister will accept these amendments because they will improve this Bill.