Health and Social Care Bill

Baroness Williams of Crosby Excerpts

Monday 7th November 2011 Lords Chamber

[Lord Harris of Haringey]

I am sorry; I hear someone behind me saying that that is not so. My experience in my 12 years of leading the national consumer organisation representing patients in the NHS was that that was precisely the circumstance in which many people went to law. They went to law because they wanted to get the information. That was the fact, and I suspect that that is the reality.

[Baroness Williams of Crosby]

Perhaps I may add a few words on an aspect that was touched upon only a moment or two ago by the noble Lord, Lord Lucas—the role of people who act as whistleblowers, particularly regarding patients who, for one reason or another, are not capable of standing up for themselves, are perhaps in institutions where they get little attention paid to them, and are not much listened to. They would be heavily dependent on the willingness of NHS staff to blow the whistle when bad standards are being allowed to continue.

One thing has always worried me about the NHS. As a parliamentarian of many years’ standing, I have received many letters from junior members of NHS staff asking me to look into some aspect of a hospital or care home in which they work, and almost invariably saying at some point in the letter, “I dare not do this myself because my job would be at risk”. This is a very serious aspect of the amendment of the noble Baroness, Lady Masham, but we have not talked about it very much at all.

I tend to favour the idea proposed by my noble friend Lord Mawhinney for having an element of mediation, as well as an element of court behaviour, in the way in which we deal with such cases. However, it rests on us all to give high priority to thinking of the ways in which we can protect whistleblowers and distinguish the genuine whistleblowers from those who are complaining merely about their personal position. For example, if we included private as well as NHS hospitals and care homes, the kind of position that the noble Baroness, Lady Oppenheim-Barnes, talked about—she described a terrible case with regard to her daughter—would not arise so readily.

I ask the Minister to say something about the view that mediation is one way forward, as well as court cases. At least as importantly, perhaps he can say whether the General Medical Council or others would now seriously consider protection for whistleblowers within NHS staff, who are often the most effective inspectors that we can find—much more effective than people with no clear knowledge of the way in which medical and health services work.

[Baroness Hollins]

Perhaps I may raise a couple of issues that have been touched upon. The first is that I do not know how far the consultation that is looking at the duty of candour will tease out the role played by whistleblowing. I should like some clarification about that.

The General Medical Council’s document, Good Medical Practice, in paragraph 31, makes it clear that doctors must be honest and open and act with integrity. I mention that because my noble friend Lord Walton spoke about the GMC’s role and said that he was not sure how far the medical defence unions currently adopt the same approach to encourage doctors, when they are aware of an error, to be open and honest. I decided to telephone my medical defence union before this debate and ask it for its current advice. It said that it refers doctors to Good Medical Practice and reminds them of paragraph 31, which states that they must be honest and open and act with integrity. I hope that the House will be reassured to hear that.

In my experience, a culture of openness and honesty leads to a culture of learning. That point has been made by a number of noble Lords. We should not be afraid of the idea that apologising will in some way lead to a greater culture of litigation. It is certainly my experience that being open and apologising does not necessarily imply negligence; it reflects the fact that something harmful has happened and that the lessons from mistakes must be learnt from in order that other people will not be harmed by the same mistakes in the future. That is what this is really about.

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[Baroness Williams of Crosby]

I am grateful to the noble Earl for giving way. Before he leaves the commissioning issue, would the conditions on candour laid down in the contracts apply to contracts with new providers who came from the private sector as well as to those from the old NHS sector?

[Earl Howe]

Our intention is that any provider supplying services to NHS patients should be subject to this duty of candour in the contract, but my noble friend will know that we are consulting on how best to do this.

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[Lord Turnberg]

My Lords, I had not intended to speak to these amendments, but it is clear that we have had problems associated with inequalities for a very long time, and they persist. Many years ago, we had the Black report on inequalities in health, which was a major landmark, and since then we have had Sir Michael Marmot and his marvellous book The Status Syndrome pushing away at the inequalities in health, and my noble friend Lord Layard and his book on happiness and the inequalities in life in general. There is no doubt that the effects of inequalities are very severe. We see quite marked differences in health and life expectancies in communities adjacent to those where life expectancy is very high. We have some communities where several years of life are lost. The effects are very severe indeed. The reasons why there are such inequalities are multiple. They are certainly way beyond the ambit of a health Bill. Clearly there are factors outside health services that make the difference. Nevertheless, it is important that we have within a health Bill recognition of that fact and of the need for those within a health service to take account of inequalities and make recommendations as a result of them, so I am very much in favour of these amendments. We should have them in the Bill.

[Baroness Williams of Crosby]

My Lords, I am grateful to the noble Baroness, Lady Thornton, for so clearly analysing the different amendments. I shall keep to those that are grouped together. As she said, the gravamen of the amendments is towards the view that the duties of the Secretary of State and, indeed, of other bodies involved in the NHS should be strengthened and put in rather more forceful terms. Whether one prefers “require” or “with a view to”, those words strengthen the position with regard to health inequalities from the rather low-level pressure of “with regard to”.

I say right away that my noble friend Lord Howe said, and I thought said very strongly, that this Bill contains a great many references to inequalities. It is also absolutely true that, as the noble Lord, Lord Turnberg, said, doing something about them is a very difficult exercise. One of the striking findings of the wonderful book The Spirit Level, which I have referred to before in this House, is that where there are grave inequalities in society, there are almost invariably grave inequalities in health as well. As the noble Lord, Lord Turnberg, said, the two are very closely related. Blame cannot be put entirely, or even largely, on the health service for the continuing inequalities. We know that there are very grave inequalities, both geographical and generational, between different parts of our society. To take only one example, lifestyles that feed bad health tend to be rather different between one section of society and another. I shall quote the words of the King’s Fund on the attempt made by the previous Government, to whom I give due credit, to deal with inequalities using the quality and outcomes framework. There was not much effect. The King’s Fund dismissed the whole effort with slightly contemptuous phraseology. It referred to,

“a medicalised and mechanistic approach to managing chronic disease”,

which is fairly damning. In addition, we know that economic differences between regions are very often reflected in health outcomes and, therefore, that looking at health outcomes has to be related to other outcomes: educational, income and social.