Health and Care Bill

Earl of Kinnoull Excerpts

Committee stage
Wednesday 9th February 2022 Lords Chamber

Amendments 296 to 297E not moved.

[The Principal Deputy Chairman of Committees (The Earl of Kinnoull) (CB)]

My Lords, in the next group of amendments, the noble Baroness, Lady Brinton, will be participating remotely.

Amendment 297F

Moved by

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The National Health Service is magnificent—I speak as its former global special envoy—but it cannot always be perfect. I urge the Minister to set up a review of language and actions used to sustain the safety, dignity and privacy of all patients—especially, in this context, women. I beg to move.

[The Principal Deputy Chairman of Committees (The Earl of Kinnoull) (CB)]

My Lords, the noble Baroness, Lady Brinton, is participating remotely, and I invite her to speak now.

[Baroness Brinton (LD) [V]]

My Lords, I will speak against Amendments 297F and 297G, spoken to just now by the noble Baroness, Lady Nicholson. One incident last week explains why they are dangerous and unnecessary. A woman, whom I will not name, was in hospital said the following on Twitter:

“This is incredibly hard to say, and I couldn’t feel more foolish, embarrassed, awkward and dumbfounded as I do now, but it’s been confirmed that the person I believed to be male on the hospital all female bay I was on, was … in fact, a female. This has been 100% verified … I have no words other than how on earth did I mistake a woman for a man? Delicately and with respect I say she was a very emasculated woman and I’m just totally stunned right now at the mistake, my mistake… and am … mortified that I took to Twitter utterly convinced that the woman who looked and sounded like a male, turns out to be quite genuinely a female. I apologise for causing a storm and will take some time off here while I let it sink in. I cannot understand how I got it so wrong … I feel a complete idiot.”


The problem is that these two amendments feed into the conspiracy movement against trans people and prey on vulnerable women such as this who believe that there is a problem. The fear inculcated by the gender-critical movement means that she felt entitled to aggressively call out a complete stranger minding her own business in her own hospital bed, in case she was a trans woman. Yet the reality is that there is absolutely no evidence whatever of trans people causing problems on single-sex wards. All the examples of assault given by the noble Baroness, Lady Nicholson, were by men, not trans women.

What is more, trans people, just like people who are not trans, have a right to privacy and dignity in hospital, just like everyone. Imagine if the patient who had been aggressively called out by this woman had been a trans woman. Is that sort of behaviour towards someone ill in hospital in any way appropriate? Of course not.

Amendment 297F, also in the name of the noble Lord, Lord Blencathra, sets out how to record instances where people complain about trans people simply on the basis that they are trans. Such behaviour may be part of a pattern of behaviour that may result in risks to any patient who is trans, visibly gender non-conforming or, as in this case, a woman. Not allowing the recording of such incidents may then place the NHS trust at risk of failure in its duty of care if something subsequently happens between the two parties.

The noble Baroness, Lady Nicholson, started to outline the definition of “harassment” under the Equality Act: “violating” a person’s “dignity” or

“creating an intimidating, hostile, degrading, humiliating or offensive environment”.

The amendment would only restrict recording of incidents involving trans people—not other gender non-conforming people. As such, it would be discrimination because trans people would be prevented from having discriminatory actions against them recorded, while everyone else would not be so prevented.

Amendment 297G flies in the face of current hospital practice. The NHS already has policies relating to where trans people should be housed, which reference the types of treatment required and the requirement for respecting the privacy and dignity of the trans person, alongside the privacy and dignity of all other patients too. This amendment would overrule those policies and therefore override the privacy and dignity of trans patients. It would clearly breach basic human rights legislation. And, by the way, trans people may require medical treatment for conditions relating to their lived-in sex: trans women may get breast cancer, for example. Requiring them to be housed in different accommodation could mean that the specialist nursing care required for their recovery may not be available.

But there might also be an unintended consequence of this amendment. If trans people know that they will be housed with people of their birth sex, rather than of their lived and legal sex, many will avoid going to hospital altogether, leading to many having increased and dangerous health complications. This could be potentially life-threatening, which is implicit discrimination under the Equality Act.

As the recent incident highlighted on Twitter shows, there actually is no real problem to be solved, and all that these amendments do is seek to demean and ostracise trans women in our society. I hope that the Minister will not support them.

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Amendments 312B to 312D agreed.

[The Principal Deputy Chairman of Committees (The Earl of Kinnoull) (CB)]

My Lords, in this next group, the noble Baroness, Lady Brinton, is participating remotely.

Clause 81: Information standards

Amendment 298

Moved by

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[Lord Clement-Jones (LD)]

Sorry, my Lords—I assumed that my noble friend Lady Brinton was going to speak next.

[The Principal Deputy Chairman of Committees (The Earl of Kinnoull) (CB)]

Thank you very much for reminding me. I am frightfully sorry. I invite the noble Baroness to make a speech now.

[Baroness Brinton (LD) [V]]

My Lords, I am grateful to the noble Lord, Lord Hunt, for outlining the amendments in this group, and look forward to my noble friend Lord Clement-Jones’s contribution shortly.

I want to speak particularly to Amendments 298, 299 and 300. Before I do that, I want to support my noble friend Lady Tyler of Enfield and her Amendment 307. I thank the Minister for the meeting last week on children’s issues, and just want to say that my noble friend’s proposal is a neat way of resolving what has been, up until now, a nightmare, through which children at risk of abuse or with other care needs have been missed by officers in different departments using different identifying numbers. A unique identifying number can close that lacuna.

The national plan for open government published a “reset” on health data, and it is worth repeating here its commitment 4, objective 1. Objective 1 is “accountability and transparency”:

“Improving communication and engagement with the public about the access and transparency of health data, and decision-making relating to public health.”


It then asks:

“What is the problem that the commitment will address?


Civil society groups have raised concerns that health data collected and used by government is not clear, transparent or accountable enough. It leads to a failure of trust between citizens and government.”


How right that is. I pick up the points made by the noble Lord, Lord Hunt, on shared care records. There is a definite need for a solution to the problem that he outlined. Opting out is patchy, complex and—worse—inconsistent.

Last year, on part 2 of care.data, the Government decided to change the way they held and used confidential patient data, and thought it appropriate, in the 21st century, just to announce the changes on the web. There was no direct contact with patients about the changes and, unlike the debacle the time before, there was not even a leaflet going to every household. There certainly was not a wider discussion with civil society. Worst of all, there was not even a discussion with GPs. Unsurprisingly, GPs and patients were horrified and the idea was ditched last summer. However, there is one serious long-lasting result. There is now real concern that this Government are trying to be cavalier with patient data, and the NHS does not understand the problems that it is has.

Data collection and sharing are important and have been instrumental in advancing medical capabilities and improving population health. Equally, individuals have the right to understand how and why their health data is being used, and to give permission on any confidential data. Frankly, the wealth of data held by the NHS should be used only for the benefit of the health service and for research; it should not be shared for marketing or insurance purposes, or as a benefit for a provider to make use of outside the original contract, as happened with the big data firm Palantir at the beginning of the pandemic. In February 2021, the tech justice firm Foxglove issued a law suit on behalf of openDemocracy over the NHS contract with Palantir, because of a failure to consider the impact of the deal on patients and the public without an impact assessment or consultation.

If the Government are to live up to their commitment, they need to set up a clear framework on health data with the public that sets out the fundamental principles and responsibilities for assessing whether a data-sharing partnership is in their interests and those of the NHS, while protecting privacy. That is why we need Amendment 298, because new subsection (6B) in Clause 81 appears to remove the explicit obligation that was in Section 250(6)(b) of the Health and Social Care Act 2012 that NHS England

“must have regard to an information standard published under this section”

and replaces it with a power for such obligations to be waived by regulations. That completely contradicts objective 1, “accountability and transparency”, as set out in the national plan, as I outlined at the start.

I will leave my noble friend Lord Clement-Jones to explain how the data can be protected in a much more effective way. Access to health data must be for public and patient benefit. These amendments set out to protect that patient data and put a responsibility on the Government to live up to what they claim they want to do in their national plan.

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[Baroness Penn]

My Lords, it is a pleasure to hopefully conclude this Committee stage of the Bill with some government amendments, which I hope will receive a welcome from the Committee. When we announced our intention to become one of the first countries in the world to fully ban virginity testing, in the Tackling Violence Against Women and Girls strategy, we also stated that we would establish an independent expert panel to review the ethical, legal and clinical aspects of hymenoplasty, a cosmetic procedure to reconstruct a hymen. This announcement followed concerns, highlighted in an internal review into virginity testing and hymenoplasty, that demand for hymenoplasty is driven by a repressive approach to female sexuality and is closely linked to virginity testing—an abhorrent practice that the Government brought forward an amendment to ban in the House of Commons.

However, as hymenoplasty is a cosmetic procedure, we recognised that a ban on it would mark a step change that could be counter to existing regulation on cosmetic procedures. Further concerns were raised that a ban would take away a woman’s right to choose what happens to her body. The panel’s task was to carefully consider these incredibly difficult and competing issues at length. The panel has now delivered its final report to the Government, which includes a robust set of recommendations. I take this opportunity to thank the co-chairs and all the panel members for the time and commitment they have dedicated, on a voluntary basis, to this incredibly important issue.

As we announced in Our Vision for the Women’s Health Strategy for England, the Government agree with the panel’s core recommendation that hymenoplasty should be banned. It is inextricably linked to virginity testing, and failure to prohibit hymenoplasty would not only undermine the Government’s commitment to address the violence against women and girls by criminalising virginity testing but also leave women and girls at risk of further harm and continue to perpetrate the harmful myths and attitudes towards virginity.

The package of amendments brought before the House today delivers on this promise. It would create three offences: carrying out hymenoplasty, offering hymenoplasty, and aiding or abetting another person to carry out hymenoplasty in the UK or on UK nationals overseas. Each of these offences carries a maximum penalty of five years’ imprisonment and/or an unlimited fine. This sentencing reflects the long-term physical and psychological damage that this repressive practice can cause. These offences, alongside the proposed virginity testing offences, begin to tackle the harmful misconceptions that surround a woman’s sexuality.

In response to concerns that vulnerable women and girls will be taken abroad and subjected to hymenoplasty once the offence is banned in the UK, these offences also carry extraterritorial jurisdiction. These proposals have been discussed by Health Ministers across the UK, and my noble friend is working with them to ensure the whole of the UK, together, tackles this harmful practice.

These amendments are an important milestone in this Government’s ongoing mission to safeguard women and girls but our work will not stop here. The Government recognise that banning virginity testing and hymenoplasty alone will not tackle the harmful misconceptions and misbeliefs surrounding virginity. That is why we will also put in place a programme of education in community, education and clinical settings.

Finally, I give thanks to my noble friend Lady Sugg for bringing the practice of hymenoplasty to the attention of this House, and for the wider work she is doing on this issue to improve the lives of women and girls. I hope the House will pass the Government’s amendments today and allow our important work on safeguarding and improving the lives of women and girls across the UK to continue. I beg to move.

[The Principal Deputy Chairman of Committees (The Earl of Kinnoull) (CB)]

My Lords, the noble Baroness, Lady Brinton, is participating remotely and I call her to speak.

[Baroness Brinton (LD) [V]]

My Lords, I want to speak very briefly to thank the Ministers for listening to the noble Baroness, Lady Sugg, and the noble Lord, Lord Patel, and others who have been working with the RCOG and others to ensure that both virginity testing and hymenoplasty procedures are banned. As the noble Baroness, Lady Penn, said, to ban one without the other would have been unhelpful, because they are inextricably linked. It is particularly good to see that extraterritorial jurisdiction is included too.

I am also delighted to hear about the creation of resources for education and training, which is vital for working with young people and their communities to ensure that they are kept safe from virginity testing and hymenoplasty. Will there be special funding for this? Without funding and resources, it will be difficult to make sure that this work is carried out throughout the at-risk communities.