Care Bill [HL]

Lord Hunt of Kings Heath Excerpts

Wednesday 16th October 2013 Lords Chamber

I am pleased that progress has been made since I moved a similar amendment to the Health and Social Care Bill. It is about time that the recommendations of the Francis report were put into operation.

[Lord Hunt of Kings Heath]

My Lords, the Opposition strongly support the thrust of the Francis report in its determination that the NHS be honest with patients who have been harmed. I very much echo the comments made by the noble Baroness, Lady Masham, in describing why we need an open culture. I welcome government Amendment 140. It is very important; we welcome the duty of candour being placed in the Bill. The amendment is less detailed than my own and will rely on regulations, as the noble Earl, Lord Howe, has said. The important thing is to get this in the Bill.

I have a couple of questions for the noble Earl. First, can he confirm that the regulations will be affirmative? Secondly, in considering the regulations, will he look at the issue of the threshold? For instance, the regulations might restrict the statutory duty of candour to cases that could be described as of severe harm or fatal; or it might go wider. In his report, Robert Francis used the word “serious”. Clearly, there is a distinction between severe harm and seriousness, but most patients and their relatives, or anyone involved in anything that could be described as a serious case, would wish the organisation in the health service to be as open as possible about what had happened.

These are not easy issues; but it is noticeable that the being open guidance is clear that cases of moderate harm and above must be disclosed. The NHS constitution does not put any limit on the level of harm that would be disclosed. I do not expect the noble Earl to respond to the detail of those questions tonight, but in drafting the regulations it would be reassuring to know, first, that consultation will take place with patient groups on the contents of those regulations before they are published and, secondly, that the question of the threshold by which the seriousness of the case would come within the regulations will be given very great consideration.

I should—at the end of the day rather than the start—declare my interest. I remind noble Lords of the interest I declared two days ago.

[Baroness Barker]

I have a quick follow-up to the question of the noble Lord, Lord Hunt of Kings Heath. Sir Robert Francis’s recommendations were clear that the duty of candour should apply where death or serious harm “may have been caused” or were believed or suspected to have been caused. That is an important distinction; it is not merely playing with words. When the Minister comes to respond, perhaps in writing, will he say whether that point will be covered in regulations?

[Earl Howe]

My Lords, I am sure that we are all aiming for the same effect and that there is little difference in the approach that we are taking. The amendment of the noble Lord, Lord Hunt, is drafted as a stand-alone duty: it would place a duty of candour on providers, but it would operate outside of the CQC registration system. As such, it is not clear who would enforce the duty of candour or what would be the consequences for a provider who did not observe the duty.

Introducing the duty as a requirement for registration with the CQC comes with a ready-made enforcement vehicle, including the power to prosecute providers who do not meet the duty. In Committee, we explained why this is our preferred approach. It would give the flexibility to develop the duty in consultation with service users and carers. I can indeed confirm that patient groups will be included. The duty itself will have the same legal power in secondary legislation as it would in primary legislation.

We are making real progress in taking this forward. In the summer, the CQC consulted on plans to introduce a duty of candour set through its registration requirements. The CQC is due to publish the findings from the consultation shortly. The department plans to consult on a draft regulation later in the autumn. I assure noble Lords that both I and my officials would be pleased to discuss the content of the draft duty of candour regulation with them in detail as we develop the final regulation. I confirm to the noble Lord, Lord Hunt, that these will be affirmative regulations.

On the threshold, both the Francis and the Berwick reports recommended that the statutory duty of candour for CQC-registered providers should apply in instances of death or serious injury/incident. There is a balance to be struck. We accept the Berwick report finding that an automatic duty of candour covering every single error could lead to defensive documentation and large bureaucratic overheads that would distract from care.

I hope that my amendment reassures noble Lords of our strong commitment to introducing a duty of candour and that they will feel able—

[Lord Hunt of Kings Heath]

Can I take it that, if that is the Government’s position, which will be set out in regulations, guidance to the providers of services regulated by the CQC would none the less make it clear that the principle of candour would apply to all such cases? I can see the distinction with regard to the seriousness of the incident in relation to the action that can be taken. The risk would be that a statutory duty of candour within the regulations might be taken the wrong way for cases which were not classified at such a serious level.

[Earl Howe]

I certainly take the noble Lord’s point. There is an issue of interpretation which we will want to clarify through guidance. That is what we intend to do. I look forward to discussing this with him and other interested noble Lords in due course. I hope that that will be sufficient to persuade the noble Lord, Lord Hunt, not to press his amendment when we get to it.