Health and Care Bill

Lord Hunt of Kings Heath Excerpts

Committee stage
Wednesday 9th February 2022 Lords Chamber

[Lord Blencathra (Con)]

My Lords, I support the amendments in the names of my noble friend Lady Nicholson of Winterbourne and myself. I pay tribute to her for raising this issue of vital importance to women, and for being their champion over many years in the face of some bitter attacks from a minority of trans zealots.

I must say to the noble Baroness, Lady Brinton, that I resent the implication that somehow we are attacking trans people in these amendments. There is no conspiracy against them; we want equal treatment for everyone in the NHS. If there is any conspiracy it seems to be to demean the status of women. I also say to her that, yes, if these amendments were accepted, NHS policy would have to change to comply with the law of the land—the Equality Act 2010—because it is in breach of the exemptions in that Act at the moment.

As we all know, there is no real privacy in hospitals, however hard they may try. If one ties that funny gown the wrong way, like a dressing gown, one’s front is exposed; if one ties it properly, the rear is exposed. Even when one is recovered and wearing pyjamas or female bed attire, it is impossible in a hospital to carry out the routine of getting into and out of bed, and using the washing and other facilities, without some part of one’s anatomy being exposed. Many patients neglect to close or lock washroom doors. Some with mental health problems may express sexual disinhibition. When doctors come round and pull the screens around the bed, of course, there is still the discussion of one’s condition and the medical profession’s obsession with bowel movements, as we all know about.

I am old enough and ugly enough not to care what parts of my body medical professionals see. They have all poked, prodded and cut out various bits of it over the years so I am reasonably immune to embarrassment with them. However, I would find it highly embarrassing if I found a woman, or a man declaring as a woman, in the next bed and encountered her in the ablutions. Of course, it is highly unlikely that I would meet a woman since an infinitesimally small number of women identify as men, but many more men identify as women.

All my life, there has been an NHS policy of single-sex wards and Governments of all colours have been slammed on those occasions when men and women were sharing hospital accommodation. The policy is that patients should not have to share sleeping accommodation, nor toilet or bathroom facilities, with members of the opposite sex. The operative word is “sex”—biological sex, not gender.

Since we are speaking about women, sex and hospitals, I will put some astonishing medical information on the public record which has resulted in some women being sacked or abused for saying it. I stand to be corrected by medical experts present. I believe that only women can give birth to children, since only women have wombs. No matter what one declares one’s gender to be, only men get prostate and testicular cancer. Only women can breastfeed their children and men who have chests cannot. The sex of babies is not assigned at birth. Babies are born as boys or girls, and that includes those born with those rare congenital disorders of sexual development. No one decides to assign male or female to a baby; they are born that way, so that is why the term “sex assigned at birth” is so offensive.

In the course of daily life, working in most jobs or going to the pub et cetera, sex and gender do not matter and one can call oneself what one likes. But when it comes to medical treatment, two vital factors can determine the diagnosis and that treatment. These factors are age and sex. Sex is the only thing which matters medically, not gender, and that was always the case until the mistaken guidance issued in September 2019. The NHS always recognised that single-sex accommodation was essential not only for a patient’s privacy and dignity but for their treatment and recovery. Doctors recognised that patients in distress for whatever reason cannot recover as easily as those who are comfortable in their surroundings, and who are not fearful of people of the opposite sex seeing their body at a time when they are at their most vulnerable. That is why the NHS guidance stated in absolutely unambiguous terms:

“There are no exemptions from the need to provide high standards of privacy and dignity at all times”.


As my noble friends have pointed out, it all went haywire in annexe B of the guidance, which failed to implement the Equality Act 2010 and said that trans people should be accommodated according to their self-identification, which the guidance says

“may not always accord with the physical sex appearance of the chest or genitalia”.

It goes on to say that

“pre-operative transgender people should not share open shower facilities.”

I am sure that Jewish or Muslim women find it immensely reassuring that they can be in a shower with a man, so long as he has had some operation on his genitalia.

This is the advice I received from a Jewish expert in medical ethics. The religious requirements of Orthodox Judaism mandate single-sex facilities for both men and women where people are likely to be in a state of even partial undress. This includes the requirement for single-sex hospital wards, bathrooms and changing rooms. The distress, both psychological and spiritual, that is likely to be caused to Orthodox Jews if they are forced to share facilities with members of the opposite sex is considerable, as is the impact on the patient’s family. Orthodox Jews are protected under the Equality Act on the basis of their religious belief. It would be wholly unacceptable if an Orthodox Jewish woman were to be counselled by NHS staff into accepting the presence in the bed next to hers of a male patient who identifies as transgender. That is the advice I have received on Orthodox Judaism. I do not know, but I assume that the requirements of Islam are similar.

The needs of these women should apply to all women, whether religious, atheist or pagan, and not just those with particular religious beliefs. What is wrong with NHS guidance Annex B is that the Equality Act 2010 specifically exempts hospitals and the provision of joint services where a joint service for persons of both sexes would be less effective and in circumstances where a person of one sex might reasonably object to a person of the opposite sex.

I say to the Minister that the law is clear: women have the right to be kept in hospital accommodation with only other women. One of course exempts intensive care units, where patients are unconscious or nearly unconscious; their medical treatment is best served by all being in the same specialist unit together. I call on my noble friend the Minister to withdraw this flawed guidance on transgender patients and instruct the NHS to comply with the law of the land.

I will say a brief word on Amendment 297F. I have read the reports that some NHS trusts have logged women as transphobic, when all they have done is request single-sex accommodation and not to be in a bed next to a man who identifies as a woman. There are a few reports of this. It is nothing to do with anyone on Twitter posting a rant about some hateful person next to them; it is ordinary women saying, “Please can I be in a room where I do not have a man next to me?” It is as simple as that. I am told they are recorded as being transphobic, merely for making that request.

I asked my noble friend, in a Written Question, what evidence he has of this. He said that unfortunately —or fortunately—the NHS does not collect this information centrally; it is left to the trusts. I accept that, but I would like my noble friend to issue an instruction to all NHS trusts that it is perfectly legal for a woman to make this simple request and that she must not be stigmatised as transphobic for asking. That is completely separate and quite different from anyone who makes racist, offensive, threatening or genuinely hateful transphobic remarks.

There must be no discrimination against trans people in hospital or discrimination against anybody. Our amendment makes it clear that trans people must receive equal medical treatment, but that does not mean that their gender identity wish must be accommodated over and above the wishes of people of the opposite sex. If there were a finely balanced conflict of rights here, I would take the view that those demanding it is their right that their gender identify should take precedence over women’s sex are wrong and the rights of women should prevail. But there is no fine balance here. In my opinion, the NHS is breaking the Equality Act 2010, and I request that it obeys it as soon as possible.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I want to ask the Minister a brief question. The contention is that there is a tension between the NHS England guidance on single-sex wards, which is eminently sensible, and Annex B. I would be grateful if the Minister could respond on that specifically. In particular, he knows that under Schedule 3 to the Equality Act, on single-sex services, to which the noble Lord referred, it is permissible for the NHS to provide separate accommodation for women who are biological females. But my reading of Annex B is that it excludes that option. Again, I ask the Minister for the Government’s view on this.

My main reason for intervening is to say this. Surely there is a case now for a government review of the guidance. The Minister will know that the Equality and Human Rights Commission will shortly be updating its guidance on single-sex services. Clearly, it would be very sensible to review the NHS guidance in the light of that. An assurance that this will happen would be very appropriate.

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Moved by

[Lord Hunt of Kings Heath]

308: After Clause 95, insert the following new Clause—
“Pre-appointment scrutiny of HSSIB chair and Chief Investigator
Appointments to the posts of—(a) chair, and(b) Chief Investigatorof the HSSIB must be subject to pre-appointment scrutiny by the House of Commons Health and Social Care Select Committee.”Member’s explanatory statement
This reflects a recommendation of the Joint Select Committee, to provide pre-appointment scrutiny to the appointment of the HSSIB Chair and Chief Investigator.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I welcome the intention to make the Healthcare Safety Investigation Branch a statutory body. We know that healthcare is very complex and that adverse events unfortunately occur very regularly. Recognising that weak safety systems create the conditions for the inevitability of error is vital to achieving high levels of patient safety. The noble Lord, Lord Patel, and I chaired the National Patient Safety Agency at different times, and we saw there the problems of having an agency where there was no mechanism for turning its work into appreciable action in the health service. I have great hopes that the HSSIB may well have a major impact on how the NHS improves safety.

In 2019, we had a Bill that was interrupted by the general election, and we now have these clauses in this Bill. Prior to the Bill in 2019, there was pre-legislative scrutiny from a Joint Select Committee of both Houses. This Select Committee argued that the most critical priority is to ensure that the prohibited disclosure of safe space provisions is fully fit for purpose in protecting the identity and statements of individuals who participate in our national safety investigations. The whole concept of safe space is so important. Without people in the service having the confidence to be able to tell the branch what is happening and where things have gone wrong, I do not think the branch is going to be able to work effectively.

It is very significant that the Select Committee concluded that any concession to safe space proposals—to coroners, for example—might significantly harm the branch’s ability to conduct effective safety investigations and would undermine one of the core principles under which the branch is being established. The Government have never once given any explanation of why over 90 coroners should be allowed to override the safe space concept.

I am very disappointed to see that the senior coroners can, under paragraph 6 of Schedule 14,

“require the disclosure of protected material by the HSSIB”.

I am very supportive of the amendment of my noble friend to remove those coroners. In fact, I do not believe this is going to work unless we succeed in doing so. I look forward to some decent, substantive explanation—not just that the MoJ insisted on it, which we think is probably the real reason the Department of Health failed to stop this—as to why coroners should be allowed to impede the success of this endeavour.

The leadership of this organisation is clearly critical, and we have seen in recent weeks just how critical. The Joint Select Committee thought that, to emphasise the wider accountability of the HSSIB to Parliament, both the chair and the chief investigator should be subject to pre-appointment scrutiny by the Commons Health and Social Care Select Committee. The Government agreed at that time to have a look at it, and I would be grateful if the noble Baroness could tell me what the conclusions are. Again, I would say that, in the light of recent very unfortunate experience within the leadership of this organisation, parliamentary scrutiny is very much justified.

There is some debate about whether the Secretary of State should have the power in Clause 97 to direct the branch to carry out an investigation. I do not think that undermines the independence of the branch. I think it is perfectly proper for the Secretary of State to be able to order an intervention; after all, he or she is responsible for the NHS to Parliament. But it is sensible that that power should not be unlimited and that the branch should have sufficient resources to carry out such an investigation and not have all its work diverted because of a request or instruction by the Secretary of State—hence my Amendment 309.

It is also important that, where an investigation is carried out under such a direction, a copy of the final report should be laid before Parliament, setting out what action the Secretary of State proposes to take in response to the report. That is the subject of my Amendment 310.

In Clause 115, the oversight functions of the Secretary of State are laid out, including a power of direction in the event of HSSIB failure. That is quite normal. Such direction may not direct the outcome of a particular investigation. That seems sensible to me, but it should happen only in exceptional circumstances, and in the interest of transparency and accountability, the clause surely needs strengthening through my Amendments 312AA and 312AB.

I think the Government will find there is a great deal of support for the establishment of the branch as a statutory agency, but unless they can resolve the safe spaces concept and strengthen the governance, this branch may have some difficult challenges in the future. I beg to move.

[The Deputy Chairman of Committees (Baroness Fookes) (Con)]

My Lords, the noble Baroness, Lady Brinton, is taking part remotely. I now invite the noble Baroness to speak.

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[Baroness Penn (Con)]

My Lords, I thank all noble Lords for this debate and reassure them not only that I have listened carefully to it but that the Government will of course again look carefully at the arguments made. As the Committee has heard, HSSIB is no ordinary investigatory body. It will look at systemic risks and focus on learning lessons. It is not about blame; it is about improving patient safety incidents across the system and making a real difference to patient safety.

The Government agree that the integrity of the safe space is paramount. Safe space conditions will encourage patients, families, NHS staff and other investigation participants to speak freely and candidly. Without guarantees that this information will not be shared, except in very limited circumstances, we risk eroding the confidence of all those participating in an investigation, potentially leading to information being withheld and reducing the effectiveness of the investigation.

I turn to Amendments 311, 311A and 312A. We have sought to strike a fine balance between protecting safe space and acknowledging the need for very limited exceptions. We have allowed senior coroners to have access to information from the HSSIB, but only when it is appropriate and necessary for them to fulfil their judicial functions, and not to disclose onwards without further protections in place. Where the HSSIB has information about a death which the coroner is investigating, we need to ensure that the coroner’s judicial role is not undermined and that they have accurate and clear information. It does not mean that the coroner will have complete access to safe space information—far from it—nor that they will be able to automatically share this information. We have drafted provisions so that this does not happen. It is an intentionally limited and contained exemption.

Regarding Amendment 311, the Bill’s provisions are likely to have a very limited impact on the Parliamentary and Health Service Ombudsman’s ability to fulfil its important independent role of investigating complaints, given that it will still be able to use its existing powers to obtain material directly from the same primary sources. It will often not be investigating the same incidents as the HSSIB, as we have heard in Committee. If the PHSO felt it needed to access protected material held by the HSSIB, it could apply to the High Court. We do not envisage this being a common occurrence, as the HSSIB’s purpose will be very different from that of the PHSO. However, it means that the PHSO does have a way to gain access to protected information in certain circumstances.

We are committed to monitoring the impact that the safe space provisions may have on the PHSO’s ability to carry out its functions. We shall report to the House of Commons Public Administration and Constitutional Affairs Committee on this issue within 12 months of the HSSIB being fully operational, which we expect to be 12 months after the Bill gains Royal Assent.

A number of amendments relate to the role of the Secretary of State in relation to the HSSIB. We believe it is appropriate that the Secretary of State can direct the HSSIB to investigate particular qualifying incidents. This is an important tool available to the Secretary of State, which enables him and the HSSIB to respond to emerging or ongoing patient safety issues, which may arise at any time. It would therefore not be appropriate or prudent to limit the Secretary of State’s ability to direct the HSSIB to the first 18 months of its operation.

More importantly, the Secretary of State would not be able to direct the HSSIB on how to conduct a particular investigation. Clause 115 rightly allows the Secretary of State to intervene if

“the HSSIB is failing or has failed to exercise any of its functions, and … the failure is significant.”

The Secretary of State is accountable to Parliament for the HSSIB’s performance, and it is in the public’s best interests that the HSSIB functions effectively.

I turn to Amendments 310A and 310B. Given the broad scope of the HSSIB’s investigation function, some flexibility is needed so that the Secretary of State can set out additional circumstances when the prohibition on disclosure—safe space—does not apply. It is vital that the HSSIB can adapt as clinical and record-keeping practices change on the front line and practice evolves. This power is about future-proofing and continuous improvement, not eroding safe space.

On Amendments 308A and 309, I understand the importance of the HSSIB having predictable budgets for planning, but requiring a three-year budget would cut across the established processes of spending reviews and put it out of step with the confirmation and allocation of budgets across government and other arm’s- length bodies.

Turning to Amendment 310, I reassure noble Lords that the HSSIB’s reports will be published. Organisations will generally be required to respond to the HSSIB’s recommendations and it may publish these responses. In some cases—for example, an investigation into a private provider—it would not be appropriate for the Secretary of State to publish an additional report.

I turn to Amendment 308. In line with the Cabinet Office’s Governance Code on Public Appointments, the chair of the HSSIB will undergo pre-appointment scrutiny by the Health and Social Care Committee. However, the appointment of the chief investigator, which is not a public appointment, will be undertaken directly by the non-executive members of the HSSIB, including the chair, with the consent of the Secretary of State. We believe that this strikes the right balance between scrutiny, accountability and operational independence, without compromising the effectiveness of the board.

Finally, I turn to Amendment 309A. Whistleblowing is a distinct legal concept, with an existing legislative framework to ensure that whistleblowers are protected. The purpose of the HSSIB’s investigations is to identify risks to the safety of patients and address them by facilitating the improvement of systems and practices in the provision of healthcare services in England. A disclosure to the HSSIB concerning patient safety is complementary to but distinct from whistleblowing, so it is right that it should sit outside that legal framework.

However, I reassure the noble Baroness, Lady Kramer, that information shared with the HSSIB to alert it to a patient safety issue will be protected by the safe space provisions if it fulfils the definition of protected material. If, as mentioned in the amendment, a concern is raised that conduct is illegal, we would expect it to be raised with an appropriate person. Similarly, concerns relating to unethical conduct would not be best dealt with solely by the HSSIB. This amendment would risk blurring the lines with other organisations which may be better placed to deal with such matters.

I suspect that I have not given noble Lords as much reassurance as they would like in order not to return to this issue, but I hope I have given them enough that they feel able withdraw or not move their amendments at this time.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I am very grateful to the Minister—she was succinct but we certainly got the drift of the Government’s arguments. We have had just over an hour’s debate. Ideally, we would have taken this as a separate Bill, as we did in 2019, because these are clearly very complex issues. The heart of it is the tension between the purity of the safe space concept and the statutory duties of a number of officeholders, including senior coroners and the ombudsman. We will not resolve that tonight. The pity of it is that we will move to Report and probably vote on this; I cannot help thinking that there is a need for a proper round-table discussion before that to see whether we can collectively tease out a way forward. Having said that, it has been an excellent debate and I beg leave to withdraw my amendment.

Amendment 308 withdrawn.

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Moved by

[Lord Hunt of Kings Heath]

298: Clause 81, page 71, leave out lines 34 to 37
Member’s explanatory statement
The intention of the amendment is to retain the existing obligations on NHS England to have regard to standards published under this section. Clause 81 (d)(6B) appears to remove the explicit obligation that previously existed under Section 250(6)(b) of Health and Social Care Act 2012 that NHS England (“the Board”) “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.

[Lord Hunt of Kings Heath (Lab)]

My Lords, we come to a debate on confidentiality of patient data. We debated some of this last week in considering my Amendment 145, on the power to disclose information relating to patients. I think there was general agreement then that public confidence in the handling of patient data by the NHS depends on the safeguards that are put in place. Without that public confidence, the huge potential we can see in the digital transformation of healthcare will not be realised, and that is behind the concerns I have raised in this series of amendments. They are linked together and are designed to probe just how secure patient data is.

Amendment 298 relates to information standards as set out in Clause 81, page 71, line 34, and would leave out proposed new section (6B). I am hoping the Minister will briefly set out the reasons for this proposed new section, how the power is intended to be used and what guarantees are in place in relation to patient confidentiality.

Amendment 299 concerns the importance of maintaining an accredited data access environment. I propose restricting

“existing dissemination of information via access in an accredited data access environment”.

The Bill is drafted on the basis of a departmental

“commitment that GP data will be used exclusively in a Trusted Research Environment”.

I do not think that is sufficient. It is important that the

“new clause amends the dissemination powers of NHS Digital to reflect stated policy and the promises made both to patients and the profession”.

The term “accredited data access environment” is used in my amendment, rather than “Trusted Research Environment” because while research information must be protected, so should information used for planning and managerial purposes.

Amendment 300 relates to shared care records and is aimed at probing

“what progress has been made in relation to the introduction of shared care records”,

the process by which patients can opt out of the record, and the rigour of that process. The potential of shared care records is, of course, a key part of the digital revolution. They allow staff involved in a patient’s care to access health and care records and to provide better joined-up care across different parts of the health and social care system. The problem is that consent for shared care records is basically a postcode lottery. In some places, the patient has not been told what has been created for them and if they do happen to find out, the way they can opt out varies. Some places have interpreted NHSX’s vague information governance guidance to mean a one-stop shop for opting out, whereas other places require patients to go to each different care provider, which is a very difficult and challenging thing to do.

Most people have no idea that the shared care records programme is happening. The application of the national data opt-out, introduced in 2018, is inconsistent in practice and does not prevent many other uses of patients’ data, in respect of which patients already have legal rights to consent. The debacle, twice now, of the Care.data saga shows the importance of getting this right, and of informing the public.

Amendment 304 concerns the soon-to-be-abolished duties of the Health and Social Care Information Centre, to be taken on by NHS England. The clause in question relates to data and the general duties of the information centre. My amendment would

“require NHS England to balance out the needs of research and planning with patient”

opt-out from data use “for purposes beyond direct care”.

My final amendment, 305, is in many ways the most important in this group. Very simply, I believe that patients should be able to see how the NHS uses data about them. My amendment aims to

“allow any patient with a verified NHS login to see a personalised data usage report containing detail of every use of data about them for purposes beyond direct care, and showing how the duties”

of the information centre have been implemented. The only way forward for wider use of NHS patients’ data involves the NHS providing more factual information to patients about those uses. I do not believe that the NHS understands this yet, but I am convinced that we need to make some move down this route if we are really to command the confidence we need to see in the future.

My other amendments, Amendments 302 and 303, really should have been grouped under the Healthwatch debate we had what seems like a very long time ago. The noble Lord, Lord Patel, and I are concerned to see that Healthwatch gets access to all relevant data in order to carry its responsibilities effectively. I hope the Minister will be able to agree to this. I beg to move.

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[Lord Kamall (Con)]

I thank the noble Lord, first for his earlier confidence in my abilities and now for questioning my abilities, as it were, and rightly so. I am very interested in this, and noble Lords will remember that, in the meeting, I discussed what I saw as technical solutions to this. If there are different primary keys, it does not take a complicated bit of code to give equivalence or, in fact, restricted views, as it were, as appropriate. However, once again, those views would have to be agreed across government: while it might seem appropriate for the Department of Health number or the NHS number to be used, that could give access that is not considered appropriate, and we have to get the right balance. I ask the noble Lord, Lord Warner, to revert back to his earlier confidence in my abilities to do something —assuming I am here for some time.

In the coming months, the Department for Education will be providing an update to the existing information-sharing guidance. We believe that provides a real opportunity. One thing I have been quite clear about—for example, in the life sciences vision—is that I want to work with my counterparts and have been working with my counterparts in other departments; in BEIS, in DIT but also with the adviser in No. 10. I fully recognise the Committee’s interest in promoting data protection, ensuring that patients’ data is used appropriately. We have all been on a learning curve over the years as people share their data on such things as Facebook and now realise what happens to that data, how it is used and sold. I alhso refer to the ownership of data: at the end of the day, the data has to be the patient’s data. They have to be quite clear about that ownership and what happens to it.

All processing and sharing of information under Clauses 81 to 87 will meet the requirements of data protection law, including the UK GDPR. An individual’s personal information will be shared only in specific circumstances: where the individual consents to the use of the data, where there is a legal requirement to share or where sharing such data is necessary. I recognise as well that noble Lords, if we get through this, will be having a meeting tomorrow on confidential data and I hope that we can have some more, deeper conversations, not only tomorrow but in future. I have committed previously to meetings: there is a particular issue with one of the meetings and I will explain that to the noble Lords I spoke to previously about it, but I hope that for now, noble Lords will have some reassurance, although perhaps not complete reassurance, and will feel able to withdraw their amendments at this stage.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I am very grateful to the Minister. I am conscious of what my noble friend Lord Davies said about the time we have to debate these complex and important matters. Clearly, we would like to reflect on the Minister’s reply, which was constructive and helpful, although I cannot help recalling meetings that I held as a DoH Minister with the Department for Education Ministers in about 2002, where we were discussing this very issue. My noble friend Lady Hughes—Beverley Hughes—was the Education Minister and, alas, nearly 20 years later, here we are still talking about these issues, which is why we are a little pessimistic about the dive that the noble Lord is about to make.

In the end, this is all about public confidence and the balance between the needs of our health and care system and the benefit that accrues from the exchange of, and access to, information. I am alarmed by the figure for opt-outs—a million—and it puts at risk the integrity of having the shared information system. That is a reflection of the challenge that the NHS in particular faces and I still doubt whether it really recognises just what it needs to do. Making opt-out easier is one way in which we build confidence in the system, and it might mean that fewer people opt out in the future. The current system of making it as hard as possible for people to opt out is not the way to grow confidence. That is probably the most important point that I want to make.

Having said that, I thank the Minister for his constructive response, and we look forward to these further meetings. I beg leave to withdraw the amendment.

Amendment 298 withdrawn.