Health and Care Bill

Lord Hunt of Kings Heath Excerpts

Lords Hansard - Part 1 & Report stage
Monday 7th March 2022 Lords Chamber

Moved by

[Lord Hunt of Kings Heath]

116: Clause 92, page 86, line 30, at end insert—
“(3A) Regulations under this section may not transfer a function as defined in Part 9 of the Health and Social Care Act 2012.”Member’s explanatory statement
Part 9, Chapter 2 of the Health and Social Care Act 2012 lays out the safe haven for patient data across health and social care, required for national statistics, for commissioning, regulatory and research purposes, and for patient care. The amendment seeks to keep these statutory protections in place and ensure that NHS England do not take on this responsibility because of a potential conflict of interest in their role.

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[Lord Hunt of Kings Heath (Lab)]

My Lords, we debated this amendment on patient security of data last week. I wish to test the opinion of the House.

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[Lord Etherton (CB)]

The amendments in this group that are in my name would remove Part 4 in Schedules 13 to 15 of the Bill, all relating to HSSIB. I am very grateful to the Minister and the Bill team for their engagement with me and other Members of the House on these amendments. An alternative, narrower amendment—Amendment 124 in the name of the noble Lord, Lord Hunt of Kings Heath—would simply remove the permission of HSSIB to disclose protected material to coroners.

The basis for these amendments can be stated in four words: it will not work. The safe space within which HSSIB is intended to operate cannot work because, under the provisions of the Bill, HSSIB responds to specific incidents which have, or may have, implications for the safety of patients. Those same incidents may be the subject of an inquest, and senior coroners are entitled under Schedule 14 to require the disclosure by HSSIB of protected material if it is relevant to the investigation being undertaken by the coroner. Once the coroner has that material, he or she is in practice bound to disclose it at the inquest, and the High Court will inevitably order such disclosure if it is relevant to one or more of the questions that the inquest is required by statute to resolve—in particular, in the present context, if it is relevant to deciding how the deceased died. That is because, in the words of a leading Court of Appeal case, the duty of the coroner is

“to ensure that the relevant facts are fully, fairly and fearlessly investigated”

and

“are exposed to public scrutiny”.

Article 2 of the European Convention on Human rights does not add materially to the intensity of that investigatory duty of coroners which already exists under our domestic law. The materiality of Article 2 is only that it imposes the obligation not merely to decide by what means the deceased came to his or her death but in what circumstances.

I am very sceptical that coroners need protected material from HSSIB since they have managed perfectly well without any such right of access to similar material held by the PHSO since the PHSO was established under its founding statutes of 1967 and 1993. Be that as it may, my focus today is on what the senior coroner must do when in receipt of protected material from HSSIB. In short, the material must be disclosed by the coroner.

Although an inquest is in legal terms an inquisitorial process, the ascertainment of the relevant facts is often, as many members of the House will know, highly contentious. Those who have been designated interested persons by the coroner, who include a wide range of family members, may cross-examine witnesses either in person or by representatives. It is inconceivable that a coroner could keep secret from interested persons protected material obtained by the coroner from HSSIB which is relevant to the matters that have to be decided by the inquest. This may have very serious implications for those who have given evidence to HSSIB which is deployed in the inquest, including the possibility of a conclusion of unlawful killing by gross negligence manslaughter.

No medical practitioner could possibly feel confident that, in giving evidence to HSSIB, it is being given in a safe space in view of the need for public disclosure of such evidence by coroners if it comes into their hands and is relevant to the inquest. I beg to move.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I have put my name to the amendments tabled by the noble and learned Lord and have tabled amendments of my own. As the noble and learned Lord said, his amendments simply take out the HSSIB provisions from the Bill, whereas mine take out the reference to senior coroners.

I think we are all united in supporting the concept of HSSIB improving safety in the health service. A stand-alone Bill in 2019 had a Second Reading in which we were beginning to get to grips with some of the issues around the construct of HSSIB and, particularly, the safe spaces concept. This is very important in the health service because of the traditional reluctance of staff to come forward with information about where things have gone wrong because experience has shown that whistleblowers have often been treated very poorly indeed.

I fully support the concept of HSSIB and safe spaces and believe that if it is implemented properly it will lead to improved safety. However, as the noble and learned Lord has so eloquently pointed out, the problem is that the inclusion in the Bill of the coroner’s ability to access this information would render the whole safe space concept unworkable. Staff will simply not trust it if these provisions are left in the Bill.

We are faced with two options. One is to take out the whole of the HSSIB provisions. Ideally, I would support that because it would benefit from a stand-alone Bill, where we could give it the scrutiny it clearly deserves. On the other hand, our job here is to be constructive as a revising Chamber. On that basis, we would be much safer removing the coroner elements and giving the Government a little more time to discuss this further before the Bill goes on to Third Reading and back to the other place.

I think there are ways through. I have been attracted, for instance, to one solution put forward by the noble Baroness, Lady Brinton, in relation to a memorandum of understanding between the noble Earl’s department and the MoJ. We need to discuss that; in order to do so now, I believe we should remove the coroner provisions from the Bill.

[Lord Patel (CB)]

My Lords, I apologise for rising because I know we need to move on but before I speak to this amendment perhaps I may take the opportunity, as I was not here on the first day of Report, to thank the Ministers for listening—and taking action after doing so on many aspects. I thank them all for that. I also thank all those who sent me good wishes. It helped, and I did not realise I had so many friends.

I shall not speak at length on this group. I have my name on both sets of amendments. The reason I supported removing the whole clause was that there are a lot of issues arising, not just the invasion of the safe space. However, I agree with the noble Lord, Lord Hunt of Kings Heath, that it gives the Government another chance if it is confined to removing the coroner provisions. I agree with what has been said: the medical profession particularly, but even other health professionals, will find it difficult if the safe space of what they say confidentially can be invaded, so I support that proposal.

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Moved by

[Lord Hunt of Kings Heath]

124: Schedule 14, page 237, line 41, leave out paragraph 6
Member’s explanatory statement
This amendment would remove the provision allowing coroners to require the disclosure of protected material.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I would like to test the opinion of the House.

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Moved by

[Lord Hunt of Kings Heath]

125: Clause 114, page 101, line 34, leave out subsection (7)
Member’s explanatory statement
This amendment, along with another amendment to Schedule 14, would remove the provision allowing coroners to require the disclosure of protected material.

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Moved by

[Lord Hunt of Kings Heath]

144B: After Clause 155, insert the following new Clause—
“Complaints about care services
(1) The Care Quality Commission (CQC) must establish procedures for investigating complaints of conduct which breaches, or potentially breaches, the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (“the regulations”).(2) In establishing the procedures, CQC must take into account, by regular surveys, the views of—(a) appropriate representative bodies,(b) those representing users and their families, and(c) such other persons or groups of persons as it considers appropriate.(3) Nothing in this section affects the requirement for registered persons to comply with regulation 16 of the regulations.(4) Complaints under this section include those made to CQC about regulated care services by users, their relatives or advocates, staff, or other relevant persons. (5) A user of a service, their relative or advocate may make a complaint directly to CQC.(6) CQC may, after due consideration, redirect a complaint to the registered person where it is satisfied that the conduct complained of does not constitute a breach of the regulations.(7) CQC must—(a) regularly publish a written report which includes examples of breaches of the regulations, and(b) provide guidance to registered persons and others to illustrate how such complaints can be resolved to the satisfaction of service users, their relatives or advocates, staff or another relevant person.(8) CQC must regularly review the procedures that it has established under this section.(9) Procedures established under this section must be made available by the registered person to any person who receives services, or to their relative or advocate.(10) CQC must publish information about procedures established under this section and take appropriate steps to make the procedures available to any person or group who may require such information.”Member’s explanatory statement
The amendment requires the Care Quality Commission to establish procedures for investigating complaints of conduct which breaches, or potentially breaches, the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014.

[Lord Hunt of Kings Heath (Lab)]

My Lords, there is a series of amendments in this group. My amendment does not really relate to the others in the group, but it is about an important issue.

In Committee, I raised the problem that a number of members of the public and the Relatives & Residents Association have brought to my attention: in a minority of care homes, if residents or relatives complain, the homes take retaliatory action in the form of making visits even more restrictive than they currently are and, in some cases, even evict, or threaten to evict, the person on whose behalf the complaint has been made. As I said, this is in a minority of homes— over the past few years I have been impressed by how many homes have continued to provide high-quality care in very difficult circumstances. None the less, this is an important issue.

In 2019, the Relatives & Residents Association was coming across at least one case a week of such intimidatory behaviour. We discussed this in Committee. The Minister said that she did not really think that the department had received much evidence of this, that in any case residents and their relatives and friends should complain to the home in the first instance, and that the Care Quality Commission would also pick up concerns.

This is a very confusing picture. If you go to the CQC’s website, you will see that it states:

“we do not settle individual complaints ourselves, but we still want you to tell us about your experiences of care.”

To most people, that is pretty confusing. If you are worried that a home is going to be intimidatory in its response to legitimate complaints raised, you are hardly likely to have confidence in its complaints system.

Up until about 2008, the CQC did take individual complaints but, due to a funding cut, it stopped doing so, even though, in Scotland, the equivalent body investigates specific complaints, and the predecessors of CQC investigated complaints. We know that there is huge pressure in care homes. We also know that some care homes are continuing extremely restrictive practices around relatives and friends being able to visit. This has become quite a serious problem in which, while they may not be in total lockdown, they come near to it, clearly more for the convenience of the home than for a public health reason. My amendment simply asks the CQC to go back to receiving and dealing with individual complaints in these cases. I hope that the Minister will perhaps be sympathetic to this. I beg to move.

[The Deputy Speaker (Baroness Henig) (Lab)]

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

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With all that, I hope I have given noble Lords sufficient reassurance that they feel able to withdraw or not press their amendments and I commend the amendments in my name.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I am grateful to the Minister, who summarised a variety of amendments, none of which seemed to have much connection at all to each other. I should have declared my interest as a member of the GMC board but, of course, under the rules of the House, I am not allowed to comment on anything to do with the GMC.

On my Amendment 144B, all I would say is that the Minister is absolutely right that the CQC is not there to investigate complaints. The fact is that, if you are a relative of a resident and you are concerned about quality so you complain, you are then threatened that you will not be able to visit if you carry on doing it. You cannot go to the CQC, effectively, the ombudsman is far too remote and long-distance, and the provider does not have a satisfactory complaints system. That is the problem. We still have to find a solution. Having said that, I beg leave to withdraw my amendment.

Amendment 144B withdrawn.