Health Protection (Coronavirus, Restrictions) (Self-Isolation and Linked Households) (England) Regulations 2020

Lord Hunt of Kings Heath Excerpts

Thursday 7th January 2021 Lords Chamber

[Lord Hunt of Kings Heath (Lab) [V]]

My Lords, I am very grateful to the Minister and declare my interests as a member of the GMC. As we enter lockdown, the NHS finds itself in a critical position, with the four Chief Medical Officers warning that it is at risk of being overwhelmed in parts of the country. This week, NHS Providers has given a sobering analysis of some of the pressures. Indeed, since Christmas Day, the NHS has had 5,000 more Covid in-patients, equivalent to filling 10 hospitals. It also has fewer beds in use than this time last year because of the need for tight infection control to protect patients and staff.

Areas with a high Covid load are suffering from a double whammy of high numbers of Covid patients and high levels of staff absence. Trusts are utilising every last ounce of capacity available and are seeking to maximise the number of patients being safely discharged into community beds and being looked after at home. However, there is understandable concern about the impact of this on already tired and exhausted staff who are now being asked to delay leave, work extra shifts and transfer to new roles, for instance to help in critical care.

I would like to hear from the Minister what plans are under way to try to relieve at least some of the immediate pressure. I have asked him before about the nearly 30,000 additional doctors who were brought on to the GMC’s supplementary list; I know there is an issue around the bureaucracy involved, but is there also an issue of philosophy? Is the NHS, per se, reluctant to use this incredible facility that could be made available? Can he assure me that, as we come out of this critical situation, thought is being given to what support needs to be given to the thousands of staff who will inevitably be scarred and deeply affected by what they have gone through?

Health Protection (Coronavirus, Restrictions) (All Tiers) (England) (Amendment) (No. 2) Regulations 2020

Lord Hunt of Kings Heath Excerpts

Wednesday 30th December 2020 Lords Chamber

[Lord Hunt of Kings Heath (Lab) [V]]

My Lords, I remind the House of my membership of the GMC board. We meet while the NHS is under huge pressure, with a record 53,000 Covid cases reported yesterday. Yet the Government’s record has been one of delay, indecision and vacillation.

The errors in the spring were compounded by the Government’s decision to ignore the advice of SAGE given in September for a two-week circuit breaker. Then on 2 December, a consensus statement signed off by SAGE warned that additional mixing to be allowed at Christmas could have a large impact on prevalence. Again, this was ignored by the Government. On 9 December, the Health Service Journal was reporting a rise in admissions. Yet still Christmas plans remained unchanged. On 14 December, the Secretary of State updated the Commons on the new variant associated with the faster spread in the south-east of England. The next day, the Health Service Journal and the British Medical Journal called for the Government to respond to this worsening situation by cancelling their plans to allow household mixing over Christmas and tightening the tiered restrictions immediately. This was ignored. On 16 December, Boris Johnson dismissed concerns raised by Sir Keir Starmer. Three days later, we saw the U-turn which sent thousands of people on to overcrowded trains, exporting the new variant far and wide.

Have the Government finally learned their lesson? I hope that this afternoon they will show they are prepared to act decisively. I also hope that, with the fantastic news today of the approval of the Oxford AstraZeneca vaccine, the Government are able to raise the weekly vaccination rate up to 2 million a week, as Professor Neil Ferguson has recommended. I also hope to hear from the Minister what plans they have to reduce the immediate pressures on the NHS. Are the additional nearly 30,000 doctors who were brought on to the GMC’s supplementary list really being used sufficiently to help the NHS?

Covid-19 Update

Lord Hunt of Kings Heath Excerpts

Tuesday 15th December 2020 Lords Chamber

[Lord Bethell (Con) [V]]

I thank my noble friend for providing this opportunity to scotch that unhelpful rumour. I confirm that there are absolutely no animal components in the vaccine. That point has been endorsed by the British Islamic Medical Association, members of which issued a fatwa earlier this year confirming that the vaccine was halal. My noble friend is right that there are stories on social media that are extremely distracting. We engage with sympathy with those who are concerned about the vaccine, but these stories are completely wrong, and I would like to put them to bed.

[Lord Hunt of Kings Heath (Lab) [V]]

May I continue on the theme of vaccines? Has the Minister seen the very recent survey by King’s College and Ipsos MORI, which found that 46% of all 16 to 34 year-olds say that they have seen or heard messages discouraging the public from getting the vaccine? Alarmingly, 27% of them believe that the real purpose of a mass vaccine programme against coronavirus is to track and control the population. Social media is playing such an important role in vaccine disinformation. Is the Minister really satisfied that all is being done to combat it?

[Lord Bethell (Con) [V]]

My Lords, the noble Lord, Lord Hunt, is right to be concerned. Some of the data we have on public attitudes is of extreme concern and the statistics he has referred to show exactly why we have focused on this area as much as we have. We have worked extremely closely with social media platforms to try to minimise the availability of this material, and we have a large communications programme to engage with those concerned about taking the vaccine. I reassure him that our experience to date has been that when those who are considering taking the vaccine reach the moment of decision, their confidence increases, and I am hopeful that that will continue.

Ockenden Review

Lord Hunt of Kings Heath Excerpts

Monday 14th December 2020 Lords Chamber

[Lord Bethell (Con) [V]]

On behalf of the Chamber, I thank my noble friend for his touching testimony. He is entirely right; there are two CCGs in the local area: the Telford and Wrekin CCG and the Shropshire CCG. They did exactly what they should have done in 2013, launching an investigation into the levels of service at the Shrewsbury and Telford Hospital NHS Trust. It is not clear why the findings of that report turned out as they did; nor is it clear why other interventions, or potential interventions, by the CQC and other regulators did not get to the bottom of the problem. Those questions will be addressed in the second of Donna Ockenden’s reports, in 2021; there has not been time for them all to be addressed in the interim report, but there is much more to go into, and this is undoubtedly one of the important points she will need to address.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I declare an interest as a member of the GMC board. Nothing can excuse the repeated failures and the lack of compassion and kindness exposed by the review. What is so striking is the paragraph in the report that refers to the eight chief executives working in the trust over a period of 10 years and 10 chairs over 20 years —no wonder there is a leadership and governance issue in the trust. I ask the Minister: what on earth have NHS England, NHS Improvement and the CQC been doing? It seems that their interventions, which I suspect have been punitive in nature, have not provided the kind of support that is needed.

Does the Minister agree that we need a wholly new approach to this trust, which gives it high-level attention and provides stability in leadership—not a constant turnover because of an intervention by one or other of the many regulators that can do this—and above all, support from neighbouring services that can provide help? I suspect that this trust needs an awful lot of help to get out of this terrible situation.

[Lord Bethell (Con) [V]]

My Lords, I completely take on board the noble Lord’s observations. It is true that Donna Ockenden’s report alludes to the failure by senior leadership to monitor and intervene where clearly there were problems. However, let us not confuse correlation with causation. This was not caused by a failure of senior leadership, but by a breakdown in the basic management systems and culture of the maternity services within the trust. That should have been addressed by the senior leadership, but it was not necessarily caused by them. I completely endorse the observation of the noble Lord that neighbouring trusts have an important role to play in checking in and benchmarking behaviours. That is a point made very clearly in the Ockenden report, and one that I hope they will step up to.

Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) (No. 2) Regulations 2020

Lord Hunt of Kings Heath Excerpts

Thursday 10th December 2020 Grand Committee

[Lord Hunt of Kings Heath (Lab) [V]]

My Lords, I have every sympathy with the Minister being in isolation and thank him for introducing these SIs. Clearly, Covid-19 testing is a critical part of the response to the pandemic, so these regulations are important in ensuring that there is a robust process in place to ensure transparency, effective monitoring and appropriate accountability.

In proposing the new regulatory regime, the Government have argued that it is necessary to remove barriers to entry into the market and that, by removing the CQC’s responsibility and replacing it with an accreditation process through the UKAS, they will achieve the agility in the market that is required, alongside rigorous safety standards.

I say at once that I am a long-standing admirer of the UKAS, but it is reasonable to ask whether it has the expertise to undertake this important task. Under the CQC, providers of testing services were required to meet the fundamental standards of quality and safety set out in the 2014 regulations. The CQC monitors the quality, safety and effectiveness of care and can take action when it identifies that people using services are at risk of harm. How much of this is UKAS going to be able to do? Does it have the expertise and capacity to do it? What happens if there is a problem? Who is able to intervene and stop the service?

I also ask the Minister about timing, and the three stages he referred to. Clearly, one of the concerns is that the current process takes too long. I note from the UKAS website, which I was referred to by the Library, that it indicates a normal lead-in time of approximately three months to arrange the first assessment visit. Will that apply in this case?

Finally, could the NHS be contracting with the private organisations covered by the regulations? The Minister will be aware of the NAO report a couple of weeks ago on the £8 billion of contracts awarded by the Government using emergency procurement regulations. It found specific examples where there was insufficient documentation on key decisions and actual conflict of interests had arisen, which diminished public transparency. If the public sector could procure those private services, can we be assured that the contractual process will be rigorous?

Coronavirus Vaccine

Lord Hunt of Kings Heath Excerpts

Thursday 3rd December 2020 Lords Chamber

[Lord Bethell (Con)]

The noble Baroness is right about the NHS volunteers. We would very much like to work with those who stepped forward. Their move was extremely welcome and kindly meant. However, the deployment of the vaccine is a precise affair. We are relying on people having to put in long hours—often not at their own discretion or convenience. Volunteers may well play a role, but the backbone and functional aspect of the deployment will rely on professional staff.

I appreciate her conundrum about the military. It is a delicate dilemma. I do not want to live in the kind of country where we turn our back on the military because some people might feel uncomfortable at the sight of uniforms on the streets. We need to build trust with communities. I want to use this moment of the vaccine to build a bridge of trust between those whom the noble Baroness reasonably described and the military. We must not make the mistake of disrespecting the military by turning them away from this important task.

[Lord Hunt of Kings Heath (Lab) [V]]

My Lords, as the Minister who established the MHRA, I strongly endorse the Minister’s congratulations. I pay particular tribute to the outstanding leadership of Dr June Raine. I note what the Minister said about unpaid carers and the justification for not giving them priority but would the Government be prepared at least to discuss this with Carers UK? On care homes and visitor testing, which are mentioned in the Statement, is the Minister aware of calculations by Care England that the infection control fund will not cover the cost of implementing the new testing regime, let alone all the other areas for which the fund is intended? Will the Government consider increasing the fund?

[Lord Bethell (Con)]

My Lords, the support we are giving to social care throughout this period is incredibly important. I should be happy to meet with Care UK to discuss this. I cannot duck the issue. The JCVI has made its prioritisation clear. It is based on thoughtful science, infection rates and the calculation of how best to save life. While I feel compassion for carers, including some in this Chamber, we have to live with this tough decision. I cannot pretend I am going to try to change it. The inspection control fund is generous; we have put a large amount of money into it. If it proves not to be enough, we will be happy to revisit it. Protecting social care through these final few months is a big priority. I should be happy to discuss how we can do this better with the noble Lord at his convenience.

Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020

Lord Hunt of Kings Heath Excerpts

Tuesday 1st December 2020 Lords Chamber

[Lord Hunt of Kings Heath (Lab)]

My Lords, this promises to be a very important debate, going to the heart of how we are handling this terrible epidemic. I do not support the noble Lord, Lord Robathan, but he is right to pose challenges about the Government’s management of the pandemic, which has been less than consistent. In fact, when one thinks of the Prime Minister’s ducking and weaving, the half promises and the hopes that relaxation will be lifted, it is not surprising that it has not inspired confidence among members of the public; I do not think the impact assessment published yesterday inspired confidence either. It looks very much like a cut-and-paste job, strewn with errors.

A much more accurate assessment of where we are was given in the Financial Times yesterday. It was a very sober analysis, which showed that the UK was spending proportionately more money than any other country in fighting the pandemic, and that we were languishing at the bottom of the league table of economic performance and virus deaths. The conclusion of that analysis is that, essentially, our poor performance came about because we allowed the virus to become prevalent in the spring before enforcing social distancing. That meant that the Government were ultimately forced to impose the more draconian restrictions that undermined the economy so grievously.

The noble Lord referred to the economic difficulties that we will face in generations to come. Noble Lords will know that the OBR said in its central forecast last week that the UK economy was set to shrink by 11.3% in 2020 with a deficit set to hit £394 billion. We are spending more than most G7 countries yet suffering a deeper decline in economic output than any of them —and, sadly, this does not seem to have saved lives, as the current total number of deaths per 100,000 people from coronavirus puts us at the bottom of the international league table. When reviewing the data, Jonathan Portes, professor of economics and public policy at King’s College, said the errors came in locking down too late in March, allowing the virus to spread in care homes and then delaying a second set of national restrictions well after most scientists had realised this was inevitable.

It is unforgiveable that the Government repeated their error in the autumn. At the 58th meeting of SAGE on 21 September, it was noted that Covid-19 instances were increasing, even though the effects of schools and universities reopening were only just beginning to come through. At that meeting, SAGE asked for a package of interventions including a circuit breaker. As in the spring, however, the Government resisted decisive action.

The advice from SAGE in the run-up to Christmas has once again been clear. It points to the potential threat of substantial mixing of people over a short period of time, representing a significant risk for widespread transmission. This is not the time to relax our guard or underestimate the pressures on the National Health Service.

I would like to suggest an answer to the questions raised by the noble Lord, Lord Robathan, about the NHS. I understand there have been a series of comments from Conservative MPs that the NHS is now under less pressure than it was a year ago and, essentially, has the capacity to cope with more patients from a relaxation of social-distancing rules. The analysis published over the weekend by Chris Hopson from NHS Providers offered a very strong refutation. As he said, the NHS is actually at full stretch, juggling the demands from Covid-related care with urgent and emergency treatment for other conditions. Stringent infection controls are required, so every hospital has to be divided into three areas. That has reduced their capacity from between 5% and 20% depending on the conditions in each local hospital. We know that demand for theatre space is hugely outstripping supply and that trusts in areas of high infection rates are losing large numbers of staff because of self-isolation, family responsibilities and staff falling ill with Covid.

Much of this would not show up in hospital demand and bed occupancy data, but the best guess is that today’s 85% total bed occupancy is the equivalent of the normal 95% rate when the NHS is probably overoccupied and going at full pelt. Similarly, ICU capacity is not a good indicator of hospital provision because it accounts for only a small proportion of a hospital’s total bed capacity, with many more Covid patients now being treated in general wards. As for the Nightingale hospitals, it would be fair to say that they were always intended as a last resort. Also, they do not have the staff there; staff would have to be diverted from our other hospitals, which would reduce the standard of care there, so it really is a last resort.

Frankly, the NHS is at full stretch. It has not yet hit the real winter pressures. Vaccines, more testing and new drugs offer us the way out. This is the last moment we should relax our guard. I should also say that a semblance of competence from the Government might help.

Coronavirus Act 2020 (Expiry of Mental Health Provisions) (England and Wales) Regulations 2020

Lord Hunt of Kings Heath Excerpts

Wednesday 25th November 2020 Grand Committee

[Lord Hunt of Kings Heath (Lab) [V]]

My Lords, it is a great pleasure to follow my noble friend and I congratulate him on a fine maiden speech. As he said, he brings to your Lordships’ House a wide range of experience in the trade union movement, service on the GLC and as chair of ILEA, where he was a forceful champion of comprehensive education. However, I rather think that his being the first actuary to enter the Lords for more than 50 years will cause the most challenge to your Lordships. He will discover that we float figures around the House like confetti to justify whatever position we happen to take. Happily, this usually goes unchallenged, yet with my noble friend in place I suspect that we will need to be on our mettle and to expect robust scrutiny in the future.

As my noble friend said, it has not been necessary to use the powers in the regulations and their removal is warmly welcomed. Although the regulations are concerned with the requirements under the Mental Health Act 1983, this debate inevitably raises wider issues in relation to mental health provision during the pandemic and beyond.

We know that the pandemic has had a significant impact on the country’s mental health and well-being. What is the Minister’s assessment of this and what measures are being taken to restore services and deal quickly with the backlog of patients? Does he agree with the assessment of Scientists for Labour that there has been a stark decline in the availability of services? Research by Mind from May 2020 reported that the restrictions on seeing people, being able to go outside and worries about the health of family and friends are the key factors driving poor mental health. The Centre for Mental Health predicts that at least half a million more people may experience a mental health problem as a result of the pandemic. Does the Minister agree?

As part of the lockdown in March, dramatic changes were made by NHS mental health services, including discharging patients from in-patient community services and moving to online provision. Has the impact of that been measured? Does he accept that eye contact often plays an important role in cognitive behaviour therapy? We need to reflect on that before assuming that services can always be online in the future. Will the Minister agree to publish a comprehensive plan to restore levels of service, including a thorough assessment of what changes in demand for services are arising from the pandemic?

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

My Lords, the noble Baroness, Lady Warsi, has withdrawn from the debate and so I call the next speaker, the noble Baroness, Lady Fox of Buckley.

Medicines and Medical Devices Bill

Lord Hunt of Kings Heath Excerpts

Committee stage & Committee: 7th sitting (Hansard) & Committee: 7th sitting (Hansard): House of Lords
Thursday 19th November 2020 Grand Committee

[Baroness Cumberlege (Con) [V]]

My Lords, as noble Lords are well aware, First Do No Harm, the report of my review, was published in July of this year. Our ninth and final recommendation was that the Government should set up a task force to implement the other recommendations and the many actions for improvement contained in the report. That task force has not been set up, and the Government remain silent on whether they will agree to do so and, indeed, on the report as a whole.

This proposed new clause would require the Secretary of State to set up a task force within three months of the Bill becoming law. I would much rather not find myself tabling it; I would much rather the Government saw the urgency and had already set up the task force, because it is designed to help the department and the wider healthcare system to do the thinking, to make sure we get the details right and to set out a pathway and a timeline for implementing the report’s recommendations.

I believe it must be a collaborative venture; it should involve not just the department and its arm’s-length buddies but also patients. It would be a missed opportunity were it not to include the representatives of my review, because we have the knowledge and the expertise, acquired over two and a half years of work. To inspire confidence among people who have suffered, it needs to be independently chaired and overseen by a government board.

We feel that the task force is the right way to approach the job of implementing the review’s recommendations. My noble friend the Minister may well tell us that the Bill is not the right place for this measure—that is as may be—in which case, if he were able to reassure me that the task force would be set up separately by the Government, as we envisage in this proposed new clause, and on a similar or shorter timescale, I would be more than satisfied.

These matters are pressing. Our recommendations need to be implemented if we are to help people who have suffered so much already, many of them for decades. We must try to prevent further avoidable harm to more patients and families in the future. The task force is the key to making this happen, and those of us who have run organisations know that they need some discipline and something like a task force—a body that will ensure that the task set out is actually implemented and that it happens. I beg to move this amendment, and I look forward to the Minister’s reply.

[Lord Hunt of Kings Heath (Lab) [V]]

My Lords, it is a great pleasure to follow the noble Baroness, Lady Cumberlege, and to support what she is saying. At the heart of her argument is the concern that, although the Minister said earlier in Grand Committee that the Government are weighing it up with all “seriousness and intent”, the Government are not going to run with the core of the noble Baroness’s recommendations. Because the Government have been so reluctant—very unusually—to respond immediately to the thrust of her report, there remains a lot of uncertainty about how far the Government are prepared to implement it.

Of course, the opportunity given to us with the medicines Bill enables us really to press the Government to be more detailed about what they are going to do. On Tuesday, we had a very good debate on the recommendation for the appointment of a patient safety commissioner. The Minister made a very extensive response, which essentially set out the measures that the Government are taking to embed patient safety throughout the NHS. I shall just mention a few: promoting a positive learning culture at the heart of the NHS; taking steps to help staff to speak up when things go wrong; establishing the Healthcare Safety Investigation Branch to examine the more serious patient safety incidents and promote system-wide learning; appointing medical examiners to provide much-needed support to bereaved families and improve patient safety; introducing a duty of candour, so that hospitals tell patients if their safety has been compromised, and apologise; and commissioning the NHS national director of patient safety, Dr Aidan Fowler, to publish a strategy, which, of course, has been done.

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Moved by

[Lord Hunt of Kings Heath]

122: After Clause 38, insert the following new Clause—
“Medicines and Medical Devices Redress Agency
The Secretary of State must, by the end of the period of 12 months beginning with the day on which this Act is passed, bring proposals before Parliament to establish a Redress Agency for those harmed by medicines and medical devices.”

[Lord Hunt of Kings Heath (Lab) [V]]

My Lords, this is a probing amendment. Although I am a member of the GMC board, I make it clear that I am not speaking on behalf of the GMC.

It is very difficult to move on to the nitty-gritty of a redress agency after the hugely eloquent and moving speech made just now by the noble Baroness, Lady Cumberlege. The Minister said in his response to the noble Baroness that this is not the Bill to respond to the report. What I say to him is that this is the only Bill in town. Medicines and medical devices are at the core of patient safety. He promised that the Minister responsible for patient safety would make a Statement on the report in December. My assumption is that that will be made after the Bill has passed through the House of Lords, and therein lies the problem: we will not be told the Government’s response before we come to the critical Report stage. We just have to work on the assumption that, as the noble Baroness, Lady Cumberlege, said, the Government are not going to embrace her core recommendations. We will therefore have to take action on Report on that basis. I do not see what other course of action the House of Lords can take, unless the Government are prepared to bring forward their Statement so that we can see it before we reach Report.

I have just one other point. I listened to the Minister, and he has been very helpful in setting out some of the initiatives that the Government are taking. However, as with the patient safety strategy—we have been here before—the department seems to have collected all the examples of good practice it can find, bunged them into a report and called it a strategy. That is the problem, because it ain’t a strategy. It does not address the fundamental crunch that the NHS has been run far too hot and is unsafe. When you really tackle that, you have to tackle the issues of resources, work force and targets. That is a huge challenge to the Government, which is why they are so reluctant to go down that course.

What does that have to do with the redress agency? I will try to come to that in a moment. However, I want to ask the Minister whether he can say anything about this recommendation. The noble Baroness, Lady Cumberlege, argued powerfully for a redress agency to be set up on an avoidable-harm basis that looks to systematic failings, rather than blaming individuals, encourages reporting and should provide faster resolution for claimants. She argues that it should be a consensual process rather than a judicial one. Redress would be offered, not awarded, and proceedings under the scheme would be voluntary. She also said that the redress agency would have an important role to play in harm prevention as claims for adverse events would be centralised, enabling data to be provided that would help regulators detect signals earlier.

This is not the first time that a redress scheme has been proposed. Indeed, 17 years ago, an NHS redress scheme was unveiled by the then Chief Medical Officer, Sir Liam Donaldson. It included no-fault compensation for babies born with severe brain damage, and payments of up to £30,000 without litigation for patients whose treatment went wrong. Under the scheme, parents would get a managed medical care package for their child, monthly payments for other care of up to £100,000 a year, lump sums for home adaptations and equipment of up to £50,000, and compensation for pain and suffering capped at £50,000. The other arm of the redress scheme, for smaller negligence claims, would have provided a package including an explanation and apology, remedial treatment, rehabilitation and care where needed and financial compensation up to £30,000 where authorised. Legislation followed in 2006, but 14 years later it has, as I understand it, yet to be implemented. The aim of the Act was to provide a genuine alternative to litigation, but it has languished on the statute book. I would be grateful if the Minister would tell me whether that is it and whether the Government do not think it the appropriate way forward.

I also ask the Minister to say something about the increase in negligence costs to the NHS. The latest annual report from NHS Resolution shows that the total cost of payments made in respect of clinical negligence in 2019-20 was £2.32 billion. Of that figure, a substantial amount was paid in legal costs: nearly £500 million to claimant legal costs and £143 million for NHS legal costs. We know that it often takes years for cases to be resolved.

Is the Minister confident that we are getting this right? Does the noble Baroness’s recommendation not deserve examination, at least? I beg to move.

[Baroness Cumberlege (Con) [V]]

My Lords, it is hard to follow the very well-researched contribution to this whole issue from the noble Lord, Lord Hunt. It was interesting to hear about Sir Liam Donaldson’s report, which got on to the statute book but was not implemented. Is that not a disgrace? It is really dreadful.

Very near to where I live is the centre for Chailey Heritage, now the Chailey Heritage Foundation, for children who suffered through their mothers having taken the drug thalidomide. I chaired its governing body for years. It is interesting that that redress system still continues; it is supported by a trust, which inherited the disaster of the medication, and it has honoured that and receives government support. So we have examples where this is working.

The redress agency that we recommend is really about the future. My amendment is about the present. We know that so many patients and their families have suffered such harm, and we need a system that is more compassionate and a much more certain route for obtaining redress to compensate them. We are talking not about compensation as such, but about redress. You have to go to the courts to achieve compensation, and it is a very miserable experience—we have heard that from patients. It also takes a very long time and, as the noble Lord, Lord Hunt, said, very often the people who benefit most are the lawyers.

We are talking about Primodos, sodium valproate and pelvic mesh—the three interventions through which people have suffered avoidable harm. The suffering they endure now is terrible. All three have caused and are causing avoidable psychological and, of course, physical and neurological harm. These families really need a little help with the conditions they are living with. Indeed, some are looking after some very disabled children. We do not believe that their needs are adequately met by the healthcare, social care or benefits systems. Some of these people are actually very elderly—the parents of the children who took Primodos. It would be a scandal if those people were to live their lives unable to access the redress they need and the outcome they deserve. After all, the harm was caused not by them, but by the state.

In the case of these three interventions, there is a moral and ethical responsibility to provide ex gratia payments in respect of the avoidable damage that occurred. That responsibility falls on the state and the manufacturers of the products in question. The schemes that would be established through this proposed new clause would provide discretionary payments, and each of the three schemes would have tailored eligibility criteria.

The payments the schemes make would not be intended to cover the cost of services that are already available free of charge, such as healthcare and social security payments. They would be for other needs—for example, the cost of travel to medical appointments. We have met and talked to many of those people, and they have said that it is a significant cost burden. The payments might be for respite breaks or emergency payments where a parent has had to stop work to cover care. These redress schemes would not be in place of litigation, nor will they be to deliver compensation. People should retain the right to take legal action if they wish to obtain compensation—of course they should; that is in our law. The schemes I am talking about should be set up in such a way that they can be incorporated into the wider redress agency that the noble Lord, Lord Hunt, spoke about, once it is established.

These people have suffered for decades. They have tried to obtain compensation through the courts. That action has failed in the case of valproate and Primodos, although I am aware that a new Primodos action is under way. I have been told by solicitors that, in fact, the report does not in any way affect that action. There have been some awards and settlements in the case of mesh, but legal action takes time, as the noble Lord, Lord Hunt, said. It creates added stress and much more personal cost can be involved.

I believe that a measure of a decent society is how well it looks after those who have suffered harm, especially when that harm was avoidable. From having met many hundreds of people who have suffered and heard from many more, I am clear that help is needed and deserved. People should not be made to wait any longer. I hope my noble friend the Minister will agree with that.

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[The Deputy Chairman of Committees (Lord Lexden) (Con)]

My Lords, I have received no requests to speak after the Minister, so I call the noble Lord, Lord Hunt of Kings Heath, to conclude the debate on his amendment.

[Lord Hunt of Kings Heath (Lab) [V]]

My Lords, I think this has been an excellent debate. I fully accept, as my noble friend Lady Thornton said, that my Amendment 122 covers a much wider area than Amendment 123, which focuses on the specific issues relating to the report of the noble Baroness, Lady Cumberlege.

My Amendment 122 was definitely a probing amendment, because the current situation in relation to clinical negligence is wholly unsatisfactory. It combines the bureaucracy and slowness which the noble Baroness, Lady Bennett, referred to in relation to Windrush and she is absolutely right to draw parallels. It combines a hugely frustrating process for patients and their relatives with a system that increasingly becomes ever more expensive for the NHS. The noble Lord, Lord Bethell, was not going to be drawn on these wider considerations, but the noble Lords, Lord Lansley and Lord O’Shaughnessy, have both dealt with these—we know that it is a very complex issue, but surely, at the end of the day, we have to recognise that the current system simply is not working.

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[Lord Hunt of Kings Heath (Lab) [V]]

My Lords, I hesitate to disagree with my noble friend, but I think it is on page 34—but then, of course, I might have an old edition of the Bill as well, just to confuse things.

The reason for supporting this is the unease about provisions in Clause 27 and Schedule 1. The Delegated Powers Committee concluded that

“in the absence of a full justification … allowing the ingredients of criminal offences … and … the penalties for existing offences to be set by delegated legislation”

amounts to “inappropriate delegations of power”. The Constitution Committee said:

“We have concluded previously that ‘the creation of criminal offences through delegated powers is constitutionally unacceptable’, save for exceptional circumstances. The delegated powers to create and adjust criminal offences in this Bill are constitutionally unacceptable.”


The Minister has made certain modifications, but I think the general principle still holds good.

The guidance to be issued under paragraph 13 of the schedule is likely to be extensive, including: the imposition of a monetary penalty; the notices to the person it is proposed to fine and the grounds for so doing; the representations that have been made; the appeals process; and the consequences of non-payment. As my noble friend said, lines 9 and 10 on page 34 provides that

“The Secretary of State must have regard to the guidance or revised guidance published under this paragraph”.


Given that the Secretary of State is the person publishing the guidance, it is puzzling that he or she is required only to “have regard to” the very guidance that he or she has published—hence my noble friend’s amendment to require the Secretary of State to “act in accordance with” the guidance. I look forward to hearing from the Minister as to why the Bill is drafted to give the Secretary of State wider discretion on that.

[Lord Patel (CB) [V]]

My Lords, I speak very briefly to support this amendment. The noble Baroness, Lady Thornton, and the noble Lord, Lord Hunt of Kings Heath, have covered the argument extremely well. As the noble Lord said just now, the guidance is produced by the Secretary of State but, when you look at it in practice, it says that the Secretary of State “must have regard to” the guidance—that is, can take note of it but does not have to follow it.

I am a doctor and am used to following guidelines. If I do not follow the guidelines, I am liable to be reported; if I do not follow them for any reason in the management of a patient, I am expected to write down as to why I did not follow them. I am not expected to take note of it or have regard to it—I am expected to follow it. The amendment proposed by the noble Baroness, Lady Thornton, addresses exactly that point: why is the Secretary of State not asked to follow the guidelines which he or she drafted?

Department of Health and Social Care: Unpaid Advisers

Lord Hunt of Kings Heath Excerpts

Tuesday 17th November 2020 Lords Chamber

[Lord Hunt of Kings Heath (Lab) [V]]

My Lords, yesterday former Conservative Attorney-General Dominic Grieve described the Johnson Government as presiding over

“the disappearance of any standards of conduct at the heart of government”,

and said that the cronyism of administrative decisions had communicated to young people in particular a sense of government as corrupt. Given that, can the Minister be surprised that there was concern over the conduct of Mr Pascoe-Watson after he had ceased to be an adviser?

[Lord Bethell (Con)]

I always take the words and advice of former Attorney-General Dominic Grieve extremely seriously, and I value his opinion greatly.