Health and Care Bill

Lord Kakkar Excerpts

Committee stage
Wednesday 9th February 2022 Lords Chamber

[Baroness Parminter (LD)]

My Lords, I will be brief. I am not a medical expert, as many are in this Chamber, but I have seen at close hand the value of the PHSO, particularly in the report in 2017 into eating disorders. For the reasons that I saw in that report, I have added my name to the amendment from the noble Baroness, Lady Neuberger.

I appreciate the need for a safe space. However, there are two things that I would like to say. First, to follow on from what the noble and learned Lord, Lord Etherton, said, the PHSO does not apportion blame to individuals; it looks at systemic failures. It did this so well in its report on eating disorders, where it looked at failures across the system, rather than at individuals. Therefore, I think that medics, who are extremely intelligent people, will understand that it is not about apportioning blame and so they have nothing to fear—there will be no chilling effect on them as individuals, because it is about the systems.

Secondly, and again as the noble and learned Lord, Lord Etherton said, the way the amendment is structured includes the ombudsman within the safe space, because there are such strong protections; the information given to the ombudsman cannot be released unless you go to the High Court. That is a very strong, ironclad protection, and again, I think medics would understand that and see that it is not something that would diminish the value of the safe space.

The point that I particularly want to make, since others have made the point about the constitution far better than I could, is that if there is this information in the future that the HSSIB has but the ombudsman does not, that will fundamentally undermine public confidence in the ombudsman’s ability to do its job. Let us not forget that the ombudsman is the last resort for members of the public when they have been let down by the NHS. If it does not have information that other people can get, what does that mean for people having confidence in the transparency and value of that process?

That is something that has not been mentioned so far tonight: the confidence of the public in the ombudsman to carry out its constitutional role to protect people and their families when there have been appalling failures, to give them some sense that someone may not have to go through this in the future because the ombudsman has set in train a process that will make the system better.

As I say, I do not know enough about autism—the noble Baroness, Lady Hollins, is not in her place to do it but there are other people who can talk about the role of the ombudsman and the importance of the report that it did on autism—but I know from my involvement with eating disorders that the work of the PHSO in its 2017 report was seismic in working alongside those of us who campaign desperately for changes in the treatment of eating disorders. It has done so much to give some sense of security to individuals and their families who have been let down that things might change. If we do not accept this PHSO amendment, public confidence in anything in the future will be fatally undermined.

[Lord Kakkar (CB)]

My Lords, I support the intervention by my noble friend Lord Patel. In so doing, I declare my own interest as a registered medical practitioner. The issue is a complicated one. There is no doubt that the work of the HSIB is critical to ensuring that we can continue to drive patient safety at the heart of clinical practice.

The safe space is essential for a number of reasons that have been clearly recognised and, indeed, described in this debate. One of the most important features attending the safe space is a recognition of the fact that modern clinical practice is very complicated. It is a question not only of medical practitioners but of a broader team of healthcare practitioners who come together to deliver care, all of them recognising the opportunity for them to contribute to ensuring that lessons are learned where intervention, clinical practice and, indeed, broader health service intervention have failed individual patients in the system.

It is also complicated because there are other bodies that play an important role, such as the ombudsman and coroners, but I believe an infringement of that safe space has the potential to truly undermine the capacity for all involved in the delivery of healthcare to learn from individual experiences, and from system failures more broadly, to ensure that mistakes and inadequacies in the delivery of clinical care and practice are not repeated and that we can continue to improve and deliver higher-quality and safer care for all patients.

The question is how these tensions and inconsistencies are addressed in the Bill. It is important for Her Majesty’s Government to be able to reassure people that the safe space is not undermined; that all healthcare professionals are able to contribute in an open, transparent and confident way to investigations that are established; and that in so doing they can feel confident not only with regard to their own position—of course, their first duty must be to those who for whom they have the privilege to care—but that they can ensure that all others, as part of the team delivering services, are able to come together to contribute to those investigations.

Certainly, it would be wrong to undermine the position of the ombudsman—that would be detrimental. A loss of confidence in the ombudsman service would be a detrimental consequence of this particular Bill. But we have also heard that the coroners’ process is increasingly adversarial, and that undermines confidence. It would undermine confidence in the work of the investigative body if that anomaly were to continue as part of the passage of the Bill.

Ultimately, the focus must be on the interests of patients, and, as currently drafted, the Bill fails to achieve that critical interest. I hope that Her Majesty’s Government will consider amendments in this group and determine how these tensions and inconsistencies can be resolved, ultimately for a purpose that I think all Members of your Lordships’ House agree on: namely, ensuring that we can continue to improve the delivery of our services and health system to ensure not only the highest quality but the greatest safety for all patients attending our healthcare institutions.

[Baroness Walmsley (LD)]

My Lords, from these Benches we welcome the fact that the HSSIB is to be put on a mandatory footing. The intention of the legislation is to create a safe space in which to shine a light on systemic failures in the NHS, and to learn lessons rather than apportioning blame.

The key to the success of this work is the independence of the body and the confidence of both patients and the workforce, so that those providing evidence can give a full and candid account of what happened. Whistleblowers in particular must be protected because there is substantial evidence that, in the past, they have been penalised for being public spirited—that must not continue. My noble friend Lady Kramer’s Amendment 309A would address that situation, and I support her.

However, there are some concerns. We support Amendment 308 because pre-appointment scrutiny is an element of the most significant public appointments. The chair and chief investigator of the HSSIB are posts that protect and safeguard the public’s rights and are vital for the reputation and credibility of the organisation. So I hope that the Minister will accept the amendment.

We support Amendment 308A because there is widespread recognition that the ability to do financial planning over a long funding cycle is valuable for all organisations. The Institute for Government has confirmed that multiyear allocations provide certainty and stability, which is what we want for the HSSIB. Sufficient resources are essential for it to carry out its job; however, if the Secretary of State were to direct the organisation to carry out an additional investigation, it would be only right that appropriate resources were allocated.

Amendment 319, in the name of the noble Baroness, Lady Young of Old Scone, would limit the Secretary of State’s power to direct the organisation to carry out a specified inquiry and report by a particular date. I agree that this could compromise the independence of the organisation, so I look forward to hearing from the Minister why the Government feel that this power is justified.

Amendment 310A, in the name of the noble Baroness, Lady Young, and several other amendments in this group would restrict the powers of the Secretary of State to allow information to be disclosed and would restrict other people, such as coroners, in obtaining information given in confidence. We support these amendments: coroners should not expect the HSSIB to do their work at the expense of risking its own work.

A case has been made by the Parliamentary and Health Service Ombudsman for it to be allowed to have information. As my noble friend Lady Parminter has pointed out, the PHSO does not apportion blame; instead, it identifies systemic failures. It is concerned with systems, not individuals. Amendment 311 from the noble Baroness, Lady Neuberger, would provide a complete iron curtain on the disclosure by PHSO of any information originating from HSSIB, unless there is a High Court ruling. The PHSO has a constitutional duty to achieve justice for patients failed by the NHS.