Health and Care Bill

Debate between Lord Kakkar and Baroness Walmsley

Committee stage
Wednesday 9th February 2022 Lords Chamber

[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.

Health and Care Bill

Debate between Lord Kakkar and Baroness Walmsley

Lords Hansard - Part 3 & Committee stage
Tuesday 18th January 2022 Lords Chamber

[Lord Kakkar (CB)]

My Lords, I intervene briefly to support the amendment moved by my noble friend Lady Finlay. In so doing, I would like to put a question to the Minister. In the context of contemporary, 21st-century delivery of healthcare, how can it be justified that palliative care is not considered part of the continuum and has to be funded in a different way? How can it be that those specialists delivering palliative care are unable to integrate it into the broader considerations of delivery of healthcare in their institutions and systems? It seems completely counterintuitive that that continues to be the position in our country. If Her Majesty’s Government were minded not to support these amendments, it would be helpful to understand how they justify that position and justify differentiating palliative care from other services that are rightly fully funded by the state.

[Baroness Walmsley (LD)]

My Lords, I feel honoured to be a fellow Member of this House with the noble Baroness, Lady Finlay, because of her professional and political work in raising this issue before your Lordships.

I want to use a word that has not been used yet in this debate, and that word is “fear”. The noble Baroness, Lady Fraser, nearly used it when she said that people are scared. Anybody who has read the reports that say that only 50% of people who need palliative care receive it will feel fear: “Is it going to be painful?”, “Am I going to be able to bear it?” and, on the part of the carer and family members, “Is it going to be terrible for my loved one?”, “Am I going to be able to help them?”, “Am I going to be able to cope?” The physical pain is part of it, but, as the noble Baroness, Lady Hollins, said, the fear and the psychological distress make things a great deal worse. At a time when it is in our power to give people a good death, we are not doing it; that is a disgrace.

Health and Care Bill

Debate between Lord Kakkar and Baroness Walmsley

Committee stage & Lords Hansard - Part 1
Tuesday 11th January 2022 Lords Chamber

[Baroness Walmsley (LD)]

My Lords, a duty to establish parity of esteem between physical and mental health was, of course, inserted into the Health and Social Care Act 2012 at the instigation of the noble Baroness, Lady Hollins—if I remember rightly, we on these Benches were right behind her. That is not reflected in this Bill, as she said, despite the fact that the importance of addressing mental health issues has been so amply demonstrated by the rise of these problems during the Covid pandemic. The shortage of services to address them is of great concern—services which were already under stress before the pandemic started because of underfunding over many years.

Although the insertion of parity of esteem into the 2012 Act was welcome and significant, no legislation is enough without the resources in cash and people to make it happen. They have not been forthcoming in the amounts needed to match the growing demand. Like the noble Baroness, Lady Hollins, and my noble friend Lady Tyler, I too have heard concerns in the sector that the share of resources that are currently available might be cut over the next three years under the Government’s plans.

The situation is not good. Waiting lists, particularly for children and young people, have been growing. I understand that the average waiting time for a young person for a first appointment is something like 13 weeks and 18 weeks to get to a referral for treatment. It is a bit of a postcode lottery, because some young people get there quite quickly and some wait a very long time. The noble Lord, Lord Warner, is absolutely right that it takes a great deal longer for those waiting for a diagnosis of autism.

According to research from the Resolution Foundation, in 2000, 24% of 18 to 24 year-olds had a common mental disorder. That was the lowest rate of any age group at that time. By 2018-19, that figure had grown to 30% and, astonishingly, by April 2020 it was up to 51%. So, as we set up the new integrated care system, it is essential that we restate the equivalence of mental and physical health. We know, as the noble Baroness, Lady Jones, so eloquently reminded us, that each affects the other, but it is not enough to assume that that is understood in this legislation. It must be clearly stated in both Clause 16 and Clause 20, where the noble Baroness, Lady Hollins, seeks to add it to the duty of the ICSs to secure improvement in the quality of services. We support her, of course.

Perhaps at this point I will mention my little amendments in this group. Amendments 48 and 49 are two of those little amendments that would insert the words “physical or mental” illness into Clause 16, which specifies a list of health provision that the ICB must make for its population. Other noble Lords would insert similar amendments into other places in the Bill. I support all of them.

Amendment 76 would also insert parity of esteem into new Section 14Z38 in Clause 20, which refers to the duty to obtain appropriate advice. We put it there to emphasise the fact that mental health is a very specialised area, and often very good advice can be obtained from small community or not-for-profit social enterprises that deliver mental health services in the community where people work and live, often to very marginalised groups. Large organisations such as an ICS might very easily overlook such good advice about what is needed and where to put it. I support the amendment spoken to by my noble friend Lady Tyler that the triple aim must become a quadruple aim. Mental health needs to go right at the core of what we are trying to achieve.

There is an enormous and growing number of people in the country with poor mental health. The NHS cannot just treat its way out of the problem. There needs to be more focus on public mental health, much of which is addressed by the small community groups I just mentioned, the role of which we will deal with later with Amendment 148 and others. But without the specific acceptance of the parity of esteem duty in the Bill, there is a danger that the diagnosis, prevention and treatment of mental ill-health will continue to take a back seat. It must be in the statute.

[Lord Kakkar (CB)]

My Lords, I support the objectives of this group of very important amendments. In so doing, I remind noble Lords of my interests as chairman of the King’s Fund and of King’s Health Partners. I have seen this work directly in King’s Health Partners through a programme defined as Mind & Body, which proposes to promote pathways of care across the entirety of our health economy that look in equal measure at physical and mental health for all patients, irrespective of their principal clinical presentation. Initiatives such as that important programme could be brought to fruition only because of the emphasis in the 2012 Act regarding parity for physical and mental health. It demonstrates very clearly that legislative intervention can have a profound impact. I very much join in congratulating my noble friend Lady Hollins on her relentless commitment to these issues in your Lordships’ House over the past 10 years, which have had and will continue to have a profound impact.

It therefore seems counterintuitive for Her Majesty’s Government, in bringing forward this important legislation, to move away from the opportunity to emphasise the importance of this parity. Is it sensible to move away from this position? Why not use the opportunity afforded by this important legislation to emphasise once again the importance of parity between mental and physical health in every respect—not only funding but the organisation and supervision of services and the construction of organisations within the NHS—so that, step by step, we can achieve what every Member of your Lordships’ Committee who has spoken in this debate has emphasised?

Will the Minister, in replying to the debate, reassure your Lordships that not proceeding with these amendments does not undermine what has been achieved so far and that what is proposed in the Bill can without the amendments achieve the continued momentum and concentration of focus on this vital issue, to ensure that we continue not only to develop mental health services but to ensure that they can be integrated more broadly into physical health, and that physical health services can be developed to ensure that the mental health consequences of physical conditions can also be appropriately addressed? In taking this holistic approach, we will achieve the objectives of better well-being and health for all our fellow citizens—one of the most important aspects of the triple aim.

Medicines and Medical Devices Bill

Debate between Lord Kakkar and Baroness Walmsley

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Monday 19th October 2020 Grand Committee

[Baroness Walmsley (LD) [V]]

My Lords, I support Amendment 5, which would insert the words

“objective of safeguarding public health by promoting the availability and supply of human medicines”.

While the purpose of the Bill is to bring some sort of order out of the chaos of Brexit, it is vital that we put those words up front. In the first words on page 1, before Clause 1, the purpose of the Bill is described as

“the protection of health and safety, in relation to medical devices”.

Why does it not say, “in relation to medicines and medical devices”? That is why we need Amendment 5.

Government Amendments 2 and 7 are weak, in my view. For example, the words “promote health and safety” in Amendment 2 and “considering whether they would” in Amendments 7 and 72 are well meaning and better than the original but, I dare to say, legally useless.

The word “promote” also appears in government Amendment 68. In contrast, the noble Lord, Lord Lansley, and the noble and learned Lord, Lord Woolf, use the much stronger word “safeguard” in their Amendment 70, which I support. I also support their probing amendment for clarification in Amendment 76 that therapeutic practice is also included. I will be interested to hear whether the Minister can explain whether this is needed or, perhaps, not.

[Lord Kakkar (CB) [V]]

My Lords, I support Amendments 5 and 70 in the names of the noble Lord, Lord Lansley, and the noble and learned Lord, Lord Woolf. I seek further clarification on the Government’s purpose regarding the amendments proposed by the Minister.

First, what is the rationale for moving away from the current basis on which regulations in this regard exist, which states the purpose of safeguarding public health? Why do the Government not think that appropriate as the basis for legislation for medicines and medical devices? It has been the basis on which regulations have previously existed in domestic legislation and it seems counterintuitive to move away from that purpose, as so clearly explained by the noble Lord, Lord Lansley.

Secondly, there is this question of whether there should be an objective or a subjective test attending the purpose of legislation, all parties having agreed that it is of benefit to move away from simply having a power to clearly defining a purpose. There has been considerable debate and discussion about what is considered the frequent use of judicial review now and how in some way it undermines the position of Parliament and is less than helpful more generally in our country. It seems therefore intuitive for a Government who have concerns about what is sometimes considered excessive use of judicial review to try to provide legislation that would make it less necessary and less frequently turned to.

The noble and learned Lord, Lord Woolf, made the point that clarity is essential. Surely an element of clarity would be to have in place an objective test—to safeguard public health—rather than, as currently, merely being “satisfied”. The need that the Secretary of State can make regulations if he is satisfied, as we have heard in this debate, is much more subjective and therefore must be open to much more frequent challenge.