Health and Care Bill

Lord Lea of Crondall Excerpts

Lords Hansard - Part 1 & Committee stage
Monday 24th January 2022 Lords Chamber

[Lord Warner (CB)]

Is the noble Baroness aware that, during the arrangements in which there were contracts with the independent sector to provide elective surgery in independent treatment centres, the quality of that care was both reviewed by the then Chief Medical Officer, Liam Donaldson, and looked at, with evidence taken, by the Health Select Committee? They found that claims about shortcomings in these private facilities were exaggerated—their provision of services was equally as good as that of the NHS facilities.

[Lord Lea of Crondall (Non-Afl)]

My Lords, I shall briefly support what has just been said by the noble Lord, Lord Hunt, and the noble Baroness, Lady Finlay, with a personal anecdote. When I recently needed an MRI scan on my neck, the doctor said, “Well, of course, you can have it done quite quickly if you go private.” She then added, “In case you are worried about doing that, it takes the pressure off of the health service.” The point made by the noble Lord and noble Baroness is exactly that it does not take the pressure off the health service; for the previous few weeks, these doctors have been working for the National Health Service. I hope that the Government will take this on board and will not start using the argument that going private takes the pressure off the health service.

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[Baroness Harding of Winscombe (Con)]

I am sorry—the noble Lord, Lord Patel, is here. I meant to say the noble Lord, Lord Bethell. I apologise for my senior moment.

I will begin again. I rise to speak on behalf of my noble friends Lady Blackwood and Lord Bethell, neither of whom is in their place. I should, out of an abundance of caution—particularly given how well I have spoken so far—declare the interests of both my noble friend Lady Blackwood and me, as the present and past chairs of Genomics England.

In speaking to Amendments 79 and 196, we wish to support the noble Lords, Lord Sharkey, Lord Kakkar and Lord Patel, in calling for trusts and integrated care boards to have a duty to conduct research and to report on the steps they have taken to deliver it. We know that there are excellent research-active NHS organisations in the UK, ranging from our acute tertiary university hospitals, such as Oxford, to our district general hospitals, such as Portsmouth.

There are many initiatives to promote research, such as Saving and Improving Lives: The Future of UK Clinical Research Delivery, which sets out a bold and exciting vision. In particular, my noble friends and I await with interest the Find, Recruit and Follow-up service, which plans to use digital tools to identify patients who may be suitable subjects for research. When speaking to patients, one of the refrains that we all hear most often is that they find it hard to find suitable clinical trials, and we welcome any initiative that can make it easier for patients to take part in clinical research.

As well as supporting patients in finding trials, we need to make it as easy as possible for them to participate. In some cases, the pandemic has accelerated a move towards remote monitoring tools—wearables and other devices that allow individuals to participate in trials while reducing the number of visits they have to make to hospitals. We welcome the NIHR remote trial delivery toolkit, which makes recommendations on how some of these positive practices can be continued and so broaden participation and promote patient retention in a beneficial way.

My noble friend Lady Blackwood, as a rare disease patient herself, knows that clinical research is often the only way for patients to get access to innovative treatment. Yet we are saddened to see, in the annual NIHR publication on initiating and delivering clinical research, that some trusts are still not delivering trials every quarter. We continue to see a large disparity in the number of trials being offered in each trust, which leads to a postcode lottery. Those individuals fortunate enough to be under the care of a research-active hospital have an increased chance of being recruited on to a trial, and therefore have better outcomes than patients under the care of less research-active hospitals.

Patients admitted to more research-active hospitals also have more confidence in staff and are better informed about their condition and medication. And as the noble Lord, Lord Davies of Brixton, has said, there is very clear evidence that research-active trusts deliver better outcomes—in part, I am sure, because of their ability to retain and energise staff, as the noble Lord, Lord Kakkar, has mentioned.

The last couple of years, however, have been challenging for the health research community. In 2020, the Association of Medical Research Charities predicted a £320 million shortfall in research spending, forcing many medical research charities to make tough choices about which projects to prioritise. Data also suggests that the UK has been slower to return to pre-pandemic levels of commercial clinical research compared with other European countries.

The Life Sciences Vision sets out the Government’s objective to be a science superpower, but this requires research to be embedded in every part of the NHS, including primary, community and mental health services. That will happen only if NHS organisations, including the new integrated care boards, have a duty to conduct research, as these amendments propose.

In addition, we all know that what gets measured gets done, which is why these amendments place a duty on trusts and ICBs to report the steps that they are taking to deliver clinical research in their annual reports or forward plans. This not only enables progress to be tracked but helps patients understand what research is being done in their area and will encourage NHS organisations to invest in research that meets the needs of their local communities and—

[Lord Lea of Crondall (Non-Afl)]

I am sorry to intervene. I am fascinated by everything that is being said but, given the cliché that money does not grow on trees, I am a bit surprised that we have not heard as much as we might have about international collaboration. Is that not a big deal? How would that be measured, as it were, as compared with the issues that the noble Baroness, Lady Harding, has already raised?

[Baroness Harding of Winscombe (Con)]

I personally believe that international collaboration and engagement in research across all parts of the United Kingdom go hand in hand. It should not be either/or; it is a combination, and we need to do both. The amendments that I am speaking to call for every NHS organisation to participate and become research active.

Finally, and briefly, I urge the Minister to embrace this opportunity to embed what is genuinely cross-party support for clinical research in legislation. We all want to put the UK on the path to being the best place in the world to participate in health research. We will do that, as the noble Lord suggests, by collaborating internationally, but we will address the health inequalities that we have all spoken about over the many days of Committee only if all NHS trusts have a duty to conduct research.

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[Baroness Masham of Ilton (CB) [V]]

My Lords, I am very supportive of this group of amendments. There cannot be a safe, effective National Health Service without an adequate, well-trained workforce in hospitals, in care homes and for people who need care in their own homes, as well as adequate GPs and community staff.

At this time, it is more difficult than ever to recruit, as so many nurses and carers left to go back to Europe and the world has been struck by the coronavirus. Many people are off sick with the virus or isolating, and some are tired with stress and overwork. It is not helped when the relations and partners of patients have not been allowed in to help disabled and elderly patients in hospitals. They can help with feeding and giving patients extra help and support, which staff do not have the time to do.

The Royal College of Nursing says that the Bill gives

“no assurance that the system is recruiting and training enough staff to sustainably deliver health and care services.”

As has been said, there should be forward planning for the workforce. For example, the biggest barrier to improving early diagnosis of bowel cancer is long-standing staff shortages in endoscopy, pathology services and gastroenterology, with 43% of advertised posts not being filled. This is really serious. With so many posts across the country not being filled, a variety of specialties are so badly needed. There must be more training opportunities. Without adequate training, there will be no hope of filling the unfilled posts.

It would be very welcome if the Government brought some amendments on Report to help make the recruitment of staff, who are so desperately needed, more successful. Without enough staff, all the important things your Lordships have been discussing today, such as innovation and research, will be unachievable. A thriving workforce is absolutely essential.

[Lord Lea of Crondall (Non-Afl)]

My Lords, manpower planning requires a bit of definition. In my role at the TUC over many years, one of my functions was to look after all the sectoral committees. The most assiduously attended was the health services committee. As we all know, there is an enormous number of specialities in the health service.

When it comes to manpower planning, why did people not press the right button? I am afraid that there is no button to press. In 1947 Aneurin Bevan found that with the British Medical Association there was no wish or desire on the part of the doctors to be part of a structure where a button could be pressed—as might be true in a great corporation—to make sure that the plan for manpower was implemented. As we all know—I will be corrected by someone in this Committee if I have got it wrong—GPs are not appointed by the National Health Service in the way you would appoint somebody to be in charge of an oil refinery in the oil industry or whatever.

It would be useful if the Minister—and I have given notice of a question along these lines—could say what the subjects of the workforce strategy in the Bill would be. How would it be funded? What would be the timescale for introducing it? How often would it be updated? The analysis would have to include such questions as reliance on locums; anecdotally, they can prove very expensive. Will there be targets and associated timescales for the reductions in vacancies?

All of this is easier said than done. I think the remark can legitimately be made that money does not grow on trees, so how are we going to proceed on this? I do not think that everybody who advocates manpower planning is totally naive. Jeremy Hunt in the other place advocated something very much along the lines of what we are talking about now. The focus of the question was on whether five years, 10 years or some other number of years was far too long. There should be reviews every two years or on some shorter timescale.

I confess that, if I were the Minister, I would say, “You’re begging the question of whether we know what we’re talking about when we talk about manpower planning”. So I would be glad if the Minister, in giving some thought to this debate, would care to write to noble Lords—not a White Paper or anything like that—to answer specifically how this thing would work. It is an excellent initiative, and I very much welcome the fact that there is a clause in the Bill providing for this manpower planning.

Edward Argar, for the Government, said that substantial work was ongoing, and referred to a 15-year strategic framework for the health and social care workforce, so the beginnings of creative thinking in this area have gone some way. I congratulate the Government on that. I am afraid, however, that until we get Ministers to be a bit more explicit about what we are talking about, and how the workforce plan will work, this will be a missed opportunity.

In conclusion, I acknowledge that there are a number of sacred cows in this area—and unfortunately, many of those sacred cows are incompatible with each other. It would be useful if the Minister acknowledged that we are asking the right questions. That, obviously, is the necessary precondition to finding the right answers.

Health and Care Bill

Lord Lea of Crondall Excerpts

Lords Hansard - Part 2 & Committee stage
Monday 24th January 2022 Lords Chamber

[Lord Kamall (Con)]

You can tell the noble Lord used to have my job, because he clearly anticipated the exciting bit—perhaps not exciting, but more practical—I was coming to. It is quite clear there is a strength of feeling on this issue—

[Lord Lea of Crondall (Non-Afl)]

As a slight modification of the question that was put, one way that Ministers conclude such debates is by saying that they will write to noble Lords on specific questions, to make sure they have been dealt with.

[Lord Kamall (Con)]

We recognise the strength of feeling in this House and in the other place. This will clearly require more work and more discussions. In that spirit, I ask the noble Baroness to withdraw her amendment.

Ambulance Queues: Health Outcomes

Lord Lea of Crondall Excerpts

Thursday 13th January 2022 Lords Chamber

[Lord Kamall (Con)]

Given that it was identified that there were particular pressures on 29 trusts across 35 sites, extra resources have been targeted and teams have made site visits to work out, for example, the flows in those hospitals, and to make sure that they deal not only with the immediate issues that those departments face but also with the wider system issues. For example, as I have mentioned, sometimes patients cannot get hold of doctors and go to A&E as a substitute because they want a face-to-face appointment. We are looking at a number of those wider issues. We announced £55 million of winter funding for all ambulance services and have boosted staff numbers by 700, including for the availability of the ambulance fleet, through a £4.2 million investment to improve times. We have also invested nearly £2 million to support the well-being of front-line staff during these pressures; they have experienced increased pressures, so we must make sure we look after them as well.

[Lord Lea of Crondall (Non-Afl)]

My Lords, is there a breakdown on the difference between physical resources in hospitals and the shortage of staff?

[Lord Kamall (Con)]

I am not sure whether there is a breakdown. As my noble friend said, sometimes I have to read out what is in the pack and sometimes I freelance, as I am sure many will appreciate—or maybe will not appreciate when I divert from the government line. But I will endeavour to find out whether those stats are available.

Coronavirus

Lord Lea of Crondall Excerpts

Monday 9th March 2020 Lords Chamber

[Lord Bethell]

Enormous effort is being put into increasing the number of intensive care facilities, particularly in the area of respiratory support. Different types of respiratory support unit are being put in place and the number is increasing on a multiple rather than an arithmetic scale.

It is not just the kit that is an issue but the people needed to operate it, because these units and the respiratory machinery are extremely technical. We are putting enormous effort into ensuring that the right people are in place to work the machines.

[Lord Lea of Crondall (Non-Afl)]

My Lords, can the Minister shed further light on which countries research vaccines and how this can be agreed internationally? Are there difficulties with the process by which this division of labour is carried out? There could be a lot of duplication and not sufficient single-minded co-ordination.

[Lord Bethell]

The noble Lord asks an important question about the critical element of the research phase of our plan, and we have announced £46 million of additional funding for this area. Britain’s scientists are providing a leading contribution to the international effort. That effort is being conducted in an extremely transparent, open source fashion, with important details on genomic material being shared widely and openly. My understanding is that it is being done in a spirit of public collaboration.

Coronavirus

Lord Lea of Crondall Excerpts

Monday 3rd February 2020 Lords Chamber

[Baroness Blackwood of North Oxford]

There is indeed. The first Urgent Question I replied to a few days ago was when we introduced the enhanced monitoring on planes, meeting each flight coming into Heathrow from Wuhan; they come in three times a week. That information and advice was given to individuals on those flights and public health officials met them from that day. If individuals came in before that day, they would not have received advice; contact tracing has been under way for those people. Subsequently, British nationals wishing to return home have been in contact with the Foreign Office and flights have been arranged to bring them home. I think that is the flight which the noble Lord is referring to. As a precautionary measure, quarantine has been arranged for those individuals for 14 days, to ensure that we manage any potential risk as effectively as possible. This is based on the advice of the Chief Medical Officer, from the data which has subsequently become available, since evidence is evolving regarding the risks associated with the Wuhan coronavirus.

[Lord Lea of Crondall (Non-Afl)]

It may seem rather indelicate at this stage to talk about the wider economic impact within China and on Chinese trade with the rest of the world, but, as was mentioned in Questions earlier, might it be useful if that dimension was included in future reports? A lot of businesspeople will be putting off trips and so on. There may need to be new lines of credit, especially at the present juncture. Of course, in China everything is coming to a halt in terms of internal transport and so forth. To show our interest in what we might call the economic and social developments in China, would it be useful to have some reporting on how the rest of the world is dealing with all these other non-medical dimensions? I think the Chinese and a lot of our businesspeople would appreciate that so that we do not jump the gun. People will be desperate to get back to business, which is not yet timely.

[Baroness Blackwood of North Oxford]

The noble Lord will not be surprised to hear that it is important to put the public health response first and foremost when it comes to a risk of this kind, and that is exactly what is happening in this case. The actions that the UK has taken in this regard have been appropriate, proportionate and commensurate with the data and evidence that have come forward, and they are based on clinical evidence. Having said that, he is absolutely right that an economic impact as a result of quarantine measures taken by China and others cannot be avoided, and it is right that we should consider the impact for UK businesses. I am sure that consideration will be given to what can be done about that.

European Qualifications (Pharmacists) (Amendment etc.) (EU Exit) Regulations (Northern Ireland) 2018

Lord Lea of Crondall Excerpts

Thursday 7th March 2019 Lords Chamber

[Baroness Thornton (Lab)]

My Lords, I thank the Minister for introducing these regulations. These ones are kind of like a double whammy: there are no-deal issues to deal with and no Assembly in Northern Ireland to deal with them.

These regulations are not as complex as the other ones. However, briefings we have received about this in the last week suggest there is some confusion among pharmacists in Northern Ireland about what might happen. The Company Chemists’ Association suggests that the impact of Brexit,

“could lead to a major nationwide shortage of pharmacists available for work”.

There has reportedly been a huge drop in the number of pharmacists registering with the General Pharmaceutical Council since the Brexit vote, with registrations of pharmacists from the EEA falling by 80%—that is generally, not just in Northern Ireland. The Chief Medical Officer for England stated that our pharmacists will be on the front line if there are any shortages. It makes being a pharmacist in the next month or so a pretty daunting prospect.

Concerns are rife, despite the Government stating that they wish to keep free movement of the protected professions and recognising pharmacists’ qualifications. Can the Minister clear up the confusion between pharmacists? Some seem to be saying it will be okay; others say they will fare very badly in the event of no deal. Can assurance be given to pharmacists that their qualifications will be recognised after we exit the European Union? Can the Minister outline the impact she thinks Brexit will have on our pharmaceutical industry and our chemists? In the UK, we depend on our pharmacists as the front line, the people we go to quite often so that we do not have to bother our GP. There seems to be a lot of concern out there that our pharmacists will find themselves in some difficulty.

[Lord Lea of Crondall (Lab)]

My Lords, I want to pick up a point made by both the Minister and my noble friend Lady Thornton at the start of her remarks—the lack of an Assembly and how things are dealt with in Northern Ireland. The Minister may not be able to respond to this, but I will put it on the record to see whether someone in government could respond. Is she aware of reports in the press that civil servants in Northern Ireland are increasingly worried about having to take policy decisions? The people then think they should be accountable for the policy decisions, so criticisms are made of civil servants who are making policy decisions. This is certainly not what anybody wanted, but it is inevitable now and has been going on for some time.

This is one of many examples. If there is no way in which the Northern Ireland political parties can be consulted, the way they are behaving is causing an increasingly treacherous situation. I say this to put it on the record and ask for someone in government to respond as to whether they agree that Northern Ireland’s civil servants are in an impossible position in terms of them making policy. Secondly, I ask whether consideration has been given to how far the Civil Service in Northern Ireland circulates this material to political parties and seeks any feedback. Is that also out, in the present situation of no Assembly?

[Baroness Blackwood of North Oxford]

That was quick. I thank noble Lords for their contributions. The points made by the noble Lord, Lord Lea, are indeed important and concerning. I will arrange for the specific points he has raised to be answered in writing. On the issues regarding this SI, I would like to reassure him that since August 2017 my department has engaged closely with the PSNI and colleagues in Northern Ireland in developing this instrument. These have been technical discussions relating to the proposed amendments to legislation and how they could impact the provision of healthcare services. The department has regularly communicated with stakeholders and colleagues in the devolved Administrations to ensure that their comments on the draft legislation were central to the development of the regulations. There were regular discussions between my officials and each health and care regulatory body to ensure that this reflected operational performance in country. I hope that reassures the noble Lord.

I move on to the questions raised by the noble Baroness, Lady Thornton. We do not have figures for pharmacist registration in Northern Ireland, so I will have to write to her on that. On the general point regarding the numbers of pharmacists and the role they play in Northern Ireland, she is absolutely right. The Government recognise the important contribution to Northern Ireland made by regulated pharmacists, including those from the EEA and Switzerland. That is exactly why we are bringing forward this instrument today, to maintain a simple procedure for recognising EEA and Swiss pharmacy qualifications to help ensure that EEA and Swiss trained pharmacists can be registered to practice in Northern Ireland after exit day should there be no deal, even though we do not want that to happen. It puts in place after exit day a system of recognition similar to the current system, which is why we think it is workable. It allows applications made before exit day to be concluded under current arrangements as far as possible, and allows individuals practising under temporary and occasional status or under the European professional card to continue to do so until such registration expires. For that reason, we think this should have no impact on the numbers of pharmacists operating in Northern Ireland.

I think I have answered the questions raised, and I hope that has reassured noble Lords. On that basis, I commend the regulations to the House.

Public Health: Strength and Balance Programme

Lord Lea of Crondall Excerpts

Thursday 18th January 2018 Lords Chamber

[Lord O'Shaughnessy]

My noble friend makes an extremely good suggestion and I look forward to talking to him about that. Perhaps he could lead such a class.

[Lord Lea of Crondall (Lab)]

My Lords, in addition to the suggestions that have been made, perhaps I could pass on a tip: playing tennis is quite good for this sort of thing.

[Lord O'Shaughnessy]

Indeed it is, as are other things such as yoga, tai chi and—believe it or not—carrying shopping bags.

NHS: Rural General Practitioner Dispensing

Lord Lea of Crondall Excerpts

Tuesday 8th July 2014 Lords Chamber

Asked by

[Lord Lea of Crondall]

To ask Her Majesty’s Government whether they will hold talks with NHS England about steps that could be taken to slow down the closure of rural dispensing general practitioner practices, against the background of the operation of the one-mile rule covering new free-standing pharmacies, and the phased withdrawal of the minimum practice income guarantee.

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)]

I and my ministerial colleagues are in regular contact with NHS England. We are not aware of significant closures of rural dispensing practices. The “one-mile rule” is a long-established precept under NHS pharmaceutical services legislation, which determines whether patients in designated rural areas remain eligible to receive dispensing services from their GP. We have no plans to review or amend that precept. NHS England is asking practices that believe they may be adversely affected by the phased withdrawal of the minimum practice income guarantee scheme to contact their local area team to discuss their concerns.

[Lord Lea of Crondall (Lab)]

I thank the Minister for that reply, but the British Medical Association, at its conference last week, produced a statement citing NHS England as expecting scores of closures of such dispensing practices. I have a supplementary question and a proposal, but I think that the House may find it useful if I give the background.

[Noble Lords]

Question!

[Lord Lea of Crondall]

Given the loss of income from the double whammy of what is called the one-mile rule and the phased withdrawal of the minimum practice income guarantee, many practices will go below the red line of viability. Will the Minister therefore hold talks with NHS England and suggest that, when there is such a double whammy, the one-mile radius rule could be applied to new patients but not to existing patients—so numbers would be reduced through mortality over the years?

[Earl Howe]

My Lords, the phasing out of the minimum practice income guarantee is being gradually implemented over seven years to give adequate time for GP practices to adjust. In fact, most practices stand to gain under that arrangement. I would encourage any practice to take the matter up with the local area team at NHS England if it has particular concerns. The provisions governing whether a doctor can continue to provide dispensing services to eligible patients when a new pharmacy opens nearby, which is a separate issue, have been in place for a long time and are subject to a long-standing agreement. If an application for a new NHS pharmacy is made to NHS England that would affect, for example, the noble Lord’s dispensing practice, that practice is able to make its views known. There is an appeals process as well. If a new pharmacy were approved that does affect the practice’s dispensing patients, it is open to NHS England to phase in gradually the shift from using the practice’s dispensary to a pharmacy for those patients affected.

NHS: EU Legislation

Lord Lea of Crondall Excerpts

Monday 21st October 2013 Lords Chamber

[Earl Howe]

My noble friend speaks, as always, with great authority on these matters. The independent review is by clinicians and of clinicians, looking specifically at the issues associated with the implementation of the directive. It means that any issues that are identified and can be acted on without needing to change the law—which was one of the points underlying my noble friend’s question—could lead to swift and effective action. In addition, my noble friend might like to know that the review will be looking at how the directive interacts with the junior doctors’ contract. It is intended to provide a sensible front-line view of doctors’ working hours.

[Lord Lea of Crondall (Lab)]

My Lords, does the Minister accept that the idea that the working time directive is universally denigrated by all members of staff of the National Health Service is very far from the truth? Does he also accept that there is a need to protect patients and the health of doctors themselves by having something along the lines of the working time directive, and that the Royal College of Surgeons ought to accept that that is the case?

[Earl Howe]

My Lords, I stress that this is not a step to find a way to make doctors work longer. As I said a moment ago, it is clearly in nobody’s interest to go back to the days when doctors were constantly tired and worked excessive hours. However, when senior clinicians tell us, as they have, that the implementation of the directive is harming patient safety and doctors’ training, we have to take that seriously. That is why we want to take a closer look at how this directive is impacting on the ground.

Health and Social Care Bill

Lord Lea of Crondall Excerpts

Monday 7th November 2011 Lords Chamber

[Lord Marks of Henley-on-Thames]

My Lords, I welcome the amendment introduced by the noble Baroness, Lady Masham, and others, and applaud the powerful and eloquent way in which she opened the debate and in which others have spoken.

I wish to make a brief contribution regarding the litigation consequences of a lack of transparency. Over a number of years, though not in the immediate past, I conducted clinical negligence cases, many of which concerned allegations of negligence against practitioners and organisations within the health service. I am not one of those who regard such litigation as frequently the result of an unwelcome development of a compensation culture within this country, approaching the situation in the United States. Without generalising, in most of the cases in which I have been involved— certainly those that came to trial—there has been a real basis for concern on the claimant’s part, whether or not the claimant has ultimately been successful.

With respect to the points made by the noble Lord, Lord Winston, I remember cases where the process of litigation itself demonstrated not only that that particular claimant had been poorly served but that there had been systemic failings within aspects of the health service that required changes to be made. When those changes were then made, they brought substantial benefit to subsequent patients.

A feature of much of the early litigation in which I was involved, though, was that it was frequently very difficult to obtain full records and a full account of the history from the point of view of the defendants within the NHS providers, and of course they alone were in possession of the relevant information. That is against the background that for many years there has been a procedure for obtaining the disclosure of relevant documents from potential defendants to these actions, even before the actions are commenced.

In recent years, procedures have been greatly improved by the impact of the clinical negligence protocol, introduced in 1999 as part of the Woolf reforms. However, the protocol is not binding, although it introduces a code of good practice and provides a partial answer to the points made by the noble Lord, Lord Mawhinney. The code requires a comprehensive system of what it calls adverse outcome reporting. It requires clear and comprehensible information to be given to patients, and for advice to be provided to patients on any serious adverse outcome and the options available to them. In such cases, access to records is to be given to patients within 40 days of a request. The protocol has done a great deal when it is fully observed. However, the fact that it is not always observed is clear from many of the speeches that we have heard this evening.

A further point is that the protocol applies only in cases where there is a serious adverse outcome for patients. Furthermore, it is only a code and does not impose statutory requirements. Even in serious cases, and where the code is followed, requests for documents and pursuit of the procedures generally involve lawyers, and this process can be lengthy, time-consuming and expensive. If not well handled, the process can tend to harden and entrench positions, making conflict and, therefore, contested proceedings more likely. Furthermore —this is another point I make to the noble Lord, Lord Mawhinney—the process is not effective in less serious cases but this amendment would apply in such cases, although there is a limit to it. It refers only to cases that,

“may have caused harm, or may in the future cause harm”.

The cost of negligence cases to the NHS is simply staggering. According to a Written Answer given in the other place on 8 June this year, the total in damages paid to successful claimants in 2010-11, including in periodical payments cases—which are treated in the figures as lump sums—exceeded £1 billion. The total of claimants’ costs paid out was around £214 million, and the total of defendants’ costs was £72 million. If improvements in transparency could be made to reduce these vast amounts, particularly the costs, they would be very welcome. As my noble friend Lord Mawhinney pointed out, all the money spent on costs is money that might have been made available for healthcare.

In a large number of cases, as the protocol recognises and as the noble Lord, Lord Harris of Haringey, and others have pointed out, what claimants and potential claimants want is to know at a very early stage what has happened to them—to have someone explain frankly exactly what has gone wrong and then, where appropriate, to have someone apologise for any errors. Anything that helps to bring about a more effective way of ensuring that that happens will avoid many cases that currently end in litigation. As a result, many patients will be far better served. Therefore, there is much to be said, across a range of cases, for establishing far better procedures than there are now to ensure that full explanations are provided in a timely fashion.

[Lord Lea of Crondall]

Would an apology affect the litigation?

[Lord Marks of Henley-on-Thames]

My Lords, often it would. If there is to be litigation, an apology tends to suggest an admission of liability. Generally speaking, people do not apologise when they do not think that anything has gone wrong. An important exception to that—one that I have come across—might be where there is an admission of liability and that something has gone wrong, but a dispute over the consequences or what damage might have been suffered. If there would have been adverse consequences to an operation in any event, the fact that it went wrong might not make a difference. However, in those cases the apology might well avoid the litigation because of the difference in attitude and spirit between the parties that results from the apology being made and the recognition that something has gone wrong.

I suggest that we should welcome this amendment. It elevates good practice, as shown by the code, to an enforceable statutory duty of candour, as the noble Baroness points out, backed up by sanctions. It may be that this precise wording is not what is required but I invite the Minister to consider the statutory duty of candour as an important help for future patients. I welcome this amendment as going some way to helping that to happen.