All 4 Debates between Lord Mackay of Clashfern and Baroness O'Neill of Bengarve

Wed 8th Mar 2017
Higher Education and Research Bill
Lords Chamber

Report: 2nd sitting (Hansard): House of Lords
Mon 30th Jan 2017
Higher Education and Research Bill
Lords Chamber

Committee: 7th sitting (Hansard - continued): House of Lords

Higher Education and Research Bill

Debate between Lord Mackay of Clashfern and Baroness O'Neill of Bengarve
Lord Mackay of Clashfern Portrait Lord Mackay of Clashfern (Con)
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My Lords, I understand the reason for this amendment but am not sure that it is appropriate, because it is the Office for Students that would do the “musting”—if I can call it that—but the arrangements have to come from the higher education providers, which are dealt with by new paragraphs (a) and (b). The OfS finds out exactly what is going on and reports it. That may put pressure on individual providers to get along with arrangements. You cannot facilitate an arrangement unless the people wanting to make it are willing. There is also the problem with time when it comes to facilitating, encouraging or promoting awareness. In due course, the thing will become known, but the amendment is saying it must be done all the time—it is a continuing obligation. In the circumstances of this clause, “may” is the better word for this part of the arrangement.

Baroness O'Neill of Bengarve Portrait Baroness O'Neill of Bengarve
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My Lords, this is quite a complicated matter for higher education providers—as I have learned to call them—as the reasons why students come to a halt on their journey are very varied. Sometimes, they are not really committed to continuing, sometimes they are not really able to continue on the course, and sometimes there is another course with slightly different requirements to which they would be very well suited. It has to be a very hands-on process, and does not always go successfully, but nor would it even with this amendment.

One has to be very careful. In my experience, academic staff and the student counselling services have a great deal to do when an individual student hits one of these vicissitudes, and the process is not always successful. But we should also remember that in countries where they ostensibly have more of a credit transfer system than we have ever managed to achieve here, you cannot say, “Oh, I am not really enjoying my course here; I would prefer to be on that course there”. The process will be extremely difficult and very expensive for the institutions. On balance, “must” facilitate may not, for those additional reasons, be quite the verb that we want here.

Higher Education and Research Bill

Debate between Lord Mackay of Clashfern and Baroness O'Neill of Bengarve
Lord Mackay of Clashfern Portrait Lord Mackay of Clashfern
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My Lords, I mentioned this amendment in an earlier group. However, because of the way these things are structured, I did not get an opportunity to reply to the Minister. This is a vital matter. I cannot see why the Office for Students, with no particular qualification in relation to research, should be solely responsible for the decision to award research degrees.

The Minister indicated that there is a general power for the Secretary of State to order co-operation and so on. In the Bill the power to make a joint decision is very restricted indeed and would not apply in this connection to the power of the Office for Students to award research degrees. It certainly would not enable UKRI to take part in that.

I can see that there may be a difficulty about research students. I do not mind too much about that. It seems to me that that is also a question about research, but it may be that it is very routine and therefore the Office for Students would need to be involved in that. But giving the Office for Students the power to award a research degree power to a higher education provider while there is a body standing by—created by the Bill, with all the expertise of research—but not taking part at all, does not make any sense. I say this with the greatest possible respect.

The Minister suggested that it might work against the interests that were being talked about but I really cannot see why these research degree-awarding powers should be a matter for the Office for Students alone. I can see that it may have a legitimate interest in the provider as a whole but it certainly does not have the full expertise of research that UKRI can give. This seems to be an ideal situation for joint decision-making. I beg to move.

Baroness O'Neill of Bengarve Portrait Baroness O'Neill of Bengarve (CB)
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My Lords, I add my support to the amendment. It seems extraordinary to imagine the Office for Students unilaterally making a decision that an institution should have the power to award research degrees. Surely it is quite essential that a research organisation—particularly, in this case, UKRI—should be heavily involved. Equally, I do not think that UKRI can make the decision alone because it relates also to the capacity of university departments to receive and look after research students.

Medical Innovation Bill [HL]

Debate between Lord Mackay of Clashfern and Baroness O'Neill of Bengarve
Friday 12th December 2014

(9 years, 3 months ago)

Lords Chamber
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Baroness O'Neill of Bengarve Portrait Baroness O'Neill of Bengarve (CB)
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My Lords, I am not certain whether the noble Lord, Lord Turnberg, makes things easier by suggesting in Amendment 3 that one should move from views to support, for two reasons. One is that we have a later amendment that refers to views and the recording of them. The other is that I would have thought it would be important to record the spectrum of views concerned, not just the support—the negative views as well as the positive. So I have my doubts about Amendment 3.

Lord Mackay of Clashfern Portrait Lord Mackay of Clashfern
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My Lords, I think that we would all take the view that the last thing we want to do in any sort of legislation is endanger patient safety. However, I suggest that the honourable Honor Smith was not acting under my noble friend Lord Saatchi’s Bill; she was acting, I take it, under the law that existed at that time. Therefore, even in the best regulated circles, with no provision for innovation, something can happen. No doubt the lady thought that she was doing the right thing when she did it, but it turned out ultimately that that was not so.

With regard to the Bill, the ultimate test of the defence is whether it is in the best interests of the patient. In taking account of views from qualified people in the area, that is an important factor. It is necessary that a doctor who is going to use this treatment should be able to satisfy the court that, in the light of the available evidence at the time when the decision was taken, this decision was in the best interests of the patient. Therefore, endangering a patient strikes me as something that is already covered quite clearly by that requirement. The mention of danger must be an important aspect of the best interests of the patient, surely.

On Amendment 2 from the noble Lord, Lord Winston, he talks about the body of medical opinion. The cases that I know of talk about “a” body; lawyers certainly do not often agree one with another and I think that sometimes doctors do not agree either. Someone therefore has to make a choice from time to time.

It is perfectly clear that we all want to prevent patients from being put in danger. I have seen and listened to the programmes by the noble Lord, Lord Winston, about the injection of stem cells into people for money in different parts of the world without the promised success ensuing from that. I am sure that there is a danger in that area. Indeed, there are dangers in many areas. However, the problem for the doctor—and I am glad in a way that this responsibility is not the kind of responsibility that one has to carry generally in other professions—is that it is the life of the patient that may well be in question. Therefore, in taking an innovative step it is essential that the views which are available in relation to the matter and which are reasonably readily available to the doctor making the decision to use the treatment are taken fully into account. That is what this Bill is trying to do.

The Bill is set out as providing for responsible innovation. One of the fundamental elements of responsibility must be the patient’s safety. While I entirely agree with the view that that is an important issue, I believe that the Bill safeguards that so far as possible. The experience to which the noble Lord, Lord Walton, referred is an example of what can happen. On the other hand, you cannot make certain; nothing is infallible. I believe that from that point of view this is as good as we can achieve.

--- Later in debate ---
Baroness O'Neill of Bengarve Portrait Baroness O'Neill of Bengarve
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My Lords, in so doing, it would be valuable if the Minister could go back to the central theme of today’s debate, which is patient safety, not the protection of doctors from clinical negligence claims. If we are focused on patient safety, any failure to collect valuable information, whether positive or negative, would compromise patient safety—not perhaps the safety of that individual patient at that moment but patient safety generally. The collection of data here is of fundamental importance. I cannot see the reasons why it should not be compulsory.

Lord Mackay of Clashfern Portrait Lord Mackay of Clashfern
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Do I understand that the position that the Government are taking is a technical one on the scope of this Private Member’s Bill and that it would be improper in a Private Member’s Bill to set up a register that would go beyond the scope of this Bill as to the innovations that it covers? The idea is to set up a register that would be wider in its scope than the mere innovations that take place under this Bill, assuming that it becomes an Act. Is that the difficulty?

Medical Innovation Bill [HL]

Debate between Lord Mackay of Clashfern and Baroness O'Neill of Bengarve
Friday 24th October 2014

(9 years, 5 months ago)

Lords Chamber
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Baroness O'Neill of Bengarve Portrait Baroness O’Neill of Bengarve (CB)
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My Lords, I am sorry to say that I am another non-medic. Indeed, I am a philosopher by trade and training but I would like to make three points. First, I was puzzled at Second Reading and again this morning by a certain divergence of vision among those of our medical colleagues with surgical experience and those who are not surgeons. It seems that, on the whole, those with surgical experience are quite happy with current legislation. They feel that they must innovate and that the non-standard anatomy, which I have learnt that we all enjoy, means that they cannot go in there with a rule book and just stick to it. I have not heard quite the same uniformity from our clinical colleagues who are non-surgeons. I hope that we could be a bit clearer about whether surgical procedures should be in here at all.

Secondly, the question of unintended consequences has already been raised by the noble Lord, Lord Giddens, and others. Some quite process-heavy amendments have been proposed which deserve rather more picking apart than they have already received. We do not wish to put in so much process that we successfully stifle the very innovation that it is the purpose of the Bill to achieve. I hope that we can come back to those amendments.

Finally, and with trepidation as I am standing right behind the noble Lord, Lord Pannick I say that, there is a bit of a difference between reasonableness and proportionality. They tend to come as twins. I am entirely in favour of reasonableness but proportionality suggests that you have at the back of your mind enough data to say what is proportionate and what is not. I fear that introducing requirements for proportionality may actually wreck the possibility of innovation in areas where part of the objective is to obtain the data, because they are not yet there. I would have thought that from a patient’s point of view it is reasonable to go for a treatment for which there are not yet complete data, and therefore no judgment of proportionality can be made, but which nevertheless is reasonable because the other options are dire.

Lord Mackay of Clashfern Portrait Lord Mackay of Clashfern (Con)
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My Lords, I had not intended to take much part this morning but, my name having been mentioned, I am stimulated to respond. The Bill is about innovation. Therefore, if a doctor is attacked for some failure in respect of innovation, the ordinary rules of defence that are presently available do not seem appropriate. Our colleagues who are excellent innovators have managed to avoid the necessity for litigation as a result of their innovations. However, if by any chance any of them were challenged, how would they go about their defence?

I make this basic point in answer to my colleague the noble Lord, Lord Pannick. He quoted what I said at Second Reading. It will not surprise your Lordships if I happen to hold still to what I said then. The point is that when there is an innovation, there is not much material on which to judge whether it is reasonable or proportionate. If there were in the existing practice, it would not be an innovation. The problem is therefore that the ordinary formulations of reasonable and proportionate with which lawyers are very familiar—I am enough of a lawyer to be familiar with them—are not really appropriate. I believe that the test which my noble friend Lord Saatchi’s Bill originally had, and which is preserved among all the innovations that have taken place since, is in Clause 1(4)(a):

“Nothing in this section … permits a doctor to administer treatment for the purposes of research or for any purpose other than the best interests of the patient”.

That is a simple test which the doctor must face at the time of innovation and, so far as I am concerned, elaboration with the familiar legal phrases that are very dear to lawyers is a mistake. I therefore adhere to what I said at Second Reading.

I should perhaps say that I am not entirely without experience in this area for when I was in practice in Scotland, which is now a long time ago, I did quite a lot of work in the Medical and Dental Defence Union of Scotland area. My very first appearance as a counsel in this House was in respect of a doctor’s negligence. My experience was over quite a long period; it may not have been very good but it was certainly extensive. I very much support the Bill and hope that we need not get around to voting on it today. There is plenty of scope for discussion about these matters and a good deal of substance in many of the amendments. We should discuss them further and, if necessary, have votes on Report.