Health and Social Care Bill

Lord Owen Excerpts

Wednesday 21st December 2011 Lords Chamber

[Lord Low of Dalston]

My Lords, I want to speak to Amendment 347B to Clause 247. It teases out the kind of argument made by the noble Lord, Lord Warner, in a more specific form. This probing amendment has the aim of finding out more about the Government’s approach to information provided to patients in accessible forms. Perhaps I have missed something, but I could not find much in the Bill about the provision of information to patients, but given the importance of the principle of “Nothing about me without me”, this would seem to be a serious omission. The provision of information in a form that people can use is a sine qua non of patient empowerment. It allows patients to take control of their situation. Without it, you can hardly get to first base. Maybe the Bill could do with some fleshing out in this regard, and I would certainly welcome the Minister’s views on that.

In the rest of my remarks I want to concentrate on the question of providing information in a form in which people can use it. My particular angle on this is that it should be published in an accessible form so that people with a print disability can handle it, which is what my amendment deals with. It would enable the Secretary of State or the NHS Commissioning Board to publish information standards containing a requirement to record patients’ preferred reading format, whether standard print, large print, audio or Braille. This is an essential precursor to communicating effectively with patients who have print disabilities and giving them proper access to vital information about their health. It will immediately be clear that I have a direct personal interest in this, but I should also declare my interest as a vice-president of the RNIB, the leading charity representing the interests of blind and partially sighted people, for which improving access to information is a major objective of policy and campaigning.

I have raised this issue regularly in the House with cross-party support in debates on local democracy, local transport and other issues, and the matter was dealt with generically in the Equality Act 2010. Ministers have invariably been sympathetic, but I am sorry to say that we still have some way to go in making the provisions of that Act a reality in practice. Article 21 of the recently adopted UN Convention on the Rights of Persons with Disabilities on freedom of expression of opinion and access to information, which the UK has ratified, says that states parties should be,

“providing information intended for the general public to persons with disabilities in accessible formats and technologies appropriate to different kinds of disabilities in a timely manner and without additional cost”.

Yet in the area of health services it is not so long since a survey of blind and partially sighted people in the UK showed that 95 per cent of respondents had never received health advice leaflets or information from their local surgery in their preferred format; 96 per cent had never received letters from their GP, the results of tests or other correspondence in their preferred format; 95 per cent had never received medicines labelled in large print; and the NHS was apparently unable to send out appointment letters in an accessible format.

Research for the RNIB carried out by Dr Foster in 2010 showed that things had improved a bit in recent years but that there was still a considerable way to go. In the Dr Foster survey, 72 per cent of those questioned were given information by their GP in a form in which they could not read it. Similar, even higher figures were uncovered in relation to the rest of the NHS. This included information ranging from appointment letters to confidential test results, which is not the sort of thing that you would necessarily want someone else to read to you.

I recently moved house and joined a new GP practice. I was pleased to be asked on the form that I was required to complete in order to register whether I would like information in Braille. This was as novel as it was gratifying. I do not delude myself that this amendment would be a panacea, but it would take us a long way further forward than the guidance that we have at the moment, which clearly is not working.

[Lord Owen]

My Lords, I shall speak to Amendment 347A, particularly the phrase,

“to exercise informed choice by ensuring maximum transparency of dissemination”.

The House may remember that, at an earlier stage, I raised European Community law and the need to have a great deal more information about this issue. It is all very well for the Government to initiate this rather broad guidance about publishing information and information standards; it gives the impression that they are interested in having a wider debate on transparency. However, I got a letter from the Department of Health only late yesterday telling me that an application that I made under the Freedom of Information Act was being challenged. I started a request on 26 April 2011. I went through all the procedures of internal review on 1 June. I was eventually given a judgment in November, at which point I immediately re-requested the same information. One cannot read this correspondence without getting a sense of obfuscation, of a deliberate refusal to tackle the issues that I have been raising with the department and of a spinning-out of a process during the passage of legislation of the utmost importance to the department.

It is necessary to ask the Minister whether he knows that this letter has come to me following my request on the Floor of the House and his courteous reply that he would look at the question. I am now told that I would normally have to go through another internal review procedure, which would take, no doubt, another month or more, by which time this Bill will have gone through all its stages and probably left the House of Lords. So underneath this is a deeper question.

I also find it slightly objectionable to have received in reply to the request a more definitive statement of the ministry’s attitude. I shall read out one paragraph in particular:

“Furthermore, we agree that information relating to competition in the NHS and the delivery of healthcare services attracts the public interest”.

We can all agree on that. It goes on to say:

“However, there is much information already in the public domain about how competition law does and does not apply”.

But that is open to serious question. Professors on competition law have been writing to me from university departments saying that this is a very cloudy area and that it is difficult to get a lot of the information. The letter goes on to say:

“This includes recently published guidance by the Office of Fair Trading on the application of competition law to public bodies and comment on the case law relating to public purchases, which suggest that these are unlikely to be considered as undertakings and therefore could not be considered under competition law”.

--- Later in debate ---

[Baroness Williams of Crosby]

In view of the reference to me by the noble Baroness, Lady Wheeler, perhaps I may say a few words before the debate proceeds and the Minister replies. The Committee showed good sense—and the noble Baroness, Lady Thornton, was good enough not to press the matter to a vote—over the information tribunal’s decision on the risk register. At the time, it was sensible to undertake to withhold our judgment until there had been an opportunity for the tribunal to consider the Department of Health’s appeal. However, the intervention by the noble and learned Lord, Lord Mackay—as the noble Baroness, Lady Wheeler, indicated—clearly suggests that it would be possible, by a mutual approach from the Government and the Opposition, to speed up the processes under which the appeal was held.

Given that the government Chief Whip agreed that the matter should not come before the House on Report before the end of January, that provided an additional three weeks—a reasonable period of time—to try to persuade the tribunal to act reasonably rapidly. The noble and learned Lord, Lord Mackay of Clashfern, was good enough to say that in some cases which he knew of, the tribunal had been able to deal with an issue in as little as three or four days. That seems very apposite, since it is hard to think of anything much more constitutionally important than the Report stage of a Bill of this kind, and there should be no question of the debate on Report taking place before there is an outcome to the tribunal appeal.

This House recognised that it was proper that the law should take its normal course. We therefore withheld any attempt to try to press it by, for example, insisting on a vote. I think that that was to the credit of the Official Opposition. However, it is quite clear that the decision is very germane to the Report stage. It is highly relevant. All of us accept that if the appeal is upheld then we will be bound by it in a proper course of law, appropriate to all people who come before the tribunal. However, we also all recognise that it lies upon the Government to endeavour to reach a decision as quickly as possible. I am sure that the Opposition, and certainly we on these Benches, would strongly support an approach of that kind.

I would simply plead with the Minister, who has been so reasonable to the House on so many matters, to recognise that there is a real difficulty if the appeal, not having been heard, hangs over Report, and as a result leaves people able to say, “But if the appeal had gone the other way, X and Y would follow”. If the Department of Health—whose record is patchy, to say the least, as the noble Lord, Lord Owen, has rather sharply pointed out—really cares about information being made available, or at the least upholding the law that makes the tribunal make a final decision, it really is crucial that, at the end of this Committee stage, we hear from the Minister whether steps are being taken to accelerate the process as much as possible to enable Report to start properly at the end of January. I would simply urge that attention might also be paid to the further evidence provided by the noble Lord, Lord Owen, which, to say the least, is somewhat disturbing.

[Lord Owen]

May I just make a slight correction? I said that the debate on the impact of the European Union on healthcare in the United Kingdom in the name of the noble Lord, Lord Kakkar, will be held on 10 January. It will actually be held on 11 January, as the dinner-break business. I want to be quite clear about the timing of that important debate, which at the moment is limited to a maximum of one hour.

While I am on my feet, I want to stress that every word that the noble Baroness, Lady Williams, has said is wholly appropriate. This question of risk assessment is central to the judgments which will have to be made at Report. I hope very much that we do not proceed to Report until the tribunal's judgment has been heard.

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

My Lords, perhaps I could begin by addressing briefly the matter of the risk register. Arising from earlier debates on this subject, I have discussed the timetable for the appeal with my officials, and I say again that I recognise fully the strength of feeling on this issue and the desire for speedy resolution. As noble Lords are aware, the timetable for matters of this kind is a matter for the Information Commissioner and the legal process. In view of the noble Baroness’s very courteous suggestion that I should write to her and to the noble Baroness, Lady Thornton, about this, I undertake to do so straightaway. I will copy in my noble friend at the same time. In that letter, I undertake to give as much information as I can at the moment about what we see as the likely timetable for the process.