Health and Care Bill

Debate between Lord Patel and Baroness Walmsley

Lords Hansard - Part 1 & Report stage
Monday 7th March 2022 Lords Chamber

[Lord Patel (CB)]

My Lords, I apologise for rising because I know we need to move on but before I speak to this amendment perhaps I may take the opportunity, as I was not here on the first day of Report, to thank the Ministers for listening—and taking action after doing so on many aspects. I thank them all for that. I also thank all those who sent me good wishes. It helped, and I did not realise I had so many friends.

I shall not speak at length on this group. I have my name on both sets of amendments. The reason I supported removing the whole clause was that there are a lot of issues arising, not just the invasion of the safe space. However, I agree with the noble Lord, Lord Hunt of Kings Heath, that it gives the Government another chance if it is confined to removing the coroner provisions. I agree with what has been said: the medical profession particularly, but even other health professionals, will find it difficult if the safe space of what they say confidentially can be invaded, so I support that proposal.

[Baroness Walmsley (LD)]

My Lords, I well recall hearing Jeremy Hunt announce that we would have this organisation and thinking at the time how important it would be in turning the NHS into a learning organisation, in the interests of patient safety. I would prefer not to take the whole clause out but to amend it.

The predecessor non-statutory organisation’s chief inspector has written to us, pointing out that when his organisation was set up it was made clear that full statutory independence, along with the fully enclosed prohibition on disclosure, would be essential to its success. I am concerned that if this power to disclose information to coroners is left in then this organisation, which we all so much support, will be set up to fail. That would be a very bad thing for patients and the whole NHS.

Quite honestly, the number of cases that the HSSIB is going to investigate—only 30—is highly unlikely to cut across anything that the coroner wants to do. In fact, the Joint Committee which scrutinised the previous Bill in 2018, which got only as far as Second Reading, concluded that the safe space would in no way impede the ability of coroners, regulators, the PHSO or the police in undertaking their own investigations or speaking to witnesses. That is not what we heard in the meetings which the Ministers have been kind enough to set up on Zoom, or from the Ministry of Justice. They obviously disagreed with the Joint Committee that scrutinised this carefully.

I hope the Minister is not going to rely on paragraph 6(7) of Schedule 14 because, as it stands, the so-called protections in that part of the Bill are completely unknowable. How can the High Court know whether a disclosure to the coroner will deter future witnesses from giving full disclosure? It simply cannot know that but there is a big danger. Nor can it know whether it will have an

“impact on securing the improvement of the safety”

of the health service. This is an empty protection and I hope the Government will not rely on it when arguing against the amendment of the noble Lord, Lord Hunt.

Cities and Local Government Devolution Bill [HL]

Debate between Lord Patel and Baroness Walmsley

Tuesday 21st July 2015 Lords Chamber

[Baroness Walmsley (LD)]

My Lords, I do not think that I need to say very much because this amendment has been very ably introduced by the noble Lord, Lord Warner, but I do support it. I thank the Minister for introducing Amendments 3 and 4 today because they address part of the concerns we have had. However, many concerns remain, regarding accountability, information service standards and, of course, supervision. There are many functions that would never be appropriate to devolve to a local authority, such as the duty to ensure a supply of appropriately trained personnel in the health service, a matter for which Public Health England—which is answerable to the Secretary of State—has responsibility. It would never be appropriate to devolve those functions, and there are many of them. The noble Lord, Lord Warner, has crafted a very clear statement of what is required. Although the noble Baroness did her very best on Report to assure us that the Government share this amendment’s intentions, we need the amendment on the face of the Bill. Legislation needs to be clear, and that is what this is.

[Lord Patel (CB)]

My Lords, I shall be brief. I said on Report, and say again today, that I support the Government’s intention to devolve NHS functions. I think that a lot of good will come out of it. For a start, we might explore a possible model of integrating primary, secondary and social care, which may lead to useful innovations elsewhere in the NHS. However, what is important, and as the noble Lord, Lord Warner, said, is that certain key characteristics of the National Health Service have to be maintained, particularly when it comes to regulatory and supervisory functions. I agree with the noble Lord that the proposals should not inadvertently lead to fragmentation and variation in healthcare. The risk is that individual transfers of functions will do exactly that.

The noble Baroness, Lady Walmsley, and I appear on the Marshalled List as supporters of Amendment 11, which was tabled by the noble Lord, Lord Warner. I shall not comment on paragraph (a) of the proposed new clause because it has been adequately referred to, particularly in the intervention by the noble and learned Lord, Lord Mackay of Clashfern, on Report, which was very helpful. Paragraph (b) states that the Secretary of State,

“must not transfer health service regulatory or supervisory functions”.

The noble Lord has mentioned NICE, the CQC and Monitor, but there are many other bodies, including the key one, Health Education England, in terms of training all healthcare workers.

Paragraph (c) of the proposed new clause refers to national service standards. I would mention patient safety issues in particular, as those have become paramount in our National Health Service following the Mid Staffs fiasco. I would also mention the requirement to report on mortality ratios in all hospitals and health authorities, to report on unexplained deaths and the need to reduce the excessive number of deaths that are occurring from cancer, diabetes and other diseases.

I had hoped, as I have said, that government Amendment 3 would cover all those issues, but it does not. The amendment does not in any way stop devolving NHS functions, as proposed in the Bill; it just clarifies the functions that a devolved authority itself cannot change because they are national, regulatory and supervisory. It is for those reasons—to protect those functions—that I support the amendment.

Cities and Local Government Devolution Bill [HL]

Debate between Lord Patel and Baroness Walmsley

Wednesday 15th July 2015 Lords Chamber

[Baroness Walmsley (LD)]

My Lords, I have not taken part in debates on the Bill before today but I have followed carefully what has been said about devolving health functions, and have had several conversations with my noble friends and the noble Lord, Lord Warner. I have agreed with the concerns expressed by my noble friend Lord Shipley and the noble Lords, Lord Warner and Lord Hunt of Kings Heath, that there is not enough specifically in the Bill to ensure the accountability of the new devolved entity in relation to healthcare, nor enough to ensure adherence to national standards. Despite the fact that national standards of course vary across England and the devolved nations—quite widely, in some places—it is important that at the very least we ensure minimum standards of care in the devolved entities in reality, not just in theory in the applications of the authorities to the Secretary of State in the first place.

It must be borne in mind that the Bill is breaking new ground at a time when the health and social care system is still settling down to the new structure introduced by the Health and Social Care Act 2012, and is doing so at a time when the NHS is being asked to make enormous efficiency savings, many acute health trusts are posting a deficit, and in some places the social care system is in danger of crashing. Thus it is not surprising that opposition parties are asking the Government to place safeguards in the Bill in the interests of patients in Greater Manchester and other places in future, and to be very clear what is intended.

On 13 July, during the first day of Report, the Minister said in response to these concerns that government Amendment 28,

“enables the Secretary of State to provide for the functions concerned to be exercisable by the combined authority or public authority, subject to specified conditions or limitations”.—[Official Report, 13/7/15; col. 439.]

She gave some examples, such as a condition that the combined authority must also meet the current statutory duties held variously by the Secretary of State for Health, NHS England and clinical commissioning groups, thereby ensuring the continuation of current NHS accountabilities and standards. The question is: will the Secretary of State impose such a condition? We need to know that now, not just after the Bill has passed. As the noble Lord, Lord Warner, has said, we are in danger of landing up not with a national health service but with a set of local health services. I hesitate to use the phrase “postcode lottery”, but I think noble Lords know what I mean.

The Minister gave other examples of possible conditions, such as reducing health inequalities, continuous improvements in service and so on. While I am very much in favour of the real devolution of powers as opposed to simple decentralisation, it is my view that it is not worth doing these things at all unless they actually result in service improvements and reductions in inequality. I therefore ask her to be very clear about the Government’s intentions in this respect.

We also need some assurance that the devolved authorities will still be subject to the same regulators that protect standards in the rest of the country; they cannot regulate themselves. We had some assurance about this from the Minister on Monday night when she accepted the points made, but I am sure that we would all be happier if this were reflected in the wording of the Bill. I am not satisfied that we should rely on the Secretary of State making a series of orders; there is a danger in that, and we need more than that.

[Lord Patel (CB)]

My Lords, in Committee I sat through an extensive exchange in the debate between the noble Lords, Lord Warner and Lord Hunt of Kings Heath, and the Minister. I thought at the time that the noble Lords were enjoying themselves while the Minister was not. While I accept in principle that the devolution of the NHS has no problems with it—after all, we used to have regional health authorities—what is a problem is ensuring that they should be bound by the same statutory national regulations so that they do not themselves invent new regulations that are neither statutory nor binding on others. The point made by the noble Lord, Lord Warner, is important: if one set of regulations could be found in the Bill that would be binding, we would get away from having to make different sets of regulations each and every time, which is what would cause confusion. That is what the noble Lord alluded to and it seemed sensible to me. In principle, though, I accept that the devolution of the NHS is not a bad idea.

Serious Crime Bill [HL]

Debate between Lord Patel and Baroness Walmsley

Monday 2nd March 2015 Lords Chamber

[Lord Patel (CB)]

My Lords, I shall speak to Amendments 5 and 6 in particular. Before I start, let me say that I absolutely agree with the Minister that female genital mutilation—FGM—is a horrible procedure, and it is right to criminalise it, with the severest of penalties for anybody involved. I have seen many adolescent girls and young women whose subsequent health has been affected by female genital mutilation—occasionally resulting in death during childbirth, but much more often in the horrible condition known as obstetric fistula, which I have seen in Africa. I am therefore totally committed to making sure that this horrible procedure is made illegal and removed.

During the passage of the Bill through the Commons, the Government introduced an amendment to make it a duty for regulated healthcare professionals to notify police of female genital mutilation, and the amendment was accepted there. Like the professional organisations—particularly the regulators of the medical profession, the General Medical Council and the British Medical Association, and some of the colleges, particularly the Royal College of Paediatrics and Child Health—I am concerned about that amendment.

Our concern is about the proposed duty to report FGM in all known cases in girls and young women under 18. That duty will be a significant step change in the law. I am not aware of any other circumstances in which healthcare professionals are required to refer patients to the police without any regard to the potential impact on the patient. That is what concerns me—the potential impact on the patients, particularly young girls under 18, including 16 to 18 year-olds.

Doctors are required to make the care of patients their first concern, but of course they have to balance that duty against wider public interest considerations. There are clear circumstances in which they should disclose information to an appropriate agency. For example, it might be necessary to protect a specific person or people, or the public more broadly, from a risk of death or serious harm, or to assist in the investigation or prosecution of a crime. The General Medical Council guidelines in Protecting Children and Young People: The Responsibilities of All Doctors make that absolutely clear.

The proposed duty, however, allows no scope to consider the best interests of the child or young person. In effect, the duty mandates that the wider public interest in investigating whether or not a crime has been committed would always outweigh the girls’ rights and interests, including those of the individual child or young person. It is difficult to see how that satisfies the proportionality argument or requirement of Article 8 of the European Convention on Human Rights. It also means that doctors will sometimes be obliged—I agree, in rare circumstances—to act against what are considered to be the best interests of the patient. That is in conflict with the primary duty of doctors.

The Royal College of Paediatrics and Child Health also found that,

“there is no credible or conclusive evidence that ... mandatory reporting … better protects children at risk of harm, and its introduction would undermine that cultural approach of risk and responsibility sharing that has been developed in the current system. Mandatory reporting still raises more questions than it provides answers”.

In response to the Government’s consultation, the professions argued that any duty to report FGM should include a “reasonable excuse” for not reporting if it would be contrary to the best interests of the child or young person to do so. Further consideration needs to be given to the position of young women between the ages of 16 and 18. There is no clear line between childhood and adulthood. While under-18s have a different status in law, at 16 it is presumed that young people have the ability to make a whole range of decisions, including about their own care. Discussions about the treatment and care of a 17 year-old may be indistinguishable from those relating to an adult. Particular risk may arise in the context of maternity care, and here I have a particular concern. A young woman may not present to healthcare services if she fears it will result in a referral to the police. Young women who have undergone female genital mutilation as children will be at increased risk during maternity care and childbirth. They require particular and extra care during labour. That duty would undermine the provision of care that might be given to them.

There are many positive aspects to the Bill which I absolutely support. It makes a real difference to the lives of children and young women. This particular duty goes counter to that and I wish there was a phrase saying that in some circumstances there might be a need to protect children and young women. If we cannot change this today, I hope that at least there will be a commitment on the Minister’s part to make sure that the guidance will reflect our concern.

[Baroness Walmsley (LD)]

I wish to speak to Amendments 5 and 6 and hope that, in the further consultation on the guidance, the Government will be able to address the concerns raised by the noble Lord, Lord Patel. I have a question for my noble friend the Minister. There is nothing in the amendment about sanctions for not fulfilling this very serious duty to report a very serious crime, but the letter from the noble Lord, Lord Bates, referred to the fact that the sanctions would be professional and employment sanctions. I wonder whether my noble friend can clarify what that means and say why the Government feel that such sanctions to this new duty would be any more effective than the professional sanctions that already exist within professional associations for the sort of misconduct that we are talking about. To ignore knowledge of such a serious crime is not the sort of thing we would expect of a professional. Some of us feel that overlooking such a serious crime must require a more serious sanction than just leaving it to the professional associations to deal with.