Junior Doctors Contract

Lord Ribeiro Excerpts

Friday 20th November 2015 Lords Chamber

[Lord Prior of Brampton]

I completely agree with the noble Baroness. I am not going to stand here and be sycophantic about the Secretary of State for Health, but the one thing he has prioritised above all else since he has been there is patient safety and patient quality.

[Lord Ribeiro (Con)]

My Lords, Sir Terrence English in his excellent article in the Telegraph made the point that medicine is a vocation and doctors who enter the profession should recognise that patients always come first. The Armed Forces do not go on strike and neither, I believe, should doctors. On the issue of preconditions, in response to a question from Sarah Wollaston in the other place, the Secretary of State made it clear that there are no preconditions. I have looked at Hansard, and that is what he said. There are no preconditions and the BMA should recognise that and go back to the table.

[Lord Prior of Brampton]

My Lords, the threshold for strike should be very high because of the vocational and professional dedication of doctors. Certainly, the threshold should be higher than it usually is for pay and conditions issues such as the one before us today.

NHS: Costs of Operations

Lord Ribeiro Excerpts

Monday 9th November 2015 Lords Chamber

[Lord Prior of Brampton]

The reference costs try to pick up all the costs attributable to certain procedures. As I was saying earlier, a patient-level costing system would probably be more accurate. I did not catch the first part of the noble Baroness’s question, so perhaps we could deal with this outside the Chamber. Hospitals are incredibly complex and picking up all the costs, particularly allocating overhead costs to individual procedures, is difficult. Compared to any other hospital costing system I have seen in the world, though, the NHS reference-cost system is pretty comprehensive.

[Lord Ribeiro (Con)]

My Lords, one category not included in the list is the independent sector treatment centres. Are these proving as cost-effective as we would like? If so, is it not time that NHS consultants have greater access to them to deal with their elective cases, many of which are often cancelled because of the need to bring in emergencies?

[Lord Prior of Brampton]

My noble friend raises an interesting question about independent treatment centres, which are for elective cases, not emergencies. They are able to plan their case mix more accurately, and are much choosier about the case mix they take. They can be extremely efficient, and if they have the volumes coming through, they are. Because of the case mix they take, they ought to be able to deliver significant cost advantages over providing such surgical care in a normal NHS hospital. The argument for ring-fencing orthopaedic procedures, for example, is overwhelming in terms both of cost and the quality of care delivered.

Access to Palliative Care Bill [HL]

Lord Ribeiro Excerpts

Friday 23rd October 2015 Lords Chamber

[Lord Ribeiro (Con)]

My Lords, I too thank the noble Baroness, Lady Finlay, for introducing this important Bill. I shall address Clause 3, on education and training. In the debate proposed by the noble Lord, Lord Farmer, on palliative care yesterday, we noted the many harrowing accounts of treatments delayed, patients’ wishes to die at home denied and junior doctors unable to provide timely device and treatment. As a house surgeon in 1968—a long time ago—I felt well supported, not only by my medical colleagues but by the wise ward sister who provided immediate care and support for me. It is best to remember that nurses are much closer to patients and their advice on treatment should never be ignored.

However, times have changed. We no longer work an average of 100 hours a week or are resident on call. We now require junior doctors to work shifts of an average of 48 hours a week. Continuity of care has become a big problem, and handovers of the care of patients mean that some are occasionally overlooked. This is not the sort of care terminally ill patients require. The Parliamentary and Health Service Ombudsman’s report makes the need for education and training in palliative care mandatory, yet a report in the BMJ in 2013 found that 63% of doctors felt that they required specific training in palliative care. A national audit on care of the dying found that mandatory training for doctors occurred in 19% of trusts and for nurses in 28% of trusts. Given that only 21% of the sites audited had access to face-to-face palliative care services seven days a week, it is clear that we have a long way to go, and I hope that this Bill will help to accelerate the process.

A review of the Liverpool care pathway in 2014 found that medical training in palliative care was inconsistent and often inadequate and left many junior doctors ill prepared to care for dying patients. Breaking bad news and managing dying patients are difficult to learn and often require trainees observing how more senior staff or consultants do it. Part of learning is to reject practices which lack compassion and sensitivity. I agree with the noble Baroness, Lady Finlay, that end-of-life care should be part of all medical school curricula, as it is in the Intercollegiate Surgical Curriculum Programme—ISCP—for surgical trainees. The MRCS exam tests candidates’ ability to manage patients in need of palliative care. It uses actors in examination bays to play of the role of patient and challenge candidates to manage them not just correctly but with compassion and care.

My hospital—Basildon University Hospital—employs a care pathway for terminally ill patients which has an escalating treatment plan. It is established on admission. If there is an expectation of deteriorating health, agreement is reached on whether the intensive care unit is to be used or a programme of palliative care is to be introduced. The end-of life pathway should be consistently applied across all trusts, and I believe that the purpose of this Bill is that that should be the case.

It is also important to remember that not all patients who enter hospices go there to die. My wife, a physiotherapist, worked in a hospice for 10 years. She saw many patients come in and go out again having had their pain controlled, their anxieties, which have been referred to, alleviated and relieved and having been helped to mobilise, if they had previously been unable to do so.

We need to shift the balance from dying in hospitals to dying in hospices and at home in the community, as the noble Baroness, Lady Byford, so clearly explained. Providing access to palliative care seven days a week, 24 hours a day, will encourage more GPs to use those services rather than relying on acute hospitals for their dying patients. In doing so, we can reduce the cost in hospital because caring for patients in hospital is expensive and most terminal patients spend an average of 30 days in the acute hospital sector, which we should seek to avoid.

Palliative Care

Lord Ribeiro Excerpts

Thursday 22nd October 2015 Grand Committee

[Lord Ribeiro (Con)]

My Lords, sadly, the ombudsman’s report documents many instances of poor care, poor communication, a lack of active review of cases and inappropriate discharge from hospital. However, I take issue with a statement in the conclusion:

“How we die is part of the core business of the NHS”.

As one who practises medicine and surgery I do not recognise this, as the core business for me was to save lives and prevent death. Death and dying should ideally take place in quiet surroundings with people we love and care for around us. That is at home or in a hospice, as has already been mentioned. We should do more to increase financial support for the nation’s hospices. What are the finances? In 2010-11 we spent £460 million on adult palliative care and end of life care, but there are wide variations with some areas spending £186 per death on specialist care and others £6,213 per death—a wide variation, as I have said. Some 61% of the PCTs at that time spent less than £1,000 per death. Will the Minister say what the latest costs are and whether the variations have been ironed out?

Another issue is that of training for all healthcare workers—doctors, nurses, care assistants and even porters—in dealing with patients who are terminally ill. For doctors, breaking bad news can be a challenge for many. The Royal College of Surgeons in its MRCS examination has a communications bay marked, “Breaking bad news”, where we use actors to simulate patients or relatives so that we can put the trainees through a process where they have to break bad news to patients and react when the patients react adversely. It is important that this is not limited to examinations but is refreshed as part of continuing professional development.

Finally, all of this care must be delivered on a seven-day basis, and preferably with access to specialist palliative advice 24/7. The challenge is how to achieve this without the introduction of a seven-day service, and we know the deliberations that are going on at the moment vis-à-vis the junior doctors’ contract. It was a common occurrence to have dying patients referred by their GPs for admission on a Friday. I recognise that many of the people who were admitted on a Friday would subsequently die. So when we are considering mortality at the weekends, it is important that we bear this in mind. As has been said, one of the drivers for seven-day working is to try to reduce mortality at weekends. Hospital admissions in the last year of life cost the NHS £1.3 billion for adults and £18.2 million for children. Transferring some of these costs to the community and commissioning more hospice care may not only generate savings, but provide for the kind of death that 74% of patients desire. But as the right reverend Prelate said, 58% find that they end up in hospital. I therefore support the words of the noble Lord, Lord Farmer.

Health: Detection Dogs

Lord Ribeiro Excerpts

Thursday 17th September 2015 Lords Chamber

[Lord Prior of Brampton]

I agree with the noble Lord. Dogs—indeed, all pets—can provide companionship to many people who are lonely, particularly elderly people who have lost many of their relations. I congratulate Pets as Therapy.

[Lord Ribeiro (Con)]

My Lords, the Minister is absolutely right in referring to the research in Milton Keynes. As far as prostate cancer is concerned, a man’s best friend probably is his dog. However, there is no doubt that the molecular markers can be detected in urine, and this may be the way to go in future research. It needs to be directed in that way because just a simple dipstick might well be able to detect the markers. If it is possible to detect prostate cancers using dogs, will the Government be prepared to fund such research and carry out a proper controlled clinical trial?

[Lord Prior of Brampton]

Clearly, molecular diagnostics is a growing field and will have a hugely important role to play in diagnosing many cancers. This was certainly a recommendation of the cancer task force led by Harpal Kumar. We are not by any means saying that we should pursue dogs at the expense of molecular diagnostics, just that we should try every opportunity. There seems to be some evidence regarding the number of false positives—for example, the use of dogs to sniff urine is considerably more accurate than more conventional forms of detecting cancer. We would not therefore want to rule out the use of dogs by pursuing solely molecular diagnostics.

Health and Social Care (Safety and Quality) Bill

Lord Ribeiro Excerpts

Wednesday 18th March 2015 Lords Chamber

Moved by

[Lord Ribeiro]

That the Report be now received.

[Lord Ribeiro (Con)]

My Lords, I beg to move.

[Lord Turnberg (Lab)]

My Lords, I hope your Lordships will allow me just one minute. I do not intend to oppose this Bill, but in Committee I expressed some concerns about the possible unintended consequences of Clause 1. In fact, I have withdrawn an amendment I had intended to move that would have tried to mitigate some of these consequences by pointing to a rather better way of avoiding harm to patients by proper education, training and supervision within hospitals and care homes which would lead to a continuing, progressive reduction in harm but without stifling innovation. I withdrew my amendment because I was told that I would cause the Bill to fall and I have no intention of doing that. But I do hope, at least, that the noble Earl will be able to offer some reassurances on the points that I have raised.

Health and Social Care (Safety and Quality) Bill

Lord Ribeiro Excerpts

Friday 13th March 2015 Lords Chamber

[Lord Hunt of Kings Heath]

Perhaps I may say to my noble friend that I think that the noble Lord, Lord Ribeiro, should wind up first and then he should come back.

[Lord Ribeiro (Con)]

My Lords, I thank the noble Lord for that intervention, and I thank my noble friend the Minister for his succinct answers in respect of Clause 1 and the four amendments that have been tabled. Before I respond to the amendments in the names of the noble Lords, Lord Turnberg and Lord Warner, and the noble Baroness, Lady Finlay, I would point out that I have heard reference in the Chamber again today to zero harm. Clause 1 is not about zero harm but rather about reducing harm. It is very important that we make that clear right at the beginning as well as right at the end.

The noble Lords, Lord Turnberg and Lord Warner, do not object in their amendments to placing a clear duty on the Secretary of State, as defined in the Bill, and they recognise that the clause places an obligation on the Secretary of State to include steps to reduce avoidable harm in the requirements for registration with the CQC. However, they argue against including the term “no avoidable harm” and would prefer it to be replaced by “reducible harm”. We will get there. It is important to note that it is the providers of health and adult social care services in England that are required to register with the CQC, not individual members of staff. Again, the concerns that the noble Lord, Lord Turnberg, expressed at the beginning were about the perception that this obligation would fall to individual practitioners or health and care workers. It does not. It is very much defined as being on those who are registered with the CQC. That cannot be clarified enough. I think that my noble friend the Minister made that point.

At Second Reading, the noble Lord, Lord Willis of Knaresborough—he is unfortunately not here today, but has been supportive of the Bill—and I attempted to blow away the myth of zero harm, which implies something negative that will impact adversely on healthcare professionals when something goes wrong. The fundamental standards, which have been referred to, become law on 1 April. They will not be changed by the Bill, which places a duty on providers to ensure that safe systems are in place for the care of patients. It is about putting safe systems into place, just as in the airline industry you need safe systems in place to ensure that disasters do not occur.

Clause 1 is in no way critical of the new fundamental standards, which meet the demands of the clause. As the noble Lord, Lord Warner, said, NHS providers have sought assurances on this point, and I think they have been given. In their report, they also asked how the Government will avoid the clause creating a clinical culture with staff fearful of taking controlled risks and reporting mistakes. I think that education and training of the workforce will be used to ensure that that does not happen.

The noble Lord, Lord Warner, was also concerned about some aspects of Clause 1 and the effect that the Bill will have on the Secretary of State’s position. The Bill removes the Secretary of State’s discretion in determining whether the legal minimum standards for providers of health and adult social care cover the requirement to move towards no avoidable harm. This is so central to the quality and safety of services that it is right that there is no possibility of future Secretaries of State electing not to cover this area in the registration requirements. That is one of the principal reasons why it is important to have Clause 1 in the Bill and not just rely on the fundamental standards.

I mentioned training and education. The noble Lord, Lord Turnberg, expressed his considerable concerns about the culture, fear and frustration that the Bill will create, rather than openness and willingness. I will address his Amendments 2 and 3 by referring to the Department of Health’s response to the Francis report in its document Culture Change in the NHS, which recognises the importance of health education and safety. The Berwick advisory group has been mentioned a lot during our discussions, along with the health foundation. The Berwick review recommended that,

“all healthcare professionals receive initial and ongoing education on the principles and practices of patient safety, on measurement of quality and patient safety, and on skills for engaging patients actively”.

Health Education England’s commission on education and training for patient safety, chaired by Sir Norman Williams, a past president of the Royal College of Surgeons, and Sir Keith Pearson, the current president of NHS England, set out proposals for enhancing safety training for all health and care professionals covering four themes: how to raise concerns about patient safety; human factors, which are increasingly important for patient safety, particularly in surgery; mandatory training to improve patient safety; and service improvement for patient-centred outcome and patient safety.

The noble Baroness, Lady Finlay, expressed concern that the Bill might stifle the reporting of errors. Berwick recommended a number of measures to ensure the effective reporting of serious incidents and prompt action in response. Many such measures, such as the new national patient safety alerting system, are already in place, and 17 alerts have been issued in the past year. I believe that the learning and training tools are in place, and NHS England is working with the Health Foundation to implement Berwick’s recommendations. Where a provider takes the necessary steps to mitigate the safety risks, this will allow front-line staff to focus on the treatment and care needs of patients and service users. Far too often we have heard it said that practitioners are looking up to managers rather than looking down at their patients. This Bill, if implemented, will provide them with the knowledge and comfort that safety systems are in place and that, if they fail, it will be the provider who stands accused, not the professional. I hope that that will give some reassurance to the noble Lord, Lord Turnberg.

I was heartened to see the heading of Amendment 4, which was tabled by the noble Baroness, Lady Finlay. Although I do not agree with the substance of the amendment, it does make the point that “reducing harm in care” is what this Bill is about. Many speakers in our earlier debate, including my noble friend the Minister, referred to reducing avoidable harm. The noble Lord, Lord Hunt, also talked about the checklist. At Second Reading, in response to the point about checklists, I said that colleges and speciality associations totally support the proposal. As the Minister pointed out, the checklists are mandatory and disciplinary action will be taken if they are not followed.

[Lord Hunt of Kings Heath]

Does the noble Lord agree that there is a problem at the moment in that organisations feel somewhat inhibited in taking action against consultants? There are two things—the checklist itself, and then the consultant’s approach and attitude to the checklist. It would be very helpful to have support from the Royal College of Surgeons and other bodies alongside that of the Government to put a bit of backbone into the boards of organisations.

--- Later in debate ---

[Lord Ribeiro]

I entirely agree. This should be taken forward in all the colleges and, in particular, in the Academy of Medical Royal Colleges. Checklists do not stop with surgeons. There is a lesson here for many medical disciplines which could adopt similar practices. This is something that we should hear more about in future.

I have reflected on this in the light of today’s debate and the concerns expressed by the noble Lord, Lord Warner, and others, and I feel that the amendment tabled by the noble Baroness, Lady Finlay, provides an opportunity to look again at the heading of Clause 1 and to change it to “reducing harm in care”. I am assured by the Public Bill Office that it is possible to change a heading in a Bill without an amendment. I propose to accept the noble Baroness’s suggestion and recommend a change in the heading which will be printed when the Bill is enacted, although I may well ask her not to move her amendment in respect of the rest of the content.

I hope that that and the other assurances I have given about the progress in education and training following the recommendations of the Berwick report will reassure those who remain concerned that this clause implies zero harm. It does not, but it will encourage the reduction of harm in any health setting. It is progressive and does not imply that from the day that the Bill becomes law we will outlaw avoidable harm. To err is human. Our job should be to create a climate through the education and training of medical students—who from this autumn will become patient safety champions—trainees and all healthcare workers whereby they recognise that reducing harm is their responsibility. As a result, I hope noble Lords will not press their amendments.

[Lord Warner]

Will the noble Lord clarify the change in heading? On the first page of the Bill there are two references to “harm-free care”. Will both be changed to “reducing harm in care”?

[Lord Ribeiro]

No. The heading “harm-free care” will be changed to “reducing harm in care”.

[Earl Howe]

My Lords, before the noble Lord, Lord Turnberg, decides what to do with his amendment, I shall reinforce the explanation I gave earlier in answer to the noble Lord, Lord Warner. This clause removes the Secretary of State’s discretion around whether the requirements for registration with the Care Quality Commission should cover the safety of care. That is the approach at the moment, but the impact of the change we are making is to embed current policy and practice. As my noble friend Lord Ribeiro has helpfully explained, without this change a future Secretary of State could in theory decide not to include patient safety requirements in future regulations. The Bill ties the hands of future Secretaries of State on this important matter. It would require a change to primary legislation to alter that. That has substantive significance as well as presentational significance.

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[Earl Howe]

The noble Lord makes some very good points. The duty to share information will, we trust, ensure consistency in the sense that it will make it clear when the duty to share applies. It is clear that there is a real commitment throughout health and adult social care to overcome the cultural barriers that Dame Fiona referred to. For example, the sharing of information for the purposes of an individual’s direct care is already required as part of the professional duties of health and care professionals, and sharing for direct care purposes can be undertaken in accordance with the common-law duty of care.

The department is already working with its national partners to offer practical support to local provider and commissioner organisations on information governance and sharing. For example, the department is partner to the Information Governance Alliance, a group of national health and care organisations which has been established to provide a single authoritative source of guidance and support on information sharing. I confirm to the noble Lord that the guidance will include specific examples and will be prepared in consultation with our key stakeholders.

Turning to Amendment 6, the NHS number helps to ensure that an individual’s health and adult social care history is readily accessible when they move along their care pathway. This will improve safety and the experience of care. The adoption of the use of the NHS number as a consistent identifier has been a long-standing government objective.

It may help if I explain a little about the purpose and use of the NHS number. An individual does not need to know their NHS number to get treatment. Conversely, having an NHS number does not imply entitlement to the free use of all NHS services. The NHS number helps to confirm the identity of patients and link health records. There are some electronically based services for which an NHS number is essential and from which a patient who objects to the number being shared may not be able to benefit—for example, as the noble Baroness said, screening programmes, choose and book referrals, and electronic prescriptions in primary care. In these instances, the implications of objecting may be serious, which underlines why the decision to opt out should always be considered carefully and discussed with professionals.

That said, there is an important principle at stake here. The Government are committed to empowering the individual. In the future, it will increasingly be the citizen who determines who has access to their data, with care professionals respecting their preferences. For that reason, the Bill provides that if an individual objects, or is considered likely to object, then no duty to share information will arise under these new provisions. I hope that that is a useful explanation for the noble Baroness.

I am pleased to reassure her also that the Bill will not have any effect on the existing systems to protect victims of abuse. The Care Act 2014 sets out clear duties on adult safeguarding. Under the Act, local authorities must make inquiries, or cause others to do so, if they reasonably suspect that an adult who has needs for care and support is, or is at risk of, being abused or neglected.

Statutory guidance will provide that the early sharing of information is key to providing an effective response where there are emerging concerns. Where an adult has refused to consent to information being disclosed, practitioners must consider whether there is an overriding public interest that would justify information sharing.

There are equally robust mechanisms in place to protect children. The Department for Education has produced statutory guidance entitled Working Together to Safeguard Children, which clearly sets out that professionals should share information with local authority children’s social care where they believe that a child is at risk of abuse or neglect. It states:

“Fears about sharing information cannot be allowed to stand in the way of the need to promote the welfare and protect the safety of children”.

Existing guidance on information sharing for practitioners and managers states that if a child is suffering or is likely to suffer significant harm, professionals should share information even if consent is refused or withdrawn. The interests of the child are paramount.

I agree wholeheartedly with the sentiment behind the amendment in the name of the noble Baroness, Lady Hollins. It is critical that an individual’s communication needs are identified and shared appropriately with those responsible for providing and commissioning care and services. This Bill requires the sharing of information where this information is,

“likely to facilitate the provision to the individual of health services or adult social care in England, and … in the individual’s best interests”.

An individual’s particular communication needs would be a good example of such information. This will be made clear in guidance.

The concerns that the amendment seeks to address reflect those Mencap has recently raised with the Department of Health. I am pleased to say that my officials have had constructive discussions with Mencap and we welcome its offer to help shape the guidance. Mencap welcomes the Bill as it has the potential not only to improve information sharing between health and social care, especially for people with a learning disability, but also has, in its words, the potential to “save lives”. I would add that, provided the patient or his or her attorney have consented to its inclusion, any information from a GP record that can be coded can be included on a summary care record. Work is already under way to expand the summary care record inclusion data set to include specific communication needs items.

[Lord Ribeiro]

My Lords, I thank the Minister for clarifying the issues around the consistent identifier. It is interesting that the use of the consistent identifier and the sharing of information was welcomed at Second Reading by the noble Lords, Lord Turnberg, Lord Willis of Knaresborough and Lord Hunt of Kings Heath. The noble Lord, Lord Hunt, confirmed that the Opposition were very supportive of sharing a patient’s information, which, as he said, was,

“clearly in the best interests of their patients”.—[Official Report, 6/2/15; col. 961.]

That slides me very easily and comfortably into Amendment 5 and the question of best interests, which, again, has been addressed. I must confess that I have always used, and continue to use, the term “best interest” without assuming that this can be used only about those without mental capacity, as defined by the Mental Capacity Act 2005. It is my understanding that in these clauses the phrase “best interests” assumes its general meaning and provides a relevant person with a duty to act in the individual’s best interest when providing information for direct patient care. That is my understanding of the term.

As regards Amendment 6, patient control and choice about how their information is used is the subject of wider government policy. I believe that what needs to be done in that respect has already been illustrated. It is about empowerment of the individual and giving them control over their own information. I also welcome the intervention of the noble Baroness, Lady Hollins, in highlighting a key piece of information in patient care. Her description of a patient who died after surgery for want of the right word when asked a question—the patient answered incorrectly, which led to a fatal outcome—was truly revealing. In my experience, it is critical that if an individual has particular communication needs, those who provide care or treatment should know about them beforehand.

I am confident that the requirements to share information in support of direct care in the Bill already encompass communication needs. The Minister commented that Mencap has sought reassurances that health professionals should become more aware of the ways in which people can communicate their health and care needs. I am sure that, from his statement earlier, work on this will take place to ensure that those concerns are met. With those comments, I hope the noble Baroness will be happy to withdraw her amendment.

[Baroness Finlay of Llandaff]

My Lords, I am grateful to the Minister for being so clear in addressing the issues that I have raised and for the supportive further clarification sought by the noble Lord, Lord Hunt, of Kings Heath. It will ensure that the term “best interests” is attributed only its ordinary meaning and not misinterpreted for the purposes of this Bill as meaning “best interests tests” as outlined in the Mental Capacity Act. I am also grateful that the guidance and the Explanatory Notes will be amended as both noble Lords have outlined. I appreciate the welcome of the noble Lord, Lord Ribeiro, for how the debate has gone and what has happened. I therefore beg leave to withdraw my amendment.

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[Lord Elton]

In fact, Reg Wells-Pestell, not Goronwy Roberts, was the Minister. I want to get that right for anyone who is old enough to remember and reads Hansard.

[Lord Ribeiro]

My Lords, the amendment tabled by the noble Lord, Lord Warner, seeks to extend the use of the NHS number to services that benefit children, particularly those in social care, and which protect them from abuse. The Minister addressed the amendments in some detail and I was pleased to hear the assurances he gave, which I hope will have an effect. But I also note that the noble Lord, Lord Warner, was pretty impartial in his criticism of both Front Benches, and the suggestion that they come together and provide some movement is something that perhaps could happen when we have the report from the Department for Education at the end of the year. I will leave it to the noble Lord to decide. He has already intimated that he will not be pressing his amendment.

[Lord Warner]

I just want to register something with the Minister. I am grateful for what he had to say, but the whole issue of trying to make progress in this area is littered with attempts at reviewing the information that is available on making the world a better place. As the noble Lord opposite has reminded us, we have to go back 40 years for the first really serious child abuse scandal, involving Maria Colwell, which came to light. Since then it has been 40 years of agencies, in case after bad case, failing to share information that would have saved a child’s life. As I said, 12 years ago the noble Lord, Lord Laming, said his piece on one of those cases and made it very clear that a common database was required, with a linked identifier.

It is no good the Department for Education crawling all over the ground again and finding 27 reasons why we should not do anything. We need some action. There is plenty of evidence about why a common identifier would make things a lot safer for children. They are pretty much the same arguments that you would use in relation to adults; they are not fundamentally different. The Government and the Opposition Front Bench need to understand what is going on around the country—it is happening in Birmingham—where the agencies are coming together in multiagency safeguarding hubs. But when they come together, they find that their data systems cannot talk to each other, even if they are in the same room, because there is no easy linkage between the different databases.

If we wish to make kids safe, we have to progress this issue quickly. Frankly, I am not wildly reassured by a DfE review by the end of this year in an area that is littered with information about the need to make progress. It is not just me; I think that many of those hard-working professionals I have talked about cannot see why the government bureaucracy—whoever is in government—cannot make some progress in this area. Having got that off my chest, I beg leave to withdraw the amendment.

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[Earl Howe]

My Lords, I very much hope that I can allay the concerns of both noble Baronesses and the noble Lord. In its report, the Law Commission recommended a consistent main objective for professional regulators and the PSA around patient safety. It also recommended two subsidiary objectives: maintaining confidence in the profession and proper professional standards and conduct. The Law Commission’s report describes this proposal as restating the existing legislative position that public protection is the regulators’ main objective. The Government’s view is that public protection is sufficiently important that it should be expressly adopted in the legislation.

The noble Baroness, Lady Pitkeathley, asked whether public confidence might conflict with public health, safety and well-being. In the example of the Professional Standards Authority identifying a poorly performing regulator, it is clear that the interests of public protection and public health, safety and well-being would require the PSA to take action. In this example, any argument that the objective of promoting and maintaining public confidence in the professions would require the PSA to conceal poor performance would clearly run counter to public protection. The objective of promoting and maintaining public confidence in the professions does not mean that the PSA or the regulatory bodies should be promoting the reputation of the professions generally. Rather, it is about taking action where there is a risk that confidence in the profession as a whole is undermined to the extent that it may deter people from seeking the treatment or care that they need and impact on public protection. This example highlights the fact that while the objectives are all linked to public protection, in practice they may not always necessarily be relevant, or relevant to the same extent in particular cases. It is not a case of one objective overriding another or preventing it being considered but ensuring that they are pursued only where they are relevant to public protection.

The Bill does not prioritise or weight one element of public protection over another. It is for the PSA to determine how it applies those elements in carrying out its functions in relation to the regulators and considering the issues of the case. My view is that health, safety and well-being will always be relevant to public protection when the PSA is carrying out its functions in relation to the regulators. It will be for the PSA to determine how to apply the objectives appropriately.

The noble Baroness asked whether the objective to promote and maintain public confidence might inadvertently lead the regulators to be less transparent in highlighting bad practice. Equally, that might lead to regulatory committees and panels punishing professionals who do not pose any threat to the public. If the actions of a doctor appear likely to reduce confidence in the medical profession and influence the decision of individuals as to whether to seek medical help at all, it may be right to take action. However, panels and committees will be asked to reach their own objective judgment as to whether particular acts or omissions would affect public confidence if no action were taken. A subjective view, uncritically influenced by public opinion or the media, would be an unacceptable basis for a decision.

Turning to the term “well-being”, the BMA has raised concerns with my ministerial colleague Dr Dan Poulter about how it would be interpreted by fitness to practise panels and committees. Well-being has been a long-standing and established feature of the legislation for three of the regulators. It encompasses those aspects of a professional’s role that may have an impact on individual patients but not directly impact on their health or safety. Dignity, compassion and respect are all important in delivering care, and it would not be right to disregard them.

It will be for the regulators to formulate and issue guidance for fitness to practise panels on interpreting and applying the objectives in practice, including the term well-being. The legislation makes clear that those objectives are considered only under the umbrella of public protection.

My officials will draw the regulators’ attention to those concerns should the overarching objective become law. That is in order to inform any guidance that will be needed to implement both this Bill and the secondary legislation for the GMC.

The noble Baroness, Lady Finlay, also asked about how we view the definition of “public” in the Bill. It of course includes patients and service users, as well as other parts of the collective public. I hope that that reassures the noble Baroness that the objectives in relation to well-being and public confidence will not be pursued outside the regulators’ objective to protect the public.

[Lord Ribeiro]

In following the Minister, perhaps I may deal, first, with “well-being”. At paragraph 3.20, the Law Commission’s report states:

“We disagree with the criticism of ‘well-being’. This term has already been incorporated without difficulty into the main duties or objectives of many of the regulators”.

Within that context, it feels strongly that that term cannot be misinterpreted.

The Bill introduces consistent objectives for the PSA and the regulators based on the proposals of the Law Commission’s review last year. Most of the professional regulators have some form of main objective. Although they are not consistently expressed they are generally to protect, promote and maintain the health and safety of the public. It is the health aspect with which the noble Baroness, Lady Pitkeathley, was particularly concerned at Second Reading. I think that that concern has been allayed today.

It is clear that public protection—by “public” I of course include patients—is sufficiently important that it should be adopted expressly in legislation. Defining public protection in terms of these three elements to be pursued by the regulators and the PSA as their overarching objective enables public protection to be considered in its fullest sense. That should give comfort and reassurance to the noble Baronesses who have spoken. With that, I hope that the noble Baroness will agree to withdraw the amendment.

[Baroness Finlay of Llandaff]

My Lords, I am most grateful to the noble Baroness, Lady Pitkeathley, for having expanded on and brought better definition to the points that I was trying to make on the amendments and for the clarification that we have had from the Minister and the noble Lord, Lord Ribeiro. I therefore beg leave to withdraw the amendment.

Human Fertilisation and Embryology (Mitochondrial Donation) Regulations 2015

Lord Ribeiro Excerpts

Tuesday 24th February 2015 Lords Chamber

[Baroness Hollins]

That is a good point.

Supporters of the techniques simplify the impact of these proposed procedures by saying that mitochondrial donation is like changing a battery. Their argument runs that mitochondrial DNA relates only to power production in the cell but does not affect the DNA, which encodes our characteristics, and therefore that exchanging mitochondria should not be seen as ethically significant. In a debate last September, the honourable Member for Havant in another place summed up this position well when he said that the techniques represented,

“a change in the membrane of the cell so that the battery function continues, but it does not affect human identity even by 0.1%. That is why I do not believe that there is an issue of dignity or integrity of the individual”.—[Official Report, Commons, 1/7/14; col. 98.]

The Government underlined how important this point was to their policy in their consultation response when they said:

“Most importantly, mitochondrial donation techniques do not alter personal characteristics and traits”,

of the person, the implication being that if this technology were to affect personal characteristics then the Government would withdraw their support.

So the ethics and the safety of the science are inextricably linked. Unfortunately, it seems that we are still at the beginning of understanding the complex interactions between mitochondrial and nuclear DNA. Some recent empirical studies on animals have suggested that mitochondria indeed affect characteristics, and that there is a relationship between mitochondria and memory, temperament and behaviour. As a psychiatrist, I see temperament as a personal characteristic, and I think it was for that reason that the New Scientist withdrew its support for the techniques. In an editorial last year it said that,

“we may have seriously underestimated the influence that mitochondria have. Recent research suggests that they play a key role in some of the most important features of human life”.

I note that the Government’s own consultation document acknowledged the diversity of problems associated with mitochondrial disease, including learning disabilities, neurological problems, autonomic dysfunction and dementia, and that every person’s symptoms are different. The Government’s response to the consultation concluded that they do not alter personal characteristics. One problem that I have with the current proposals is the idea that mitochondria are mere batteries, which is what has been quoted in so many of the papers that have been circulated to Peers. The New Scientist leader comment in September last year said that most debate around the issue had worked on the assumption that mitochondria were simply cellular powerhouses. However, given their newfound influence over our bodies, the implications of this technology may be far more radical than we have assumed. The leader made the point that it seems that mitochondria, far from being passive power plants, influence some of the most important aspects of human life, from memory and ageing to combating stress and disease. They even have influence over the DNA in your cell nuclei and change and evolve during your lifetime.

I have been inundated by emails, as I am sure we all have, from people who are concerned. I had an email from a cell biologist working in California, Professor Paul Knoepfler, who contributed to the HFEA’s call for evidence. He said that,

“mitochondrial transfer might be proven safe, but then again it might not. From my perspective as an impartial (scientific) observer … putting myself at some risk by publicly opposing this technology … its approval at this time would be a … risky gamble with children’s health and lives”.

He says that many scientists have told him that privately they share his concern.

I have one question for the Minister: would he withdraw his support for the regulations if he thought that the role of mitochondria was more than mere power production? Would he then support the amendment of the noble Lord, Lord Deben, for further consideration of this matter?

Until recently, the Wellcome Trust had on its website a statement suggesting that the procedure would be able to go ahead in late 2014, when the science was ready. But is the science ready? I am not quite convinced yet. As noble Lords may be aware, I chair the BMA board of science, which has not yet discussed this matter. I have discussed my support for the noble Lord’s amendments with senior officers of the BMA, and perhaps I may clarify the BMA’s position. Its support for the principle of such reproductive technologies has been expressed as an ethical principle to allow the cautious exploration and development of such technologies. I have concerns about the timing of these regulations, and for that reason I welcome the opportunity to debate them presented by the noble Lord, Lord Deben.

[Lord Ribeiro (Con)]

My Lords, we have heard from legal and medical experts. I am happy to say that I am not an academic and I know very little about the subject. However, it strikes me that if we look at the practicalities from the point of view of the parents who are afflicted by this condition, and we turn back to 1978 when baby Louise Brown was born as a result of the in vitro fertilisation undertaken by Steptoe and Edwards—

[A noble Lord]

In Oldham.

[Lord Ribeiro]

In Oldham—quite right. From that one invention, nearly 5 million children have been born who otherwise would not have been because their parents were infertile. There was a strong religious lobby against it at the time; indeed, a lot of people were against it because it was interfering with the genesis of life. This fatal Motion seems to carry some of that feeling with it.

I am a mere surgeon. I had the opportunity to visit the Lister Fertility Clinic with a parliamentary group to learn a bit more about IVF and how it was carried out. I watched the technicians—not the doctors—who had gained expertise in intracytoplasmic sperm injection. That is the technique whereby you isolate the egg, find a lively sperm and then inject it straight into the cytoplasm. The technique that has been suggested for mitochondrial donation is not dissimilar from that. A lot of expertise has been gained over the years when that has been done. I heard the noble Baroness, Lady O’Loan, and, I think, my noble friend Lord Elton refer to the situation of donors.

[Lord McAvoy (Lab)]

The noble Lord seems to be saying that there is no difference between IVF and the mitochondrial process. However, IVF does not require the genetic modification of human eggs and embryos, or tampering with the contents of the egg or embryo itself. This technology requires both.

[Lord Ribeiro]

I take the noble Lord’s point. If I wanted to, I could explain why this is not an issue. One point that arises is that it is illegal to tamper with the nucleus. The technique that we are discussing relates specifically to mitochondria.

I will move on. Having seen this technique at work in the clinic, I am absolutely reassured that the expertise is there and, therefore, that the technique of mitochondrial donation, if allowed, could be carried out successfully.

I will speak briefly about the families who are currently facing the prospect of having children with severe mitochondrial disease. We are told that the numbers of those who will have severe disease is in the order of 10 or 20 per year. This technique can be fully utilised only after the regulations have passed, the HFEA has ensured that it is safe and each unit has demonstrated that it can do it safely. Only then will these families be able to have this done.

Informed consent is a prerequisite in any medical procedure. Informed consent is important because patients have to be sure that what they are having done is in their best interest. They have a choice of whether to accept what the doctor is offering or to reject it. My noble friend Lord Ridley referred to Claire Wright, a mother who lost a baby at 18 months. I was fortunate to meet her yesterday and to hear her story. What she said to me was very moving and touching. If she had the opportunity to have mitochondrial donation done, her concern was that the clock was ticking and that she may have reached the point where she would no longer be able to undergo the procedure. Yes, she could remain childless. Yes, she could adopt. But she would like to have a child that bears some of her genetic characteristics. I think that this technology will allow that to happen.

Nothing that we have in medicine at the moment can provide 100% safety—

[Lord Alton of Liverpool]

I am grateful to the noble Lord. Before he moves on, I want to speak to his point about adoption. Your Lordships will have seen the recent parliamentary reply on this. In the past five years, around 5,000 newborn babies have been available for adoption. That is all, compared with more than 1 million babies that have been aborted during that period. Does he not think that we should be much more interested in seeing if we can put right that imbalance?

Does he also recognise that there is a difference between the two techniques that are being offered to the House today, maternal spindle transfer and pronuclear transfer, in that one requires the destruction of human embryos, 2 million of which have been destroyed since the original legislation was enacted in 1990, and the other does not? On the basis of what I think he believes and says, is it therefore not only more prudent but more ethical to use the technique that does not result in the destruction of human embryos?

[Lord Ribeiro]

It was made very clear by the noble Lord, Lord Patel, and others that the need for the two techniques is to allow the HFEA to make a decision on which is the preferable technique. We have a situation at the moment where many of the embryos that are produced are discarded after the 14 days or so that are allowed. I will not go into the question of adoption. It is a matter of choice. If the family would prefer to have a child without this affliction, that is their choice, and they may not choose to go down the adoption route.

Returning to the subject of safety, as has been stated, no procedure can guarantee 100% safety. Even the natural birth that we all go through will produce children with defective genes and abnormalities; even nature cannot get it 100% right. To expect a situation where we have to demonstrate to all and sundry that this procedure is 100% safe is impossible.

Finally, it is important to recognise that passing this regulation is not opening Pandora’s box. We are not going down the route of eugenics and we will not create monsters. We must trust the scientists. We must recognise that we have regulation in this country—one of the most regulated countries in the world in the health field—and I believe that we must leave it to them to make the case. As was said by my noble and learned friend Lord Mackay of Clashfern, the decision was already made in 1990, when he was responsible for taking the Bill through Parliament. In 2008, it was modified with the full understanding that this type of technique might well be brought into use.

The day has come, the time has come and, frankly, we must just get on with it.

[Baroness Warwick of Undercliffe (Lab)]

My Lords, I come to this debate without any expert legal or medical experience or perspective. As a former chair of the Human Tissue Authority, I worked closely with the Human Fertilisation and Embryology Authority, the well established regulator in this area. I came to know the way in which it regulated and certainly had confidence in it, as indeed Parliament has. As a former chief executive of Universities UK, I am also familiar with the research trials that are rigorously and vigorously undertaken in health research before any change or new technique is introduced into clinical practice. I have come to know the bodies which speak for science and for medical research, such as the MRC and the Royal Society, and the Association of Medical Research Charities, of which my noble friend Lord Turnberg has been a scientific adviser, as well as the Nuffield Council and the Wellcome Trust. I realise how fortunate we are in this country to have pre-eminent organisations, respected around the world, the main aim of which is to ensure that research is rigorous, honest, thorough and ethical. I say all this because I take great comfort in the fact that, where there are complex areas of science or new techniques, particularly where they might be controversial—as with fertility and genetics—we have the knowledgeable, forensic and wise guidance of these bodies to help us in Parliament to arrive at secure solutions.

Mitochondrial DNA disease is severe. In most cases, we are told, it causes early infant death, and the few children who survive suffer multiple health problems. Mitochondrial donation, a new reproductive technology developed by our world-leading scientists in Newcastle, is important because it enables families affected to have a healthy child. Our decision today will be immensely important to those families.

A key question has been raised about the safety of the procedure. As others have said, while no medical procedure can be guaranteed to be 100% safe, a huge amount of testing has been done to establish the relative safety of this particular procedure.

I have no professional expertise in this or in any other area of disease. So, like most other women and men in the street, I rely on the rigour and competence of our regulators, ethicists and clinical testing systems to provide the best possible guidance on new techniques and procedures, to enable me to make up my mind—even if some of the evidence is contradictory. All the bodies that I referred to earlier, and others which represent the families of those tragically affected by the disease, favour this regulation to permit mitochondrial donation. They have provided excellent briefings, and there was a hugely helpful seminar yesterday where experts on different aspects of this issue addressed a range of concerns. They have pointed to seven years of intensive scrutiny, three separate reviews of the scientific evidence on the technique’s safety, independent ethical reviews and an extensive public consultation. Currently, the law allows for these techniques to be used only in research. It is up to us in Parliament to decide whether these techniques are ethical and whether they may, with safeguards, be used in patients.

The Nuffield Council on Bioethics found that, given the benefits to individuals if shown to be sufficiently safe, the techniques are ethical for families to use. The public, during consultation, concurred. The Wellcome Trust has helpfully set out the scientific evidence and detailed reasons why the procedure cannot be seen as genetic modification. What is very clear is that scientists throughout the lengthy period of research have been open and transparent. Nothing has been hidden, including their disagreements. There has been no conspiracy, as some of the critics seem to have suggested.

I found that I had a lot of sympathy with my noble friend Lord Turnberg and the noble Viscount, Lord Ridley. All the evidence I have seen and the arguments I have heard reassure me that this is not a slippery slope or an open door, or any other cliché. Nuclear DNA is not altered, so donation will not affect the child’s appearance or personality, or its uniqueness. It will simply allow parents to choose to have children who are genetically related to them but who are free from potentially devastating disease. I trust that the House will support these regulations.

Health and Social Care (Safety and Quality) Bill

Lord Ribeiro Excerpts

Friday 6th February 2015 Lords Chamber

Moved by

[Lord Ribeiro]

That the Bill be read a second time.

Relevant document: 16th Report from the Delegated Powers Committee.

[Lord Ribeiro (Con)]

My Lords, I declare an interest as a past president of the Royal College of Surgeons and current chairman of the confidential reporting system for surgery, CORESS, the aim of which is to record near misses during surgery in a similar way to how the confidential reporting programme for aviation contributes to airline safety. I am grateful to the honourable Member Jeremy Lefroy, MP for Stafford, for inviting me to sponsor his Private Member’s Bill in this House. The Bill has the support of the Government, the opposition Members who spoke in all stages of the Bill in the House of Commons and, in particular, the honourable Member Jamie Reed, MP for Copeland.

“First, do no harm” is a guiding principle that all doctors embrace as they start their medical careers. It comes from the Hippocratic oath, which many newly qualified doctors still take, which says:

“With regard to healing the sick, I will devise and order for them the best diet, according to my judgment and means; and I will take care that they suffer no hurt or damage”.

As a young doctor starting my first surgical house job in January 1968, I was made all too aware by my consultants that my first duty was to ensure the safety of my patients.

Jeremy Lefroy was motivated to introduce the Bill because of the concerns of his constituents, Julie Bailey of the Cure the NHS Campaign, who challenged the care given to patients at Mid Staffordshire NHS Foundation Trust, and Ken Lownds, a champion of patient safety. The subsequent two inquiries by Sir Robert Francis identified appalling failures at the trust, which became apparent only after visits by the Healthcare Commission. The findings from Mid Staffordshire and Winterbourne View confirmed that harm to patients was occurring across health and social care services. Many of Sir Robert Francis’s 290 recommendations have been adopted and are part of the new inspection process adopted by the Care Quality Commission. One would hope that that would be the end of it. However, how many times have we heard after such an event, “Never again” and “Something must be done”?

The Bill arises from a determination to see that what happened at Mid Staffordshire and Winterbourne View will never happen again. It seeks to put the safety of patients at the very front of all inspection processes by the CQC. As Jeremy Lefroy stated at Second Reading:

“Of course, legislation on its own will not guarantee safe and high-quality care—leadership, culture and resources are all vital elements—but by making it clear in law what is expected of those providing health care, the Bill will go a long way to doing so”.—[Official Report, Commons, 7/11/14; col. 1080.]

Thus, Clause 1 amends the Health and Social Care Act 2008 to make it clear in legislation that it is the duty of the Secretary of State to ensure that patient safety should be a priority at the forefront of any inspection of hospitals, GP practices and care homes by the CQC. It makes explicit what is implicit. Clause 1 changes the Secretary of State’s power to a duty, replacing “may” with “must” to ensure that all health and social care providers have one objective: the avoidance of harm to patients and members of the public in their care.

Clause 1 refers, in new subsection (5B)(b), to avoidable and unavoidable harm. It might be helpful to explain that to noble Lords by reference to a surgical procedure with which I am more familiar. During surgery for trauma to the abdomen, it may prove impossible to repair collateral damage to the spleen, which it is possible to do in an elective operation. However, in an emergency, removal of the spleen may be unavoidable in order to save life. A notable case of avoidable harm is that which befell Sir Anthony Eden—the Earl of Avon—when, in the course of gall bladder surgery, his bile duct was damaged. The complications that followed blighted his health and subsequent political career.

A test of reasonableness rightly applies in assessing whether harm is avoidable. For instance, before undertaking a colonoscopy, a patient is always warned of the risks of bowel perforation—about one in 500 when I was practising. The patient has a right to expect that the hospital will have the necessary systems in place to deal with any problems immediately, should unavoidable harm occur. New subsection (5B)(b) recognises that dilemma and makes allowance for it. As the Explanatory Notes observe,

“a test of reasonableness applies in assessing whether or not harm is avoidable, to acknowledge the risk intrinsic in many clinical treatments”.

Clause 1 will ensure that all health and social care providers create systems to reduce the incidence of avoidable harm. “Zero harm” is a laudable aspiration, but we received many emails, particularly from the Health Foundation and others, which stressed that zero harm is not achievable. However, as the 2014 NHS England report on “never events” demonstrates, such incidents continue to occur. In 2012-13 there were 329 reported incidents: 83 from wrong site surgery; 42 from wrong implants or prostheses; and 130 from retained foreign objects. Other examples of avoidable harm can be found on the wards, with patients left without food or water—which may be there, but out of reach—low staffing levels which lead to patient neglect, and instances of actual physical harm such as those reported at Winterbourne View. We still have a way to go, but Clause 1 will encourage us to do so by ensuring that there is a legal duty to hold providers to account for the safety of care to patients and service users for years to come.

Clauses 2, 3 and 4 are intended to encourage integration between health and social care services by utilising a consistent identifier of patients and the sharing of information for direct care purposes where that is in an individual’s best interests.

In the debate in the House of Commons on 10 December 2014, Dr Poulter, the Minister for Health, stated that it was the Government’s intention to specify the consistent identifier as the NHS number. That will come as some comfort to the patients who move from hospital to hospital, collecting different hospital numbers along the way, which can often lead to delays in transmitting information. Greater use of the NHS number would make it easier to share information on patients between the various systems in the NHS and the social services, to improve the care given.

As a clinician, I know all too well the vital importance of accurate and timely information to the delivery of care. I am strongly of the view that these clauses, requiring as they do the sharing of information about patients in support of their direct care, and in their best interests, will improve the safety and quality of that care. Requiring the use of the NHS number will facilitate sharing, helping to ensure that information follows the patient, so that information is there when it is needed. This is important whenever care is delivered, but is particularly crucial in the delivery of urgent care, and for patients with complex care needs, when several organisations are working together to deliver the best possible care. Not only will this save doctors and nurses valuable time which could be better spent on caring for patients, it will also reduce the risk of errors caused by a lack of information about a patient’s history. Furthermore, it will spare patients the frustration of having to tell their story over and over again, leading to a smoother, more joined-up experience of care. I am sure that the Minister will comment on this.

In Clause 2, it is important to recognise that there will be vulnerable people and sensitive health services which depend on anonymity to encourage attendance. The duties to use the NHS number and to share information for direct care purposes would not apply when an individual objects or would be likely to object. Dame Fiona Caldicott, who enshrined the six Caldicott principles in 1997 for information governance has, in the recent information governance review for 2013, added a seventh principle:

“The duty to share information can be as important as the duty to protect patient confidentiality. Health and social care professionals should have the confidence to share information in the best interests of their patients within the framework set out by these principles”.

Getting the balance right is important, and Dame Fiona Caldicott noted that after the second Francis report she was struck by the need for cultural change in the NHS. She said:

“A re-balancing of sharing and protecting information is urgently needed in the patients’ and service users’ interests, which is supported by those citizens with whom we discussed these issues”.

Education and training to ensure that staff show respect, compassion and dignity in their dealings with patients, particularly with an ageing population, is crucial if the risk-averse attitude to sharing information is to be overcome. As the newly appointed National Data Guardian, we can rely on Dame Fiona Caldicott to ensure that data are protected.

On 11 March 2013, the noble Lord, Lord Patel, who is not in his place today, introduced a short debate on the Mid Staffordshire Foundation Trust. In my contribution, I referred to the role of the Royal College of Surgeons in providing two reports commissioned by the Mid Staffordshire Foundation Trust following an invited review of clinical services. The RCS was criticised by Sir Robert Francis for not sharing its findings beyond the trust, even though the report, once delivered, was the property of the trust that commissioned it. I had suggested previously a mechanism for reporting concerns about patient safety, following college visits, to Sir Ian Kennedy when he was chairman of the Healthcare Commission and I was president of the college. The role of the Royal College of Surgeons would be to oversee the training of surgeons in hospitals, while the Healthcare Commission would deal with any patient concerns we identify. Sadly, this did not happen as college visits were not reinstated and the CQC took over the role of the commission in 2009. It then overturned a robust system of inspection, which had identified the problems at Mid Staffordshire hospital.

It is worth noting that, following the Francis report, CQC inspection teams now have a larger clinical component. In highlighting the problem of Mid Staffordshire, we must recognise—as the noble Lords, Lord Patel and Lord Warner, did in their contribution to the debate—that there are many excellent NHS hospitals employing staff who should not be tarred with the same Mid Staffordshire brush.

Clause 5 and the schedule set out consistent overarching objectives relating to the Professional Standards Authority and regulators of health and care professions. These are based on a consistent overarching objective of public protection, furthered by three individual objectives of protecting, promoting and maintaining health, safety and well-being of the public; promoting and maintaining public confidence in the profession; and upholding professional standards and conduct. The regulators’ fitness to practise panels and committees, as set out in the schedule, would also be required to consider these objectives. Consistent with this Bill’s theme of safety and quality, this will help confirm that these regulators are able to act to ensure public protection in its widest sense.

The BMA has expressed concerns about the inclusion of maintaining public confidence as an objective for regulators, fearing the use of this consideration as a pretext for initiating the investigation of health professionals through fitness to practise proceedings. It has raised with me the issue of guidance for regulators, declaring how the overarching objective and, in particular, the elements related to public confidence and well-being will be applied in practice. I believe that this is an important issue and I am sure that my noble friend the Minister will be able to give assurances on it.

I have made no reference to the Law Commission’s draft Bill on the regulation of health and social care professionals, which recommends that a single statute for all regulatory bodies should be established to provide an overarching duty to protect the public. I know that the noble Baroness, Lady Pitkeathley, will wish to comment as chairman of the Professional Standards Authority. I will defer to the Minister to deal with the noble Baroness’s concerns.

The Royal College of Surgeons proposed two amendments, taking forward aspects of the Law Commission’s review of the regulation of health care professionals during the Commons stages. My honourable friend Jeremy Lefroy responded that these would not be included in the Bill and that the Government will take these issues forward as part of their response to the Law Commission. I have received emails from the Nursing and Midwifery Council, the General Pharmaceutical Council and others that would wish to see the Law Commission’s proposals introduced as a government Bill. Would my noble friend the Minister confirm the Government’s commitment to legislation? Following the many reports post-Francis on patient safety, including those by Don Berwick and Sir Bruce Keogh, it really is time to put into legislation measures that will make it possible to achieve harm-free care and to ensure that patient information can be identified and shared for the specific purpose of improving care for patients who consent for this to be done.

In conclusion, I thank Jeremy Lefroy MP for introducing this Private Member’s Bill and for his deft hospital pass; the noble Earl and the Bill and policy team at the Department of Health for their many meetings with me; and other Peers and the professional organisations with concerns. I beg to move.

--- Later in debate ---

[Lord Ribeiro]

My Lords, I thank all noble Lords who have taken part in this interesting debate. I very much hope that the Minister has addressed most of the questions that have been raised. I know that the concerns of the noble Baroness, Lady Pitkeathley, have been addressed. She made a clear case on the confusion about the role of the PSA as an auditor as opposed to a regulator. That needs to be borne in mind.

The noble Lord, Lord Willis, was clear that this Bill is proportionate, logical and deliverable. That is the point—it is deliverable. We have heard a lot about the Berwick advisory group, which has flown the kite of zero harm. It probably has not helped that in the immediate period after Mid Staffs we were keen on some sort of zero harm. Earlier, I referred to Mr Ken Lownds and his interest in patient safety. He has been one of the champions of zero harm. As a surgeon, I know that it is an aspiration that ultimately, if the systems are in place, it is possible to head towards. Although the Berwick advisory group says that,

“zero harm is a bold and worthy aspiration”—

not an intention but a “worthy aspiration”, I say to the noble Lord, Lord Turnberg—it is about timing and the pace of change. It is something that we should aim for, but in order to get there we have to make sure that when hospitals are inspected by CQC it finds that the systems are in place to ensure that harm does not occur. That is the whole purpose of the Bill. The noble Lords, Lord Turnberg and Lord Warner, were very exercised by this area and I hope that we have gone some way to address it.

The noble Lord, Lord Young, raised a good issue. I meant to put it in my speech, but I thought that my speech would be too long—I think that I said to the health team that it might take anything up to 20 minutes, but when I heard what was going on this morning I decided to reduce it. The noble Lord made a good point and I am glad that he did, because those who listened to Dr Atul Gawande, the 2014 Reith lecturer, know that he was the architect of the checklist, which he introduced with the WHO. I remember being approached by Sir Liam Donaldson when I was president of the Royal College of Surgeons to see whether the college could sign it off. I thought that it was something to be used in developing countries, not in the UK, but typically the NHS instituted it. There is a question of whether it should be legislated for. In answer to my noble friend Lord McColl, in surgery it is the recommendation of the college and all the specialist associations that surgeons and anaesthetists should follow the checklist. The difficulty always comes with emergencies, which is where legislation may be difficult—if somebody is bleeding to death, there is not time to sit and have a chat about whether we have everything that we need before we start, which is what that involves.

The noble Lord, Lord Hunt, referred to Clause 1 and zero harm. We have dealt with that and the near misses and I think that that deals with the point about the checklist, too. As I said, I am chairman of CORESS, which is to do with having confidential reporting of near misses so that we can advise surgeons on how to avoid them happening again, using the airline industry as a template of how to avoid harm. That is what all this is about: avoiding harm.

Finally, the noble Lord, Lord Hunt, made a point about Mencap. I take on board the fact that Mencap would like see to see an amendment so that the health information of all those who are poor communicators can be taken into account, as we tend to look at people in terms of the information that they give rather than how they give that information. I wonder whether that could be put in guidance when the legislation comes through. Certainly it will be looked at.

I again thank everyone who has taken part in the debate for their contributions, which have been most helpful. I ask the House to give the Bill a Second Reading.

Bill read a second time and committed to a Committee of the Whole House.

Smoke-free (Private Vehicles) Regulations 2015

Lord Ribeiro Excerpts

Tuesday 3rd February 2015 Grand Committee

These regulations form part of our comprehensive approach to tobacco control. We have introduced legislation to make it illegal for an adult to buy, or attempt to buy, tobacco for anyone under the age of 18. Through regulations, we would look to extend the scope of this offence to cover e-cigarettes. The department is consulting—the consultation is in train at the moment—on draft regulations to introduce age-of-sale requirements for electronic cigarettes, just as we have for tobacco. Also, as my honourable friend the Minister for Public Health announced on 21 January, we will be bringing forward legislation for standardised packaging before the end of this Parliament. Protecting children from the harms of second-hand smoke is an important public health measure, and I commend the order to the Committee. I beg to move.

[Lord Ribeiro (Con)]

My Lords, I thank the Minister for his very kind words. This is a good-news day for children. These regulations and the Bill that went through are about protecting our children in the future. I think that we will send a very powerful message by passing these regulations and I hope that noble Lords will support them.

There is no point in rehearsing all the evidence that the Minister has very kindly given us. However, there is evidence that there has been a significant improvement in children’s health since regulations were introduced. We have only to look to Canada, where there is a ban on smoking in 10 of the 13 provinces. The evidence suggests that since the legislation was brought in, children’s exposure to second-hand smoke has dropped by a third.

The other important thing is the Government’s intention that these regulations should be not just punitive and about fining people but about behavioural change. When there was real reluctance from the Government to see the Bill go through—both when I introduced it as a Private Member’s Bill and early on during its passage—the questions raised were how to police it and how to ensure that people stick to the regulations and the law. The very fact that the emphasis is going to be on prevention, with a focus on health, is good.

Regarding the £50 fine that will be introduced, I am also delighted that the Government have taken the view that there will be a discount of £20 for those who pay within 15 days. That is a very important incentive. I had hoped that we might be able to introduce a learning exercise similar to the one for speeding, where people get some help in understanding the hazards and dangers of speeding. I had hoped that something like that might be brought in under this legislation. None the less, there will be a review five years from now in 2020, and if the general view is that the legislation has been effective, I am sure that it will be possible to devise an educational package so that people do not see the need to smoke in cars with children present. I thank the Minister for taking through these regulations.

[Lord Foulkes of Cumnock (Lab)]

My Lords, I greatly welcome this legislation. I want to ask two questions, which I hope the Minister will be able to deal with. Before doing so, though, I want to say why I am particularly pleased about this. In the early 1980s I tried to introduce a Bill in the other place to ban smoking in public places. I was almost literally laughed out of the House because everyone thought that it was ridiculous to have a ban on smoking in public places. Of course, it is now accepted as the norm.

I was also vilified, as indeed were all the anti-smoking campaigners, by an organisation called FOREST, the so-called Freedom Organisation for the Right to Enjoy Smoking Tobacco. I do not know how anyone can enjoy it—they just have to do it because they become addicted—but there we are. The organisation, which was funded by the tobacco companies, twisted all the figures. It was not a very pleasant experience. I know that my friends who worked in Action on Smoking and Health at the time, as well as other people, were subject to the same kind of criticism and attacks. I am very pleased that things have moved on since then and I commend the Government for pursuing this matter.

However, I have two questions. One relates to enforcement. The ban on smoking in public places has been effectively self-enforcing because the penalties and the problems that would be created by people smoking, particularly for publicans, shopkeepers and people responsible for public places, would be substantial, not just in terms of the fines that they might be subjected to but in terms of losing licences and other problems. Therefore, as I said, the ban has been effectively self-enforcing, with all but 100% compliance, I am pleased to say.

However, the legislation concerning the use of mobile phones in cars has not been so effective. I have seen a lot of people continuing to use mobile phones in cars while driving but I understand that there have been relatively few prosecutions of this extremely dangerous habit. I get the impression that the police are not particularly good at making sure that people are pursued in relation to that offence, and I am a little concerned that the offence of smoking in a car with children present will be more akin to using a mobile phone while driving than smoking in public places such as pubs, shops and so on. I would be grateful if the Minister could deal with that and give an assurance that enforcement and compliance will be more effective.

Secondly, unlike the noble Lord, Lord Ribeiro—who I commend for the way in which he has pursued this issue—I am not sure that £50 is a sufficient penalty. I understand that it is similar to the penalty for parking in an inappropriate or illegal place, a much less grave offence than one that causes danger and harm to children. Many people will take the risk of smoking in a car with children present, particularly as, with no disrespect, a £50 fine to Ferrari drivers and drivers of large, expensive cars will not mean very much in terms of their regular expenditure. I wonder whether this is an appropriate penalty for the offence. The Minister mentioned a review; perhaps this matter could be looked at in that review.

Those are my only two reservations, neither of which takes away from my warm welcome to the Government for these regulations. As the Minister knows, I do not regularly welcome the things that this Government do, but on this occasion I am pleased to do so.

--- Later in debate ---

[Lord Ribeiro]

My Lords, before the Minister replies, when I phrased the initial Private Member’s Bill, I put in a fine of £60 rather than £50. One of the things that I was conscious of was that the people who would be driving very young children, those strapped into the back of the car, are mothers. We do not want to introduce punitive measures that would cut across trying to change their behaviour. That is why the fine was set at that level. If we were thinking of someone driving a Ferrari or a Maserati, that would be a completely different ball game—and they would probably have a chauffeur. That is why that figure is there. The emphasis should be on re-education rather than punishment.