Health and Social Care Bill

Lord Walton of Detchant Excerpts

Monday 27th February 2012 Lords Chamber

[Baroness Masham of Ilton]

My Lords, in moving Amendment 38A, I must explain to your Lordships why it is so important. I wish only that the Minister, the noble Earl, Lord Howe, was moving it.

When legislation is before your Lordships it is our duty to try to improve it. For years there has been a serious cover-up and a closing of ranks in many cases when something has gone wrong with patients’ treatment and they or their next of kin have not been kept informed. If there is not openness and honesty, there could be years of frustration and consternation resulting from trying to find the truth through litigation. The only winners are the lawyers.

Last Monday at 8 pm on Radio 4, and today, there was a programme entitled “Doctor—Tell Me the Truth”. The programme explores how patient safety can be improved by doctors admitting to mistakes. In some states in America, medical practitioners must be open about their errors. Instead of increasing litigation, this has lessened it.

I was involved through the Patients Association with some of the next of kin of the patients who tragically died in the Mid Staffordshire NHS Foundation Trust hospital. I congratulate the Government on holding a review into the hospital, where the culture was the very worst and there was a fear to disclose the truth. Surely it is time we put something into legislation to help change this culture.

I was sorry that the amendment which I previously moved—which would have introduced a statutory obligation to provide a duty of candour applying to all providers registered with the Care Quality Commission—did not succeed. However, it was made clear by the Minister that the CQC could not undertake this role. Perhaps it has too much to do satisfactorily and it is just not up to it.

The Minister, the noble Earl, Lord Howe, said:

“I remind the House that the Government’s preferred position is to place a duty of candour in the NHS standard contracts. We have chosen that route because we feel that it has the best chance of working. The view that we have taken, on the basis of clinical advice, is that responsibility for ensuring openness needs to rest as close to the front line as possible, rather than being the responsibility of a remote organisation such as the CQC”.—[Official Report, 13/2/12; col. 591.]

An independent body still seems to me to be the best option as it is transparency and honesty that we need, and front-line medical personnel may still try to cover the mistakes made by members of their profession. I hope not.

Amendment 38A covers what the Government say is the best route to go down. I have had letters imploring me not to give up as so many members of the public, who have been patients or who are their next of kin, have had bad experiences and feel now is the time to change this culture of fear and secrecy. The amendment makes provision for,

“a requirement to be placed upon any organisation that enters into a commissioning contract to provide healthcare with the Board or with a clinical commissioning group to take all reasonable steps to ensure that a patient or, in the event of death or incapacity, their next of kin, is fully informed about incidents which occur as a consequence of providing the contracted healthcare to that patient where the incident has resulted in”—

and the amendment goes on to mention various harms. If the amendment is not quite correct, perhaps the Minister would accept it and correct it for Third Reading. It would be a start to something that must happen if patients and families are to have much-needed trust in the professionals who care for them. I beg to move.

[Lord Walton of Detchant]

My Lords, I added my name to this amendment for one reason and one reason only: in the hope of seeking assurances from the Minister. When I first joined the General Medical Council in 1971, the president was the late Lord Cohen of Birkenhead, who was a wonderful man. He was a fine physician, but he was an autocrat and his views were very traditional and in some respects, I have to say, somewhat backward. He told me, “Never apologise to a patient. The lawyers will get after you”. He told me, as a young man, “Never speak to the press or to the television. They will misquote you always”. Happily, since that time the General Medical Council has progressively changed its view. Now the recommendation made to all medical practitioners is that, if you have made a mistake, if you have committed an error, it is your duty to apologise to that patient sincerely. An apology does not mean an admission of liability; it is simply a sincere apology for a mistake. I hope that is the case in respect of all other healthcare professionals whose activity is regulated by law. I would like an assurance from the Minister that that is the case.

The purpose of this amendment, which has been so well proposed by my noble friend, is to confer on health bodies, whether clinical commissioning groups, independent foundation trusts or other organisations providing medical care, a similar obligation and, indeed, the duty to apologise for errors that have occurred under the auspices of those organisations. I simply ask the Minister whether, in the contracts that these bodies hold with the NHS, such an obligation is a part of the contract. If it is, it may not be necessary to have such an amendment on the face of the Bill. I hope the Minister can give me those assurances.

[Lord Harris of Haringey]

My Lords, I support this amendment because I believe that it is a sincere attempt by the noble Baroness, Lady Masham, to help the Government out. I do not intend to repeat the arguments that we had a few days ago on Report about placing on institutions a rather stronger statutory obligation to inform patients where mistakes had taken place, partly because we have had that debate. During that debate, the Minister repeatedly expressed the view that the objectives of the amendment could be achieved by placing a contractual obligation on organisation to do this. This amendment quite simply requires that that contractual obligation takes place. I am assuming, therefore, that the Minister will accept the amendment, because it does exactly what he said he wanted to do in his previous speech.

The amendment also expresses the concerns raised by a number of your Lordships in Committee and one or two on Report that perhaps placing the duty and obligation directly on organisations and the individuals involved would be inappropriate and that that would provide too rigid a framework. However, as the amendment does what the Government said would solve the problem, I hope that the Minister will indicate that he is happy to accept it in this form.

The reason why I think that it is helpful to the Government is, as may not have escaped the Minister’s attention, a certain amount of criticism of the Department of Health and of this Bill is prevalent at the moment. For example, a letter was published in the Telegraph this morning which said:

“The Coalition Government promised to ensure greater NHS accountability to patients and the public. We believe this aspiration has now been abandoned”.

That was signed by a large number of people active in representing the interests of patients around the country. It is not specifically about this issue; it is about an issue that we will come on to very shortly in terms of HealthWatch. But there is a very widespread concern that, despite all the rhetoric that we have heard from the Government about “no decision about me without me”, that aspiration has been lost in this Bill.

Part of the way of getting patients to have confidence in their health service is through the knowledge that if something goes wrong the fact will be shared with them. The Government said that they did not want a statutory obligation to be placed on individuals or institutions to do that, but they said that they would like contractual arrangements to be put in place. This amendment makes sure that those contractual arrangements are put in place, and I would have thought that the Government would want to accept it so as to demonstrate that even now there is some good faith left around their desire to put patients at the centre of the NHS changes.

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We have a group of amendments here covering a wide range of aspects of the structure and functioning of clinical commissioning groups. I hope that we will shortly find that a declaration of interests is included in the Bill, in whatever form, and that the Minister will be amenable to revising the rigid stance taken over insisting that the secondary care representative and nurse come from outside the area.

[Lord Walton of Detchant]

My Lords, this is an exceptionally complex issue and I believe it is absolutely crucial that in some way and in some form the issue of a conflict of interests is covered in the Bill. The membership of clinical commissioning groups will consist very largely of general practitioners, but it is important to remember that GPs are not employed by the National Health Service but are independent contractors. As such, it is therefore inevitable that they will have a pecuniary interest in the activity of the clinical commissioning group. I am aware of a number of general practitioners from large practices who have shares in or part-ownership of care homes for elderly patients. I am also aware of some who have shares in private hospitals and in many other organisations. If we were too rigid about declarations of interest, we could end up excluding virtually every GP from membership of clinical commissioning groups, meaning that CCGs could not really exist. Therefore, the provisions must not be too draconian, but at the same time, it is desperately important that they should protect the public interest and that some mechanism be found to ensure that matters of financial and other public interest are not in any way detrimental to the work of the clinical commissioning groups.

I am therefore very attracted by Amendment 79A, which I believe goes a long way towards covering the major issues concerned with conflicts of interest. The amendment so ably proposed by the noble Lord, Lord Hunt has many attractive features, but it is immensely lengthy and complex. I appreciate entirely the point that he made about sanctions, but to go back for a moment, the Minister misunderstood me when I was talking about the duty of candour. I fully appreciate that doctors working for clinical commissioning groups, foundation trusts, and so on, have the same duty of candour as defined by the regulations of the GMC as any other doctor. I intended to ask the Minister whether the actual clinical commissioning groups and foundation trusts, as corporate bodies—not the individual employees of those organisations—had the same responsibility of a duty of candour in relation to patients.

Here, of course, the same problem arises in relation to the whole issue of conflict of interest. How is it defined? It is necessary to recognise, as the noble Lord, Lord Hunt, said, that there has to be a sanction. But the same sanctions apply to individual doctors and other healthcare professionals working for clinical commissioning groups. If they were seen to breach the rules laid down in such an amendment on conflicts of interest, they could be called to account by their regulatory authority. The GMC would no doubt take a serious view of anyone who breached that duty under conflicts of interest. It is crucial that the Government should put something about conflicts of interest in the Bill based, I hope largely, on Amendment 79A, which I strongly support. That is an excellent basis on which to go ahead, and I shall be fascinated to hear what the Minister has to say.

[Lord Warner]

My Lords, I had not intended to speak for very long on this set of amendments but some issues have cropped up which are worth reflecting on, particularly by those of us who have sat in Richmond House and have had to deal with them. It is easy to assume from listening to the debate that we have a wonderful set of arrangements in place to deal with conflicts of interest. That is very far from the case. The noble Lord, Lord Walton, made the point very well that many doctors already do a range of activities—rightly, appropriately and well within their competence—that potentially involve conflicts of interest. One of the great dangers in this area is that we tie ourselves up in a labyrinth of controls that actually work against innovation in an area where science is driving change rapidly. We want people to use their creativity and to change the way they work. We want them to take on new roles. We should not always assume that in doing that they are just seeking to line their pockets. There is a danger that we might do a very British thing and create a large number of rules that will prevent innovation. We had that debate over research and we are in danger of going down the same track in this area.

The other point raised by the noble Lord, Lord Walton, which is very important, is in relation to the role of professional bodies. We had a case—I will not mention the name—of an eminent businessman doctor who was the chief executive of a large chain of nursing homes. He was taken to the GMC because of something that went wrong in one of the nursing homes for which he had no direct responsibility whatever. Although the governing bodies of the professions have an important role, their role was constructed in relation to the actions of a doctor towards individual patients, not in relation to a doctor who was performing other business and organisational functions. It is very important that we do not rely on professional bodies to deal with what is organisational malfeasance rather than lack of professional integrity in dealing with individual patients.

My noble friend Lord Hunt made a very important point. It is very strange that at this stage we are still arguing the toss around corporate governance of some of the bodies in the Bill, particularly the clinical commissioning groups. That is a bit of an indictment of the Government for not getting some of this material thought through at an earlier stage rather than well into Report stage in the House of Lords after having gone through the Commons. However, we are where we are and I think we should not tie ourselves up in knots and prevent incumbents.

Lastly, a very important point that has come out in a number of speeches today is that two issues are critical. First, it should be clear legally to all people participating in these new sets of arrangements that declarations of interest are essential. Secondly, it should also be clear in the Bill exactly what the consequences are of not declaring those interests and pursuing deliberately a conflict of interest for your own advancement, financially and otherwise. Those are the two issues about which we need to be clear in the Bill and I rather agree with the noble Baroness, Lady Barker, that much of the rest of it should be for regulation, provided that the Bill has sufficiently powerful regulation-making powers.

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[Lord Patel]

My Lords, I support the amendment. I spoke at length in Committee on a similar amendment and my noble friend Lord Kakkar has covered quite extensively why we need some kind of primary care outcomes framework which assesses the performance of primary care. Primary care will be involved in prevention, diagnosis, treatment and long-term care of patients. Hitherto what we have had is QOF, which has already been found to be lacking in identifying the quality outcomes that demonstrate improvement in care. For example, in cardiovascular disease, evidence was presented from 1,000 primary care practice interviews and their performances as assessed did not show that there was improvement through QOF. Of course in certain other areas, there might be. The management of hypertension again shows no improvement. In a study carried out of chronic hypertensive patients, there is still a high incidence of complications related to hypertension. So we need other measures and in the absence of a primary care outcomes framework, we do not know how primary care will be performance managed.

[Lord Walton of Detchant]

My Lords, I have put my name to two of these amendments so ably proposed by my noble friend Lord Kakkar. I have been on the medical register now for 67 years. I am a registered medical practitioner and I actually have a licence to practise which allows me to prescribe—not that the opportunities of clinical practice in my present world are very widespread, except on the very rare occasions when I have been called upon to minister to one of your Lordships who may have been taken ill in the precincts of this House. The licence to practise will be subject later this year to a process of revalidation.

If I go back to the days—forgive me again—when I was president of the General Medical Council and served on a number of occasions on its conduct committee’s hearings, it became perfectly clear that some of the doctors referred to the GMC were not actually guilty of serious professional misconduct. However, some of them who came before the conduct committee were in fact practising at a standard which was not adequate in a clinical sense. In other words, there was a question in a number of cases of their clinical competence. In those days the GMC began a process to examine whether, alongside the conduct procedures, we should introduce procedures to be able to identify doctors who were practising at less than an adequate standard of care. In the end, under the noble Lord, Lord Kilpatrick of Kincraig—my successor as president of the GMC—it eventually introduced performance procedures to assess clinical performance. Those performance procedures have continued and have been very effective in identifying and handling appropriately, often with retraining, doctors who were found to be practising at less than an adequate standard of performance.

The Minister may say that when, later this year, doctors will be able to retain their licence to practise subject to a process of full validation of their clinical competence, that may be enough. The fact is that I do not believe it will be, and it is therefore crucial that we have a mechanism in the Bill to deal with this potential issue. After all, over the past 40 or 50 years, there has been a massive improvement in the standard of general medical practice in the UK, following the introduction of compulsory vocational training. Every doctor wishing to be fully capable of being a general practitioner has to undergo, at a minimum, three years’ vocational training. The improvement has been immense, but everyone will recognise that not all practices are of such a uniformly high standard. Some doctors in practices may be less competent than others.

The same may be true—who knows?—of clinical commissioning groups. There is clear evidence that most clinical commissioning groups or consortia of GPs will be providing a high standard of care in the community, but there may be a few that are not up to that standard. It is therefore crucial that we have a mechanism whereby the Secretary of State can be in a position, through amendments such as those proposed by my noble friend Lord Kakkar, to identify those practices and clinical commissioning groups that are not producing clinical care of the adequate and appropriate standard which we all expect and which our communities deserve. For this reason, some kind of monitoring of this sort under the mandate is essential.

[Lord Rea]

My Lords, as a former general practitioner I very much welcome this amendment. As the noble Lord, Lord Walton, has just said, the standard of general practice has certainly gone up enormously since vocational training started. However, a number of my colleagues are not up to scratch. The Royal College of GPs and the BMA would be the first to admit that all in the garden is not lovely. I would ask the proposers of the amendment, and the noble Earl, if he is minded to accept it, how the monitoring system will be set up.

As has been mentioned, there are already two different systems in operation to monitor the standards of clinical practice—in fact three, if we take the GMC competence system. However, as mentioned by the noble Lord, Lord Patel, QOF is not a very effective measure. Its standards are set far too low. We have yet to see whether revalidation will effectively identify weak practice. If this monitoring is going to be set up, would it not be sensible to involve the General Medical Council, the Royal College of GPs and the BMA in consultation in designing the performance monitoring system that will be adopted? It could be a very good idea. It is high time that there was a more effective system. Most GPs would welcome it enormously and only a few would regret it.