Health and Care Bill

Baroness Cumberlege Excerpts

Committee stage
Friday 4th February 2022 Lords Chamber

In conclusion, the current consultation will deal only with a limited aspect of clinical negligence. It is no good thinking that there is some magic solution around the corner, so let us improve the current system but also deal sympathetically with special cases, such as those that the noble Baroness is pointing out and in relation to vaccine damages. We will probably then have a better system that is more fit for purpose, provides more value for money for the taxpayer and, above all, is fairer for patients. I beg to move.

[Baroness Cumberlege (Con)]

My Lords, I have Amendment 288 in this group. I thank the noble Lord, Lord Hunt, for the way that he has introduced this group of amendments; he is quite right that there is a lot of synergy between them.

Before I get to my subject, as it were, I will address litigation. We have been working very hard with NHS England and others to introduce the rapid resolution and redress system—RRR—for maternity services. The damage done to babies costs a huge amount of money. It is very rare, but some of the settlements are now over £10 million per baby, so this issue really needs to be addressed. The noble Lord is right that, when litigation comes in with force, it causes enormous trouble and heartache for those involved in it. We know that, when it is based on clinical negligence, the trouble is that the learning disappears or is suffocated. If we had a system that gave rapid redress and resolution, we would learn so much more from the cases that come to court.

Amendment 288 requires the Secretary of State to bring forward proposals for a redress scheme to help those who have suffered avoidable harm linked to the three medical interventions that were examined in my Independent Medicines and Medical Devices Safety Review: hormone pregnancy tests—the most common of which is Primodos—the epilepsy drug sodium valproate and pelvic mesh, which is used to treat stress urinary incontinence and pelvic organ prolapse.

--- Later in debate ---

[Earl Howe (Con)]

My Lords, this has been an important and moving debate. We should recognise that, behind the technical aspects of the topic, there are stories of real harm and life-changing events for people and families.

Amendment 267 would establish an independent judge-led review into the operation of the Vaccine Damage Payments Act 1979. I appreciate the spirit behind this amendment and agree that we need to ensure the vaccine damage payment scheme works as effectively as possible. We recognise that the scope and scale of the scheme has significantly changed since 1979; it has expanded from the original eight diseases to cover 18 and the payment value has increased from the original value of £10,000 in 1979 to the current level of £120,000.

Most recently, responsibility for the operation of the scheme transferred from the Department for Work and Pensions to the Department of Health and Social Care on 1 November last year. The NHS Business Services Authority has now taken over the operation of the scheme. It is looking to improve the claimant journey on the scheme in three main ways: increasing personalised engagement; reducing response times; and making more general support available to claimants. It has also allocated additional resource to the operation of the scheme. I can tell the noble Lord, Lord Hunt, that the department will further engage with the NHS Business Services Authority to progress service improvements and, in particular, greater digitalisation.

Our focus now must be on completing the transfer of the scheme, getting support to those who are eligible as quickly as possible and improving the claimant experience. Against that background, I am not convinced that an independent review at this stage would support these goals. Indeed, it might risk delaying progress.

I shall just comment on a couple of detailed points made by the noble Lord. The first is on the disablement threshold. The 60% disablement threshold is aligned with the definition of “severe disablement”, as per the DWP’s industrial injuries disablement benefit. It is not clear that this is a significant barrier to claimants. In 2019 and 2020, just one claim out of 151 was rejected due to the 60% disability threshold not being met. Of course, there is also the option for claimants to appeal the decision.

The noble Lord also expressed concern about the length of time that it was taking to settle claims. NHS Resolution aims to get to the right answer as quickly as possible in every case but, equally, each case has to be considered on its own merits, and it is important that a proper investigation is undertaken. The department keeps NHS Resolution’s performance under regular review and is satisfied that its approach to settling claims strikes the right balance in delivering timely resolution. Recent performance on time to resolution has been influenced by the pandemic—that is not meant to be an excuse; it is just a statement of fact—and the need to relieve pressure on front-line NHS staff. To mitigate this, NHS Resolution worked with a range of industry stakeholders to introduce a specific Covid-19 clinical negligence protocol to support the management of claims during this time. This collaborative approach has been widely welcomed in the written evidence to the HSCC inquiry on NHS litigation reform.

On Covid-19 vaccines in particular, clearly, they are new, and establishing a causal relationship between the vaccines and their purported side effects is not a straightforward matter and takes time. So, while we would like to have an accelerated process, it was vital that we did not make assessments before the scientific evidence reached a settled position, to avoid payments being made in error, or those who qualify potentially missing out on payments. The NHSBSA will be writing to claimants when there is an update on their claim, and we appreciate the continued patience of claimants at this difficult time.

I turn now to Amendment 268, also tabled by the noble Lord, Lord Hunt, and supported by my noble friend Lady Hodgson of Abinger. The Government already have robust arrangements for reviewing public bodies such as NHS Resolution. Our assessment is that NHS Resolution is a well-run organisation. The National Audit Office noted in its 2017 report the efficiency gains it has achieved, including significant progress in reducing unnecessary litigation through the use of mediation and alternative dispute resolution. In 2020-21, 74% of claims handled by NHS Resolution were resolved without formal court proceedings. In fact, very few cases—0.3% of litigated claims—actually go to trial. Of the 56 cases that went to trial in 2020-21, NHS Resolution achieved a judgment in favour of the NHS in 38 cases: roughly two-thirds.

I also draw the Committee’s attention to the work under way to manage rising clinical negligence costs—a topic very appropriately raised by the noble Lord, Lord Hunt. The department is working intensively with the Ministry of Justice, other government departments and NHS Resolution, and we will publish a consultation to address this issue. An independent review would duplicate this work and, in any case, legislation would not be necessary to establish such a review.

In 2017, the NAO identified the main drivers of the cost rise as, first, compensation payments; secondly, claim volume increases; and, thirdly, legal costs. Since then, the picture has changed: payments for compensation now drive the increase and are growing at rates above inflation. We share the noble Lord’s concern that existing legislation may mean that the state pays twice for care. While from our analysis we do not think it is likely to be a significant driver of increasing costs, we remain open to evidence. Furthermore, the Government recently submitted evidence to the Health and Social Care Committee inquiry on NHS litigation reform. We welcome the inquiry and look forward to its recommendations.

Turning to Amendment 288, I thank my noble friend for her and her team’s diligence and dedication and the brave testimonies of those who contributed to the Independent Medicines and Medical Devices Safety Review. Anyone who has read that review cannot fail to be moved by the evidence submitted to my noble friend’s team. I assure your Lordships that the review has been a powerful call to action. The Government have accepted the majority of the report’s nine strategic recommendations and 50 actions for improvement.

I understand my noble friend’s point about redress, but, at the same time, I believe it is important that we focus government funds on initiatives that directly improve future safety. For this reason, the Government have already announced that redress schemes will not be established for people affected by hormone pregnancy tests, sodium valproate or pelvic mesh. However, as my noble friend knows, in order to put patient safety at the heart of the system, we have established— thanks to her recommendation—the new patient safety commissioner. The appointment of the commissioner will put the patient voice at the centre of patient safety and deliver improvements in how the system listens to and responds to concerns raised by patients.

We are also improving the safety of medicines and devices and embracing the new opportunities to reform regulatory frameworks following the UK’s departure from the European Union. The Medicines and Medical Devices Act delivers further on our commitments to patient safety, embedding reform and delivering an ambitious programme of improvements for medicines and medical devices.

I hope I have provided at least some assurance and that noble Lords will feel able not to press their amendments.

[Baroness Cumberlege (Con)]

My Lords, I very much welcome my noble friend’s response. Of course he is right: we must always look to the future safety of our services. I am really grateful to Ministers and the department for what they have done in response to our report. It is not 100% yet, but we are nearly there, and I thank them for that.

But I am not talking about the future. I am talking about the people who are suffering now as a consequence of the treatment they received, not knowing that it would do them harm. So I ask my noble friend to take this away and think further on it. As I tried to explain, we have devised in the amendment a system that is not, as we said, an open cheque. It is not huge amounts of money; it is not huge numbers of people. It is to help those who are struggling with their lives as a consequence of the harm that has been caused to them. I just ask my noble friend to take this away and think further.

[Earl Howe (Con)]

I appreciate of course my noble friend’s remarks, and I undertake to bring them to the attention of my right honourable friend the Secretary of State.

--- Later in debate ---

Moved by

[Baroness Cumberlege]

283: After Clause 148, insert the following new Clause—
“GMC register: interests
In section 2 of the Medical Act 1982, after subsection (4) insert—“(5) The register shall include a list of financial and non-pecuniary interests for medical practitioners, as well as their clinical interests and their recognised and accredited specialisms.””Member’s explanatory statement
This amendment requires the General Medical Council to include the financial and non-pecuniary interests of medical practitioners on its register.

[Baroness Cumberlege (Con)]

My Lords, I am delighted that the noble Baroness, Lady Finlay, is supporting me. She is a clinician of distinction and a palliative doctor, but so much else besides. She will know as well as any of us—those of us who are not doctors—that one thing is at the heart of good, safe care: trust. As patients, we place our trust in our doctors. We trust them to use their skills and knowledge to treat us, to cure us and to keep us healthy to live our lives. We trust our doctors with our bodies, our minds and our lives. That brings great power and great responsibility. Doctors must make decisions and take actions in our interests; that is what we trust them to do. We know that trust is fragile. It is said that trust arrives on foot but leaves on horseback.

Noble Lords who were in the Chamber for the debate on Amendment 288 will know the context of the Independent Medicines and Medical Devices Safety Review, which I chaired. The people—the children—who were harmed placed their trust in their doctors and the wider healthcare system. They were let down. The lives of many have been turned upside down as a result of the harm they suffered. One woman who had been terribly harmed by a pelvic mesh implant told us:

“As patients, we allow the medical profession access to our bodies, our thoughts and our lifestyles. All manner of information to better assist them in reaching decisions about the best course of treatment for us. We, the patients deserve the same, we should be aware of clinicians’ allegiances or involvements whether they be financial or other. So we too can reach informed decisions about who is best to treat us, and how they should treat us.”


Doctors do wonderful work, often in extremely difficult circumstances. Decisions they make are not always perfect—they cannot be; we know and accept that—but must always be led by the best interests of the person who is their patient, not by external factors and commercial interests.

Amendment 283 would require the General Medical Council to expand its register of doctors to include their financial and non-pecuniary interests, as well as their particular clinical interests and their recognised unaccredited specialisms. In doing so, it would implement one of the nine major recommendations we made in our review.

The concept of declaring interests is hardly new, not least to all of us in this place. We know that it is important. It brings transparency and accountability, and the public have a right to know. Who in a position of responsibility can have a clearer, more significant impact on someone’s life and well-being than a doctor or a surgeon? Maintaining information about doctors’ clinical interests and specialisms is a vital foundation of patient safety.

I was pleased that, in their response to the recommendations of the Paterson inquiry, the Government committed in principle to creating a single repository of the whole clinical practice of consultants across England, setting out their practising privileges and other clinical consultant performance data—for example, how many times a consultant has performed a particular procedure and how recently. This information should be accessible and understandable to the public. It should be mandated for use by managers and healthcare professionals in both the NHS and the independent sector. It would be a way of measuring outcomes and ensuring safety and quality. For all these reasons, we urgently need a register.

I have been extremely encouraged that the leading journal for doctors, the British Medical Journal, is in full support. It has written extensively about it. Its editor has spoken expertly on the subject at a meeting of the First Do No Harm All-Party Parliamentary Group. The BMJ found that current reporting of interests, which is meant to be done locally and held by employers, is at best patchy. Many hospitals do not keep the information and, when they do, it is hard to find and may be out of date.

We need a central register, one that is easily accessible and complete. The General Medical Council already holds the register of qualified doctors. Adding their financial interests to the register is not difficult; it can be done via the annual appraisal. Every doctor must undertake an annual appraisal to maintain their registration. I have spoken to the GMC about this, but it seems—shall we say—lukewarm.

--- Later in debate ---

I hope I have given the noble Baroness sufficient reassurance and that, at this stage, she will feel able to withdraw her amendment.

[Baroness Cumberlege (Con)]

My Lords, I thank so much the noble Lords who have supported this amendment. I always welcome the support of the noble Baroness, Lady Brinton, because she is clear, concise and very authoritative; she commented that doctors already have a duty and that we should see progress. As always, the noble Baroness, Lady Finlay, was accurate; she talked about accuracy and accessibility for patients, and said that the register really is so important because it actually safeguards doctors, a point that has been put to us by some doctors. The noble Baroness, Lady Neuberger, is a chair of one of our great hospitals in London, and I was so grateful for her contribution. She went to her medical directors and found out that they thought this was an ethical way forward and should be encouraged. I also thank her for her generous remarks about the report—I would just like to say it is not my report; it was the team’s report, and I had some really good people on the team. I thank the noble Baroness, Lady Thornton, who was right: it has to be a national register, not a local one, and it has to be accessible to patients.

In summing up, I thank the Minister very much for her comments. There is such feeling about this in the country that it would be very helpful if she could convene a meeting with me, my team and the GMC to discuss this together. I think that a little more persuasion—especially from sources such as those on the Front Bench—would make all the difference.

Amendment 283 withdrawn.