Health and Social Care Bill

Baroness Finlay of Llandaff Excerpts

Monday 13th February 2012 Lords Chamber

[Lord Patel]

My Lords, here we go again. I wish to speak to today’s first group of amendments—Amendments 13, 16, 62 and 106—but, before doing so, I thank all noble Lords who have put their names to the amendments. Many noble Lords wanted to put down their names to Amendments 13 and 16 in particular but were unable to do so. However, I thank them all for supporting these amendments.

Perhaps I may start in reverse order. Amendment 106 would impose a duty on clinical commissioning groups in respect of training and education. This matter was debated on the first day on Report and the Government produced Amendment 104 to the same effect. Similarly, Amendment 62 puts a duty on the NHS Commissioning Board in relation to training and education. As the Government have brought forward Amendment 61 to achieve exactly that, I shall no longer speak to Amendments 62 and 106. I can now move on to the proper business, as the House has quietened down.

I apologise that Amendment 16 is badly worded and has some rather deliberate mistakes. Much of it was debated in the context of a second group of amendments moved on the first day of Report last week, and I shall not labour those points.

There are three key issues that we might explore further in relation to this amendment. The first is the establishment of Health Education England as a special health authority. I have no doubt that the Minister will be able to reassure us about the timing of that. Secondly, there is the issue of funding the education and training of the healthcare workforce. That budget will be held by Health Education England. The role of the respective regulators, professional organisations, universities, higher education institutions and so on has already been discussed. The Minister accepted that they have an important role to play, but it is important to establish that the postgraduate deans will continue to perform their current role. The third key issue is the role and authority of the local education training boards. They will not be controlled by employers, and employers will not have a right in statute to chair local education training boards.

Those are the key issues on Amendment 16. I can now turn to my key amendment, and I emphasise the word key—Amendment 13. This amendment tries to encompass all the issues that we discussed in Committee and last week on Report. As noble Lords may remember, I tabled some amendments on education and training and the Minister was sympathetic to several of them. They alluded to the responsibility of all those who provide health services or care or who make any provision for health services to pay regard to education and training. I have tried in this amendment to bring all those amendments together in a simplified way. I now have an admission to make. At an earlier stage I tried a slightly different amendment on the Minister—Amendment 12—which I then withdrew. However, I hope that he finds it acceptable now as I think that it encompasses the matter in a much simpler form.

What is this amendment about? It states:

“Any arrangements made with a person under this Act for the provision of services as part of that health service must include arrangements for securing that the person co-operates with the Secretary of State in the discharge of the duty under subsection (1) (or, where a Special Health Authority is discharging that duty by virtue of a direction under section 7, with the Special Health Authority”.

The purpose of the amendment is to ensure that any person providing services as part of the health service has a duty to co-operate with the Secretary of State in the discharge of the duty in new Section 1E of the National Health Service Act 2006 to exercise his functions so as to secure an effective education and training system, or with any special health authority which is discharging that duty. The amendment would achieve that by requiring commissioners of health services to include a duty of this kind in their commissioning contracts. The amendment applies to all persons commissioned to provide services as part of the health service, including NHS services commissioned by the board and public health services commissioned by the Secretary of State or local authorities. This is consistent with the powers of the Secretary of State that we discussed previously.

The amendment seeks to ensure that all providers of services commissioned as part of the health service, including NHS and public health providers as well as private alternative providers, have a duty to co-operate with the Secretary of State in the discharge of his duty to ensure an effective system for education and training. The duty will apply equally to Health Education England when it is created as a special health authority with responsibility for health education and training. Perhaps the noble Earl will confirm that that is likely to happen by June 2012. It would also require commissioners to include a duty for providers to co-operate on education and training when they issue commissioning contracts.

Since we last discussed the issue, the Government have set out their intention for the new education and training system. I welcome that. I am pleased to see that there will be a national system for education and training, and that Health Education England will be established as a special health authority. However, it is important that we secure a future for education and training through the Bill—hence my amendment—and that the necessary connections are made with other national bodies and with local service commissioners and providers. It is important that all providers of NHS-funded services participate in the planning, commissioning and provision of education and training. They are responsible for delivering front-line NHS services and therefore have a key role to play in supporting local education and training boards—and I mean supporting, not controlling. One previous issue of concern was how the budgets would be used.

It is also important that local employers should provide the highest-quality clinical placements. These placements are an essential element of the education and training process for doctors, dentists, nurses and other healthcare professionals. They give them hands-on experience of their profession or specialty through the delivery of health services in the NHS. It is important, if we are to continue to develop high-quality clinicians and health professionals, that these placements are continued. In the past, there was a tendency when budgets were tight to cut the placements. That is why I make this comment.

My amendment covers all these issues and therefore makes the Bill stronger. It is in the true spirit of revising the legislation that I move it. I was told last week that I misread the signals given by the noble Earl when I pressed my amendment. In order that I do not do so again, I ask him, if he is not minded to accept Amendment 13—although I sincerely hope that he will be, because it makes the Bill clearer—to give me clear signals that he is prepared to talk about this and bring it back at Third Reading if necessary. However, I sincerely hope that we will not go that far and that he will be persuaded to accept the amendment. I beg to move.

[Baroness Finlay of Llandaff]

My Lords, my name is on two amendments in this group. However, in large part they were covered by the government amendments that we accepted on the previous day of Report. Amendment 13 is particularly important. In our last debate on education and training, we spoke about the need to thread education and training as an infrastructure like scaffolding through the Bill. Carrying on with another analogy, Amendment 13 acts like a superglue that holds all the bits together. We need to make sure that education and training run through every provider, whoever they are. We cannot have some people saying, “Fine, we will have a contract and use staff who have been trained by the NHS but we will not have any obligation toward education and training”. It is within NHS services that the vast bulk of training occurs, although valuable experience can be obtained elsewhere.

The other question the Government need to ask themselves if they are thinking about turning this amendment down, but I hope they are not, is whether they can honestly say that there is anywhere that is fit to provide a service but is not fit to share its knowledge and skills with those who are in training in any part of the discipline. This is not only about specialist education and training but about increasing the knowledge base and skills at every level throughout the system.

--- Later in debate ---

[Baroness Williams of Crosby]

My Lords, we have had an extraordinarily well argued debate and I do not want to involve myself for more than a minute or two because it would waste the time of the House. Perhaps I may pursue for a moment, in the hope that my noble friend Lord Howe will respond, to the point made by the noble Lord, Lord Walton of Detchant, earlier in the debate. When teams of people are involved, as they clearly often are in the case of major surgery or other major treatment systems, the team has to be persuaded with regard to the duty of candour. Very often, it is not the most senior members of such teams, such as the consultants, or the most junior members of such teams who know best about what has gone wrong. It is often true of nurses. It can even be true of assistant care workers, as we learnt all too severely from the case of Southern Cross and the cases in Bristol.

I simply want to ask whether we should not couple whatever we decide on this amendment with a complete refusal to accept gagging orders on junior staff when inquiries are made of those who are senior to them, whether they are private companies or senior figures in the National Health Service. It was encouraging to hear the noble Lord, Lord Walton of Detchant, say that there is a long way to go. Unfortunately, gagging orders are very common in the health area, and they are something that must be addressed if we are serious about getting to the bottom of things that go wrong in medical treatment.

[Baroness Finlay of Llandaff]

My Lords, I considered long and hard whether to add my name to this amendment. The gagging orders to which the noble Baroness, Lady Williams, has just referred run completely counter to openness and candour, and there has to be candour. I hope that the Government will take away from this debate the fact that, first, something has to be done to stop people being gagged; and secondly, whether it is in guidance or on the face of the Bill, there must be a way to ensure that there is candour throughout the whole system and that it applies to everyone. The implication that general practitioners, dentists and so on are not on an equal footing with other organisations is invidious.

Patients need to know what has happened. I admire my noble friend Lady Masham for persevering with her research into this issue and presenting it to us today. The tension arises between an individual, a doctor registered with the GMC, on whom there is a duty of candour as an individual to be open and honest with patients if things go wrong—indeed, in the relevant paragraph in Good Medical Practice 2012, the word “must” appears, which means what it says, as opposed to “should”, which is advisory—and organisations. When things go wrong, there is often a series of errors that become compounded, along with other events that may seem insignificant. For example, a patient’s notes were not available on one occasion when they were seen so the wrong investigation was ordered, and things went on from there. Another difficulty is that it is sometimes the patient’s own behaviour which contributes to the cascade. It can be difficult to confront a patient who is already distressed with the fact that the way in which they have behaved—perhaps by discharging themselves or by going off to some alternative practitioner—has contributed to the way in which things have gone wrong. Another simple example is, if you do not know that a patient is taking a certain medication, it can be very difficult to predict an interaction with a prescribed medication.

I should declare my interests, which I did not do earlier in our debates—I hope that the House will forgive me—as a fellow of the Royal College of Physicians, a fellow of the Royal College of General Practitioners, a member of the British Medical Association and a practising clinician. I will always remember as a medical student meeting a general practitioner who took me for a walk in a small village on a Welsh hillside. He took me to the churchyard and said, “I want to walk you around the churchyard”. I asked him why, and he replied, “Because I want to introduce you to my errors”. He had been working in the village for many years. Sadly, as a junior doctor I was in a hospital where there was a catastrophic medical error. What that taught me more than anything is that you have to be open from the first moment you realise that an error has been made. Anything other than openness fails.

To reinforce the remarks made by the noble Lord, Lord Newton, and the noble Baroness, Lady Pitkeathley, whenever I have had to tell patients that something has gone wrong, however minor it may be, I have been astounded at how grateful both they and their families have been for the fact that I have told them. They are also grateful when we institute intensive monitoring procedures, which can mean that patients are woken every hour through the night, and express relief touched with a sense of humour when such intensive monitoring is no longer required. Time and time again when things have gone wrong, there is an overwhelming sense that whatever it was should not happen to anyone else, along with the realism of knowing that you cannot put the clock back, and that medicine is about not absolutes but all shades of grey.

The difficulty with having this clause in the Bill is the potential for unintended consequences. That is why I hesitated about adding my name to it. I hope the Minister will take the matter forward, because this has been a very powerful debate, and put something in guidance. In 2009, the CMO recommended a duty of candour. We really must make it a reality if the implication of “nothing about me without me” is to be honoured. We need to be open, honest and realistic with our patients.

[Baroness Hussein-Ece]

My Lords, I, too, had no intention to speak on this amendment, having spoken on and supported the proposal for a duty of candour in Committee. Patients and public quite rightly have higher expectations of the services they receive from the NHS, both for themselves and their families. They are also better informed, and they expect NHS clinicians, carers and nursing staff to respond to that. This is not just about graveyards, as mentioned in the rather alarming story recounted to us by the noble Baroness, Lady Finlay, but also about care. Patients might not have received the quality of care that they expected. I have had experience of that with my late father. When he was terminally ill, the standard of nursing care was so poor and so distressing that the onus was on me, on behalf of my family, to take it up with the chief executive or whomever I could find and say that things were just not good enough. Even as someone who had worked in the health service and spent time as a chief officer for a community health council representing patients, I still found it hard to know who was the right person to take a complaint to. It was not a serious complaint—about medication, for example—it was just about the standard of care. In fact, the consultant on the ward asked me to take up the matter because he was so concerned and could not do anything about it himself.

What worries a lot of trusts, and I came across it in my career in the NHS, is that an apology might somehow be taken as an admission of guilt. They were therefore reluctant just to give a straightforward apology. In my case, I had to complain about a particular member of the nursing staff, with the case continuing after the death of my father and disciplinary action being taken against the individual concerned, but I still did not receive an apology. Even after my complaint was upheld, there was no apology. There was no sense of, “Yes, we realise things went wrong”; rather, it was, “Yes, this person did something wrong and she is going to be dealt with”. There was no apology, no statement of how things would change and how the culture in that particular ward in terms of caring for older patients would improve. A basic apology should be the very least thing that could happen, without there necessarily being an admission of liability or of guilt. At the human level, an apology should be made to somebody who has suffered, or to their family.

People also want a simple explanation. They do not want an incomprehensible letter about treatment; they want a step-by-step, basic explanation of what should have happened but did not—just to give someone some background. This should be done very quickly. Trusts should also offer a face-to-face meeting, which not all of them do, particularly early on. It may already be offered further down the track.

Those two or three simple measures should be put in place and become the norm. We have heard in this very interesting debate that there are variations, and there probably always will be, but we should expect a minimum standard when things go wrong or when services are perhaps not what they should be.