Care Bill [HL]

Baroness Finlay of Llandaff Excerpts

Wednesday 12th June 2013 Lords Chamber

I am not holding a candle for rigid staff to patient ratios on every ward in the country being set at a national level, which is why I am attracted rather more to Robert Francis’s concept of benchmarking. However, I have no doubt that he is right to want to try to safeguard quality by making sure that enough staff are available in clinical areas. We cannot escape from this. Given the financial constraints on the NHS, there has to be some protection when it comes to staff numbers, and the Francis report offers us a rather sensible way through on this. I beg to move.

[Baroness Finlay of Llandaff]

My Lords, this is a very interesting group of amendments. I will initially address the amendment relating to staffing requirements. I declare an interest, having been involved with Gwent Police at the beginning of its Operation Jasmine investigation into nursing homes. It became evident there that the staffing levels in nursing homes—which were owned privately by a GP at the time—fell to such a level that the care was non-existent. What was happening was absolutely appalling. I urge the Government to ask NICE to look at this and come up with some guidance. The biggest problem may well be outside of the hospitals, in the nursing home and care sector. It is not only the staffing levels and the skill mix but about how staff are expected to behave, what they are expected to do and their taking on broader responsibilities for the care of patients. I am not sure whether the wording is right for the Bill itself, but it might be helpful for NICE to come up with some guidance that CQC could use for benchmarking.

It is important that we look at the organisational duty of candour and are cautious so that it cannot simply get focused down and pinned on the individual. The Government have done a great deal of work already, as has the General Medical Council, on the duty of candour of doctors towards patients when something has gone wrong. Sadly, however, the medical defence unions have all found that doctors, by and large—two-thirds of doctors have reported this—are working in what they feel is a blame-and-shame culture in which it becomes increasingly difficult to report errors, and 70% of them report that they do not feel supported when they report errors. However, there is an undoubted need for there to be a duty of candour to patients when something has gone wrong.

One of the clinical difficulties that arise is that in very complex situations, however well a team functions, things sometimes do not go the way you expect them to. It is important to be able to differentiate that situation from one in which somebody has done something wrong, which has resulted in harm to a patient. Therefore, I have a slight worry about whether perverse outcomes might occur that could increase that fear of blame and shame. However, it is important to emphasise that since April this year there is a contractual duty on organisations providing care that advises that doctors should tell patients when something has gone wrong. That has been a major culture shift for many, but patients are, in fact, very receptive to being told when something has gone wrong. I have done it myself with the team, and the other, non-medical members of staff were astonished at how welcoming the patient and their relatives were to being told that something had gone wrong and what we were doing about it. There is also already the ability to impose fines, with the recovery of up to £10,000 from the provider and criminal prosecution for significant or recurrent breaches of the duty of care, and, of course, if an individual professional has failed to be candid about an error, they should be referred for impaired fitness to practice and potential suspension or erasure from the professional register, whether it is a doctor or a nurse.

I will give a quick clinical example of where the situation could get complicated. Take a patient who is prescribed a drug such as methotrexate and is to be monitored regularly by the GP. The GP asks the receptionist to put a flag on the system, but the receptionist forgets to do it. The patient carries on taking the methotrexate, becomes neutropenic—has bone marrow failure—is admitted to hospital and is septic. The patient recovers from that, and in hospital is told exactly what has happened. When the patient leaves hospital, understandably very angry, and goes straight round to the GP, the GP has not yet received the discharge letter and finds it difficult to understand what has happened, and there have been delays in the system so that the discharge letter was delayed in getting to the GP.

That is the kind of catalogue within a whole team of lots of people not quite doing it right, and it becomes very difficult to pin the blame on someone, although undoubtedly an error occurred. That is why I support the duty of candour on an organisation, but we have to be careful that we do not end up creating such a culture of fear and blame that other parts of the organisation get scapegoated and blamed, rather than there being corporate ownership for what has gone on.

One of my other concerns about Amendment 76B is in the first part of the amendment, about being,

“honest, open and truthful in all their dealing with patients and the public”.

I would like to be assured, by those who tabled the amendment, that there is no conflict with the requirement for confidentiality in terms of what you are told by a patient. I could see a clinical situation in which information held by a patient might have made their care more difficult. It might have been disclosed to only one healthcare professional, and the patient may have said that it was not to be disclosed to anybody else. Therefore there are complexities behind this, so that enforcing it in law and imposing sanctions and penalties might become difficult.