Health and Social Care Bill

Baroness Hussein-Ece Excerpts

Monday 7th November 2011 Lords Chamber

[Lord Harris of Haringey]

My Lords, the noble Lord, with all his experience—albeit, like me, as a non-lawyer—is speaking exactly the truth. In many of those cases, the legal advice would be, “Say nothing”. There therefore needs to be a statutory duty, because then the responsibility of the lawyers concerned would be to advise, “There is no option but to tell the patients or their families”.

An interesting point is that insurers in the United States often require open disclosure policies and practice by health providers to qualify for insurance. The international evidence is that, as well as being the right thing to do morally and ethically, being open and honest when things go wrong can actually reduce litigation and complaints.

My concern is that the Government will say that they are doing enough by saying that the duty of candour can be achieved through a contractual process. However, as the noble Baroness, Lady Masham, has pointed out, this would apply only to hospitals with an NHS contract; it would not apply to GPs, dentists, pharmacists or private healthcare providers. I do not see why the duty of candour to patients and their families should be regarded as of lesser importance and impact than those things where there is direct regulation. I hope that the Minister will say that the Department of Health will take this away and that he will come back to the House with proposals to give a statutory duty of candour to protect the interests of patients.

[Baroness Hussein-Ece]

I, too, wish that there was not a need for this duty and that it was unnecessary. However, as we have already heard from the noble Baroness, Lady Masham, and the noble Lord, Lord Harris of Haringey, there is a compelling case that now, more than ever, we need a duty of candour.

As has been said already, we know that accidents will never be eradicated, and nor will human error. We know that healthcare has risks—most people accept that—and that health professionals are only human. However, when things go wrong and they are caught up in things that can cause harm to patients, they need to be supported and helped to deal with a very difficult situation.

There has to be absolute clarity that anything less than complete openness and honesty when things go wrong is unacceptable in modern British healthcare. That is what I understand that the amendment is trying to achieve—a duty of candour.

In my previous life, I was a chief officer in a community health council. Unfortunately, I came across many cases in which a complaint was brought to me and, when we started to look into it, it became apparent that all was not what it seemed. It would often take months, if not years, to establish what had happened. For a family who has lost somebody or when something has gone badly wrong, that compounds the distress that is caused. It makes things worse. As the noble Lord, Lord Harris of Haringey, said, most people want to know. They just want information; they want to know the truth of what happened to their loved one. The last thing that they want is to find out, sometimes months or years later, that there has been a cover-up or they were given the wrong information. Sometimes, deliberately, the shutters simply come down because a trust fears litigation, as we have heard. Because of that fear, parents, patients and families are often left floundering in the dark and running to lawyers.

None of us can imagine losing a loved one as the result of an avoidable error and then finding out how the information had been kept from one. As has been said, there is no statutory requirement. It would come as a surprise and a shock to most of the general public that there is simply no requirement to be told when something goes wrong with any of our loved ones. The onus would be on them to find out and get to the bottom of it. Most patient groups that are campaigning for this are coming at it from real experience of having to take up some of the most tragic cases that we have heard about in recent years. The phrase “having regard to” the principle of openness is in the NHS constitution, but it is really not sufficient. It is not adequate to deal with the sort of cases that we have heard about.

Successive Governments have usually agreed that a duty of candour is a good thing and may be required, but so far there has been a failure to establish what that duty should entail. It is different from the contractual duty built into standard contracts between commissioners and some providers of NHS services. I believe that this is wrong; surely, honesty is the only policy in this instance. This should be a commitment to the protection of patients in healthcare and a legal duty of candour, which places a duty on all healthcare professionals to be open and frank with patients and their families. I was disappointed to read just last week that the GPC said that GPs would not back an openness clause in the GP contract, for example. I found that very disappointing.

--- Later in debate ---

[Earl Howe]

My Lords, unfortunately, I am not an expert in consumer law. My noble friend Lord Marks might be able to enlighten us on this, but there are, of course, consumer protection laws, which every organisation has to abide by, as provided for in the Consumer Protection Act. I think there are probably consumer protection aspects to contracts relating to healthcare services, but we have to tailor the contracts to ensure that we cover the issues that healthcare gives rise to.

The noble Lord, Lord Warner, asked me about the NHS Redress Act and whether the provisions of that Act were capable of taking forward some of the issues raised in the debate. I understand why he has asked that question, but there is a difference between redress for negligence and openness and it is important to distinguish between the two. As such, some of the issues raised this afternoon fall into the remit of redress and associated legislation rather than being specifically linked to a duty of candour. However, I note that, notwithstanding the long hours that we spent debating the NHS Redress Bill some years ago, the previous Government chose never to bring it into force; it is potentially on the statute book, but it is not in operation.

I shall reflect carefully on the points made in this debate. I hope that I have in some way reassured the noble Baroness, Lady Masham, that we are putting systems in place to introduce the duty of candour. To answer my noble friend Lord Mawhinney, we have a strategy. There are good reasons for the contractual route that we have chosen as well as a real potential downside if we were to go down the statutory route proposed here. So against that background, I hope that the noble Baroness will feel able to withdraw her amendment.

[Baroness Hussein-Ece]

The Minister's comments on mediation prompt me to ask a further question. When I dealt with many of these cases, the complaints procedure was on three levels and the first, immediate level was when the patient or the patient’s representative came forward with a complaint to seek local resolution, and often mediation was used to bring the parties together to give, as far as possible, full information. This is very patchy and I was wondering whether, within the consultation and the contractual duties to which the Minister has referred, that will be extended so that things can be resolved at the first level before they get to the litigation stage. Is that being considered?

[Earl Howe]

I shall have to get back to my noble friend on whether it is specifically mentioned in the consultation. I can say that it is absolutely pertinent to the subject matter on which we are consulting. It would be extremely helpful if some of the response to the consultation covered issues such as mediation. We need to factor that in and perhaps my noble friend, with her experience, will feel able to send us her views on the subject.