Health Service Safety Investigations Bill [HL]

Baroness Jolly Excerpts

2nd reading (Hansard): House of Lords
Tuesday 29th October 2019 Lords Chamber

[Baroness Jolly (LD)]

My Lords, this has been an excellent debate. The noble and learned Lord, Lord Hope of Craighead, has just mentioned the issue of no blame, a theme that has run all the way through the debate. It started with the noble Lord, Lord Hunt of Kings Heath, talking about James Titcombe, who lost a child at Morecambe Bay Hospital and is insistent that there can be no learning from blame. This was echoed by the noble Baroness, Lady Finlay of Llandaff, and the noble Lord, Lord Hunt of Wirral. Another theme running through the debate was picked up by the right reverend Prelate the Bishop of London, who talked about a culture of learning. Those are the two strands: we need a culture of learning in our NHS organisations and one of no blame. I welcome the commitment to learning from incidents involving patient harm and from adverse events. I also welcome HSSIB’s independence and I was grateful for the opportunity to talk to the Bill team yesterday.

This need to learn and to share is nothing new: something similar was being done 20 years ago. The noble Lord, Lord Patel, was just talking about it, as I thought he might, and I am sure that those here today will be able to tell the House that learning from such adverse events goes back even further. We heard very moving testimony from the noble Lord, Lord Turnberg, and, with their clinical backgrounds, from the noble Lords, Lord Ribeiro and Lord Colwyn. Will the Minister expand on how this theme could actually be woven into the Bill even further?

The governance of the body is interesting. For a body that will be looking at three or four cases each month, it seems very thoroughly governed. The board of HSSIB will have a chief investigator and chair as public appointments, as well as executive appointments and non-exec directors. The Joint Select Committee recommended that the appointments of both chief investigator and chair should be subject to the scrutiny of the Commons Health and Social Care Select Committee. I welcome the suggestion of the noble Lord, Lord Hunt of Kings Heath, that senior clinicians need to be involved in this, but experienced lay members can also bring welcome independent scrutiny—this was picked up by other noble Lords. It seems an appropriate measure, so why not include it in the Bill? It is something we may return to in Committee.

This is the first time that we know what the concept of a safe space entails. To allow individuals to talk about an event, secure in the knowledge that they will not be reported to others involved, is a powerful move, and I wonder whether it will take time for participants to gain confidence. Does the Minister have any insight into what measures might be taken to help with this? An expert advisory group was set up by DHSC to look at the HSSIB, yet its recommendations were not all followed. I understand that if you make a list of recommendations you can expect that they will probably not all be followed, but it had particular concerns about the duty of candour. The noble Lord, Lord Hunt of Wirral, spoke about candour, but I think he was talking about a slightly different sort of candour to what I think of as NHS candour. Here, we refer to frank and open conversation locally between patients and clinicians, and between different clinicians. Sometimes these are very uncomfortable conversations, where something has gone wrong and you sit down and have a facilitated chat. It can be very difficult to be honest and open, but it is really important.

Professional bodies express the need and the desire for the NHS to be an open, learning body, yet the Bill does just the opposite. How does the Minister see this being resolved? The reasons that healthcare regulators will seek disclosure from the High Court are likely to be linked to the proper exercise of their public protection duties. The proposed test surrounding the interests of justice does not appear to envisage or adequately cater for such applications. I am sure we will return to this in Committee.

My noble friend Lord Scriven brought to our attention the delivery of NHS services in prisons and in conjunction with social care. I welcome that addition, but I am also not sure whether the Bill applies to NHS care for service men and women, either in the UK or overseas. That is perhaps something else that might be looked into. I am sure we will also consider in Committee whether the Bill will include patients in private hospitals whose care is being funded by the NHS, and patients being treated by clinicians who work for the NHS as well as the private sector, but whose care is being provided for privately.

Following on from the point made by the noble Lord, Lord O’Shaughnessy, it is worth noting that NHS Providers recommends in its excellent briefing that all providers registered with the CQC should be part of the HSSIB’s remit. I would support that, as a sensible suggestion that would make the situation crystal clear. Regulatory bodies are listed in Clause 2(6), but there is a very large number of people working in the NHS who are not part of a registration scheme. The most obvious are care workers, but it is also true for very skilled individuals such as clinical perfusionists. There are also other qualified technicians within the NHS who have no body with which to register. In my response to the Queen’s Speech, I expressed my concern that care workers had no organisation with which to register. Clinicians, as I have just mentioned, are not registered either, and I know that this is not an issue of their making.

Where the incident involves an unregistered member of NHS staff, with whom would the HSSIB co-ordinate the practical arrangements called for in Clause 12? Will the Government consider looking again at the issue of non-registered NHS staff? The Minister may be aware that the GMC has suggested that now would be a time to look again at regulatory reform. Can she tell us whether there are any plans to make that happen?

This Bill is about processes—the Minister said as much when she opened this debate—to determine the truth about incidents during the provision of health services where there arose extreme causes for concern and to make recommendations to avoid repetition. It involves the patient, possibly their family and the clinicians and other staff. Yet in the Bill there is no heed taken of those individuals, or their care and well-being, in what would most certainly be a stressful and difficult time.

This has been an interesting and well-informed debate, but the two most powerful speeches were those of the noble Lords, Lord Turnberg and Lord Faulks. I shall spend the next couple of weeks rereading this Bill and thinking about its future—except perhaps, just perhaps, it will not have one.