Health and Social Care (Safety and Quality) Bill

Baroness Masham of Ilton Excerpts

Friday 13th March 2015 Lords Chamber

[Lord Warner (Lab)]

My Lords, I support all four amendments in this group, but I added my name to those of my noble friend Lord Turnberg. I speak from the perspective of someone who nearly 12 years ago as a Minister approved a new system to improve patient safety by reporting serious incidents. We did not try at that point to go for unrealistic approaches to improving safety in the NHS. That was not because we were spineless; it was because we needed to get people behind the agenda and bring out into the open serious instances of the poor practice that was going on and jeopardising the safety of patients. I do not think that Clause 1 meets that test. It is likely either to produce excessive caution or simply to drive some of the poor practice underground.

I support every word that my noble friend said and very much of what the noble Baroness, Lady Finlay, said, so I will not repeat them, but I want to draw attention to the briefing that we have all had from three significant organisations: NHS Providers, the Health Foundation and the BMA. I do not always stand up and advocate the policies of the BMA in a number of areas, but in this area it is absolutely right.

I draw attention to what those organisations say in some of that briefing—I shall not read it all out. The Health Foundation makes it clear that introducing a duty such as that in Clause 1 would go against the evidence of what is possible in delivering safe health and care services. It states that the NHS has already demonstrated considerable progress towards building a genuine safety culture and that it is concerned that the message sent to NHS staff through the wording of the Bill may hinder further progress on this. It draws out in a summary of its concerns three very simple points, which might be a consequence of passing the Bill as it stands. First, patient safety experts tell it that causing no avoidable harm is impossible; secondly, legislation is not a solution for cultural problems; and, thirdly, a duty of no avoidable harm will divert further resources from what we know improves safety. My noble friend Lord Turnberg alluded to shifting priorities of what organisations and staff do in a way that is not always helpful to patients.

NHS Providers said very similar things but added something important. It said that should the Bill pass into law, further regulations may be laid by a new Government who have not engaged or given assurances in this area. It urges amendment to ensure that any regulations are fully consulted on and passed by affirmative resolution.

This is an extraordinary point in the electoral cycle to bring forward a provision of this seriousness in the form of Clause 1. The Government have to think again; they should consider whether they really want to be involved with a Bill containing a provision of this kind. It is full of possibilities for unintended consequences; potentially it could do harm to patients. I do not doubt the good intentions of the people behind the Bill and I do not doubt that they will be pretty grumpy about some of us drawing attention to our concerns. This has become the Government’s Bill—let us not mince our words. It may have started off and still nominally be a Private Member’s Bill, but the Government have put a lot of effort into it, as the sheer number of civil servants standing by to help shows. This is, to all intents and purposes, a government Bill. If the Government really want this legislation in this Parliament, they have to consider doing much more than they are currently providing for to meet the concerns expressed not just by Members of this House but by people whose opinions we all respect. With all due respect to my noble friend Lord Turnberg, the easiest way to meet many of those concerns would be to accept the amendment of the noble Baroness, Lady Finlay. The Department of Health needs to consider whether this would be the wisest thing to do.

[Baroness Masham of Ilton (CB)]

I agree that there should be a culture of openness, honesty and transparency. When things go wrong, most people say, “I don’t want this to happen to anyone else”. There should be lessons learnt from mistakes, not cover-ups. This should be made as clear as possible.

[Lord Hunt of Kings Heath (Lab)]

My Lords, as noble Lords know, the Opposition support the Bill. However, issues have been raised which I hope the noble Earl, Lord Howe, will help to clarify.

I should like to pick up my noble friend’s point about whether this issue is raised at institutional or individual level. It looks as though the Bill focuses on individuals. Will the noble Earl confirm that it is his view that responsibility ultimately lies with the corporate boards which are responsible for the activities taking place in the National Health Service? If that is so, why does the Bill not list those bodies which it covers so that it would be clear who should take corporate responsibility?

Secondly, I take the noble Earl back to the Statement he made last week about Morecambe Bay. It was very telling when he talked about the concerns raised by Dr Bill Kirkup about the lack of a culture of openness and transparency. He said that,

“this report makes clear that there is a long way to go. It seems medical notes were destroyed and mistakes covered up at Morecambe Bay, quite possibly because of a defensive culture where the individuals involved thought they would lose their jobs if they were discovered to have been responsible for a death. However, within sensible professional boundaries, no one should lose their job for an honest mistake made with the best of intentions. The only cardinal offence is not to report that mistake openly so that the correct lessons can be learnt”.—[Official Report, 3/3/15; col. 160.]

Will the noble Earl say very clearly that that point, which I agree with, is not in conflict with the Bill, and in particular with Clause 1? It is very important—the last thing we want to do is discourage people from being open about mistakes. We do not want that to be an unintended consequence of the Bill.

--- Later in debate ---

[Baroness Masham of Ilton]

My Lords, I would like to ask a question of the noble Lord, Lord Warner. Would Amendment 8 help to protect children such as Baby P, who suffered around 50 abuses, including a broken back, which had been neglected? Many other children have suffered abuse and neglect since then. Children need extra shared protection.

[Lord Warner]

I know of the commitment of the noble Baroness in this area. The answer is that a linked identifier would have helped in many of these cases. We have to move beyond exhortation in central government guidance for people to share information across the agencies to providing them with the practical tools that will make it easier for these data systems actually to share information and make it readily accessible. That means providing a common linked identifier for the agencies to use in matching their data sets. So, yes, in all probability Baby P might have been protected, as well as the many others we have seen since Victoria Climbié.