Health and Care Bill

Baroness Neuberger Excerpts

Committee stage
Wednesday 9th February 2022 Lords Chamber

[Baroness Kramer (LD)]

My Lords, this is my only intervention on this Bill, and I will limit myself at this hour to speaking to my own Amendment 309A, which deals with whistleblowers. I want to make a slight distinction from the safe space discussion, because for very many whistleblowers, if not the overwhelming majority, safe space becomes an irrelevance. They have raised their issues with their colleagues and with management. They have often raised the issues in very public settings and have been identified. Sometimes—often, in fact—the information they have is so particular that they can be identified easily by the organisation from the issues on which they are speaking out.

When I looked at this Bill, I was absolutely stunned to see that we were creating a Health Services Safety Investigations Body without any mention directly of whistleblowers and just some minor reference to disclosure. I am afraid that this tells us something about the attitude of those in charge of the health sector, and sometimes that of the Government and Ministers.

Whistleblowers have been absolutely key to exposing scandal after scandal but are treated quite disgracefully by the system. Typically, they are ignored or disbelieved, often for years—and that is when they go out beyond even a safe space, if that is available to them, and begin to talk to the media out of desperation to make action happen. Attempts are then made to silence them, typically by the offer of settlements that contain aggressive non-disclosure clauses, called confidentiality clauses here in the UK, which are both common and very aggressive within NHS settlement agreements. Many whistleblowers are subject to aggressive retaliation, requiring them to fight for as long as seven years through employment tribunal systems just to clear their names and sometimes be awarded some compensation for a career completely destroyed.

Yet without whistleblowers, failures in healthcare, whether from incompetence or abuse, would rarely be exposed and would remain hidden for much longer. Let me repeat what I have often said before: whistleblowers are the citizens’ army that provides crucial information to regulators and enforcement bodies. They are the canaries in the mine that the HSSIB will need. If it treats them with respect and—even more importantly—protects them, they will provide deterrence, which is always better than cure.

When I raised this with Ministers, the answer I was given is that whistleblowers are protected in the healthcare system by the National Guardian’s Office and some 800 “freedom to speak up” guardians put in place after the damning Francis report in 2015. Guardians are typically NHS trust employees, already busy but taking on additional duties. Ministers may say that over 20,000 cases were raised to such guardians last year, but the guardians, no matter how much they might have wished to do, in most cases have been able to do little more than provide advice and direct people to various channels of reporting. Unfortunately, the guardian system has no power to enforce action following a disclosure and no tools to protect a whistleblower from retaliation. “Guardian” is a misnomer.

There is no time today to go through the individual cases of whistleblowers as each is incredibly complex. I have in my pile of papers evidence from seven very different whistleblowers, which I will summate. Dr Kevin Beatt and Dr Raj Mattu are leading cardiologists. There is no way they could have reported their complaints in a safe-space system; they would immediately have been identified as those who are bringing forward the issues. Mr Peter Duffy is a urological surgeon, Mrs Sue Allison is a radiographer, Dr Chris Day is a junior doctor, Steve Turner is a nurse and lecturer and Dr Ed Jesudason is a paediatrician. Between them, they spoke up on issues including a cover-up of preventable children’s deaths, understaffing and overcrowding, unsafe surgery due to specialist staff shortages, lax attendance by senior doctors, bullying and blacklisting.

Every one of those seven suffered terrible retaliation. Some are still fighting, some have been vindicated after long, bruising struggles and one has even received an MBE, but they are the tip of the iceberg. From speaking to just one civil society group, WhistleblowersUK, I found that it was inundated by calls from whistleblowers last year, who had found no adequate response from the National Guardian’s Office or the Care Quality Commission.

My amendment gives the HSSIB responsibility for setting in place a secure process for whistleblowers to report safely and confidentially any concerns on patient safety. In a sense, you could look at it as a safe space arena. It also requires transparency, at least in aggregate, about how the HSSIB acts on that information. The amendment goes well beyond a safe space, which is a reflection of the current Public Interest Disclosure Act, by offering confidentiality to everyone, not just employees. It also requires the HSSIB to report any retaliation against whistleblowers to the Secretary of State.

I hope the many whistleblowers who are suffering acute detriment under the current system or are too afraid to speak out can read Hansard tomorrow and hear from the Minister some positive and powerful responses to this amendment.

[Baroness Neuberger (CB)]

My Lords, I am also rather nervous. I spoke at Second Reading about how worried I was by the exclusion of the ombudsman—the PHSO—from the provisions to create a safe space for investigations carried out by the HSSIB. The safe space is of enormous significance, although I agree with the noble Baroness, Lady Kramer, that there is an issue about where whistleblowers fit—that is right. We need the safe space but, as currently drafted, the Bill cuts across the unique and long-standing role of the Parliamentary and Health Service Ombudsman to investigate complaints about the NHS. Although I take the point of the noble Baroness, Lady Young of Old Scone, that the number of cases are very few, there is a constitutional principle here.

--- Later in debate ---

[Baroness Neuberger (CB)]

Of course I accept that, but I do not think it is right. Once the safe space exists and is part of the system, and the ombudsman has those rights—or traditionally has had those rights—we have to allow the ombudsman, who does not reveal the material and does not name names, access. We are obviously going to disagree on that.

I am no legal expect, and my noble and learned friend Lord Etherton will deal with the legal and constitutional principles. However, I ask the Minister to look again at this and to consider removing the coroners from the safe space, an approach that makes no sense at all, but allowing the ombudsman—the PHSO—to have access on condition that there is no disclosure to a third party, thus retaining the important role that the ombudsman holds in our constitutional arrangements.

[Lord Etherton (CB)]

My Lords, I have added my name to Amendment 311 in the name of the noble Baroness, Lady Neuberger. The heart of the complaint which has prompted the amendment is that the Bill fails to provide a proper balance between the role of the HSSIB and the role and standing of the PHSO, and it fails to recognise and provide for the PHSO to be treated as part of the HSSIB’s safe space under the Bill.

The Bill’s prohibition on disclosure by the HSSIB to the PHSO of material obtained by the HSSIB in connection with its investigation of incidents that may have implications for patient safety impedes the statutory functions of the PHSO, diminishes the standing of the PHSO, is contrary to the independent, non-judicial constitutional role of the PHSO, and is contrary to the UK’s obligations as a member of the Council of Europe and the United Nations regarding ombudsmen.

The PHSO in his role—and it is a “he” at the moment —as the Parliamentary Commissioner for Administration acts pursuant to the statutory framework in the Parliamentary Commissioner Act 1967; and, as the Health Service Ombudsman, he acts pursuant to the Health Service Commissioners Act 1993. Under those statutes, his role is to investigate complaints by members of the public who claim to have suffered maladministration or to have sustained injustice or hardship in the delivery of a health service.

The legislation which I have just mentioned effectively gives the PHSO unrestricted access to evidence and other information in order to carry out his investigations fully and effectively. As the noble Baroness, Lady Neuberger, has said and as is obvious, there will often be an overlap between the work of the PHSO and that of the HSSIB both in respect of particular incidents and in relation to general inadequacies in practice and procedure—reference has been made to eating disorders and learning disabilities. There are very limited exceptions under the Bill for disclosure by the HSSIB of protected material to third parties. These do not include routine disclosure of evidence and information which is relevant to investigations by the PHSO, who will be able to obtain such material only if he obtains an order from the High Court. This is so even if both the PHSO and HSSIB are investigating the same incident and even if the PHSO in his capacity as parliamentary commissioner is investigating a complaint by a person of maladministration on the part of the HSSIB itself. This simply does not make any sense.

Notwithstanding the observations made by the noble Baroness, Lady Young of Old Scone, it seems that the restriction on disclosure is based on a misunderstanding about the confidentiality of material held by the PHSO and about the safe space in which he currently operates. The legislation governing the PHSO provides that he must conduct his investigations “in private”. Subject to limited exceptions, the PHSO is not permitted to disclose to third parties information obtained in the course of an investigation. Disclosure cannot be made by the PHSO in any circumstances where that would be contrary to the public interest. Information obtained by the PHSO is also subject to absolute exemption from disclosure under the Freedom of Information Act 2000. No persons are identified in the PHSO’s reports, and names are anonymised. Mirroring the safe space provisions in the Bill for HSSIB investigations, reports of the PHSO do not apportion blame to individuals, and do not assess or determine civil or criminal liability or whether disciplinary action needs to be taken.

Furthermore and critically, the terms of the proposed amendment would impose a complete legal block, prohibiting the disclosure to a third party of any protected material disclosed to the PHSO by the HSSIB except by order of the High Court, and then only for certain very limited purposes. The effect of the existing statutory provisions and the conditions in the amendment prohibiting disclosure to third parties mean that the PHSO and the HSSIB fall legally and naturally within the same safe space.

As presently worded, this will be the first occasion on which the PHSO’s access to information will have been curtailed. At the same time, in extending the right of disclosure of the HSSIB’s protected material to coroners, the Bill discloses an incomprehensible inconsistency, since not only are inquests increasingly adversarial, as has been noted by a number of speakers, but such disclosure is not allowed by the PHSO under the PHSO’s governing legislation. As the noble Baroness, Lady Neuberger, has said, ombudsmen are internationally regarded as having a constitutional role in addressing the imbalance of power between the individual and the providers of public services, and in their autonomy and independence from the executive and judicial branches of government. That constitutional role is enshrined in the Venice principles adopted in 2019 by the Council of Europe and by the UN’s General Assembly in 2020. A written opinion of the Venice Commission, published in October 2021, concluded that the exclusion of the PHSO from the safe space created by the Bill, and denying the PHSO to full access to the HSSIB’s protected material, would be contrary to the Venice principles. It would therefore place the United Kingdom in breach of its international obligations. The amendment is, for all those reasons, both necessary and desirable.