Health and Social Care Bill

Baroness Wall of New Barnet Excerpts

Monday 13th February 2012 Lords Chamber

[Lord Harris of Haringey]

I am grateful to the noble Lord, Lord Walton, for that. It is an extremely important step forward and it recognises that there is an existing problem that requires the GMC to take that stance. I think that there is a distinction between gagging clauses and the sort of persuasion and pressure that may be applied to clinicians behind the scenes under such circumstances. This amendment focuses on the organisation’s responsibility and on how the managers and lawyers within an organisation should meet those obligations of candour.

I know that there has been some concern—I think that the Minister has expressed it at various points—about whether the CQC would be able to cope with regulating this duty of candour. It is worth making it clear that there is no question of asking the CQC routinely to monitor every incident with patients; it is simply about the expectation that it will be there as the backstop.

There is already a duty in the CQC’s statutory registration regulations to report to the CQC incidents that cause harm, but it is a duty which requires the organisation to report the incident to the CQC and not to the patient. It is rather anomalous that there is an obligation requiring an organisation to report something to the CQC but not to the patient at the same time. Quite clearly the CQC should have this information and be able to respond to and deal with it.

The point is that the CQC has always said that it could regulate this requirement if the Department of Health so wished. I think that there has been some recent correspondence with the Department of Health which has recognised that the CQC is currently under considerable resource constraints. However, I have seen copies of e-mails released under the Freedom of Information Act—

[Baroness Wall of New Barnet]

I thank the noble Lord for giving way for the second time. I certainly support the amendment but I worry about the examples that he has used. The cases that he has put forward and the experience of the patients and families concerned are horrendous and outrageous, but what I found troubling and certainly did not recognise at all was when he went on to say that the coercion, rather than gagging, that might take place inside, for instance, a provider trust such as my own—Barnet and Chase Farm—would discourage people from being anything but frank. I have now been the chair of Barnet and Chase Farm for five years. The chair is at the end of the process and during the process has the opportunity to talk to people. I hope that my trust is not unique but in five years I have never known that kind of culture at Barnet and Chase Farm. The noble Lord is looking askance but I ask him to trust me. From my experience—and I hope that it is not a lone experience—I can assure him that that culture does not exist inside my trust; nor, I am sure, does it exist in others. In fact, the opportunity to come clean is used by my trust in the whole way in which patients are dealt with and, indeed, when patients tragically die. If what the noble Lord is saying does happen, then the amendment is absolutely crucial. However, I do not recognise it.

[Lord Harris of Haringey]

I am grateful to my noble friend for that intervention. She has highlighted the fact that there are different practices around the NHS. Quite a number of trusts take a very positive approach, as she has described, whereby the natural assumption is that you are open because that is what the Department of Health would expect. However, the number of instances where that is not always the case and not always the culture that is adopted, is striking. That was, for example, reflected in the group of families that I met whose family member had died while being detained under the Mental Health Act; it was reflected in the case of Robbie Powell; and it was reflected in a large number of the other cases that the patient organisations which the noble Baroness, Lady Masham, listed, have come across.

So there are two cultures within the NHS and we need to ensure that the culture within the NHS is the best. That is why a statutory duty of candour would support the process, rather than hinder it. It would not cut across the position of the individual professions—indeed it would support it—and, as the noble Lord, Lord Walton, has highlighted, there has been much recognition by the General Medical Council that this is an issue—