Health and Care Bill

Lord Bradley Excerpts

Consideration of Commons amendments
Tuesday 5th April 2022 Lords Chamber

[Baroness Finlay of Llandaff (CB)]

My Lords, as others have spoken fully to other amendments in this group, I will confine my remarks to Motion L1 in my name. I thank the Minister for the open-door policy that he has had and for his willingness on many occasions to discuss with me the problems for parents who can feel completely overwhelmed in the face of not being listened to by clinicians. I am also particularly grateful to the noble Baronesses, Lady Brinton, Lady Masham and Lady Stowell, for their helpful comments and advice behind the scenes, and to the noble Lord, Lord Balfe, who has shared with me his extensive experience on mediation.

In drafting my amendment to the amendment, I was particularly concerned that we must take evidence directly from parents, including parents whose dispute has not necessarily progressed to court. While it is quite extreme to progress as far as court, there seem to be a lot of parents who have felt completely overwhelmed in the face of personal tragedy. In an interview, Rob Behrens, the Parliamentary and Health Service Ombudsman, said about mediation:

“We’ve got to get better at communicating with complainants, better at learning from bad experiences, and better at using early resolution and mediation so that sometimes we don’t have to use adjudication at all.”


He went on to point out some of the cultural characteristics of the health service that make these encounters hard. He listed professional dominance, clinical hegemony, hierarchy and defensiveness as characteristics that make it particularly difficult.

I am grateful to the noble Baroness, Lady Pitkeathley, for flagging up parent carers. They often feel deeply disempowered because they are completely dependent on the help of others to manage a very difficult situation and so particularly inhibited in the face of any professional dominance; of course, there have been some stories in the press.

In response to the Minister, I will gladly be involved in developing the scope of this review. I hope that he will rapidly put me in contact with the official who will be responsible for it because we need to start as soon as possible. The government amendment stipulates a year—actually a very short time to run an inquiry—so it needs to happen quickly. I hope that there will be funding resources attached to this; it cannot be done on thin air or a shoestring. I hope also that there will be support for it to be done properly so that we can take evidence. Developing the scope of the review will be very important and I think there are parent groups who would particularly wish to be consulted at that early stage as well.

In the letter that we were sent, I note that the Government said:

“Should the review make recommendations for legislative change, and the Government agrees with those recommendations, we would seek to bring forward legislation where parliamentary time allows.”


I see that the Government have left themselves a small out, but, if this is to be a properly conducted review with clear recommendations, I hope that they will listen to that evidence and will not shirk at taking whatever steps are necessary.

I conclude simply by thanking the Minister, the Bill team and the other officials who have engaged in many hours of discussion on this issue. I look forward to working with speed on getting this review up and running.

[Lord Bradley (Lab)]

My Lords, I will speak very briefly to Motion Q: Amendments 105 and 105A. I declare my health interests as in the register, particularly my role as a trustee for the Centre for Mental Health.

I was disappointed that the Government did not accept my Amendment 105, which was passed in this House on Report, regarding mental health membership on integrated care boards. I repeat my thanks for the support I received for the amendment from Labour and Liberal Back-Benchers, particularly the noble Baroness, Lady Walmsley, some Cross-Benchers, and from my own Front Bench, my noble friends Lady Wheeler, Lady Merron and especially Lady Thornton, who has been tremendously supportive throughout. I am also extremely grateful for the continuing and unstinting support of organisations outside Parliament, such as the Centre for Mental Health and the Mental Health Foundation.

However, I am satisfied that the Government’s amendment in lieu, Amendment 105A, captures the essence of my amendment: that the voice of mental health should be at the board table at the inception of the 42 ICBs, and play a crucial part from the start in determining service priorities, budget and resource allocation, workforce growth and development, and commissioning arrangements, among other things. The chairs of ICBs will now have responsibility for the appointment of mental health representation and will be held accountable for their decisions. This House, the other place, external bodies, the public and I will all scrutinise these appointments very carefully.

The Government’s amendment, devised by the noble Baroness, Lady Walmsley, and passed on Report, will put a double lock on mental health representation because of its intention to review the skill mix and expertise of ICB membership in the future. We had further assurance in the Minister’s letter to all noble Lords, which said:

“We strongly agree with the principle underpinning Lord Bradley’s amendment and with his view that ICBs will be strengthened by having at least one member with knowledge of Mental Health on the Board. As it stands, however, the current drafting would create significant legal ambiguity, which is why we tabled an amendment in lieu in the Commons to ensure that the principle is maintained in a legally robust way”.


I am grateful to the Minister for this assurance, and I believe that in taking it together with the two amendments, the ambition for parity of esteem between physical and mental health will, as a result, take a further significant step forward.

The Government’s amendment in lieu of my amendment should ensure that the voice of mental health is heard clearly on ICBs and in the wider integrated care system, and that the mental health and well-being services needed and demanded by the public are at the heart of integrated health policy in the future.

[Lord Balfe (Con)]

My Lords, I rise to speak to Motions L and L1. Where we have got to today is a good example of what the House of Lords is for. When this Bill came to the Lords it had nothing in this area—but by working together, particularly with my friend, the noble Baroness, Lady Finlay, we have produced an acceptable clause. I would have liked more, but it is acceptable.

My skill, so to speak, was mediation, not health. What I hoped to do was to alter subtly but importantly the power relations in the hospital setting. The aim of compulsory mediation is that the patient would be given some power, although only the power to ask for mediation, which is, after all, a system whereby both sides have to agree. None the less, it would give them a way of articulating an issue. One of the jobs of a mediator is to make sure that both sides of any case are understood not only by the other side but by the side presenting it. I did the odd mediation in my time, and when we got down to it, it was clear that the people asking for it were not quite sure what they were asking for. So mediation is a way in which to calm things down, and that is what I was hoping to do. In the middle of all this, the Ministry of Justice came forward and said that it would cover certain legal costs. My aim was actually to reduce costs on the NHS by producing a rather cheaper way—but I am sure that that is something to be welcomed.

I will make just two or three small points. First, when this review is done, it is important that the mediation system that comes out is capable of being enforced. There are basically two types of mediation—what in lay man’s terms we used to call family mediation, and commercial mediation. The weakness with family mediation was that it was non-binding. I never did family mediation, but I belonged to a group with both sides in it, and one of the most distressing things was the huge amount of time that could be put in, and then the mediation agreement was just renounced and set aside. That has to be avoided; we cannot be in a situation where there is an NHS mediation and, let us say, the senior consultant says, “I’m not having that—I refuse to agree.” There has to be something equivalent to what in commercial mediation is known as the Tomlin order, which is the order whereby the court underwrites the mediation; it does not intervene in it but it gives it the force of law so that it can be enforced.

The detailed points that I would like to make to the Minister are as follows. First, in the clause that he has tabled, the department refers to

“the carrying out of a review into the causes of disputes”.

It needs to go a bit wider than the causes; it needs to be a review into the causes and the ways of solving disputes. It is no good having a catalogue saying, “This is where there are disputes.” It has to actually provide a solution to the disputes.

My second point is about where the provision refers to

“a report on the outcome of the review, within one year beginning with the date on which this section comes into force.”

It is a very simple question here: when does the Minister envisage that the section will come into force? There are things in Acts that have been around for years and which have never actually come into force. When will this come into force? I also hope that he will be able to give us a favourable answer on Motion L1, and the additional amendment, tabled by the noble Baroness, Lady Finlay. It adds a couple of very important points to this amendment, and I hope that it will be accepted.