Health and Social Care Bill

Lord Campbell-Savours Excerpts

Monday 7th November 2011 Lords Chamber

[Baroness Oppenheim-Barnes]

My Lords, I intervene at this point because I have all too real personal experience that may be helpful to the movers of the amendment. When she was still a teenager, my daughter was the subject of a terrible error made during a simple investigative measure. It was covered up by all concerned, who said what a tragedy it was that such a young girl should have got this illness, which was inexplicable. Because she was a private patient, we were able to bring in other advice that led to a conclusion which was that a very serious mistake had been made. She was hospitalised for three months. She suffered several operations as a result and, when she was finally recovering, we sought in law to get some kind of satisfaction.

We were not without means or influence, but no single lawyer would take the case. They said it was not in their interests because their main clients were usually health service providers or medical providers and therefore our case was not going to be taken. The noble Lord, Lord Harris of Haringey, made the point that these people may or may not want to follow legal processes. I make the point that if that were one of the objectives of the amendment—which I hope it is not—they would have no chance whatever.

[Lord Campbell-Savours]

My Lords, I intervene briefly to do precisely what the noble Baroness has just done; namely, to draw attention to an individual case that might influence the judgment of the Committee. In a former incarnation as a Member of Parliament, I received in my post an anonymous letter from a person in the north of England, which made major allegations about a hospital in the north of England where a child had been badly brain-damaged as a result of negligence in that hospital. The letter was unsigned, as I say, and the child's name was not included. I had the task of asking around in the community to find out whether they know anyone who the child might be or whether they knew anybody in the hospital who knew about the incident that had taken place. I suspected that the letter had come from a member of staff.

After some time, I managed to identify a family. I knocked on the door and a lady answered. She said, “Yes, it was our child and the health service has basically converted our garage and put a bed in it”—for this boy who was very badly brain-damaged and remains so to this day. The family had been to lawyers and been advised that that was the best deal they could get. The reason why that happened was because there was no duty of candour and because the health service covered up what had happened. I told the family that they should go to Manchester and pick a very smart lawyer whom I knew and ask him to handle their case. It took six years, at the end of which there was a multimillion pound settlement covering a lifetime's provision of care for this child.

There are many cases of negligence in the National Health Service. I have probably spent more time in hospital in my lifetime than a large number of Members of this House put together and I have seen it myself. You hear stories in hospitals all the time when you are sitting in a bed, although some of them are not so much about negligence as stupidity. I wonder whether we are really being sufficiently transparent in the way we ensure that the information is made available to patients and their relatives. I hope that the amendment goes through.

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[Earl Howe]

I will come on to talk about GPs and primary care providers in a moment, if the noble Baroness will bear with me. I listened with great care—

[Lord Campbell-Savours]

Will this cover private contractors where they provide a service to the National Health Service? What would happen in a dual provision facility whereby, let us say, half the clients were private and the other half were from the National Health Service? Would this provision apply only to those who were in effect being funded by the National Health Service?

[Earl Howe]

Clearly, our concern is for NHS patients. We cannot legislate for private patients who may have completely different terms in the contract. However, the point is that if an independent provider comes forward as an accredited provider for the health service, we should subject that provider to exactly the same kinds of duties that apply to an NHS provider.

I was about to say that I listened with great care to the noble Lord, Lord Winston, and my noble friend Lord Lucas, who I thought spoke wise words in their respective speeches. We have made it clear that we think that services should be commissioned by those who are closest to patients and who best understand the needs of their patients—the clinicians. Therefore, we think it is right that the duty of candour is set out in the contracts that clinical commissioning groups will enter into with service providers. CCGs will be responsible for holding providers to account and therefore will in any case need to consider patient safety events in doing so. In future, the Secretary of State will ensure that this contractual duty is introduced consistently, as the Bill already contains powers for the Secretary of State to set standard contractual requirements where necessary using “standing rules” regulations under new Section 6E of the National Health Service Act, inserted by Clause 17.

The noble Baroness, Lady Masham, suggested that there was nothing in the Bill about patients. I confess that I am disappointed that she has come to that conclusion, as the Bill is all about creating a patient-centred health service—for example, through placing clinicians at the forefront of commissioning, strengthening patient involvement and ensuring that quality is at the heart of all that the NHS does. She suggested that if a duty of candour were in the contracts, perhaps all CQC standards should also be in the contracts. I disagree. A duty of candour is best suited to the contract because, first, the CQC has specifically stated that it is unable routinely to enforce such a duty, unlike the contents of its core standards. Secondly, the issue is very difficult to monitor effectively. Placing the duty closer to patients and clinicians maximises the chances of it working, and placing it in contracts does exactly that.

I would not want the noble Baroness to think that we have chosen the contracting route as in some way a lesser option, showing that this issue is not of importance to the Government. That is absolutely not the case. We propose a contractual duty of candour because we feel strongly that it has the best chance of working. If I may say so, I believe that the noble Baroness has been rather too quick to dismiss the Government’s proposals, which, I say again, represent a considerable advance on the current position.

It has been pointed out that the contractual duty will apply only to providers with an NHS contract and that GPs, for example, without a standard contract will not be covered. We have explicitly acknowledged that primary care contractors will not be covered under the current proposals for a requirement in the NHS standard contract, and we have asked for views on this as part of the ongoing consultation. We recognise that we should aim for an holistic system that applies to every provider of NHS-funded services, but we still need to consider what legislative and contractual changes will work best within primary care.

It should also be remembered more widely that the policy of openness still applies to all NHS services, regardless of the existence of any contractual requirement. For example, primary medical services contractors must have regard to the NHS constitution, the professional codes of conduct and any guidance issued by PCTs or the Secretary of State. Once they are registered with the CQC, a failure to be open with patients will contravene clear expectations set out in CQC guidance. Therefore, not including a requirement in primary care contracts now does not provide a reason for primary care contractors to avoid telling their patients about things going wrong with their healthcare.

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[Earl Howe]

That is exactly why I referred to the need for a culture of openness rather than encouraging a situation in which we simply try to catch people out when they are not open. The amendment tabled by the noble Baroness looks to me like yet another way for people to get into trouble, rather than a way in which an organisation can take ownership of things that go wrong, encourage openness and look in-house to put things right. That is my fear about the amendment.

The noble Baroness, Lady Hollins, asked whether the consultation that we are undertaking covers whistleblowing. No, the consultation is focused on the duty of candour; whistleblowing is a separate, but linked, issue. Since coming to office, we have, as she may know, taken a number of important steps to promote it in NHS settings.

The noble Baroness, Lady Morgan, asked about the timing of the consultation response. She is right to say that the consultation finishes on 2 January. The government response will follow in due time after that. Unfortunately, I cannot be more specific. I shall be happy to write all noble Lords upon publication of the government response and I encourage noble Lords to take part in the consultation before it closes.

My noble friends Lord Mawhinney and Lady Williams referred to mediation. I take their point. They will know that mediation can mean a number of different things. As part of the proposed contractual requirement, we suggest that providers will have to offer an apology and an explanation and provide further information as appropriate, all in person with the patient, their representative, the relevant clinicians and other hospital or trust representatives as appropriate. That might well involve a mediator. I am all for mediation if legal fees and all the expense and heartache that goes with them can be avoided.

[Lord Campbell-Savours]

Following up on what the noble Lord, Lord Walton, said in his intervention about professional bodies, why can we not build into consumer law a requirement on private providers to provide a contractual obligation to their private customers?

[Earl Howe]

My Lords, unfortunately, I am not an expert in consumer law. My noble friend Lord Marks might be able to enlighten us on this, but there are, of course, consumer protection laws, which every organisation has to abide by, as provided for in the Consumer Protection Act. I think there are probably consumer protection aspects to contracts relating to healthcare services, but we have to tailor the contracts to ensure that we cover the issues that healthcare gives rise to.

The noble Lord, Lord Warner, asked me about the NHS Redress Act and whether the provisions of that Act were capable of taking forward some of the issues raised in the debate. I understand why he has asked that question, but there is a difference between redress for negligence and openness and it is important to distinguish between the two. As such, some of the issues raised this afternoon fall into the remit of redress and associated legislation rather than being specifically linked to a duty of candour. However, I note that, notwithstanding the long hours that we spent debating the NHS Redress Bill some years ago, the previous Government chose never to bring it into force; it is potentially on the statute book, but it is not in operation.

I shall reflect carefully on the points made in this debate. I hope that I have in some way reassured the noble Baroness, Lady Masham, that we are putting systems in place to introduce the duty of candour. To answer my noble friend Lord Mawhinney, we have a strategy. There are good reasons for the contractual route that we have chosen as well as a real potential downside if we were to go down the statutory route proposed here. So against that background, I hope that the noble Baroness will feel able to withdraw her amendment.