Care Bill [HL]

Lord Campbell-Savours Excerpts

Wednesday 12th June 2013 Lords Chamber

[Baroness Masham of Ilton]

My Lords, I support Amendments 76B and 77. There has been so much said that there should be a change in the culture in the NHS after the scandal of Mid Staffordshire Hospital. Amendments 76B and 77, dealing with the duty of candour, might help to do this. For years, relatives of patients who have died or been badly damaged have not always been treated in an honest and open way; many times, the causes have been covered up and there has been much suffering by those who need to know the truth and have an apology. It is also terrible that when people who fear for patients’ safety speak out to warn of unsatisfactory and dangerous situations, they are silenced and gagged. Surely, we should do something about that. It is our duty to speak out now and make patients’ safety a reality.

One elderly Member of your Lordships’ House told me yesterday that she was frightened in case she might have to go to hospital. How many people throughout the country must feel like that? The culture of fear and neglect must be changed. I hope that the Government understand that.

[Lord Campbell-Savours]

My Lords, I have considerable reservations about the whole question of the duty of candour, as I was saying to colleagues earlier today. I want to put to a counterargument to the House.

Recommendation 177 of the Francis report says:

“Any public statement made by a healthcare organisation about its performance must be truthful and not misleading by omission”.

Therefore I presume that, under a duty of candour arrangement, there would be a requirement to admit negligence, if there was negligence.

After my last visit to the accident and emergency department at Wexham Park Hospital in Slough, I left the car park and saw a huge sign on a van at the side of the main road, which said, “If you believe you’ve been a subject of medical negligence, please ring the following number”. I worry that with the way in which this whole issue is being addressed, under the conditions of the duty of candour, which in principle I would like to support, those people who put up those signs may well make rather a lot of money out of it. They will find a basis on which to start bringing more and more actions against the National Health Service. I do not know the way round it, because if that is what is happening, and there are so many people out there who are prepared to bring legal action, if they believe that they have the remotest chance of winning such an action, the duty of candour will be used as a means to bring about those actions.

I cannot see how we can stop it. That being the case, I believe that we are going to find that, irrespective of this duty, people will, to put it bluntly, continue not necessarily to tell the truth when responding to complaints that are being made by members of the public over their healthcare. I am sorry to dissent slightly from my own Bench on this matter, but I have a concern here and I think that the Minister, in winding his up, should be far more open in this discussion about the possibility of litigation arising out of the introduction of the duty of candour. As I say, I would like to pursue it and I support it in principle, but I am worried that it may lead to more actions.

What would I do as an alternative? In the contribution that I made on Monday, I concentrated on what I thought were the problems from which complaints arise. These are, essentially, simple complications that arise on the ward through minor negligence or lack of concentration by healthcare assistants or nurses. I think that we have to go back a stage from this whole process of candour, litigation and complaint systems, to what is actually happening on the wards so as more effectively to police the way that treatment is carried out more.

At the end of last year, I and a colleague in the Commons conducted interviews with many people involved in healthcare about the problems on wards in hospitals. I drew the conclusion that we should have on every ward a very clear set of entitlements set out on large boards whereby patients and their relatives may understand their entitlements. Instead of being hesitant about going to complain within a ward about the way that they were being treated, they would be able to point to a document and say, “Look, Sir or Madam, this says that that is my entitlement”. If we can get across the fact that people have entitlements, and that they have a right to higher standards of healthcare on wards, there will be fewer complaints in those circumstances and so less incidents of complaints that, in the responses, must rely more on this duty of candour, if it were to be introduced.

I am concerned. I think that we are looking at this problem from the wrong end. We should go right back to the ward and deal with the problem there. They say that ward problems are about leadership on the ward. I am not altogether convinced of that. You cannot have someone on the ward running around telling everyone what to do all the time. You have to have a process of accountability for those who work on the ward to the patient and to the patient’s relative, being their representative. I will not go into my idea about these signs on wards in great detail tonight, but perhaps I will at another stage in the Bill.

I will however deal in detail with one area under Clause 81. An offence is defined as follows:

“A care provider of specified description commits an offence if … the information is false or misleading in a material respect”.

So that is an offence. The care provider is defined under subsection 3(b) as,

“a body (other than a public body)”—

in my view, that means a private body—

“which provides health services or adult social care in England pursuant to arrangements made with a public body”—

that might well be the commissioning body—

“exercising functions in connection with the provision of such services or care”.

I understand that to mean that you could have a private nursing home with an NHS contract to provide continuing care where the moment that they receive their first patient under continuing care arrangements—an NHS patient in a private nursing home—then that nursing home then falls under the provisions of subsection 3(b). Have I got that wrong? That means that the commission of an offence, if

“the information is false or misleading in a material respect”,

would apply to a nursing home where just one person is in receipt of care paid for by the National Health Service under a contractual arrangement, as against a nursing home next door where there are no NHS patients under a continuing care contract and all the patients are privately funded. There, that offence would not necessarily apply. That is how I understand what is said in that clause. I hope that the Minister will clarify the matter.

--- Later in debate ---

[Baroness Northover]

My noble friend says that they have protection under the NHS constitution. I hope that that clarifies it for the noble Lord but, given the time, I am happy, if necessary, to write to cover that further.

There were a number of questions, but I am well aware that time is pressing and that we are almost at the end of this part, so I will just come to one or two of them. In terms of the individual statutory liabilities in Patients First and Foremost, the Government stated that:

“before we introduce criminal sanctions at an individual level…we would want to ensure that this does not unintentionally create a culture of fear”.

The noble Baroness, Lady Finlay, spoke about that. We are, of course, waiting at the moment for the Berwick review, and no doubt we will be addressing this further in the light of it.

The noble Lord, Lord Hunt, asked about various points in relation to Francis. Francis himself made clear that many of his changes can be taken forward within the existing legislative framework and, as the noble Lord, Lord Campbell-Savours, indicated, they are, at heart, about changing behaviours in organisational cultures. The responsibility is therefore with each and every person serving patients to take action to make the changes needed.

However, we have these reviews coming forward, and we will obviously review what else we need to do. This has been an ongoing, long-standing problem, as noble Lords will be aware. I have listened to many debates in your Lordships’ House where these issues have been addressed, and people are endlessly frustrated in terms of trying to make sure that the quality and safety that you see in certain parts of the NHS is replicated in all parts of the NHS.

I am scurrying on through. If there are issues which I have not addressed, I am sure that—

[Lord Campbell-Savours]

I asked about the circumstances in which a private home took in a single National Health Service patient on a continuing care basis, paid for by the National Health Service. Does that home then come under the provisions of Clause 81? I am talking about one patient. Could that be an impediment to that home being prepared to take on NHS patients? I shall wait for the response to that.

--- Later in debate ---

[Lord Campbell-Savours]

But does the noble Baroness recognise that that might then determine the policy of nursing homes concerning whether they are prepared to take on the responsibility of carrying NHS patients? They will then be chargeable with an offence which otherwise—if they were not to take on those patients—they would not be subject to.

[Lord Hunt of Kings Heath]

Perhaps I may ask my noble friend whether that then comes to the point that the noble Baroness raised earlier about needing to extend this duty to GPs and social care providers. The reality is that if the duty were extended to social care providers, most of those homes would not be viable unless they accepted either local authority-funded clients or clients from the health service. Is not the answer to extend the duty to make sure that we cover GPs, community health and so on?

[Baroness Northover]

In terms of the division that the noble Lord pointed to, if a provider decides that it does not want to take on NHS patients because it will have to reach higher standards than for private patients—which appeared to be part of what he was saying—once that is publicised and becomes apparent, that will not exactly encourage people to use those providers.

[Lord Campbell-Savours]

No. My case is that they could be prosecuted in circumstances where they might otherwise not be prosecuted because they would not fall under the provisions of Clause 81(1)(c).

[Baroness Northover]

It might be better if my noble friend answered. However, I think that it would be best if we wrote to the noble Lord and explained the detail in this regard.

Perhaps I may conclude so that we can move on. I hope that it will reassure noble Lords that the draft regulations will be available for them to consider on Report, giving full details and specifying the type of information supplied or published by providers of NHS secondary care that will fall within the offence that I have just been talking about. Regulations will, again, be subject to full parliamentary scrutiny of both Houses using the affirmative procedure. I hope that that provides reassurance to noble Lords.

The Government place great importance on ensuring that the public, regulators and commissioners have an accurate picture of a provider’s performance and can have confidence in the information supplied or published by providers.

I trust that noble Lords will find some reassurance in regard to the actions that the Government are taking, particularly on the duty of candour, the complexity of that, the importance of putting it into secondary regulations and the involvement that they may wish to have as that is taken forward. Even if I need to clarify the specific points that the noble Lord, Lord Campbell-Savours—

[Lord Campbell-Savours]

I have one other point to make. When the reply comes, it might deal with whether that provision applies only to that individual patient who is subject to NHS support, as against the balance of residents in a nursing home.