Health and Social Care Bill

Lord Cormack Excerpts

Monday 13th February 2012 Lords Chamber

[The Countess of Mar]

My Lords, when my daughter was a little girl I brought her up to tell me immediately if she had done something that she should not do or if she had had an accident, and to say sorry, and she would be forgiven immediately. It has been my experience with the OP sufferers from sheep dip, Gulf War veterans and ME sufferers that, if a mistake has been made, all they want is an apology and an explanation and to be able to say, “Please do not do it again”. That has happened over and over again. I have a drawer full of letters from people saying that.

I suspect that it is not necessarily the doctors and nurses—the medical practitioners—who are covering things up when there is a cover-up. It might be what we euphemistically call the pen-pushers—the people behind the doctors and behind the organisation who are afraid that the organisation will come into disrepute. That is where much of the problem lies. Many doctors would like to be able to say, “I’m sorry—I made a mistake”, but they are held back, which is what the noble Lord, Lord Harris of Haringey, said. If we are going to change the culture, we must start with leadership. We have heard about leadership in nursing. A nurse leader or a doctors’ leader can say to the whole of his team, “If you make a mistake please come and tell me immediately and we will go and tell the patient”. That would wipe out a whole lot of anxiety.

The noble Lord, Lord Faulks, talked about litigation. People go to law because they are angry. They have not had an explanation and they are worried that something has gone wrong with a relative or themselves. That is when they go to law. That is what happened with the sheep-dip farmers, and it certainly happened with the Gulf War veterans when Mr Soames, the MP with responsibility for the Gulf War veterans at the time, said, “See you in court”. They rise to that. If people have an explanation, they will accept it. Everybody makes mistakes, and they will understand it. So I support the noble Baroness, Lady Masham, in her cause.

[Lord Cormack]

I was not intending to take part in this debate, but it has been a thoroughly fascinating one. The noble Countess, Lady Mar, talks about people wanting an explanation, and of course she is absolutely right. People go to law when they are angry, she says—and that is also right—but they also go to law when they can afford it. One of the problems is that so many people cannot afford to contemplate it, yet as we have grown into this no-win no-fee culture more and more people have thought of the law and more and more doctors and nurses have become terrified of finishing up in a court of law. This is why I, as a former constituency Member for many years, who saw many of these cases, am persuaded by what my noble friend Lord Newton said. While we wish to see the Minister respond sympathetically to the amendment so movingly proposed by the noble Baroness, Lady Masham, I hope that he will give the undertaking for secondary legislation and guidelines that would meet our concerns this afternoon.

I have great confidence in my noble friend. I have an anecdote in which he is involved. For many years, I had a constituent who came to me with a series of stories, some of which were very plausible, others of which were less so. I referred this lady to my noble friend, who was the health spokesman for my party—we were in opposition at the time. I was tremendously impressed by the thoroughness with which he looked into these cases with me. Indeed, we came to the conclusion that there had been instances of neglect and even of malpractice. The way in which he looked into it and the thoroughness and compassion that he displayed makes me confident that when he replies this afternoon he will be able to give us an assurance that, whether or not this amendment goes into the Bill—and frankly I think that it probably should not—he will not forget what has been said in this Chamber. Rather, I hope that he will try to ensure that, although one cannot compel candour whatever one does, one has a right to expect it. Every patient in the National Health Service has the right to expect that those who care for him or her will do so with dedication, following a vocation, and that if mistakes are made, as from time to time inevitably in any human situation they are made, there will be a full and honest owning up to those mistakes. That, as the noble Countess indicated, is what people hope for and expect—and, if they receive it, we might gradually see the end of the litigation that has so distorted much of our public life in recent years.

[Baroness Wheeler]

My Lords, on behalf of these Benches, I would like to support Amendment 17 in the name of the noble Baroness, Lady Masham, to which I have added my name. As we did in Committee, we have again had an excellent debate, which I believe has gone a long way towards addressing the concerns expressed by some noble Lords during Committee and during this debate about making the duty of candour statutory, as well as demonstrating why the Government’s approach of relying solely on a contractual duty will not work or lead to the sea change in culture in the NHS that is needed to ensure openness and honesty when things go wrong in the care and treatment of patients.

The case for the introduction of a statutory duty has been forcefully made by the proposers and supporters of the amendment, and I shall not go over the issues again in detail. The amendment from Committee has now been substantially redrafted to ensure that there is no duplication or clash with the professional regulation and that the duty of candour applies only to actual patient-safety incidents, as already defined in statute. Thus we would no longer face the problem of how to define whether or not an incident is serious or harmful or whether it could lead to potential harm in future, a consequence feared by some noble Lords and by the Minister in his response to the Committee debate. Instead, our amendment would amend the current Care Quality Commission (Registration) Regulations by drawing on the actual text used in those regulations, requiring patient safety incidents which cause harm to patients to be notified to the CQC. The effect would be to place a statutory duty on any organisation registering with the CQC to,

“take all reasonable steps to ensure”,

openness with patients when things go wrong and cause harm. The definitions of harm and the organisations to which the duty would apply are exactly the same as those currently used to require notification of incidents to the CQC.

The Government's main arguments against statutory duty of candour are threefold: first, that implementing the contractual duty would suffice, and bring the responsibility for requiring openness closer to patients and with clinician-led commissioners; secondly, that the current consultation exercise on the contractual duty has only just closed and the Government need to analyse the responses—not much of an argument when the Government ruled out introducing the statutory duty in that consultation; and, thirdly, that existing provisions including the professional codes of practice, National Patient Safety Agency policy guidance and the requirements of the NHS constitution, with the new contractual duty, will address the problem.

However, as noble Lords have said, existing provisions exhorting NHS organisations to openness and health professions to openness and disclosure are not changing the culture of denial, obfuscation and blame that is so deeply embedded in many parts of the NHS when things go wrong. The instances of serious failure in care and treatment that have led to the campaign by patients’ organisations are, as we have heard, deeply shocking and tragic. Expecting CCGs to have the strength and will to take on powerful providers that have failed to be open and to enforce remedial measures without the support of a statutory authority will not achieve the changes we need.

On the role of the CQC, noble Lords have more than answered the Government's reservations. It is an appropriate role for the regulator and the new duty of candour would not require detailed monitoring of individual incidents or communications with patients, but could be reinforced by the CQC by using its guidance already in existence and setting it alongside all the other essential standards of quality and safety which have statutory force. I hope the Minister will reconsider his position and accept in principle that the duty of candour should be statutory, and incorporated into the Bill.

We of course recognise that there would need to be considerable work and consultation undertaken with all stakeholders to introduce and implement the statutory duty of candour. The work around implementing the contractual duty could be put to good use in this effect, as it would complement the statutory duty. Moreover, putting the principle into the Bill and working out later how it is to be implemented has been a central feature of most of the Bill's provisions, so it can be applied in this case. Tuesday’s letter in the Daily Telegraph from all the leading patient organisations emphasised that the introduction of a statutory duty of candour,

“would be a historic step forward for patients’ safety and rights”.

On these Benches we endorse this, and I hope that the Minister will now reconsider his position and accept this amendment.