Health and Care Bill

Lord Etherton Excerpts

Committee stage
Wednesday 9th February 2022 Lords Chamber

[Baroness Neuberger (CB)]

Of course I accept that, but I do not think it is right. Once the safe space exists and is part of the system, and the ombudsman has those rights—or traditionally has had those rights—we have to allow the ombudsman, who does not reveal the material and does not name names, access. We are obviously going to disagree on that.

I am no legal expect, and my noble and learned friend Lord Etherton will deal with the legal and constitutional principles. However, I ask the Minister to look again at this and to consider removing the coroners from the safe space, an approach that makes no sense at all, but allowing the ombudsman—the PHSO—to have access on condition that there is no disclosure to a third party, thus retaining the important role that the ombudsman holds in our constitutional arrangements.

[Lord Etherton (CB)]

My Lords, I have added my name to Amendment 311 in the name of the noble Baroness, Lady Neuberger. The heart of the complaint which has prompted the amendment is that the Bill fails to provide a proper balance between the role of the HSSIB and the role and standing of the PHSO, and it fails to recognise and provide for the PHSO to be treated as part of the HSSIB’s safe space under the Bill.

The Bill’s prohibition on disclosure by the HSSIB to the PHSO of material obtained by the HSSIB in connection with its investigation of incidents that may have implications for patient safety impedes the statutory functions of the PHSO, diminishes the standing of the PHSO, is contrary to the independent, non-judicial constitutional role of the PHSO, and is contrary to the UK’s obligations as a member of the Council of Europe and the United Nations regarding ombudsmen.

The PHSO in his role—and it is a “he” at the moment —as the Parliamentary Commissioner for Administration acts pursuant to the statutory framework in the Parliamentary Commissioner Act 1967; and, as the Health Service Ombudsman, he acts pursuant to the Health Service Commissioners Act 1993. Under those statutes, his role is to investigate complaints by members of the public who claim to have suffered maladministration or to have sustained injustice or hardship in the delivery of a health service.

The legislation which I have just mentioned effectively gives the PHSO unrestricted access to evidence and other information in order to carry out his investigations fully and effectively. As the noble Baroness, Lady Neuberger, has said and as is obvious, there will often be an overlap between the work of the PHSO and that of the HSSIB both in respect of particular incidents and in relation to general inadequacies in practice and procedure—reference has been made to eating disorders and learning disabilities. There are very limited exceptions under the Bill for disclosure by the HSSIB of protected material to third parties. These do not include routine disclosure of evidence and information which is relevant to investigations by the PHSO, who will be able to obtain such material only if he obtains an order from the High Court. This is so even if both the PHSO and HSSIB are investigating the same incident and even if the PHSO in his capacity as parliamentary commissioner is investigating a complaint by a person of maladministration on the part of the HSSIB itself. This simply does not make any sense.

Notwithstanding the observations made by the noble Baroness, Lady Young of Old Scone, it seems that the restriction on disclosure is based on a misunderstanding about the confidentiality of material held by the PHSO and about the safe space in which he currently operates. The legislation governing the PHSO provides that he must conduct his investigations “in private”. Subject to limited exceptions, the PHSO is not permitted to disclose to third parties information obtained in the course of an investigation. Disclosure cannot be made by the PHSO in any circumstances where that would be contrary to the public interest. Information obtained by the PHSO is also subject to absolute exemption from disclosure under the Freedom of Information Act 2000. No persons are identified in the PHSO’s reports, and names are anonymised. Mirroring the safe space provisions in the Bill for HSSIB investigations, reports of the PHSO do not apportion blame to individuals, and do not assess or determine civil or criminal liability or whether disciplinary action needs to be taken.

Furthermore and critically, the terms of the proposed amendment would impose a complete legal block, prohibiting the disclosure to a third party of any protected material disclosed to the PHSO by the HSSIB except by order of the High Court, and then only for certain very limited purposes. The effect of the existing statutory provisions and the conditions in the amendment prohibiting disclosure to third parties mean that the PHSO and the HSSIB fall legally and naturally within the same safe space.

As presently worded, this will be the first occasion on which the PHSO’s access to information will have been curtailed. At the same time, in extending the right of disclosure of the HSSIB’s protected material to coroners, the Bill discloses an incomprehensible inconsistency, since not only are inquests increasingly adversarial, as has been noted by a number of speakers, but such disclosure is not allowed by the PHSO under the PHSO’s governing legislation. As the noble Baroness, Lady Neuberger, has said, ombudsmen are internationally regarded as having a constitutional role in addressing the imbalance of power between the individual and the providers of public services, and in their autonomy and independence from the executive and judicial branches of government. That constitutional role is enshrined in the Venice principles adopted in 2019 by the Council of Europe and by the UN’s General Assembly in 2020. A written opinion of the Venice Commission, published in October 2021, concluded that the exclusion of the PHSO from the safe space created by the Bill, and denying the PHSO to full access to the HSSIB’s protected material, would be contrary to the Venice principles. It would therefore place the United Kingdom in breach of its international obligations. The amendment is, for all those reasons, both necessary and desirable.

[Lord Patel (CB)]

My Lords, I will try to be brief, and to cover the points about the exercise of a patient safety investigation and learning from it, which is the important part. My name is on amendments tabled by the noble Lord, Lord Hunt of Kings Heath, and the noble Baroness, Lady Young of Old Scone. I listened carefully to my noble friend Lady Neuberger and my noble and learned friend Lord Etherton. I could not argue with him on constitutional matters; I would not even try to. But I can say this: after nearly five years of experience as chairman of the National Patient Safety Agency, which carried out such investigations—it was an arm’s-length body rather than a statutory one—the purpose of the exercise is to use an index case, where an event may have led to harm to a patient, to learn if there was a systems failure. If an event happened in one hospital, the chances were that it was also happening in other hospitals. The aim was to do an in-depth, root-cause analysis to get the necessary evidence in detail, and to find out where the systems failure might be occurring. I can give you several examples of what happens and how it can be corrected.

I agree with the noble Baroness, Lady Young of Old Scone and the noble Lord, Lord Hunt of Kings Heath, and with my noble friends that the coroners should not be able to invade the safe space and access the protected material. If I was asked to choose between the coroner and the PHSO, I would choose the PHSO, because of the less adversarial way of dealing with matters.

There are two problems in the legislation. One is compulsion: as a doctor, I will be compelled to give the evidence and the information required by the HSSIB to investigate a case and to find out where the systems failure might be. That compulsion comes with a protection—that the information I give will be completely protected from being used by anybody else against me or in any other legal procedures that may arise. That will give the health professionals or anybody else the confidence required that there is openness, honesty and transparency, because the purpose is to have as much information as necessary to find the systems failure that may occur.

If you look at the list of the 22 investigations carried out by the HSIB so far, you will find that they tend to be generic. I could read out the list, but I will not. They are not about individual investigations. I take the point that the PHSO’s role is to protect against harm done to an individual but also to deal with the system failures that may occur—I get that. My plea would be that to make the HSSIB a success, the principle of protecting the information given in confidence is a key part of the whole process. If that confidence is destroyed in any way at all, the whole exercise will not work.

Health and Care Bill

Lord Etherton Excerpts

Lords Hansard - Part 1 & Report stage
Monday 7th March 2022 Lords Chamber

Moved by

[Lord Etherton]

122A: Clause 98, leave out Clause 98
Member’s explanatory statement
This amendment, and other amendments in the name of Lord Etherton to Part 4, will remove the provisions concerning the Health Services Safety Investigations Body.

[Lord Etherton (CB)]

The amendments in this group that are in my name would remove Part 4 in Schedules 13 to 15 of the Bill, all relating to HSSIB. I am very grateful to the Minister and the Bill team for their engagement with me and other Members of the House on these amendments. An alternative, narrower amendment—Amendment 124 in the name of the noble Lord, Lord Hunt of Kings Heath—would simply remove the permission of HSSIB to disclose protected material to coroners.

The basis for these amendments can be stated in four words: it will not work. The safe space within which HSSIB is intended to operate cannot work because, under the provisions of the Bill, HSSIB responds to specific incidents which have, or may have, implications for the safety of patients. Those same incidents may be the subject of an inquest, and senior coroners are entitled under Schedule 14 to require the disclosure by HSSIB of protected material if it is relevant to the investigation being undertaken by the coroner. Once the coroner has that material, he or she is in practice bound to disclose it at the inquest, and the High Court will inevitably order such disclosure if it is relevant to one or more of the questions that the inquest is required by statute to resolve—in particular, in the present context, if it is relevant to deciding how the deceased died. That is because, in the words of a leading Court of Appeal case, the duty of the coroner is

“to ensure that the relevant facts are fully, fairly and fearlessly investigated”

and

“are exposed to public scrutiny”.

Article 2 of the European Convention on Human rights does not add materially to the intensity of that investigatory duty of coroners which already exists under our domestic law. The materiality of Article 2 is only that it imposes the obligation not merely to decide by what means the deceased came to his or her death but in what circumstances.

I am very sceptical that coroners need protected material from HSSIB since they have managed perfectly well without any such right of access to similar material held by the PHSO since the PHSO was established under its founding statutes of 1967 and 1993. Be that as it may, my focus today is on what the senior coroner must do when in receipt of protected material from HSSIB. In short, the material must be disclosed by the coroner.

Although an inquest is in legal terms an inquisitorial process, the ascertainment of the relevant facts is often, as many members of the House will know, highly contentious. Those who have been designated interested persons by the coroner, who include a wide range of family members, may cross-examine witnesses either in person or by representatives. It is inconceivable that a coroner could keep secret from interested persons protected material obtained by the coroner from HSSIB which is relevant to the matters that have to be decided by the inquest. This may have very serious implications for those who have given evidence to HSSIB which is deployed in the inquest, including the possibility of a conclusion of unlawful killing by gross negligence manslaughter.

No medical practitioner could possibly feel confident that, in giving evidence to HSSIB, it is being given in a safe space in view of the need for public disclosure of such evidence by coroners if it comes into their hands and is relevant to the inquest. I beg to move.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I have put my name to the amendments tabled by the noble and learned Lord and have tabled amendments of my own. As the noble and learned Lord said, his amendments simply take out the HSSIB provisions from the Bill, whereas mine take out the reference to senior coroners.

I think we are all united in supporting the concept of HSSIB improving safety in the health service. A stand-alone Bill in 2019 had a Second Reading in which we were beginning to get to grips with some of the issues around the construct of HSSIB and, particularly, the safe spaces concept. This is very important in the health service because of the traditional reluctance of staff to come forward with information about where things have gone wrong because experience has shown that whistleblowers have often been treated very poorly indeed.

I fully support the concept of HSSIB and safe spaces and believe that if it is implemented properly it will lead to improved safety. However, as the noble and learned Lord has so eloquently pointed out, the problem is that the inclusion in the Bill of the coroner’s ability to access this information would render the whole safe space concept unworkable. Staff will simply not trust it if these provisions are left in the Bill.

We are faced with two options. One is to take out the whole of the HSSIB provisions. Ideally, I would support that because it would benefit from a stand-alone Bill, where we could give it the scrutiny it clearly deserves. On the other hand, our job here is to be constructive as a revising Chamber. On that basis, we would be much safer removing the coroner elements and giving the Government a little more time to discuss this further before the Bill goes on to Third Reading and back to the other place.

I think there are ways through. I have been attracted, for instance, to one solution put forward by the noble Baroness, Lady Brinton, in relation to a memorandum of understanding between the noble Earl’s department and the MoJ. We need to discuss that; in order to do so now, I believe we should remove the coroner provisions from the Bill.

--- Later in debate ---

[Earl Howe (Con)]

My Lords, I am afraid I do not know the answer to that. I can, of course, find out and let the noble Baroness know, if those details are available.

I know there have been concerns that inquests can seem to be adversarial, and that protected material passed on to the coroner could be used in them. Inquests are, by definition, designed to be inquisitorial; statute prohibits inquests from determining criminal and civil liability, and interested persons are prevented by the inquest rules from making submissions on the facts. Coroners seek to obtain the objective truth—how and not why someone has died. I submit that not allowing coroners to see relevant safe space material could prevent justice being done and seriously undermine public confidence in the coronial system.

I turn to the important issue of funding, raised by Amendment 123, although I do not know that noble Lords have spoken to that. The noble Lord is shaking his head so, to save time, I will not cover that point.

Finally, let me just say that an independent HSSIB is an excellent concept that has wide support. In my submission, it would be a terrible pity if noble Lords rejected it because of doubts about how well it would work. I believe that it will give patient safety a valuable boost and hope that the House will support it.

[Lord Etherton (CB)]

I am extremely grateful to the Members of the House who have spoken, and to the Minister for his reply.

The Minister appears to accept that, if it is necessary to ask HSSIB for its material to reach a proper verdict or conclusion on the cause of death at an inquest, the material ought to be supplied and be made known to the families so that they have the benefit of what I described as the legal test: a full, fair and fearless investigation of the facts, in public. That is the problem.

Although the Minister referred to the extensive past consideration of safe spaces, I have not yet heard from any Minister, not even in the long letter we were helpfully sent on 3 March by the noble Lord, Lord Kamall, an explanation of how the safe space would operate in a coronial setting—in practice, that is, not in theory. As I said, I have not heard any explanation of how the information obtained by the coroner, which can be obtained only if it is relevant to the inquest, can be kept secret from the participants in the inquest. It cannot be; it is simply not possible. That is the fundamental problem with this particular provision relating to disclosure to coroners.

Having said all that, I heard what the noble Lord, Lord Hunt, had to say. In view of what he and others said, I beg leave to withdraw my amendment.

Amendment 122A withdrawn.

--- Later in debate ---

Tabled by

[Lord Etherton]

125A: Clause 114, leave out Clause 114

[Lord Etherton (CB)]

I am so sorry, Deputy Speaker, but I asked for my amendment to be dealt with by way of just removing the whole of Part 4, but I was told by the Public Bill Office that every single clause had to be mentioned. The Public Bill Office was unable to explain why that was, other than that was how it had always been.

[The Deputy Speaker (Baroness Fookes) (Con)]

If it is down on the Marshalled List, it has to be dealt with. May I assume that the noble Lord is seeking not to move Amendments 125A to 125M?

[Lord Etherton (CB)]

Yes.

Amendment 125A not moved.