Health and Social Care Bill

Lord Faulks Excerpts

Monday 13th February 2012 Lords Chamber

I know that my noble friend the Minister has taken a close interest in this issue and listened very sympathetically to the many representations that he received. I will listen very carefully to his remarks. I ask him to respond to two points in particular. First, if the Government are not minded to accept the statutory route at this juncture, will he undertake to review how the contractual duty is working, say, two years after it has come into effect, and consider again the statutory route if it is not proving to be effective? Secondly, will he report back to the House on the outcome of the recently closed consultation on the proposed duty of candour—notwithstanding, as we heard earlier, that it did not canvass views on other approaches; on whether the respondents thought the current arrangements would be adequate; on whether any other approaches were advocated; and on whether the Government intend to respond to the consultation?

[Lord Faulks]

My Lords, I join the debate for the first time, conscious that I was not here in Committee. However, I read closely the debate that took place then and have also read the debates on the subject in the other place. My perspective on the issue comes from spending the past 25 years or so involved in clinical negligence cases, acting as a barrister for patients, doctors and other healthcare professionals, employed privately or by the NHS. Although the amendment is not specifically about litigation, the effect it may have on claims is important.

Much has changed in the way that healthcare professionals approach complaints and claims made against them. Where once it was difficult to obtain clear information about what had happened in some adverse event, often this is no longer the case. Similarly, where once medical professionals were inclined to close ranks, this is very far from the case now, where many current and former healthcare professionals provide opinions about the competence of their fellow professionals. In my experience, some of them are remarkably uninhibited in doing so.

Why have the changes come about? The establishment of the National Health Service Litigation Authority, which commenced its activities in November 1995, has been very much a force for good. Consistent with its aims, objectives and functions, the NHSLA has administered the schemes in a way that has done a great deal to increase public confidence that the truth can be obtained without too much difficulty. Where fault is found, the NHSLA is committed to providing proper apologies and explanations.

I pay tribute also to organisations such as AVMA, which was mentioned by the noble Baroness and which has championed the cause of the victims of medical errors and contributed to a much more effective system of litigation. It is appropriate to acknowledge also the major contribution of the civil procedure rules, which were the result of the investigation into civil procedure by the noble and learned Lord, Lord Woolf. The result is a much more open approach, with disclosure of rival opinions before trial and much greater control by the courts of this potentially vexed field of litigation.

I have a reservation concerning legal aid. The LSC, shortly to be replaced as a result of the LASPO Bill, has ensured that firms that conduct this type of litigation are franchised. I worry that with the potential disappearance of legal aid in this field we could return to a situation where those who conduct this complex litigation would not necessarily have the relevant experience. Be that as it may, matters have advanced very considerably and many experiences that were encountered by those in your Lordships’ House who in the past had to deal with constituents would not now happen on anything like the scale that they did in the past.

That is not to say that all is perfect. The duty of candour was, I think, first encapsulated in the Making Amends report in 2003 and has been championed by the former Chief Medical Officer, Sir Liam Donaldson; and, as other noble Lords have pointed out, the case of Robbie Powell has had a great deal to do with promoting the need for candour. I cannot imagine that anyone in your Lordships’ House is against candour or in favour of medical cover-ups. However, the question that the House has to consider is whether this amendment is really the right way of improving the culture when there are iatrogenic events.

There has been a considerable amount of research, mostly in the United States, about the effect of greater candour on patients’ willingness to sue, including an article in the New England Journal of Medicine in 2006 by two obscure politicians, Hillary Clinton and Barack Obama. I think it would be fair to say that the research on the issue is somewhat inconclusive. While some have clearly welcomed an earlier explanation of medical errors and have been dissuaded from litigation by a culture of openness, equally others have been encouraged to pursue cases that they might otherwise not have pursued because of the disclosure of errors by medical professionals.

The House is, of course, aware that when mistakes happen the NHS constitution requires staff to acknowledge them, apologise, explain what went wrong and put things right as quickly and effectively as possible. Professional codes of practice for doctors, nurses and NHS managers contain similar duties, and there are rights in the Data Protection Act that serve to empower patients, but the Government, as we know, intend to go further. It is a matter for consultation, but it is anticipated that there will be a contractual requirement on the part of all those engaged by commissioning bodies to have this duty of candour, which will involve openness about incidents involving at least moderate or severe harm or death, if not even minor incidents.

We must be careful not to underestimate the difficulty involved in trying to encapsulate the obligations that could be placed upon healthcare professionals. Thanks to the Compensation Act 2006, an apology is no longer to be construed as an admission of fault, but the House ought to consider, I suggest, just how difficult it may be for an individual, albeit via an organisation, to decide whether there has been an error such as to come within the scope of this amendment so as to bring about the various consequences envisaged by it. Where there has been an egregious error, such as the wrong patient being administered an injection or even the wrong limb being removed, that is one thing, but there are many cases in which there may be a suboptimal outcome and it is arguable that there was a departure from the appropriate standard of care.

I have spent a large part of my professional life listening to doctors of one sort or another giving their opinions, often contradicted by other opinions, about whether there has been fault. Even a so-called reasonable opinion, the expression used in the amendment, may not be accepted by another reasonable expert. What of the quite frequent cases where some acknowledged risk involved in a procedure has eventuated? Very often, this will just be the result of happenstance and involve no fault on anyone’s part. I am concerned about how this amendment would work in such circumstances.

I noted the observations made by the noble Lord, Lord Winston, and the noble Lord, Lord Walton, who is in his place, about this. I have often found that some doctors are almost too ready to admit mistakes when they have not made one, so anxious are they about the welfare of their patients. We should be careful that in encouraging candour we do not impose what I have to say is a not particularly coherent obligation in the form of this amendment. Surely the most important objective is to encourage candour so that it becomes embedded in the culture of the NHS. The intense difficulty in defining what that obligation should mean is far better teased out as a result of the consultation that is being undertaken rather than being imposed in the statutory form proposed.

I do not know whether those who propose this amendment intend to press it to a vote. Of course all noble Lords are in favour of candour and against cover-ups. Those who have supported this amendment have done a great deal to contribute to the continuing debate about the whole question of candour and should be congratulated on that, but I respectfully suggest that this amendment will not help patients or provide clarity for professionals and therefore will not provide any real benefit. I will oppose it.

[Baroness Oppenheim-Barnes]

My Lords, I am obliged to my noble friend Lord Faulks for provoking me into thanking him for having read the proceedings of our earlier debate on a similar amendment, in which I spoke at length about the total impossibility of someone with money and influence bringing a case against a doctor or a hospital in a situation that was completely black and white. I went into this detail only to convince those who—quite rightly—want this candour that it will not result in an “open sesame” for bringing cases in which a mistake has been made or completely bad treatment has been given.

I would also say that I wish anyone trying to deal with the General Medical Council the best of British luck, because it is not easy. It is a long process, and it involves a great deal of information being given. Even when the consultant involved has said, “I am very sorry, I have made a mistake, I have failed”, the GMC still does not find it necessary to criticise that surgeon in any way at all.

On the amendment, my noble friend the Minister was kind enough following the last debate to circulate to those who had participated a note from the NHS giving details of the steps that it takes after a mistake has been discovered: dealing with patients in counselling, apologising, all the important things that we would expect it to do. However, one thing was missing, and I hope that my noble friend will feel kind enough to grant it; it did not say that in such cases the NHS was required to circulate throughout the health service what accident had happened or what mistreatment had taken place, so that it could warn in advance that special care must be taken in the future.