Health and Social Care Bill

Lord Faulks Excerpts

Monday 27th February 2012 Lords Chamber

[Baroness Finlay of Llandaff]

My Lords, I support this amendment and urge the Government to accept it as it is written. I hope that the Government can see that this is very helpful; it fits with the points made by the Minister in his summing up in response to the previous amendment tabled by my noble friend Lady Masham about there being agreement on the importance of openness and candour in healthcare. The Minister went on to say that,

“the NHS could only call itself a world-class health service if it embraced openness wholeheartedly”.—[Official Report, 13/2/12; col. 590.]

He added that there was agreement that something needed to change.

The beauty of the way in which the amendment is worded is that it distinguishes between major and minor occurrences. It emphasises the true duty of candour to disclose events that have affected a patient either medically or physically and that may have long-term effects. It does not focus in any way on anything trivial and requires the contractual duty of candour to be put into the contracts, which was exactly the content of the Minister’s summing-up speech last time.

[Lord Faulks]

My Lords, I remember well the degree of consensus in your Lordships' House when we debated the statutory duty of candour—namely, that everything should be done to embed in the NHS the culture of openness and to be against any form of cover-ups. However, as I said on that occasion, the world has moved on a little since the days of Lord Cohen—with great respect to the noble Lord, Lord Walton. A number of initiatives have resulted in greater openness by clinicians and a sense of responsibility, which one can find right across the health service. All is not perfect, of course. The duty of candour has been much discussed in academic circles, and the noble Baroness referred to the experience in America where some states—not many—have a duty of candour. But there are very serious arguments that run to the effect that imposing a duty of candour can have adverse effects in that many are thereby encouraged to sue in circumstances where they might not otherwise have sued.

The form of this amendment is certainly good in the sense that it focuses on the serious rather than the trivial. None the less, it does contain the word “incidents”, which is extremely difficult to define. In what circumstances does a clinician, or those employing a clinician, have to go through the processes that the amendment involves? From what the noble Earl said on the last occasion, the Government clearly take the matter of candour extremely seriously. There is a consultation about it and, in due course, there will be reflections of that duty in the contract. Although I am entirely sympathetic to what lies behind this amendment, I am a little concerned that imposing terms, with the inevitable imprecision that this form of amendment carries with it, is not at the moment the answer.

[Baroness Tyler of Enfield]

My Lords, I, too, spoke briefly in the debate last time about the statutory duty of candour. At the end of that debate the Minister gave a number of important reassurances. One was to review the contractual duty in a specified period to see how effectively it was working. The second was to do with further work to explore how this whole issue could be taken forward in the area of primary care—an area which I, and certainly colleagues on these Benches, still feel is extremely important. I would be grateful if the noble Lord, in summing up, could say anything further about how a contractual duty of candour would apply to those in primary care. Also, could he give any further reassurances at this stage about the reasons why he feels that a contractual duty of candour in the way which is set out in this particular amendment would be effective?

[Lord Campbell of Alloway]

I very briefly take the point made about an apology for the mistake. I do this because when I was an advocate I appeared before the BMA for quite a lot of medical professionals. If your client says, “I am terribly sorry for my mistake”, it puts one in a very difficult position; the advocate must show that the mistake had nothing to do with the result. I will not take up time, but say merely, as an erstwhile advocate, watch it.

[Lord Faulks]

Before the noble Lord sits down, could he confirm that, since the Compensation Act 2006, an apology is no longer deemed to be an admission of liability?

[Baroness Hollins]

My Lords, I support the amendment, particularly because it draws attention to the point that often patients experience prolonged psychological harm after an incident, something that is not well understood across the whole of the medical field. Such psychological harm is often overlooked. However, there is plenty of evidence that an honest and prompt apology can do so much to help the person and their family going forward. It is fair to say that delaying a response is very much like denying a response. The timeliness of a response is critical.