Health Service Safety Investigations Bill [HL]

Lord Judge Excerpts

2nd reading (Hansard): House of Lords
Tuesday 29th October 2019 Lords Chamber

[Lord Judge (CB)]

My Lords, I support the Bill for reasons that have already been given. Nevertheless, I will raise two concerns which I invite the Minister to consider during the long period that we will all have to consider everything.

My concerns arise from a very simple point, which is whether the legislation as drafted offers patients the level of protection to which they are entitled. After all, the new body is being invested with very wide powers indeed, as and when it decides to conduct an investigation. Investigators can enter premises—not people’s homes but hospitals, surgeries and so on—and from those premises conduct an inspection and take away documents. They can take away any document, relating to any patient, as the Bill stands. Having looked at such documents and obtained information from them, an investigator may require any person, including anyone who was a patient at the hospital or medical surgery that is the subject of the investigation, to answer questions or provide information or documents, with liability for non-compliance being a criminal offence.

Various exceptions are allowed to the obligation to answer. They include risk to the safety of any other patient, the privilege against self-incrimination—obviously —legal professional privilege and a rather complex contravention of data protected by legislation. But let us be realistic about this. HSSIB will be examining systems. It will have to examine them carefully: there is no point trying to examine a system in a superficial way. It will no doubt check for evidence in the documents which will certainly be—and, no less importantly, will certainly have been believed by the patients to have been—confidential. The documents may reveal, for example, that 27 patients in a surgery or hospital may have been failed by the system. So HSSIB may decide to question all 27 patients about what are essentially private matters.

As drafted, the Bill allows HSSIB to investigate and exercise all its powers over any such patient, whether the patient wishes to answer questions or not. I do not believe that any patient identified by the study of confidential documents relating to him or her should be obliged or forced to discuss his or her case or be at risk of criminal prosecution for choosing not to do so. Indeed, I do not think that any such patient identified through these processes should be obliged to take part in any investigation without his or her personal consent.

Without such consent, the Bill hands a remarkable set of powers to the investigating team. We must remember that there will be patients who do not wish to co-operate, who do not wish to discuss their condition or the circumstances in which they find themselves, having acquired a particular illness or disease, and who believed when they told their doctor or nurse about their condition that it was and would be private and confidential. Many of them will be deeply shocked by the idea that some stranger knew about it and, more importantly, was in a position to demand answers from him or her. I regard this as a totally unacceptable intrusion into what are essentially private matters, and I urge that consideration should be given to some patient consent provision. I regard such a provision as an imperative.

My second concern touches on the same issue. The Bill provides for the protection of the privacy of those whose medical history is, or has become, known in this way during the course of an investigation. Of course, that protection would extend to every individual, including the ones I am concerned about, who had given their consent. So an offence of disclosure is created. Quite right—but the problem is that this should be not merely a criminal offence, punishable with a fine; a more serious punishment should be available.

There may be a case where the criminal offence involves one disclosure about one patient that falls within the ambit of the offence. Obviously, for such a case, a fine might well be an appropriate penalty. However, there may also be cases where the disclose that is the subject of the now criminal investigation covered a number of patients—say, 15 of the 27 patients to whom I referred in my earlier example—and was perhaps offered in exchange for the payment of money. There could be rather more than a single moment of disclosure. In such a case, where somebody received, offered or accepted money and the disclosure affected more than one person, for the person paying the money or accepting it, I respectfully suggest that, in serious circumstances, this should be an offence triable on indictment with a penalty of, shall we say, two years’ imprisonment on conviction and six months’ imprisonment on summary conviction.

Beyond all this—looking at how this would look to the ordinary citizen whose medical history has been disclosed in the circumstances that we are considering—the availability of such a sentence would seem much more effective as a deterrent if there were the possibility of a prison sentence. I suggest that it would enhance the chances of wider patient co-operation by the very people whose consent is being sought—assuming that my submission to the House about the necessity for consent is accepted. It would thus enable the HSSIB better to fulfil its responsibilities, it would increase confidence in the way it was required to exercise those responsibilities, and what we have called the safe space would be that much safer.

So, in brief, nothing will be done in the next few days, but I respectfully suggest that the Bill is deficient in two respects, both of which should be remedied in the interests of patients.