Health and Social Care Bill

Lord Marks of Henley-on-Thames Excerpts

Monday 7th November 2011 Lords Chamber

[Baroness Morgan of Drefelin]

My Lords, I agree with the noble Lord, Lord Mawhinney, who has given the Minister some very positive and practical advice. When the Minister responds to this debate he will probably say something similar to what he said at Second Reading, where he was very clear that the Government agree that there should be a duty of candour. The question is about how best to deliver that. As I understand it, the Government have launched a consultation about how to deliver a duty of candour through the contractual means that noble Lords have already alluded to. There seems to be agreement around the House; the noble Lord, Lord Winston, suggests that he is unpopular, but he too accepts that there is an issue we need to address.

I believe that the consultation on the contractual route finishes on 2 January. I do not know how that fits in with our Committee timetable, but it would be helpful for the Committee to see how my noble friend’s amendment could be worked through in a more practical way. My noble friend Lady Masham has spoken very eloquently about issues of deep concern to patient organisations in this country, and we have to do better than a contractual route. Patients have a right to know when something goes wrong, and in this country’s NHS we need a system, a process, that allows health professionals to admit when something goes wrong in an environment that can learn from those mistakes. Where there are errors and where professional misconduct takes place then of course action must be taken, but it is important that there is openness so that the system can learn and these errors can be stopped from happening again. The noble Lord, Lord Harris, made the point about patients and others not always seeking legal redress but in many cases looking for an apology and an assurance that the mistake will not happen to anyone else.

I am sure that the Minister will be persuaded by this debate that we need a more practical and constructive way forward. I appreciate his comment in his response at Second Reading where he said that it would be inappropriate to pre-empt the consultation that finishes on 2 January and to amend the Bill before the Government have a chance to respond to the consultation. That may coincide very well with Report stage—I do not know what the timetable is like—but I hope that the two can dovetail and help my noble friend Lady Masham with her cause in this amendment.

[Lord Marks of Henley-on-Thames]

My Lords, I welcome the amendment introduced by the noble Baroness, Lady Masham, and others, and applaud the powerful and eloquent way in which she opened the debate and in which others have spoken.

I wish to make a brief contribution regarding the litigation consequences of a lack of transparency. Over a number of years, though not in the immediate past, I conducted clinical negligence cases, many of which concerned allegations of negligence against practitioners and organisations within the health service. I am not one of those who regard such litigation as frequently the result of an unwelcome development of a compensation culture within this country, approaching the situation in the United States. Without generalising, in most of the cases in which I have been involved— certainly those that came to trial—there has been a real basis for concern on the claimant’s part, whether or not the claimant has ultimately been successful.

With respect to the points made by the noble Lord, Lord Winston, I remember cases where the process of litigation itself demonstrated not only that that particular claimant had been poorly served but that there had been systemic failings within aspects of the health service that required changes to be made. When those changes were then made, they brought substantial benefit to subsequent patients.

A feature of much of the early litigation in which I was involved, though, was that it was frequently very difficult to obtain full records and a full account of the history from the point of view of the defendants within the NHS providers, and of course they alone were in possession of the relevant information. That is against the background that for many years there has been a procedure for obtaining the disclosure of relevant documents from potential defendants to these actions, even before the actions are commenced.

In recent years, procedures have been greatly improved by the impact of the clinical negligence protocol, introduced in 1999 as part of the Woolf reforms. However, the protocol is not binding, although it introduces a code of good practice and provides a partial answer to the points made by the noble Lord, Lord Mawhinney. The code requires a comprehensive system of what it calls adverse outcome reporting. It requires clear and comprehensible information to be given to patients, and for advice to be provided to patients on any serious adverse outcome and the options available to them. In such cases, access to records is to be given to patients within 40 days of a request. The protocol has done a great deal when it is fully observed. However, the fact that it is not always observed is clear from many of the speeches that we have heard this evening.

A further point is that the protocol applies only in cases where there is a serious adverse outcome for patients. Furthermore, it is only a code and does not impose statutory requirements. Even in serious cases, and where the code is followed, requests for documents and pursuit of the procedures generally involve lawyers, and this process can be lengthy, time-consuming and expensive. If not well handled, the process can tend to harden and entrench positions, making conflict and, therefore, contested proceedings more likely. Furthermore —this is another point I make to the noble Lord, Lord Mawhinney—the process is not effective in less serious cases but this amendment would apply in such cases, although there is a limit to it. It refers only to cases that,

“may have caused harm, or may in the future cause harm”.

The cost of negligence cases to the NHS is simply staggering. According to a Written Answer given in the other place on 8 June this year, the total in damages paid to successful claimants in 2010-11, including in periodical payments cases—which are treated in the figures as lump sums—exceeded £1 billion. The total of claimants’ costs paid out was around £214 million, and the total of defendants’ costs was £72 million. If improvements in transparency could be made to reduce these vast amounts, particularly the costs, they would be very welcome. As my noble friend Lord Mawhinney pointed out, all the money spent on costs is money that might have been made available for healthcare.

In a large number of cases, as the protocol recognises and as the noble Lord, Lord Harris of Haringey, and others have pointed out, what claimants and potential claimants want is to know at a very early stage what has happened to them—to have someone explain frankly exactly what has gone wrong and then, where appropriate, to have someone apologise for any errors. Anything that helps to bring about a more effective way of ensuring that that happens will avoid many cases that currently end in litigation. As a result, many patients will be far better served. Therefore, there is much to be said, across a range of cases, for establishing far better procedures than there are now to ensure that full explanations are provided in a timely fashion.

[Lord Lea of Crondall]

Would an apology affect the litigation?

[Lord Marks of Henley-on-Thames]

My Lords, often it would. If there is to be litigation, an apology tends to suggest an admission of liability. Generally speaking, people do not apologise when they do not think that anything has gone wrong. An important exception to that—one that I have come across—might be where there is an admission of liability and that something has gone wrong, but a dispute over the consequences or what damage might have been suffered. If there would have been adverse consequences to an operation in any event, the fact that it went wrong might not make a difference. However, in those cases the apology might well avoid the litigation because of the difference in attitude and spirit between the parties that results from the apology being made and the recognition that something has gone wrong.

I suggest that we should welcome this amendment. It elevates good practice, as shown by the code, to an enforceable statutory duty of candour, as the noble Baroness points out, backed up by sanctions. It may be that this precise wording is not what is required but I invite the Minister to consider the statutory duty of candour as an important help for future patients. I welcome this amendment as going some way to helping that to happen.