NHS: Dangerous Waste and Body Parts Disposal

Lord O'Shaughnessy Excerpts

Wednesday 10th October 2018 Lords Chamber

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord O'Shaughnessy) (Con)]

My Lords, with the permission of the House I will repeat a response to an Urgent Question on clinical waste, made yesterday by my honourable friend the Minister of State for Health. The Statement is as follows:

“I would like to update the House on clinical waste disposal. As I set out in the WMS this morning, the Environment Agency notified central government on 31 July of an issue concerning clinical waste disposal. The primary concern was that too much waste was being held in a number of waste storage and treatment sites by a contractor, Healthcare Environment Services, HES. This included waste collected from hospitals and other public services. While this waste was stored securely, it was not being disposed of within the correct regulatory timescales.

The Department of Health and Social Care, the NHS, Defra, the Environment Agency and the Cabinet Office have worked together to resolve these issues. Our priority throughout has been to ensure that proper measures were put in place to enable trusts to continue operating as normal. A major part of these contingency plans concerned contractual discussions with HES and other providers, which were commercially sensitive.

Following the Environment Agency’s issuing of a partial suspension to HES’s Normanton site, NHS Improvement wrote to HES to raise its concerns. NHSI gave HES an opportunity to set out how it was complying with its legal and contractual obligations; HES failed to provide that assurance. As a result, 15 NHS trusts served contract termination notices on Sunday 7 October. In preparation for this step, we negotiated a new contract with Mitie. As contracts with HES were terminated over the weekend, Mitie stepped in, and from Monday morning provided continuing waste collection and incineration across all these organisations. The Environment Agency is continuing its enforcement action against HES. This includes ensuring that excess waste is cleared from non-compliant sites. The Government are working with the Environment Agency and the NHS to ensure that lessons are learned, and we are reviewing how contracts will be awarded in future.

I have updated the House on this situation today, as new contracts have been signed following the conclusion of this commercially sensitive process. Throughout, our priority has been to ensure that measures are put in place so that the NHS can continue operating as normal. No gap in service provision has been reported, and we are working to ensure that this remains the case”.

[Baroness Thornton (Lab)]

I thank the Minister for that Answer, but at the heart of this rather horrible matter is the issue of contracting out our important NHS services, and a lack of accountability. Does the Minister agree that contracting out and subcontracting any NHS function does not absolve the commissioner of responsibility and the need to monitor and seek assurance that the contract is being delivered according to the contract, which presumably in this case involved proper and legal disposal. So where was the monitoring and the assurance to the commissioner that allowed that to happen? It seems to have failed comprehensively. Does that not suggest that this service, which is so crucial, should be delivered in-house? What we see here is a massive market failure, and indeed a massive regulatory failure.

Secondly, my right honourable friend Yvette Cooper asked in the Commons whether the Minister accepted that,

“it is a basic principle that, when dealing with any kind of public health or environmental health risk or incident, proper, full, factual information is provided to the public and the community”,—[Official Report, Commons, 9/10/18; col. 37.]

and at the earliest opportunity to Parliament. You do not hide behind a contractual negotiation, so will the Minister tell me where the line lies between the need to inform Parliament of a public health incident and the need to protect commercial confidentiality?

[Lord O'Shaughnessy]

I can say to the noble Baroness that the NHS contracts out very large numbers of services of all kinds, and indeed has contracted out this kind of service for around 30 years. What we have here is not a market failure but a company that has broken the law, and which is therefore being pursued by the regulatory system that we have in place. That is about making sure that the Environment Agency, in this case—because it is about environmental health—is monitoring, issuing notices and raising issues as they come up, which is precisely what it has done here. But I agree with the noble Baroness that certainly there are lessons to be learned about monitoring, and we are absolutely looking at that as a consequence of this incident.

However, it is very important to state two points. No risk to public health has been established, because of the secure circumstances under which the waste—albeit way too much of it—was being kept, and there was no interruption to the provision of services, so there was no risk to patients or to hospital operations. On providing information at the earliest opportunity, we have done exactly that. As I said, no public health risk has been established, and we came to Parliament on the first day it came back, once the termination notice had been in place with a part suspension.

[Baroness Jolly (LD)]

My Lords, it is clear that this situation has gone on for some considerable time unnoticed, and it also appears that the incinerator network is not able to cope with the volume of waste generated. Will the Minister confirm that the incinerators are single use? When was the contract with HES last reviewed, and how frequent were inspections of sites? What is the timetable for being able to resume a sustainable service across all of England, and might this include new incinerators?

--- Later in debate ---

[Lord O'Shaughnessy]

The noble Baroness makes an important point about incinerator capacity; indeed, that was given as a reason by the company. However, we do not feel that that is a true reflection of incinerator capacity. There are 24 incinerators in the country and 30,000 tonnes of spare capacity which could be used, and we are talking about 900 tonnes of excess stockpiling that HES had taken care of—so we simply do not accept that there was not enough capacity. What there was not was a willingness on the part of HES to pay for that capacity, which is why we are in this situation.

On the frequency of inspections, the Environment Agency has issued a series of notices, and that has escalated over the summer to the situation that we are in now. That is the proper regulatory response. I reiterate the point that there is no established threat to public health or continuity of service, which hopefully answers her last question. From an NHS point of view, neither clinicians nor patients will have noticed any impact on the level of care as a consequence of what I absolutely agree with her is completely unacceptable behaviour by this company.

[Baroness McIntosh of Pickering (Con)]

The Minister mentioned 30,000 tonnes of spare incinerator capacity. Is that for general waste or exclusively for medical waste? Will the Minister encourage the Department for Environment, Food and Rural Affairs to engage with the public on the importance of incineration as a means of disposing effectively of both household and medical waste? We are currently exporting a massive amount of household waste from the city of York and north Yorkshire to Holland, where it is put back in the community as energy from waste. I would like to see more of that occur in this country.

[Lord O'Shaughnessy]

I thank my noble friend for her question. I will certainly take up the issue of waste disposal in general with my colleagues in Defra who, as she knows, are responsible for it. On the specific question of incineration capacity, Defra calculated that in 2017 there was a total of more than 30,000 tonnes of spare capacity for clinical and hazardous waste incineration. That was across a year, but we know that the NHS has identified more than 2,000 tonnes of incineration capacity this month. So the capacity is there; the point is that it should be used to get rid of the stockpile. As I said, the contracts are now in place to ensure a continued flow of service to NHS trusts.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I do not understand the timescales in this. According to the Statement, the Environment Agency notified the Government on 31 July. Why did it take until October for NHS Improvement to write to the company expressing its concerns? As for reporting to Parliament, we met for two weeks in September. Why did Ministers not come to the House during that period? The Minister seems to be saying that commercial secrecy trumps public accountability.

[Lord O'Shaughnessy]

I am absolutely not saying that. To go through the timescale, the noble Lord is quite right that 31 July was the escalation from the Environment Agency to Defra, which then contacted the Department of Health and Social Care. Ministers were informed on 8 August, by which point a huge amount of effort had gone in not only to analyse the problem but to put in place contingency plans. A final enforcement notice for the Normanton site was issued by the Environment Agency with a need to comply by 25 September, which fell after the two-week Sitting that we had in September. In the meantime, plans were put in place—the Secretary of State chaired a cross-government meeting—and on 3 October the partial suspension was put in place. That is what triggered the termination of contracts by NHS trusts and their replacement by a new contract with Mitie.

[Lord Christopher (Lab)]

My Lords, I find this an extraordinary situation. Is there nothing in this contract—or, indeed, any government contract, through whatever agency—to impose an obligation on the contractor to advise whoever he should advise that he is not able to complete the work he is contracted to do?

[Lord O'Shaughnessy]

The noble Lord is quite right. There are, of course, contractual obligations; the point is that those obligations have not been fulfilled. That is one reason why the Environment Agency is now pursuing a criminal investigation against the firm.

[Baroness Tonge (Non-Afl)]

Will the Minister give us some information? Much clinical waste is highly infectious and therefore very dangerous; it needs to be incinerated very quickly. Will he tell us exactly how it is stored and where it is stored, and will he assure us that there is absolutely no danger of very infectious agents escaping into the surroundings?

[Lord O'Shaughnessy]

The noble Baroness is quite right to highlight this issue. As I said when repeating the Statement, the items that we are talking about are stored securely and I am assured that there is no risk to public health from the stockpiling. Clearly there is a requirement to dispose of them; this is a contractual obligation of the company, which it has not fulfilled. That is why we have entered into this situation.

[Lord Harris of Haringey (Lab)]

My Lords, what lessons has the Department of Health learned from this incident?

[Lord O'Shaughnessy]

That is an incredibly fair question; I think that the point about monitoring has been raised. We need better visibility of the performance of contractors to fulfil their contractual obligations.