Health Service Safety Investigations Bill [HL]

Lord O'Shaughnessy Excerpts

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

[Lord O’Shaughnessy (Con)]

My Lords, first, I declare my interests as set out in the register and I thank my noble friend for introducing this important Bill. I sympathise with the predicament my noble friend finds herself in. Having been in her shoes, I know the amount of work that goes into preparing for a Bill, so it must be somewhat frustrating to think that we might not get to Committee before Parliament dissolves. However, as my noble friend pointed out, the matters under consideration in the Bill could not be more important and so it is vital that we relish this opportunity to talk about how we can make the NHS the safest it can be.

I also congratulate my noble friend on getting the Bill to Parliament with such strong cross-sectoral support. According to the briefings that I have seen, the GMC, NHS Providers, the NHS Confederation, the Royal College of Surgeons, the BMA, the Nursing and Midwifery Council and the Parliamentary and Health Service Ombudsman have all given their support, although of course with caveats. But I think that in these fractious political times, that is a cause for hope and, whoever is in charge after the election, I hope that they will bring the Bill back soon and that that consensus continues. I thank those organisations for their excellent briefings, along with the Library and the officials for their work, and of course Keith Conradi and his team at HSIB for the work they are already doing to keep us safer.

We are all reliant on the NHS to help us when we or our loved ones are sick, and much more often than not, we receive outstanding care, but accidents do happen. According to the figures in the Library note sourced from NHS Improvement, in 2017-18, there were 52,716 reported incidents of moderate harm and 5,526 incidents of severe harm, and 4,717 deaths were reported from safety-related incidents. I think we all accept that medicine, which is so intimately tied to trying to keep sick people alive, is a risky business and that accidents and harm will happen, whatever the intentions of clinical staff, but surely we would also agree that these figures are unacceptable. By comparison, in 2018, 500 people died in aeroplane accidents across the entire world.

The Healthcare Safety Investigation Branch was set up consciously to mirror the Air Accidents Investigation Branch and to achieve the kinds of gains in safety that the airline industry has seen. Given that, we must be humble enough to admit that we have much to learn from others. At this point, I pay tribute to my right honourable friend Jeremy Hunt, the former Secretary of State, who made patient safety his guiding star and who had the humility and the courage to say, “This is not good enough”. It is because of his leadership that we are here today and because of the astonishing bravery of those patients and their families who have campaigned tirelessly for a safer NHS.

I strongly support the Bill both because I think that the HSIB is the right institution to help improve patient safety and because this is a topic which cannot get enough attention. It will seem incredible to people living in the future that as a country we were happy to let nearly 5,000 people a year die from accidents in the NHS. It is akin to smoking; we used to accept it as a normal activity—a part of life and an inevitable cause of death—until collectively we made a decision to say no, that it was not acceptable and that together we must act. The Bill should be a rallying cry for a similar level of concerted action. One patient safety incident causing harm, let alone death, is one too many. It is time to change our culture and change our expectations: enough is enough.

Those are easy words to say, but they are hard to implement. We have had and continue to have scandals too numerous to mention and learned reports on those scandals. Things change a little for a while, but the fundamental cultural change, the shift from blame and denial to learning and responsibility, has not yet happened. That is why the HSSIB and the Bill are so vital. They can bring about a different safety culture, one that has proved so successful in other industries, to the NHS.

That is not to say that the Bill is perfect. There are a number of areas of concern where I would like greater clarity, although I accept that given the likelihood of a general election, those discussions may be for another day. The first area concerns Clauses 13 to 21, which govern the circumstances under which the “safe space” can be violated, as already highlighted by the noble Lord, Lord Hunt of Kings Heath, and the noble Baroness, Lady Walmsley. Clearly, there is disagreement among stakeholders as to what is the right balance. The PHSO wants more disclosure, while the BMA wants less. I understand the need for overrides in certain circumstances and I am sure that when we reach Committee stage, we will examine the merits of each potential case, but my concern is about the overall effect on patients and clinicians. We need them to trust the system. As the noble and learned Lord, Lord Judge, has said, without that trust, the system does not work. People need to be comfortable with being honest and transparent when engaging with it. However well justified such invasions of safe space may be, there is a risk that they may undermine trust.

Has my noble friend’s department considered the collective behavioural impacts of these exemptions, and whether they might, not individually but together, undermine the core concept at the heart of the Bill? How do these exemptions compare with those in the regimes in air, maritime and so forth that have proved so effective? A table of comparisons would be helpful for us to consider whether the right balance has been struck.

Regarding the powers of HSSIB as set out in Clauses 5 to 12, again, given how important the experience of other safety investigation boards has been in the design of this one for health, it would be useful to see a comparison with those other boards to understand whether HSSIB has the tools it needs to do the job that we expect of it.

As the noble Lord, Lord Hunt of Kings Heath, has already pointed out, one obvious area where HSSIB does not have the full extent of its potential powers is in regard to the independent sector, as set out in Clause 2. My noble friend has already explained why that is the case—the pending Paterson inquiry—but I simply cannot understand why independent health services are not in scope. The trade body representing independent providers has asked for them to be covered by HSSIB, as have the RCS and the BMA. There is a big crossover of staff between the two sectors, many of whom work in both on a regular basis, and some of the most egregious medical scandals—breast implants, vaginal mesh—have been at their worst in the independent sector. Added to that, data collected in the independent sector may be crucial to an investigation into NHS services. If or when we ever get to Committee, I am sure that this will be a major area of focus for all of us to try to make sure that the Bill reaches its potential.

I would be grateful if my noble friend could give some clarity about the scope of HSSIB’s investigations. Will, for example, the systematic misuse of medicines and medical devices be included? I am thinking, in particular, of the topics under consideration by my noble friend Lady Cumberlege’s review.

Despite us knowing all about the dreadful dangers of exposure to sodium valproate in pregnancy, around 300 babies are born disabled each year because of inadequate care that contravenes all existing clinical guidelines. It seems unconscionable to me that such practice should not fall within scope for HSSIB, and I hope that my noble friend can reassure me that it does.

As my noble friend pointed out, there has been a change in the position in the Bill in regard to the 1,000 maternity investigations that are currently carried out each year. Initially, the Government resisted the Joint Committee’s proposal to remove them from HSSIB; but they have now done so, although, as my noble friend set out, at a systemic level they can fall within the scope of HSSIB if it wants to look at them.

My noble friend Lady Cumberlege is sorry that she cannot be here today, but noble Lords will know how much of her life has been devoted to improving maternity outcomes and reducing harms. Each year, more than 1,000 babies die or are left with severe brain injury because something goes wrong during labour. These devastating incidents represent the single largest litigation cost to the NHS. We need to improve and we need to learn in order to do so. We need a system for investigating such incidents rapidly, both for the sake of the families involved and so that we can identify lessons. The question should not be, “Who is to blame?”, but rather, “Was this avoidable?”. In Committee, we can consider where the right place for such investigations should be, but can my noble friend reassure the House that, wherever they take place, the right questions and principles will underpin the way that investigations are conducted?

With regard to the powers, like the noble Lord, Lord Hunt, I am worried about the real-world impact that HSSIB will have. I have no doubt that it will carry out, as it already does, superb investigations that deliver real insights and suggestions for how to change practice for the better. But what obligations is the rest of the system under to adopt the recommendations? Clause 28 talks about a duty on HSSIB to provide assistance. The noble Lord, Lord Hunt, has already set out some of the responsibilities on health providers to consider HSSIB’s recommendations. That is welcome, but it is only one side of the exchange. Surely, the rest of the NHS should have a duty to implement the recommendations, or how can we be sure that there will be any change at all?

I will end with a brief word on medical examiners. I had responsibility for this policy as a Minister and was proud to have brought about their implementation after such a long period post the Shipman scandal. I want to register my delight in seeing medical examiners put on a statutory basis and the NHS under an obligation to fully fund them. That is wonderful progress, on which I congratulate my noble friend. I hope that it is an augur of good things to come.

Healthcare: Brain Tumours

Lord O'Shaughnessy Excerpts

Thursday 24th October 2019 Lords Chamber

[Baroness Blackwood of North Oxford]

The noble Baroness has raised a very important issue. Obviously, the Government are working to deliver the Carers Action Plan, which retains the strategic vision of recognising, valuing and supporting carers. It includes a commitment to 64 actions across five priorities to ensure that we improve support for carers, including recognition and support, and build evidence to improve outcomes, especially in these very difficult areas. We are also working hard with the Tessa Jowell Brain Cancer Mission to ensure that we improve pathways for those with very challenging brain tumour diagnoses.

[Lord O’Shaughnessy (Con)]

My Lords, I declare an interest as a patron of the Tessa Jowell Brain Cancer Mission. The noble Baroness, Lady Wheeler, has highlighted a very important topic, because the outcomes and experiences of people with brain tumours and brain cancers are terrible and have not improved in decades. The actions my noble friend has set out are important, but it took the leadership of our late and much missed noble friend to galvanise action. Part of that action was a pledge from the Government of £40 million from the National Institute for Health Research to improve research into treatments, therapies and care for people with brain tumours. Can my noble friend update the House on what progress has been made on that and how the money is being spent?

[Baroness Blackwood of North Oxford]

I thank my noble friend for his question and I pay tribute to his leadership on this issue. He is absolutely right that we must improve outcomes for those diagnosed with brain cancer, and one of the ways of doing so will be through earlier diagnosis. That is why the Prime Minister announced measures with the aim of seeing 75% of all cancers detected at an early stage by 2028 to save 55,000 lives a year. My noble friend is right, however, that we will deliver this only through improved research specifically targeted at brain cancers. The Government announced £40 million over five years for brain tumour research. This can be delivered only through the submission of high-quality research and I know that the Tessa Jowell mission is working to ensure that that becomes a reality.

Queen’s Speech

Lord O'Shaughnessy Excerpts

Tuesday 22nd October 2019 Lords Chamber

[Lord O’Shaughnessy (Con)]

My Lords, it is a pleasure to follow the noble Baroness, Lady McIntosh, following her dash from the Woolsack, and to join your Lordships in discussing two issues dear to my heart: education and health—or, as Tony Blair used to say, “schools ’n’ hospitals”. These are the everyday issues that our fellow citizens are concerned about: their health and that of their parents, their loved ones, partners and children, and, of course, where those children will go to school, college and university. What a joy it is and has been—a throwback, perhaps, to a gentler time—to take part in a debate in which there has been so little mention of the “B” word. Perhaps this is what political normality looks like. Do any of us remember?

I join other noble Lords in paying tribute to the noble Baroness, Lady Emerton. She has been a fine servant of this House and a source of wise advice on health issues. She will be sorely missed. It has been commented many times, in this debate and elsewhere, that there are perhaps too few nurses in the NHS. I am afraid that there are now too few in this House as well. We wish her well. Before I go any further, I refer noble Lords to my interests as set out in the register.

On education, contrary to some of the views expressed this evening, I believe that the Government have a track record to be proud of: hundreds of thousands more children educated in outstanding schools, hundreds of new schools and academies created, and the introduction of a wide set of reforms to standards on phonics, maths, the curriculum and qualifications that will help young people reclaim their right to be among the best educated in the world. I could not help but note that the noble Lord, Lord Storey, was not so impressed by these reforms, pointing to the results of the international PISA survey. In the interim, between his speech and mine—I hope he will not mind—I checked online. I noticed that the most recent published data was for tests sat in 2015. The 15 and 16 year-olds taking part had spent most of their life being educated under a Labour Government. Nevertheless, I share his urgency on improving school standards, but it is only fair, since the national curriculum was introduced in September 2014, to wait for future evaluations before we come to any final judgments.

In the last few years, school funding has been a growing pressure. The promised increase in the school budget to level up spending for the worst-funded schools is welcome, but it is further education that most needs our attention. FE has always been the Cinderella service among policymakers, usually because people in positions of power have little experience of it. The extra £300 million set aside for this sector in the recent spending round was good news, but it is only a one-year settlement. I hope that my noble friend the Minister can provide some comfort to your Lordships that it is only the first step of many towards a properly funded lifelong learning and further education system.

On health issues, I congratulate my noble friend and her department on a full slate of major reforms in the most gracious Speech. We are looking forward to the Health Service Safety Investigations Bill, which receives its Second Reading next week. I will reserve my comments on it until then. Perhaps in the interim, however, my noble friend could reassure the House that the Government are not putting all their eggs in this basket and that other separate but equally important patient safety initiatives, such as my noble friend Lady Cumberlege’s review of the safety of medicines and medical devices, will be acted on with the same energy.

The most gracious Speech also contains details of an important Bill that will determine the future regulatory system for the medicines and medical devices we rely on in the NHS. Does my noble friend agree that, on regulation, our aim for the future relationship with the European Medicines Agency should be to become an active and participating full associate member, but, if that is not possible, that we should use the opportunity to create the fastest, most sophisticated and joined-up system for bringing advanced therapies to patients anywhere in the world?

One way of achieving this goal is to ensure that the NHS has world-leading digital infrastructure. I know that my noble friend cares deeply about this topic, so can she tell the House how she will maximise the benefits of the UK’s health data assets for NHS patients? A significant investment by the Treasury in this project at the upcoming Budget would be a welcome sign of progress.

Finally, the Queen’s Speech was strong on promoting science and R&D. Nowhere does this matter more than in the life sciences and in health. Does my noble friend agree that a major focus for increased spending should be the National Institute for Health Research, one of our most effective research organisations, which has had only a flat cash settlement for the past 10 years? Funding this institution should be part of a collective strategy to reimagine the NHS as the world’s biggest and best R&D organisation. It will be patients who benefit the most from such an ambition. In these divided times, surely that is something we can all agree on.

Academic Health Science Centres

Lord O'Shaughnessy Excerpts

Tuesday 2nd July 2019 Grand Committee

[Lord O’Shaughnessy (Con)]

My Lords, I thank the noble Lord, Lord Butler, for calling this debate on this vital topic. I also think the Library for its briefing. I declare my interests both as a visiting professor at Imperial College AHSC, where I work with the noble Lord, Lord Darzi, and as a former Minister with responsibility for this area of policy.

The topic that we are really discussing today is innovation in the NHS and how we make the most of it. It strikes me that medical innovation is both our greatest opportunity and our greatest challenge. It is our greatest opportunity because for the first time we face the prospect of truly personalised medicines that could take hitherto untreatable and often terminal illnesses and cure them for life. We face the glorious fact that we in this country are responsible for huge amounts of medical innovation in our universities, our hospitals and elsewhere besides. However, it is also our greatest challenge because of the NHS’s reputation for adopting innovation, which, frankly, is not good, not least because there is huge pressure on database services to deliver the basics, meaning that many staff do not have the resources or the time that they need to adopt innovation. So at once innovation is our greatest strength but its adoption is our Achilles heel.

The Minister knows this better than anyone. She knows the importance of tackling this topic and resolving the tension. In the six months that she has been Minister she has already shown great resolve in this, both through the creation of the boosted accelerated access collaborative, and through her work on health data to take advantage of that opportunity and the launch of NHSX. Those are all crucial factors as we move towards the idea—a culture change, really—of thinking of the NHS not just as a health delivery organisation but as a research and development one too.

As the noble Lord, Lord Butler, alluded to, in this sense AHSCs are both a microcosm and an exemplar. They demonstrate, in one connected set of institutions, the ability to move from basic science in the lab all the way through to clinical application. I have seen the benefit of that myself when visiting UCL and the biomedical research centres at Oxford, where patients were among the very first in the world to have treatments for their cancers that had been invented in the labs just metres down the corridor.

I believe that redesignation is essential, not just to retain this excellence but, critically, to lead the system to a different and more research-oriented future. I speak from experience when I say that I know it has been the intention to redesignate, and I believe that that is still the case. I look forward to the Minister describing how and when that is going to happen. This time, though, I think we need to do it not just as a badge on these fantastic institutions but with a specific dual purpose with funding attached. The first of those purposes would be to prototype the bench-to-bedside approach and then to roll it out through the NHS. The truth is that we have fantastic adoption in some parts of the NHS but it is extremely patchy. I believe that AHSCs should be given a system leadership role to demonstrate what can be done and then work with other trusts to make sure that that can happen.

Secondly, as I have said, we in this country have one of the greatest opportunities that exist in the whole medical research realm through the use and the maximisation of value of our health data assets, something that we have discussed many times in this House, and using the wonderful technologies that we have in artificial intelligence—many of the leading-edge technologies are developed in this country—to apply them to the healthcare challenges that we face. That would not only give us the chance to change what happens for patients in the NHS but would retain our global leadership in this area.

I would very much appreciate hearing whether the Minister shares these ambitions for our AHSCs. I believe that through that redesignation, by giving them a turbo-boosted purpose and extra funding, they can lead the way for the future.

Learning Disabilities Mortality Review

Lord O'Shaughnessy Excerpts

Wednesday 15th May 2019 Lords Chamber

[Baroness Blackwood of North Oxford]

I can say absolutely that priority will be given to this. The mandatory training consultation, which has just been completed, was published on 13 February. The consultation lasted eight weeks but such was the volume of responses to it that it was extended by a further month; it received more than 5,000 responses, which the department is currently going through. There has been a commitment to a response within two to three months. The Government are taking this extremely seriously.

[Lord O’Shaughnessy (Con)]

My Lords, I thank my noble friend for her answers and the commitment and empathy she has shown, but let us be clear: what we are describing is appalling. The fact that people with learning disabilities—Down’s syndrome, autism and the like—have shorter life expectancies is completely unacceptable. I know that the Government and the Minister personally are committed to doing something about that but I want to return to the issue of training. To change a culture, we need to change not just the curricula of people training to enter the profession but the attitudes of everybody already working in the caring profession who do not always take these issues seriously. I appreciate that my noble friend will not be able to give details ahead of the consultation response in two to three months’ time, but can she give a commitment that we will think about not only training—in medical colleges, on nursing courses and so on—but continuing professional development so that everybody who is likely to have contact with people with learning disabilities in a care setting will have the opportunity to retrain, to understand the needs of these people and to make sure that we provide them with the care they deserve?

[Baroness Blackwood of North Oxford]

I thank my noble friend for his question. He is absolutely right: it is a disgrace that the reports demonstrate that too many people with learning disabilities are still dying prematurely and, all too often, for preventable reasons. We must ensure that we drive through the entire health system a change to make this come to an end. This is partly a matter of leadership, which is why it is absolutely right that Stephen Powis, the NHS England medical director, will write personally to doctors saying that it is not appropriate for DNRs to be based on disability and learning disabilities. It is why learning disabilities have been made a priority throughout the long-term plan and key programmes in the plan prioritise improving the physical healthcare of people with learning disabilities; that is important because it drives the issue up the priorities list of those working on an already busy schedule. It is also why the consultation on mandatory training will be brought forward as a matter of priority. Only when you have that combination of leadership, the practical healthcare programmes funded in the long-term plan and training will you get the culture change that my noble friend rightly identified as necessary.

Tessa Jowell Brain Cancer Mission

Lord O'Shaughnessy Excerpts

Monday 13th May 2019 Lords Chamber

[Lord O’Shaughnessy (Con)]

My Lords, a year ago yesterday we lost somebody who was a colleague, a friend and an inspiration to us all. I do not think that any of us who were involved in the debate that Lady Jowell initiated in January last year, whether they had known her for a long time or were only just getting to know her, will ever forget the extraordinary courage and leadership that she showed that day. As my noble friend pointed out, the impact has been truly profound, including through the brain cancer mission set up in her name, of which I am proud to be a patron. I am delighted that the Government have chosen this anniversary —an unwanted one, of course—to give us an update on the very important progress that they have made.

I am delighted by the news on the pink drink, which was one of the issues that Lady Jowell highlighted that day, as well as with other progress. As well as paying tribute to my noble friend and colleagues in the department, I join other noble Lords in congratulating the brain tumour charities, Cancer Research UK, patient groups, and of course Jess and her family for keeping up pressure and momentum so that we can make a difference on this dreadful disease.

Of course, the work of curing brain cancer is one not of months but of years and even generations. While I absolutely welcome the announcements today, can my noble friend give a commitment—which I am sure she will be happy to do—that the support the Government are providing will never waver during the long periods when we have to go through research and have to change things to improve outcomes, and that that commitment will always be there for this Government and any future one?

On a specific point, it is good to hear my noble friend talking about adaptive trials through BRAIN-MATRIX, and about Health Education England training a new generation of neuro-oncologists. Is she able to give specific details about the kind of support that the Government and others are prepared to offer for those? For untreatable cancers, having highly specialised staff as well as different ways of carrying out trials is critical to keeping people alive for longer—which is of course what Tessa’s speech and the leadership she showed was all about.

[Baroness Blackwood of North Oxford]

I thank my noble friend for his comments and in particular for the leadership he showed in responding to Tessa’s call to arms to improve outcomes for those with brain cancer diagnoses. I can absolutely give him the commitment that the Government’s commitment to the mission will not waver, and there is a very good reason for this. The outcome we are already seeing is so significant; over the last 12 months there has been the launching with partners of the mission and the making available of funding that has resulted in 24 brain cancer research proposals—the highest number ever—with a further four under active consideration. In addition, progress has been made on moving towards new service and staffing models, with commitments in the long-term plan and the life sciences sector deal. This will deliver exactly what my noble friend is talking about: namely, better care and support for patients, targeted to the kind of diagnoses they have, which is exactly what the brain cancer mission has recognised, and exactly the specialist advice which government needs to tailor care for patients in the most appropriate way when they most need it.

NHS: Shortage of GPs and Nurses

Lord O'Shaughnessy Excerpts

Wednesday 8th May 2019 Lords Chamber

[Baroness Blackwood of North Oxford]

I thank the noble Baroness, who is very expert in this area. She is absolutely right that there is no point in our bringing new trainees into the system if we do not retain the expertise and the teaching quality within the system. We can be very proud of the quality we have within the system, which is why we have put in a number of programmes to address this. We have put in a targeted, enhanced recruitment stream to attract doctors into parts of the country where there have been consistent shortages. We have put a broad offer of support for GPs to remain within the NHS, including GP Career Plus, the GP Retention Scheme, the Local GP Retention Fund and the national GP Induction and Refresher Scheme. We have also put in place a number of schemes for nurses, including a scheme that will attract nurses into specific, targeted areas, such as mental health, learning disabilities and district nursing, where we believe we should make the career more attractive. We recognise that there is more to do, and in areas such as pensions, which the noble Baroness rightly raised, we are taking that issue up with the BMA and the Treasury.

[Lord O’Shaughnessy (Con)]

My Lords, the increased numbers of staff coming through GP and nurse training are of course incredibly welcome but the truth is that we have a problem now, which is that we need more doctors and nurses practising today. One way to do that is to look around the world to recruit people, but another way is to make sure that we make the most of the resources we have through technology. Can my noble friend tell the House what the department is doing to enable us to use technological solutions to improve the efficiency of the GPs who are practising today?

[Baroness Blackwood of North Oxford]

My noble friend is absolutely right, and he has his own expertise in this area. I am pleased to be able to report that we have had an increase in recruitment of nurses and NHS workers from abroad. Compared with June 2016, we have over 5,200 more EU health and care staff working in the NHS, and we have had a 126% increase in the number of non-EU NHS workers, which shows the attractiveness of working within the NHS. But he is also right that we need to make sure that those who work in the NHS have access to the most innovative and effective tools possible, which is why, particularly within GP practice, we are launching the GP IT Futures programme. That will provide GPs with the best tools possible so that we can make their job more efficient while also allowing them to provide the best-quality care to patients.

Mental Capacity (Amendment) Bill [HL]

Lord O'Shaughnessy Excerpts

Ping Pong (Hansard): House of Lords
Wednesday 24th April 2019 Lords Chamber

Overall, I welcome where we have now got to. It would be helpful, however, if the Minister could confirm that the code of practice will be statutory; that it is not voluntary guidance but has standing. I hope she hears the message I have heard from many people, including those on the leadership group. I particularly commend Lorraine Curry, previously the chair of ADASS, who has provided me with a lot of constructive criticism. She reports back now that the profession just wants to get on with it and implement the new system, and do the right thing by the people for whom they have a responsibility. I hope we will see this Bill proceed today.

[Lord O'Shaughnessy (Con)]

My Lords, I want to speak briefly to offer some thanks to everybody who has participated in getting the Bill to this point.

First and foremost, I thank noble Lords. The noble Baroness, Lady Finlay, said that the Bill had been given a bumpy ride. As I was in the driving seat for some of that, I can tell noble Lords that it certainly did feel rather bumpy. However, once we got over the bumps and decided we could work together, we made considerable improvements to the Bill, driven largely, it has to be said, by this House and the expertise within it. The compromise reached on the issue of a code of conduct is a good example of that and reflects extremely well on the process this House has gone through in its desire to reach pragmatic solutions—perhaps there is a wider lesson for politics in that.

I want also to express my thanks to those in the Bill team, who have stuck with this and shown considerable and growing intellectual flexibility as the process has gone on. I am sure all noble Lords would want to thank them for both their input and feedback and the grace with which they have dealt with this.

I thank also my noble friend the Minister. This Bill was one of many passes I gave her when she took over, and she has handled it with great intelligence and grace, as she always does. I am delighted we have got to this point and that she has steered it so safely.

Finally, and most importantly, I thank those affected by this legislation: the cared for and the carers. I am sorry to hear the opinion of the noble Baroness, Lady Murphy, which I take very seriously. I am an optimist naturally, but it is not just my natural optimism that means I cannot agree with her gloomy outlook. I hope she is wrong, and I hope she will not mind my saying so. I believe that through this legislation we have made some positive changes and done some good for the cared for and their carers. I am sure this is a subject to which we will return, but, in the meantime, I hope the lives of those people have been improved by the work we have put in over the past few months.

[Baroness Barker (LD)]

My Lords, it has been a privilege to work again on a subject that we have now worked on several times in this House, from the original pre-legislative scrutiny and original legislation through to the post-legislative report on the implementation of the previous Bill. Apart from anything else, it shows the excellent results that can be achieved from the process that we put into scrutinising legislation and scrutinising its subsequent implementation. In light of all of that, I will say that I take a slightly different view from the noble Baroness, Lady Murphy. I think that we have done a very good job. The problem is that the legislation that came to us was fundamentally flawed, and we could not change that. But we changed the legislation where we could, and those changes will make it better.

The noble Baroness hit on two fundamental issues that are problematic. The first is the nature and scope of the Cheshire West ruling and the second is the lack of understanding of the original DoLS legislation. When it was introduced, the training for professionals—all sorts of different professionals—was lacking. Much of what has happened since has meant that we have fallen into a system that is deeply bureaucratic. A number of professionals are scared to exercise their professional judgment. Consequently, a whole bureaucracy has grown up around DoLS which, had it been introduced in the right way, would not have happened. Therefore, the noble Baroness was right to say that the Law Commission was trying to deal with that issue and could not. I have no doubt that what we have in front of us will not solve the problem. I doubt very much whether it will deal with the backlog of cases, about which people are rightly exercised.

My question is one that we were all concerned about—the resourcing for this. One of the first things that we did when we met the Bill team was to query the resourcing—half a day’s training for some doctors and no need for training for people in care homes. Much of that has got lost as we have gone deeper into the wording of the Bill. Will the Minister talk about the resourcing of training and the implementation of the code of practice? I have no doubt that, in due course, there will be further test cases that will shine a light on the deficiencies of this legislation and we will come back to dealing with the fundamental issue: how do we ensure that someone whose liberty is going to be deprived by an agency of the state can be enabled to understand their rights, and their carers enabled to understand their rights, in order that they and the professionals who work with them can ensure that everything is put in place to minimise the deprivation of liberty? If we had done that properly in the first place, we would not be dealing with the deficient legislation that we are now.

The noble Baroness, Lady Murphy, is right that we have not dealt with it, but I take some hope from a lot of the stramash, to use a Scottish word, that we have been through and the attention that has been paid to all of this by the department, by people in the sector and by the lawyers themselves. This is not the greatest job we have ever done, but what we should do today is put a marker down for the evidence that needs to be collated and gathered for the time in the future when we will, inevitably, return to this subject.

Health: HIV

Lord O'Shaughnessy Excerpts

Monday 25th March 2019 Lords Chamber

[Baroness Blackwood of North Oxford]

We can be incredibly proud that the UK is a world leader in efforts to end the AIDS epidemic, including through our huge investment in the Global Fund, which has provided 17.5 million people with treatment since 2017, and of course through DfID’s research on HIV prevention. That is exactly why DfID has committed to continuing its focus on HIV prevention technologies and I am happy to share that commitment with the noble Baroness.

[Lord O'Shaughnessy (Con)]

My Lords, may I echo my noble friend Lord Black’s praise for the Secretary of State’s ambition and associate myself with his policy suggestions? My noble friend will be aware that there is a similarly infectious, life-limiting disease that affects similar people, called Hepatitis C. We now have a cure for that disease: we are able not just to eliminate it as a public health risk but actually to cure people. In drawing up any strategy, will the Minister ensure that the department also makes sure that curing Hep C and making that cure available to those people is as big a priority as eliminating HIV?

[Baroness Blackwood of North Oxford]

I thank my noble friend for his question and also for his leadership on this issue while he was in the department. He knows that the Government are committed to being a world leader in domestic eradication of Hepatitis C. He will know also that a legal challenge by AbbVie delayed the start of contracts on this issue by six months. I am pleased to be able to inform the House, however, that in January the High Court found in NHS England’s favour on all grounds in this matter. We can now go forward with those innovative contracts, which are worth about £1 billion over five years. That will be rapidly put in place over the coming months, which will allow us to make progress on this matter.

Healthcare (International Arrangements) Bill

Lord O'Shaughnessy Excerpts

Report stage (Hansard): House of Lords
Tuesday 12th March 2019 Lords Chamber

[Lord Wilson of Dinton (CB)]

My Lords, I am glad to follow the last two speakers; they have eloquently made the case for supporting the noble Baroness’s amendment, as I do. This is not about supporting Brexit or wanting to remain; it is about the tension that exists between the Executive and Parliament, and the duty of this House, and of Parliament, to scrutinise the proposals of the Government to ensure that good government, as far as possible, is provided in this country.

I am very glad that the Minister has tabled the amendments that will follow later. However, I agree with the noble and learned Lord, Lord Judge: they are a step in the right direction, but that is not enough. The sweeping nature of the powers proposed in the Bill are in many ways offensive to the proper conduct of legislation. I accept that they are needed in the current situation in relation to the EU and Switzerland, but to go wider than that is wrong, I think. We have to insist on legislation being properly prepared, properly debated, properly scrutinised and properly consulted on. If, in the middle of the current turmoil, we let go of some basics of legislation, we will do ourselves harm and set a bad precedent. I shall support the noble Baroness’s amendments.

[Lord O’Shaughnessy (Con)]

My Lords, although I do not agree with it, a lot of scepticism about the scope of the Bill has been eloquently expressed at every stage of the debate on this group of amendments so far. However, I remind noble Lords of the human consequences of restricting the Bill in the way proposed by these amendments. I think we all agree in general on the benefits of reciprocal healthcare agreements—many noble Lords have paid testament to those—and we all want to see continuity of arrangements with the EEA and Switzerland. So far, so good. However, we have also debated and agreed in principle—in Committee, at Second Reading and in this group—on the desirability of having such arrangements with more countries. Indeed, the noble Lord, Lord Foulkes, talked in Committee about the opportunities of travelling to the USA, which people with long-term conditions can no longer do because they are now uninsured.

Let us be very clear what is at stake. Accepting the amendments in this group would mean that we miss out on a golden opportunity to achieve a shared goal. What are the reasons for that? I do not agree with them, but very good reasons have been given about the kind of procedure and scrutiny that ought to be applied to the new reciprocal healthcare arrangements that we may strike with countries outside the EEA and Switzerland. This is not a disagreement about the principle of having such arrangements; it is a disagreement about the process of agreeing such arrangements. However, the consequence of these amendments is not to deal with these issues by changing procedure, scrutiny and process, but instead to strike them out on principle. That does not seem to me the right approach to very well substantiated and perfectly reasonable, but ultimately procedural, concerns. By changing the Bill in this way, we will lose the opportunity to deepen relationships with key partners such as New Zealand and Australia, as my noble friend Lord Ribeiro said. We will miss out on the opportunity to give people with long-term medical conditions the chance to travel outside the EEA to visit family or to work, and for young people to broaden their experiences. We will miss out on the opportunity to deepen—

[Baroness Brinton]

Please allow me to intervene; I am afraid I cannot stand up to do so.

Is the noble Lord suggesting that by passing the Bill, existing arrangements outside the EEA and Switzerland would become null and void?

--- Later in debate ---

[Lord O’Shaughnessy]

I think the noble Baroness knows that that is not what I am saying. We will miss out on the opportunity to turn the fairly shallow arrangements that we have at present into the kind of deep arrangements that we enjoy with the EEA and Switzerland. We would also miss out on the opportunity to deepen relationships with EU accession countries and to provide reciprocal healthcare arrangements that would underpin any other international arrangements that we may want to strike in the future. All this would be lost if we were to accept these amendments.

There are other factors that we must also take into account. Amendment 9 provides greater opportunities for scrutiny and restrains the Government’s powers. The noble and learned Lord, Lord Judge, spoke of the untrammelled ability to organise agreements with countries such as Venezuela and others, but there are natural limitations—not simply the scrutiny available through the processes my noble friend Lord Ribeiro talked about, but also the need for data adequacy. We will not be able to strike such arrangements with any country we want, and they would have to be under the aegis of an international agreement scrutinised and passed in the other place and this House.

It was suggested by the noble Lord, Lord Wilson, in Committee that I had unwittingly made the case for another Bill, and the noble Baroness, Lady Thornton, talked about that. Another Bill is easier said than done, and anyone who has been in Government knows that you cannot just pitch up with a Bill. There is a complicated and often painful process of going through the PBL Committee and other committees to get such Bills. This Government are constantly accused of doing nothing other than Brexit, and here they are doing something other than Brexit. Surely this is a welcome opportunity to do something beyond the thing that, frankly, we are all a bit tired of talking about.

If not now to extend the scope of our powers to strike these arrangements on a global basis, then when? We cannot assume that another opportunity will come this way soon, and what will the human consequences of that be?

--- Later in debate ---

[Lord Clement-Jones]

My Lords, I beg to move Amendment 14, and your Lordships will be pleased to hear that I will be brief.

During the passage of the Bill, considerable concerns have been raised by a number of noble Lords about the use and sharing of data within the NHS. It is a hotly contested subject, and one of the best briefings on it is from our Library, prior to a debate on 6 September initiated by the noble Lord, Lord Freyberg. It unpacks a number of the concerns and issues about data within the NHS, and I am sorry that I have been unable to be at Second Reading or in Committee to expand on some of those issues.

During our Select Committee inquiry into artificial intelligence, there were a number of witnesses who talked about the use of data in the NHS, and we drew a number of conclusions, namely that the data was not in good shape to be utilised for beneficial purposes such as research, diagnosis and screening. That is another issue, however; what concerns noble Lords is the question of sharing. Now that we have seen Amendment 1 pass, maybe we will deal only with countries where there is a level of data adequacy which gives us an assurance about the use of NHS data. As the King’s Fund said last year in its report, Using Data in the NHS:

“National policy has to keep a balance between responding to legitimate public concern about the security and confidentiality of data and enabling data to be shared and used by NHS organisations and third parties. It is also essential that NHS national bodies are transparent with the public about how patient data is used”.


It went on to suggest that the level of opt-outs for patients would be key to the quality and validity of future research, and that NHS England and NHS Digital should keep this under review. One of the issues in the NHS is that there are several organisations responsible for NHS data. It is not just NHS England, NHS Digital, the National Information Board and Public Health England. The Caldicott Guardian—the national guardian for health and care—has a responsibility as well. It is quite a disparate, rather balkanised issue.

I was reassured on reading what the noble Baroness, Lady Manzoor, had to say when she responded, as the Minister, to this set of amendments in Committee:

“Under the Bill, personal data can be processed only in accordance with UK data protection law, namely the Data Protection Act 2018 and the general data protection regulation, which will form part of UK domestic law under the EU withdrawal Act 2018 from exit day”.


I am not going to go into all the questions about data adequacy and so on. I take what she said as quite reassuring, but it was less so when she later responded to what was then Amendment 23—this amendment is identical. She said:

“I assure the Committee that the Government are committed to the safe, lawful and responsible processing of people’s data”.


However, she then said:

“As the noble Baroness, Lady Jolly, and my noble friend Lord O’Shaughnessy noted, the Caldicott principles and the Government’s Data Ethics Framework are admirable standards to apply to the handling of patient data. Both of these non-legislative frameworks are in line with the Data Protection Act and the GDPR, which are enshrined in the Bill”.—[Official Report, 19/2/19; cols. 2261-63.]


That is not unequivocal in terms of those standards applying. As the Minister knows, we discussed this between Committee and Report. I had hoped to receive correspondence from her, but sadly I have not done so. She may need to repeat whatever text of the letter she may be able to find in her outbox. I hope she can give the House reassurance that the national data ethics framework and the Caldicott principles will apply to any sharing of data. The data ethics framework is a cross-government standard, of course, but the Caldicott principles are specific to the NHS. It is important to make sure they apply both domestically and internationally.

[Lord O'Shaughnessy]

My Lords, I am grateful to the noble Lord, Lord Clement-Jones, for giving the House the opportunity to talk about this issue again. He has been deeply involved in this topic and, as he said, I spoke on it in Committee. Compliance with this country’s very robust data protection rules is critical in general and particularly important in healthcare. This was discussed in the debate instigated by the noble Lord, Lord Freyberg; it has been a topic of conversation in this House, both in and out of the Chamber, on many occasions.

The noble Lord talked about the number of bodies that have some responsibility: he called it balkanised. It is important that we do not create a balkanisation in the law, even if a small one is in operation. One set of law should take precedence over all data protection, security and connected issues. That is, and should be, the Data Protection Act 2018. This means that there are operational guidelines, frameworks, principles and so on about how these ought to operate within individual contexts. That is precisely where the Caldicott principles come in. They take a general piece of legislation and translate what good practice in interpreting it ought to mean in a health setting. In that sense, it is important to say that we should not put those principles in a legislative setting. They are interpretive of the core, primary legislation and may need to change over time. They may need to adapt; there may be an eighth principle as we get into interesting questions about the value of data and so on.

It is important to recognise that the Caldicott principles bring to life what the Data Protection Act ought to mean in health settings. It would be a mistake to create competing law. Of course the Government agree with the noble Lord about the importance of giving force to the principles. That is one reason why we supported the Private Member’s Bill brought into this House by my noble friend Lady Chisholm to put the national data guardian on a statutory basis. I hope that that gives him the strength of reassurance about the way that the framework is constructed, which is not to create an opportunity to do funny stuff at the edges, but rather to make sure that there is primacy of one set of legislation.