Health and Social Care (Safety and Quality) Bill

Lord Ribeiro Excerpts

Friday 6th February 2015 Lords Chamber

Moved by

[Lord Ribeiro]

That the Bill be read a second time.

Relevant document: 16th Report from the Delegated Powers Committee.

[Lord Ribeiro (Con)]

My Lords, I declare an interest as a past president of the Royal College of Surgeons and current chairman of the confidential reporting system for surgery, CORESS, the aim of which is to record near misses during surgery in a similar way to how the confidential reporting programme for aviation contributes to airline safety. I am grateful to the honourable Member Jeremy Lefroy, MP for Stafford, for inviting me to sponsor his Private Member’s Bill in this House. The Bill has the support of the Government, the opposition Members who spoke in all stages of the Bill in the House of Commons and, in particular, the honourable Member Jamie Reed, MP for Copeland.

“First, do no harm” is a guiding principle that all doctors embrace as they start their medical careers. It comes from the Hippocratic oath, which many newly qualified doctors still take, which says:

“With regard to healing the sick, I will devise and order for them the best diet, according to my judgment and means; and I will take care that they suffer no hurt or damage”.

As a young doctor starting my first surgical house job in January 1968, I was made all too aware by my consultants that my first duty was to ensure the safety of my patients.

Jeremy Lefroy was motivated to introduce the Bill because of the concerns of his constituents, Julie Bailey of the Cure the NHS Campaign, who challenged the care given to patients at Mid Staffordshire NHS Foundation Trust, and Ken Lownds, a champion of patient safety. The subsequent two inquiries by Sir Robert Francis identified appalling failures at the trust, which became apparent only after visits by the Healthcare Commission. The findings from Mid Staffordshire and Winterbourne View confirmed that harm to patients was occurring across health and social care services. Many of Sir Robert Francis’s 290 recommendations have been adopted and are part of the new inspection process adopted by the Care Quality Commission. One would hope that that would be the end of it. However, how many times have we heard after such an event, “Never again” and “Something must be done”?

The Bill arises from a determination to see that what happened at Mid Staffordshire and Winterbourne View will never happen again. It seeks to put the safety of patients at the very front of all inspection processes by the CQC. As Jeremy Lefroy stated at Second Reading:

“Of course, legislation on its own will not guarantee safe and high-quality care—leadership, culture and resources are all vital elements—but by making it clear in law what is expected of those providing health care, the Bill will go a long way to doing so”.—[Official Report, Commons, 7/11/14; col. 1080.]

Thus, Clause 1 amends the Health and Social Care Act 2008 to make it clear in legislation that it is the duty of the Secretary of State to ensure that patient safety should be a priority at the forefront of any inspection of hospitals, GP practices and care homes by the CQC. It makes explicit what is implicit. Clause 1 changes the Secretary of State’s power to a duty, replacing “may” with “must” to ensure that all health and social care providers have one objective: the avoidance of harm to patients and members of the public in their care.

Clause 1 refers, in new subsection (5B)(b), to avoidable and unavoidable harm. It might be helpful to explain that to noble Lords by reference to a surgical procedure with which I am more familiar. During surgery for trauma to the abdomen, it may prove impossible to repair collateral damage to the spleen, which it is possible to do in an elective operation. However, in an emergency, removal of the spleen may be unavoidable in order to save life. A notable case of avoidable harm is that which befell Sir Anthony Eden—the Earl of Avon—when, in the course of gall bladder surgery, his bile duct was damaged. The complications that followed blighted his health and subsequent political career.

A test of reasonableness rightly applies in assessing whether harm is avoidable. For instance, before undertaking a colonoscopy, a patient is always warned of the risks of bowel perforation—about one in 500 when I was practising. The patient has a right to expect that the hospital will have the necessary systems in place to deal with any problems immediately, should unavoidable harm occur. New subsection (5B)(b) recognises that dilemma and makes allowance for it. As the Explanatory Notes observe,

“a test of reasonableness applies in assessing whether or not harm is avoidable, to acknowledge the risk intrinsic in many clinical treatments”.

Clause 1 will ensure that all health and social care providers create systems to reduce the incidence of avoidable harm. “Zero harm” is a laudable aspiration, but we received many emails, particularly from the Health Foundation and others, which stressed that zero harm is not achievable. However, as the 2014 NHS England report on “never events” demonstrates, such incidents continue to occur. In 2012-13 there were 329 reported incidents: 83 from wrong site surgery; 42 from wrong implants or prostheses; and 130 from retained foreign objects. Other examples of avoidable harm can be found on the wards, with patients left without food or water—which may be there, but out of reach—low staffing levels which lead to patient neglect, and instances of actual physical harm such as those reported at Winterbourne View. We still have a way to go, but Clause 1 will encourage us to do so by ensuring that there is a legal duty to hold providers to account for the safety of care to patients and service users for years to come.

Clauses 2, 3 and 4 are intended to encourage integration between health and social care services by utilising a consistent identifier of patients and the sharing of information for direct care purposes where that is in an individual’s best interests.

In the debate in the House of Commons on 10 December 2014, Dr Poulter, the Minister for Health, stated that it was the Government’s intention to specify the consistent identifier as the NHS number. That will come as some comfort to the patients who move from hospital to hospital, collecting different hospital numbers along the way, which can often lead to delays in transmitting information. Greater use of the NHS number would make it easier to share information on patients between the various systems in the NHS and the social services, to improve the care given.

As a clinician, I know all too well the vital importance of accurate and timely information to the delivery of care. I am strongly of the view that these clauses, requiring as they do the sharing of information about patients in support of their direct care, and in their best interests, will improve the safety and quality of that care. Requiring the use of the NHS number will facilitate sharing, helping to ensure that information follows the patient, so that information is there when it is needed. This is important whenever care is delivered, but is particularly crucial in the delivery of urgent care, and for patients with complex care needs, when several organisations are working together to deliver the best possible care. Not only will this save doctors and nurses valuable time which could be better spent on caring for patients, it will also reduce the risk of errors caused by a lack of information about a patient’s history. Furthermore, it will spare patients the frustration of having to tell their story over and over again, leading to a smoother, more joined-up experience of care. I am sure that the Minister will comment on this.

In Clause 2, it is important to recognise that there will be vulnerable people and sensitive health services which depend on anonymity to encourage attendance. The duties to use the NHS number and to share information for direct care purposes would not apply when an individual objects or would be likely to object. Dame Fiona Caldicott, who enshrined the six Caldicott principles in 1997 for information governance has, in the recent information governance review for 2013, added a seventh principle:

“The duty to share information can be as important as the duty to protect patient confidentiality. Health and social care professionals should have the confidence to share information in the best interests of their patients within the framework set out by these principles”.

Getting the balance right is important, and Dame Fiona Caldicott noted that after the second Francis report she was struck by the need for cultural change in the NHS. She said:

“A re-balancing of sharing and protecting information is urgently needed in the patients’ and service users’ interests, which is supported by those citizens with whom we discussed these issues”.

Education and training to ensure that staff show respect, compassion and dignity in their dealings with patients, particularly with an ageing population, is crucial if the risk-averse attitude to sharing information is to be overcome. As the newly appointed National Data Guardian, we can rely on Dame Fiona Caldicott to ensure that data are protected.

On 11 March 2013, the noble Lord, Lord Patel, who is not in his place today, introduced a short debate on the Mid Staffordshire Foundation Trust. In my contribution, I referred to the role of the Royal College of Surgeons in providing two reports commissioned by the Mid Staffordshire Foundation Trust following an invited review of clinical services. The RCS was criticised by Sir Robert Francis for not sharing its findings beyond the trust, even though the report, once delivered, was the property of the trust that commissioned it. I had suggested previously a mechanism for reporting concerns about patient safety, following college visits, to Sir Ian Kennedy when he was chairman of the Healthcare Commission and I was president of the college. The role of the Royal College of Surgeons would be to oversee the training of surgeons in hospitals, while the Healthcare Commission would deal with any patient concerns we identify. Sadly, this did not happen as college visits were not reinstated and the CQC took over the role of the commission in 2009. It then overturned a robust system of inspection, which had identified the problems at Mid Staffordshire hospital.

It is worth noting that, following the Francis report, CQC inspection teams now have a larger clinical component. In highlighting the problem of Mid Staffordshire, we must recognise—as the noble Lords, Lord Patel and Lord Warner, did in their contribution to the debate—that there are many excellent NHS hospitals employing staff who should not be tarred with the same Mid Staffordshire brush.

Clause 5 and the schedule set out consistent overarching objectives relating to the Professional Standards Authority and regulators of health and care professions. These are based on a consistent overarching objective of public protection, furthered by three individual objectives of protecting, promoting and maintaining health, safety and well-being of the public; promoting and maintaining public confidence in the profession; and upholding professional standards and conduct. The regulators’ fitness to practise panels and committees, as set out in the schedule, would also be required to consider these objectives. Consistent with this Bill’s theme of safety and quality, this will help confirm that these regulators are able to act to ensure public protection in its widest sense.

The BMA has expressed concerns about the inclusion of maintaining public confidence as an objective for regulators, fearing the use of this consideration as a pretext for initiating the investigation of health professionals through fitness to practise proceedings. It has raised with me the issue of guidance for regulators, declaring how the overarching objective and, in particular, the elements related to public confidence and well-being will be applied in practice. I believe that this is an important issue and I am sure that my noble friend the Minister will be able to give assurances on it.

I have made no reference to the Law Commission’s draft Bill on the regulation of health and social care professionals, which recommends that a single statute for all regulatory bodies should be established to provide an overarching duty to protect the public. I know that the noble Baroness, Lady Pitkeathley, will wish to comment as chairman of the Professional Standards Authority. I will defer to the Minister to deal with the noble Baroness’s concerns.

The Royal College of Surgeons proposed two amendments, taking forward aspects of the Law Commission’s review of the regulation of health care professionals during the Commons stages. My honourable friend Jeremy Lefroy responded that these would not be included in the Bill and that the Government will take these issues forward as part of their response to the Law Commission. I have received emails from the Nursing and Midwifery Council, the General Pharmaceutical Council and others that would wish to see the Law Commission’s proposals introduced as a government Bill. Would my noble friend the Minister confirm the Government’s commitment to legislation? Following the many reports post-Francis on patient safety, including those by Don Berwick and Sir Bruce Keogh, it really is time to put into legislation measures that will make it possible to achieve harm-free care and to ensure that patient information can be identified and shared for the specific purpose of improving care for patients who consent for this to be done.

In conclusion, I thank Jeremy Lefroy MP for introducing this Private Member’s Bill and for his deft hospital pass; the noble Earl and the Bill and policy team at the Department of Health for their many meetings with me; and other Peers and the professional organisations with concerns. I beg to move.

--- Later in debate ---

[Lord Ribeiro]

My Lords, I thank all noble Lords who have taken part in this interesting debate. I very much hope that the Minister has addressed most of the questions that have been raised. I know that the concerns of the noble Baroness, Lady Pitkeathley, have been addressed. She made a clear case on the confusion about the role of the PSA as an auditor as opposed to a regulator. That needs to be borne in mind.

The noble Lord, Lord Willis, was clear that this Bill is proportionate, logical and deliverable. That is the point—it is deliverable. We have heard a lot about the Berwick advisory group, which has flown the kite of zero harm. It probably has not helped that in the immediate period after Mid Staffs we were keen on some sort of zero harm. Earlier, I referred to Mr Ken Lownds and his interest in patient safety. He has been one of the champions of zero harm. As a surgeon, I know that it is an aspiration that ultimately, if the systems are in place, it is possible to head towards. Although the Berwick advisory group says that,

“zero harm is a bold and worthy aspiration”—

not an intention but a “worthy aspiration”, I say to the noble Lord, Lord Turnberg—it is about timing and the pace of change. It is something that we should aim for, but in order to get there we have to make sure that when hospitals are inspected by CQC it finds that the systems are in place to ensure that harm does not occur. That is the whole purpose of the Bill. The noble Lords, Lord Turnberg and Lord Warner, were very exercised by this area and I hope that we have gone some way to address it.

The noble Lord, Lord Young, raised a good issue. I meant to put it in my speech, but I thought that my speech would be too long—I think that I said to the health team that it might take anything up to 20 minutes, but when I heard what was going on this morning I decided to reduce it. The noble Lord made a good point and I am glad that he did, because those who listened to Dr Atul Gawande, the 2014 Reith lecturer, know that he was the architect of the checklist, which he introduced with the WHO. I remember being approached by Sir Liam Donaldson when I was president of the Royal College of Surgeons to see whether the college could sign it off. I thought that it was something to be used in developing countries, not in the UK, but typically the NHS instituted it. There is a question of whether it should be legislated for. In answer to my noble friend Lord McColl, in surgery it is the recommendation of the college and all the specialist associations that surgeons and anaesthetists should follow the checklist. The difficulty always comes with emergencies, which is where legislation may be difficult—if somebody is bleeding to death, there is not time to sit and have a chat about whether we have everything that we need before we start, which is what that involves.

The noble Lord, Lord Hunt, referred to Clause 1 and zero harm. We have dealt with that and the near misses and I think that that deals with the point about the checklist, too. As I said, I am chairman of CORESS, which is to do with having confidential reporting of near misses so that we can advise surgeons on how to avoid them happening again, using the airline industry as a template of how to avoid harm. That is what all this is about: avoiding harm.

Finally, the noble Lord, Lord Hunt, made a point about Mencap. I take on board the fact that Mencap would like see to see an amendment so that the health information of all those who are poor communicators can be taken into account, as we tend to look at people in terms of the information that they give rather than how they give that information. I wonder whether that could be put in guidance when the legislation comes through. Certainly it will be looked at.

I again thank everyone who has taken part in the debate for their contributions, which have been most helpful. I ask the House to give the Bill a Second Reading.

Bill read a second time and committed to a Committee of the Whole House.