Health and Social Care (Safety and Quality) Bill

Lord Ribeiro Excerpts

Friday 13th March 2015 Lords Chamber

[Lord Hunt of Kings Heath]

Perhaps I may say to my noble friend that I think that the noble Lord, Lord Ribeiro, should wind up first and then he should come back.

[Lord Ribeiro (Con)]

My Lords, I thank the noble Lord for that intervention, and I thank my noble friend the Minister for his succinct answers in respect of Clause 1 and the four amendments that have been tabled. Before I respond to the amendments in the names of the noble Lords, Lord Turnberg and Lord Warner, and the noble Baroness, Lady Finlay, I would point out that I have heard reference in the Chamber again today to zero harm. Clause 1 is not about zero harm but rather about reducing harm. It is very important that we make that clear right at the beginning as well as right at the end.

The noble Lords, Lord Turnberg and Lord Warner, do not object in their amendments to placing a clear duty on the Secretary of State, as defined in the Bill, and they recognise that the clause places an obligation on the Secretary of State to include steps to reduce avoidable harm in the requirements for registration with the CQC. However, they argue against including the term “no avoidable harm” and would prefer it to be replaced by “reducible harm”. We will get there. It is important to note that it is the providers of health and adult social care services in England that are required to register with the CQC, not individual members of staff. Again, the concerns that the noble Lord, Lord Turnberg, expressed at the beginning were about the perception that this obligation would fall to individual practitioners or health and care workers. It does not. It is very much defined as being on those who are registered with the CQC. That cannot be clarified enough. I think that my noble friend the Minister made that point.

At Second Reading, the noble Lord, Lord Willis of Knaresborough—he is unfortunately not here today, but has been supportive of the Bill—and I attempted to blow away the myth of zero harm, which implies something negative that will impact adversely on healthcare professionals when something goes wrong. The fundamental standards, which have been referred to, become law on 1 April. They will not be changed by the Bill, which places a duty on providers to ensure that safe systems are in place for the care of patients. It is about putting safe systems into place, just as in the airline industry you need safe systems in place to ensure that disasters do not occur.

Clause 1 is in no way critical of the new fundamental standards, which meet the demands of the clause. As the noble Lord, Lord Warner, said, NHS providers have sought assurances on this point, and I think they have been given. In their report, they also asked how the Government will avoid the clause creating a clinical culture with staff fearful of taking controlled risks and reporting mistakes. I think that education and training of the workforce will be used to ensure that that does not happen.

The noble Lord, Lord Warner, was also concerned about some aspects of Clause 1 and the effect that the Bill will have on the Secretary of State’s position. The Bill removes the Secretary of State’s discretion in determining whether the legal minimum standards for providers of health and adult social care cover the requirement to move towards no avoidable harm. This is so central to the quality and safety of services that it is right that there is no possibility of future Secretaries of State electing not to cover this area in the registration requirements. That is one of the principal reasons why it is important to have Clause 1 in the Bill and not just rely on the fundamental standards.

I mentioned training and education. The noble Lord, Lord Turnberg, expressed his considerable concerns about the culture, fear and frustration that the Bill will create, rather than openness and willingness. I will address his Amendments 2 and 3 by referring to the Department of Health’s response to the Francis report in its document Culture Change in the NHS, which recognises the importance of health education and safety. The Berwick advisory group has been mentioned a lot during our discussions, along with the health foundation. The Berwick review recommended that,

“all healthcare professionals receive initial and ongoing education on the principles and practices of patient safety, on measurement of quality and patient safety, and on skills for engaging patients actively”.

Health Education England’s commission on education and training for patient safety, chaired by Sir Norman Williams, a past president of the Royal College of Surgeons, and Sir Keith Pearson, the current president of NHS England, set out proposals for enhancing safety training for all health and care professionals covering four themes: how to raise concerns about patient safety; human factors, which are increasingly important for patient safety, particularly in surgery; mandatory training to improve patient safety; and service improvement for patient-centred outcome and patient safety.

The noble Baroness, Lady Finlay, expressed concern that the Bill might stifle the reporting of errors. Berwick recommended a number of measures to ensure the effective reporting of serious incidents and prompt action in response. Many such measures, such as the new national patient safety alerting system, are already in place, and 17 alerts have been issued in the past year. I believe that the learning and training tools are in place, and NHS England is working with the Health Foundation to implement Berwick’s recommendations. Where a provider takes the necessary steps to mitigate the safety risks, this will allow front-line staff to focus on the treatment and care needs of patients and service users. Far too often we have heard it said that practitioners are looking up to managers rather than looking down at their patients. This Bill, if implemented, will provide them with the knowledge and comfort that safety systems are in place and that, if they fail, it will be the provider who stands accused, not the professional. I hope that that will give some reassurance to the noble Lord, Lord Turnberg.

I was heartened to see the heading of Amendment 4, which was tabled by the noble Baroness, Lady Finlay. Although I do not agree with the substance of the amendment, it does make the point that “reducing harm in care” is what this Bill is about. Many speakers in our earlier debate, including my noble friend the Minister, referred to reducing avoidable harm. The noble Lord, Lord Hunt, also talked about the checklist. At Second Reading, in response to the point about checklists, I said that colleges and speciality associations totally support the proposal. As the Minister pointed out, the checklists are mandatory and disciplinary action will be taken if they are not followed.

[Lord Hunt of Kings Heath]

Does the noble Lord agree that there is a problem at the moment in that organisations feel somewhat inhibited in taking action against consultants? There are two things—the checklist itself, and then the consultant’s approach and attitude to the checklist. It would be very helpful to have support from the Royal College of Surgeons and other bodies alongside that of the Government to put a bit of backbone into the boards of organisations.

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[Lord Ribeiro]

I entirely agree. This should be taken forward in all the colleges and, in particular, in the Academy of Medical Royal Colleges. Checklists do not stop with surgeons. There is a lesson here for many medical disciplines which could adopt similar practices. This is something that we should hear more about in future.

I have reflected on this in the light of today’s debate and the concerns expressed by the noble Lord, Lord Warner, and others, and I feel that the amendment tabled by the noble Baroness, Lady Finlay, provides an opportunity to look again at the heading of Clause 1 and to change it to “reducing harm in care”. I am assured by the Public Bill Office that it is possible to change a heading in a Bill without an amendment. I propose to accept the noble Baroness’s suggestion and recommend a change in the heading which will be printed when the Bill is enacted, although I may well ask her not to move her amendment in respect of the rest of the content.

I hope that that and the other assurances I have given about the progress in education and training following the recommendations of the Berwick report will reassure those who remain concerned that this clause implies zero harm. It does not, but it will encourage the reduction of harm in any health setting. It is progressive and does not imply that from the day that the Bill becomes law we will outlaw avoidable harm. To err is human. Our job should be to create a climate through the education and training of medical students—who from this autumn will become patient safety champions—trainees and all healthcare workers whereby they recognise that reducing harm is their responsibility. As a result, I hope noble Lords will not press their amendments.

[Lord Warner]

Will the noble Lord clarify the change in heading? On the first page of the Bill there are two references to “harm-free care”. Will both be changed to “reducing harm in care”?

[Lord Ribeiro]

No. The heading “harm-free care” will be changed to “reducing harm in care”.

[Earl Howe]

My Lords, before the noble Lord, Lord Turnberg, decides what to do with his amendment, I shall reinforce the explanation I gave earlier in answer to the noble Lord, Lord Warner. This clause removes the Secretary of State’s discretion around whether the requirements for registration with the Care Quality Commission should cover the safety of care. That is the approach at the moment, but the impact of the change we are making is to embed current policy and practice. As my noble friend Lord Ribeiro has helpfully explained, without this change a future Secretary of State could in theory decide not to include patient safety requirements in future regulations. The Bill ties the hands of future Secretaries of State on this important matter. It would require a change to primary legislation to alter that. That has substantive significance as well as presentational significance.

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[Earl Howe]

The noble Lord makes some very good points. The duty to share information will, we trust, ensure consistency in the sense that it will make it clear when the duty to share applies. It is clear that there is a real commitment throughout health and adult social care to overcome the cultural barriers that Dame Fiona referred to. For example, the sharing of information for the purposes of an individual’s direct care is already required as part of the professional duties of health and care professionals, and sharing for direct care purposes can be undertaken in accordance with the common-law duty of care.

The department is already working with its national partners to offer practical support to local provider and commissioner organisations on information governance and sharing. For example, the department is partner to the Information Governance Alliance, a group of national health and care organisations which has been established to provide a single authoritative source of guidance and support on information sharing. I confirm to the noble Lord that the guidance will include specific examples and will be prepared in consultation with our key stakeholders.

Turning to Amendment 6, the NHS number helps to ensure that an individual’s health and adult social care history is readily accessible when they move along their care pathway. This will improve safety and the experience of care. The adoption of the use of the NHS number as a consistent identifier has been a long-standing government objective.

It may help if I explain a little about the purpose and use of the NHS number. An individual does not need to know their NHS number to get treatment. Conversely, having an NHS number does not imply entitlement to the free use of all NHS services. The NHS number helps to confirm the identity of patients and link health records. There are some electronically based services for which an NHS number is essential and from which a patient who objects to the number being shared may not be able to benefit—for example, as the noble Baroness said, screening programmes, choose and book referrals, and electronic prescriptions in primary care. In these instances, the implications of objecting may be serious, which underlines why the decision to opt out should always be considered carefully and discussed with professionals.

That said, there is an important principle at stake here. The Government are committed to empowering the individual. In the future, it will increasingly be the citizen who determines who has access to their data, with care professionals respecting their preferences. For that reason, the Bill provides that if an individual objects, or is considered likely to object, then no duty to share information will arise under these new provisions. I hope that that is a useful explanation for the noble Baroness.

I am pleased to reassure her also that the Bill will not have any effect on the existing systems to protect victims of abuse. The Care Act 2014 sets out clear duties on adult safeguarding. Under the Act, local authorities must make inquiries, or cause others to do so, if they reasonably suspect that an adult who has needs for care and support is, or is at risk of, being abused or neglected.

Statutory guidance will provide that the early sharing of information is key to providing an effective response where there are emerging concerns. Where an adult has refused to consent to information being disclosed, practitioners must consider whether there is an overriding public interest that would justify information sharing.

There are equally robust mechanisms in place to protect children. The Department for Education has produced statutory guidance entitled Working Together to Safeguard Children, which clearly sets out that professionals should share information with local authority children’s social care where they believe that a child is at risk of abuse or neglect. It states:

“Fears about sharing information cannot be allowed to stand in the way of the need to promote the welfare and protect the safety of children”.

Existing guidance on information sharing for practitioners and managers states that if a child is suffering or is likely to suffer significant harm, professionals should share information even if consent is refused or withdrawn. The interests of the child are paramount.

I agree wholeheartedly with the sentiment behind the amendment in the name of the noble Baroness, Lady Hollins. It is critical that an individual’s communication needs are identified and shared appropriately with those responsible for providing and commissioning care and services. This Bill requires the sharing of information where this information is,

“likely to facilitate the provision to the individual of health services or adult social care in England, and … in the individual’s best interests”.

An individual’s particular communication needs would be a good example of such information. This will be made clear in guidance.

The concerns that the amendment seeks to address reflect those Mencap has recently raised with the Department of Health. I am pleased to say that my officials have had constructive discussions with Mencap and we welcome its offer to help shape the guidance. Mencap welcomes the Bill as it has the potential not only to improve information sharing between health and social care, especially for people with a learning disability, but also has, in its words, the potential to “save lives”. I would add that, provided the patient or his or her attorney have consented to its inclusion, any information from a GP record that can be coded can be included on a summary care record. Work is already under way to expand the summary care record inclusion data set to include specific communication needs items.

[Lord Ribeiro]

My Lords, I thank the Minister for clarifying the issues around the consistent identifier. It is interesting that the use of the consistent identifier and the sharing of information was welcomed at Second Reading by the noble Lords, Lord Turnberg, Lord Willis of Knaresborough and Lord Hunt of Kings Heath. The noble Lord, Lord Hunt, confirmed that the Opposition were very supportive of sharing a patient’s information, which, as he said, was,

“clearly in the best interests of their patients”.—[Official Report, 6/2/15; col. 961.]

That slides me very easily and comfortably into Amendment 5 and the question of best interests, which, again, has been addressed. I must confess that I have always used, and continue to use, the term “best interest” without assuming that this can be used only about those without mental capacity, as defined by the Mental Capacity Act 2005. It is my understanding that in these clauses the phrase “best interests” assumes its general meaning and provides a relevant person with a duty to act in the individual’s best interest when providing information for direct patient care. That is my understanding of the term.

As regards Amendment 6, patient control and choice about how their information is used is the subject of wider government policy. I believe that what needs to be done in that respect has already been illustrated. It is about empowerment of the individual and giving them control over their own information. I also welcome the intervention of the noble Baroness, Lady Hollins, in highlighting a key piece of information in patient care. Her description of a patient who died after surgery for want of the right word when asked a question—the patient answered incorrectly, which led to a fatal outcome—was truly revealing. In my experience, it is critical that if an individual has particular communication needs, those who provide care or treatment should know about them beforehand.

I am confident that the requirements to share information in support of direct care in the Bill already encompass communication needs. The Minister commented that Mencap has sought reassurances that health professionals should become more aware of the ways in which people can communicate their health and care needs. I am sure that, from his statement earlier, work on this will take place to ensure that those concerns are met. With those comments, I hope the noble Baroness will be happy to withdraw her amendment.

[Baroness Finlay of Llandaff]

My Lords, I am grateful to the Minister for being so clear in addressing the issues that I have raised and for the supportive further clarification sought by the noble Lord, Lord Hunt, of Kings Heath. It will ensure that the term “best interests” is attributed only its ordinary meaning and not misinterpreted for the purposes of this Bill as meaning “best interests tests” as outlined in the Mental Capacity Act. I am also grateful that the guidance and the Explanatory Notes will be amended as both noble Lords have outlined. I appreciate the welcome of the noble Lord, Lord Ribeiro, for how the debate has gone and what has happened. I therefore beg leave to withdraw my amendment.

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[Lord Elton]

In fact, Reg Wells-Pestell, not Goronwy Roberts, was the Minister. I want to get that right for anyone who is old enough to remember and reads Hansard.

[Lord Ribeiro]

My Lords, the amendment tabled by the noble Lord, Lord Warner, seeks to extend the use of the NHS number to services that benefit children, particularly those in social care, and which protect them from abuse. The Minister addressed the amendments in some detail and I was pleased to hear the assurances he gave, which I hope will have an effect. But I also note that the noble Lord, Lord Warner, was pretty impartial in his criticism of both Front Benches, and the suggestion that they come together and provide some movement is something that perhaps could happen when we have the report from the Department for Education at the end of the year. I will leave it to the noble Lord to decide. He has already intimated that he will not be pressing his amendment.

[Lord Warner]

I just want to register something with the Minister. I am grateful for what he had to say, but the whole issue of trying to make progress in this area is littered with attempts at reviewing the information that is available on making the world a better place. As the noble Lord opposite has reminded us, we have to go back 40 years for the first really serious child abuse scandal, involving Maria Colwell, which came to light. Since then it has been 40 years of agencies, in case after bad case, failing to share information that would have saved a child’s life. As I said, 12 years ago the noble Lord, Lord Laming, said his piece on one of those cases and made it very clear that a common database was required, with a linked identifier.

It is no good the Department for Education crawling all over the ground again and finding 27 reasons why we should not do anything. We need some action. There is plenty of evidence about why a common identifier would make things a lot safer for children. They are pretty much the same arguments that you would use in relation to adults; they are not fundamentally different. The Government and the Opposition Front Bench need to understand what is going on around the country—it is happening in Birmingham—where the agencies are coming together in multiagency safeguarding hubs. But when they come together, they find that their data systems cannot talk to each other, even if they are in the same room, because there is no easy linkage between the different databases.

If we wish to make kids safe, we have to progress this issue quickly. Frankly, I am not wildly reassured by a DfE review by the end of this year in an area that is littered with information about the need to make progress. It is not just me; I think that many of those hard-working professionals I have talked about cannot see why the government bureaucracy—whoever is in government—cannot make some progress in this area. Having got that off my chest, I beg leave to withdraw the amendment.

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[Earl Howe]

My Lords, I very much hope that I can allay the concerns of both noble Baronesses and the noble Lord. In its report, the Law Commission recommended a consistent main objective for professional regulators and the PSA around patient safety. It also recommended two subsidiary objectives: maintaining confidence in the profession and proper professional standards and conduct. The Law Commission’s report describes this proposal as restating the existing legislative position that public protection is the regulators’ main objective. The Government’s view is that public protection is sufficiently important that it should be expressly adopted in the legislation.

The noble Baroness, Lady Pitkeathley, asked whether public confidence might conflict with public health, safety and well-being. In the example of the Professional Standards Authority identifying a poorly performing regulator, it is clear that the interests of public protection and public health, safety and well-being would require the PSA to take action. In this example, any argument that the objective of promoting and maintaining public confidence in the professions would require the PSA to conceal poor performance would clearly run counter to public protection. The objective of promoting and maintaining public confidence in the professions does not mean that the PSA or the regulatory bodies should be promoting the reputation of the professions generally. Rather, it is about taking action where there is a risk that confidence in the profession as a whole is undermined to the extent that it may deter people from seeking the treatment or care that they need and impact on public protection. This example highlights the fact that while the objectives are all linked to public protection, in practice they may not always necessarily be relevant, or relevant to the same extent in particular cases. It is not a case of one objective overriding another or preventing it being considered but ensuring that they are pursued only where they are relevant to public protection.

The Bill does not prioritise or weight one element of public protection over another. It is for the PSA to determine how it applies those elements in carrying out its functions in relation to the regulators and considering the issues of the case. My view is that health, safety and well-being will always be relevant to public protection when the PSA is carrying out its functions in relation to the regulators. It will be for the PSA to determine how to apply the objectives appropriately.

The noble Baroness asked whether the objective to promote and maintain public confidence might inadvertently lead the regulators to be less transparent in highlighting bad practice. Equally, that might lead to regulatory committees and panels punishing professionals who do not pose any threat to the public. If the actions of a doctor appear likely to reduce confidence in the medical profession and influence the decision of individuals as to whether to seek medical help at all, it may be right to take action. However, panels and committees will be asked to reach their own objective judgment as to whether particular acts or omissions would affect public confidence if no action were taken. A subjective view, uncritically influenced by public opinion or the media, would be an unacceptable basis for a decision.

Turning to the term “well-being”, the BMA has raised concerns with my ministerial colleague Dr Dan Poulter about how it would be interpreted by fitness to practise panels and committees. Well-being has been a long-standing and established feature of the legislation for three of the regulators. It encompasses those aspects of a professional’s role that may have an impact on individual patients but not directly impact on their health or safety. Dignity, compassion and respect are all important in delivering care, and it would not be right to disregard them.

It will be for the regulators to formulate and issue guidance for fitness to practise panels on interpreting and applying the objectives in practice, including the term well-being. The legislation makes clear that those objectives are considered only under the umbrella of public protection.

My officials will draw the regulators’ attention to those concerns should the overarching objective become law. That is in order to inform any guidance that will be needed to implement both this Bill and the secondary legislation for the GMC.

The noble Baroness, Lady Finlay, also asked about how we view the definition of “public” in the Bill. It of course includes patients and service users, as well as other parts of the collective public. I hope that that reassures the noble Baroness that the objectives in relation to well-being and public confidence will not be pursued outside the regulators’ objective to protect the public.

[Lord Ribeiro]

In following the Minister, perhaps I may deal, first, with “well-being”. At paragraph 3.20, the Law Commission’s report states:

“We disagree with the criticism of ‘well-being’. This term has already been incorporated without difficulty into the main duties or objectives of many of the regulators”.

Within that context, it feels strongly that that term cannot be misinterpreted.

The Bill introduces consistent objectives for the PSA and the regulators based on the proposals of the Law Commission’s review last year. Most of the professional regulators have some form of main objective. Although they are not consistently expressed they are generally to protect, promote and maintain the health and safety of the public. It is the health aspect with which the noble Baroness, Lady Pitkeathley, was particularly concerned at Second Reading. I think that that concern has been allayed today.

It is clear that public protection—by “public” I of course include patients—is sufficiently important that it should be adopted expressly in legislation. Defining public protection in terms of these three elements to be pursued by the regulators and the PSA as their overarching objective enables public protection to be considered in its fullest sense. That should give comfort and reassurance to the noble Baronesses who have spoken. With that, I hope that the noble Baroness will agree to withdraw the amendment.

[Baroness Finlay of Llandaff]

My Lords, I am most grateful to the noble Baroness, Lady Pitkeathley, for having expanded on and brought better definition to the points that I was trying to make on the amendments and for the clarification that we have had from the Minister and the noble Lord, Lord Ribeiro. I therefore beg leave to withdraw the amendment.