Health and Social Care (Safety and Quality) Bill

Lord Turnberg Excerpts

Friday 13th March 2015 Lords Chamber

Moved by

[Lord Turnberg]

1: Clause 1, page 1, line 7, leave out from “that” to “avoidable” in line 8 and insert “service providers carrying out regulated activities take steps to reduce”

[Lord Turnberg (Lab)]

My Lords, I am grateful to the noble Lord, Lord Ribeiro, and to the Minister and his team for spending some time last week discussing the Bill with us. That was helpful but I fear that I am still very concerned about the potential impact of the Bill in its current form.

I say at the outset that I will not be arguing against the case that we should be doing everything we possibly can to avoid harming patients; nor am I arguing against the underlying purpose of the Bill, which I am convinced is meant with the best possible motives in mind. But we know that even in the best hospitals occasional mistakes will be made and someone will be harmed, and the question we have to face is whether legislating for mistakes never to be made is the best way of achieving that purpose.

During our discussions it was helpful to hear that the new regulations will apply only to institutions, such as hospital trusts and care homes, and not to individual healthcare workers—nurses, doctors and other carers. They, as we know, are regulated by other bodies and held to account by them if they cause harm. But it is not at all clear that that is the intention of the Bill as it is currently written. Indeed, it was pretty obvious at Second Reading that much of the debate focused on individual surgeons who operated on the wrong leg—regrettable and devastating though that may be—but now we are told that that is not what the Bill is about. We even heard from one noble Lord details about which hernia he was having operated on and you cannot get much more personal than that.

We now know that the Bill is about ensuring that all the precautions necessary to avoid harm are taken by institutions. It is obvious that that is where we should be aiming our efforts to try to avoid those terrible stories that we hear about of neglect and abuse, particularly of elderly people, in hospitals and care homes. These are far too common for comfort. They are largely due to institutional failings and that is where we need to aim the Bill. But the problem is that it is not clear in the wording of the Bill that it applies to institutions and not individual care workers. I fear it is not much clearer in the proposed regulations, which I have now had a chance to look at.

My anxieties are increased, rather than the reverse, when I read those regulations, where there is much reference to individual persons providing the care—for example,

“the things which a registered person must do to comply”;

there is then a long list of things they must do “to mitigate such risks”. The regulations also,

“make provision as to the persons who are fit to carry on a regulated activity”.

I have been told that “a registered person” refers to a trust manager or chief executive, not someone registered with the GMC, for example. But I fear if that is the case the room for misinterpretation is too great.

My first amendment tries to make it absolutely clear that the Secretary of State’s duty applies to institutional service providers as a whole, not individual healthcare workers. I have also included in the amendment the proposal that the responsibility of institutions is not to produce zero harm but to aim at a continuing reduction in harm over time. That at least is in the realm of the possible, which is what legislation should be about. My second amendment is designed to ensure that institutions take this responsibility very seriously by regularly monitoring the effectiveness of the systems of harm reduction that they have put in place.

There is yet another problem with the current wording of the Bill, and that is the possibility of the harm that the Bill itself could cause if it is not amended. Let us suppose that we can be convinced by the noble Earl that the Secretary of State’s duty applies to institutions, not individuals. We can then easily imagine that fearful hospital trusts, with the Secretary of State and CQC breathing down their necks and trying to ensure that absolutely no avoidable harm is ever inflicted on a patient, will place a severe burden on their doctors and nurses. They in turn will be very cautious indeed about any medical innovation they might consider offering to their patients. The whole atmosphere that we are desperate to introduce into the NHS of an innovative service keen to take up new ideas and treatments will be frustrated.

Furthermore, it is not too difficult to imagine that a culture and oppression could follow—I cannot believe that that is the intention of the noble Lord, Lord Ribeiro, or of the Minister. We need a culture of openness and willingness to admit mistakes and those errors of judgment that are bound to be made, so that lessons can be learnt. I am afraid that errors are inevitable even in the most safety-aware trusts and care homes, yet fearful employees may feel that they are better off covering up rather than admitting to their mistakes.

--- Later in debate ---

[Earl Howe]

Not for the first time, my noble friend Lord Elton comes to my aid. That is exactly right.

[Lord Turnberg]

My Lords, I listened extremely carefully to what the noble Earl has just said and I am grateful to him for clarifying what a registered person is—I think that it is the word “person” that gets very personal here. I remain somewhat concerned about whether legislation to stop avoidable harm is a feasible proposition.

[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.

--- Later in debate ---

[Lord Turnberg]

My Lords, I apologise to the House and to the noble Lord, Lord Ribeiro, for leaping to my feet in my eagerness to respond.

I listened very carefully to the noble Earl and to the noble Lord, Lord Ribeiro, both of whom were able to reassure me to an extent about the meaning of the term “registered persons” and to whom that refers, so I am happy about that. Incidentally, I am also happy that there should be a duty that the Secretary of State “must” put forward regulations.

However, the question remains, is legislation to stop avoidable harm a feasible proposition? I remain unhappy about the possibility that this will result in excessive caution, lack of will to innovate in clinical practice and the potential to drive underground the bad behaviour of some doctors who may not wish to admit to it. Therefore, there is still some worry there.

I am particularly concerned after having spent some time going through that rather weighty document, the CQC’s guidance notes, which are particularly heavy-handed. They are extremely clear and dogmatic, and rather light on how to achieve what it wants to do. They seem designed to inhibit any innovative practice, and I fear that the document itself, following on from this legislation, will be unacceptable to people in the field.

I take the point, incidentally, about not having training, education and supervision in the Bill, even though I know that that is critical to the way in which this whole programme—what we all want—can be delivered. That is entirely dependent at the local level on people who will oversee and ensure high standards of care in their institutions. Therefore, clearly this is an important element which comes out in the CQC guidance, but not as strongly as one would wish. I noted that the noble Earl said that he would take away the possibility of looking at the CQC guidance—I am not sure whether I understood that correctly, but I hope that that is the case.

For the moment, as I have expressed, I am still somewhat unhappy about the nature of this bit of the legislation. I will ponder further on what has said. I beg leave to withdraw my amendment.

Amendment 1 withdrawn.