Health and Social Care Bill

Lord Walton of Detchant Excerpts

Monday 13th February 2012 Lords Chamber

[Lord Mawhinney]

My Lords, I spoke in favour of training and education at an earlier stage of the Bill, so I have no inherent antagonistic thoughts about the amendment moved by the noble Lord, Lord Patel. However, listening to him and to the noble Baroness, Lady Finlay, and the noble Lord, Lord Turnberg, it was quite clear that there is a financial cost attached to this amendment. They did not spell it out and I wish that the noble Lord, Lord Patel, had. My noble friend the Minister has already responded to the House’s concern about health training. Whether he is minded to accept or reject the amendment, can he tell us his estimate of its cost?

[Lord Walton of Detchant]

I support the amendment and will make a point about costs. As I said last week in a debate on education and training, since the health service began, the actual financial consequences of training specialists in all branches of medicine—surgeons, physicians, psychiatrists and all other specialists—have been the responsibility of the National Health Service. Many of us will remember the days of SIFT—the service increment for teaching—a financial increment that was given to hospitals and other organisations that provided postgraduate training at the same time as training undergraduate students. I have, I believe, an assurance from the Minister that that process is going to continue, which is extremely welcome. So I am not speaking primarily about finance.

However, I want to raise a point with the Minister that was touched on only superficially in the very helpful debate we had last week where the Minister tabled a series of very important and constructive government amendments and gave a number of very crucial assurances. I particularly want to raise the interrelationship between the health education authority and the regulatory authorities, which has not yet been clarified. The Explanatory Notes mention the importance of Health Education England working with professional regulators. I shall refer to the General Medical Council as an example because I was its president from 1982 to 1989, and before that, for seven years, chairman of its education committee. The fundamental point is that under the Medical Act, the General Medical Council’s education committee has the responsibility of ensuring,

“high standards of medical education and co-ordinating all stages of medical education”.

It is the regulator. If a new medical school is created, it has the authority to inspect it and consider whether its curriculum is sufficient. It has the authority to inspect the qualifying examinations of the medical schools in order to make certain that they are achieving an appropriate standard.

The fundamental point is that the GMC and the other regulators are not just stakeholder groups. Their statutory powers,

“provide independent assurance to patients, the professions and the service that national standards apply across the UK both in terms of the quality of medical training and the outcomes it produces”.

Of course, the important difference here is that Health Education England applies only to England, whereas the GMC and the other regulators are responsible for the oversight of education across the entire United Kingdom. What I seek from the Minister—formally, if I may—is an assurance that the activities of Health Education England will not usurp or attempt to usurp any of the statutory responsibilities of the regulatory authorities, which are already enshrined in law.

[Lord Kakkar]

My Lords, I support Amendment 13 in the name of my noble friend Lord Patel and Amendment 16, which again is in the name of my noble friend and to which I have added my name. This is the first time that I have spoken at the Report stage of the Bill and I remind noble Lords of my entry in the register of interests as professor of surgery at University College London, consultant surgeon to University College London Hospitals NHS Foundation Trust and fellow of the Royal College of Surgeons of England, which is one of the royal colleges that has decided critically to engage with Her Majesty’s Government with regard to the further passage of this Bill through its parliamentary stages.

The reason why there is such anxiety among so many bodies associated with the practice of medicine in our country as regards education and training is in no small part due to the fact that there was terrible trouble and a very unfortunate turn of events associated with the medical training application system—MTAS—some years ago. As a result of that, all those who have some responsibility for education and training are obliged to pay particular attention and scrutiny to any provision concerning the future of education and training for all healthcare professionals in our country.

Amendment 13 in the name of the noble Lord, Lord Patel, is very important. It brings together all those with responsibility for the commissioning and provision of healthcare under a single obligation to respond to the responsibilities of the Secretary of State for Health with regard to the specific question of education and training. There can be no doubt that all those who wish to engage in the provision of a national health service must be alive to their responsibilities in this regard. To have that commitment in the Bill would provide a very important opportunity to allay the considerable anxiety that might exist among the regulatory bodies, such as the General Medical Council, which the noble Lord, Lord Walton, mentioned, and the medical royal colleges to ensure that they have done their duty in terms of protecting a structured process for the delivery of education and training for the entire healthcare workforce.

Amendment 16 is very important because it deals with the establishment of Health Education England. At this stage, it is important to recognise the very proper and constructive way in which the Department of Health, the Secretary of State for Health and the Minister have engaged with the professional bodies with regard to education and training. It has been a remarkable process of discussion, which resulted in the important government-sponsored amendments that we were able to debate last week on the first day of Report and the important recognition that in creating Health Education England there is an obligation to bring together all the resources available for undergraduate training in the healthcare system and for postgraduate education and training.

Is it absolutely the intention that all three funding streams—SIFT, MADEL and MPET—will come together as a single budget for Health Education England at the time of its creation and that that budget will be spent by HEE through local education and training boards to engage a variety of providers at a local level in discharge of responsibilities for education and training in a postgraduate sense and to maintain the additional resources available in clinical environments—primary, secondary and tertiary care—for the continued undergraduate education of our medical and dental students and other healthcare professionals?

It is also important for your Lordships to understand how Health Education England will be composed. What will be the process for appointment to HEE once it is established, potentially first as a Special Health Authority later this year? Will the composition and membership of HEE include representatives from medical royal colleges and other organisations, such as the regulators and so on? Will HEE be responsible for the appointment of the chairs of the local education and training boards? There is particular concern with regard to the need to have independent chairs of local education and training boards. It is vital not only that at the local level these boards have appropriate provider, employer, patient and trainee representation, but also that their deliberations are conducted in a transparent fashion. This can be done only if the chairs are indeed independent of all the interested parties.

There is a further question with regard to the relationship between local education and training boards and the proposed academic health science networks. Do Her Majesty’s Government have a view about that? It is particularly important because a process is ongoing at the moment for the designation of 12 or so additional academic health science networks in the country. Those broad networks will have an opportunity to have substantial employer and provider representation, encompassing universities and NHS providers. It would be useful to understand their potential relationship with local education and training boards. Then there is the question of the future of postgraduate deans. Again, this is a matter of detail, but it is important in understanding how the structure of independent deaneries will work in a future system and, in particular, what relationships the universities will have at the level of provision of local training and education.

I think it is well recognised in your Lordships’ House that the Government have come a very long way on the question of education and training, which is much appreciated, but some further detail is important to allay anxieties and to ensure that the best possible advice, expertise and knowledge can be brought to bear in creating a new system for education and training for the future that does not result in unintended consequences and some of the disastrous outcomes associated with the previous MTAS scheme.

--- Later in debate ---

[Lord Harris of Haringey]

My Lords, my name is down in support of the amendment. I want to make it clear at the outset that it is substantially different from the amendment put forward in Committee and has taken on board a lot of comments and points made during the helpful debate at that time.

As far as I am concerned, the origins of this go back to my meeting 18 years ago with William Powell about the death of his son, Robbie, when I was director of the Association of Community Health Councils. Mr Powell was concerned about the failure of the system to give him and his family answers as to why his son had died. Mr Powell is still campaigning for a change in law to place a requirement for some sort of duty of candour. Interestingly, that case eventually reached the European Court of Human Rights in May 2002. In its judgment, the court made it clear that at present there is,

“no duty to give the parents of a child who died as a result of their negligence a truthful account of the circumstances of the death, nor even to refrain from deliberately falsifying records”.

Most of your Lordships would find that a pretty shocking and appalling statement in this day and age, but that is where we are as far as the law is concerned and it remains a continuing consideration.

In September, as chair of the Independent Advisory Panel on Deaths in Custody, I had a listening day with a group of families whose relatives had died while detained under the Mental Health Act. Those families reported a lack of information from NHS trusts. One family reported that they,

“were unaware of any investigation, everything was released in drips”.

Another family claimed:

“They didn’t disclose anything, it was a battle to the end”.

Another said that

“the shutters came down as soon as I started asking questions”.

One parent explained that it was like being,

“in a void whilst waiting”.

These are parents or families of people who have died while in mental health care.

Even more alarming for families was the misinformation frequently provided to them. They thought that there had been a whole series of flaws in the way that the cases of the deaths of their loved ones were investigated. One said:

“The first time I had opportunity to speak to anybody was the consultant. Nobody told me about the investigation. I told the consultant that I wanted a meeting with nurses and see what happened … Consultant and matron came for the meeting with no pen and paper. I was the only one taking notes. After that the matron told me that she would try to get answers for me. I asked how she would remember 20 questions which I asked as she was not taking notes. It took three years for them to give this evidence”.

The problem is that most families feel that the investigations are not independent, and many of them feel that they are presented with lies. The problem is that the existing system does not work. It is not adequate as it presently stands.

The amendment has been significantly changed. It now relates explicitly to organisations rather than individual practitioners. The background is that there is currently no statutory requirement for organisations that provide NHS services to tell a patient, carer, or representative when something has gone wrong during their care and treatment that causes harm. The issue is left to guidance and a non-binding requirement in the NHS Constitution to have regard to the principle of openness. This has allowed cases to occur where NHS organisations have withheld such information from patients, delayed its release or, worse still, actively covered it up.

I understand that the Government have agreed that a duty of candour is required, but their preferred route is a contractual duty built into the standard contracts between commissioners and some providers of NHS services. Patient organisations and others do not believe that that is sufficient. It would not include all NHS providers—for example, GPs, dentists, pharmacists, and so on do not have such contracts—and it would not create access to the sanctions which the Care Quality Commission has at its disposal. Under the Government's proposal, as the noble Baroness, Lady Masham, said, the duty would apply only to incidents which are already being reported through official systems, so it would be useless in preventing cover-ups.

The amendment would require the Secretary of State to create a statutory, enforceable duty of candour by amending the registration regulations of the CQC. All healthcare providers would then have to comply with them to be registered. Of the issues raised in Committee, the most important, raised by several noble Lords, including the noble Lord, Lord Winston, who I do not think is in his place at the moment, and the noble Lord, Lord Walton, was that that might overlap or conflict with the clinicians’ professional duties and the existing arrangements under the General Medical Council and other codes of conduct organised by regulatory bodies. The proposal in the amendment is for a statutory duty of candour placed on organisations, not on individual health professionals. It therefore complements, rather than duplicates or confuses, the duties in health professionals' codes of conduct.

Indeed, Harry Cayton, the chief executive of the Council for Health Regulatory Excellence, has said:

“We support the introduction of a duty of candour in the CQC’s registration requirements, which would mean that the ethical responsibility of health professionals would be shared by organisations delivering healthcare services”.

Frankly, at the moment, doctors and nurses can be put in an impossible position where they would want to honour their ethical and professional obligations but are told by managers and lawyers within the organisation for which they work not to be fully open with patients. That would put them in the position of a whistleblower. This duty would remove that conflict for those individual professionals.

Of course, the amendment is not designed to get in the way of culture change. Several noble Lords said that we want culture change. No one disagrees. The point is that this will support the process of culture change. There is no argument for not setting out in regulations what is by any reasonable assessment as important and essential a standard of quality and safety as the others already set out in CQC regulations.

[Lord Walton of Detchant]

In relation to candour, the noble Lord may know that the General Medical Council published guidance just two weeks ago making it incumbent on doctors not to sign a contract or agreement that prevents them giving information which might be detrimental to the organisation that employs them. In other words, gagging orders are no longer accepted by the GMC as being part of a contract into which doctors can enter.

[Lord Harris of Haringey]

I am grateful to the noble Lord, Lord Walton, for that. It is an extremely important step forward and it recognises that there is an existing problem that requires the GMC to take that stance. I think that there is a distinction between gagging clauses and the sort of persuasion and pressure that may be applied to clinicians behind the scenes under such circumstances. This amendment focuses on the organisation’s responsibility and on how the managers and lawyers within an organisation should meet those obligations of candour.

I know that there has been some concern—I think that the Minister has expressed it at various points—about whether the CQC would be able to cope with regulating this duty of candour. It is worth making it clear that there is no question of asking the CQC routinely to monitor every incident with patients; it is simply about the expectation that it will be there as the backstop.

There is already a duty in the CQC’s statutory registration regulations to report to the CQC incidents that cause harm, but it is a duty which requires the organisation to report the incident to the CQC and not to the patient. It is rather anomalous that there is an obligation requiring an organisation to report something to the CQC but not to the patient at the same time. Quite clearly the CQC should have this information and be able to respond to and deal with it.

The point is that the CQC has always said that it could regulate this requirement if the Department of Health so wished. I think that there has been some recent correspondence with the Department of Health which has recognised that the CQC is currently under considerable resource constraints. However, I have seen copies of e-mails released under the Freedom of Information Act—