Health and Social Care (Safety and Quality) Bill

Lord Warner Excerpts

Friday 6th February 2015 Lords Chamber

[Lord Warner (Lab)]

My Lords, it is a pleasure to follow the noble Lord, Lord McColl. I reassure him that before my NHS hernia operation two or three years ago I was very appropriately marked up in indelible ink as to where it should take place. To my pleasure, I found that it had taken place at that same spot—there may be others who thought that perhaps the surgeon should have moved somewhere further north and east.

I had originally told the noble Lord, Lord Ribeiro, that although I wanted to raise issues relating to children in the Bill, I was unlikely to want to table amendments. However, that was before I had read the Bill as carefully as I should have done and certainly before I had considered the amount of briefing that we have had, particularly about Clause 1, which I did not read until yesterday evening. These concerns have been enhanced by the points made by my noble friends Lord Turnberg and Lady Pitkeathley.

First, I will say a few words about children. In doing so, I declare an interest as the Secretary of State for Education’s children’s commissioner in Birmingham City Council. I should make it clear that my remarks are not based on that experience, although it has brought home to me the growing volume of children in need and at risk that many local authorities, health bodies, police and schools are having to deal with. It has brought home the importance of the flow of information between those agencies if children are to be protected.

I very much welcome the provisions in the Bill on consistent identifiers across health and adult social care. However, if this is being done for adults, why are children left out of the Bill? It is yet another example of how often, under all Governments, children get lost sight of in terms of the needs that must be addressed. They are less able to answer back and pressurise for change in some of these areas. It is of great concern, given what we know about children in need and at risk, that we have again in this piece of legislation forgotten about or failed to address the needs of a common identifier in the area of children’s services. I recognise that some progress has been made with the child protection information-sharing project which, if properly done and developed, would enable healthcare staff to see whether a child attending unscheduled care services had a child protection plan or looked-after children status. That is progress: it is better than where we were. Yet it is a long way from what is promised in the Bill—a single identifier for adults. It is a long way from that for children.

It is worth reminding the House of a sterling report by the noble Lord, Lord Laming, in 2003, after the Victoria Climbié disaster. In recommendation 18, he said there should be a proper, common identifier database of all children under 16 in the country, which agencies could know about and have access to when they came across children. This Government decided to abort the work taking place on that. That was a mistake. We are now, yet again, failing to deal with the issue of a common identifier for children that enables all agencies—not just health and care ones—who have a duty to protect children at risk and in need to do so. We need to think a lot more about why, if we are to do this for adults, we will not do it for children.

A number of bodies working in this area have already said to parts of the government machine, “In this age of digital technology, why do we not even consider producing a web-based database for children that could use a unique identifier to help the agencies do a better job?”. It is no good wringing our hands over child protection and exhorting agencies to work better together in this area if we then neglect to provide them with the tools and ability to access those data that would protect children. I regard that as a missed opportunity in this particular legislation.

I turn briefly to Clause 1, with particular reference to the letter and briefing mentioned by other noble Lords that came from the Health Foundation, drawing very much on the work of the Berwick advisory group. I recognise that the intentions of the architects of the Bill are entirely well meant. However, the duty in Clause 1 would, I suggest, go against all the evidence of what is required in the delivery of safe health and care services. I do not want to quote at length from that letter, which other noble Lords have mentioned. But I will put two quotes from it on the record because they summarise the problems with Clause 1.

The first quote is from the report of the Berwick advisory group, which concluded:

“While ‘Zero Harm’ is a bold and worthy aspiration, the scientifically correct goal is ‘continual reduction’. All in the NHS should understand that safety is a continually emerging property, and that the battle for safety is never ‘won’; rather, it is always in progress”.

The second quote is from a recommendation:

“To introduce this new law would not be supportive of the Berwick Advisory Group’s key recommendation for ‘the NHS … to become more than ever, before a system devoted to continual learning and improvement of patient care, top to bottom and end to end’”.

If we are not going to listen to people who put a lot of effort into study in this area and take account of what they say in framing legislation, that is a poor show. If we do not think that it is worth giving the time to scrutinise the legislation and pay attention to views being offered in a very professional and politically independent way, that is an even poorer show. We cannot rush through legislation when we choose not to give enough time to draw on that expertise and use that information.

It is a shame that we are trying to rush on with the Bill in this way. We need to stand still and think about how we can give proper time to a well intentioned piece of legislation. If not, if people want to rush on with this, they should consider taking out of the Bill the provisions that are controversial and not generally agreed.

There is a lot of support for a common identifier, if the Government want to put that on the statute book. I say “the Government” because although the Bill is a Private Member’s Bill, it is being given every encouragement by the Government. Like my noble friends, this is the first time that I have ever been approached by a civil servant to encourage the progress of a Private Member’s Bill, almost implying that I am somehow failing in my duty if I do anything to impede it. That is not the way to proceed. The Minister needs to give us some assurances about what is the Government’s position on and attitude to the Bill and whether the Government want to provide some of their time to give us proper scrutiny of the legislation in Committee.

I hope that the noble Lord, Lord Ribeiro, will not take that as a personal attack on him; it is not. He is honourably trying to progress the Bill for good reasons, but we must ask some questions about the Government’s position and whether they will provide the time to enable us to have proper scrutiny of all parts of the Bill.

--- Later in debate ---

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)]

My Lords, I very much welcome the debate on this important Bill. I thank my honourable friend in another place, Jeremy Lefroy, and my noble friend Lord Ribeiro for their stewardship of this Bill to improve the safety of patients and protection of the public. A productive debate was had in the House of Commons, with support for the Bill from all sides. Parliamentary time is limited. Speaking for the Government, I hope that we can get this Bill on to the statute book as soon as possible.

We must never forget the terrible events that occurred at the former Mid Staffordshire NHS Foundation Trust, which demonstrated what can happen when providers put other priorities before safety. As highlighted by the Francis inquiry report, we have much to improve in patient safety and to avoid a repetition of those tragic events. The Government have thrown their full support behind this Bill in our continuing efforts to improve patient safety and the quality of care. I turn now to the Bill and each of its clauses. I will address most of the concerns from noble Lords; I will write on the others that I am not able to cover.

Safety of care must be the focus of healthcare providers at all times. Regulation by the CQC plays a vital role in assuring that providers are focused on safety and are taking steps to reduce avoidable harm. Section 20 of the Health and Social Care Act 2008 currently provides the Secretary of State with a power to include safety in registration requirements with the CQC, but this is no more than a discretion. It would equally be in the gift of the Secretary of State to put a regulatory system in place for providers of health and adult social care that did not cover safety. The first clause in the Bill will remove that discretion and instead place a duty on the Secretary of State to make CQC registration requirements include safety of care. This is consistent with the Government’s continuing effort to reduce avoidable harms and to ensure services are provided in a safe way.

Parliament has recently passed new requirements for registration with the CQC, which include new fundamental standards. Regulation 12 of the fundamental standards states that,

“care and treatment must be provided in a safe way”,

and it sets out a number of steps that providers have to take in order to reduce the risk of unsafe care. Where a provider fails to meet this registration requirement in a way that results in avoidable harm to a service user, the CQC will be able to bring a prosecution against that provider. It is the Government’s sincere intention that the CQC will make use of this important power to hold providers to account for the most serious failings in care.

It is the Government’s view that this new fundamental standard, which comes into force in April, already meets the requirement of the Bill that we are considering. It is important to emphasise that the Government do not intend to amend the registration requirements in response to Clause 1.

I am aware that concern has been expressed regarding the use of the phrase “avoidable harm” in this clause. The Health Foundation, for example, as we have heard, has argued that Clause 1 will draw time away from understanding risk and preventing harm. I do not share that view. Part of being able to assess the risks of receiving care and treatment in order to prevent harm in future involves examining past performance and understanding the causes of past incidences of harm. It is vital that an organisation can learn from its errors in order to improve services to patients and service users.

Furthermore, I say to my noble friend Lord Willis and to other noble Lords that whatever the perceptions, “avoidable harm” equates not to “zero harm” but to harm that can reasonably be avoided. For example, where harm is an inherent part or risk of a regulated activity and it is in the best interests of the patient to receive that regulated activity, this clause would not seek to prevent that activity. However, in providing the service in question, the provider should still take reasonable steps to prevent any harm that is avoidable, such as harm from the use of unclean instruments. I say to the noble Lord, Lord Warner, that this is exactly about providers seeking a continual reduction in harm, given the intrinsic risk that exists in many treatments.

I hope that noble Lords will support the objective enshrined in this clause of causing no avoidable harm. This clause places a duty on the Secretary of State to impose requirements that he,

“considers necessary to secure that services provided in the carrying on of regulated activities cause no avoidable harm to the persons for whom the services are provided”.

The duty on providers is not imposed by this clause: rather, it will be imposed by the regulations that are issued under this clause. I perhaps need to emphasise that to the noble Lords, Lord Turnberg and Lord Hunt. The regulatory levers are already in operation through the CQC registration requirements on the safety of care. The duty set out in the Bill will not change those regulatory requirements. Indeed, from April a regulated provider may be prosecuted by the CQC if the way in which it provides care or treatment causes avoidable harm to a patient or service user, so this is already the case.

The noble Lord, Lord Young, referred to following best practice. The CQC can take relevant best practice into account when assessing a provider’s performance against registration requirements and in reaching a judgment about rating services. Indeed, the CQC’s guidance to registered providers of health and adult social care about complying with the regulations will point to such best practice.

Turning to Clauses 2, 3 and 4, the sharing of relevant information in a timely and accurate manner facilitates the provision of integrated care and treatment, tailored to an individual’s needs and wishes. This information sharing is essential to the delivery of safe and high-quality care. Dame Fiona Caldicott, in her review of information governance, found a culture of anxiety that prevents information sharing, and the current legislative landscape was found to be a contributory factor. The review recommended that the duty to share information should be as important as the duty to protect patient confidentiality. The information-sharing provisions in the Bill seek to create parity between the need to protect information and the need to share it as part of care.

The second clause in the Bill will place a duty on providers and commissioners of publicly funded health and adult social care to record and use a consistent identifier in health and care records and correspondence. This duty will apply only in the best interests of the individual patient and in the direct provision of their care. A long-standing priority of the Department of Health has been to establish the universal use of the NHS number as a consistent identifier when individuals move between care providers. This will support the integration of medical records, reduce errors and facilitate the co-ordination of care. It is our intention that the NHS number will be specified in regulations as this consistent identifier. Others in the debate referred to the national insurance number, but the NHS number is already a well established identifier and the proportion of people in England without an NHS number is very small. Of course, the number of those without a national insurance number is rather greater.

The noble Lord, Lord Turnberg, asked whether this should not apply also to the private sector. The duty to use the NHS number applies only to providers and commissioners of publicly funded health and adult social care. This means that it will apply to NHS commissioners, local authority commissioners and providers of health or adult social care that are public bodies, or are contracted by an NHS or local authority commissioner. Private sector providers would be subject to the duty only in respect of care they provide that is made pursuant to contracts with NHS commissioners.

The third clause in the Bill would place a duty on providers and commissioners to share information. Where it is in the patient’s best interests, providers and commissioners within scope will be required to share relevant information with staff within their organisation, and with other providers and commissioners directly involved in that person’s care. As my noble friend Lord Ribeiro explained, this will reduce the burden of moving between care settings and having to tell your story over and over again. This is especially true in the case of older people, and people with dementia and other complex conditions. It is the intention of these clauses that using a consistent identifier, and having a duty to share information, will help to ensure that health and care professionals will have the information they need to deliver high-quality care. I must stress that the duties within the Bill are strictly limited to the sharing of information for the purposes of direct care and only in the individual’s best interests.

Turning to Clause 4, these duties will not extend to providers and commissioners of children’s social care or the providers and commissioners of children’s healthcare, for which the Department for Education is responsible. I know that concern has been expressed about this exclusion, not least by the noble Lord, Lord Warner. I understand those concerns. Requiring children’s education and social care settings to use a single identifier would extend the scope beyond that of the Health and Social Care Act 2012, which this Bill seeks to amend. As the noble Lord knows, the statutory framework for children’s social care is different, with the DfE the lead department and Ofsted the regulator. Responsibilities have already been placed on professionals and agencies working with children to share information, particularly where there are safeguarding concerns.

There may be benefits in extending the use of a common identifier from the NHS to wider children’s services but, as yet, these benefits have not been assessed against the costs and burdens on local authority children’s services. Implementing a duty to use the NHS number could create significant burdens on schools, which would have to collect and record NHS numbers from all pupils when they enrol in the school. That is why the Department for Education has committed to undertaking an evidence-gathering exercise to fully understand what the impact of using a consistent identifier would be for these types of provision. This exercise is expected to report by the end of the year.

I now come to the fifth clause and the schedule, which will bring in a consistent overarching objective for both the Professional Standards Authority and the regulators of certain health and care professionals, including dentists, nurses, midwives and opticians. This will ensure that public protection is at the heart of what the Professional Standards Authority and these professional regulators do. This overarching objective of public protection will involve the pursuit of objectives in relation to protecting, promoting and maintaining the health, safety and well-being of the public, and promoting and maintaining public confidence in the professions covered by the Bill and proper professional standards and conduct for members of those professions. This measure will also ensure that regulatory body panels dealing with the disposal of fitness to practise cases—that is, making a final decision or considering appropriate sanctions—will have regard to that overarching objective.

The noble Baroness, Lady Pitkeathley, and my noble friend Lord Willis expressed disappointment at the lack of a government Bill on professional regulation, and I think that that disappointment is widely shared. We of course welcome the law commissions’ 2014 report but, in the absence of a government Bill to implement its recommendations in this Parliament, we have taken the opportunity to consider the report and to work closely with the regulatory bodies and the PSA to build on the important work that the law commissions have done. We accept the vast majority of the recommendations and the Government remain committed to legislate on this important issue at the earliest opportunity when parliamentary time allows. I am therefore particularly pleased to throw the Government’s full support behind this Bill, which seeks to implement in part and for some of the regulators two of the law commissions’ recommendations.

The noble Baroness, Lady Pitkeathley, asked how the PSA can have an objective to promote confidence in the professions when one of its functions is to uncover poor performance. Let me explain this a little further. Under the new overarching objective, the PSA and the regulators will have to act in the interests of public protection. The reference to maintaining public confidence is bounded by this overarching objective of public protection and does not mean that the PSA or the regulators should be actively promoting the reputation of the professions, as this does not necessarily serve public protection. Rather, it is concerned with conduct, performance or behaviour of individual members of a registered profession in so far as this threatens to undermine confidence in the profession as a whole, to the extent that people may be deterred from seeking the treatment or care that they need.

It is clear to me that a robust and transparent way to challenge regulators’ decisions, while it may call into question decisions in individual cases, can only contribute to maintaining wider public confidence in the professions as a whole. In some instances, that may mean that poor performance is uncovered. Sometimes it is necessary to do this to increase public confidence in the professions—and of course that is only right. This is not about requiring the PSA to maintain public confidence in individual professionals or even in the regulators, but confidence in the professions. I hope that that is helpful to the noble Baroness.

The overarching objective does not create any additional functions for the PSA. The PSA is an independent body which oversees the work of the nine regulators of health and social care professionals. Its functions remain unchanged and include auditing investigation stage decisions of the regulators’ fitness to practise procedures, referring final fitness to practise disposals to the relevant High Court where necessary and reporting on the performance of the regulators.

Under this Bill, while discharging particular functions in relation to the regulators—that is, promoting best practice in professional regulation, formulating principles relating to good self-regulation and encouraging co-operation between the regulators, and between them and other bodies that exercise corresponding functions—the PSA must have in mind the overarching objective of public protection. This may involve the PSA, in its role as overseer of the regulators, taking such appropriate actions as may be available to them in the circumstance that regulators have not acted in accordance with their own overarching objectives.

I know that the PSA is particularly concerned with consistency in the legislation governing regulation of health professionals. Ensuring consistency of purpose in professional regulation and how it is overseen through the introduction of a consistent overarching objective was a key recommendation made by the law commissions in their review of regulation of health professionals published last year.

I also know that the department and the PSA share the common principle that any legislative change must have public protection at its core. I would just say that the definition of “public” in the Bill encompasses patients, users of healthcare and social care, and,

“other members of the public”,

as defined in the PSA’s existing objective. I say to the noble Baroness, Lady Pitkeathley, that my officials are happy to continue the discussions which I know have been conducted recently in order to give any further clarification that might be helpful. As the Government set out in our response last week, we support this principle and we hope to see public protection placed clearly and firmly at the heart of professional regulation through this Bill and through parallel secondary legislation for the GMC, which will shortly come before this House.

I should like to clarify the effect of Clause 5 and the schedule for my noble friend Lord Willis. The Bill introduces a duty on regulators’ panels and committees. It does not affect the regulators’ fitness-to-practise processes. My noble friend mentioned the NMC’s fitness-to-practise caseload. I reassure him that the department has recently taken forward secondary legislation in relation to the NMC to help it to carry out its fitness-to-practise and registration functions more effectively. I am happy to write to my noble friend if he would like further and better particulars.

At the risk of overstaying my welcome at the Dispatch Box, I hope that I may be allowed to cover briefly a point which arose as the Bill passed through the House of Commons and which I know is of concern. The BMA has raised concerns about the requirement for fitness-to-practise panels and committees to consider “public confidence” when making final decisions about the application of the term “well-being”. I understand that the BMA recently had productive discussions with my honourable friend the Parliamentary Under-Secretary of State for Health, Dr Dan Poulter, and has been much reassured by the intention for the overarching objective to be set out in secondary legislation for the GMC and in this Bill for other regulators. Indeed, the BMA wrote to my honourable friend yesterday to confirm this and to seek further assurances about the form that guidance might take and how it might clarify how regulators’ panels and committees should apply the overarching objective in practice, particularly the interpretation of the terms “public confidence” and “well-being”. These concerns relate particularly to issues raised by a recent GMC consultation on sanctions guidance.

Noble Lords will understand that the GMC’s handling of fitness-to-practise cases is not within the scope of this Bill. However, these issues are likely to be relevant to the other regulators who will be subject to the new, overarching objective. Of course, I cannot say on behalf of the regulators how they should give guidance on their internal processes, but I will ensure that my officials raise these issues with the professional regulators when considering the implementation of the objectives, as part of both this Bill and the GMC legislation, and can confirm that the GMC will seek views on implementing its secondary legislation through a public consultation.

I think that that is enough from me. I will of course write to noble Lords, as I have promised, on other matters.

[Lord Warner]

Will the Minister clarify something that he said in relation to what I said in my speech? He said that the Bill cannot cover children in relation to health and social care. I have just read the Long Title and the Title. I can see nothing there that specifies particularly adults or excludes children. I would welcome it if he could write to me to explain what the legal judgment is as to why an amendment that relates to health and social services only—not police, not education—should not be included in the Bill in respect of children.

[Earl Howe]

I would be happy to do so.