Health and Social Care (Safety and Quality) Bill

Lord Warner Excerpts

Friday 13th March 2015 Lords Chamber

[Baroness Finlay of Llandaff (CB)]

My Lords, I also have an amendment in this group. My intention is very similar to that of the noble Lord, Lord Turnberg, who has just spoken. I, too, state categorically that I do not believe that harming patients is acceptable. Pressure sores, neglect of patients, hospital-acquired infections and so on are not acceptable, and we should aspire to eliminate avoidable harm from our systems in healthcare. However, when we legislate, we must be careful that our wording is accurate, clear and does not raise the probability of unintended consequences. It is that which concerns me, hence my amendment.

The Berwick advisory group has advised that the correct goal is the continual reduction of harm, because patient safety experts report that zero harm is impossible, that cultures must be addressed to reduce harm, and that that is where resources should be focused. We must ensure that open, honest and transparent working cultures exist across the NHS, and that the clause does not inadvertently inhibit innovation, which often involves taking controlled risks, and does not stifle open discussion and reporting of errors. We must not legislate in a way that seeks blame and reverses our move towards such an open culture.

That is why I have suggested that the clause be retitled “Reducing harm in care”. The amendment would amend the National Health Services Act 2006 to include among the Secretary of State’s duties,

“the continuous reduction of avoidable harm”.

Given the time and progress of the Bill, can the Minister confirm that any subsequent regulations will be consulted on and be subject to affirmative resolution?

Can the Minister confirm that the duty in Clause 1 applies to organisations overall rather than to an individual practitioner, who may find himself or herself working in an uphill struggle to decrease harm in a poorly run organisation? As the noble Lord, Lord Turnberg, outlined, my concern is that such an individual could be scapegoated and hung out to dry by such an organisation unless it is absolutely clear that the onus of responsibility in Clause 1 rests on the provider organisation to have appropriate infrastructure in place to reduce avoidable harm. Can the Minister confirm that it is all organisations with which the NHS contracts in any form that must have a harm reduction policy, including private and voluntary sector care organisations, and that this must go across all health and social care?

Harm reduction must recognise the need to take risks at times with the intention of achieving a good outcome. Paralysis caused by risk-averse cultures is beginning to pose a great risk to patients, because not acting or taking the guidance or protocol-type approaches to care can sometimes pose a greater risk to an individual patient with complex individual needs than acting in a way that is outside what might be considered to be the normal confines of activity.

[Lord Warner (Lab)]

My Lords, I support all four amendments in this group, but I added my name to those of my noble friend Lord Turnberg. I speak from the perspective of someone who nearly 12 years ago as a Minister approved a new system to improve patient safety by reporting serious incidents. We did not try at that point to go for unrealistic approaches to improving safety in the NHS. That was not because we were spineless; it was because we needed to get people behind the agenda and bring out into the open serious instances of the poor practice that was going on and jeopardising the safety of patients. I do not think that Clause 1 meets that test. It is likely either to produce excessive caution or simply to drive some of the poor practice underground.

I support every word that my noble friend said and very much of what the noble Baroness, Lady Finlay, said, so I will not repeat them, but I want to draw attention to the briefing that we have all had from three significant organisations: NHS Providers, the Health Foundation and the BMA. I do not always stand up and advocate the policies of the BMA in a number of areas, but in this area it is absolutely right.

I draw attention to what those organisations say in some of that briefing—I shall not read it all out. The Health Foundation makes it clear that introducing a duty such as that in Clause 1 would go against the evidence of what is possible in delivering safe health and care services. It states that the NHS has already demonstrated considerable progress towards building a genuine safety culture and that it is concerned that the message sent to NHS staff through the wording of the Bill may hinder further progress on this. It draws out in a summary of its concerns three very simple points, which might be a consequence of passing the Bill as it stands. First, patient safety experts tell it that causing no avoidable harm is impossible; secondly, legislation is not a solution for cultural problems; and, thirdly, a duty of no avoidable harm will divert further resources from what we know improves safety. My noble friend Lord Turnberg alluded to shifting priorities of what organisations and staff do in a way that is not always helpful to patients.

NHS Providers said very similar things but added something important. It said that should the Bill pass into law, further regulations may be laid by a new Government who have not engaged or given assurances in this area. It urges amendment to ensure that any regulations are fully consulted on and passed by affirmative resolution.

This is an extraordinary point in the electoral cycle to bring forward a provision of this seriousness in the form of Clause 1. The Government have to think again; they should consider whether they really want to be involved with a Bill containing a provision of this kind. It is full of possibilities for unintended consequences; potentially it could do harm to patients. I do not doubt the good intentions of the people behind the Bill and I do not doubt that they will be pretty grumpy about some of us drawing attention to our concerns. This has become the Government’s Bill—let us not mince our words. It may have started off and still nominally be a Private Member’s Bill, but the Government have put a lot of effort into it, as the sheer number of civil servants standing by to help shows. This is, to all intents and purposes, a government Bill. If the Government really want this legislation in this Parliament, they have to consider doing much more than they are currently providing for to meet the concerns expressed not just by Members of this House but by people whose opinions we all respect. With all due respect to my noble friend Lord Turnberg, the easiest way to meet many of those concerns would be to accept the amendment of the noble Baroness, Lady Finlay. The Department of Health needs to consider whether this would be the wisest thing to do.

[Baroness Masham of Ilton (CB)]

I agree that there should be a culture of openness, honesty and transparency. When things go wrong, most people say, “I don’t want this to happen to anyone else”. There should be lessons learnt from mistakes, not cover-ups. This should be made as clear as possible.

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[Earl Howe]

That is a very important point, which I shall be happy to take away.

Amendment 1, tabled by the noble Lords, Lord Turnberg and Lord Warner, would replace the reference to “no avoidable harm” with “take steps to reduce” avoidable harm. I accept that in some settings regulated by the CQC, including the NHS, that phrase may better reflect the scale of what can be achieved. However, regulation by the CQC is not just about the NHS. In the case of some health and adult social care services, I believe that it is reasonable to strive to eradicate all avoidable harm. It is for that reason that I prefer the current wording. Yes, it is more ambitious, but its ambition contains an incentive to strive towards a continuous reduction of avoidable harm across all settings regulated by the CQC.

The amendment would also result in requirements on providers to monitor the steps they take to reduce avoidable harm and to train staff in the reduction of avoidable harm. That is clearly desirable, but I must question whether it needs to be a duty set out in primary legislation. The training of staff in reducing avoidable harm is important, and Section 20(3)(d) of the Health and Social Care Act 2008 already expressly provides for regulations to include requirements on the training of staff.

The fundamental standards regulations, to which I referred a minute ago, which were passed by this House in November and come into force in April, already meet the test of the Bill, and no change to regulations is required. The fundamental standards require that care and treatment is provided in a safe way for service users. They give the CQC power to take action against providers where a failure to take steps to provide care in a safe way results in avoidable harm.

The regulations are breached not whenever avoidable harm occurs, but where there has been a significant failure effectively to manage the risks of harm. They are clear that that involves assessing the risks and taking steps to mitigate them. They ensure that staff have the right skills and qualifications, that premises and equipment are safe and that medicines are properly managed. They also require providers to have systems in place to assess, monitor and improve the quality and safety of services.

Noble Lords have cautioned that the clause might lead to staff taking a risk-averse approach. The noble Lord, Lord Hunt, expressed the concern that it could encourage staff to lose sight of the patient and instead focus on covering up mistakes. I firmly believe that the reverse is the case. What it does is to underpin our efforts to strive for the very thing so strongly advocated by the noble Lord, Lord Turnberg: an open reporting culture where identifying errors helps organisations to improve the safety of care. Where providers take the steps to manage the risk to safety, front-line staff can focus on the needs of patients and service users, content in the knowledge that the environment in which they work promotes safety and quality.

Our debate up to now has perhaps given the erroneous impression that the fundamental standards are just about the systems and processes. They are not. They focus on the outcomes of care and treatment. The new regulations, which come into force in less than three weeks, place patients and service users at the heart of service provision. They require that treatment and care meet the needs of service users and reflect their preferences. They prohibit providers from providing care without consent. They also put in place a new duty of candour that requires providers to inform service users where there have been failings in their care.

In those ways, patients and service users are central to the fundamental standards. Clause 1 rightly ensures that safety and the reduction of avoidable harm will always be the foundation of the regulatory system operated by the CQC.

I turn to Amendment 4, in the name of the noble Baroness, Lady Finlay. I am confident that all noble Lords share the same objective as that of Clause 1, which is to place patient safety at the heart of the delivery of services. The Committee will be aware of the importance that the Government place on improving safety. The recent report of the Morecambe Bay investigation has re-emphasised that that is the right approach. Moving towards the reduction of avoidable harm requires action across the health and social care system.

I agree with those who say that the main way to reduce avoidable harm is through changes in culture. None the less, there is also a role for legislation. The role of the law in this area is straightforward: it can define minimum acceptable standards and introduce ways to protect patients who are put at risk when those standards are not met. It provides a safety net that protects people from harm.

I stress that the regulations issued under Section 20 of the Health and Social Care Act 2008, which Clause 1 amends, apply to registered providers of health and adult social care in England. There are two important points here. First, the regulations do not apply to individual members of staff but to the providers of care. In that respect, they offer protection to staff as well as to patients and service users. Secondly, the scope of the regulations is not restricted to the health service but applies also to adult social care. In that respect, the scope of the clause is broader than that of the noble Baroness’s amendment. For that reason, I prefer the current wording, which offers the same protection to patients and service users wherever they receive care, not just in the NHS.

The noble Baroness asked whether the clause applies to all care organisations, including those in the voluntary sector. All providers of regulated activities must register with the CQC and meet the registration requirements, including voluntary sector and independent sector providers. She also asked whether the regulations will be consulted on and subject to affirmative resolution. The answer to both questions is yes, but having said that, the fundamental standards regulations are consistent with the objective of Clause 1. Those regulations were consulted on and were subject to affirmative resolution. Any future regulations amending or replacing those regulations would also be consulted on and, unless the changes are minor, would be subject to affirmative resolution.

[Lord Warner]

Can the Minister clarify something for me, because I am increasingly puzzled? He keeps talking about the fundamental regulations which are coming into force in three weeks’ time being consistent with Clause 1. If they are consistent with Clause 1 as they are framed, why do we need Clause 1?

[Earl Howe]

What Clause 1 does is to amend the provision whereby the Secretary of State may require the CQC to have safety as its prime objective to one where it must have that requirement as its prime objective. That is what Clause 1 essentially does, so there is a good reason for having the Bill alongside the regulations.

[Lord Warner]

I am sorry but this is quite a key point. If the Minister is right and those regulations were drafted in accordance with the law as it stood before this Bill, they presumably make the same requirement. The Minister is saying that they meet the requirements of the Bill. I still cannot reconcile why you need to change the law, particularly if we are now into “may” and “must” territory, which always delights your Lordships’ House. I am obviously being very dim but I still cannot understand why you need to change the law—the primary legislation—but do not then need to revisit the regulations which were made under other primary legislation. I thought I saw the Minister proceeding, uncharacteristically, with a degree of caution on this. There is an issue here on which, so far, the Government have not given me a particularly convincing explanation.

[Earl Howe]

I am very sorry that I have not given that explanation clearly enough. The point was well drawn out at Second Reading by my noble friend Lord Ribeiro that what Clause 1 essentially does is to bring patient safety absolutely to the fore in the context of the CQC’s work. That is entirely consistent with the approach that we took in the fundamental standards regulations which, as the noble Lord knows, flowed out of the work done by Sir Robert Francis QC in his report on Mid Staffordshire. If I can be clearer to the noble Lord before the conclusion of this debate, I will be glad to do so but I find it difficult to say more than I already have on this.

The noble Lord, Lord Turnberg, asked about the CQC’s guidance. Its guidance on the new fundamental standards has been consulted on. The CQC has a range of actions that it can take when a provider does not meet the fundamental standards, ranging from a warning notice to cancelling registration. The CQC’s enforcement policy is clear that any action that it takes will be proportionate to the risks to patients and that its most serious sanctions will be used only in response to the most serious service failings.

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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”?

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Moved by

[Lord Warner]

8: After Clause 3, insert the following new Clause—
“Children
(1) The Secretary of State shall, as soon as practicable, make regulations to apply the provisions of sections 2 and 3 to services for children that benefit their health and wellbeing and protect them from abuse.
(2) Such regulations shall be applicable in the first instance to relevant health and children’s social care commissioners and providers.
(3) These regulations may be extended to other public bodies by order where there is an established body of evidence that such extension would improve the health and wellbeing or protection of children.
(4) All such regulations shall be approved by resolution of both Houses of Parliament.”

[Lord Warner]

My Lords, Amendment 8 follows the slightly unsatisfactory debate at Second Reading on 6 February on the issue of a common identifier for children. As I said then, I welcome the provisions in the Bill for consistent identifiers for adults across health and social care, but I still cannot see why the same considerations do not apply in this Bill to children. Indeed, I would go even further and say that the absence of a common identifier for children poses even greater risk than that for adults.

I declare an interest as the Children’s Commissioner for Birmingham, appointed by the Secretary of State for Education. I do not intend to speak about my work there except to tell the House that Birmingham, like many other parts of the country, is experiencing huge rises in the numbers of children at risk and in need.

A key element of tackling this problem is all agencies speedily sharing information about individual children. To do this means a common identifier. It is not only me saying this. As far back as 2003 the noble Lord, Lord Laming, in his excellent report on the tragic case of Victoria Climbié, called for a common identifier database for all children under 16. This Government halted work on it. Nevertheless, professionals working in the area have battled on, trying to improve information sharing in order to reduce risks to children.

The child protection information sharing project is being implemented to allow—I emphasise “allow”, not “require”—healthcare staff in unscheduled care settings to be alerted to the existence of a child protection plan. However, this is a long way short of using the NHS number, given to all individuals at birth and a lifelong identifier, to link data sets for the protection of children. All these professionals cannot understand why politicians across the parties—I am not making a party-political point—simply will not commit to doing the same for children as they do for adults on interagency information sharing and to making it easier to share information through a common identifier.

I am not going to detain the House today with various attempts to patch up children’s data sharing. I simply suggest that all Front Benches read the 2014-15 report on information sharing from the Children and Young People’s Health Outcomes Forum. This makes it clear why the NHS number should be used as the link identifier and provides a process map for doing so.

Amendment 8 attempts to build on all the hard work that I have mentioned by an army of committed professionals to improve the lot of vulnerable children. Instead of the almost endless bureaucratic dithering and squabbling by various public bodies both nationally and locally, we need to put children on the same basis as adults in terms of information sharing and linked identifiers. My amendment provides that a Secretary of State—frankly, I do not care which one, and anyway they may all have different functions after 7 May—should have the responsibility to make regulations to apply the provisions of Sections 2 and 3 of the Act to services for children that benefit their health and well-being and protect them from abuse. It is a deliberately broad remit, but I believe that it is within the scope of the Long Title of the Bill. If the Minister wants to argue that it is not within scope, I would like to hear the legal arguments for that. I have gone through the Long Title and I cannot see that it states anywhere that the Bill is limited to adults.

The amendment does not tie the hands of any Government in terms of detail or precise timing. Initially, it restricts the scope to children’s commissioners and providers in the health and social care sectors, but it provides for later extension where there is a body of evidence to show that doing so could improve the health and well-being of children—something which I suspect all noble Lords in the House support.

I recognise that my amendment will not have improved my popularity rating in government departments, among the Bill’s sponsors, and probably on the Front Benches as well at this stage of the electoral cycle. However, if people want this Bill speedily, I want to see some movement from the Front Benches—not just the Minister; this is also a matter for our Benches. I do not intend to press matters further today, but I would like to hear whether the Front Benches can demonstrate a willingness to commit to act on this issue at the earliest legislative opportunity if they are part of the next Government. I know that no one can commit the next Government, but it is possible for all the main parties to take a view on the issue going into an election. I hope that we can bring a bit more positivity to this issue and I beg to move.

[Baroness Masham of Ilton]

My Lords, I would like to ask a question of the noble Lord, Lord Warner. Would Amendment 8 help to protect children such as Baby P, who suffered around 50 abuses, including a broken back, which had been neglected? Many other children have suffered abuse and neglect since then. Children need extra shared protection.

[Lord Warner]

I know of the commitment of the noble Baroness in this area. The answer is that a linked identifier would have helped in many of these cases. We have to move beyond exhortation in central government guidance for people to share information across the agencies to providing them with the practical tools that will make it easier for these data systems actually to share information and make it readily accessible. That means providing a common linked identifier for the agencies to use in matching their data sets. So, yes, in all probability Baby P might have been protected, as well as the many others we have seen since Victoria Climbié.

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[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.

Amendment 8 withdrawn.