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7.27 pm
The Minister of State, Department of Health (Mr. Alan Milburn): I congratulate my hon. Friend the Member for Newcastle upon Tyne, Central (Mr. Cousins) on securing the debate. He has raised some extremely important issues about freedom of speech within the national health service in the context of particular and serious concerns in the area that he represents. I shall address these issues immediately and state unequivocally the Government's support for freedom of speech within the NHS. I hope that the House will understand that I cannot discuss confidential clinical decisions relating to individual patients or detailed individual decisions affecting the employment of NHS staff. It would not be right or proper for me to do so.
The specific issues that my hon. Friend has raised in relation to Gateshead have a long history and are highly complex. The fact that they have not been satisfactorily resolved is clearly a matter of concern. It would not be right for me, however, to deal with the rights and wrongs of individual cases here and now. Such matters warrant proper investigation. If my hon. Friend writes to me setting out the details of his concerns, I shall look into them and ensure that he receives the fullest possible reply. I hope that this approach will provide my hon. Friend with the reassurance that he needs.
The Minister of State, Home Office, my hon. Friend the Member for Gateshead, East and Washington, West (Ms Quin), in whose constituency the hospital lies, is unable to be in the Chamber this evening because of ministerial business. However, she takes a keen interest in the Queen Elizabeth hospital, which enjoys the active support of her constituency. I am able to give my hon. Friend the Member for Newcastle upon Tyne, Central the assurance that we are actively considering what further guidance on disciplinary procedures is needed to supplement HC(90)9. As he is aware, the current arrangements were introduced by the previous Government, even before the advent of NHS trusts. At its simplest, some of the advice refers to grades that no longer exist.
My hon. Friend also pointed to difficulties in the law on consent. A particular difficulty may be that, although the expression is in common use, the often-quoted concept of "informed consent" does not exist in the law of England. The courts remain the ultimate arbiters of what constitutes consent.
It is important that patients give valid consent or refusal. To be valid, consent must be based on sufficient information to enable the patient to make a decision, and must be freely given. In general, all adult patients have the right under common law to give or withhold consent prior to medical examination or treatment. They are entitled to receive sufficient information, in a form that they can understand, to help them to make a decision.
The NHS Executive issued guidance in 1990: "A guide to consent for examination or treatment". That guidance makes it clear what the patient's rights are, what the duties
of the doctor or other health professionals are, and how consent should be obtained. A doctor treating a patient without obtaining valid consent may be liable to a charge of assault.
I want to make it absolutely clear that there can be no justification for an employer penalising staff who speak out about genuine concerns. That is why we have outlawed in NHS contracts gagging clauses that are intended to conceal from legitimate public scrutiny information that the public have every right to know. I have done that in advance of the wider statutory protection in the Public Interest Disclosure Bill, because I believe that unless NHS staff have the right to speak their mind, patients will never get the health services that they need. These measures clearly outlaw any attempt by any NHS employer to impose contractual codes of silence on their staff to protect wrongdoing.
The NHS chief executive has also assured the Public Accounts Committee that such clauses have no place in the NHS. Perhaps nowhere in our public service is the freedom for staff to speak out more important than it is in the health service, which, with its almost 1 million staff, is the largest employer in Europe, and in which almost all of us place our trust at some point in our lives. In an organisation of that size, complexity and importance, genuine staff concerns arise. Because so many of us place so much faith and trust in the service, it is critical that such concerns are properly and thoroughly addressed.
Monday's statement by my right hon. Friend the Secretary of State for Health on breast screening services at the Royal Devon and Exeter trust, and cervical screening services at the Kent and Canterbury hospital trust, was a salutary reminder of what can happen when poor practice is not adequately challenged and exposed. Behind a wall of silence bad practice thrives. Minor problems fester and grow. Those who suffer when bad practice remains concealed are the patients who use services, the public who pay for them, the staff who have to tolerate the intolerable at work, and, let us not forget, the employer who will, at the very least, suffer waste and inefficiency.
For that reason, staff must be readily able to raise issues with their line managers and, where necessary, with the most senior levels of their organisations directly and, on occasions, publicly. Staff have sometimes raised issues in public and, in so doing, have provided an important safeguard for the public. It is essential that they act professionally and responsibly. Local management arrangements should be in place so that staff can raise concerns privately before that is ever an issue.
As my hon. Friend rightly said, I reinforced the five messages that are contained in the current guidance to the NHS on relations with the public and media when I wrote to chairs of NHS trusts and health authorities on 25 September. First, the NHS exists to meet the needs of patients, which must be paramount. Individual members of staff have a right and a duty to raise with their employer any concerns that they may have about the delivery of care or health services to a patient or client in their authority, trust or unit. If patients or clients are detained under the Mental Health Act 1983, staff may also raise concerns with the Mental Health Act Commission.
Secondly, every manager in the NHS has a duty to ensure that staff are easily able to express their concerns through all levels of management to the employing
authority or trust. Managers must ensure that any staff concerns are dealt with thoroughly and fairly. Thirdly, NHS employers should ensure that local policies and procedures are introduced to allow those rights and duties to be fully and properly met.
Fourthly, staff in the NHS have an obligation to safeguard all confidential information, particularly about individual patients or clients. Such information is, under all circumstances, strictly confidential, even if staff believe that disclosure is in the patient's interest.
Fifthly, under no circumstances will employees who express their views in accordance with this existing guidance be penalised for doing so. That does not justify disclosure that is not in the public interest. For example, malicious or frivolous disclosure is never justified. The guidance is clear that if, having exhausted local procedures, including reference to the chair of the employing body, employees are contemplating public disclosure, they are advised to seek professional advice to ensure that there is a soundly based case that disclosure is in the public interest.
The new guidance that I have issued to NHS employers enshrines freedom of speech for health service staff. They should be able to raise issues of concern in a responsible manner, without compromising patient confidentiality and without fear of victimisation.
Similarly, I have told NHS employers that racism has no part to play in a modern national health service. My hon. Friend alluded to allegations of racism surrounding this sorry case. I told health care human resource managers in September that I want them to identify racism wherever it is and act to stamp it out. Staff must know that they will be vigorously supported if they are discriminated against, and those who practise racism in the national health service must learn to expect zero tolerance.
More generally, as my hon Friend may know, the Government support the Public Interest Disclosure Bill presented by the hon. Member for Aldridge-Brownhills
(Mr. Shepherd), which would protect those who express genuine concerns about victimisation. The Government are also committed to a freedom of information Act, which was a key manifesto pledge and is central to our programme to modernise and reform government. It will bring about a sea change, so that, instead of public bodies having the final say on what information is provided, people will have a statutory right to information. I hope that my hon. Friend agrees that that is an important shift in the relationship between government and governed. It is long overdue in a mature democracy.
My hon. Friend has raised a welter of serious concerns. I promise that I shall investigate them thoroughly. I have taken note of what he said, but I will examine the record closely. I repeat to my hon. Friend the invitation to write to me with further concerns, if he has them, and I give him an assurance that there will be a full and detailed investigation and a full and detailed reply to the anxieties that he has expressed.
More generally, as my hon. Friend knows, Government bodies are answerable to the House for the proper use of their resources and the way in which they conduct themselves. It is intolerable that bad practice should continue. The Government are committed to ensuring that NHS staff have the mechanisms to identify and question bad practice and that, where necessary, they also have the right to raise issues such as this publicly, without victimisation. That right should be incorporated in law. We are also committed to exposing issues of concern by ensuring that both health authority and hospital trust board meetings take place in public and by ensuring that the current codes of practice on openness are replaced by a statutory right to information.
It would be wrong to pretend that bad practice can ever be completely eliminated in any large organisation, but I believe that maximum exposure of the workings of the NHS to public scrutiny is the key to identifying and overcoming the problems that sometimes arise.
Question put and agreed to.
Adjourned accordingly at nineteen minutes to Eight o'clock.
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