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Mr. Oliver Heald (North-East Hertfordshire): I am happy to let the hon. Gentleman see our consultation paper on the subject. I am a lawyer, but I do not do personal injury work and never have and I do not practise. I shall be fair to the world of the law, if I may. Does he acknowledge that Lord Woolf considered the clinical negligence claims procedures and proposed some good
reforms that are just beginning to bite and that are speeding up claims? Furthermore, Lord Justice Otton has made proposals, which I do not agree with, that are not hugely dissimilar to those of the Liberal Democrats, so it would be wrong to suggest that lawyers are not considering these subjects intelligently.
Dr. Harris: I am happy to accept that and do not seek to scapegoat lawyers for lobbying in their interests. However, I hope that the Government resist that lobby and look beyond it, although I am not convinced that they will.
There is more to dealing with a culture of blame than no-fault compensation. There is the problem of what awaits doctors who might report their own errors and shortcomings and, perhaps more relevantly, what might await the friends of doctors or other health care professionals if they report that clinician. Something must be done about the quintuple jeopardy facing health care professionals.
In the event of an error being made despite there being no hint of malice and no previous history of negligence, doctors may face, first, a criminal prosecution then, when that is concluded, possible prosecution and trial by the General Medical Council. They may then be dragged through the courts and, in parallel, face disciplinary proceedings from their employer. Many such proceedings are rightly conducted in public so that there is accountability. Nevertheless, it is unique that those four areas of jeopardy may be played out in the full glare of publicity. People might be tempted not to reveal their error or report on their friends and colleagues who may be subjected to a long drawn-out process.
The fifth jeopardy is trial by media. The accused are urged by their legal advisers to make no comment, but those making the accusations have the right to do so in the media. For legal reasons and reasons of professional confidentiality, which must still be respected by the doctor or health care professional accused, they cannot be rebutted. That major problem is nowhere more apparent than in the scenes outside the GMC when someone accused of malpractice, but in certain cases not found guilty of gross professional misconduct, must run the gauntlet of the press and media. Indeed, the accusers, sometimes encouraged by the media, may throw fruit and insults at such a person who leaves the GMC by the front entrance.
Such proceedings may be necessary, but we must recognise that they represent a huge disincentive for people to report their friends and colleagues. The accused cannot answer back. I hope that the Government will at least recognise that the problem exists, although they are not directly responsible for it. Perhaps some thought will be given to the matter. Of course, health care professionals must run the gauntlet of another jeopardy—the danger of politicians naming and shaming them while proceedings are still going on.
To a certain extent, a culture of blame is encouraged by the Government when they list hospitals as failing. I shall return to that when we discuss the quality of data on which judgments should be made. There is always a temptation for politicians, especially when they are held accountable for failings in the service, to shift
responsibility to a few who happen to be at the bottom of a league table. I understand that temptation, but if the league table is not based on adequate data that measure the right things in the right way, it will lead to unfairness and encourage a blame culture.The Society of Clinical Psychologists has long campaigned for suspended doctors, the majority of whom are eventually reinstated. However, the long drawn-out nature of investigations of conduct means that they cost the NHS a huge amount. Indeed, the Secretary of State raised that as a matter of concern in opposition. Something must be done to restore such people to the NHS as soon as possible if they are deemed fit to practise and it should not be deprived of their work for too long.
The Government response recognises the need to merge the Commission for Health Improvement and the National Care Standards Commission. We welcome that. I do not criticise the Government for indecisiveness when they change their mind and we have requested that they do so. That would be unfair, so I commend them on their change of heart, although regrettably it is too late to include it in the National Health Service Reform and Health Care Professions Bill, which has just left the House. That deals with reform of the Commission for Health Improvement and it could have been used as a vehicle for making that change. However, there will have to be further legislation, which pleases me as little as it pleases Government business managers.
Mr. Heald: The Lords could do it.
Dr. Harris: I understand that Members of this House may consider that unsatisfactory, as we could deal with those matters only when debating Lords amendments rather than during our two key scrutiny stages. Perhaps the Minister will clarify whether legislation has been drafted to deal with this welcome change of approach. All parties would like such timely legislation to be introduced, because the National Care Standards Commission is about to be abolished or involved in a merger even though it has just been established. That is not good for those who work for it or, indeed, work to it.
There is a significant question as to the independence of the new Commission for Health Improvement, which I raised on Report and in Committee with the same Minister who sits patiently on the Front Bench, and I raise it briefly again. It is not right that the Government talk in terms of completely independent scrutiny of the performance of hospitals and staff when they themselves lay down for the commission the criteria by which those hospitals will be judged.
The right hon. Member for Holborn and St. Pancras said that, if the data are poor or the criteria wrong, the performance indicators and tables may be unhelpful. I welcome those remarks. Indeed, as I believe and as he said, in those circumstances they may be worse than having no data at all, as they are poor for morale and they mislead patients.
The report refers to the National Institute for Clinical Excellence and the hon. Member for Woodspring (Dr. Fox) drew our attention to it. Paragraph 17 says:
- "NICE guidance will no longer need the approval of the Secretary of State before dissemination".
There is a further concern about NHS bodies being directed to fund treatments recommended by NICE from January 2002. That would be satisfactory if sufficient and extra funds were available and clearly identified for funding those treatments. I believe, however, that in many cases, because there is not enough money to fund such treatments, other areas will have to be de-funded and de-prioritised. I am not sure that we want the tyranny of the appraised, as it were, that such an approach involves. I ask the Government to reconsider.
The Kennedy report speaks of the danger of a wrong approach to priorities. I do not think that the Government have responded adequately to that either. Page 81, which refers to a discussion of the role of the Department of Health, quotes Professor Sir George Alberti, president of the Royal College of Physicians since 1997, as telling the inquiry that the Department's focus appeared at the time
- "to be more on throughput and waiting lists than on outcome or quality of care"
- "guidance given in the area of audit was a reflection of this".
- "They were not interested in results; they were interested in as many people passing through the system as possible for as low a cost as possible . . . commercial considerations did seem to enter into it rather strongly."
The present Government are falling into the same trap. I am thinking of their waiting-list initiative—which, thank goodness, they have abandoned—and their waiting-time initiative. If the Minister checks, he will find that I have never criticised the Government for the existence of a few "long waiters", extending beyond 15 or 18 months. I agree that that is an unacceptably long time for people to wait, but clinical priority should establish which patients are in most urgent need. The Government should tell hospitals that what is unacceptable is not a delay of a few weeks in treatment but the distortion of clinical priorities, which does not aid patient care, in respect of stable patients who have to wait longer than 15 months—a figure that is soon to be 12 months, then six months.
The Kennedy report describes prioritisation on the basis of numbers, rather than the clinical needs of patients, as being part of the culture in Bristol. I urge the Government to think again about the adoption of maximum waiting-time targets as the be-all and end-all of the waiting-time initiative. A better measure would be the average wait per patient, which would avoid the clinical distortions resulting from long waiters' becoming more clinically urgent than critical patients.
The Government have announced that hospitals will lose the funds following patients who choose to go elsewhere after waiting six months for a heart operation. That will put pressure on hospitals to treat people whose waiting time is approaching six months, so that they do
not lose the contract—the service agreement or the custom, as the new NHS has it. I fear that, as I believe has already happened, more urgent cases will be delayed within the six months so that cases due to be dealt with in seven months can be brought forward.The Kennedy report talks a great deal about consent, and the Government should be applauded for their careful deliberation in that regard. They published model guidelines on consent in November, and have worked closely with the British Medical Association and other interested parties to ensure that they are implemented. I declare an interest as a member of the BMA's medical ethics committee, which has considered the issue regularly. Having done so, let me say that the BMA should also be applauded for its work on the consent guidelines toolkit.
Consent is not a simple matter. It is not a question of a signature on a piece of paper but an ongoing process, which continues throughout the management of a patient. The lack of informed consent at Bristol is one aspect of the problem, but similar aspects arose at Alder Hey. It will take a long time to change the culture—or, rather, two cultures. Some patients say "Whatever you tell me, doctor, I will be satisfied". Meanwhile, some doctors think that they know best. Nevertheless, I think that the change has already begun, and that the Government's deliberative approach will enable more progress to be made, not least in medical education. The importance of obtaining a valid consent rather than merely a signature is rightly being emphasised.
Before the hon. Member for Woodspring left the Chamber, I said that I wished to take up his—in my view—inappropriate response to my concern about the quality of data. He has not returned from the pressing media interview that called him away, and I am sorry that, once again, the Secretary of State cannot hear my response to his criticisms.
My point was that it was wrong to assume that all information put in the public domain entitled "Performance of hospitals" or "Performance tables" was desirable. Such data might be flawed; they might be incomplete to the extent that they were misleading, and would have negative effects on either the morale or the appropriate conduct of those being measured. I repeat that my party wants the public to be given more information, but that the information must be as complete as possible, although it will never be entirely complete. It must also be judged by means of peer review, rather than politically, for it to be of more help than harm.
I do not think that that has yet been established, which is why I was so pleased that the Secretary of State recognised the potential drawbacks of data. I pointed out to him that the Department of Health had co-operated with an earlier data set, which I think failed to take the difficulty of operations into account. It did take demography into account, and, through "Jarmanisation", specified the appropriate measures to adjust to the population that it served; but it had no data relating to the difficulty involved in some cases, and the complications affecting patients before operations.
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