Health and Social Care Bill

Memorandum submitted by Action against Medical Accidents (AvMA) (HSR 39)

1 About AvMA

1.1 Action against Medical Accidents (AvMA) is the independent charity for patient safety and justice. Established for nearly 30 years, AvMA provides specialist advice and support to over 3,000 people a year affected by medical accidents, and works collaboratively with the Department of Health, NHS and regulators to improve patient safety and the way injured patients are responded to.

1.2 We were pleased that there was a listening exercise and that the Bill has been re- committed. We are limiting our evidence to our main remaining concerns about patient safety, which we think could be addressed by changes to the Bill.

2 Executive Summary

2.1 The response to the listening exercise acknowledged there is a need for a duty of candour with patients when things go wrong. However, we are calling for there to be such a duty on the face of the Bill itself, or at least a duty on the Secretary of State to create such a duty through secondary legislation. Linked to this is the need for a duty to support and protect whistleblowers which could be addressed in the Bill.

2.2 The Bill has significant implications for the way in which patient safety is promoted, supported, and regulated in the future. We propose that the Bill needs to be much more specific on how the priority and momentum for improving patient safety can be maintained.

2.3 AvMA has always been a leading advocate for patients’ own involvement in patient safety work. We think that Healthwatch has great potential to contribute to this role, but have serious misgivings about the arrangements for Healthwatch as they currently stand in the Bill. We make recommendations for improvements.

3 A "Duty of Candour" with patients when things go wrong

3.1 AvMA, together with many others, including National Voices (the umbrella group for over 200 patients’ charities) has been calling for a statutory duty of candour. In its response to the ‘listening exercise’, the Government stated an intention to introduce a ‘contractual’ duty in providers’ contracts, but no commitment to a statutory duty.

3.2 The purpose of introducing a Duty of Candour is to provide a framework through which openness with patients is mandatory, and by which organisations can be regulated and held to account. However, it is also to underpin the cultural change that is required. We do not believe that simply introducing a contractual duty would have anywhere near the same impact as a statutory duty.

3.3 Where the Department of Health has deemed issues to be sufficiently serious, it has made them a condition of licensing (registration) with the Care Quality Commission. Ironically, there is already a requirement under these statutory regulations for organisations to report ‘patient safety incidents’ (anonymously) to the national reporting and learning system. However, there is no equal requirement to be open with the patient or family themselves about these incidents. This is an awful anomaly and sends the message (even if a standard clause were introduced in providers’ contracts) that being open with patients is not as important.

3.4 The Care Quality Commission has the job of regulating most healthcare standards and it would be more consistent if the Duty of Candour was included as one of the standards that all providers have to meet. It is unreasonable to expect Commissioners to become regulators of every standard themselves, and they are not equipped to carry out this role. It is also unclear whether the proposed "contractual" duty would apply to all providers (eg GPs, dentists etc) or just to those bodies to whom commissioning consortia issue contracts. To be meaningful, the Duty of Candour must apply to primary care practitioners as well as hospitals and clinics.

3.5 The recent Health Committee report on Complaints and Litigation specifically recommends that adherence with a duty of candour be part of the requirements for licensing with the Care Quality Commission and registration with Monitor. There would be the appropriate measures to make a Duty of Candour real and comprehensive. A requirement on the Secretary of State to introduce these measures would send a loud and clear message that would stimulate and underpin the culture change required. We would heartily welcome an amendment to the Bill to this effect.

4 Provision for Patient Safety in the Bill

4.1 Patient Safety is supposed to be the number one priority for the NHS, yet the Bill sees the abolition of the National Patient Safety Agency, without providing any guarantees about how patient safety will be promoted and supported in the new system.

4.2 We would welcome amendments which introduce a specific and unclouded focus on patient safety, and more clear and robust requirements on the NHS Commissioning Board and Commissioning Consortia.

5 Healthwatch

5.1 Healthwatch needs to be completely independent of the bodies which it monitors. It is not appropriate for Healthwatch to be commissioned by or over-dependent on local authorities.

5.2 Healthwatch needs to be adequately and consistently funded across the country. Its funding therefore needs to be ring-fenced rather than leaving funding at the discretion of individual local authorities.

5.3 To be strong and respected, Healthwatch needs to be consistent across the country. It needs to have its own staff rather than being reliant on local authorities or other hired help/host organisations. That way, together with national Healthwatch, Healthwatch will be a powerful movement for patients.

5.4 The complaints advisor/advocacy function should be a part of the Healthwatch identity across the country rather than leaving it up to local authorities and embryonic Healthwatch to decide. That way, Healthwatch can become a credible and visible "one stop shop" for patients and the public.

July 2011