Care Bill [Lords]

Written evidence submitted by The British Medical Association (CB 24)

Care Bill

House of Commons Committee Stage Briefing

Part 2 – Care Standards

The British Medical Association (BMA) is an independent trade union and voluntary professional association which represents doctors and medical students from all branches of medicine all over the UK. With a membership of over 153,000, we promote the medical and allied sciences, seek to maintain the honour and interests of the medical profession and promote the achievement of high quality healthcare.


The BMA welcomed the publication of the Care Bill, recognising that reform of funding for social care and overhaul of the law underpinning care and support are long overdue. The Bill includes important changes for the health service, including a number of proposals following the inquiry into failings at Mid Staffordshire Foundation Trust. The Bill also establishes Health Education England (HEE) and the Health Research Authority (HRA) as non-departmental public bodies.

This briefing covers some of the key issues raised by Part 2 of the Bill. Areas of particular interest to the BMA include:

· Duty of candour and wilful neglect

· Performance assessments for hospitals

  Part 2 – Care Standards

Duty of candour and wilful neglect

Duty of candour

The Bill introduces a criminal offence for providers that provide false and misleading information about their performance. The BMA supports the principle that NHS providers should be open and honest with patients, and that patients should be placed at the centre of health care.

The BMA strongly supports the principle underlying a duty of candour on individuals and believes all NHS staff must be honest and transparent in everything they do, in order to best serve and protect patients. The BMA also supports the upholding of the highest standards of patient care. We are pleased that the Government has ruled out introducing an individual statutory duty of candour [1] and believe it is unnecessary. Doctors already have a duty to be open and honest with patients about their care through Good Medical Practice, [2] the professional code governing their fitness to practise. This requires immediate action where a patient has suffered harm or distress, and an apology and full disclosure about what has happened. It also requires doctors to be honest in their communications with patients at all times, to comply with their employer’s patient safety systems and respond promptly to any concerns about or risks to patient safety. Breaching the code could lead to a doctor’s removal from the medical register and a ban on their ability to practise medicine. An individual statutory duty with criminal sanctions could unintentionally worsen the culture of fear that can already prevent people from speaking out. We strongly b elieve the Bill does not require any change to introduce a statutory duty for individuals as this would encourage defensive practice rather than a professional commitment to openness and partnership.

There are a number of other ways in which healthcare workers, including doctors, can be prosecuted using both criminal and civil proceedings in connection with dishonest behaviour or action endangering patients.

The BMA opposes amendment 139 which seeks to introduce an individual duty of candour which is unnecessary and could have unintended negative consequences.

Wilful neglect

There has been wide discussion about how to ensure greater candour in the NHS. For example, introducing an offence of wilful neglect was recommended in the report from the National Advisory Group on the Safety of Patients in England: A promise to learn– a commitment to act [3] . The recommendation is designed to assure accountability to the patient for egregious acts or omissions that cause death or serious harm, and would introduce legal sanctions in cases where individuals or organisations are unequivocally guilty of wilful or reckless neglect or mistreatment of patients. The Government has indicated that it will look to legislate on this at some point in the future . [4] The BMA recognises the unacceptable failures in patient safety that occurred at Mid Staffordshire Foundation Trust and would wish to engage fully in consultation on proposed measures to avoid this in the future.

Reviews and performance assessments for hospitals

The Bill introduces Ofsted-style ratings for hospitals and care homes aimed at facilitating comparison of organisations and services (Clause 89). The BMA supports the intention to review hospital performance, but has concerns that summary score ratings have the potential to reduce a highly complex activity, measuring healthcare performance, to a simplistic and potentially highly misleading measure. Such a measure cannot provide a full reflection of the quality of the numerous complex services assessed, and could only ever be a blunt indicator.

A single organisation can offer a wide variety of different services, and summary scores can mask pockets of poor performance within organisations that are performing well overall. Without wider systems of governance in place, this could have potentially disastrous consequences if underperforming services are overlooked and not addressed. It is important that such ratings are not used in isolation as performance monitoring tools. In addition, this potential loss of detail through combining indices makes it more difficult to identify areas for improvement. Providers could miss an opportunity to learn from feedback and address quality issues. Similarly, this system could fail to identify good quality services within an overall low scoring provider, where a low score in one area dominates the summary score. This was acknowledged by Sir Bruce Keogh in his letter to the Secretary of State for Health in his review of 14 hospital trusts in England from July 2013: "We found pockets of excellent practice in all 14 of the trusts reviewed. However, we also found significant scope for improvement, with each needing to address an urgent set of actions in order to raise standards of care." [5]

At the 2013 Care Quality Commission (CQC) accountability hearing with the Health Select Committee, David Prior said that in addition to an overall rating, for large hospitals, "there will also be a rating of the eight core services, which are identified as A and E, maternity, paediatrics and the like. There will also be a rating for whether it is well led and whether there is compassionate, safe, effective care and responsiveness." [6] We welcome the move to publish performance indicators for individual services provided by service providers, we however do still have concerns that summary risk scores will overshadow these scores and distort perceptions of the services provided. The BMA agree with the Health Select Committee who state in their report from the 2013 Accountability Hearing with the CQC, "It is essential that the CQC act quickly to establish public understanding of, and confidence in, the ratings system." [7]

For many years, the BMA has promoted a focus on clinical outcomes and we believe that, where applicable, this is a more appropriate measure of performance than meeting targets. A summary score rating system risks political interference by enforcing targets that focus on a very narrow remit of provider activity. It is important that the detail of the new system ensures patients are not misled. We agree with the Nuffield Trust that the decision to aggregate scores for hospital sites, and the level of publicity that is likely to surround them, may increase the risk of misleading the public and misidentifying problems. For this reason, it does not seem the most appropriate tool for performance measurement or for incentivising quality improvement. The outcome of the Francis Inquiry highlights the importance of focusing efforts on improving services for patients and not diverting attention to meeting targets. As such, any rating system should not be used to rank organisations. The BMA believes that the CQC inspection judgement should be the most important factor in an organisation’s rating.

The final design of the rating system is being led by the CQC, following consultation. Implementation must be developed carefully and in partnership with all key stakeholders. As recommended by the Nuffield Trust’s independent review, "Rating Providers for Quality: a policy worth pursuing?" [8] , a system of aggregate ratings requires detailed strategic planning if it is to be credible, sustainable and of use to patients and the public. The review recommended that the development process should be largely "sector-led" and should focus on the medium term (five to ten years) as well as the short term.

We are pleased with the announcement to give the CQC statutory independence and look forward to seeing more of the detail about how this will work in due course. [9] Greater independence would help ensure the development and implementation of any ratings system has longevity. We would hope that this freedom would enable the CQC to define more closely which expert organisations and groups should participate in drawing up the indicators. The Nuffield Trust recognised that any new ratings system needs to encompass a transparent system for determining the indicators, and also requires an agreed measure to ensure any disputes about them can be resolved.

The BMA supports amendment 144 which will require the CQC to publish the performance indicators for individual services provided by service providers, providing greater transparency.

January 2014


[1] House of Commons Hansard, 19 November 2013: Column 1100

[2] General Medical Council (2013), Good Medical Practice. Manchester: General Medical Council



[5] p3

[6] House of Commons Health Select Committee, Sixth Report of the Session 2013-2014 (HC 761)

[7] House of Commons Health Select Committee, Sixth Report of the Session 2013-2014 (HC 761)

[8] Nuffield Trust (March 2013), Rating providers for Quality: a policy worth pursuing?, London: Nuffield Trust


Prepared 29th January 2014