Draft False or Misleading Information (Specified Care Providers and Specified Information) Regulations 2015
Draft Local Audit and Accountability Act 2014 (Special Trustees) Amendment Regulations 2015
The Committee consisted of the following Members:
† Burley, Mr Aidan (Cannock Chase) (Con)
† Drax, Richard (South Dorset) (Con)
† Fabricant, Michael (Lichfield) (Con)
† Glindon, Mrs Mary (North Tyneside) (Lab)
Healey, John (Wentworth and Dearne) (Lab)
† Jones, Andrew (Harrogate and Knaresborough) (Con)
† Jones, Graham (Hyndburn) (Lab)
† Lefroy, Jeremy (Stafford) (Con)
† Luff, Sir Peter (Mid Worcestershire) (Con)
† Penrose, John (Lord Commissioner of Her Majesty's Treasury)
† Poulter, Dr Daniel (Parliamentary Under-Secretary of State for Health)
† Reed, Mr Jamie (Copeland) (Lab)
† Shannon, Jim (Strangford) (DUP)
Thornton, Mike (Eastleigh) (LD)
† Vaz, Valerie (Walsall South) (Lab)
Fergus Reid, Committee Clerk
† attended the Committee
Tenth Delegated Legislation Committee
Wednesday 18 March 2015
[Martin Caton in the Chair]
Draft False or Misleading Information (Specified Care Providers and Specified Information) Regulations 2015
8.55 am
The Parliamentary Under-Secretary of State for Health (Dr Daniel Poulter): I beg to move,
That the Committee has considered the draft False or Misleading Information (Specified Care Providers and Specified Information) Regulations 2015.
The Chair: With this it will be convenient to consider the draft Local Audit and Accountability Act 2014 (Special Trustees) Amendment Regulations 2015.
Dr Poulter: It is a pleasure, Mr Caton, to serve under your chairmanship.
I will discuss the regulations in order, beginning with the false or misleading information regulations. As we all remember, the Francis inquiry’s report into the terrible events at Mid Staffordshire NHS Foundation Trust made clear the need for clear and reliable information about performance and quality of care. The inquiry found that inaccurate statistics about mortality rates obscured the true picture of care and could allow poor care to continue unchecked, which is clearly unacceptable.
The creation of a culture of openness and honesty is vital if we are to improve care in the NHS and empower staff to challenge poor care where and when it exists, and the Government have taken great strides to ensure that that happens. Care providers directly responsible for the standard of services have a clear responsibility to ensure that the information they supply is accurate and gives a true picture of the standards of care they provide.
The Care Act 2014 put in place a new criminal offence, which will apply to care providers that supply, publish or otherwise make available false or misleading information. The offence will apply to the misreporting of information that is required to comply with a legal obligation. I wish to emphasise that point: the offence applies only to providers of care, and not to regulators or commissioners of care. In the context of the offence, “providers of care” typically means those corporate bodies that provide care, such as NHS trusts or private companies that operate a hospital.
Where a provider is found to have committed the offence as a result of deliberately supplying false or misleading information or of neglect, they can be fined by the courts. In addition, the courts can require the provider to take action to address the failings that led to the offence and to make known publicly the action they are taking.
The false or misleading information offence can also apply to senior individuals in a care provider, but only when the provider has been found guilty of the offence. Senior individuals can be prosecuted under the offence where the evidence shows they have consented to, or connived in, the publication or submission of false or misleading information, or have been sufficiently neglectful in their duties to allow false or misleading information to be published.
Of course, the misreporting of information can be the result of genuine error, and it is essential that such mistakes do not result in a criminal conviction. The Care Act 2014 therefore allows for a defence against the offence where the care provider can demonstrate that it took all reasonable steps, and exercised due diligence, to avoid the misreporting of information.
The primary legislation contains a regulation-making power that allows the types of care provider and information to which the offence applies to be specified in regulations. Today’s regulations specify that the offence will apply to NHS trusts in England, NHS foundation trusts and other persons who provide health services from a hospital pursuant to arrangements made with a public body. For clarification, that means that the offence can apply to independent providers delivering services under an NHS contract, but only if they are also required to submit or publish the information included in the regulations.
The information to which the false or misleading offence applies focuses on the issues raised by Sir Robert Francis, such as mortality figures supplied by providers of NHS secondary care. The list is short, but it represents a significant quantity of data provided by the NHS, and it forms the foundation of the information used to assess NHS performance.
The regulations include other key information supplied by providers of NHS secondary care, including cancer waiting times, maternity datasets, many of the core commissioning datasets and NHS quality accounts—an important inclusion, as Sir Robert Francis specifically recommended:
“It should be a criminal offence for a director to sign a declaration of belief that the contents of a quality account are true if it contains a misstatement of fact concerning an item of prescribed information which he/she does not have reason to believe is true at the time of making the declaration.”
All the information listed in the regulations is that which providers will be required to publish or submit because of a statutory or other legal obligation. I say “will be required”, as further work is needed to ensure that the cancer outcomes dataset is required on a legal footing for the FOMI offence to apply, so it has been included in the regulations, but with a later commencement date, to give time for the surrounding legal issues to be resolved. The need for the information to be required on a legal or statutory basis is a requirement of the Care Act 2014 and an important part of the legislation for a number of reasons.
First, it means that a provider cannot opt out of submitting or publishing information simply because it wants to circumvent the false or misleading information offence. Secondly, as the information is already required to be published or submitted, we are not requiring providers of NHS secondary care services to undertake any additional work; we require only that they ensure the information they provide is accurate and not misleading. Finally, providers of NHS secondary care services publish
or submit on a voluntary basis a great deal of information that is incredibly valuable to improving the delivery of services and developing a greater understanding of our nation’s health. We do not want to dissuade providers from submitting or publishing such information, which is why the offence cannot be applied to information of that type.Valerie Vaz (Walsall South) (Lab): I would like to clarify something that may be in the original Act or in subsequent regulations. Is there a definition of false or misleading in material respect, and are there any defences that providers could have for not providing the information?
Dr Poulter: I hope I covered that in the material that was provided to the Committee. There is a general understanding in legal parlance of what “false or misleading information” should mean. As I outlined, whether someone has connived knowingly or actively or has neglectfully decided to withhold information or to present information, as contained in the regulations, that is misleading or false in some way is a matter that will have to be determined, as this is a criminal offence. There is a defence if someone has performed due diligence and taken all steps to perform their duties in a diligent manner. Again, that is a matter to be determined if a prosecution is brought.
It is important to point out that, as with the primary legislation, the regulations are not about going after individual clinicians or front-line staff; they deal with corporate entities—a hospital or a hospital provider—and, if appropriate and if the offence is proved at a corporate level, with those people at senior board level and other senior officials working in such organisations who have acted to mislead the public. We know how important it is to recognise and be transparent and open about situations when care falls to a substandard level, so that improvements can be made.
There is clearly an active mind at work in making a decision to withhold information or to be actively misleading, so there is that proactive approach. There is also woeful negligence. There are situations in which a reasonable person would have acted in a particular way but an organisation was negligent in the corporate duty that it would normally have to report information to patients. The regulations define the information that has to be reported, which makes clear to organisations what they need to report. Much of what is contained in the regulations does not necessarily put a new emphasis on reporting; rather, it makes the importance of factual and accurate reporting clear. The measures build on the good reporting that goes on in many hospitals every day.
Michael Fabricant (Lichfield) (Con): I should be grateful for a brief response from the Minister. I understand that he is following the recommendations of the Francis review, and I get the point about the guilty mind, mens rea, which he is making to the hon. Member for Leicester—
Valerie Vaz: That is not me—I represent Walsall. I do not know whether my brother would be offended.
Michael Fabricant: I thought you were he—it is the eyes.
Valerie Vaz: I would stop digging.
Michael Fabricant: I am sorry. Has the Minister any evidence of much false reporting?
Dr Poulter: Certainly concerns were raised about the reporting of cancer outcomes at Colchester hospital some time ago. I am sure that my hon. Friend the Member for Stafford will, from his own experience of the patients and the circumstances, testify to the terrible events that happened at the trust in his constituency, and the fact that not only was there an inappropriate patient care culture but that there was a culture of actively covering up bad things that happened to patients.
The regulations make clear what happens if such a culture develops. A set of measures is being introduced to improve transparency and ensure openness in the NHS, and to make it clear that local data about patient outcomes and survival rates are important, because they allow comparisons with other parts of the NHS, and peer review, as well as the identification of areas where improvement is needed. Covering up poor data and poor outcomes for patients is morally reprehensible, and could lead to worse outcomes and potentially to deaths.
Various regulations, including those before the Committee today, have been introduced in the spirit of improving transparency in the health and care services. The regulations are part of the Government’s drive to improve the openness and honesty of NHS services. For the first time we will have a clear sanction when providers of NHS services provide information in a false or misleading way.
The Local Audit and Accountability Act 2014 (Special Trustees) Amendment Regulations 2015 are among a number of statutory instruments relating to the audit of the accounts of relevant authorities in the new regime introduced by the Local Audit and Accountability Act 2014. That Act also abolishes the Audit Commission, passing responsibility for auditor appointments to local public bodies.
I will not take up the Committee’s valuable time by repeating the arguments made during the passage of the 2014 Act. There was broad support across the House for creating a more efficient audit system, giving greater responsibility to local bodies while providing greater opportunities for local people to hold those bodies to account.
The regulations before the Committee today make a minor but important change to the application of the Act, relating to one particular type of local public body— special trustees appointed by the Secretary of State for NHS charities. Special trustees are established by the Secretary of State to administer property or funds held on trust for certain university hospitals or teaching hospitals under the National Health Service Act 2006 and under the retained powers of the National Health Service Reorganisation Act 1973 and the National Health Service Act 1977.
Special trustees may hold property only for the specific purposes of the NHS body for which they have been appointed. In contrast, trustees for NHS trusts, who are also appointed by the Secretary of State under the NHS Act 2006, can additionally hold property on trust, such as charitable funds for an NHS trust, for general or any purposes relating to the health service.
In practice, the appointment of special trustees has been replaced by the wider power to appoint independent trustees, and only three sets of special trustees remain,
at Great Ormond Street hospital, Moorfields eye hospital and the Royal National orthopaedic hospital in Stanmore. Each was established to manage charitable funds.The Local Audit and Accountability Act 2014 makes provisions for audit appointment, conduct and regulation for a range of local bodies defined as relevant authorities. The relevant authorities include local government, parish councils, NHS trusts, clinical commissioning groups and special trustees. The special trustees’ charitable accounts fall outside the definition of accounts in the Local Audit and Accountability Act 2014. The accounts of special trustees are covered by the Charities Act 2011, which sets the audit and reporting arrangements for all English NHS charities.
The Local Audit and Accountability Act 2014 applies generally to matters that do not relate to the accounts of trustees. The intention was that the Act should apply to special trustees only if they held non-charitable funds. The regulations amend the definition of relevant authorities as it relates to special trustees so as to restrict its application to instances where the trustees are dealing with non-charitable funds. The amendment therefore removes the overlap that exists in relation to matters that are covered by the Charities Act 2011.
In practice, that will mean that a number of provisions in the Local Audit and Accountability Act 2014 relating to auditor appointments, together with the requirement to have auditor panels, auditor rights and information disclosures will not apply to special trustee charities. The amendment will restore the current position, making special trustee arrangements consistent with those for other NHS charities.
The legislative background to the amendment in how it applies to charitable and non-charitable funds of special trustees is complex. It involves the interaction between four sets of primary legislation: the Local Audit and Accountability Act 2014, the Audit Commission Act 1998, the NHS Act 2006, and the Charities Act 2011. The amendment removes complexity by making it clear in the legislation that the Local Audit and Accountability Act would apply to special trustees only where they are concerned with non-charitable matters.
The amendment also makes it clearer to the special trustees’ charities, their donors and auditors, together with other readers, that the special trustees’ charitable trust accounts are not subject to the Local Audit and Accountability Act. Currently that has to be established through cross-references to other legislation rather than being directly stated in the Act. In preparing the regulations we discussed the implications with the Charity Commission and the NHS Charities Association, which agreed that the overlap between the Acts should be removed. In conclusion, the regulations will amend the Act so that it does not apply to the charitable trust funds of special trustees and applies only where the trustees are dealing with non-charitable funds. I commend the regulations to the Committee.
9.11 am
Mr Jamie Reed (Copeland) (Lab): It is a pleasure, Mr Caton, to speak on the statutory instruments, and I will be mercifully brief on each. First, with regard to the principle behind the draft False or Misleading Information
(Specified Care Providers and Specified Information) Regulations 2015, the section of the Care Act 2014 to which it applies makes it an offence to provide misleading or false information. It is completely unacceptable for anyone or any organisation in the NHS knowingly to publish false or misleading information. That is a fundamental principle and one that we have always been squarely behind. In fact, at the Committee stage of the then Care Bill, in this very room, Labour tried to strengthen the clause by tabling an amendment which would have created an offence to withhold information with the intention to mislead or misdirect. The Government rejected that at the time.We also tried to expand the scope of the measure. As it is written, and indeed within the regulations before us, the offence would apply only to NHS trusts and foundation trusts and those providing services in a hospital. At the Committee stage, we tried to expand that to cover health-related services provided by local authorities, but again, the Government rejected that. I would be grateful if the Minister outlined why neither of those measures, which seek to strengthen the principle of openness and transparency, has been included in the regulations.
The fundamental principle of openness is crucial for many reasons. First, it is important for the Care Quality Commission, when it inspects hospitals and other places, to ensure that it has complete information on which to make a judgment. It is also crucial for patients, who want to make an informed choice about their health care needs. Finally, complete, holistic information is one of the key tools required by the provider in question to improve care at the facilities that it operates.
Although we support the changes, it is important to remember that we need to do more to stop things going wrong in the first place. That requires safe staffing in our wards—a fundamental lesson of the Keogh exercise—a better learning culture and effective leadership. Those changes are part of a wider focus on openness and transparency, which the Labour party has always supported. It is important that the Government are seen to be leading by example in this area. In that spirit, perhaps the Minister can confirm that the Department of Health will publish Lord Rose’s report before the election. If not, why not?
Under the Local Audit and Accountability Act 2014 (Special Trustees) Amendment Regulations 2015, the new auditing arrangements laid down in the 2014 Act apply only if the trust of which they are trustees is not a charitable trust. Can the Minister outline how he will ensure that charitable trusts providing health care will still be audited in a consistent manner with other bodies providing NHS services and care?
Finally, I have been asking questions as an Opposition spokesman for five years, and today might be the last time I am given the opportunity to do so—[ Interruption. ] I hear the sighs of disappointment. For five years, I have watched an unmandated reorganisation of the NHS chaotically unfold. We are still amending that legislation today; that is what today is all about. For five years, Ministers have refused to answer the questions put to them. I hope that today—perhaps just for fun and for the novelty value—the Minister will answer the questions in the interest of honesty and openness.
9.15 am
Jeremy Lefroy (Stafford) (Con): It is a pleasure to serve under your chairmanship, Mr Caton. I have two brief points to make, both of which derive from our local experience in Staffordshire.
The Healthcare Commission first began to look into the Mid Staffordshire NHS Foundation Trust as a result of the work of my former constituent, Julie Bailey, and because the statistics showed that the Mid Staffordshire trust had a much higher hospital standardised mortality ratio than it should have done. That proved two things: first, that the statistics were extremely important; and, secondly, that it was vital that the Healthcare Commission—now the Care Quality Commission—acted upon them. The Healthcare Commission eventually acted on the statistics, although it did so late and despite a lot of whistleblowing and attempted whistleblowing beforehand, which shows how important it is that the statistics are accurate and not misleading.
I welcome these regulations, which are the result of the Healthcare Commission report, which was instituted in 2008 and published in 2009; the first Francis inquiry, which was instituted by the right hon. Member for Leigh (Andy Burnham) in 2009 and published in 2010; and the public inquiry instituted by my right hon. Friend the Member for South Cambridgeshire (Mr Lansley) in 2010. All those things came from two sources: first, the local campaign by people who had been affected by poor care or whose relatives had been affected; and, secondly, from statistics such as the hospital standardised mortality ratio.
On the issue of false and misleading information, I want to bring to the Committee’s attention the importance of sober reflection on the statistics. A report published immediately after the scandal suggested that between 400 and 1,200 people lost their life as a result of poor care at Stafford hospital. That was an extrapolated figure. The real figure could have been either of those numbers, although probably neither of them, or a lot less. However, the figure of 1,200 entered the public domain and was reported even by the BBC, which, I am afraid, did not come out with a huge amount of credit. On a cautionary note to Members and the Government, it is vital that we do not misinterpret or extrapolate from figures where the evidence does not bear weight, because that could introduce misleading figures and information in the public domain.
The important thing about the scandal was the poor—terrible—care. For it to become a debate about figures about who died was a distraction from the heart of the issue. I am glad to say that care has been turned around in the case of Stafford County hospital.
Mr Reed: I am extremely grateful to the hon. Gentleman—or, if I may say so, my hon. Friend—for giving way. He is making a compelling point about the use of statistics with regard to the national health service and this House’s policy prescriptions. Does he share my thanks for and satisfaction with the work of Professor Sir Bruce Keogh and the royal colleges that recently made the case that he is making about the need to treat figures with extreme caution?
Jeremy Lefroy: I totally agree. I have huge respect for Professor Sir Bruce Keogh and for the work he has done and continues to do; long may he continue to do
that. We have to treat figures not as a political football but as evidence on the basis of which to make informed, mature and sober decisions. That was done eventually in the case of Mid Staffordshire. Had the whistleblowers been listened to, it could have been done earlier. Nevertheless, the figures were acted upon, and, as a result, we have seen a tremendous improvement in care, particularly for the elderly. That has had repercussions t across the national health service, as my hon. Friend the Member for Copeland knows.Coding is a real issue. I can give the Minister details later, but I have had evidence from a constituent about a trust not in my constituency—she said that coding was done well in Mid Staffordshire, which is one reason why the HSMR resulted in an inquiry—about cases where coding has been deliberately done to boost trusts’ incomes. Pressure from management meant that procedures that should have been coded as one thing were coded as another. Will my hon. Friend the Minister comment on whether false or misleading information applies not only to how outcomes are published for the public, but to how procedures or events are coded, specifically with the aim of deriving more income from a trust than they should?
9.21 am
Dr Poulter: I will do my best to respond to the points made by the shadow Minister and my hon. Friend the Member for Stafford. First, I thank the shadow Minister for the generally supportive tone of his comments. I am sure that you will forgive me, Mr Caton, for not diverting into wider discussions on other health care topics, although it is worth noting that today’s discussion, primarily on false and misleading information, is related to the Care Act 2014, which was broadly regarded as a step forward in the quality of care to be provided and a big step forward in the way we look after older people and people with complex needs and disabilities. The shadow Minister made such a comment at the time and, in that spirit, I will take those comments and build on them when answering points on false and misleading information.
To pick up on one point made by the shadow Minister, I think we all agree that if we are creating an offence for a public body, it is important that heath care providers understand what they must be transparent and open about. That is what the regulations are about. They focus on issues raised in the Francis inquiry such as mortality figures and information that, if provided in a false or misleading way, could lead to harm to patients.
In addition, all the information from providers is required on a legal basis and the data collection processes are suitably robust for inclusion in the regulations. The robustness of the data collection is important in establishing with clarity whether information has been provided in a false or misleading way. We would not want to apply the false or misleading information offence to data collection that is still in its relative infancy, where areas in the design of the collection could be misinterpreted as information being provided in a false or misleading way—hon. Members will understand that. The hon. Member for Walsall South will understand that from a legal perspective the importance of clarity so that there is no confusion about whether the data we are applying to an offence is the right data to apply. I think there is consensus that we are talking about relevant and important data.
On the offence, in response to my hon. Friend the Member for Stafford, it is clear that if someone, in a false or misleading way, attempted to manipulate data linked to any of these data sets for any purpose, resulting in harm to patients, that would fall under the scope of the regulations. The data sets are clearly laid out, and the need for them to be transparent and out in the open is recognised as being in the best interests of patients. It does not matter whether that was manipulated for financial or other reasons, such as to cover something up; the same applies. This is important information that we need to be open and transparent about because patients’ lives depend on it.
Jeremy Lefroy: I am grateful for that clarification, which is extremely important. Would my hon. Friend therefore ensure, should the regulations go through, that it is made quite clear to NHS trusts and other bodies around the country that any manipulation of data from a lower to a higher rate for financial gain through coding procedures is absolutely wrong and will result in criminal sanctions, in accordance with the regulations?
Dr Poulter: We have clearly laid out in the schedule where this particular offence applies. However, if there were general concerns about other pieces of information where there might be minor irregularities or false coding, that would clearly be a serious disciplinary offence in its own right and would, I am sure, result in the dismissal of the people involved.
This is about having robust data. These data sets are recognised as being directly linked to patient care, which is why we have defined them clearly. There will be an opportunity to add additional data sets at a later date if required. The evidence supports the robustness of the data sets, but I am sure that future Governments will wish to revisit this.
There is an absolute duty on health care professionals to show integrity in what they do and how they act. They can be struck off by their professional regulator if they behave without professional integrity or not in patients’ best interests. If managers were manipulating how a hospital was run or a ward was organised for a purpose other than delivering the right care for patients, that would be a disciplinary offence. Under the more transparent arrangements that we now have, the CQC would certainly be able to flag that up as part of the inspection process. More generally, Monitor and the NHS Trust Development Authority would be in a position to take much more robust action than perhaps they were in the past to deal with those sorts of abuses of power.
I want to pick up on one final point that the shadow Minister raised. We were careful, as he will remember, when drafting the regulations not to hold individual clinicians or front-line staff to account. That was part of the thinking that went into the original regulations and is behind the spirit of these regulations. We want robust data sets outlining where and how this offence can apply. Indeed, it is part of a suite of measures improving the working of the CQC, giving the CQC greater independence, introducing a duty of candour,
providing more support to whistleblowers to increase and improve transparency, flagging up occasional episodes of poor care in a health service and ensuring that they come to light much more quickly in future, so that we can learn from them and put things right for the benefit of patients.The shadow Minister will be aware that Lord Rose’s report was released before the NHS England “Five Year Forward View”. As a result, it is now being further developed to reflect that, which is perfectly reasonable. I am sure that we both look forward to receiving that report.
The issue of NHS organisation trustees has become quite a complex area of law. As Members will be aware, NHS bodies are now required to prepare their annual report and accounts and are audited in accordance with the National Health Service Act 2006. NHS charities, in common with all registered charities, are required to prepare their trustees’ annual report and accounts in accordance with part 8 of the Charities Act 2011 and regulations made under that, so there is no change to that. The content of charity audit reports is set out in the Charities (Accounts and Reports) Regulations 2008 and the Companies Act 2006, which makes provision for companies reporting under company law. NHS charity arrangements come under different legislation. Larger charities receive the same true and fair audit opinion.
At present, NHS bodies and charities have auditors appointed by the Audit Commission, but after the current contracts, the charities’ trustees will be responsible for their auditor appointments. This is about neatening up the issue of special trustees in the three trusts where they exist. That needed to be done and we would all see that as relevant for those hospitals, such as Moorfields and Stanmore, where special trustees exist.
I hope that I have answered all of the Committee’s questions. I thank the shadow Minister once again for his support for the regulations. I pay tribute to the work of my hon. Friend the Member for Stafford in what he has done at a local level and in this House in raising his constituents’ issues and ensuring that the terrible experiences that happened at that hospital can be learned from by the wider NHS. I am sure that all hon. Members would want to join me in congratulating him on being a true advocate for his constituents and a true public servant. [Hon. Members: “Hear, hear.”] I commend the regulations to the Committee.
That the Committee has considered the draft False or Misleading Information (Specified Care Providers and Specified Information) Regulations 2015.
draft local audit and accountability act 2014 (special trustees) amendment regulations 2015
That the Committee has considered the draft Local Audit and Accountability Act 2014 (Special Trustees) Amendment Regulations 2015.—(Dr Poulter.)