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Monday, 13 February 2012.
2.30 pm
Prayers-read by the Lord Bishop of Lichfield.
Office of Fair Trading
Question
2.35 pm
To ask Her Majesty's Government what proposals they have to review the performance, management and remit of the Office of Fair Trading following the recent quashing of cases on appeal.
The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Baroness Wilcox): My Lords, last year, the Government consulted on proposals to reform the competition regime including merging the Office of Fair Trading and the Competition Commission to create a single Competition and Markets Authority. Among other things, the consultation sought views on proposals to improve the enforcement of the anti-trust prohibitions. The Government will announce their conclusions following the consultation shortly.
Lord Naseby: Is my noble friend aware of just how many of our great companies-British Airways, Shell, Unilever, Tesco, the Co-op and Balfour Beatty-have been investigated over several years for alleged price fixing, fined nearly a quarter of a billion pounds by the OFT, only for each case to collapse because there was no basis in fact, law or economics to support them? The net result is a huge bill for the taxpayer to pay the legal fees. Will my noble friend call for a review of the board's oversight and the senior management's lack of quality control over which cases to tackle? After all, there are 600 employees at the OFT costing us £60 million per annum, let alone compensation to the companies that have been improperly charged.
Baroness Wilcox: I obviously cannot anticipate the Government's announcement, but we aim to build on the best of the OFT and the best of the Competition Commission in the creation of a world-leading Competition and Markets Authority. The Government recognise that the system for the enforcement of the anti-trust prohibitions is not working as well as it should. Cases take too long and a strong challenge to decisions is often mounted on appeal. It is worth remembering that we have a reputation in the world as being one of the best places in which markets work. Markets work well here. They are open and fair. We have to make sure that we have timely and effective enforcement. That is what the consultation has been about.
Lord Borrie: My Lords, does the Minister agree that whatever reorganisation of the competition authorities is to take place in the future, adequate resources must be made available to ensure that there is effective
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Baroness Wilcox: The noble Lord, Lord Borrie, was of course director-general of the Office of Fair Trading when I chaired the National Consumer Council. I have enormous respect for his view and have listened carefully to what he has just said. As I said in my original Answer, one reason why we looked to merging the Office of Fair Trading and the Competition Commission is to make sure that they are right and fit for purpose for our times and that there are the right resources needed for the world that we face. There is no doubt about it that the Office of Fair Trading has had a wonderful reputation in the past, and we would like to think that the new merger, if it goes forward, will take forward the very best of the OFT and the very best of the Competition Commission.
Lord Campbell of Alloway: My Lords-
The Chancellor of the Duchy of Lancaster (Lord Strathclyde): My Lords, I think that we should hear from the Liberal Democrats first.
Baroness Kramer: I shall try to be very brief. The Minister will be aware that for the ordinary consumer trying to deal with the combination of the OFT, Consumer Focus, Consumer Direct, the CBA and the Competition Commission, knowing where to go when there is an issue that needs to be raised is next to impossible. With the restructuring coming, the confusion is just adding laying layer upon layer. Would it be possible for the department to put some real clarity on its website to direct people under the current structure and with some clear indication where restructuring is going to take us?
Baroness Wilcox: Change is always difficult, but it does give us the opportunity to listen to things like my noble friend has just brought up, such as access to information. My noble friend knows, of course, that we are trying to streamline these things and bring them forward as fast as we can, but her point is well made.
Lord Campbell of Alloway: May I ask a very simple question? Is it not rather curious to rely on a decision of a first court on argument in this House until it has been accepted by the Court of Appeal or the Supreme Court? The whole of my life has been dependent on decisions that have been rejected by both of them.
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Baroness Wilcox: The noble Lord was a very fine lawyer in his time, as I can witness, because he worked for me once and we won, wonderfully. I am inclined to want to agree with him, but at the moment the consultation is going through and I cannot make any statement at this stage. But I shall be interested in his views when the Government come out with theirs in the next few weeks after the finalisation of the consultation.
Lord Kennedy of Southwark: Will the Minister agree to speak to the Office of Fair Trading? One area that it could shed a bit more light on is payment protection insurance misselling claims. A whole industry has developed around it whereby people can put a claim in; they can go to a company, are given 25 per cent of the money that they have lost, and have to pay the companies. That is quite disgraceful.
Baroness Wilcox: The Office of Fair Trading is of course an independent body and is best placed to balance the work that it does; it is not the Government's place to tell it what to do.
Zimbabwe
Question
2.43 pm
To ask Her Majesty's Government what information they have on the progress being made towards the framing of a new constitution and preparations for elections in Zimbabwe.
The Minister of State, Foreign and Commonwealth Office (Lord Howell of Guildford): My Lords, the Zimbabwe constitution process continues to move forward despite attempts to disrupt it at the end of 2011. We understand that a draft exists and expect a referendum between June and September 2012. The discussions facilitated by the Southern African Development Community on an election road map continue and will, when concluded, establish the necessary reforms that must be completed before polls can be held. We stand ready to support SADC in this process in any way we can.
Lord Avebury: My Lords, does my noble friend say, therefore, that the draft constitution will be published before the end of the year? What help have we offered either through the European Union or the Commonwealth to SADC to ensure that adequate electoral machinery is in place for the referendum on the draft constitution to take place in good time before the deadline for general elections in June next year?
Lord Howell of Guildford: The constitution and its production is naturally a matter for the Government of Zimbabwe, but we hope that this will come forward. We certainly take the view that it would not make sense to have an election before the constitutional process. Although Mr Mugabe suggested that there
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Lord St John of Bletso: My Lords, does the Minister agree that there is no clearly defined road map towards the constitution being agreed, nor the referendum, with the constitutional assembly arguing each week about procedural issues? With SADC being the guarantor of the GPA and the GNU, what pressure can Her Majesty's Government put on SADC to enforce this procedure to the timetable?
Lord Howell of Guildford: The noble Lord's analysis is quite right: there is a good deal of toing and froing, and SADC is indeed the guarantor of the global political agreement. He asked what pressure we can put on it. We are in constant contact with SADC; and we in the EU, and the Commonwealth arrangements, are also in contact with it. It is our view that we should leave the lead to SADC in this matter and in mounting the pressures on and persuading the Zimbabwean authorities, but we will certainly do our best within that context.
Lord Hughes of Woodside: Does the Minister accept that although violence has been reduced somewhat in Zimbabwe, it is still unacceptably high? That being the case, will he not only exert pressure but encourage President Zuma, the South African Government and SADC to do everything possible to ensure that there can be no proper constitutional change until the violence has ended and the global political agreement is agreed in full?
Lord Howell of Guildford: We certainly agree with that. Mr Zuma has of course taken the lead in SADC, with the support of its other member countries. They have made more progress in recent times than I think the pessimists feared, and we will continue on the path of encouragement and pressure and of offering any services that we can at the right time.
Lord Elton: My Lords, bearing in mind the difficulty of trusting the integrity of the present regime in Zimbabwe, what steps are being taken internationally to monitor the referendum when it takes place? It could be on the lines of the delegation sent by my noble friend Lady Thatcher, which was led by Viscount Boyd and included me from this House, to invigilate the first elections since independence in 1979?
Lord Howell of Guildford: All of us, including the Commonwealth, are quite ready to do the monitoring, but it has to be by the request of the Government concerned. If there is no request, one cannot simply
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Lord Elystan-Morgan: My Lords, does the Minister accept that successive Governments, to their very great credit, made it clear that they would wish to invest very considerably in the reconstruction of Zimbabwe once certain indices of performance were achieved? Can he tell the House what those indices of performance broadly were, and how near or far the Zimbabwean people are to having those plans realised?
Lord Howell of Guildford: My Lords, if they fit the criteria for investment, we do not discourage new investment projects in Zimbabwe absolutely, but obviously they must be closely associated with the ending and the avoidance of any kind of violence, as I should have emphasised in my answer to the previous question, and must be aimed at benefiting the people of Zimbabwe, not at ending up with a lot of money going corruptly into the hands of a few. That is the broad pattern of criteria.
We are dealing with an economy that is now beginning to grow again, although admittedly from a very low level-I think that there was 9 per cent growth this year. Substantial aid is going in, not-I emphasise-through the Government but only through the non-governmental agencies. The infrastructure is beginning slowly to improve, helped also by massive Chinese investment. All these are conditions that we are watching very closely, and there are some firms willing to investigate and proceed, in very careful ways, with investment in the recovery of this once rich, and we hope rich again in the future, country.
Baroness Kinnock of Holyhead: Would the Minister join me in arguing that it is increasingly likely that Mugabe will orchestrate a repeat of the 2008 election? The strategy then was ruthlessly to unleash the army, the police and the intelligence services on the political opposition and the people of Zimbabwe. In that event, what can the international community do when China, which benefits so substantially from the mineral wealth of Zimbabwe, including diamonds, blocks any concerted efforts to deal with ZANU-PF's terror and intimidation?
Lord Howell of Guildford: The noble Baroness's prediction could be right, but I hope it is not. We are absolutely determined to see that the forthcoming election does not repeat all the violence and intimidation, terror and distortion of the 2008 election. There are ways in which we can work to minimise the chances of a repeat of 2008: we can engage with the Chinese in pointing out that they carry certain responsibilities, and we are doing so; we can work through the human rights agencies, the United Nations and the European Union and get them to mount pressure; and we can support all the voices in Zimbabwe that are urging that there should be real constitutional reform and a sensible election rather than the distorting and violent pattern of the past.
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Health: Smear Tests
Question
2.52 pm
To ask Her Majesty's Government whether they have any plans to reduce the age at which women in England first undergo smear tests, to bring it into line with that in Scotland, Wales and Northern Ireland.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe): My Lords, there are no plans at this time to extend cervical screening in England to women who are aged under 25. In England, cervical screening starts at age 25 in line with the recommendations of the World Health Organisation and the independent advisory committee on cervical screening.
Baroness Hussein-Ece: I thank the Minister for that reply. He will be aware that in Scotland and Wales the age when women are first called for a smear test remains 20. Is he further aware that around 1,000 women a year die from cervical cancer? Does he think that there is a real problem that not going for cervical screening is one of the biggest risk factors in developing this cancer, and almost half the women who develop it have never had a cervical screening test? Does he agree that while it is not possible to lower the age at this time of budgetary constraints, far more needs to be done to raise awareness to ensure that more women survive and these deaths are prevented?
Earl Howe: My Lords, I should make clear that it is not budgetary constraints that have prevented a lowering of the age but clear clinical advice. However, my noble friend is right about uptake. We are working with the NHS cancer screening programmes and stakeholders to refine the information that we provide to women when they are invited for screening so that all are fully supported to make an informed choice to attend. To tackle the issue of low uptake among women, particularly younger women aged 25 to 29, the National Institute for Health Research health technology assessment programme has recently commissioned a study, the strategic trial, to determine which interventions are effective at increasing screening uptake among women receiving their first invitation from the programme. This is work in train and we await the results with interest.
Lord Patel: Does the Minister agree that what might be important for reducing the incidence of cervical cancer is not so much the age when the screening starts but the vaccination against HPV in younger girls? I understand that the uptake of that is now rising.
Earl Howe: My Lords, the noble Lord is quite right. One of the programmes initiated by the previous Government was the vaccination of girls aged 12 and 13. That programme is continuing and has very high uptake.
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Baroness McIntosh of Hudnall: Following that question, will the Minister tell the House how widespread uptake is and to what extent there is any difference between the various groups of young people in being prepared to take up the offer of vaccination? This is clearly the best hope that we have of bringing down the incidence of cervical cancer in the long term.
Earl Howe: The latest figure I have is that there is around 82 per cent uptake among eligible girls. However, for screening the uptake is lower. The figure I have for 2010-11 is that 78.6 per cent of eligible women had a test result in the past five years and 3.4 million women were screened. In the case of screening, it depends on whether the women themselves respond to the screening call. In the case of vaccination, it will depend on the attitude of parents and medical advisers.
Baroness Tonge: My Lords, will the noble Earl remind the House of what arrangements are being made for cervical cytology should the Health and Social Care Bill ever become law? Will he also reassure us that the excellent cervical smear campaign will not fall foul of the competing interests of local authorities and the clinical commissioning groups?
Earl Howe: My Lords, I can reassure my noble friend that the cervical cancer screening programme will be commissioned by the NHS Commissioning Board, so it will be done nationally and centrally.
Lord Rea: Is the HPV vaccination being offered also to teenage boys? After all, they are responsible for spreading this virus.
Earl Howe: My Lords, inoculation is not being offered to boys as part of the national programme. As I am sure the noble Lord knows, the aim of the programme has always been to prevent cervical cancer in women. Clearly, the best way to do that is to vaccinate girls and young women. However, these vaccines can be purchased privately and health professionals should exercise their clinical judgment when prescribing products for specific indications.
Baroness Hollins: My Lords, will the Minister explain what efforts are being made to ensure that uptake of both vaccination and cervical screening is good among girls and women with learning disabilities, particularly given their low awareness of the risk of cervical cancer and the high rate of sexual abuse among this population?
Earl Howe: My Lords, as ever, the noble Baroness raises an extremely important point about those with learning disabilities. I will need to write to her because my brief does not contain an explicit reference to them. However, I feel sure that the work to which I referred earlier-the strategic trial-will incorporate work to embrace all sections of the female population. I will write to the noble Baroness about that.
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Health: Stroke Care
Question
2.58 pm
Asked by Baroness Wall of New Barnet
To ask Her Majesty's Government what assessment they have made of the consistency of care for stroke patients across England, and whether the progress made in London will inform the development of their policy on stroke care.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe): My Lords, stroke patients are getting faster and better treatment than ever before. The latest data show that more than 80 per cent of stroke patients spend the majority of their hospital stay on a stroke unit-a 20 per cent improvement since 2009. We want the stroke community to share and learn from what works, such as the London model of providing stroke services. The stroke improvement programme plays a central role in disseminating this knowledge.
Baroness Wall of New Barnet: I thank the Minister for his response. I remind him of the debate on stroke that we had very recently. The evidence is very clear that early intervention with stroke, as with many other diseases, plays a key part in ensuring that the cure is of longer standing. The noble Earl will know that last year's CQC report highlighted the huge differences and inconsistencies in what happens. It would be good if we could have an assurance that the London model will be rolled out and taken on board by the national commission.
Earl Howe: My Lords, I agree with the noble Baroness that the London model has, indeed, been a model for others to follow. All Londoners now have 24-hour access to hyper-acute stroke care regardless of where they live, and London has one of the highest rates of thrombolysis for any large city in the world. It may not be appropriate to replicate precisely a model of care which works well in a densely populated capital as regards more rural areas, but that is where the expertise of the stroke improvement programme is essential in working with stroke networks across the country, sharing best practice and improving outcomes for stroke patients.
Baroness Gardner of Parkes: My Lords, is the Minister aware that although the London system is good, London has not always been at the forefront of this area? As the noble Lord, Lord Walton of Detchant, is not here to make the point, is the Minister aware that thrombolysis-the "clot busting" system-was introduced in Newcastle and was used there very effectively long before it reached London?
Earl Howe: My Lords, not for the first time, we learn from Newcastle how to treat patients.
Baroness Gould of Potternewton: I, too, refer to the debate that we had recently on stroke. The Minister greatly praised the work of an organisation called
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Earl Howe: My Lords, we are well aware of the issue raised by the noble Baroness. Indeed, it was raised during the listening exercise last year. PCT commissioners are identifying all their clinical contracts as part of a stocktaking exercise and over the next year will be using the information collected to identify those contracts that are due to transfer to the new commissioning organisations next year. We will work with both providers and commissioners to ensure that there is a smooth transition and continuity of care for patients and service users.
Lord Clinton-Davis: Is the Minister able to give an assurance that stroke care networks and the help given by the NHS stroke improvement programme will survive after the current review undertaken by the Government?
Earl Howe: My Lords, I can give the assurance that the noble Lord seeks. The NHS Commissioning Board authority has made it very clear that stroke networks have been immeasurably helpful to patients and there is every intention of continuing with them.
Baroness Barker: My Lords, have the Government monitored the impact of individual health budgets which were introduced by the previous Labour Government? What effect have individual health budgets had on the commissioning and delivery of stroke services?
Earl Howe: My noble friend is right: individual health budgets have enormous potential in the case of stroke patients. I do not have any specific data on that in my brief, as it is still relatively early days for the personal health budgets. However, if I have further information to give her, I will gladly write.
Baroness Wheeler: My Lords, the CQC report highlighted huge problems for stroke patients in consistency of care and support after hospital discharge and for long-term stroke survivors in the community. Early supported discharge from hospital involves the majority of rehabilitation taking place at home and is therefore geared to the home setting, yet it is available in only 37 per cent of PCT areas. This is such an important area for progress and obviously a key way of refocusing resources into the community. How will the Minister ensure that this situation is addressed now and under the new health structures? Can he confirm to me that the CQC will continue to monitor the progress of the national stroke strategy and produce further special reviews, given that I understand the team which delivered this last report has now been disbanded?
Earl Howe: My Lords, the unwarranted variations in services are quite clearly unacceptable. The value of the CQC report is that it shines a spotlight on where variations in care need to be addressed. We believe
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Lord Reid of Cardowan: My Lords, has the Minister yet had a chance to reflect upon this morning's report that illustrates that survival rates and the reduction in the death rate from strokes, cancer, heart attacks and many other serious diseases have improved considerably over the past few years? By any standards, when comparing productivity in terms of quantity and quality, there has been a huge increase in productivity. Since the premise behind the Health and Social Care Bill was that there had been little or no increase in productivity in the National Health Service, will he share with us his reflections on that report?
Earl Howe: The premise of the Health and Social Care Bill is rather different from the one that the noble Lord cites. We believe that there is a damaging and avoidable variation in care across the country. Of course the outcomes in many areas of clinical care have improved immeasurably, as he rightly says, over the past few years-not least in heart attack and stroke. However, we still have some way to go and clinical commissioning, we believe, will take us in the right direction. Stroke features in two of the domains in the NHS outcomes framework, representing work that we have put in train: domain 1, "Preventing people from dying prematurely"; and domain 3, "Helping people to recover from episodes of ill health or following injury". It is those measures to which the NHS will be held to account.
NHS: Management Consultants
Private Notice Question
3.07 pm
Asked By Baroness Royall of Blaisdon
To ask Her Majesty's Government what the role of management consultants is in developing health reforms, including the Health and Social Care Bill, and whether their involvement in the design and implementation of reforms raises any conflicts of interest.
Baroness Royall of Blaisdon: My Lords, I beg leave to ask a Question of which I have given private notice.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe): My Lords, the Health and Social Care Bill and all related programmes require input from a wide range of civil servants, lawyers and other experts. Management consultants have been assisting Monitor, the developing Commissioning Board and others on specific issues. Consultancy spend has reduced very substantially since before the election. We have been transparent around spend of over £25,000 and on hospitality received by Ministers and civil servants.
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Baroness Royall of Blaisdon: My Lords, I am grateful to the noble Earl for that Answer. Following recent press reports, I want to ask him about a specific management consultant, McKinsey. What payments has it received since May 2010 from the Department of Health and all other taxpayer-funded health bodies? If he is not able to tell the House that now, will he undertake to place this information in the Library of the House? Given that McKinsey seems to be setting the rules of the game in relation to the Government's health Bill and then benefiting from the outcome, can the Minister declare unequivocally that there is no conflict of interest between McKinsey's role in advising the Government on their health reforms and its commercial relationships with other clients?
Earl Howe: My Lords, I received notice of this Question just over an hour ago so I do not have precise figures about McKinsey. What I can say is that whereas the previous Administration in 2008-09 spent £100 million in the Department of Health on consultancy, my department has spent under £10 million on consultancy this year-very considerably less.
I read the article in the press this weekend which probably prompted the noble Baroness's Question. I think we need to be careful before casting doubt on the integrity of public servants-and, indeed, of McKinsey. The article referred to Monitor. Those at Monitor are bound by very strict rules and procedures to ensure transparency and openness in all their dealings and to avoid any possible conflicts of interest. They follow those rules and procedures to the letter.
Lord Laming: My Lords, does the noble Earl take from this important Question the significance of having in place a robust implementation strategy should the Bill become law, because translating the aspirations of the Bill into day-by-day practice will be a considerable challenge? Can he assure the House that that will be attended to in the proper way?
Earl Howe: Yes, I can. The reform of the NHS is a major project. Frankly, it would be irresponsible if the Government were not to commission expert professional advice in undertaking a project of this kind. Consultancy, if used judiciously, can be highly cost-effective. I assure the noble Lord that the implementation of the Health and Social Care Bill is occupying our minds night and day and, so far, I am pleased to report that it is going well.
Baroness Jolly: Can my noble friend tell the House how many reports were written for the Department of Health by McKinsey between 1997 and 2010?
Earl Howe: I do not have the figure that my noble friend asks for. I do have a figure for the spend by the previous Administration between 2006 and 2010 on consultancy from McKinsey. That amounted to nearly £30 million. In 2005-06, just one year, the previous Government spent more than £170 million on consultancy services with Accenture plc.
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Lord Campbell-Savours: Have civil servants been sharing information during the course of meetings with McKinsey people which McKinsey has been giving to its corporate clients? In other words, has McKinsey been discussing what has been going on in the formation of the Bill and the potential business benefits which arise from the Bill with its corporate clients? Have civil servants at any stage received any sponsorship for their travel or entertainment from McKinsey during the development of the Bill? Is it true that some meetings with civil servants and McKinsey have taken place at McKinsey headquarters in Jermyn Street in London? Does not that whole area of activity by McKinsey suggest that there is a conflict of interest which the public should know about at this stage in the development of the Bill?
Earl Howe: The noble Lord is, I think, insinuating some impropriety on the part of McKinsey and, perhaps, on the part of civil servants. I know of no such impropriety. Indeed, as I said earlier, there are clear and strict rules about transparency and openness. Declaring hospitality received is something that all civil servants and Ministers have to do. The results are published regularly. I will of course ask the question of McKinsey, which I have not yet had time to do. If I discover that there is any substance to the questions that the noble Lord has asked, I shall of course write to him and place a copy in the Library, but I very much doubt that I shall find any substance to them.
Lord Naseby: My Lords, as the Question refers to consultants and not to any specific consultant, is it not a fact that consultants provide a good interim role of management, suggestion or policy for consideration for Her Majesty's Government rather than their taking on ever more central staff? Is that not particularly appropriate, bearing in mind that the Prime Minister held a consultation on the whole of the Bill, as a result of which, as I understand it from listening to the debates in this House, changes have been made to the Bill which will have to be implemented pretty quickly? One can understand why consultants are brought in at the centre of the National Health Service. Surely on the whole it can only be healthy to have consultants there to speed up the implementation of this very important Bill.
Earl Howe: My noble friend is quite right. As I said earlier, the use of consultants-provided that that use is judicious and they are engaged in open competition processes-can be very cost-effective. It is a very flexible way of obtaining high-class advice without incurring long-term costs.
Lord Hughes of Woodside: Has McKinsey been given access to the risk assessment studies, which have been subject to some controversy in this House?
Earl Howe: I am not aware that it has or that it would need to have been.
Lord Hamilton of Epsom: My Lords, surely one of the problems of the National Health Service is the wall of money that was thrown at a totally unreformed NHS by the last Government? Do we not need
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Earl Howe: Yes, we do, my Lords. Part of the benefit of the modernisation programme will be to streamline the architecture of the NHS so that year by year we will be saving £1.5 billion in administration costs and £3.2 billion net during this Parliament. We need good advice in order to achieve that.
Lord Winston: My Lords, the noble Earl said that this Government have spent less on consultants than the previous Government. Does he agree that, perhaps had they spent a bit more, we might have had a Bill that damaged the health service a great deal less?
Earl Howe: My Lords, I cannot help observing confused and contradictory messages coming from the Benches opposite. I would be happy to take that advice back to my department.
Lord Brooke of Sutton Mandeville: My Lords, is my noble friend aware of the age-old aphorism among management consultants, of whom I was once one, although not at McKinsey, that 10 per cent of the work is diagnosis and 90 per cent is persuading the client to accept the advice?
Earl Howe: We have been on the look-out for that and I hope that we have not fallen victim to it.
Jobseeker's Allowance (Domestic Violence) (Amendment) Regulations 2012
Pneumoconiosis etc. (Workers' Compensation) (Payment of Claims) (Amendment) Regulations 2012
Mesothelioma Lump Sum Payments (Conditions and Amounts) (Amendment) Regulations 2012
Social Security Benefits Up-rating Order 2012
Guaranteed Minimum Pensions Increase Order 2012
Pensions Act 2008 (Abolition of Protected Rights) (Consequential Amendments) (No. 2) (Amendment) Order 2012
Motions to Refer to Grand Committee
3.18 pm
13 Feb 2012 : Column 558
Revenue and Customs Appeals Order 2012
Link to the Grand Committee debate
Motion to Approve
3.18 pm
Relevant document: 38th Report from the Joint Committee on Statutory Instruments. Considered in Grand Committee on 6 February.
Health and Social Care Bill
Report (2nd Day)
3.18 pm
Clause 6 : The Secretary of State's duty as to education and training
13: Clause 6, page 3, line 28, at end insert-
"(1A) Any arrangements made with a person under this Act for the provision of services as part of that health service must include arrangements for securing that the person co-operates with the Secretary of State in the discharge of the duty under subsection (1) (or, where a Special Health Authority is discharging that duty by virtue of a direction under section 7, with the Special Health Authority)."
Lord Patel: My Lords, here we go again. I wish to speak to today's first group of amendments-Amendments 13, 16, 62 and 106-but, before doing so, I thank all noble Lords who have put their names to the amendments. Many noble Lords wanted to put down their names to Amendments 13 and 16 in particular but were unable to do so. However, I thank them all for supporting these amendments.
Perhaps I may start in reverse order. Amendment 106 would impose a duty on clinical commissioning groups in respect of training and education. This matter was debated on the first day on Report and the Government produced Amendment 104 to the same effect. Similarly, Amendment 62 puts a duty on the NHS Commissioning Board in relation to training and education. As the Government have brought forward Amendment 61 to achieve exactly that, I shall no longer speak to Amendments 62 and 106. I can now move on to the proper business, as the House has quietened down.
I apologise that Amendment 16 is badly worded and has some rather deliberate mistakes. Much of it was debated in the context of a second group of amendments moved on the first day of Report last week, and I shall not labour those points.
There are three key issues that we might explore further in relation to this amendment. The first is the establishment of Health Education England as a special
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Those are the key issues on Amendment 16. I can now turn to my key amendment, and I emphasise the word key-Amendment 13. This amendment tries to encompass all the issues that we discussed in Committee and last week on Report. As noble Lords may remember, I tabled some amendments on education and training and the Minister was sympathetic to several of them. They alluded to the responsibility of all those who provide health services or care or who make any provision for health services to pay regard to education and training. I have tried in this amendment to bring all those amendments together in a simplified way. I now have an admission to make. At an earlier stage I tried a slightly different amendment on the Minister-Amendment 12-which I then withdrew. However, I hope that he finds it acceptable now as I think that it encompasses the matter in a much simpler form.
What is this amendment about? It states:
"Any arrangements made with a person under this Act for the provision of services as part of that health service must include arrangements for securing that the person co-operates with the Secretary of State in the discharge of the duty under subsection (1) (or, where a Special Health Authority is discharging that duty by virtue of a direction under section 7, with the Special Health Authority".
The purpose of the amendment is to ensure that any person providing services as part of the health service has a duty to co-operate with the Secretary of State in the discharge of the duty in new Section 1E of the National Health Service Act 2006 to exercise his functions so as to secure an effective education and training system, or with any special health authority which is discharging that duty. The amendment would achieve that by requiring commissioners of health services to include a duty of this kind in their commissioning contracts. The amendment applies to all persons commissioned to provide services as part of the health service, including NHS services commissioned by the board and public health services commissioned by the Secretary of State or local authorities. This is consistent with the powers of the Secretary of State that we discussed previously.
The amendment seeks to ensure that all providers of services commissioned as part of the health service, including NHS and public health providers as well as private alternative providers, have a duty to co-operate with the Secretary of State in the discharge of his duty to ensure an effective system for education and training. The duty will apply equally to Health Education England
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Since we last discussed the issue, the Government have set out their intention for the new education and training system. I welcome that. I am pleased to see that there will be a national system for education and training, and that Health Education England will be established as a special health authority. However, it is important that we secure a future for education and training through the Bill-hence my amendment-and that the necessary connections are made with other national bodies and with local service commissioners and providers. It is important that all providers of NHS-funded services participate in the planning, commissioning and provision of education and training. They are responsible for delivering front-line NHS services and therefore have a key role to play in supporting local education and training boards-and I mean supporting, not controlling. One previous issue of concern was how the budgets would be used.
It is also important that local employers should provide the highest-quality clinical placements. These placements are an essential element of the education and training process for doctors, dentists, nurses and other healthcare professionals. They give them hands-on experience of their profession or specialty through the delivery of health services in the NHS. It is important, if we are to continue to develop high-quality clinicians and health professionals, that these placements are continued. In the past, there was a tendency when budgets were tight to cut the placements. That is why I make this comment.
My amendment covers all these issues and therefore makes the Bill stronger. It is in the true spirit of revising the legislation that I move it. I was told last week that I misread the signals given by the noble Earl when I pressed my amendment. In order that I do not do so again, I ask him, if he is not minded to accept Amendment 13-although I sincerely hope that he will be, because it makes the Bill clearer-to give me clear signals that he is prepared to talk about this and bring it back at Third Reading if necessary. However, I sincerely hope that we will not go that far and that he will be persuaded to accept the amendment. I beg to move.
Baroness Finlay of Llandaff: My Lords, my name is on two amendments in this group. However, in large part they were covered by the government amendments that we accepted on the previous day of Report. Amendment 13 is particularly important. In our last debate on education and training, we spoke about the need to thread education and training as an infrastructure like scaffolding through the Bill. Carrying on with another analogy, Amendment 13 acts like a superglue that holds all the bits together. We need to make sure that education and training run through every provider, whoever they are. We cannot have some people saying, "Fine, we will have a contract and use staff who have been trained by the NHS but we will not have any obligation toward education and training". It is within
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The other question the Government need to ask themselves if they are thinking about turning this amendment down, but I hope they are not, is whether they can honestly say that there is anywhere that is fit to provide a service but is not fit to share its knowledge and skills with those who are in training in any part of the discipline. This is not only about specialist education and training but about increasing the knowledge base and skills at every level throughout the system.
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Lord Ribeiro: My Lords, my name is on this amendment, and I wish to say a few words about it. First, I welcome the amendments moved by the Government in Committee which give the Secretary of State a duty to secure medical education and training. A comprehensive health service cannot be achieved without a properly trained and educated workforce. Health Education England, as a Special Health Authority, not only must be given the authority to influence the function of local education and training boards in the short term, as it is established this year, but must influence local providers of all sorts-private, NHS or any other type-and other organisations responsible for the education and training of their workforce.
The influence of Medical Education England and the Medical Programme Board, of which I was a founder member after the MMC/MTAS débâcle, will provide HEE with invaluable information about the oversight of doctors and dentists. For that reason, I believe there should be a medical director of MEE within HEE. While I welcome funding for education resting with Health Education England, as mentioned by the noble Lord, Lord Patel, I remain concerned that the education levy will be raised from providers who may not have the same objectives and consider that their obligation to patient care trumps their obligation to provide training.
I have concerns about who should be responsible for quality assurance and through that for quality improvements. I believe it would be best to have this done at national level. The LETBs and providers cannot be judge and jury in relation to quality assurance and the principle of independent assessment and assurance must be maintained. Quality control and quality management are local functions, currently performed by the deaneries. Quality assurance and quality improvement, which imply that after the assessment lessons can be learnt and good practice passed on, must be at national level. They must have input from the profession to provide the appropriate oversight. In this regard, royal colleges, as national bodies, are ideally placed to assist deaneries in providing independent quality assurance and quality improvement. I hope the Minister will give assurances that this will be the case.
More specific functions of HEE as a Special Health Authority are outlined in Amendment 16. It may present more of a problem for the Government as the role and function of the LETBs are not defined in the Bill. If they are to take responsibility for funding, then the lessons of the strategic health authorities' 2006
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Lord Turnberg: My Lords, my name is also attached to Amendment 13. The case has been very well made by the noble Lord, Lord Patel, so I have very little to add, except that it is obvious that education and training are a key part of any service provision. For a service under pressure, looking after the patients always comes first, and it is very difficult in some circumstances to provide the time that education and training need. It takes a bit longer in an outpatient clinic to teach a young medical graduate; it takes longer in the operating theatre, I suspect, to show how it should be done. It takes time to allow junior trainees to go on education courses and rotations. The pressure on a service is always to concentrate on caring for the patients, and education and training can easily be given a back seat. This amendment helps straighten that balance.
Lord Mawhinney: My Lords, I spoke in favour of training and education at an earlier stage of the Bill, so I have no inherent antagonistic thoughts about the amendment moved by the noble Lord, Lord Patel. However, listening to him and to the noble Baroness, Lady Finlay, and the noble Lord, Lord Turnberg, it was quite clear that there is a financial cost attached to this amendment. They did not spell it out and I wish that the noble Lord, Lord Patel, had. My noble friend the Minister has already responded to the House's concern about health training. Whether he is minded to accept or reject the amendment, can he tell us his estimate of its cost?
Lord Walton of Detchant: I support the amendment and will make a point about costs. As I said last week in a debate on education and training, since the health service began, the actual financial consequences of training specialists in all branches of medicine-surgeons, physicians, psychiatrists and all other specialists-have been the responsibility of the National Health Service. Many of us will remember the days of SIFT-the service increment for teaching-a financial increment that was given to hospitals and other organisations that provided postgraduate training at the same time as training undergraduate students. I have, I believe, an assurance from the Minister that that process is going to continue, which is extremely welcome. So I am not speaking primarily about finance.
However, I want to raise a point with the Minister that was touched on only superficially in the very helpful debate we had last week where the Minister tabled a series of very important and constructive government amendments and gave a number of very crucial assurances. I particularly want to raise the interrelationship between the health education authority and the regulatory authorities, which has not yet been clarified. The Explanatory Notes mention the importance of Health Education England working with professional regulators. I shall refer to the General Medical Council as an example because I was its president from 1982 to
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It is the regulator. If a new medical school is created, it has the authority to inspect it and consider whether its curriculum is sufficient. It has the authority to inspect the qualifying examinations of the medical schools in order to make certain that they are achieving an appropriate standard.
The fundamental point is that the GMC and the other regulators are not just stakeholder groups. Their statutory powers,
- "provide independent assurance to patients, the professions and the service that national standards apply across the UK both in terms of the quality of medical training and the outcomes it produces".
Of course, the important difference here is that Health Education England applies only to England, whereas the GMC and the other regulators are responsible for the oversight of education across the entire United Kingdom. What I seek from the Minister-formally, if I may-is an assurance that the activities of Health Education England will not usurp or attempt to usurp any of the statutory responsibilities of the regulatory authorities, which are already enshrined in law.
Lord Kakkar: My Lords, I support Amendment 13 in the name of my noble friend Lord Patel and Amendment 16, which again is in the name of my noble friend and to which I have added my name. This is the first time that I have spoken at the Report stage of the Bill and I remind noble Lords of my entry in the register of interests as professor of surgery at University College London, consultant surgeon to University College London Hospitals NHS Foundation Trust and fellow of the Royal College of Surgeons of England, which is one of the royal colleges that has decided critically to engage with Her Majesty's Government with regard to the further passage of this Bill through its parliamentary stages.
The reason why there is such anxiety among so many bodies associated with the practice of medicine in our country as regards education and training is in no small part due to the fact that there was terrible trouble and a very unfortunate turn of events associated with the medical training application system-MTAS-some years ago. As a result of that, all those who have some responsibility for education and training are obliged to pay particular attention and scrutiny to any provision concerning the future of education and training for all healthcare professionals in our country.
Amendment 13 in the name of the noble Lord, Lord Patel, is very important. It brings together all those with responsibility for the commissioning and provision of healthcare under a single obligation to respond to the responsibilities of the Secretary of State for Health with regard to the specific question of education and training. There can be no doubt that all those who wish to engage in the provision of a national health service must be alive to their responsibilities in
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Amendment 16 is very important because it deals with the establishment of Health Education England. At this stage, it is important to recognise the very proper and constructive way in which the Department of Health, the Secretary of State for Health and the Minister have engaged with the professional bodies with regard to education and training. It has been a remarkable process of discussion, which resulted in the important government-sponsored amendments that we were able to debate last week on the first day of Report and the important recognition that in creating Health Education England there is an obligation to bring together all the resources available for undergraduate training in the healthcare system and for postgraduate education and training.
Is it absolutely the intention that all three funding streams-SIFT, MADEL and MPET-will come together as a single budget for Health Education England at the time of its creation and that that budget will be spent by HEE through local education and training boards to engage a variety of providers at a local level in discharge of responsibilities for education and training in a postgraduate sense and to maintain the additional resources available in clinical environments-primary, secondary and tertiary care-for the continued undergraduate education of our medical and dental students and other healthcare professionals?
It is also important for your Lordships to understand how Health Education England will be composed. What will be the process for appointment to HEE once it is established, potentially first as a Special Health Authority later this year? Will the composition and membership of HEE include representatives from medical royal colleges and other organisations, such as the regulators and so on? Will HEE be responsible for the appointment of the chairs of the local education and training boards? There is particular concern with regard to the need to have independent chairs of local education and training boards. It is vital not only that at the local level these boards have appropriate provider, employer, patient and trainee representation, but also that their deliberations are conducted in a transparent fashion. This can be done only if the chairs are indeed independent of all the interested parties.
There is a further question with regard to the relationship between local education and training boards and the proposed academic health science networks. Do Her Majesty's Government have a view about that? It is particularly important because a process is ongoing at the moment for the designation of 12 or so additional academic health science networks in the country. Those broad networks will have an opportunity to have substantial employer and provider representation, encompassing universities and NHS providers. It would be useful to understand their potential relationship
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I think it is well recognised in your Lordships' House that the Government have come a very long way on the question of education and training, which is much appreciated, but some further detail is important to allay anxieties and to ensure that the best possible advice, expertise and knowledge can be brought to bear in creating a new system for education and training for the future that does not result in unintended consequences and some of the disastrous outcomes associated with the previous MTAS scheme.
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Lord Willis of Knaresborough: My Lords, briefly, I support Amendment 13 in the name of the noble Lord, Lord Patel, and others, particularly on what is behind the amendment. I agree with the noble Lord, Lord Kakkar, that enormous progress has been made since our first debate in Committee where we neared the point of voting through an amendment that would have stymied any discussion on education and training, and I am very grateful that that vote did not take place. However, the reality is that there is a feeling abroad that when you have underqualified providers entering the health space, they will be able to offer services without having to invest in the very important aspects of training.
Given that on the first day of Report the Minister and the Secretary of State agreed to significant amendments about a research-led National Health Service, it is absolutely crucial that whoever takes part in that is able to offer the kind of education and training that enables it to become a reality rather than simply dealing with past techniques. I hope that when the Minister sums up on this group of amendments, and particularly on Amendment 13, he will make absolutely clear what the contractual obligations of other qualified providers will be in order to ensure that the duty placed on the Secretary of State in relation to those who are wholly NHS providers is actually carried through. Will there be a contractual agreement so that they have to agree to education and training, otherwise they will not get a contract?
Lord Winston: My Lords, I support what the noble Lord, Lord Kakkar, said about higher education. He talked about the academic health science centres, but they are not what I want to talk about, although I come from Imperial College, which of course has such a centre. My conflict of interest arises possibly as chancellor of Sheffield Hallam University, which has a very big stake in health service education, as I am sure the noble Earl knows. It has one of the most successful schools of radiography in the country, a very large physiotherapy school and an immense nursing school. In particular, of course, the university has very close connections with the University of Sheffield and with health services in the area. The reason for my
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Baroness Emerton: My Lords, I support the amendments in the name of the noble Lord, Lord Patel, from the point of view of other healthcare professionals-our debate has focused mainly on medical professionals to date. The noble Lord was careful to relate his Amendment 16 to all healthcare professionals. We need to make sure that Health Education England is multiprofessional in its focus. However, the amendment makes no mention of any links with social care. I am aware that we will debate social care in the spring, but it is important that healthcare professionals have included in their programmes and curriculum information on social care.
Amendment 16 mentions workforce planning, which must be a joint exercise between healthcare education and commissioning. The professions will be reassured if they know that workforce planning will be shared between the two rather than it being the concern of health education or commissioning alone. I support wholeheartedly Amendment 13, which encompasses all our discussions and brings to the fore the need for wholeness in healthcare professional education.
Lord Hunt of Kings Heath: My Lords, I support Amendments 13 and 16. This debate follows on from our useful discussions on education and training last week. Once again, we see a tension between the need for a national strategy on education and training and the need for local ownership. Amendment 16 in the name of the noble Lord, Lord Patel, gives us that, and I hope that the noble Earl will be sympathetic to it.
We all know about the problems that have arisen in the past where there has not been sufficient national leadership. Decisions about training places have been left to local bodies and the budget has been squeezed, the result being that a few years later there have not been enough people coming into the National Health Service, which has had a very damaging impact. I think there is unanimity in your Lordships' House that there has to be a very strong national strategy.
I very much take the point made by the noble Baroness, Lady Emerton, that there must be co-ordination in workforce planning between Health Education England, as the national strategic body, and commissioners, but I would add providers because it is they who will employ the staff who have been trained. It is essential to get our workforce planning and our commissioning at a national level into sync. It is more an art than a science, and I suppose that it has never been achieved to 100 per cent satisfaction. None the less, that is what we should strive to do. Speaking as a foundation trust chair, I say to noble Lords who have discussed the national element of this that it is vital that NHS trusts and foundation trusts play a full part in the discussions. At the local level, the local education boards have a crucial role to play.
I very much support the argument of the noble Lords, Lord Patel and Lord Kakkar, on independent chairs and transparency. That is important, but it is
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It would be useful if the noble Earl replied to the noble Lord, Lord Kakkar, and gave some sense about where postgraduate deans are to be placed within the new structure. I also hope that postgraduate deans will be able to recognise that in the new circumstances they can have a huge impact on NHS trusts and foundation trusts when it comes to their visitations. I also hope that clinical commissioning groups will recognise that if they are going to start shifting resources away from NHS bodies, that might have an impact on their capacity to provide education and training in the future.
That brings me to the point raised by the noble Lord, Lord Kakkar, about whether private providers will have contractual obligations with regard to education and training. It is important that there is a level playing field. If the Government insist on more contracts being placed with private sector providers in the future, there will have to be obligations on the part of providers. It would be grossly unfair and in the end it would not lead to the establishment of a national coherent system if private sector providers did not pay their fair share.
On governance, again, the noble Lords, Lord Patel and Lord Kakkar, made some substantive points about local education and training boards. It would also be helpful if the noble Earl responded to the point raised about academic science networks. We all agree that we must make the most of the fantastic basic education and science capacity in this country, and the links with the provision of patient care and the pharmaceutical industry. They have great potential. It would be useful to know how the noble Earl thinks they will fit into the new structure and particularly how they will link to the postgraduate deans and the academic science network. Overall, I am sure that the noble Earl will be able to come forward with a constructive response and I certainly hope that he is prepared to accept Amendments 13 and 16.
Earl Howe: My Lords, as I set out in our previous discussion on education and training, the Government are putting in place a strong national system for education and training, with a strengthened focus on quality outcomes.
We have introduced a clear duty on the Secretary of State to ensure that such a system is in place, and are now making good progress with establishing Health Education England and the local education and training
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As noble Lords will be aware, we have confirmed that we will set up Health Education England as a Special Health Authority in June 2012, so that it can take on some operational functions from October 2012 and be fully operational from April 2013, when it will take on the strategic health authority education and training functions. I repeat those assurances today. It will have an independently appointed chair and non-executive appointments. For this reason, we do not think that that part of Amendment 16, tabled by the noble Lord, Lord Patel, and others, which would place a duty on the Secretary of State to set up Health Education England as a new special health authority, is necessary.
I hope that the undertaking will be sufficient by way of reassurance to noble Lords on that score. Nevertheless, in addressing the more detailed issues set out in that amendment, it would be helpful to elaborate a little on what I was able to tell the House last week.
4 pm
First, it is important for me to reassure the noble Lord, Lord Patel, and others that Health Education England will draw upon expert advice provided by the Centre for Workforce Intelligence and will work with a range of key partners, including the medical royal colleges, the professional regulators-including the GMC, I can say to the noble Lord, Lord Walton-and the academic and research sectors. It will not affect or cut across the duties or functions of the medical regulators. It will be responsible for the investment of the multiprofessional education and training budget, which currently stands at just short of £5 billion. Indeed, many respondents to the consultation that we held called for education and training funding to be protected; we agree with that and will ensure that Health Education England establishes transparent systems to ensure that organisations that receive MPET funding are held to account for using it for the education and training of the NHS workforce.
I was asked by the noble Lord, Lord Kakkar, whether the budget would sweep up with it SIFT and MADEL. I am reminded that the MPET budget was created in 2001 and consists of the following three elements: non-medical education and training, or NMET; medical and dental education levy, or MADEL; and service increment for teaching, or SIFT. So the answer to the noble Lord is yes.
Health Education England will hold local education and training boards to account for their investment in education and training and for their delivery against national priorities and, critically, the quality outcomes that we will set in the education outcomes framework. That framework will directly link our investment in education to improvements in patient care outcomes and will, we hope, help to address variations in standards. This is new, and it presents the trainers in universities with a fantastic opportunity to drive quality in medical and nurse education forward.
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I was asked by my noble friend Lord Ribeiro whether Health Education England would have a medical director. It will require strong professional leadership, it goes without saying, and we expect it to have senior medical appointments. Health Education England will build on the work of Medical Education England and the Medical Programme Board, which have done such excellent work in recent years and provided a solid foundation to build on for Health Education England, with its new multiprofessional focus.
On the subject of quality, one of Health Education England's key functions is to promote high-quality education and training that is responsive to changing needs of patients and, indeed, local communities. Quality standards will prove to be of key importance in the contracts that LETBs will hold with higher education institutions, as will the postgraduate deans, of whom I shall speak in a moment. Employers and healthcare professionals will play a leading role in workforce planning and development through the establishment of local education and training boards, working with the education and research sectors. The local boards will identify and agree local priorities for education and training, and plan and commission education and training on behalf of their local health community. The boards will bring together all healthcare and public health employers providing NHS-funded services with education providers, including universities and colleges, the professions, local government and the research sector-and, I can tell the noble Lords, Lord Kakkar, Lord Winston and Lord Hunt, including as well the emerging academic health science networks. We see that element as particularly important. I can tell the noble Lord, Lord Kakkar, that each local board will have an independent chair and that we do not expect the chair to be drawn from employers within the LETB geographic area-it should be an independent person.
Lord Hunt of Kings Heath: On that welcome news, I assume that would mean that it would also not involve having a higher education chair and that, in fact, to have an independent chair means that they should be independent of commissioning, providing and university providing.
Earl Howe: That is a logical inference but, if I can get further and better particulars for the noble Lord, I would be happy to do so. Each local board will set up local advisory arrangements to reflect the breadth of local interest and ensure that its decisions are informed by clinicians, clinical networks and education providers. My noble friend Lord Willis and the noble Lord, Lord Winston, asked about "any qualified provider" and whether non-NHS providers will have to play their part. Yes, indeed; all providers of NHS services will be expected to participate in education and training activities, and Health Education England will invest only in organisations which do that. The answer to the question from the noble Lord, Lord Hunt, is indeed yes. He is correct.
By April 2012, we expect the strategic health authorities to establish sub-committees that will develop the emerging local education and training boards. The role of strategic health authorities to lead on education and training
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As I emphasised in our earlier debate, postgraduate deans will continue to be a critical part of the medical training arrangements. We expect LETBsto be able to demonstrate that their postgraduate deans will be able to act independently so as to be able, among other things, to provide challenge where necessary-a point raised, quite rightly, by the noble Lord, Lord Hunt. There will be systems and indicators in place to hold local education providers to account for the quality of education delivered by individual providers. Postgraduate deans will have all the powers that they have now to respond to any concerns about the quality of training, and to take action where required to improve standards and to assure the professional regulators, and indeed Health Education England, that poor performance is being tackled. In the new system, they will have support from the LETBs themselves and, if necessary, from Health Education England to challenge poor quality and behaviours.
Our proposed funding mechanisms reinforce that focus on quality by putting responsibility for education and training decisions in the right place, to be transparent so that funding follows the student on the basis of quality and value for money. The MPET budget will, as now, be predominantly provided to support the next generation of clinical and professional staff. Local boards will have some flexibility to invest in innovative approaches to continuing professional development and the education and training of the wider workforce. Health Education England will be responsible for developing a more transparent allocations policy for distributing education and training funding to local boards.
Now that the policy framework has been worked out, we need to push on and get the foundations of the new education and training system in place. We are doing that by establishing Health Education England and supporting the development of the emerging LETBs. It remains our intention to consolidate the functions of Health Education England by establishing it in primary legislation as a non-departmental public body. That will enable it to operate on a permanent statutory basis at arm's length from the Department of Health while remaining accountable to the Secretary of State.
We want to do all this on the basis of consensus. We want to ensure that people with an interest have the opportunity to comment on and feed into the design of the new system, ahead of bringing forward the primary legislation in a second Bill. With that in mind, we intend to publish draft clauses on education and
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As noble Lords will see, we have tabled amendments to strengthen links with the wider system. We have already discussed government Amendments 61 and 104, which would place duties on the board and on CCGs to promote education and training. These amendments were accepted in a previous debate. They are designed to ensure that commissioners of NHS services consider the planning, commissioning and delivery of education and training when carrying out their functions. The noble Lords, Lord Patel and Lord Warner, have tabled the very similar Amendments 62 and 106, and I hope that they will be reassured by the amendments that we have tabled and will feel able to withdraw them.
The noble Lord, Lord Patel, has tabled Amendment 13 on the role of providers. I say straight away that I am sympathetic to his intentions and I have given the amendment significant thought since it was first put down. In the beginning I thought that an amendment might not be needed, given that, in order to be established, LETBs will need to demonstrate that they meet robust authorisation criteria set by Health Education England, including demonstrating that all providers of NHS-funded services are fairly and properly represented in the LETB's business.
At this point I shall answer the question posed by my noble friend Lord Mawhinney about the estimated costs of the amendment. I understand that Amendment 13 would be delivered by requiring commissioners to place a duty of this kind in their commissioning contracts. We do not anticipate any additional costs as a result of the amendment. Employers have told us and the Future Forum that they are keen to participate and play a leading role in the planning and commissioning of education and training through the LETBs, and of course we plan to legislate further for education and training, which will provide the opportunity to consider any duties that might be required of providers.
However, the amendment is satisfactorily drafted. In the light of what the noble Lord and others have said today in support of it, and in recognition of the strength of feeling on the issue, I can tell the noble Lord that I am willing to accept his proposal and support the amendment.
Lord Patel: My Lords, how can I put this? I am enormously content with all the things that the Minister has said about Amendment 16, which was badly drafted and defective but he has answered all the questions. I hope that all noble Lords who supported me will feel content that he really has been helpful. As far as Amendment 13 is concerned, I would much rather win it this way than by going through the Lobbies. I thank him enormously.
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Amendment 14 had been withdrawn from the Marshalled List.
15: Clause 6, page 3, line 30, leave out from "and" to end of line 33 and insert-
"( ) this Act,
( ) the Health and Social Care Act 2008,
( ) the Health Act 2009, and
( ) the Health and Social Care Act 2012.""
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17: After Clause 6, insert the following new Clause-
"The Secretary of State's duty to ensure openness and transparency with patients when things go wrong
After section 1D of the National Health Service Act 2006 insert-
"1E Duty of candour when things go wrong
The Secretary of State must act with a view to securing that any organisation registered with the Care Quality Commission to provide healthcare is required to take all reasonable steps to ensure that a patient or, in the event of death or incapacity, their next of kin, is fully informed about incidents which occur as a consequence of providing the regulated healthcare to that patient where the incident has resulted in-
(a) any injury to a patient which, in the reasonable opinion of a health care professional, has resulted in-
(i) an impairment of the sensory, motor or intellectual functions of the patient which is not likely to be temporary,
(ii) changes to the structure of a patient's body,
(iii) the patient experiencing prolonged pain or prolonged psychological harm, or
(iv) the significant shortening of the life expectancy of the patient; or
(b) any injury to a patient which, in the reasonable opinion of a health care professional, requires treatment by that, or another, health care professional in order to prevent-
(i) the death of the patient, or
(ii) an injury to the patient which, if left untreated, would lead to one or more of the outcomes mentioned in paragraph (a).""
Baroness Masham of Ilton: My Lords, Amendment 17 would require the Secretary of State to introduce a statutory duty of candour for all registered healthcare providers, so that they are open with patients when things go wrong and cause harm, by amending the Care Quality Commission's registration regulations. The amendment has been changed significantly in the light of the previous amendment, which was debated in Committee with the same aims, as a result of the helpful comments made by Members of your Lordships' House and the noble Earl, Lord Howe. I hope it deals
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However, I know that, unless things have changed since we exchanged letters, the views of the noble Earl, Lord Howe, and the Government will be different. They will argue that their proposed contractual duty is an adequate or even better way of achieving the same thing. They will argue that the CQC could not cope with regulating such a duty in its regulations. I wish to summarise briefly why they are wrong on both these counts.
In Committee and since, the noble Earl, Lord Howe, brought to our attention the consultation on the proposed contractual duty of candour, which has recently closed. It is very regrettable that the consultation stated at the outset:
"This consultation does not re-open debate about the most appropriate mechanism for requiring openness and the decision to impose a contractual requirement is set".
The least one might have expected is for it to invite the views of patients, the public, health professionals and other stakeholders before setting the decision in stone. Had this happened, the Department of Health would, I am sure, have heard even more resoundingly that the statutory duty is favoured over the contractual one. None the less, it is clear from the responses that I have seen from leading patient organisations and other knowledgeable people in the field that the department's proposals are unlikely to enjoy public confidence.
Many Peers will have seen the letter in Tuesday's Daily Telegraph, which was signed by 10 prominent patient and health organisations in support of this amendment. They include Action against Medical Accidents, National Voices, the Patients Association, the Health Foundation, the National Association of LINks Members, Patients First, the Neurological Alliance, Rethink Mental Illness, Asthma UK and the Stroke Association. May I remind the House that just last year the Health Select Committee in another place also recommended that a duty of candour be included in the CQC's registration requirements? Also, in his closing submission to the Mid-Staffordshire public inquiry, which found gross examples of what happens when cover-ups are allowed, counsel for the inquiry raised doubts about the adequacy of the proposed non-statutory contractual duty of candour. The inquiry may well have something to say about the merits of a statutory duty. I hope that in his response the Minister will at least indicate whether he can promise that the Government will consider their current refusal to listen to alternative views and what the inquiry has to say and hold a new consultation including the option of a statutory duty.
As your Lordships should be aware by now, the contractual duty will not apply to GPs and others in primary care but just to NHS hospitals. Since the debate in Committee, it has been brought to my attention that the contractual duty proposal has another fatal flaw-it would apply only to those incidents which have already been reported to the CQC through the national reporting and learning system. It would therefore be next to useless in preventing cover-ups and, as the
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I am sure that the noble Earl, Lord Howe, has had time to consider responses to the consultation. He will also have seen extreme disquiet from GPs and others who will be on clinical commissioning groups, who are being asked to take on the wholly unexpected role of a national regulator with regard to a duty of candour. They will have quite enough on their hands to cope with without taking on this additional role. Frankly, it is hard to see how they could possibly do it justice.
The argument that the CQC could not cope with regulating the duty of candour proposed for its essential standards of quality and safety is simply not credible. It is clear from the letter the noble Earl sent me that either there has been a fundamental misunderstanding of what is actually proposed by the amendment, or the CQC is playing games, or both. The amendment would mean that organisations would have to demonstrate that they take all reasonable steps to ensure openness with patients. This is the same formulation of words used for the regulation covering the obtaining of consent. It does not mean that the CQC would have to monitor each individual communication of incidents any more than it monitors individual incidents of consent being obtained. It would, however, be able to check that organisations have the appropriate policies and procedures in place and train and support staff in being open. It would be able to take action on suggestions that an organisation was not promoting and supporting openness when things go wrong. The CQC already has in its regulations a requirement for organisations anonymously to report incidents that have caused serious harm through the national reporting and learning system, but no requirement to be open with patients. This is a truly shocking anomaly which would remain in place under the current proposals. How can it possibly be right that the CQC can use enforcement powers as regards an organisation which is not reporting incidents through the official system but cannot take action against an organisation which it knows may be covering up these incidents from patients and their families?
We should just look at the "Panorama" programme that exposed terrible bullying and cruelty to patients at Winterbourne View. We must do better. While the ability of the CQC to use its enforcement powers when there is no compliance is an important safeguard, we should not lose sight of the fact that it is the very inclusion of an issue in the essential standards of quality and safety that makes up the CQC registration requirements. That sends such a powerful message and supports cultural change.
I do not think for one moment that creating the regulation that I am seeking will, on its own, change culture and behaviour overnight. However, just as with the other essential standards, the fact that openness with patients would be enshrined in the standards and given the priority it deserves would underpin and promote a culture change in the right direction. Not to do so sends the message that being open with patients is not really important at all.
I believe we are all in agreement that being open with patients is the right thing to do, and something serious needs to be done to make this a genuine
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Lord Harris of Haringey: My Lords, my name is down in support of the amendment. I want to make it clear at the outset that it is substantially different from the amendment put forward in Committee and has taken on board a lot of comments and points made during the helpful debate at that time.
As far as I am concerned, the origins of this go back to my meeting 18 years ago with William Powell about the death of his son, Robbie, when I was director of the Association of Community Health Councils. Mr Powell was concerned about the failure of the system to give him and his family answers as to why his son had died. Mr Powell is still campaigning for a change in law to place a requirement for some sort of duty of candour. Interestingly, that case eventually reached the European Court of Human Rights in May 2002. In its judgment, the court made it clear that at present there is,
- "no duty to give the parents of a child who died as a result of their negligence a truthful account of the circumstances of the death, nor even to refrain from deliberately falsifying records".
Most of your Lordships would find that a pretty shocking and appalling statement in this day and age, but that is where we are as far as the law is concerned and it remains a continuing consideration.
In September, as chair of the Independent Advisory Panel on Deaths in Custody, I had a listening day with a group of families whose relatives had died while detained under the Mental Health Act. Those families reported a lack of information from NHS trusts. One family reported that they,
"They didn't disclose anything, it was a battle to the end".
One parent explained that it was like being,
These are parents or families of people who have died while in mental health care.
Even more alarming for families was the misinformation frequently provided to them. They thought that there had been a whole series of flaws in the way that the cases of the deaths of their loved ones were investigated. One said:
"The first time I had opportunity to speak to anybody was the consultant. Nobody told me about the investigation. I told the consultant that I wanted a meeting with nurses and see what happened ... Consultant and matron came for the meeting with
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The problem is that most families feel that the investigations are not independent, and many of them feel that they are presented with lies. The problem is that the existing system does not work. It is not adequate as it presently stands.
The amendment has been significantly changed. It now relates explicitly to organisations rather than individual practitioners. The background is that there is currently no statutory requirement for organisations that provide NHS services to tell a patient, carer, or representative when something has gone wrong during their care and treatment that causes harm. The issue is left to guidance and a non-binding requirement in the NHS Constitution to have regard to the principle of openness. This has allowed cases to occur where NHS organisations have withheld such information from patients, delayed its release or, worse still, actively covered it up.
I understand that the Government have agreed that a duty of candour is required, but their preferred route is a contractual duty built into the standard contracts between commissioners and some providers of NHS services. Patient organisations and others do not believe that that is sufficient. It would not include all NHS providers-for example, GPs, dentists, pharmacists, and so on do not have such contracts-and it would not create access to the sanctions which the Care Quality Commission has at its disposal. Under the Government's proposal, as the noble Baroness, Lady Masham, said, the duty would apply only to incidents which are already being reported through official systems, so it would be useless in preventing cover-ups.
The amendment would require the Secretary of State to create a statutory, enforceable duty of candour by amending the registration regulations of the CQC. All healthcare providers would then have to comply with them to be registered. Of the issues raised in Committee, the most important, raised by several noble Lords, including the noble Lord, Lord Winston, who I do not think is in his place at the moment, and the noble Lord, Lord Walton, was that that might overlap or conflict with the clinicians' professional duties and the existing arrangements under the General Medical Council and other codes of conduct organised by regulatory bodies. The proposal in the amendment is for a statutory duty of candour placed on organisations, not on individual health professionals. It therefore complements, rather than duplicates or confuses, the duties in health professionals' codes of conduct.
Indeed, Harry Cayton, the chief executive of the Council for Health Regulatory Excellence, has said:
"We support the introduction of a duty of candour in the CQC's registration requirements, which would mean that the ethical responsibility of health professionals would be shared by organisations delivering healthcare services".
Frankly, at the moment, doctors and nurses can be put in an impossible position where they would want to honour their ethical and professional obligations but are told by managers and lawyers within the organisation for which they work not to be fully open with patients.
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Of course, the amendment is not designed to get in the way of culture change. Several noble Lords said that we want culture change. No one disagrees. The point is that this will support the process of culture change. There is no argument for not setting out in regulations what is by any reasonable assessment as important and essential a standard of quality and safety as the others already set out in CQC regulations.
Lord Walton of Detchant: In relation to candour, the noble Lord may know that the General Medical Council published guidance just two weeks ago making it incumbent on doctors not to sign a contract or agreement that prevents them giving information which might be detrimental to the organisation that employs them. In other words, gagging orders are no longer accepted by the GMC as being part of a contract into which doctors can enter.
Lord Harris of Haringey: I am grateful to the noble Lord, Lord Walton, for that. It is an extremely important step forward and it recognises that there is an existing problem that requires the GMC to take that stance. I think that there is a distinction between gagging clauses and the sort of persuasion and pressure that may be applied to clinicians behind the scenes under such circumstances. This amendment focuses on the organisation's responsibility and on how the managers and lawyers within an organisation should meet those obligations of candour.
I know that there has been some concern-I think that the Minister has expressed it at various points-about whether the CQC would be able to cope with regulating this duty of candour. It is worth making it clear that there is no question of asking the CQC routinely to monitor every incident with patients; it is simply about the expectation that it will be there as the backstop.
There is already a duty in the CQC's statutory registration regulations to report to the CQC incidents that cause harm, but it is a duty which requires the organisation to report the incident to the CQC and not to the patient. It is rather anomalous that there is an obligation requiring an organisation to report something to the CQC but not to the patient at the same time. Quite clearly the CQC should have this information and be able to respond to and deal with it.
The point is that the CQC has always said that it could regulate this requirement if the Department of Health so wished. I think that there has been some recent correspondence with the Department of Health which has recognised that the CQC is currently under considerable resource constraints. However, I have seen copies of e-mails released under the Freedom of Information Act-
Baroness Wall of New Barnet: I thank the noble Lord for giving way for the second time. I certainly support the amendment but I worry about the examples that he has used. The cases that he has put forward and the experience of the patients and families concerned are horrendous and outrageous, but what I found
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Lord Harris of Haringey: I am grateful to my noble friend for that intervention. She has highlighted the fact that there are different practices around the NHS. Quite a number of trusts take a very positive approach, as she has described, whereby the natural assumption is that you are open because that is what the Department of Health would expect. However, the number of instances where that is not always the case and not always the culture that is adopted, is striking. That was, for example, reflected in the group of families that I met whose family member had died while being detained under the Mental Health Act; it was reflected in the case of Robbie Powell; and it was reflected in a large number of the other cases that the patient organisations which the noble Baroness, Lady Masham, listed, have come across.
So there are two cultures within the NHS and we need to ensure that the culture within the NHS is the best. That is why a statutory duty of candour would support the process, rather than hinder it. It would not cut across the position of the individual professions-indeed it would support it-and, as the noble Lord, Lord Walton, has highlighted, there has been much recognition by the General Medical Council that this is an issue-
Baroness Whitaker: I apologise for interrupting my noble friend. Perhaps I might add something to the other side of the balance. I am aware of two very recent cases-one of a death and one of a hospital-acquired infection-where information was covered up. It is not simply the case that there is a uniform culture of candour.
Lord Harris of Haringey: I am grateful to my noble friend for that reinforcement. I regret that, within some NHS trusts and some provider organisations, there is not the same approach. There is a concern that it is better to keep a patient, or the family of a patient, in ignorance and hope that the whole matter goes away. The purpose of the amendment is not to penalise the individual clinician-we all recognise that accidents happen-but to foster the culture of openness that the
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Baroness Tyler of Enfield: My Lords, I have a few remarks to make in support of the amendment, to which my name is attached. I shall be as brief as possible, because much of what I wanted to say has already been said. I pay tribute to the noble Baroness, Lady Masham, for arguing so eloquently for a statutorily enforceable duty of candour.
Having listened to the debate, I remain of the view that a provision in the Bill requiring provider contracts to include a duty of candour clause would be the best way forward and would send the clearest possible signal to the whole healthcare system about the need for openness. We have already heard that, as presently constructed, not all parts of the healthcare system would be covered by the contractual route. It would certainly send a much stronger message than merely relying on the contractual route. I do not see the two being mutually exclusive nor do I think that the principle of contractual freedom would be compromised by having a statutory duty of this sort. I believe that the duty of candour issue is of a different order from much of what else will appear in provisions in provider contracts. I also believe that it resonates very well with the public and would make a reality of what I think should be the most important underlying philosophy of the Bill, putting the patient first and the whole "No decision about me, without me" mantra.
Many noble Lords on these Benches feel very strongly on this issue. The key principle at stake is the right of patients, their families and their carers to know what has gone wrong with their care and treatment when, unfortunately, mistakes, including negligence, have been made. The statutory route would help to ensure consistency. We have already heard an interesting debate about the current lack of consistency. I very much agree with the noble Lord, Lord Harris, about the extent to which it would help to change the culture under which, currently, we know cover-ups have occurred, and make them much less likely to happen in the future. I recognise that a statutory duty alone will not achieve this; it will be a necessary but not a sufficient condition. The culture change that we have heard about will need role models among both clinicians and managers walking the walk, as well as training and support for staff, so that mistakes are acknowledged and, critically, lessons are learnt from the mistakes.
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I know that my noble friend the Minister has taken a close interest in this issue and listened very sympathetically to the many representations that he
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Lord Faulks: My Lords, I join the debate for the first time, conscious that I was not here in Committee. However, I read closely the debate that took place then and have also read the debates on the subject in the other place. My perspective on the issue comes from spending the past 25 years or so involved in clinical negligence cases, acting as a barrister for patients, doctors and other healthcare professionals, employed privately or by the NHS. Although the amendment is not specifically about litigation, the effect it may have on claims is important.
Much has changed in the way that healthcare professionals approach complaints and claims made against them. Where once it was difficult to obtain clear information about what had happened in some adverse event, often this is no longer the case. Similarly, where once medical professionals were inclined to close ranks, this is very far from the case now, where many current and former healthcare professionals provide opinions about the competence of their fellow professionals. In my experience, some of them are remarkably uninhibited in doing so.
Why have the changes come about? The establishment of the National Health Service Litigation Authority, which commenced its activities in November 1995, has been very much a force for good. Consistent with its aims, objectives and functions, the NHSLA has administered the schemes in a way that has done a great deal to increase public confidence that the truth can be obtained without too much difficulty. Where fault is found, the NHSLA is committed to providing proper apologies and explanations.
I pay tribute also to organisations such as AVMA, which was mentioned by the noble Baroness and which has championed the cause of the victims of medical errors and contributed to a much more effective system of litigation. It is appropriate to acknowledge also the major contribution of the civil procedure rules, which were the result of the investigation into civil procedure by the noble and learned Lord, Lord Woolf. The result is a much more open approach, with disclosure of rival opinions before trial and much greater control by the courts of this potentially vexed field of litigation.
I have a reservation concerning legal aid. The LSC, shortly to be replaced as a result of the LASPO Bill, has ensured that firms that conduct this type of litigation are franchised. I worry that with the potential disappearance of legal aid in this field we could return
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That is not to say that all is perfect. The duty of candour was, I think, first encapsulated in the Making Amends report in 2003 and has been championed by the former Chief Medical Officer, Sir Liam Donaldson; and, as other noble Lords have pointed out, the case of Robbie Powell has had a great deal to do with promoting the need for candour. I cannot imagine that anyone in your Lordships' House is against candour or in favour of medical cover-ups. However, the question that the House has to consider is whether this amendment is really the right way of improving the culture when there are iatrogenic events.
There has been a considerable amount of research, mostly in the United States, about the effect of greater candour on patients' willingness to sue, including an article in the New England Journal of Medicine in 2006 by two obscure politicians, Hillary Clinton and Barack Obama. I think it would be fair to say that the research on the issue is somewhat inconclusive. While some have clearly welcomed an earlier explanation of medical errors and have been dissuaded from litigation by a culture of openness, equally others have been encouraged to pursue cases that they might otherwise not have pursued because of the disclosure of errors by medical professionals.
The House is, of course, aware that when mistakes happen the NHS constitution requires staff to acknowledge them, apologise, explain what went wrong and put things right as quickly and effectively as possible. Professional codes of practice for doctors, nurses and NHS managers contain similar duties, and there are rights in the Data Protection Act that serve to empower patients, but the Government, as we know, intend to go further. It is a matter for consultation, but it is anticipated that there will be a contractual requirement on the part of all those engaged by commissioning bodies to have this duty of candour, which will involve openness about incidents involving at least moderate or severe harm or death, if not even minor incidents.
We must be careful not to underestimate the difficulty involved in trying to encapsulate the obligations that could be placed upon healthcare professionals. Thanks to the Compensation Act 2006, an apology is no longer to be construed as an admission of fault, but the House ought to consider, I suggest, just how difficult it may be for an individual, albeit via an organisation, to decide whether there has been an error such as to come within the scope of this amendment so as to bring about the various consequences envisaged by it. Where there has been an egregious error, such as the wrong patient being administered an injection or even the wrong limb being removed, that is one thing, but there are many cases in which there may be a suboptimal outcome and it is arguable that there was a departure from the appropriate standard of care.
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I have spent a large part of my professional life listening to doctors of one sort or another giving their opinions, often contradicted by other opinions, about whether there has been fault. Even a so-called reasonable opinion, the expression used in the amendment, may not be accepted by another reasonable expert. What of the quite frequent cases where some acknowledged risk involved in a procedure has eventuated? Very often, this will just be the result of happenstance and involve no fault on anyone's part. I am concerned about how this amendment would work in such circumstances.
I noted the observations made by the noble Lord, Lord Winston, and the noble Lord, Lord Walton, who is in his place, about this. I have often found that some doctors are almost too ready to admit mistakes when they have not made one, so anxious are they about the welfare of their patients. We should be careful that in encouraging candour we do not impose what I have to say is a not particularly coherent obligation in the form of this amendment. Surely the most important objective is to encourage candour so that it becomes embedded in the culture of the NHS. The intense difficulty in defining what that obligation should mean is far better teased out as a result of the consultation that is being undertaken rather than being imposed in the statutory form proposed.
I do not know whether those who propose this amendment intend to press it to a vote. Of course all noble Lords are in favour of candour and against cover-ups. Those who have supported this amendment have done a great deal to contribute to the continuing debate about the whole question of candour and should be congratulated on that, but I respectfully suggest that this amendment will not help patients or provide clarity for professionals and therefore will not provide any real benefit. I will oppose it.
Baroness Oppenheim-Barnes: My Lords, I am obliged to my noble friend Lord Faulks for provoking me into thanking him for having read the proceedings of our earlier debate on a similar amendment, in which I spoke at length about the total impossibility of someone with money and influence bringing a case against a doctor or a hospital in a situation that was completely black and white. I went into this detail only to convince those who-quite rightly-want this candour that it will not result in an "open sesame" for bringing cases in which a mistake has been made or completely bad treatment has been given.
I would also say that I wish anyone trying to deal with the General Medical Council the best of British luck, because it is not easy. It is a long process, and it involves a great deal of information being given. Even when the consultant involved has said, "I am very sorry, I have made a mistake, I have failed", the GMC still does not find it necessary to criticise that surgeon in any way at all.
On the amendment, my noble friend the Minister was kind enough following the last debate to circulate to those who had participated a note from the NHS giving details of the steps that it takes after a mistake has been discovered: dealing with patients in counselling, apologising, all the important things that we would
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Baroness Pitkeathley: My Lords, the noble Lord, Lord Faulks, speaks with his extensive legal experience, which I certainly could not match, but I have very extensive experience of working with patients and their families. It is in that respect that I support this amendment. I particularly support what noble Lords have said about seeking culture change in the NHS.
One thing that gets in the way of that culture change is the anxiety about why patients want candour and the truth. My experience is not that they seek redress or even want to pursue legal action-time and again any consultation with patients will show you that that is not their aim. Their aim, almost always, is to achieve closure after a distressing incident. What a patient said to me a year or so ago is typical: "I just wanted them to admit that something had gone wrong and say sorry. I knew it could not bring my brother back but it would have helped us come to terms with it". That is what patients are seeking and that is what this amendment will help to achieve. We can all agree that if we are to achieve more culture change, we must move towards a greater degree of openness throughout the NHS.
Lord Newton of Braintree: My Lords, I am tempted to chip in-rather unwisely, no doubt, as usual-by the last two speeches. If it does not seem paradoxical, I must say that I agree with almost every word of both of them.
I certainly share the view of the noble Baroness, Lady Pitkeathley, and have some experience in having chaired three NHS health trusts since 1997, that there are too many cases in which an apology, together with an assurance that action will be taken to make sure it does not happen to anyone else, as well as achieving closure in the individual case would have made a material difference. I would add that ingredient to what she said. Indeed, I could give examples of where I spent hours of doing exactly that in one of my capacities with some parents who had experienced a tragic loss. I endorse that and I think that she is right. I also endorse her comments about not quite recognising this as a common feature in health trusts.
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Most importantly, like everyone else I am in favour of motherhood, openness, transparency, guide dogs for the blind and all sorts of things. However, I have some worries along the lines so expertly expressed by my noble friend Lord Faulks about the effects of writing this proposal into the Bill and whether it would achieve what we really want. Everyone agrees that a culture change is required. From my experience, the key culture change is the willingness of teams of clinicians-I do not mean just great doctors but nurses and all sorts of others-to own up in case conferences
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My concern is that this duty of candour, which in this amendment is placed on organisations and not on individuals, seems to lead inescapably to the imposition of such a duty by the organisation on the individuals in their contract of employment. Therefore, at one remove, the effects would be much the same. My concern is one of ambivalence rather than certainty as to which will prevail. Will it be the influence on the organisation, or will it be the effect on the individual who knows that something has gone wrong and finds himself in a position not to own up or to be faced with the possibility that if he does own up, it might escalate all the way up to a massive clinical negligence claim?
I am only speculating, but it is very difficult to predict exactly what the effects of legislating in these terms would be. Since we all want to see greater openness and transparency, a greater willingness to apologise and for teams to say, "We got that wrong. How will we make sure that it doesn't happen again?", we should be a bit cautious before going down that track. If, as the noble Baroness, Lady Masham, said, the Minister has indicated that he would like to tackle this matter in secondary legislation, guidance or whatever rather than through primary legislation, as there is for welfare reform, that may be a far more productive way to approach it than what is proposed in this amendment.
Baroness Williams of Crosby: My Lords, we have had an extraordinarily well argued debate and I do not want to involve myself for more than a minute or two because it would waste the time of the House. Perhaps I may pursue for a moment, in the hope that my noble friend Lord Howe will respond, to the point made by the noble Lord, Lord Walton of Detchant, earlier in the debate. When teams of people are involved, as they clearly often are in the case of major surgery or other major treatment systems, the team has to be persuaded with regard to the duty of candour. Very often, it is not the most senior members of such teams, such as the consultants, or the most junior members of such teams who know best about what has gone wrong. It is often true of nurses. It can even be true of assistant care workers, as we learnt all too severely from the case of Southern Cross and the cases in Bristol.
I simply want to ask whether we should not couple whatever we decide on this amendment with a complete refusal to accept gagging orders on junior staff when inquiries are made of those who are senior to them, whether they are private companies or senior figures in the National Health Service. It was encouraging to hear the noble Lord, Lord Walton of Detchant, say that there is a long way to go. Unfortunately, gagging orders are very common in the health area, and they are something that must be addressed if we are serious about getting to the bottom of things that go wrong in medical treatment.
Baroness Finlay of Llandaff: My Lords, I considered long and hard whether to add my name to this amendment. The gagging orders to which the noble Baroness, Lady Williams, has just referred run completely
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Patients need to know what has happened. I admire my noble friend Lady Masham for persevering with her research into this issue and presenting it to us today. The tension arises between an individual, a doctor registered with the GMC, on whom there is a duty of candour as an individual to be open and honest with patients if things go wrong-indeed, in the relevant paragraph in Good Medical Practice 2012, the word "must" appears, which means what it says, as opposed to "should", which is advisory-and organisations. When things go wrong, there is often a series of errors that become compounded, along with other events that may seem insignificant. For example, a patient's notes were not available on one occasion when they were seen so the wrong investigation was ordered, and things went on from there. Another difficulty is that it is sometimes the patient's own behaviour which contributes to the cascade. It can be difficult to confront a patient who is already distressed with the fact that the way in which they have behaved-perhaps by discharging themselves or by going off to some alternative practitioner-has contributed to the way in which things have gone wrong. Another simple example is, if you do not know that a patient is taking a certain medication, it can be very difficult to predict an interaction with a prescribed medication.
I should declare my interests, which I did not do earlier in our debates-I hope that the House will forgive me-as a fellow of the Royal College of Physicians, a fellow of the Royal College of General Practitioners, a member of the British Medical Association and a practising clinician. I will always remember as a medical student meeting a general practitioner who took me for a walk in a small village on a Welsh hillside. He took me to the churchyard and said, "I want to walk you around the churchyard". I asked him why, and he replied, "Because I want to introduce you to my errors". He had been working in the village for many years. Sadly, as a junior doctor I was in a hospital where there was a catastrophic medical error. What that taught me more than anything is that you have to be open from the first moment you realise that an error has been made. Anything other than openness fails.
To reinforce the remarks made by the noble Lord, Lord Newton, and the noble Baroness, Lady Pitkeathley, whenever I have had to tell patients that something has gone wrong, however minor it may be, I have been astounded at how grateful both they and their families have been for the fact that I have told them. They are also grateful when we institute intensive monitoring procedures, which can mean that patients are woken every hour through the night, and express relief touched with a sense of humour when such intensive monitoring is no longer required. Time and time again when things have gone wrong, there is an overwhelming
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The difficulty with having this clause in the Bill is the potential for unintended consequences. That is why I hesitated about adding my name to it. I hope the Minister will take the matter forward, because this has been a very powerful debate, and put something in guidance. In 2009, the CMO recommended a duty of candour. We really must make it a reality if the implication of "nothing about me without me" is to be honoured. We need to be open, honest and realistic with our patients.
Baroness Hussein-Ece: My Lords, I, too, had no intention to speak on this amendment, having spoken on and supported the proposal for a duty of candour in Committee. Patients and public quite rightly have higher expectations of the services they receive from the NHS, both for themselves and their families. They are also better informed, and they expect NHS clinicians, carers and nursing staff to respond to that. This is not just about graveyards, as mentioned in the rather alarming story recounted to us by the noble Baroness, Lady Finlay, but also about care. Patients might not have received the quality of care that they expected. I have had experience of that with my late father. When he was terminally ill, the standard of nursing care was so poor and so distressing that the onus was on me, on behalf of my family, to take it up with the chief executive or whomever I could find and say that things were just not good enough. Even as someone who had worked in the health service and spent time as a chief officer for a community health council representing patients, I still found it hard to know who was the right person to take a complaint to. It was not a serious complaint-about medication, for example-it was just about the standard of care. In fact, the consultant on the ward asked me to take up the matter because he was so concerned and could not do anything about it himself.
What worries a lot of trusts, and I came across it in my career in the NHS, is that an apology might somehow be taken as an admission of guilt. They were therefore reluctant just to give a straightforward apology. In my case, I had to complain about a particular member of the nursing staff, with the case continuing after the death of my father and disciplinary action being taken against the individual concerned, but I still did not receive an apology. Even after my complaint was upheld, there was no apology. There was no sense of, "Yes, we realise things went wrong"; rather, it was, "Yes, this person did something wrong and she is going to be dealt with". There was no apology, no statement of how things would change and how the culture in that particular ward in terms of caring for older patients would improve. A basic apology should be the very least thing that could happen, without there necessarily being an admission of liability or of guilt. At the human level, an apology should be made to somebody who has suffered, or to their family.
People also want a simple explanation. They do not want an incomprehensible letter about treatment; they want a step-by-step, basic explanation of what should
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Those two or three simple measures should be put in place and become the norm. We have heard in this very interesting debate that there are variations, and there probably always will be, but we should expect a minimum standard when things go wrong or when services are perhaps not what they should be.
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Lord Ribeiro: My Lords, I would like to comment on the good medical practice to which the noble Baroness, Lady Finlay, referred. It was introduced some time ago to ensure that medical practitioners would know how to communicate with their patients and were always honest and truthful when things went wrong. In surgery, we produce good surgical practice to complement that exercise. In relation to patient communication, we require surgeons to keep patients fully informed both during and after their treatment. We require them to act immediately when patients suffer harm and to apologise.
As for anecdotes, I had one patient on whom I operated for varicose veins. I pulled up something in the back of her leg that looked like a vein, but in fact it was a nerve. The net result was that the next day she had a foot drop. I went to see her and explained that I had made a mistake-I thought that it was a vein but it was a nerve. I said that we would get a plastic surgeon to see her and we would re-explore the nerve to see if it was all right. The operation was done, and, fortunately, the nerve was not torn. The period required for regeneration was likely to be six months. Every time she came to my out-patients' clinic-although she was a private patient-I used to get a terrible feeling in the pit of my stomach, because I could hear her coming down the corridor as her foot drop made a flopping sound on the floor. She would sit down opposite me and say, "You know, I really ought to sue you". She never did, however, because she had been told straight away the whole truth of what had gone on.
Therefore, I have tremendous sympathy for this duty of candour. What worries me is that we could end up with a contractual mechanism in legislation that leads to nothing more than a tick-box exercise. The problem with such exercises is that people will fill them in to try to avoid the legal implications that we have heard of. They will try to avoid litigation. The quality of any genuine explanation may well be lost in such a mechanistic approach. Although it has taken five or six years since the CMO first introduced this concept, we need to do very much more to change the culture. I hope that with the creation of new organisations such as local healthwatch there will be opportunities to raise the profile of the issue and to achieve the sort of explanations that patients rightly deserve.
The Countess of Mar: My Lords, when my daughter was a little girl I brought her up to tell me immediately if she had done something that she should not do or if she had had an accident, and to say sorry, and she
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I suspect that it is not necessarily the doctors and nurses-the medical practitioners-who are covering things up when there is a cover-up. It might be what we euphemistically call the pen-pushers-the people behind the doctors and behind the organisation who are afraid that the organisation will come into disrepute. That is where much of the problem lies. Many doctors would like to be able to say, "I'm sorry-I made a mistake", but they are held back, which is what the noble Lord, Lord Harris of Haringey, said. If we are going to change the culture, we must start with leadership. We have heard about leadership in nursing. A nurse leader or a doctors' leader can say to the whole of his team, "If you make a mistake please come and tell me immediately and we will go and tell the patient". That would wipe out a whole lot of anxiety.
The noble Lord, Lord Faulks, talked about litigation. People go to law because they are angry. They have not had an explanation and they are worried that something has gone wrong with a relative or themselves. That is when they go to law. That is what happened with the sheep-dip farmers, and it certainly happened with the Gulf War veterans when Mr Soames, the MP with responsibility for the Gulf War veterans at the time, said, "See you in court". They rise to that. If people have an explanation, they will accept it. Everybody makes mistakes, and they will understand it. So I support the noble Baroness, Lady Masham, in her cause.
Lord Cormack: I was not intending to take part in this debate, but it has been a thoroughly fascinating one. The noble Countess, Lady Mar, talks about people wanting an explanation, and of course she is absolutely right. People go to law when they are angry, she says-and that is also right-but they also go to law when they can afford it. One of the problems is that so many people cannot afford to contemplate it, yet as we have grown into this no-win no-fee culture more and more people have thought of the law and more and more doctors and nurses have become terrified of finishing up in a court of law. This is why I, as a former constituency Member for many years, who saw many of these cases, am persuaded by what my noble friend Lord Newton said. While we wish to see the Minister respond sympathetically to the amendment so movingly proposed by the noble Baroness, Lady Masham, I hope that he will give the undertaking for secondary legislation and guidelines that would meet our concerns this afternoon.
I have great confidence in my noble friend. I have an anecdote in which he is involved. For many years, I had a constituent who came to me with a series of stories, some of which were very plausible, others of which were less so. I referred this lady to my noble friend, who was the health spokesman for my party-we were in opposition at the time. I was tremendously impressed by the thoroughness with which he looked into these cases with me. Indeed, we came to the
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Baroness Wheeler: My Lords, on behalf of these Benches, I would like to support Amendment 17 in the name of the noble Baroness, Lady Masham, to which I have added my name. As we did in Committee, we have again had an excellent debate, which I believe has gone a long way towards addressing the concerns expressed by some noble Lords during Committee and during this debate about making the duty of candour statutory, as well as demonstrating why the Government's approach of relying solely on a contractual duty will not work or lead to the sea change in culture in the NHS that is needed to ensure openness and honesty when things go wrong in the care and treatment of patients.
The case for the introduction of a statutory duty has been forcefully made by the proposers and supporters of the amendment, and I shall not go over the issues again in detail. The amendment from Committee has now been substantially redrafted to ensure that there is no duplication or clash with the professional regulation and that the duty of candour applies only to actual patient-safety incidents, as already defined in statute. Thus we would no longer face the problem of how to define whether or not an incident is serious or harmful or whether it could lead to potential harm in future, a consequence feared by some noble Lords and by the Minister in his response to the Committee debate. Instead, our amendment would amend the current Care Quality Commission (Registration) Regulations by drawing on the actual text used in those regulations, requiring patient safety incidents which cause harm to patients to be notified to the CQC. The effect would be to place a statutory duty on any organisation registering with the CQC to,
openness with patients when things go wrong and cause harm. The definitions of harm and the organisations to which the duty would apply are exactly the same as those currently used to require notification of incidents to the CQC.
The Government's main arguments against statutory duty of candour are threefold: first, that implementing the contractual duty would suffice, and bring the
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However, as noble Lords have said, existing provisions exhorting NHS organisations to openness and health professions to openness and disclosure are not changing the culture of denial, obfuscation and blame that is so deeply embedded in many parts of the NHS when things go wrong. The instances of serious failure in care and treatment that have led to the campaign by patients' organisations are, as we have heard, deeply shocking and tragic. Expecting CCGs to have the strength and will to take on powerful providers that have failed to be open and to enforce remedial measures without the support of a statutory authority will not achieve the changes we need.
On the role of the CQC, noble Lords have more than answered the Government's reservations. It is an appropriate role for the regulator and the new duty of candour would not require detailed monitoring of individual incidents or communications with patients, but could be reinforced by the CQC by using its guidance already in existence and setting it alongside all the other essential standards of quality and safety which have statutory force. I hope the Minister will reconsider his position and accept in principle that the duty of candour should be statutory, and incorporated into the Bill.
We of course recognise that there would need to be considerable work and consultation undertaken with all stakeholders to introduce and implement the statutory duty of candour. The work around implementing the contractual duty could be put to good use in this effect, as it would complement the statutory duty. Moreover, putting the principle into the Bill and working out later how it is to be implemented has been a central feature of most of the Bill's provisions, so it can be applied in this case. Tuesday's letter in the Daily Telegraphfrom all the leading patient organisations emphasised that the introduction of a statutory duty of candour,
On these Benches we endorse this, and I hope that the Minister will now reconsider his position and accept this amendment.
Earl Howe: My Lords, this has been an excellent debate and I would like first to pay tribute to the noble Baroness, Lady Masham, for her tireless advocacy of the need for openness and transparency in the NHS. She spoke very powerfully. What struck me from the debate is the consensus that there seems to be on all sides of the House on three key points. First, there is agreement on the importance of openness and candour in healthcare, and I think we would all accept that the NHS could only call itself a world-class health service if it embraced openness wholeheartedly. Secondly,
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I, too, am in complete agreement with those points. I agree that we must do all that we can to encourage the development of a culture within the NHS that supports people to disclose where errors have occurred, so I am at one with the noble Baroness in her intention in tabling her amendment. The question before us is not whether we should do something but what we should do. We need to ensure that the route that we choose gives that good intention the best chance of succeeding. I note from today's debate that opinion has not been all one way.
5.30 pm
In that context, I remind the House that the Government's preferred position is to place a duty of candour in the NHS standard contracts. We have chosen that route because we feel that it has the best chance of working. The view that we have taken, on the basis of clinical advice, is that the responsibility for ensuring openness needs to rest as close to the front line as possible, rather than being the responsibility of a remote organisation such as the CQC. I would like to focus noble Lords' minds on that point. A contractual duty of candour places the responsibility for requiring openness directly with the organisation looking after patients and with clinician-led commissioners. That is the main reason why we think it will be more effective. By proposing to place a duty of candour in the NHS standard contracts, we are placing the power to hold the NHS to account as close as possible to the people affected by a lack of openness.
There is another dimension to this. Our proposal would create a single standard requirement that applied across all providers of NHS acute, community, mental health and ambulance care. If you had a statutory requirement, there would always be the potential for different interpretations of it. On a purely practical basis, that means that instead of a national body having to examine many thousands of cases, individual commissioning groups would have the much more manageable task of examining only their own local providers.
Making this a local contractual issue would enable the use of local intelligence about openness, or a lack of it, shared among clinicians, including those leading the commissioning process. That, too, we see as an advantage. That would maximise the chances that a lack of openness would be detected and acted upon, and that the action taken would be appropriate. More importantly, though-and this point was made effectively by my noble friends Lord Faulks and Lord Newton-it would be much more effective at achieving culture change, which, as many noble Lords have said, is what is really required, rather than trying to drive improvement through yet another law or regulation.
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