Clause 80 - Duty of candour

Care Bill [Lords] – in a Public Bill Committee am 4:00 pm ar 23 Ionawr 2014.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Jamie Reed Jamie Reed Shadow Minister (Health) 4:00, 23 Ionawr 2014

I beg to move amendment 139, in clause 80, page 72, line 20, at end insert—

‘( ) The duty of candour specified in regulations made under this section shall require—

(a) healthcare service providers who believe or suspect that treatment or care provided by their service has caused or contributed to death or serious injury to that patient to inform that patient, their representative or other authorised person as soon as is practicable of that fact and thereafter to provide such information and explanation as the patient or other person mentioned may reasonably request, and

(b) registered medical practitioners and registered nurses and other registered professionals who believe or suspect that treatment or care provided to a patient by or on behalf of any healthcare provider by which they are employed has caused death or serious injury to the patient to report their belief or suspicion to their employer as soon as is reasonably practicable.’.

Photo of Jamie Reed Jamie Reed Shadow Minister (Health)

It has been so long indeed. It was a rather high-octane session before the Division in the Chamber, so let me say from the outset, where there is discord,  may I bring harmony. I was not in the Chamber for the maiden speech of my hon. Friend the Member for South Shields, but I think I was in this Committee for her maiden amendment to a Bill. I may have that wrong, but I noticed that the public gallery emptied as soon as she finished speaking, so it was sheer magnetism. It would be remiss not to congratulate my hon. Friend the Member for Easington, who I see is sporting a Sunderland football club tie, on its success in reaching Wembley.

Photo of Bill Esterson Bill Esterson Llafur, Sefton Central

I hope I am not out of order by associating myself with those remarks. Representing a Merseyside constituency, I could not resist.

Photo of Jamie Reed Jamie Reed Shadow Minister (Health)

I completely understand where my hon. Friend is coming from. I shall speak to amendment 139, in my name and that of my hon. Friend the Member for Leicester West. We are discussing what I suspect will be the last piece of health legislation from this Government in this Parliament—I may be mistaken, I cannot read the Government’s mind—and part 2 of this Bill is exceptionally important. Amendment 139 is an important amendment to an important clause, Mr Bayley, and with your permission I will seek to explore the reasoning for it in due depth.

It is important that we all understand the genesis for this part of the Bill, the important issues that it seeks to address and the likely effect of the remedies proposed by the Government in clause 80. Part 2 is simply entitled “Care Standards”, yet each of us knows that this simple definition does not accurately reflect the need for this part of the Bill or, in fact, its genesis. In the course of my contribution, I hope to identify common thinking, so this can lead to the development of common approaches and enduring solutions for the benefit of patients, medical professionals and the NHS as a whole.

Clause 80 seeks to place a duty of candour on providers of health care and adult social care services registered with the Care Quality Commission. The duty means that such providers would be required to ensure that patients and service users are told when something unexpected or unintended occurs in the course of their care or treatment, helping to ensure that honesty and transparency are the norm in every organisation overseen by the CQC. The details of the duty, including when it will apply and what information is to be given to patients or service users, is to be included in regulations.

Given the importance of this issue, I regret that this information is not included in the Bill, as we heard earlier. Such a move would have provided an opportunity for a full, frank and transparent debate between patient groups, care providers, the Department, trade unions, the royal colleges and others. It would undoubtedly have been a difficult debate, but it would in my view have reached a consensus during the passage of this Bill that would have been arrived at transparently. It is a missed opportunity and I hope that the Minister will explain why this has been done in this way. Such a debate on detail could have obviated the need to table this amendment and subsequent amendments. However, we are where we are and the amendment is before us.

The Opposition welcome clause 80, but we are concerned that it does not go far enough. The amendment, which squarely follows Francis recommendation 181, seeks to  strengthen the Bill by ensuring that patients and medical professionals are better protected than the clause currently makes provision for. Most importantly, for reasons that I will explain, it would help to lead towards better standards of care.

Robert Francis made openness, transparency and candour one theme in his report and he made 11 recommendations on that: recommendations 173 to 184. Those holistic recommendations would be much more effective if taken together, rather than treated as a menu of options. Recommendation 181 of the report,

“Enforcement of the duty: Statutory duties of candour in relation to harm to patients” stated:

“A statutory obligation should be imposed to observe a duty of candour”.

That recommendation was in two parts and sought to impose a statutory obligation to observe a duty of candour first:

“On healthcare providers who believe or suspect that treatment or care provided by it to a patient has caused death or serious injury to a patient to inform that patient or other duly authorised person as soon as is practicable of that fact and thereafter to provide such information and explanation as the patient reasonably may request”.

Secondly, it recommended:

“On registered medical practitioners and registered nurses and other registered professionals who believe or suspect that treatment or care provided to a patient by or on behalf of any healthcare provider by which they are employed has caused death or serious injury to the patient to report their belief or suspicion to their employer as soon as is reasonably practicable.”

Our amendment follows that recommendation to the letter. However, what it does not contain, but is directly relevant to the concerns expressed by medical professionals about the individual duty of candour, is that Francis made it clear that:

“The provision of information in compliance with this requirement should not of itself be evidence or an admission of any civil or criminal liability, but non-compliance with the statutory duty should entitle the patient to a remedy.”

I find that hard to resist.

Clearly, we are all passionate about the quality of our health care services and, in recent years, this House, much of the public and the commentariat have focused on that, the most immediate reason being the appalling revelations contained in not one but two reports that relate to separate independent inquiries undertaken by Robert Francis, QC, into the suffering experienced by many patients at the hands of the Mid Staffordshire NHS Foundation Trust. Those reports followed the investigation and subsequent report published by the Healthcare Commission in 2009 that also highlighted appalling failures at Stafford hospital.

This is the first time that the Committee has ventured into any real detail on those issues. Discussion of what took place is, therefore, not only inevitable, but necessary. I repeat the apology made by my right hon. Friend the Member for Kingston upon Hull West and Hessle (Alan Johnson) who, when Secretary of State for Health 2009, apologised on the Floor of the House on behalf of the Government and the NHS for the pain and anguish caused to so many patients and their families. I also repeat the apology made by my right hon. Friend the Member for Leigh (Andy Burnham) when he announced  the first Francis inquiry in February 2010. He was right to state that the quality of care provided at Stafford was

“totally unacceptable and a fundamental breach of the values of the NHS.”—[Official Report, 24 February 2010; Vol. 506, c. 309.]

It is right to pay tribute to all the campaigners who worked so hard to shine a light on the deficiencies they saw, and from which their loved ones suffered, at Mid Staffs. It is also right that we recognise the remarkable work done by Robert Francis and his team, which was laborious, forensic and, sadly, necessary. We owe it to those who have suffered, to every patient using the NHS and to every medical professional who works in it to consider carefully the Francis recommendations. The Labour party has accepted the recommendations entirely and believes that they should be implemented in full.

When considering our amendment, which relates in large part to people working in the NHS, it is important to be clear about what Robert Francis wrote with regard to the NHS and the 1.3 million people who work in it. He wrote:

“The NHS is a service of which the country can be justly proud, offering as it does universal access to free medical care, often of the highest order. It is a service staffed by thousands of dedicated and committed staff and managers who have been shocked by what they heard of the events surrounding the Trust. It is inconceivable to many of them that conditions of the type described by so many patients can have been allowed to exist let alone persist.”

Every member of the Committee will recognise that to be true. On a personal note, I again thank the medical professionals in my community and all those at West Cumberland hospital. I have far too much to thank them for over far too many years. Suffice it to say that they have saved my life twice in recent years, for which I am certain the entire Committee rejoices.

In his statement responding to the publication of the latest Francis report in February 2013, the Prime Minister announced further streams of work stemming from that report. Professor Don Berwick, my right hon. Friend the Member for Cynon Valley (Ann Clwyd) and Professor Tricia Hart were tasked with producing separate reports so that the Department and Parliament could better understand and assimilate the likely consequences of the Francis report for the health service in its entirety in order to determine appropriate policy responses through which to deliver the improvement that Francis recommended. In addition, Professor Sir Bruce Keogh was commissioned to look into 14 trusts across the country.

Those reports are directly relevant to amendment 139 on the principles of candour, accountability and the drive to improve patient care. Building on the work of the Francis report, Professor Don Berwick wrote in “A promise to learn—a commitment to act” that:

“In its core and concept, the NHS has been and remains a world-leading example of commitment to health and health care as a human right—the endeavour of a whole society to ensure that all people in their time of need are supported, cared for, and healed. The vast majority of those who serve in the NHS—clinicians, staff, managers, executives, and boards, contractors and partners—try every day to help to the very best of their abilities, and with deep and appropriate pride in their mission.”

I am sure we all echo those sentiments, to which the amendment is directly relevant.

We all want to stop the feckless demonisation of our medical professions. That is not, and must never be confused with, writing a blank cheque or turning the  other cheek when inadequacies are identified, but we must recognise the damage that constant criticism, frequent hyperbole and frankly false and wilfully misleading media coverage of such issues can cause. The amendment is directly related to that emerging and, for some, seemingly addictive practice. Professor Berwick strongly makes the point in his recommendations:

“Society, in general, and leaders and opinion formers, in particular, (including national and local media, national and local politicians of all parties, and commentators) have a crucial role to play in shaping a positive culture that, building on these strengths, can realise the full potential of the NHS.”

It is essential that we recognise that fact and act accordingly. There is little point in commissioning eminent experts to assist us all in delivering improvements in the national health service if we then turn our back on their work. Professor Berwick makes clear the value to patients and medical professionals if we as politicians consent to work in that way:

“When people find themselves working in a culture that avoids a predisposition to blame, eschews naïve or mechanistic targets, and appreciates the pressures that can accumulate under resource constraints, they can avoid the fear, opacity, and denial that will almost inevitably lead to harm.”

That is entirely what the amendment would achieve: the full implementation of what Francis intended with his recommendations.

When we read the latest Francis report and the other reports that were based on it, there are obviously many similarities. Each report shares the same essential analysis and the same desired end point. Part of that shared analysis is on the differences between systemic failure in the national health service and individual failures. That point was scrutinised in depth by Francis and acknowledged by the Prime Minister in his response to the Francis report when he said:

“Too many doctors ‘kept their heads down’ instead of speaking out when things were wrong.”—

[Official Report, 6 February 2013; Vol. 558, c. 280.]

That was part of what Francis called

“an insidious negative culture involving a tolerance of poor standards”.

I firmly believe that an individual duty of candour would help to change and inform the behaviour of medical professionals in the event of a repeat of anything like the failures that we saw at Mid Staffs. In short, the amendment would prohibit medical professionals from keeping their heads down.

We are trying to improve standards of health care. Francis defines health care thus:

“Health care is not an activity short of systems intended to maintain and improve standards, regulate the conduct of staff, and report and scrutinise performance”.

But time and again, Francis reminds us of the dangers of relying upon systems in the flawed belief that systems are infallible or

“assumptions that monitoring performance management or intervention was the responsibility of someone else”.

He goes further in his letter to the Secretary of State for Health introducing his report, when he describes an individual duty of candour as “an essential aim” of his recommendations. Francis states that it is an essential aim to:

“Make all those who provide care for patients, individuals and organisations, properly accountable for what they do and to ensure that the public is protected from those not fit to provide such a service”.

In the same letter, he goes further by saying:

“it is not the system itself which will ensure that the patient is put first day in and day out. Any system should be capable of caring and delivering an acceptable level of care to each patient treated, but this report shows that this cannot be assumed to be happening”.

Repeated illustrations of care failings occurring since Francis published his report, sadly continue to make the case for an individual duty of candour. It is clear that, in order to improve a system, we have to change the cultures and practices within that system. Francis makes the point repeatedly and I am sure we all share this view. Amendment 139 seeks to achieve a culture change. We seek this culture change with a view to being able to improve the system in which the culture exists and as a means to safeguard against system failure.

Professor Berwick also makes this point extremely well with perhaps one of the most telling illustrations of the need for the individual duty of candour that I have found. I am well aware of what Professor Berwick says with regard to the specific Francis recommendation, but he makes the case here exceptionally well:

“In the end, culture will trump rules, standards and control strategies every single time and achieving a vastly safer NHS will depend far more on major culture change than on a new regulatory regime”.

In my view, the introduction of an individual duty of candour is the best way in which we can achieve that major culture change.

With regard to the events at Mid-Staffs, Professor Berwick stated:

“The only conceivably worthy honour due to those harmed is to make changes that will save other people and other places from similar harm”.

I see this major culture change as being facilitated in part by the introduction of an individual duty of candour.

An individual duty of candour would also assist in the development of better communication in a hospital environment—better communication between medical professionals and patients and better communication between medical professionals themselves. Time and again, the quality of communication is cited as a significant factor in determining medical outcomes and the quality of the patient’s experience. It is also the case—many hon. Members will know this—that the ability to effectively communicate is one of the core principles and values of medical professionalism, as described by the Royal College of Physicians. An individual duty of candour can surely only help in this regard.

I completely understand the anxiety that some medical professional groups have with regard to the introduction of an individual duty of candour. The point is repeatedly made that there is no need for such an individual duty, because existing professional guidelines, professional standards and more already ensure that this duty is observed.

Photo of Norman Lamb Norman Lamb The Minister of State, Department of Health 4:15, 23 Ionawr 2014

I am grateful to the shadow Minister for giving way. I note the second part of his amendment which seeks to introduce the individual duty. Is it his intention that breach of that duty would be a criminal offence on the individual clinician?

Photo of Jamie Reed Jamie Reed Shadow Minister (Health)

I will address that in the full course of the introduction of the amendment. It is an incredibly important point. If you look at Francis’s recommendations 182 and 183, they are clearly dependent upon each other, to a degree, at least in terms of their efficacy.

I was pointing out my understanding of the anxiety that some medical professional groups have shown with regard to the introduction of individual duty of candour. I get that entirely. The point is repeatedly made that there is no such need for an individual duty because existing professional guidelines, professional standards and more already ensure that this duty is observed. As I have indicated, I accept this argument to a degree. However, the logic of the case for the introduction of an individual duty is not changed by this. On the contrary, it is strengthened. If professional standards and guidelines already exist to ensure such candour, there should be no problem or objection to placing such obligations on a clear statutory footing. I would go further and say that such a move is more about the patient than the professional and that although medical professionals will always be aware of their duties and obligations, patients almost certainly will not be.

Photo of Sarah Wollaston Sarah Wollaston Ceidwadwyr, Totnes

There would be a difference in that clinicians would be criminalised. Any clinician will tell you that a clinical decision made in the heat of the moment may well have been right at the point at which it was made. We are asking clinicians to make difficult judgments and if we shifted to a far more defensive culture of practice, there is the danger of unintended consequences. Criminalising clinicians would be a serious step. While I completely agree with the need for culture change, it is better to set such things in regulations, simply because as the culture shifts we may shift other factors, such as moving towards asking doctors and other health professionals not to make disclosures under anonymity. Once we fully protect whistleblowers and the culture changes, there is a shift. The unintended consequences are therefore a strong argument for setting this in regulations and not actually criminalising clinicians.

Photo of Jamie Reed Jamie Reed Shadow Minister (Health)

I understand the hon. Lady’s point and respect her professional judgment, but Robert Francis addresses the point in the language used in recommendation 181. He makes it clear that such an individual duty of candour should not be considered to be an admission of liability or a criminal offence. My point about recommendations 181 and 182 being consistent with each other is that I believe it is the Government’s intention to introduce criminal offence charges with regard to the duty of candour. It is the Government’s prerogative to accept recommendation 182 without accepting recommendation 181, but the two actually strengthen each other if taken together.

Photo of Norman Lamb Norman Lamb The Minister of State, Department of Health

I am grateful to the shadow Minister for giving way. The Government are introducing a statutory duty of candour on providers, making it clear that a failure to comply with that duty is a criminal offence. We have stopped short of placing that duty on individuals for the reasons that my hon. Friend the Member for Totnes explained. I am not yet clear whether a breach of the individual duty of candour that the shadow Minister describes would amount to a criminal offence, so will he clarify that specific point?

Photo of Jamie Reed Jamie Reed Shadow Minister (Health)

It is not our intention that a breach of the individual duty of candour would amount to a criminal offence.

Photo of Norman Lamb Norman Lamb The Minister of State, Department of Health

That is very interesting, but if it does not amount to a criminal offence, what is the point? What does the wording actually achieve beyond a statement of good will and intent?

Photo of Jamie Reed Jamie Reed Shadow Minister (Health)

There is a real point to it, which I will come on to during the rest of my speech on the amendment.

Everyone in the Committee will be aware of the need to protect whistleblowers in public and private institutions, in particular one as important as the NHS. Placing an individual duty of candour on medical professionals strengthens both the whistleblowing principle and whistleblowing practice. Time and again, reports relating to episodes of inadequate care mention the culture of fear that prohibits medical professionals from speaking out for fear of the consequences. Amendment 139 seeks to address that. If the duty of candour is made an individual responsibility, the culture of fear is legislated against. It would not be easy or comfortable, but bearing in mind Robert Francis’s clear recommendation that the

“provision of information in compliance with this requirement should not of itself be evidence or an admission of any civil or criminal liability”,

the case for an individual duty and an explicit commitment to protection within the law make the case for an individual duty. With regard to the NHS complaints process, Professor Hart’s report urges a “freedom from fear”. Amendment 139 seeks to establish that freedom for not only patients, but medical professionals. The amendment is entirely consistent with Francis recommendation 183 about criminal liability, which is accepted by both Government and Opposition. Recommendation 183 states:

“It should be made a criminal offence for any registered medical practitioner, or nurse, or allied health professional or director of an authorised or registered healthcare organisation: knowingly to obstruct another in the performance of these statutory duties; to provide information to a patient or nearest relative intending to mislead them about such an incident; dishonestly to make an untruthful statement to a commissioner or regulator knowing or believing that they are likely to rely on the statement in the performance of their duties.”

Surely, an individual duty of candour would make the need for a prosecution in any of the likely situations suggested by Francis less likely. Not only that, but in the event of a prosecution being brought, whether or not it is successful, individual identities, actions and the consequences of those actions would be highlighted and placed in the public domain.

Clearly, to improve the effectiveness of recommendation 183, recommendation 182, as laid out in amendment 139, would be of significant benefit. The shadow Secretary of State of Health put it best when he said:

“It is only when an individual is both required to speak out, and protected in doing so, that this House can say it has done enough to safeguard patients.”—[Official Report, 19 November 2013; Vol. 570, c. 1099.]

That is the fundamental purpose of amendment 139.

I will turn to the support provided by the Patients Association regarding the introduction of an individual duty of candour on medical professionals. Irrespective of its support for our amendment, I thank it for the  vital work that it has undertaken for decades now. Like us, the association is not convinced that the duty of candour as expressed by the Government will adequately address the issue of poor care in hospitals. It has said:

“Patients who have experienced poor care in hospital are generally not subject to the whim of an individual but have been let down by a team who have either failed to notice the actions of one of their colleagues or who have turned a blind eye to unacceptable practice. There are already professional guidelines in place that require individuals to come forward if they feel a patient is suffering harm or distress. However, we know from our Helpline”— accessed by thousands of people each year, as I understand it—

“that there are too many cases where healthcare professionals are not raising the alarm regarding substandard patients care.”

The association poses a critical question, which I hope the Minister will answer.

Photo of Daniel Poulter Daniel Poulter The Parliamentary Under-Secretary of State for Health

Just to tease that point out further, how would the hon. Gentleman judge whether a medical or health care professional has met the standards he has set and been candid when something goes wrong? How would he put a test in place to do that? All they would need to do is fulfil that.

Photo of Jamie Reed Jamie Reed Shadow Minister (Health)

As with the Government’s existing proposals, we would need to establish a clear threshold, either in statute or with reference to published guidelines. The threshold, which would have to be produced with the involvement and consent of medical professionals, would take time; it would not be simple.

Photo of Daniel Poulter Daniel Poulter The Parliamentary Under-Secretary of State for Health

To give a real-life example, if a junior doctor raises a concern with their consultant orally, but then there is a disagreement about the facts, could the junior doctor be prosecuted because they had not raised the concern in writing? This is a difficult area, and it highlights the potential adverse consequences of an individual duty. The hon. Gentleman’s proposal could lead to innocent doctors who have tried to do the right thing, but not through the right process, finding themselves in difficulty or even being prosecuted.

Photo of Jamie Reed Jamie Reed Shadow Minister (Health)

I appreciate that real-life example, but if the hon. Gentleman looks carefully at both the detail of the Francis recommendations and the report published by Professor Berwick with regard to data capture and the duty placed on medical professionals to provide or produce real-time data of how they are looking after certain patients, and the information that they are providing that patient, he will see that that poses precisely the same issue that he said would arise with regard to what we are collectively seeking to do.

Photo of Daniel Poulter Daniel Poulter The Parliamentary Under-Secretary of State for Health

I think the point here is not about the judgment of whether a health care professional has met that duty, which the professional regulators should already be enforcing. Regulators can take action against a medical professional, and they should be doing so if that professional has not fulfilled their duty to act in patients’ best interest.

Photo of Jamie Reed Jamie Reed Shadow Minister (Health)

I have a great deal of sympathy with that point, but surely, the point of the latest Francis report, the Berwick recommendations, Professor Hart’s study  and the Keogh review is that such systems fail. Individuals need to be more empowered and more accountable for the decisions they make on a case-by-case daily basis.

I will come to the key objective of the Patients Association in a second, but it posed a critical question that relates to the interventions just made. I hope the Minister will be able to answer this in due course. The Patients Association stated:

“We question that if individuals are not already motivated by their own professional code, how will a duty on their employer encourage them to come forward?”

That is a critical question that in many ways goes to the heart of the matter. The key objective for the Patients Association is to ensure that whistleblowers come forward without fear of retribution. If they feel that a patient is receiving substandard care, they ought to be encouraged and safeguarded in coming forward. The Patients Association claims:

“Without this fundamental change within the NHS, the Duty will just be providing lip service to the issue of patient safety and patients will struggle to see any real improvements.”

Taking such concerns in tandem with the observations of Robert Francis and Professor Berwick with regard to the limitations of systemic change in achieving the necessary culture change in the national health service, can the Minister convince the Patients Association why an individual duty of candour is not necessary? Systems are characterised by individual actions, and the introduction of individual enforceable duties is key to improving how a system works.

Amendment 139 also seeks to address the hierarchy culture that I am sure many Members will have experienced with regard to the NHS. I am not talking about a procedural hierarchy culture, but a cultural hierarchy. In some NHS institutions—in many workplaces, public and private—it can be suffocating, operating almost like a caste system. Such attitudes are probably embedded within the NHS, rather than caused or produced by the NHS, but it does little for holistic working practices.

In his superb report of 16 July last year, Professor Sir Bruce Keogh noted how the

“limited understanding of how important and how simple it can be to genuinely listen to the views of patients and staff and engage them in how to improve services” was a common theme among the 14 trusts he investigated. He then made an incredibly important point directly relevant to the intentions of amendment 139:

“For example, we know from academic research that there is a strong correlation between the extent to which staff feel engaged and mortality rates.”

The new duties placed upon individuals in amendment 139 seek to better ensure such engagement.

On clause 80 as it stands—there is strong support for the intention behind the clause—amendment 139 would improve it and would better assist that culture change on the shop floor of the NHS that we all want to see. Clause 80 was introduced by the Government in the Lords only in the middle of October last year. The record shows that there was significant agreement among all parties with regard to the intention under the clause, but there was little analysis or debate.

Can the Minister tell us whether the regulations that will be published under this section will be subject to affirmative procedure? Secondly, will he publish the Government’s rationale for setting the threshold? Lord Hunt of Kings Heath raised the issue in the other place. He said:

“Clearly, there is a distinction between severe harm and seriousness, but most patients and their relatives, or anyone involved in anything that could be described as a serious case, would wish the organisation in the health service to be as open as possible about what had happened.”—[Official Report, House of Lords, 16 October 2013; Vol. 748, c. 637.]

Such issues are important and it is essential, whether or not the Government accept our amendments, that any ambiguity is removed from the duties that clause 80 would introduce. We owe that to medical practitioners and patients, although I make the point again that amendment 139 is an attempt in part to help resolve the ambiguity.

The issues are difficult and complex. Will the Minister tell us what consultation with patient groups has been undertaken by the Government with regard to the clause as it stands? Does the Minister intend to change the NHS constitution after developing the duty of candour threshold, as it currently does not place any limit on the level of harm that would be disclosed? It is essential, as Professor Berwick pointed out, that advice and guidance for patients and medical practitioners points in the same direction. We can all accept that.

I am grateful for all the advice and guidance given by the Clerks. This is one of the few Committees I have been involved in, as a Front or Back Bencher, where we have had two Ministers, two Chairs and two Committee Clerks. We have remained on track and made good progress, discussing difficult issues in a genuinely constructive spirit. Anyone observing this Committee over recent weeks will have seen politicians from different parties coming together to address issues of profound national importance, usually pursuing the same aim and often agreeing upon certain principles. I pay tribute to my hon. Friend the shadow Minister for leading on these issues for the Opposition and to the Minister for his constructive engagement and skilful advocacy.

I pay tribute to Members from both sides for their conduct and approach, particularly the right hon. Member for Sutton and Cheam for the work he has undertaken on these issues over many years and again throughout this Committee. The Minister knows my views and those generally of the Opposition about the Bill. We see it as a modest Bill. We do not believe it contains the necessary ambition to truly meet the scale of the care challenge or some of the quality challenges facing our hospitals, but it contains improvements which build upon the work of the previous Labour Government. We welcome that.

Issues like those facing us, thankfully, have the ability to cut through the detritus of what is coming to pass for political debate and political campaigning in our country. If we consider the scale of the challenge facing our country as the care crisis unfolds—by no means a new crisis, which is a point that has been made repeatedly—we know that the solutions to these problems require a lasting political consensus. In an era of increasing disengagement and detachment from politics and the political process, this is more important than ever before.

In a febrile political environment with public attitudes towards political parties oscillating sometimes wildly, we owe it to the public and the people who rely upon our efforts to solve the problems that they face in their lives, to reach political consensus wherever we can, particularly with issues as important as this. In what can be a daunting, terrifying prospect for people accessing the care system, we owe it to those people and their families to provide stability and predictability, to provide as best we can some form of calm in what will be a time of personal anguish and chaos. This stability, this clarity, this predictability is essential in providing individuals with the knowledge they need to make informed decisions. That means retaining control of their lives, as well as achieving better care outcomes. The same principles should apply across part 2 of the Bill.

My hon. Friend the Member for Leicester West in the early stages of this Committee said that it was her view—mine, too, I should add—that the progressive purpose of securing power was to give it away to those people who do not have it. Empowerment is a critical issue and one which should run throughout all aspects of health policy. It is an issue that should concern us all at every stage with regard to every policy consideration. Whether with regard to improving care services, or in developing effective, workable proposals for other aspects of our health system, empowerment is essential, so we welcome in general terms the modest improvements that part 1 seeks to provide and I sincerely hope that we can conduct the debate on part 2 in a similar vein.

It is clear from the Francis report, which I am sure all members have read and if they have not they should, and the reports from Professor Sir Bruce Keogh, Professor Don Berwick and from Professor Hart and my right hon. Friend the Member for Cynon Valley, that an individual duty of candour would improve communication between clinicians and patients. It would help change the culture of the NHS; strengthen new and emerging regulatory systems designed to achieve change; significantly improve the way in which patients’ complaints were assessed and understood; and most importantly, make a genuine and lasting improvement to care standards and quality across our system of healthcare.

To repeat the considered view of Robert Francis, it is not the system itself which will ensure that the patient is put first, day in and day out. I agree with Professor Berwick that the NHS is unique in the world and can do what no other system can. It has the potential to be the safest health care system in the world. Francis recommendation 182, our amendment 139, is an important step towards making the NHS the safest system in the world and surely that is what we all desire.

Photo of Debbie Abrahams Debbie Abrahams Llafur, Oldham East and Saddleworth 4:30, 23 Ionawr 2014

I shall be brief. I rise to support the amendment. The duty of candour that we propose should be placed on individual health care workers is paramount. As my hon. Friend so eloquently explained, it was one of the key recommendations of the Francis report and we all know the horrors that lay behind that report. Across the House, we have all spoken passionately about ensuring that what happened at Mid Staffs never happens again. We believe very strongly that this is an important way of implementing the recommendations and reassuring patients and the public that this should not happen again.

I cannot remember which Minister mentioned that there were safeguards in other places that fulfil the same purpose, but the point about culture is vital. The amendment is not about criminalising doctors and nurses, but about reinforcing the culture. Legislation can do that, and we have talked before in Committee about this. It sets the tone and culture for organisations and the country as a whole as to what is important. The amendment would help to achieve that.

If Committee members have read the Keogh report, they may note that section 6.1 refers to trusts briefing staff on how they should report during inspections. This would provide concerned clinicians with the opportunity to challenge and say, “I have concerns and want to be able report that.” The amendment would reinforce the right of clinicians to do that.

Photo of Daniel Poulter Daniel Poulter The Parliamentary Under-Secretary of State for Health

The hon. Lady is right that the spirit of the debate has been consensual. We all aim to deliver a more open culture in the NHS, and that is welcome. Sometimes, however, something that seems to deliver a more open culture has perverse outcomes. That is the point that we are making. An individual duty or rigid definition of things in statute and guidance takes away from real life situations in health care. Something particular that happens one day might well need to be judged through a prism later. In real life situations, bad things happen, although sometimes people do the right thing. We would not want to see the unintended consequence of well meaning medical and health care professionals prosecuted and blamed for not following due process when they have done everything possible not only to deal with an incident, but to put things right later. That is a concern, which is why things are often left to the professional regulators to take a more informed view.

Photo of Debbie Abrahams Debbie Abrahams Llafur, Oldham East and Saddleworth

I recognise what the Minister is saying. Labour Members have no intention of doing that. What I am trying to put across—I hope that I am succeeding in some measure—is that setting the tone in the culture is important. We want safety assurance in the culture of an NHS organisation. The amendment is in no way intended to criminalise individuals. Furthermore, there are ways and means to avert the unintended consequences suggested by the Minister. I think it is important to include the amendment in the Bill, which is why the Opposition hope it is accepted.

Photo of Sarah Wollaston Sarah Wollaston Ceidwadwyr, Totnes

I want to return to the earlier point about unintended consequences and the extraordinary difficulties faced by clinicians. Of course, everyone in the room and beyond wants to see a culture change so that doctors feel that openness to a discussion of issues is a marker of success and good professional practice. Such problems, however, are deeply rooted in health care.

We only need to go back to the 1990s, for example, and look at the words of Professor Bolsin, the whistleblower in the Bristol heart scandal. He said that the real scandal in Bristol was not that no one knew, but that everyone knew and did nothing about it. The point is that Professor Bolsin raised the matter individually and repeatedly, but the system refused to listen. There was a systematic cover-up. That is why having the statutory  duty of candour applying to organisations is where this issue has to lie. Culture comes from the top in such organisations.

The real difficulty with an individual statutory duty of candour is that we will be asking courts to make complex decisions on professional judgments made in the heat of the moment, and those are often better handled by the General Medical Council. The General Medical Council needs to improve its act. Be under no illusion, there is nothing that spooks doctors more than an envelope from the General Medical Council. It is a major sanction to face losing the ability to practise professionally.

We need the GMC to muscle up and be more aggressive in the action it takes against doctors. It needs not only to act against doctors who are behaving in an unprofessional manner, but to make it clear that doctors are behaving unprofessionally if they knowingly look away when a colleague is behaving unprofessionally.

Photo of Jamie Reed Jamie Reed Shadow Minister (Health) 4:45, 23 Ionawr 2014

The hon. Lady is making a genuinely telling point. However, did not Robert Francis go out of his way to point out in great detail that the system she describes did not spot the failures that happened at Mid Staffs and that, it could be argued, we still see?

Photo of Sarah Wollaston Sarah Wollaston Ceidwadwyr, Totnes

Indeed. We are all aiming for how to get where we want to be with the fewest unintended consequences. I understand that patients expect and deserve all doctors and health professionals to be open and honest with them. However, I honestly believe that we are going to get there with fewer unintended consequences through reform of the way in which the GMC handles it.

Doctors could retreat back into a defensive position if they know that, by raising professional concerns about a colleague, criminal sanctions could be involved if they have not been candid. The difficulty is where to draw the line. Clinical judgments are quite difficult. What genuinely felt like the right decision in the heat of the moment may turn out to be wrong in retrospect. At what point on that scale does the doctor discuss that with the patient? I would like to see all those issues discussed with patients, but at what point would someone be criminally liable for not doing that? Those are very difficult issues and I think they are best dealt with through the GMC and professional guidance rather than through the clunky tool of a statutory individual responsibility. Having worked in clinical practice, I think there would be unintended consequences.

Photo of Liz Kendall Liz Kendall Shadow Minister (Health) (Care and Older People)

I am seriously listening to the hon. Lady’s points. Why does she think Francis recommended this measure?

Photo of Sarah Wollaston Sarah Wollaston Ceidwadwyr, Totnes

Of course, I have huge respect for the work of Robert Francis. I think we should take forward almost all his points; in fact, the Government are taking forward almost the entire report. Careful consideration was given to this point. The Government’s job is to listen to all the other stakeholders involved.

It may be that, if the culture change we are looking for does not take place through the Bill, we have to move towards that. I think a better route to go down in the first instance is letting the GMC make changes and looking at measures that would genuinely protect whistleblowers. I accept that that might not be strong enough and that we might need to move to a statutory individual duty in future. I just think that, in the short term, we would have unintended consequences and could risk going backwards.

Photo of Norman Lamb Norman Lamb The Minister of State, Department of Health

First, I highlight an injustice. While the shadow Minister, the hon. Member for Leicester West, has been relieved of her duties, I am struggling on.

Photo of Norman Lamb Norman Lamb The Minister of State, Department of Health

To be honest, Mr Bayley, I am a bit knackered, if that is parliamentary language. I will carry on. I was reflecting on the fact that, bit by bit, aspects of the hon. Member for Copeland’s past life are seeping out and exciting us. We first discovered that he was a benevolent housing officer in a past life. We have now discovered that he twice nearly lost his life and clinicians saved him. I think I speak for everybody on the Government Benches when I say that we are delighted that he is with us, speaking so eloquently and saying some important things.

The Government made the clearest possible commitment to introduce a duty of candour in the Lords. As it stands, clause 80 will place an obligation on the Secretary of State to bring forward a duty of candour as a new requirement for registration with the Care Quality Commission. The amendment seeks to expand on that commitment in two ways: first, it would set a threshold in primary legislation for the duty of candour, requiring health care providers to inform patients if they believe that care has resulted in death or serious injury. Secondly, it would require health care professionals to inform their employers if they suspect that treatment or care had resulted in death or serious injury.

I am sure that all members of the Committee share a desire to have an effective statutory duty of candour. However, I would like to explain why it is not appropriate to place those requirements on the face of the Bill.

There is a broad consensus that increased openness is essential in identifying poor care. That applies equally to health care and social care. I seek clarification from the Opposition on one point. We have been clear that the duty of candour will apply across the whole of health and social care, but the Opposition’s amendment is limited to health care. Is the amendment flawed, or are Labour Members actually arguing that it should be limited to health care?

Photo of Liz Kendall Liz Kendall Shadow Minister (Health) (Care and Older People)

The Minister knows that we previously tabled an amendment to place a duty of candour on councils. I am not sure whether that answers his question.

Photo of Norman Lamb Norman Lamb The Minister of State, Department of Health

It does in part, but the duty of candour on councils was not really a duty, because there are no criminal consequences for breaching it. That is what Robert Francis sought to achieve. When he talks about a statutory duty of candour, he talks about a failure to meet the duty, amounting to a criminal offence.

It is important that we take the time to get the details right. Putting the threshold for the duty in regulations, rather than primary legislation, enables us to do that, and it allows flexibility to be exercised in the future. As we announced in “Hard Truths”, we have set up a working group to consider where the threshold for the duty of candour should be set. That expert group is headed by Professor Norman Williams, president of the Royal College of Surgeons, and David Dalton, chief executive of Salford Royal hospital. One of the questions that the group will consider is whether the threshold for the duty of candour to apply should be death and serious injury, or death, serious injury and moderate harm. That important piece of work is under way.

The review is expected to report in March. It would be premature to second-guess the outcome, as the amendment seeks to do by specifying that providers must be candid only in cases of death or serious injury. That would remove the flexibility that regulations allow, which has enabled the current review. My Department will produce regulations that will put in place the duty of candour for consultation in the light of the review’s recommendations, so there will be full input into that. They will be subject to the affirmative resolution, and we aim for them to come into force in October. If a provider does not comply with the new duty of candour, the CQC will be able to take enforcement action against them, including bringing a prosecution. The really important point is that it will be able to prosecute directors who have connived or consented in the failure to meet the duty, subject to a successful prosecution of the provider.

The second effect of the amendment would go further than that and would place a requirement on staff to inform their employers if they suspect that care or treatment has resulted in death or serious injury. I am sure that the whole Committee agrees that openness in reporting is desirable, but that duty is not the right way to achieve it.

I want to make two points. My hon. Friend the Member for Totnes—she has disappeared; no doubt she is on the long journey back to Totnes—spoke eloquently about her experiences and the potential for unintended consequences. I suspect that, with this amendment, there is a danger either of unintended consequences or of no consequences at all. If an Act contains a statement setting out a duty, but no consequence results from breaching that duty—no criminal offence and no other sanction of any sort—that does not do much to change culture. It is more important to determine where the real statutory duty of candour, with a criminal sanction going with it, should apply, to get that right, and to get the threshold for it right. That is why we are undertaking this review with Professor Norman Williams and his colleague, Sir David Dalton—to get it right, and to be clear about who it applies to. Having statements of intent with no force behind them carries a real risk.

There is also a risk in stating that staff have responsibility for reporting to their employer a mistake that has led to death or serious injury, because there could be an unintended consequence. Perhaps that openness should also apply to any mistake that has led to injury. Why limit the responsibility of staff to report problems, mistakes and errors only where there is death or serious injury? The amendment is flawed in that respect, although I am with the shadow Minister in his intent.

The CQC does not have any regulatory role in respect of individual staff. That role is—correctly, in my view—for the professional regulator, as my hon. Friends the Minister and the Member for Totnes made clear. It is important to maintain that distinction.

Professional regulators are working to agree consistent approaches to the reporting of errors and to strengthen the references to candour in professional regulation, making clear a requirement to be open, whether the incident is serious or not. Health professionals will have to be candid with patients. Guidance will make it clear that obstructing colleagues in being candid will be a breach of their professional codes. The professional regulators will also review their guidance to panels, taking decisions on professional misconduct, to ensure that they take proper account of whether professionals have raised concerns properly.

The Government have a firm commitment to openness, in both health and adult social care. The new duty of candour is a key component that will underpin the culture change that we are seeking to put in place, alongside an enhanced professional duty of candour. I have set out the steps that we are taking to do this and sounded a cautionary note about the need to take time to reflect, to get the details of the duty of candour right and to preserve the flexibility to review the threshold in future, to ensure that unintended consequences can be dealt with. I hope that the shadow Minister is reassured and feels able to withdraw the amendment.

Photo of Jamie Reed Jamie Reed Shadow Minister (Health)

I accept that the Government are acting in good faith on this—there are no two ways about that—and I understand what they are trying to achieve. We are all trying to achieve the same end, as we have heard repeatedly.

Before I consider asking the Committee’s leave to withdraw the amendment, I should like to make two points. The Minister has indicated that the guidance will not be ready by Report, but if it is, will it be provided to the Committee, in order to help our further deliberations? If that is not possible, will it be possible for the Committee to receive from the Department, in writing, an update on what stage the guidance has reached, what methodology is being used and whose advice is being sought in its production?

Further, to build on a point made by the hon. Member for Totnes, which I would have made in any event, will the Minister consider a sunset clause for clause 80? We heard from the hon. Lady that it might be that an individual duty of candour is required in the future, if the clause does not achieve its intention—an intention that we all support. Might it be that we could revisit the matter by virtue of a sunset clause in 12 months, or another period that we determine? Whether or not the Government consent to the addition of a sunset clause, it might not be appropriate to do so at this sitting, and we are now out of time for tabling amendments for consideration during Tuesday’s sitting, so it may be that a manuscript amendment is brought forward on Tuesday.

Photo of Norman Lamb Norman Lamb The Minister of State, Department of Health

I am grateful to the hon. Gentleman for those remarks. I have the following points to make. First, my concern about a sunset clause is that it would mean the loss of the statutory duty that we are introducing—the duty would disappear but would not be replaced with anything. My view is that the best way forward is to get it right now. We should be deliberative, and we can use regulation. Regulations can be changed,  which achieves the hon. Gentleman’s objective—his concern is that if the clause does not work and so change is necessary, that change can be made. By framing this matter through regulations, we are doing just that. I hope that reassures him.

We will provide an update on our progress with the professional guidance on Report. As I mentioned, the Dalton-Williams report will then be published in March. I hope that helps the hon. Gentleman.

Photo of Jamie Reed Jamie Reed Shadow Minister (Health)

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 80 ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned. —(John Penrose.)

Adjourned till Tuesday 28 January at five minutes to Nine o’clock.