Clause 90 - Offence

Care Bill [Lords] – in a Public Bill Committee am 2:45 pm ar 28 Ionawr 2014.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Jamie Reed Jamie Reed Shadow Minister (Health) 2:45, 28 Ionawr 2014

I beg to move amendment 160, in clause 90, page 82, line 9, at end insert—

‘(d) it wilfully withholds relevant information with the intention to mislead or misdirect’.

Photo of Andrew Rosindell Andrew Rosindell Ceidwadwyr, Romford

With this it will be convenient to discuss amendment 145, in clause 90, page 82, line 24, after ‘health service’, insert

‘and health-related services provided by local authorities.’.

Photo of Jamie Reed Jamie Reed Shadow Minister (Health)

Clause 90 is a good step forward for the duty of candour, but the Minister will not be surprised to learn that in our opinion it does not go far enough. Committee members, Clerks, officials and you, Mr Rosindell, will be relieved to hear that I do not intend to speak to this clause at the same length that I spoke to clause 80. The points that I made in that debate relate to this clause, and what I said is as applicable now as it was then.

Clause 90 will make it an offence for a care provider to provide false or misleading information. Nobody can deny that that is a positive step towards promoting a culture of openness; it is a welcome, commendable measure. I set out previously why we believe that the duty should be extended to cover individuals, so I will not retread that ground.

Amendment 160 seeks to add an additional offence to the list in clause 90(1) by making it an offence to wilfully withhold relevant information with the intention to mislead or misdirect. That would mean that in the process of exercising their legal requirements care providers would be under an obligation to provide access to information that is relevant to any issue that may arise. That could, for example, be a duty required of them in the regulations that will be set out under clause 80.

It is proper that when under investigation by the regulator or others a provider has a legal duty to supply the relevant information, and that it does not seek to mislead anyone by withholding that information. It would not be right for a provider to be able to withhold information that could assist the regulator in its investigation. That act should be on a par with providing misleading information, because it achieves the same end, although by different means. There should be parity of esteem in the clause for actions that mislead, whether through the circulation or publication of misleading information, or by withholding information that would better allow the regulator to carry out its duties.

The duty to not withhold relevant information is the second pillar that is needed to ensure that the clause encourages openness. The Government argued that an individual duty of candour would create a culture of fear; we heard that argument again from the Minister. They said that people would close ranks and pull down the shutters in the NHS before disclosing information. By creating an offence for publishing misleading information without making it an equal offence to hide information, providers could be perversely incentivised to remain quiet about an issue, rather than be accused of publishing misleading information. Clearly, nobody wants that unintended consequence. We cannot allow that to happen,  which is why we should create a system that puts hiding information on the same level as knowingly providing misleading information.

The Minister talked about the drive to raise standards. He said that transparency is critically important to that, and he is absolutely right. However, he will have heard time and again, as I have, the criticism that the Freedom of Information Act makes it more difficult to get information into the public domain that should be in the public domain. I have never truly bought into that criticism. Sooner or later, the truth does come out. The same would be true with the duty that we seek to incorporate here. That is what amendment 160 would do.

I would appreciate it if the Minister could explain why he believes that it is adequate to have one provision without the other, when they are clearly two sides of the same coin. Will he tell us whether there was a debate within Government about how far the clause should extend, and if so, what was the conclusion? Was legal advice sought? If it was, will the Minister undertake to publish it before Report?

Amendment 145 seeks to do something that a host of other amendments have tried to achieve. It would require health-related services provided by local authorities to be treated in the same way as other health services. It is a welcome inevitability that as a consequence of greater integration, better communication and better co-operation, local authorities will have more responsibility when exercising their functions with regard to health-related services. I am sure we all welcome that. The clause relates to the publication of materials. Local authorities have responsibility for public health, including public awareness campaigns. It is right, therefore, that the duty to ensure information is not false or misleading is also extended to councils. Much of the public health duty will be fulfilled through public awareness campaigns, and they need to be on a par with other health services to which the clause applies.

It is regrettable that the clause, though moving in a welcome direction in one regard, is incomplete in its current form. I hope the Minister can assure us that anyone providing health services and health-related services is subject to a level playing field and that requirements on the providers are clear and robust.

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

The new offence of providing false or misleading information, set out in clause 90 of the Bill, is designed to address the very specific issue of certain types of information supplied or published by providers of treatment or care, as was highlighted in the Mid Staffordshire public inquiry.

It is a direct response to Robert Francis’s finding that, in the case of Mid Staffordshire, the trust made inaccurate statements about its mortality rates, which caused regulation and commissioning to be undertaken on inaccurate information and understanding. That resulted, as we are all too well aware, in poor and dangerous care for patients.

Clause 90 puts in place the power to make it a criminal offence for certain types of false or misleading information to be supplied or published by health and adult social care providers. We have drawn up the definition of a care provider carefully in order to limit  the possible scope of the offence to specific organisations in primary legislation. The offence could apply to providers of publicly funded health services and adult social care. In that context, health services means both NHS services and public health services. That is an important point that I want to be very clear about. Public health services provided by local authorities are already within the scope of clause 90.

While primary legislation will set the scope of the offence, its application will be limited through regulations in terms of both the types of providers and the types of information to which it applies.

Amendment 145 seems, on the face of it, to be small but it would have major implications for the potential scope of the new offence. It would extend it from health services to include health-related services provided by local authorities. I would like to outline the impact of that change and why we cannot support it.

As I have set out, the offence of providing false or misleading information could, as the clause is currently drafted and subject to regulations, apply to a provider of health services, defined—by reference to section 1 of the National Health Service Act 2006—as services provided as part of the comprehensive health service, which includes public health services provided by local authorities. However, the amendment would extend that to cover health-related services provided by local authorities. The meaning of that is not defined in the amendment. I suspect the interest may be in local authority public health services, which, as I have said, are already covered by the clause.

What would be the effect of extending the offence to health-related services? Section 13N(4) of the National Health Service Act 2006 defines those services, for the purposes of that Act, as

“services that may have an effect on the health of individuals but are not health services or social care services”.

As drafted, the amendment could refer to almost any service provided by local authorities, for example, housing services, leisure services or even refuse services. I am sure the hon. Member for Copeland did not intend the amendment to be so far reaching. That would certainly not be in the spirit of the Francis inquiry.

The scope of the offence is deliberately restricted to care providers and is intentionally narrow. The amendment would make the possible scope of the offence too broad. I hope that helps to clarify the Government’s position on that aspect.

Amendment 160 would extend the false or misleading information offence to instances where information is withheld with the intent to mislead. I would first like to set out the legislative context within which the offence sits. As the hon. Gentleman outlined, this offence, and that relating to the duty of candour that the Committee considered on Thursday, are both designed to improve openness among providers of care, but they focus on different things.

The duty of candour is about the day-to-day interaction of provider organisations with patients. It will require that health-care providers registered with the CQC do not withhold information from patients, and will require providers to inform patients where there are failings in the care that they have received. This duty will be overseen, as we discussed last week, by the CQC.

By contrast, the false and misleading information clauses are about performance and management information that providers are required to supply or publish. They create a new criminal offence, prosecuted by the Crown Prosecution Service, where care providers supply or publish specific false or misleading performance and management information provided under a statutory or other legal obligation. Taken together, the two measures aim to increase openness to patients and service users under the duty of candour and reporting performance of health care providers under false or misleading information.

Amendment 160 refers to information that is wilfully withheld by care providers with the intent to mislead. Establishing wilfulness or intent on the part of an organisation is far from straightforward. For that reason, the false or misleading information offence does not rely on establishing intent on the part of the care provider. It is a strict liability clause in the Bill. The offence as regards care providers is indeed strict liability, which means that the prosecution would have to prove that the information was, as a matter of fact, false or misleading. There is no need to prove intent, wilful or otherwise, to provide false or misleading information on the part of a corporate body or partnership.

There is a precedent for such an approach in other legislation. For example, food description offences in the Food Safety Act 1990 are similarly strict liability offences applicable to corporate bodies. The new power needs to have impact and to be prosecutable. Introducing the concept of intent would make this more difficult, which no member of the Committee would want. Instead, because we are making it a strict liability offence, we are allowing for a defence of due diligence to ensure that providers cannot be prosecuted as a result of a genuine error.

Leaving aside the question of intent, I want to consider the general issue of withholding information in the context of the offence. By that, we mean a total failure to supply or publish the required information, rather than an incomplete return or publication. A partial return of information that would be covered by the clauses would fall within the scope of the offence. However, a total failure to supply information does not. The false or misleading information offence applies to information that a provider is legally required to supply.

Where a provider withholds such information, it is already in breach of that legal obligation. It is then a matter for the organisation to which that duty is owed to pursue the matter with the provider. For example, in the case of information that is withheld from the Care Quality Commission, a provider can be prosecuted, and in the case of information withheld from Monitor, a fine of up to 10% of the provider’s turnover can be imposed.

The hon. Member for Copeland will know that when we are dealing with the criminal law—we have been talking about a criminal prosecution in the case of false or misleading information—there is often a distinction between an act and an omission in how the law is applied, and we are applying a similar concept here. Instances of total failure to provide information within the NHS are rare and are usually resolved by a further request that information be sent. There are other  mechanisms, as I have already outlined, whereby the information can be forcibly released by the CQC, Monitor and others through the existing legal framework.

Persistent withholding of information is even rarer, because of the incentives on providers to supply the information. For example, much of the information that NHS providers submit to the Health and Social Care Information Centre is used to determine how much they should be paid under payment by results.

I cannot accept the amendment as the drafting does not fit with the strict liability nature of the offence. I am not persuaded that extending the offence to include withholding information would provide a benefit beyond the legal mechanisms that are already in place, and it would be targeted at a practice that does not in reality occur.

Photo of Jim Shannon Jim Shannon Shadow DUP Spokesperson (Health), Shadow DUP Spokesperson (Transport), Shadow DUP Spokesperson (Human Rights) 3:00, 28 Ionawr 2014

I just want to ask the Minister a few questions. The Committee and obviously the Government have a duty to avoid false or misleading information that could cause perverse incentives, or to avoid disproportionate punishments that can also deter capable individuals from taking up leadership roles. So within the section we are looking at, I seek clarity on the threat of imprisonment or fines.

All organisations must be accountable for the information they provide, to protect safety, drive improvement and build public confidence. However, it is not clear that a criminal sanction is required to incentivise this, either corporately or individually, or that it will add value to existing duties. I have some concern about the effect that the clauses about false or misleading information, which include sanctions of imprisonment of up to two years and/or a fine, may have. These clauses would leave individuals acutely vulnerable to liability for complex and ill-defined matters potentially beyond their control.

I asked the Minister—and I hope he can come back to me—how will neglect be proven and how will responsibility be determined? What is the threshold for materiality? That is a significant list of unintended consequences from these clauses. I also asked the Minister about the creation of an offence of wilfully withholding relevant information with the intention to mislead or misdirect. Perhaps the Minister can also give some clarity on this matter. I really seek clarity on this clause and the questions relating to the amendments as well.

I understand that the Government have acknowledged the potential for the clauses to create what could be termed a perverse incentive in their application at a corporate level. None the less, we seek clarity in relation to the position of fines, imprisonment and accountability in the process. It is always about protecting the staff and the patients. Perhaps the Minister in his response could give us some clarity on these matters.

Photo of Jamie Reed Jamie Reed Shadow Minister (Health)

I am grateful to the Minister for his reasoned objections to the amendment, especially regarding the importance of the notion of strict liability in this Bill. We will no doubt return to that issue, especially with regard to clause 118, but I shall not press the amendment to a Division.

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

As always, the hon. Member for Strangford makes a valuable contribution and asks some important questions. The purpose of the false or misleading  information offence addresses concerns that, as he will be aware, were in the Francis inquiry, specifically looking at the controlling mind of an organisation. There was a failure to present information in a way that was open and honest. Its presentation was, in fact, misleading, which compounded and made worse many of the care failings at the trust. When such failing is at the corporate level—when this applies to the whole care provider and across many patients, not just at the individual level of one patient—it is appropriate that we impose a sanction. For the provider, that is a strict liability offence, which involves a reasonableness test, so the provider has a defence if it has done everything it reasonably can be expected to do to present information conscientiously and appropriately. It is important that we recognise that providers that have made a genuine administrative error would be able to defend themselves against any charge of supplying or publishing false or misleading information. In that case, a provider would have to show that all reasonable steps had been exercised and due diligence taken to avoid supplying or publishing false or misleading information.

That reasonableness and due diligence test is applied to the strict offence. It will help to encourage providers to have appropriate arrangements in place and will act as a deterrent in future to those who knowingly and wilfully provide false or misleading information, or who perhaps do not exercise the due diligence that will be required in presenting information about health care or related matters that affect patients’ care. I hope that that reassures hon. Members and helps to explain why the process needs to be taken forward by the Crown Prosecution Service, rather than the CQC, as is the case for the duty of candour.

Photo of Jamie Reed Jamie Reed Shadow Minister (Health)

As I said earlier, I am grateful to the Minister for his clarification in respect of my points and those made by the hon. Member for Strangford. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 90 ordered to stand part of the Bill.

Clauses 91 and 92 ordered to stand part of the Bill.