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Archive for the ‘House of Lords’ Category

Tuesday
Mar 13,2012

In the House of Lords this afternoon, the Labour Leader, Baroness Jan Royall, asked a Private Notice Question of the Department of Health Minister, Earl Howe, about whether the Government would now publish their risk register on the Health and Social Care Bill given that the ruling of the Information Commissioner has now been upheld by the Information Tribunal.

The Government made it clear that they are waiting to see the detailed reasons from the Information Tribunal so that they could decide whether to appeal further.  So the implication is that they will not comply with the ruling before the Bill completes its passage through the House of Lords next Monday.

The exchanges showed seven Labour Peers (Baroness Jan Royall, Lord Charlie Falconer, myself, Lord Dale Campbell-Savours, Lord Bob Hughes, Lord Bruce Grocott, and Lord Maurice Peston) pressing the Government to publish.  There was silence from the Cross-benches, a supportive question from Tory Lord Deben (aka John Gummer) and a nice easy question from LibDem Lord Marks of Henley-on-Thames.

Here are the full exchanges:

 

Health and Social Care Bill

Private Notice Question

3.07 pm

Asked By

To ask Her Majesty’s Government, in light of the decision of the information tribunal last week, whether they will publish the risk register associated with the Health and Social Care Bill before that Bill completes its Report stage in this House.

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 tribunal has agreed that the department should not publish its strategic risk register but has upheld the Information Commissioner’s initial decision notice on the transition risk register. However, we await the full judgment, which will contain the detailed reasoning for the decision. This makes it extremely difficult to make a decision on whether the Government wish to appeal this decision. I hope very much that the tribunal will give its full judgment as soon as possible.

Baroness Royall of Blaisdon:My Lords, the primary purpose of this House is to scrutinise and improve legislation. I know that the Minister would agree with me on that. In the next 10 days, Parliament has to make critical decisions about the future of the National Health Service. Without the information in the risk register or the transitional risk register, Parliament will be less well informed than it otherwise would be. The information tribunal last week instructed the Government to release the transitional risk register immediately, as I understand it, because the Bill is still under consideration. Why are the Government therefore preventing Parliament from having the best possible information on the NHS so that it can make the best possible decisions about the NHS?

Earl Howe:My Lords, many of the risks associated with the Government’s reform programme, as the noble Baroness knows, have already been extensively aired—not least in the impact assessment, in my statement of 28 November last and, indeed, in the whole passage of this Bill—but I fully recognise the concern that we should respond swiftly to the tribunal’s decision. We are making every effort to update noble Lords on our intention as soon as we possibly can. However, as I have always said, this is not a decision for the department alone and any way forward has to be agreed and signed off across Government. I cannot make a decision without agreeing it with my fellow Ministers in other departments and I am sure noble Lords will appreciate that we have only just received the tribunal’s decision.

Lord Falconer of Thoroton:My Lords, I am dismayed by the Minister’s answer. Surely it must be the case that Parliament would be assisted by seeing the objective assessment of what the risks are to the National Health Service from the Bill becoming law. I understand that he is saying that the Government have already said what many of them are, but if that is the case then what is the harm in disclosing the list of risks that the objective assessment by civil servants gives of the introduction of the Bill? Surely Parliament would be assisted by having as much information as possible. It cannot be the fault of the information tribunal that we are getting no answer at all from the Department of Health.

Earl Howe:My Lords, no Government have routinely made risk registers available. This is a matter of principle. It is not just that the issues associated with the Health and Social Care Bill have been extensively aired—as I said, they have been—but it is a point of principle whether a risk register that is integral to the formulation of policy should be published.

The tribunal agreed with our assertion that the strategic risk register should not be published but disagreed when it came to the transition risk register. Our difficulty is that the case that we made for both documents, which are of a similar structure and have similar content, was based on essentially the same arguments, which makes it extremely difficult to make a decision on whether or not to appeal the decision. I hope, as I say, that the tribunal will give its reasons for the judgment as soon as possible so that we can determine the right way forward.

Lord Harris of Haringey:My Lords, surely this is not about the routine publication of risk registers but about the publication of a risk register for a specific Bill in front of your Lordships’ House and Parliament that is causing extreme concern in the country. Why is it not possible on an exceptional basis? I believe that no less a person than Simon Hughes—if such a thing were possible—has advocated to the Government that the risk register should be put into the public domain so that Parliament can look at the implications properly.

Earl Howe:My Lords, I beg to differ with the noble Lord; this is an issue about routine release. I think I am right in saying that the department has received several dozen requests to release the risk register. If this were to become routine, as some people appear to wish it to become, policy formulation in any department would become virtually impossible.

Lord Deben:Does my noble friend agree that a number of the laws passed by the previous Government were also controversial? Can he point to occasions on which the risk register was released in those circumstances?

Earl Howe:I am grateful to my noble friend because I do not believe that there were any. The Opposition sometimes point to the risk register relating to the third runway at Heathrow, but the key difference with that was that it was to do with policy implementation rather than policy formulation. Once you know what you want to do, there are risks associated with rolling a policy out. It is a very different matter when civil servants wish to have safe space to think the unthinkable and then advise Ministers.

Lord Campbell-Savours:Does the Minister intend to delay the Third Reading of the Bill?

Earl Howe:We have a Motion before us in the name of the noble Lord, Lord Owen. That question will be addressed then.

Lord Hughes of Woodside:My Lords, the Minister said that the details of the risks had been well canvassed in this House. If that is the case then in the absence of proper information, with the best will in the world, the discussions must be based on hearsay. That cannot be the right way to go about discussing business.

Earl Howe:My Lords, I think back to numerous debates that we have had in this House, which of course are recorded in Hansard. Many of the risks that I articulated on 28 November last have been gone through by your Lordships almost ad nauseam.

Lord Marks of Henley-on-Thames:What steps have been taken to draw to the attention of the tribunal the urgency of receiving the reasons for this decision, bearing in mind the imminence of Third Reading?

Earl Howe:I have personally seen to it that the tribunal has been made aware of the urgency of releasing its reasons, and it has acknowledged that urgency.

Lord Grocott:Presumably, part of the need for urgency is the Government’s scheduling of the Third Reading of the Bill. I know that we are close to the end of an unprecedentedly long Session of Parliament but it would be an intolerable situation if the information were finally published after the Bill had become an Act and the information were then judged to have been such that many Members who had voted in favour of Third Reading would regret it within weeks. Surely the very least that the Government could do is to postpone the Third Reading debate until the last possible date before the end of the Session.

Earl Howe:My Lords, I am the first to acknowledge the concern among noble Lords to be fully and properly informed about the risks associated with the Health and Social Care Bill. As I say, we have done as much as we can to implement that intent without transgressing what we still see as a point of principle regarding risk registers. My answer to the noble Lord is that I do not believe it is necessary to postpone Third Reading but we clearly have to debate the Motion in the name of the noble Lord, Lord Owen. At that point, the House will decide whether it is content to give the Bill further consideration.

Lord Peston:Can we go back to first principles, which the noble Earl raised? I speak as someone who has been an adviser. Is he saying that officials would not give their honest view of the risks that policies might incur if their advice was made public? If you believe in open government—certainly, if you believe as an official that your duty is to advise Ministers as best you can and, therefore, you will outline the risks—is that not altogether a good thing? It is not a principle that the Government ought to espouse, rather than say that they do not want to go down that path?

Earl Howe:My Lords, civil servants may not wish to put in jeopardy a policy that they are working on by using language that could be—indeed, is certain to be—misinterpreted or sensationalised, or that could cause embarrassment if exposed to the public gaze. Without full candour, risk registers across government would become bland and anodyne. Effectively, they would cease to be of practical value. That is the fear that has been expressed across government.

Thursday
Mar 8,2012

LibDem discipline in the House of Lords is pretty monolithic – at least as far as the divisions on the Health and Social Care Bill are concerned.

I reported earlier in the week that in Tuesday’s five votes on amendments to the Health and Social Care Bill LibDem peers had voted en masse against every single one.

Today they were at it again.

The first vote was on a Labour proposal which would have removed the arrangements enabling NHS Foundation Trusts to earn up to 49% of their income from private patients.  This was defeated by a majority of 58 with 53 LibDems voting against the amendment.

The second vote was on making HealthWatch England a genuinely independent body.  This was voted down by a majority of 24 with 44 LibDems voting against the amendment.

The third vote was on Government amendments removing statutory status and governance requirements from local HealthWatch organisations.  The Government pushed through their amendments with a majority of 77 with 40 LibDems supporting the Government line.

The fourth vote was on a Labour amendment which would have required clinical commissioning groups to get approval from local Health and Wellbeing Boards to their commissioning plan (i.e. to introduce some democratic accountability).  This was defeated by a majority of 87 with 34 LibDems voting against the amendment.

In none of the four divisions did a single LibDem peer defy their Party whip and vote the other way.

Thursday
Mar 8,2012

Late this afternoon the Government finally got their way in the House of Lords and pushed through a group of fifty amendments that transform their proposals on how local HealthWatch organisations (the structures being created under the Health and Social Care Bill to represent the interests of patients in local communities) should operate.  The amendments, produced without consultation and with little warning, remove the statutory status of local HealthWatch organisations, remove the schedule to the Bill that would have specified their governance and how they should be structured, and pave the way for the privatisation and fragmentation of the functions of local HealthWatch.

The amendments were approved by 168 to 91 – a Government majority of 77 (40 LibDems voted for the Government amendments with none against).

For the really, really, keen here is what I said in opposing the amendments:

“My Lords, this is a complicated group of amendments. There are, I think, 50 government amendments in this group that completely change the direction of this part of the Bill. Of course, we do not have the benefit of a Committee consideration of these changes, which is unfortunate, given the nature of the changes that are envisaged.

In fact, what we are being confronted with is an almost extraordinary volte-face by the Government about how local healthwatch organisations are going to operate and proceed. As it stood, before these amendments, the Bill provided local healthwatch with a very clear structure and very clear governance. It defined membership and it defined their role. As such, the arrangements were better than LINks, better than PPI forums and, in one or two respects, better than community health councils. It was a very clear statement. There remained the problem that local healthwatches were going to be the creatures of local government without the benefit of ring-fenced money and with the potential issues around conflicts of interest concerning social care. I am reminded that on 15 October 2007, the noble Earl, Lord Howe, clearly took the view that it was inappropriate for a local authority to be host to a LINk. Presumably, the same arguments that influenced his thinking then apply on this occasion.

We have been offered guidance on conflicts but, again, it is not clear how this will work, which is something that we could have pursued perhaps in detail in Committee. The amendment refers to having regard to the guidance on conflicts, which I suspect will not necessarily be strong enough for the sorts of conflicts of interest that potentially could arise. We also have the enormous concession, to which I referred earlier, of Amendment 226ZG, which enables HealthWatch England to write a letter if it feels that something has gone wrong.

That is where we were but now the Government, without explanation or consultation, have decided that local healthwatches will no longer be statutory bodies. We are told that that is all in the name of the need for flexibility. The noble Baroness has mentioned repeatedly the briefing which took place yesterday evening, to which, incidentally, I was not invited. Even had I been, I would not have been able to attend because the meeting clashed with the regular meeting of Labour Peers, which one would think that the Government would wish to avoid. At that meeting various papers were tabled which referred to the importance of flexibility but we are not clear as to what that flexibility will deliver.

In moving the amendment the noble Baroness talked about the Government’s proposals in the Bill as creating a series of “unaccountable quangos”. I recall previous briefings which I attended with Ministers and the Bill team when it was explained that there would be guidance about how the membership of local healthwatch was going to be derived and to demonstrate that these were going to be accountable bodies and not unaccountable quangos. Somewhere along the line, in the past few weeks, there has been this amazing change of attitude, which does not seem to follow the benefit of any real explanation or consultation with those who might take an interest in it.

That underpins the amendments spoken to by the noble Baronesses, Lady Cumberlege and Lady Jolly. The noble Baroness, Lady Cumberlege, highlighted the difficulty that would arise between members and staff. The noble Baroness, Lady Jolly, talked about the importance of lay leadership. In terms of the changes, the Government are going to make it more difficult for there to be lay leadership and the role of members versus staff will be blurred still further. Indeed, the staff will be the dominant influence.

This is not a matter on which there has been consultation. I have received a note from the National Association of LINks Members, which states:

“Ministers say that they are ‘not convinced’ that LHW needs to be a stand-alone, statutory body corporate. It is not ministers who will be relying on LHW to get them a fair shake but the old, sick, vulnerable, frightened and marginalised and these, along with the rest of the patients and the public, are the ones who need to be ‘convinced’ that we have a model that will work”.

It says that it is not convinced. It points out that local healthwatch should,

“have a standard ‘platform’ of presence everywhere in England, not merely through logos, straplines and brands”—

which the Government’s amendments will make happen—

“but through a locally elected membership, a single ‘address’ and identifiable staff that it has appointed”.

It says that only:

“Statutory, body corporate status would deliver this”.

It continues:

“Government says it does not want a top-down model but it is making top-down decisions, and these fly in the face of all the evidence of the past three and a half years of LINks, all the advice of all the LINks’ members of the government’s own HealthWatch Advisory Board, of the National Association of LINks Members, all the advice of many, many LINks all over England. ‘Being heard’ has simply vanished from the national scene. The government pontificates on what it does not practise. It legislates but it does not listen”.

It suggests, although I could not possibly automatically agree, that:

“What the Government actually fears is 152 statutory LHWs, with genuine independence, with real clout and public buy-in, a separate identity, and powerful and committed membership”.

If that is the concern, where do we go from here? I am taken with the sage advice your Lordships received from the noble Earl, Lord Howe, when we debated the creation of LINks, the slightly ill-fated proposal by the previous Labour Government. The noble Earl, in his typically courteous but forceful way, said then—given these government amendments, you can simply substitute HealthWatch for LINks:

“We have come to a group of amendments most of which in their different ways relate to the same problem. I use the word ‘problem’ as the most neutral term I can readily think of for what many of us regard as a most serious and regrettable weakness in this part of the Bill; namely, the absence of even the slightest hint of a statutory identity for LINks. There is a complete lack of any descriptive reference to what a LINk might look like and practically no definition of a LINk”.

That was the noble Earl, Lord Howe, talking about the creation of LINks. Yet today he has brought forward amendments—admittedly he has delegated this to the noble Baroness, Lady Northover, who is acting as his mouthpiece on this occasion—that will do precisely what he complained that the previous Government did.

Of course he said much more than that. I will not burden the House by repeating all the remarks he made in October 2007, but if we substitute HealthWatch for LINks every time it appears, we will get the flavour. He went on to say:

“As the Bill stands there are no provisions for LINks to have any form of governance arrangements; it is left completely open as to how a LINk would be able to make decisions or authorise people to act on its behalf. This is a major issue because without some form of governance you cannot have accountability. If there are no people authorised to act on its behalf, a LINk cannot be accountable”.—[Official Report, 15/10/07; col. 567.]

He later said:

“The key issues around governance are really three: how decisions are to be made; how activities are to be undertaken; and, who is to do these things? Without those minimum requirements we would be left with a situation where someone who has joined a LINk, but who never attended any meetings or received any training or signed any code of conduct”,—[Official Report, 15/10/07; col. 568.]

could proceed in particular ways. So the lack of statutory identity was something that the noble Earl, Lord Howe, told this House was absolutely critical when we debated the creation of LINks. And he was absolutely right. I remember agreeing with him at the time and feeling that my Government had got it wrong. But this is the point. The Government have now brought forward amendments which undo all his fine words at that time and all his attempts to put this right, and that is because statutory status at the local level was what was going to give HealthWatch a cutting edge, an authority in terms of its relationships with other bodies.

The noble Earl also had a few words to say about the underlying argument that this should be delegated down. He said then, and we could say it to him now, that we were told that the Government did not want to be “prescriptive” and that it would be up to each LINk to set itself up in the way it wanted.

In June 2007, he quoted a telling Greek legend. Indeed, he may remember using this example:

“I think it was Proteus who was able to assume any shape or form that he liked. The reason why he did this was in order to avoid foretelling the future. For us debating this part of the Bill, it is almost impossible to foretell the future because neither the governance arrangements of LINks, nor their structures, nor their powers, nor even the precise scope of their activities, are set out here. In a real sense, as with Proteus, we do not know who or what we are dealing with”.

With these amendments before us today, the Government are substituting something else when we would have known what we were dealing with and where there were precise governance arrangements. But they are taking all that away and moving towards something that the noble Earl also, presciently, described in that debate, saying:

“As I understand it—the Minister may correct me—because LINks are not defined they are not classifiable as statutory bodies. We may know a LINk when we see it—although I am not completely sure about that—by virtue of the things that it does … The Bill refers to activities being ‘carried on’”.

I look at these amendments and, my goodness, Amendment 236C in the name of the noble Earl talks about,

“activities carried on for the benefits of the community in England”.

Incidentally, how a local organisation is supposed to act in the benefits of “the community in England” seems to be a very odd use of words. However, phrases such as “activities carried on” were precisely what he said then was the wrong way of going on.

The noble Earl went on to say in that June 2007 debate:

“In fact, in one way or another, there is quite a lot of carrying on in this part of the Bill. There may be a joke there somewhere but I shall refrain from trying to find it. But that nebulous form of drafting is as far as we get. It will be incumbent on us in Committee”—

we do not have the benefit of being in Committee today—to sort out this unsatisfactory regime. He continued:

“The main problem with the Bill is that because LINks”—

and you could say the same about HealthWatch now—

“have no identity or definition, they can be seen neither as bodies whose independence is guaranteed, nor as bodies which have the power to hold local health and social care commissions to account”.—[Official Report, 20/6/07; cols. 252-3.]

Those were the wise words of the noble Earl, Lord Howe, then, but he is the same noble Earl who is bringing forward amendments that create the same precisely the structure that he said was totally inappropriate then.

Let us look at what the Government are doing and I will be brief. Amendment 231B removes the statutory status. Amendment 231C removes all structure, form and governance from the Bill. Amendment 234A talks about “one set of arrangements”. It implies not just a single arrangement in any local authority area, but a set of arrangements, so it would not necessarily be one contractual arrangement: it would be a set of contractual arrangements. The word “arrangement” is in the plural.

Amendment 235C is the great catchall that tells us it is all going to be all right and that all these bodies are going to be the same in that there will be a licence to use a trademark. I am enormously reassured by that. Amendment 235D provides for subcontractors for the different functions. So what we are envisaging is that a local authority will divide up the functions of HealthWatch organisations and contract each of them to a separate organisation. Does that really make sense? Is that the strong patient voice that we were promised at local level?

In Amendments 238ZM and 238ZN there are specific references to contractors. This is essentially moving from a position where there will be a clear number of local statutory bodies delivering patient representation on behalf of their communities, with members from those communities running those organisations, because that is what the governance arrangements were before. This is essentially privatising that process, albeit by so-called social enterprises. This is privatising consumer representation.

How can contractors be representative? Yes, there is an amendment that says that these contractors will be broadly representative of the local community, but how can an enterprise itself be representative of the local community? I find this concept difficult to understand. Because we are not in Committee, we do not have the opportunity to have it explained to us fully and a chance to probe the Government.

The amendments that we talked about a few minutes ago envisaged that local healthwatch would be able to have local representation on the board of HealthWatch England. How will we have representatives from local healthwatch organisations—the arrangements that will be subcontracted for different functions to social enterprises—how will representatives be produced at the national level for HealthWatch England? Is this going to be board members of a social enterprise, charged with the effective running of that enterprise not the representation of the community? Will it be the staff? That comes back to the point about lay leadership that the noble Baroness, Lady Jolly, raised earlier.

Last night, I got an e-mail from an existing LINk member, with whom I have never previously communicated, saying:

“I’m much involved with my local LINk, which it can be argued, has already been ‘taken over’ by its Host in advance of the Privatisation of the Public’s voice when HealthWatch comes about. Lay ‘Volunteers’ have been demoted from being Members to Participants”—

there is the lay leadership of the noble Baroness, Lady Jolly—

“and our Management Committee has been redesignated as an ‘Advisory Group’”—

again, lay leadership—

“with few if any powers over anything. Expulsions have been initiated against those who don’t toe the new autocratic line—and the local authority just turns a blind eye despite appeals to the Council Leader, CEO and Portfolio holder. What hopes for a voice for the public/patient when Local Healthwatch is in place?”.

I believe that the Minister received a letter from another member of a local LINk who talks about his dedicated service. He lists at some length all the different bodies that he has sat on representing the public, then says that,

“My most precious resource—the time I have given—has, at a stroke, been set to nought”.

There is no local lay leadership in these arrangements. That is why these amendments are so sad.

We have to ask why the Government are doing this. Is it because some unit in the Cabinet Office has suddenly discovered this bit of the Health and Social Care Bill and said, “Oh, they have missed something out about the opportunity to introduce competition so let us put it in this bit of the Bill”? Or perhaps it is because Government Ministers have suddenly realised that the Bill is rather unpopular. There are some difficulties with it, the public’s perceptions of it are increasingly negative, so having proper patient representation would now be extremely dangerous.”

Thursday
Mar 8,2012

The Government successfully fended off an attempt to ensure that HealthWatch England (the national body that is being set up to represent the interests of patients) is a genuinely independent body in the House of Lords this afternoon.

Under the proposals in the Health and Social Care Bill HealthWatch England is constituted as a committee of the much-criticised NHS regulator, the Care Quality Commission.  The amendment, which I had seconded would have made it a genuinely independent body and given it responsibility for supporting and funding local HealthWatch organisations.

In the end the amendment was narrowly defeated by  165 votes to 189 – a Government majority of 24 (44 Liberal Democrats voted against the amendment, none voted for it).

For those with time to kill, my speech was as follows:

“My Lords, I think this is the part of the Bill which I assume the Minister had hoped would give him a quiet time. Indeed, he has passed on the responsibility for answering this amendment to his noble friend Lady Northover. Originally, one had to respect the Government’s intention with regard to HealthWatch because I am sure the intention was to create effective patient representation at national and local level. That intention has been challenged in the discussions that we have subsequently had and in some of the changes that have occurred over the past few months. However, it is worth going back for a moment to first principles. What constitutes effective patient representation? The first significant element of that has to be independence. The organisation representing patients’ interests has to be independent of the providers of health services, those who commission them and those who regulate them because the act of representation can potentially challenge any or all three of those interests.

Secondly, effective representation at national level must be representative. There must be real representativeness within that structure. It must be derived from local groups and local individuals and have that authority which is derived from being a representative structure. With the best will in the world, you cannot be an organisation which can speak with proper authority on behalf of patients or, indeed, any consumers if you are simply appointed from on high by a Secretary of State. In my time, I have worked for organisations that have been structured like that and I have to say that although they can do good work, they cannot be properly representative. They cannot properly have the authority that comes from being derived from the grass roots. The third element which is critical is that the work and the comments that these bodies produce have to be derived from sound local information, which necessitates being able to pick up information from local networks around the country. That has to be safeguarded in whatever proposals are put forward.

The Government originally promised us that HealthWatch England would be the independent patients’ champion. However, as the noble Lord, Lord Patel, has just pointed out, being a subcommittee of the Care Quality Commission does not demonstrate independence. It demonstrates a subsidiary role in relation to the Care Quality Commission. I am sure that the people currently at the Care Quality Commission are motivated to try to create an arm’s-length structure. We do not know, of course, whether that desire for independence would survive the first occasion when HealthWatch England challenged the decisions made by the Care Quality Commission, or how often it would survive after repeated such challenges. However, independence is also about the perception and the appearance of being independent. How can you appear to be independent if you are a subcommittee of one of the organisations that you may have to criticise from time to time?

This amendment seeks to do three key things. It would set up HealthWatch England as an independent statutory body and write that independence into statute, set out a clear relationship with local healthwatch organisations and safeguard their funding mechanism. I recall some very wise words said to your Lordships’ House in July 2007 when we were debating the creation of the Commission for Patient and Public Involvement in Health. It was stated that,

“one signal advantage of the commission is that the money that it distributes to forum support organisations cannot be used for purposes other than those for which forums were established. Under the arrangements in the Bill, however, there is no guarantee at all that money intended to support the activities listed … will actually reach the front line. It would be possible for a local authority to say that it was delivering the activities in the Bill when, in reality, those activities were so minimal that they were hardly worth the name of patient and public involvement. What steps could be taken, in those circumstances, to ensure that such involvement in health and social care is delivered properly?”.—[Official Report, 23/7/07; col. 615.]

The person speaking said that the answer was not delivered by the Bill brought forward at that time by the Labour Government. Who was the person who delivered those words? It was, of course, the noble Earl, Lord Howe—the current Minister. He made it quite clear that the arrangements which he is now seeking to replicate were not adequate and would not, and could not, work. Yet the proposals which were going to establish the independent patients’ champion are weakened precisely because he has not accepted the lessons of his own words.

The noble Earl, Lord Howe, went on to say that he was concerned that, as:

“LINks are going to assume different forms and guises in different localities, it is axiomatic that the level of activity that they undertake is going to vary”.—[Official Report, 23/7/07; col. 615.]

He asked how the amount of money in any given area was to be assessed. Therefore, I ask the noble Baroness—who will respond on behalf of the noble Earl, who gave us that wise advice in 2007—what will be the mechanism for determining how much money is allocated to each local authority for healthwatch in its area? Will this be a global sum that will go from the Department of Health to the Department for Communities and Local Government, and then be allocated to local authorities by the mysterious process by which the block grant from the DCLG is decided for each local authority area? Or will there be a separate formula that will go with that money and decide how much money is allocated to local healthwatch around the country? If it is the latter, will that information be published? Will it be possible for residents in a local area to know how much money has been allocated so that they can see whether it is being used? I suspect that unless we have the answers to those questions we will know that the reality is that this money will disappear in the wash and not be effective. The point about the amendment is that it provides a solution to that problem because the same money would be channelled through a body that would be dedicated to the provision of local healthwatch organisations and want to ensure that the money was spent properly and appropriately.

The Government’s arguments—we have had several discussions about this with Ministers, and I am grateful to the noble Earl and the noble Baroness for providing those opportunities—seem to be broken down into three areas. First, they argue that there is a natural synergy with the work of the Care Quality Commission. However, I have already pointed out that the CQC is one of those bodies that HealthWatch England may have to criticise. There is also a synergy with the work of the NHS Commissioning Board, Monitor, Public Health England and all sorts of other parts of the new NHS. Why is there specifically a synergy with the CQC?

The Government’s second argument was that there would be cost efficiencies and that this would be the most efficient way of doing this because there would be savings due to the collocation. However, as the noble Lord, Lord Patel, pointed out, you can achieve that in many ways. You can simply say that one of the things that HealthWatch England, as an independent statutory body, could be required to do through guidance, would be to look at how its back-office operations could be provided from a variety of organisations of appropriate stature and size, where the issue of conflict would not necessarily arise. That provision could then be made by way of a clear legal agreement. However, that is not being done, and I am not quite sure why the Government are saying that there are efficiencies and cost savings that could be made only by the precise structure that they propose. In terms of providing the funding to local healthwatch, our proposal has to be a more efficient provision that will deliver the resources without leakage and without local authorities deciding that perhaps there is a greater local priority than local healthwatch.

The noble Baroness, Lady Northover, spoke vehemently about the way in which the former Commission for Public and Patient Involvement in Health had operated, and how it had a wasteful and top-heavy way of distributing resources to local patients and for public involvement. That is not the only way to distribute resources. The only reason that the former commission distributed resources in that wasteful and inefficient way is because the Department of Health at that time—I regret, led by a Labour Minister—insisted that it was done in that rather ridiculous and cumbersome way. If Ministers want distribution done efficiently and simply, perhaps that can happen. If you appoint the right people to the initial board of HealthWatch England, I am sure that they would want to ensure that that is the case. It does not have to be done in the way I described.

The third argument that I have heard Ministers make for locating this body within the CQC is that it will provide all sorts of informal support and guidance—that there will be a library, information resources and so on. However, the Government have told us how important the duty of collaboration is within the new NHS and how significant it will be. Why do you need to collocate and have HealthWatch England as a subordinate structure within the CQC when there is a duty to collaborate? Indeed, why cannot HealthWatch England collaborate with other national bodies as part of the NHS?

Within this group there are other amendments, including Amendment 224 and 225, which propose that the majority of members of HealthWatch England will not be from the CQC and will be appointed by local healthwatch. I have two concerns about those amendments. Why cannot all the members be derived from local healthwatch organisations? The bigger question comes in a later group of amendments, which is: if you have destroyed the statutory status of local healthwatch organisations, how can contractors, which will be delivering local healthwatch services at a local level, deliver representatives to a national structure? Will we thereby have representatives of different local social enterprises appointing people to sit on a national body? That is a strange representative structure.

Then there is Amendment 226ZG, which is the Government’s answer as to how they make sure that local healthwatch organisations are satisfactory. This gives HealthWatch England—this sub-committee of the Care Quality Commission—the power to write a letter. It is the power to write a letter to a local authority and say, “In our opinion, the local healthwatch organisations that you have organised in your area are insufficient”. My goodness, as a former local authority leader, I know that I would be quaking to receive a letter from a sub-committee of a national organisation that did not really regulate anything that I was particularly bothered about, telling me that I was not doing something absolutely right. There would be no enforcement powers and no means of intervention, but the power to write a letter. Brilliant. Excellent. It is just what we are looking for. It offers hardly any solution, although I appreciate the concession that the noble Baroness and the noble Earl have made in that amendment.

I conclude by saying that this is not a party-political issue. The previous Government got this wrong and, sadly, the present Government look as if they are about to get it wrong. This was an opportunity to get it right. Patients need effective representation, particularly in the context of the Bill. Even if you believe that the Bill will deliver to us a better health service—and I am obviously not one of those—patients need to be given confidence that their interests will be properly represented. At the moment, the arrangements proposed by the Government do not do that. That is why an independent HealthWatch England is so important.”

 

Thursday
Mar 8,2012

The report of the Parliamentary Joint Committee on the National Security Strategy (of which I am a member) has just been published.

Its key findings are that:

  • There is no evidence that the NSS has influenced decisions made since the Strategic Defence and Security Review. If the current strategy is not guiding choices then it needs to be revised.
  • There should be an “overarching strategy”, a document designed to guide government decision-making and crisis management both at home and on the international stage.
  • The Government’s assertion that there will be no reduction in the UK’s influence on the world stage is “wholly unrealistic in the medium to long term” and the UK needs to plan for a changing, and more partnership-dependent, role in the world.

The Committee also expressed concern about the operation of the National Security Council concluding that it did not operate always at an appropriately “broad and strategic” level.  For example, it became deeply involved in essentially operational issues during the operations in Libya.  Moreover, it failed to consider the national security implications of the Eurozone crisis or the possibility of Scottish independence.

Wednesday
Mar 7,2012

Yesterday there were five votes in the House of Lords on the competition sections of the Health and Social Care Bill.  The amendments were all defeated by the Government and, despite all the LibDem huffing and puffing over the last few weeks, not a single LibDem Peer voted for any of them.

The first amendment which would have placed a duty on the Secretary of State in respect of standards of adult social care was defeated by 261 votes to 203 – with 66 LibDems voting with the Tories against the amendment.

The second amendment which would have protected the NHS from the worst effects of competition (and was originally moved by a LibDem peer) was defeated by 275 votes to 188 with 66 LibDems voting with the Tories.

The third amendment which would have retained Monitor’s role as the independent regulator of NHS Trusts was defeated by 255 votes to 183 with 65 LibDems voting with the Tories.

The fourth amendment which would have tried to limit “anti-collaborative” behaviour in the NHS was defeated by 221 votes to 171 with 58 LibDems voting with the Tories.

The fifth amendment which would have enabled NHS commissioners to determine the most effective way of delivering NHS services without necessarily putting them out to the market was defeated by 203 votes to 157 with 52 LibDems voting with the Tories.

In none of the divisions did a single LibDem vote with Labour to protect the NHS.

Saturday
Mar 3,2012

On Friday, when Parliament was not sitting, the Government published 68 amendments to the Health and Social Care Bill changing the status of local HealthWatch organisations (the local bodies that are intended to protect patient interests in the new Tory/LibDem vision of the Health Service), as I predicted a few weeks ago.

The amendments are very complex and difficult to follow – they amend amendments to Part 14 of the Local Government and Public Involvement in Health Act 2007.  And they are scheduled to be debated next week during the House of Lords Report Stage consideration of the NHS Bill.

That means that these amendments – slipped out without proper warning or explanation (a normal courtesy of writing to those Peers with an interest in a particular matter doesn’t yet seem to have happened in this case) – will not receive proper Parliamentary scrutiny.  They have never been considered by the House of Commons (and, if passed in the Lords, will now only be taken there as part of the truncated Consideration of Lords Amendments procedures).  In the House of Lords, they have not been subjected to detailed scrutiny at Committee Stage and will essentially have to be debated on a take it or leave it basis when they are eventually reached probably some time late on Thursday.  That will be the only opportunity for any  discussion on what these amendments mean.

So what are these amendments about?

The biggest change is to remove Clause 181 and Schedule 15 of the Bill.  These established local HealthWatch organisations as statutory bodies with a defined local membership (appointed in accordance with regulations) that could employ staff, would meet in public etc.

Instead, local authorities will be expected to make “arrangements” with a body that “a person might reasonably consider … acts for the benefit of the community in England”. And these bodies will then be able to sub-contract the patient representation work further.

The role of the national body, HealthWatch England (which the Government still want to be a sub-committee of the heavily-criticised Care Quality Commission) to advise local HealthWatch organisations is also being diluted with their power to give “advice” being changed in another amendment to a weaker role of giving “general advice”.

Presumably as a sop to people like me who had complained that there was nothing to require local authorities to provide an adequate local HealthWatch organisation (or even to spend the money allocated for local HealthWatch for that purpose), there is an amendment that gives HealthWatch England the power to give a local authority “written notice of its opinion” that the services expected of a local HealthWatch organisation are not being provided properly.  This gives HealthWatch England the power to write a letter, but that is all.  There is not even a requirement for a recalcitrant local authority even to respond to the letter.  I am sure they will be quaking at the prospect!

The Government acknowledges that there may also be a conflict of interest between a local HealthWatch organisation and the local authority that is responsible for setting it up and funding it (for example, if a local HealthWatch criticises the quality of the social care provision provided by a local authority).  They are therefore putting forward an amendment saying that local authorities “must have regard to any  … guidance on managing conflicts” that the Secretary of State may issue.  Again, not much of a safeguard.

The amendments also seem to envisage that a local authority may get different contractors to provide the various functions of local HealthWatch organisations, so one contractor may “gather information” and “make recommendations”, another may be responsible for “monitoring” services with the power to “enter and view” them, a third might provide advocacy services and a fourth might be responsible for “influencing commissioning”.  This is hardly a recipe for an effective structure.

And there is another strange amendment which suggests the possibility of imposing a requirement that  in any area “Local HealthWatch contractors (taken together) are representative of people who live in the local authority’s area”.  This acknowledges that there are likely to be several sub-contractors providing patient representation services in an area, but also opens up the possibility that the sub-contractor providing one service may not be representative provided the other subcontractors compensate for the first’s unrepresentativeness.

Without these amendments, there would at least have been some clarity as to what a local HealthWatch organisation might look like – even though they would be hampered, possibly shackled and potentially starved of funds by being subservient to the local council in their area whose social care provision they would be monitoring.  However, with these amendments local HealthWatch organisations are likely to be fragmented and will lose the authority they would have had by being statutory bodies.  What is more by deleting the schedule that would have specified membership arrangements and governance they will now be shadowy and unaccountable structures.

The net effect of these amendments will be to make it more likely than not that the new local HealthWatch organisations will be ineffective and that there will be no proper and coherent structure of patient representation at local level.

One can only speculate as to why these amendments have been brought forward in this way at this time.

One possibility is that some obscure unit in the Cabinet Office charged with dismantling the public sector suddenly realised that there was a bit of the Health and Social Care Bill that did not facilitate privatisation and instructed the Department of Health to change it.

Another is that Department of Health Ministers have realised that the changes they are making to the NHS are so unpopular and are likely to have such a damaging effect on patients that they simply cannot risk having an effective mechanism for patients’ interests to be represented.

I don’t know which is the real reason, but it is difficult to conceive of any other rational explanation.

Friday
Feb 24,2012

Normally any late change to the order of business in the House of Lords is agreed through the “usual channels“.  This is to make sure that the relevant spokespeople are available.

I understand that the Government are trying to schedule a vote on the Welfare Reform Bill for late on the evening of Wednesday 29th February.  This is part of the “ping pong” procedure and will be when the House of Lords considers the reversal by the House of Commons of the Lords’ amendment on the so-called “bedroom tax“.

Normally Consideration of Commons Amendments is given priority in the order of business and is usually taken immediately after Question Time, when the House is at its fullest.  This, of course, is the second time that the Bill has been returned to the Lords by the Commons, which means that, if the Lords rejects the latest Commons amendment, the two Houses are moving firmly into constitutional crisis territory.  All the more surprising therefore that the Government are trying to take this vote late on Wednesday.

However, is it surprising?

Or is it yet another cynical manoeuvre by the Conservatives and LibDems to make major changes in the benefits system without proper debate and adequate scrutiny?

Tuesday
Feb 14,2012

Here is my speech from tonight’s debate on NHS bureaucracy:

“My Lords, it is an enormous pleasure to follow the noble Lord, Lord Fowler. I was particularly taken with his support for the principle of ring-fenced funding, which I trust the Minister will take into account when, a little later, we come to consider local healthwatch organisations.

Earlier today, we had a Question on the initiatives that had been taken in London on stroke care. I did not get an opportunity to pose this question but I was interested in who, in the absence of NHS London driving the process, would have taken the quite difficult decision to reorganise stroke care in London, given that it was opposed by a lot of the local providers and local organisations. This question also came up during the first day on Report when we looked at who would make decisions on reconfiguring services and who would make decisions when services were not adequate or when there were issues of equality of healthcare to be addressed. At one point, the Minister said,

“The CCGs will be supported in their efforts to improve quality by the NHS Commissioning Board”.—[Official Report, 8/2/12; col. 314.]

Later on, when I probed him on this, he said that “the board”—that is, the NHS Commissioning Board—“will be represented sectorally”. I was not quite sure what he meant, but it being Report stage I could not challenge him. He said:

“There will be field forces in all parts of the country … The majority of its staff will be a field force”.—[Official Report, 8/2/12; col. 316.]

I do not know how a majority can be a field force, but there we are. Later on, he said:

“However, of course, the board will be represented at a local level rather than only centrally, and we expect that the board will be represented in health and well-being boards and in the discussions that take place there”.

When I questioned whether that meant that they would be members, he said:

“It is entirely open to a health and well-being board to invite a member of the Commissioning Board to be a permanent member, but I am not saying that we are prescribing that”.—[Official Report, 8/2/12; col. 340.]

I took that to mean that the NHS Commissioning Board will be sitting at the centre of the National Health Service with its tentacles going out to all parts of the health service. The Minister did not really like that. He said:

“The role of the board is to support local commissioners; it is to be there as a resource to promote guidance, supported by the quality standards that we were debating earlier”.—[Official Report, 8/2/12; col. 352.]

If the noble Earl does not like the metaphor of tentacles reaching out across the health service, perhaps a better metaphor would be to see the NHS Commissioning Board as some sort of Spanish Inquisition, reaching out to the local clinical commissioning groups and to the health and well-being boards, saying, “We are here to help”, which is no doubt what the Spanish Inquisition said in its heyday, and, “We are a resource to promote guidance”, which is also what I suspect that the Spanish Inquisition might have said in its heyday. I have to ask whether what we have before us is really a less bureaucratic structure when it has this enormous inquisition-like structure sitting in the middle of it, promoting things at a local level.

We are replacing a fairly simple, basic idea: the Department of Health in the middle with a series of strategic health authorities and below those the PCTs. I believe that the previous Government should have done more to reduce the number of PCTs and I know that my noble friend Lord Warner worked very hard, in his various incarnations, to try to achieve just that. There are too many PCTs, but we did not need this Bill to reduce the number of PCTs. Nor did we need this Bill to give those PCTs clinical leadership. All that was required was to appoint local doctors, local clinicians, to lead those PCTs, and that could have been done from the Department of Health. You did not need this Bill to reduce bureaucracy and to simplify that fairly straightforward structure; you did not need this Bill to give clinical leadership; and you certainly did not need the top-down reorganisation, which I think we were promised we would not have.

Instead we shall have the Department of Health at the centre and the Secretary of State, who will not micromanage but who will have instead the NHS Commissioning Board. No doubt the Secretary of State, like some latter day Henry II will say, “Who will rid me of this rebellious CCG?”, or, “Who will require something to happen in a local provider?” and popping up like some—I am mixing my metaphors—Torquemada will be the chief executive of the NHS Commissioning Board, Sir David Nicholson, who will say, “Ah, right, this is something that we will take on; it is not something that you, Secretary of State, should be micromanaging yourself; we, the NHS Commissioning Board will micromanage it through our network of clustered strategic health authorities, through our commissioning support groups and through the 300 CCGs, not forgetting these wonderful bodies, the clinical senates”. No doubt this is my failure rather than anyone else’s, but I have yet to understand exactly how the clinical senates will operate. I rather suspect that they will be like the Deputy Prime Minister’s proposals for a replacement for your Lordships’ House: they will be costly, rather powerless and part of this panoply of structures.

Throughout all this, there will be the field forces of the NHS Commissioning Board, not reaching out like tentacles, but being there as a resource to promote guidance and to make things happen. Apparently from this Bill, which allegedly will reduce bureaucracy—this morning I heard a government apologist on the radio saying that the Bill is all about reducing bureaucracy—we will have this network of individuals who will work with, or even sit on, local health and well-being boards, working to encourage and promote guidance and advice and working with clinical commissioning groups. They will be individuals who will, largely, be anonymous, invisible and unaccountable, except upwards to the NHS Commissioning Board. I am not sure that I accept that this will be a less bureaucratic structure but I am quite sure that it will be a much less clear and accountable structure than anything we have had before.

Recently, I was in a meeting with a number of London MPs who were talking about how these new arrangements will work. The question they wanted answered—this is the Henry Kissinger question—was who do we phone to talk to when some issues takes place which is not soluble by an individual clinical commissioning group or is not simply an issue that relates to one provider? Where do we go? Presumably, we ought to go to this anonymous individual, anonymous representative of the NHS Commissioning Board. No one will know who that person is. That person will not be accountable and presumably will not be supposed to talk to Members of Parliament.

The question that I hope the noble Earl will answer about where the Bill is going—I accept the comments of the noble Lord, Lord Fowler, that it may not be perfectly drafted—is: how baroque will the structure be underneath the NHS Commissioning Board? How will that structure of individuals and field forces, which will manipulate what happens in local CCGs and in local health and well-being boards, work? How will a field force be held accountable, visibly and locally to the population who will be affected by the decisions of those influenced by that local field force?”

And here is Sir David Nicholson, Chief Executive of the NHS Commissioning Board:

david_nicholson020310.jpg

And, of course, he is nothing like Tomas de Torquemada, the Grand Inquisitor of the Spanish Inquisition:

Torquemada.jpg

But then nobody expected the Spanish Inquisition did they?

Monday
Feb 13,2012

The amendment I signed to place a statutory duty of candour when something goes wrong on those providing health services was defeated in the House of Lords this afternoon by 36 votes with 198 in favour and 234 against.

164 Labour Peers voted in favour along with 1 LibDem and 33 cross-benchers and others.  137 Tory Peers voted against the amendment, along with 61 LibDems and 36 cross-benchers and others.  LibDem Baroness Tyler of Enfield who also signed the amendment nonetheless voted against it

My speech (with interruptions) was as follows:

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,

“were unaware of any investigation, everything was released in drips”.

Another family claimed:

“They didn’t disclose anything, it was a battle to the end”.

Another said that

“the shutters came down as soon as I started asking questions”.

One parent explained that it was like being,

“in a void whilst waiting”.

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 no pen and paper. I was the only one taking notes. After that the matron told me that she would try to get answers for me. I asked how she would remember 20 questions which I asked as she was not taking notes. It took three years for them to give this evidence”.

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. That would put them in the position of a whistleblower. This duty would remove that conflict for those individual professionals.

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 troubling and certainly did not recognise at all was when he went on to say that the coercion, rather than gagging, that might take place inside, for instance, a provider trust such as my own—Barnet and Chase Farm—would discourage people from being anything but frank. I have now been the chair of Barnet and Chase Farm for five years. The chair is at the end of the process and during the process has the opportunity to talk to people. I hope that my trust is not unique but in five years I have never known that kind of culture at Barnet and Chase Farm. The noble Lord is looking askance but I ask him to trust me. From my experience—and I hope that it is not a lone experience—I can assure him that that culture does not exist inside my trust; nor, I am sure, does it exist in others. In fact, the opportunity to come clean is used by my trust in the whole way in which patients are dealt with and, indeed, when patients tragically die. If what the noble Lord is saying does happen, then the amendment is absolutely crucial. However, I do not recognise it.

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 department wants to see; it wants to ensure that that duty is reflected, not only as far as the individual professionals are concerned, but also as far as the organisations are concerned. Otherwise, too often the lawyers and managers will say, “In the interests of the trust, let us try to keep this quiet”. I am glad to hear that it does not happen in every instance, as I am sure it does not, but the purpose of the amendment is to provide a statutory framework that will make it quite clear to all those who might otherwise be tempted to cover up these incidents that they must say, “This is important and we have to be open”.”