Health and Social Care Bill

Baroness Hussein-Ece Excerpts

Monday 7th November 2011 Lords Chamber

[Lord Harris of Haringey]

My Lords, the noble Lord, with all his experience—albeit, like me, as a non-lawyer—is speaking exactly the truth. In many of those cases, the legal advice would be, “Say nothing”. There therefore needs to be a statutory duty, because then the responsibility of the lawyers concerned would be to advise, “There is no option but to tell the patients or their families”.

An interesting point is that insurers in the United States often require open disclosure policies and practice by health providers to qualify for insurance. The international evidence is that, as well as being the right thing to do morally and ethically, being open and honest when things go wrong can actually reduce litigation and complaints.

My concern is that the Government will say that they are doing enough by saying that the duty of candour can be achieved through a contractual process. However, as the noble Baroness, Lady Masham, has pointed out, this would apply only to hospitals with an NHS contract; it would not apply to GPs, dentists, pharmacists or private healthcare providers. I do not see why the duty of candour to patients and their families should be regarded as of lesser importance and impact than those things where there is direct regulation. I hope that the Minister will say that the Department of Health will take this away and that he will come back to the House with proposals to give a statutory duty of candour to protect the interests of patients.

[Baroness Hussein-Ece]

I, too, wish that there was not a need for this duty and that it was unnecessary. However, as we have already heard from the noble Baroness, Lady Masham, and the noble Lord, Lord Harris of Haringey, there is a compelling case that now, more than ever, we need a duty of candour.

As has been said already, we know that accidents will never be eradicated, and nor will human error. We know that healthcare has risks—most people accept that—and that health professionals are only human. However, when things go wrong and they are caught up in things that can cause harm to patients, they need to be supported and helped to deal with a very difficult situation.

There has to be absolute clarity that anything less than complete openness and honesty when things go wrong is unacceptable in modern British healthcare. That is what I understand that the amendment is trying to achieve—a duty of candour.

In my previous life, I was a chief officer in a community health council. Unfortunately, I came across many cases in which a complaint was brought to me and, when we started to look into it, it became apparent that all was not what it seemed. It would often take months, if not years, to establish what had happened. For a family who has lost somebody or when something has gone badly wrong, that compounds the distress that is caused. It makes things worse. As the noble Lord, Lord Harris of Haringey, said, most people want to know. They just want information; they want to know the truth of what happened to their loved one. The last thing that they want is to find out, sometimes months or years later, that there has been a cover-up or they were given the wrong information. Sometimes, deliberately, the shutters simply come down because a trust fears litigation, as we have heard. Because of that fear, parents, patients and families are often left floundering in the dark and running to lawyers.

None of us can imagine losing a loved one as the result of an avoidable error and then finding out how the information had been kept from one. As has been said, there is no statutory requirement. It would come as a surprise and a shock to most of the general public that there is simply no requirement to be told when something goes wrong with any of our loved ones. The onus would be on them to find out and get to the bottom of it. Most patient groups that are campaigning for this are coming at it from real experience of having to take up some of the most tragic cases that we have heard about in recent years. The phrase “having regard to” the principle of openness is in the NHS constitution, but it is really not sufficient. It is not adequate to deal with the sort of cases that we have heard about.

Successive Governments have usually agreed that a duty of candour is a good thing and may be required, but so far there has been a failure to establish what that duty should entail. It is different from the contractual duty built into standard contracts between commissioners and some providers of NHS services. I believe that this is wrong; surely, honesty is the only policy in this instance. This should be a commitment to the protection of patients in healthcare and a legal duty of candour, which places a duty on all healthcare professionals to be open and frank with patients and their families. I was disappointed to read just last week that the GPC said that GPs would not back an openness clause in the GP contract, for example. I found that very disappointing.

--- Later in debate ---

[Earl Howe]

My Lords, unfortunately, I am not an expert in consumer law. My noble friend Lord Marks might be able to enlighten us on this, but there are, of course, consumer protection laws, which every organisation has to abide by, as provided for in the Consumer Protection Act. I think there are probably consumer protection aspects to contracts relating to healthcare services, but we have to tailor the contracts to ensure that we cover the issues that healthcare gives rise to.

The noble Lord, Lord Warner, asked me about the NHS Redress Act and whether the provisions of that Act were capable of taking forward some of the issues raised in the debate. I understand why he has asked that question, but there is a difference between redress for negligence and openness and it is important to distinguish between the two. As such, some of the issues raised this afternoon fall into the remit of redress and associated legislation rather than being specifically linked to a duty of candour. However, I note that, notwithstanding the long hours that we spent debating the NHS Redress Bill some years ago, the previous Government chose never to bring it into force; it is potentially on the statute book, but it is not in operation.

I shall reflect carefully on the points made in this debate. I hope that I have in some way reassured the noble Baroness, Lady Masham, that we are putting systems in place to introduce the duty of candour. To answer my noble friend Lord Mawhinney, we have a strategy. There are good reasons for the contractual route that we have chosen as well as a real potential downside if we were to go down the statutory route proposed here. So against that background, I hope that the noble Baroness will feel able to withdraw her amendment.

[Baroness Hussein-Ece]

The Minister's comments on mediation prompt me to ask a further question. When I dealt with many of these cases, the complaints procedure was on three levels and the first, immediate level was when the patient or the patient’s representative came forward with a complaint to seek local resolution, and often mediation was used to bring the parties together to give, as far as possible, full information. This is very patchy and I was wondering whether, within the consultation and the contractual duties to which the Minister has referred, that will be extended so that things can be resolved at the first level before they get to the litigation stage. Is that being considered?

[Earl Howe]

I shall have to get back to my noble friend on whether it is specifically mentioned in the consultation. I can say that it is absolutely pertinent to the subject matter on which we are consulting. It would be extremely helpful if some of the response to the consultation covered issues such as mediation. We need to factor that in and perhaps my noble friend, with her experience, will feel able to send us her views on the subject.

Health and Social Care Bill

Baroness Hussein-Ece Excerpts

Wednesday 2nd November 2011 Lords Chamber

[Baroness Finlay of Llandaff]

My Lords, it may help the Committee if I explain how the GP contract is being renegotiated; I hope that I get this right. Instead of a GP contract covering a rigidly defined area, as now, there will be an outer ring as well. If patients move a bit further away but stay within that outer ring area, instead of being forced to change their GP, they will be able to remain with their current GP. Therefore, I think that the problem of choice, to which the noble Baroness, Lady Cumberlege, alluded, should in large part be solved by the negotiations that the Government have just had with GPs. There is of course a difficulty in defining any area but to date the areas have been defined by GPs, and they will still have to define the outer area or outer ring to which it is practical for them travel to carry out home visits and so on.

As I understand it, a decision has not yet been taken on what will happen with people who, like most of your Lordships, are classified as temporary residents. Many of us live a long way from here and, if we need to see a GP, we register as a temporary resident with one somewhere in Westminster. I am not sure how those arrangements will work in the future but they have served us reasonably well until now. The danger in relation to allocation relates precisely to those patients to whom the noble Baroness, Lady Tonge, referred—those who have been thrown off GP lists or cannot get themselves signed on to a GP list for whatever reason but still have healthcare needs. If those needs are not met, that will impact on the very social fabric of our society. I hope that I have clarified some of the points.

[Baroness Hussein-Ece]

I should like to ask a couple of questions to clarify where the debate is going. As my noble friend Lady Tonge said, for a number of years some groups have found it almost impossible to get a GP. It is almost a case of GPs selecting the people they want on their lists; it is an unwritten code. That is why asylum-seeking families, refugee families and others with very high needs will always find it difficult to get a GP, and I want to ask the noble Baroness, Lady Finlay, how her amendment will assist that.

Equally, as has already been mentioned, areas of high need have in my experience always been in inner cities, where it has been difficult for some people to register with a GP. We know that attendance at A&E departments has become extremely high in some areas—almost unsustainably so—and I want to ask how the amendment will address that too.

There are also families who are placed by local authorities in temporary accommodation in other areas. Currently, a local authority is responsible for such a family—for example, social services or family support may be involved with the children. However, if that family is placed in another borough way out of the catchment area, I am not sure who their GP will be. Perhaps the Minister can respond to that as well and say how that would work with a local authority having responsibility for a family placed well outside the area. Would that family still be able to get support by going on to a GP list in the new area? Would that connection be made? Over the years we have worked very hard to make sure that social care, healthcare and local authorities all work together in partnership. Perhaps we could have an explanation of how it is going to work when families with very high needs are spread around.

[Lord Newton of Braintree]

My Lords, your Lordships will have realised by now that I am basically a simple-minded soul. I am struggling to discover what this issue is but it seems to come down to one specific point: do clinical commissioning groups have the same responsibilities as primary care trusts for planning services for all the people that they think live in their area? That is the core question. Do they have an area base—I dare to risk upsetting my noble friend—for their activities? I understand that it has been decreed that no practice can be part of two clinical commissioning groups; they cannot overlap and have to be distinct and separate. In a sense they are the same as primary care trusts. Do they have a responsibility to plan and provide services for all the people known to be in that area? The rest of this is all peripheral. I require services from the NHS both in London and at home in Essex, and I normally get them. But people in Westminster, where my flat is, know perfectly well that there are lots of second homes in Westminster, and presumably the health authorities and primary care trusts know that as well and plan on that basis. It is a simple question: does somebody have a responsibility to plan and provide services for all the people in their area? Yes or no?

--- Later in debate ---

[Earl Howe]

There is a hypothesis in my noble friend’s question that I do not necessarily accept but I would be happy to write to her with the figures.

[Baroness Hussein-Ece]

I am sorry to press the Minister on the point I made about homeless families who are placed in different boroughs or areas by their local authority. Under the present system, the GP practice where the family was originally based would wash its hands of that family and say, “You are no longer in my area”. Is the Minister saying that wherever a family has been placed, they would still be able to retain the services of the GP where it originated from or would they have to register with a practice close to the temporary accommodation in which they may have been placed. Such placements can last for many years. Will the family have to seek a GP close to where they have been placed or could they still use the GP services from whence they came?

[Earl Howe]

It would depend how far the family had moved away from the GP practice. What I was trying to say was that the agreement we have reached with the BMA comprises two elements. One is that the outer boundary of a GP practice is going to be flexed in a sensible and pragmatic way so that if you move a few streets away from where you were previously living, you can still be treated in the same GP practice. The other element of the agreement is the pilots that we are looking at. They are only pilots and we will set them up in order to experiment and learn lessons from how they work. It is impossible for me to give my noble friend a generalised statement at the moment because it will depend on the circumstances. At present, the rules will remain roughly as they are other than the flexed boundary rule that I have mentioned.

Health: Obesity

Baroness Hussein-Ece Excerpts

Wednesday 19th October 2011 Lords Chamber

[Earl Howe]

The short answer is the ring-fenced public health budget, which will encourage local authorities to look across the piece at their public health responsibilities.

[Baroness Hussein-Ece]

My Lords—

[Baroness Howarth of Breckland]

My Lords—

[The Chancellor of the Duchy of Lancaster (Lord Strathclyde)]

My Lords, if both noble Baronesses are quick, we can get both in. Can my noble friend speak first, and then the noble Baroness?

[Baroness Hussein-Ece]

My Lords, unlike the noble Lord, Lord Lawson, I have not really been there and done it, but I am full of admiration for him that he has. However, is it not shocking that 25 per cent of children aged between two and 15 are now classified as obese? Does the Minister share my concern that this serious public health problem is not simply a question of celebrity chefs or of parents being lectured about lunch boxes, it is about educating children and families on how to prepare fresh, healthy food? Is there any evidence that this is being done consistently?

[Earl Howe]

I agree with my noble friend that it is about educating both children and parents about healthy diets and healthy eating, and encouraging children at school to take up healthy diets.

Health and Social Care Bill

Baroness Hussein-Ece Excerpts

Wednesday 12th October 2011 Lords Chamber

[Baroness Hussein-Ece]

My Lords, like many in your Lordships’ House, I have had many letters and e-mails from people who are huge supporters of the NHS, many expressing real fear. It is unfortunate that much of the campaign we have experienced has relied on convincing the public that the NHS is set to be privatised. Many are convinced that we are heading for an American-style system and I am sure that we have all had e-mails saying that we do not want to see that. People are also worried that their children and grandchildren will not be able to receive the services that they received in their lifetime. I believe that the politicising of the debate on the NHS to this level is at best unhelpful and at worst irresponsible. It is playing on people’s fears, and I felt quite saddened by some of the e-mails that I have had. I want to see a greatly improved and more responsive health service for my children and grandchildren.

We have huge challenges, as many of your Lordships have already mentioned. We have an ageing population; more and more people will become reliant on health and social care services that must—really must—become more responsive and integrated. We have heard from successive Health Secretaries and successive Governments that it has always been their aspiration to integrate health and social care, but on the ground we know that this has not always been the case. Patients should not be passive recipients of health services. They should be treated as individuals, people who place their trust in their local health service and expect quality of care. I believe the general public have far higher expectations that we probably had when we were growing up.

Like many others, my family has experienced the best and the worst of care, and it is the worst that we need to ensure is consistently always as good as the best; for example, the care and treatment of older people, as the noble Lord, Lord Winston, has just touched upon, is not always very good in many hospitals and remains unsatisfactory. I have a story too. Four years ago when my terminally ill 88 year-old father was left covered in bedsores, with poor pain management and personal care and the loss of his basic dignity, we felt there was no one in the hospital who was prepared to take responsibility for the poor nursing care—I was always sent to speak to somebody else. The stories in the media of older people being denied basic care and dignity are nothing short of a scandal, and unfortunately we still hear them daily.

I remember a document called Hungry in Hospital?, produced a decade ago by the Association of Community Health Councils when the noble Lord, Lord Harris of Haringey, who is not in his place today, was the chief executive. It recorded the plight of many older people who were simply left to starve because there were not enough nurses to assist with the most basic form of care—food. Recent reports unfortunately show that this is still happening. I want to see reforms that ensure that this never happens.

I also want to see a better and properly resourced health and social care system for disabled children, and for child and adolescent mental health services. I received a briefing note, as have many others, I am sure, from the campaign group Every Disabled Child Matters. Disabled children are the fastest growing group in the population of disabled people and they deserve better than the disproportionately lower priority than adults that they receive when it comes to the allocation of funds. Time and again I have dealt with cases, in my previous life as a councillor and more recently, where the individual service may be good or even excellent, but the collective system has let that child down. The current legislation does not provide for this.

Health inequalities remain at a grotesque level for such an affluent country. The NHS alone cannot resolve this. I am concerned that the single most important aspect of the phrase “No decision about me without me” is still at risk of failure. This relates to commissioners’ duty to ensure the involvement of individual patients in decisions on managing their own care and treatment. I worked for years at the forefront of patient and public involvement in the NHS as the chief officer of a community health council in one of the most deprived parts of the country. CHCs were very effective. They were the patients’ voice in the NHS, with a statutory right to be consulted on any changes in their local health services. They were local and they were mainly effective. Cynics at the time suggested that that was why they were unceremoniously scrapped by the last Government in 2003, to be replaced by a plethora of successive patients’ groups at a cost of over £70 million in the first year alone. I welcome the proposals to strengthen patients’ voices, but I have concerns that must be looked at if this Bill is to be properly scrutinised at Committee.

My concerns include the patient and public involvement requirements under both the current legislation and the Bill—that those who use services are involved in planning, changes and decisions affecting how services operate. The definition of involvement is very weak. What does that mean? The National Health Service Act 2006 diluted the involvement of patients and the public so that this could be met simply by giving information. The duty is neither comprehensive nor consistent across commissioners and all types of providers; for example, the proposed PPI duty on Monitor makes no sense, referring to whatever it feels “appropriate”. There needs to be a statutory duty on Monitor to respond to referrals made to it by health overview and scrutiny committees because at the moment it simply ignores them.

I would like to see a much more patient-centred total health and well-being model, which would ensure that the Bill is fit for purpose. I am pleased that the Government have recognised that the powers of health and well-being boards need to be strengthened to ensure the co-ordination of commissioning plans with the health and well-being needs of the area. However, this proposal needs to go further. I was initially a supporter of primary care trusts. I sat on my local PCT board for four years, representing the local authority. We had a good relationship and integrated services, but many of my colleagues across the country simply did not, with local authorities barely having a working relationship with their PCTs.

My local PCT decided to close down a major primary healthcare centre, against huge public opposition. It was put out to consultation and the PCT’s decision was referred to the council’s health and well-being board, where it was properly scrutinised by democratically elected local councillors for many months. When the committee’s report was complete, the PCT board refused even to allow the chair to present the committee’s findings to the board. We were left with a huge conflict. A board of people who were unaccountable to the public and who only answered to the Secretary of State were in the driving seat, refusing to take any notice of a democratically elected health and well-being board. This experience convinced me that the present system needs reforming. Yes, the Secretary of State must be legally and politically responsible for the NHS, but there needs to be more accountability at all levels.

To conclude, I find myself in complete agreement with what the noble Baroness, Lady Thornton, said yesterday. She said:

“Our job is to scrutinise and improve this Bill”.—[Official Report, 11/10/11; col.1480]

I totally agree. She somewhat contradicted herself later by saying that she would support the amendment tabled by the noble Lord, Lord Rea—in other words, no scrutiny of the Bill. However, I am very clear that this Bill needs improving and amending to ensure that we not only improve patient care but give patients and the public greater accountability within the health service and greater confidence. Many of us have welcomed the substantial changes that have already taken place, but I think most of us would agree that the status quo is not really an option.

Health: Multiple Sclerosis

Baroness Hussein-Ece Excerpts

Tuesday 7th June 2011 Lords Chamber

[Earl Howe]

The problem is that, historically, there has been no requirement to publish information on the number of multiple sclerosis nurses. The NHS Information Centre for health and social care extracts data from the electronic staff record and quality-assures the data prior to publication in the non-medical workforce census. The qualified nursing, midwifery and health visiting staff group is broken down only by area of work, so it is quite difficult to keep a handle on this.

[Baroness Hussein-Ece]

My Lords, many people with a long-term condition such as multiple sclerosis are usually in their prime of life and in employment when they are diagnosed. It is therefore important to their well-being that they can continue with that employment as long as they are able to. Can the Minister say whether the government-led initiative Health, Work and Well-being is supporting these people and whether he is satisfied that all employers understand that those diagnosed with multiple sclerosis are protected by the Equality Act and the Disability Discrimination Act, depending on where they live?

[Earl Howe]

My Lords, I am personally involved with Dame Carol Black in a work stream under the Responsibility Deal, which covers health in the workplace. Under that banner, we are emphasising to employers how important it is to understand the circumstances and needs of employees with a long-term condition. I will, however, go back and see whether I can provide my noble friend with a fuller reply.

NHS: Reform

Baroness Hussein-Ece Excerpts

Monday 6th June 2011 Lords Chamber

[Earl Howe]

My Lords, the way we have set out the Health and Social Care Bill means that, wherever possible, decisions on service reconfiguration will be taken at the local level. That will mean that all stakeholders locally, not only the NHS but local authorities, social services and patient groups, will buy in to and contribute to whatever decisions are taken. So my answer to the noble Lord is this: it should be a considered process of decision-making taken locally.

[Baroness Hussein-Ece]

My Lords, as we know, the NHS is the most valued public service in this country. It is one that we all rely on from the cradle to the grave. What are my noble friend’s views about the fact that it is still the most unaccountable public body delivering services that we have? It is still unaccountable to its users. What discussions have been taking place to ensure that the NHS becomes far more responsive and accountable to users?

[Earl Howe]

My noble friend has made a key point. As she will know, patient and public accountability is one of the themes of the listening exercise that we have been conducting. I anticipate that Professor Steve Field and his NHS Future Forum will come forward with some substantive recommendations on how we can improve the arrangements for accountability in the service. I agree with her that it is in practice less than accountable at the moment, and our view is that it should be accountable primarily to patients in the local area but also, crucially, to Parliament as well.

Mental Health: Children in Local Authority Care

Baroness Hussein-Ece Excerpts

Monday 23rd May 2011 Lords Chamber

[Baroness Hussein-Ece]

Does my noble friend share my concerns that significant numbers of black and minority-ethnic children in the care system suffer from mental health problems, but do not receive the appropriate intervention and support until it is far too late and they have already become involved in the criminal justice system? Will my noble friend tell me what is being done to ensure early intervention, treatment and support for these young people and children?

[Earl Howe]

My noble friend is absolutely right. She will know that minority-ethnic groups appear to be overrepresented in the looked-after population. Around 3 per cent of the child population of Great Britain is from black, black British or mixed groups, but 8 per cent of looked-after children are black and 7 per cent are from mixed groups. She is right that there is a problem. She is also right that early intervention is key. There is a strong emphasis on public mental health in the mental health strategy. The good foundations are down to early intervention, as I mentioned, and we are clear that this is a priority for the Government.

NHS: Waiting Times

Baroness Hussein-Ece Excerpts

Tuesday 3rd May 2011 Lords Chamber

[Earl Howe]

My Lords, the noble Baroness is right to raise the question of consultant numbers. I simply say that one of the clinical indicators that we have set for A&E is that there should be consultant sign-off. That in itself should encourage consultant capacity over time.

[Baroness Hussein-Ece]

My Lords, attendance at A&E has steadily gone up by more than 1.3 million over the past five years. How much is this the result of the lack of access to GP out-of-hours services? Is it not the case that too many people are presenting at A&E who should be seen at a primary care setting?

[Earl Howe]

My Lords, I agree with my noble friend completely. That is why we are quite clear that general practitioners have to take much greater direct responsibility for out-of-hours care. At the moment they can, if they choose, divorce themselves from that responsibility and I think that was a retrograde move. Equally, we are clear that we should encourage general practitioners to look at ways of avoiding unplanned emergency admissions to hospital in the first place. That will reduce pressure on A&E.

Health: Influenza Vaccination

Baroness Hussein-Ece Excerpts

Thursday 20th January 2011 Lords Chamber

[Earl Howe]

My Lords, the main lesson is one to which I referred a minute ago. We are considering bringing back into central procurement the purchasing of the seasonal flu vaccine, which is an exception to the normal rule. We purchase most vaccines centrally, apart from that one. There is a lot to be said for changing the ordering system so that we can keep better track of supplies and, perhaps, have more cost-effective procurement at the same time.

[Baroness Hussein-Ece]

My Lords, I read a report in the media last week saying that, in light of the high incidence of children under five contracting flu, the Government are preparing to examine new evidence from the advisory group that could allow for all under-fives to be vaccinated. Have the Government reached a view on this?

[Earl Howe]

We have not reached a view on this because the JCVI’s advice remains unchanged. In fact, current evidence shows that children under five are not the age group with the highest risk of death. The age group with the highest risk of death from the flu that is circulating currently is middle-aged adults. Nevertheless, those with risk factors have the highest risk of severe disease and death from flu compared with healthy age groups. However, I can tell my noble friend that nothing is set in stone. We do not wish to constrain the JCVI in any way and we will listen to its advice, as we always do.

Health: Influenza

Baroness Hussein-Ece Excerpts

Tuesday 11th January 2011 Lords Chamber

[Earl Howe]

My Lords, it is quite difficult to substantiate that suggestion, because the immunisation figures do not bear out the noble Baroness’s argument. The level of vaccine uptake in the over-65s is 70 per cent, which is better than in most countries of Europe. Among the at-risk under-65s, it is 45.5 per cent, which is comparable to the past two years. Therefore, it is not clear that a generalised campaign would have added value.

On the question of pregnant women, the normal procedure is for the Chief Medical Officer to write to all GPs in the summer, setting out all the at-risk groups. She did that in June. We were then alerted in December by the Health Protection Agency to a worryingly high number of pregnant women who had contracted influenza, so we wrote to both the BMA and the Royal College of Midwives to emphasise the desirability of encouraging that group of patients to get vaccinated. We did the right thing, which was to respond to emerging data.

[Baroness Hussein-Ece]

My Lords, is it the case that the highest rate of flu has been among those aged one to four? Have the parents of children in that age group been encouraged to have their children vaccinated over and above others? Also, have the Government changed their policy of publicising the need for the flu jab, which they did during last year’s outbreak?

[Earl Howe]

We did see a higher than expected number of under-fives contracting influenza, so we took urgent advice from the Joint Committee on Vaccination and Immunisation in December and asked it to confirm its previous advice that not all under-fives need get vaccinated unless they were in an at-risk group. It confirmed that advice and we have followed it.