Health and Care Bill

Lord Balfe Excerpts

Lords Hansard - Part 1 & Committee stage
Wednesday 9th February 2022 Lords Chamber

[Baroness Stowell of Beeston (Con)]

My Lords, I do not very often become involved in health matters, so I hope that your Lordships will indulge me on this occasion.

Five years ago, when Charlie Gard’s parents were doing everything they could to fight for his life, I, like everyone else, was moved by their determination. Even so, my instincts were to accept what the Great Ormond Street hospital doctors were advising and what the judge decided was in Charlie’s best interests. I fall into the camp which believes that, in such an unimaginable, heartbreaking situation, the objective and dispassionate professionals are best placed to make a decision that no parent would ever want to have to make for themselves. When Charlie sadly died, I was moved by his parents’ dignity in coping with their heartbreak in the midst of a legal battle and in the full glare of publicity. Probably like many others who felt so sorry for their loss, I soon moved on and thought little more about this tragic case.

Then, just over a year ago, during the Christmas lockdown, when I was out on my daily walk, I heard an interview that Charlie’s mother, Connie Yates, gave to Andy Coulson on his podcast, “Crisis What Crisis?” For well over an hour, I listened to Connie tell her story. She spoke clearly, intelligently and reasonably about their experience as a family during the year in which Charlie lived, and about all that she and her partner, Chris, went through in their fight to be heard and taken seriously by doctors and lawyers. From listening to Connie, I learned that their expectations were well-informed and reasonable but that as the dispute continued, the situation became increasingly fraught and distressing —to the point where their efforts to be heard as parents made them feel that others believed they were guilty of not wanting the best for their baby. Even so, she was at pains to praise all the medical staff who had cared for Charlie at Great Ormond Street.

Towards the end of the interview, Connie told Andy Coulson that a Private Member’s Bill was being sponsored by the noble Baroness, Lady Finlay, that would bring to life what she called “Charlie’s law”. The noble Baroness has described this law. When Connie talked about it, I was struck by how modest and reasonable it is to create a legal framework to allow for resolution, without the added stress and trauma that they had faced during the time when they were fighting for Charlie. It also struck me very powerfully that, in developing this framework, Connie had taken the time to contact and listen to the doctors who had opposed her, so that she could better understand them and their position. That is worth emphasising again: this young woman is so reasonable that she wanted to create a law that would work for the benefit of the medical profession, not just parents.

As I finished listening to Connie, I vowed that I would support that Bill whenever it appeared. But as we know, Amendment 287 is here in lieu of that Private Member’s Bill, and arguably is a better way to introduce this measure, rather than having to battle with the usual procedural risks that are associated with private Members’ legislation. I am delighted to lend my support to this amendment. I am sure there are technical matters within the amendment which might require discussion between the noble Baroness and the Minister, but I urge my noble friend to take this seriously.

Given the ordeal that Charlie’s family faced a few years ago, when no one in authority listened to them, I am sure it would bring them a huge amount of comfort to know that they are being heard now. That is my main point and motivation today. Of all the things we must do if we are to level up this country, listening and taking seriously people who feel ignored or misunderstood is the most important aspect of that agenda, and in this context it costs us nothing.

I also say to Connie Yates, should she be listening today or read the record subsequently, that she is one impressive woman. When I heard her speak, and listened to what she had to say, she changed my mind and made me realise I had been wrong not to listen more carefully a few years ago.

[Lord Balfe (Con)]

My Lords, I welcome the amendment put forward by the noble Baroness, Lady Finlay, and will make what have been described as technical points. While I think this is a very good base, there are some things that I think need looking at.

I trained as a commercial mediator some years ago, and practiced for a couple of years, before I was signed up by David Cameron to do a different job. The first point I make is that there is a difference between commercial and family mediation. It is important to realise that. I notice that the amendment says

“where the authorities consider that the difference of opinion is unlikely to be resolved entirely informally”.

I suggest that it cannot be the authorities that decide; it has to be offered equally to both sides. That is why it will not be appropriate for the authorities to provide the mediation service. There are a couple of good, independent mediation services, including the Centre for Effective Dispute Resolution and the Alternative Dispute Resolution Services, but if it is to be a system which has the confidence of both sides, it must be independent of the authorities.

The next point I would like to make is this. There is a big difference between family and commercial mediation, and the difference is fundamental. Commercial mediation produces a legal, enforceable result; family mediation produces an agreement which has no legal force. One of the points which must be addressed if this is to be brought to fruition is what is to be the status of the mediation agreement. That is fundamental.

I was a commercial meditator and in East Anglia, where I was, we had a practice of commercial mediators going out also with family mediators to get an experience of the full area. One of the most distressing points about family mediation was the way in which families would bicker, eventually reach some sort of compromise, and, before you were through the door, decide they were not going through with it. If mediation is to work, it will have to have some sort of resolution at the end where the medical profession and the family can say, “This is settled”—not where one side can say, “Well, I don’t really like the outcome”. This could be the case, particularly in a complex medical situation, where you have a number of doctors involved and maybe two or three of them are part of the mediation but there is then someone further up the line who says, “No, I just don’t accept this”. There has to be a dispute resolution which has a legality about it.

Health and Care Bill

Lord Balfe Excerpts

Lords Hansard - Part 2 & Report stage
Wednesday 16th March 2022 Lords Chamber

As she said she would, the noble Baroness, Lady Finlay, has listened to all those who raised legitimate questions in Committee and has changed the amendment to address their concerns. I sincerely hope that my noble friend the Minister feels able to accept it.

[Lord Balfe (Con)]

My Lords, my only previous intervention on the Bill came about when I read the proposed clause, and in my capacity as a trained mediator I thought that the original proposed clause was not very sound. The proposed new clause is a huge improvement on that, and I hope it will be looked on with favour. As the noble Baroness said, it is about evening up the power relations.

If you are in a hospital and dealing with anyone who is ill, but particularly small babies, it can be a very difficult experience. My daughter-in-law had two very small twin babies. Gathered around the incubator were one PhD and three decent BScs, and we did not know what to do. We felt quite powerless, but we also felt that it was very difficult to get the doctors to tell us what the prognosis was. In fact, the prognosis was quite good—they recovered and are now both in the school football team—but at the time there was on our part a great sense of powerlessness and a feeling that the doctors did not feel they really needed to communicate with us. That level of powerlessness is what this aims to address.

It is about early access to independent mediation. The first qualification of a mediator is that independence. They will not get a result, and nor should they, unless they have the trust of both sides and unless both sides enter into it in a good spirit, looking for a solution. Finally, if they get a solution, it has to be one that sticks. That is why the amendment refers to

“the senior doctor with overall clinical responsibility.”

This cannot be a mediation where a junior member of the medical staff is sent along, where it has no binding effect and where the senior doctor looks at it and says, “I don’t like that; we’re not going to do that.” There has to be some sort of legislative backing.

However, as noble Lords will have seen, the amendment states:

“Where the authorities … become aware of the difference of opinion they must take … reasonable steps.”


It is all about getting consensus; it is about releasing medical data to both sides, and it is about ensuring that the doctors responsible for treatment are at least obliged to listen to any alternatives that the parents might wish to put forward.

When we last debated this issue, I advised—and indeed this has been done—that we knock out the financial provisions, because we thought that the Government would object and say, “We can’t sign a blank cheque.” However, clearly not all the people listened, because this very morning the Ministry of Justice released its Legal Aid Means Test Review, which states:

“We are proposing to increase significantly both the income and capital thresholds for legal aid eligibility, and remove the means test entirely for some civil cases. These include legal representation for children, and legal representation for parents whose children are facing proceedings in relation to the withholding or withdrawal of life-sustaining treatment.”


It rather shoots the government fox that was running around, does it not? It was said that mediation would encourage litigation, whereas now mediation will discourage litigation, because it will be in the interests of both the health service and the medical profession to make mediation work. In making it work, they will not have days and days in court, but they will have a chance of putting the case to a mediator—having been one, I can tell you that it is a lot cheaper than a barrister—and coming to an agreement without needing the great generosity of our Deputy Prime Minister, Dominic Raab, in offering to pay all these costs. I must say that I was surprised by that statement, but if anyone wants to read it, there are multiple copies in the Printed Paper Office, which is where I got mine.

I hope that the Minister will be able complement his colleagues in the Ministry of Justice by taking a positive attitude to curing this particular result. Otherwise, we will be in a position where the Department of Health and Social Care is saying no to mediation, but where we are now going to get free access to the law courts to run up huge bills. What the Ministry of Justice does not say is which departmental budget will pay for this concession. I would not mind placing a little bet as to which one it has in mind.

So I am asking the Department of Health and Social Care to save itself some money, thanks to the beneficent amendment proposed by the four noble Baronesses and supported by me. We are out to save the Government some money, to make it much easier and to build into the system a right for parents to have a more evenly balanced say in what happens to their child at what is a very difficult and distressing time for many of them.

[Baroness Fraser of Craigmaddie (Con)]

My Lords, I did not contribute to the debate on this amendment in Committee, but I did sit and listen to the contributions from around the House. What struck me was that in his characteristically sympathetic response, the Minister had not quite understood the purpose of the amendment and the problems it would solve. He stated that the amendment would place the views of parents and guardians above those of clinicians. I do not see that this is the case, especially with the revised amendment that we have before us. Unfortunately, it is a reality that parent-doctor conflict happens. I declare an interest as chief executive of Cerebral Palsy Scotland, and I have seen far too often the views of parents dismissed by clinicians. No matter how qualified parents may be, or what their role in life outside the hospital may be, they are consistently referred to only as “mum” or “dad”. Too often there is an imbalance of power with doctors, and too often parents are labelled as “difficult” or “sharp-elbowed”, as if wanting to do the best for your child is an irritant, and such parents should be grateful for what they get.

By the time a family is faced with palliative care, they will undoubtedly have been through the care of many clinicians: specialist, community, hospital and, potentially, hospice teams. The parents are therefore often the one consistent factor, and they are especially important when the child is too young or too ill, or unable to voice their own views. It is when parents feel they have not been listened to by clinicians that they resort to formal complaints or litigation. It is a last resort, but too often it is the only resort that is open to them. This amendment seeks to address this by giving them space for a formal coming together of all interested parties at an earlier stage, and so preventing costly and lengthy legal disputes. It does not place one party’s views above others; it does not, as outlined in proposed subsection (3), require the provision of resources for any treatment or require a doctor to provide treatment not in the best interests of the child. It simply ensures that there is a clear framework in these tragic, difficult cases to guide what happens next.

This amendment is designed to solve a problem currently faced by families and clinicians at moments of crisis. I urge the Government to consider it, and I will listen carefully to the response of the Minister tonight.

Health and Care Bill

Lord Balfe Excerpts

Consideration of Commons amendments
Tuesday 5th April 2022 Lords Chamber

[Lord Bradley (Lab)]

My Lords, I will speak very briefly to Motion Q: Amendments 105 and 105A. I declare my health interests as in the register, particularly my role as a trustee for the Centre for Mental Health.

I was disappointed that the Government did not accept my Amendment 105, which was passed in this House on Report, regarding mental health membership on integrated care boards. I repeat my thanks for the support I received for the amendment from Labour and Liberal Back-Benchers, particularly the noble Baroness, Lady Walmsley, some Cross-Benchers, and from my own Front Bench, my noble friends Lady Wheeler, Lady Merron and especially Lady Thornton, who has been tremendously supportive throughout. I am also extremely grateful for the continuing and unstinting support of organisations outside Parliament, such as the Centre for Mental Health and the Mental Health Foundation.

However, I am satisfied that the Government’s amendment in lieu, Amendment 105A, captures the essence of my amendment: that the voice of mental health should be at the board table at the inception of the 42 ICBs, and play a crucial part from the start in determining service priorities, budget and resource allocation, workforce growth and development, and commissioning arrangements, among other things. The chairs of ICBs will now have responsibility for the appointment of mental health representation and will be held accountable for their decisions. This House, the other place, external bodies, the public and I will all scrutinise these appointments very carefully.

The Government’s amendment, devised by the noble Baroness, Lady Walmsley, and passed on Report, will put a double lock on mental health representation because of its intention to review the skill mix and expertise of ICB membership in the future. We had further assurance in the Minister’s letter to all noble Lords, which said:

“We strongly agree with the principle underpinning Lord Bradley’s amendment and with his view that ICBs will be strengthened by having at least one member with knowledge of Mental Health on the Board. As it stands, however, the current drafting would create significant legal ambiguity, which is why we tabled an amendment in lieu in the Commons to ensure that the principle is maintained in a legally robust way”.


I am grateful to the Minister for this assurance, and I believe that in taking it together with the two amendments, the ambition for parity of esteem between physical and mental health will, as a result, take a further significant step forward.

The Government’s amendment in lieu of my amendment should ensure that the voice of mental health is heard clearly on ICBs and in the wider integrated care system, and that the mental health and well-being services needed and demanded by the public are at the heart of integrated health policy in the future.

[Lord Balfe (Con)]

My Lords, I rise to speak to Motions L and L1. Where we have got to today is a good example of what the House of Lords is for. When this Bill came to the Lords it had nothing in this area—but by working together, particularly with my friend, the noble Baroness, Lady Finlay, we have produced an acceptable clause. I would have liked more, but it is acceptable.

My skill, so to speak, was mediation, not health. What I hoped to do was to alter subtly but importantly the power relations in the hospital setting. The aim of compulsory mediation is that the patient would be given some power, although only the power to ask for mediation, which is, after all, a system whereby both sides have to agree. None the less, it would give them a way of articulating an issue. One of the jobs of a mediator is to make sure that both sides of any case are understood not only by the other side but by the side presenting it. I did the odd mediation in my time, and when we got down to it, it was clear that the people asking for it were not quite sure what they were asking for. So mediation is a way in which to calm things down, and that is what I was hoping to do. In the middle of all this, the Ministry of Justice came forward and said that it would cover certain legal costs. My aim was actually to reduce costs on the NHS by producing a rather cheaper way—but I am sure that that is something to be welcomed.

I will make just two or three small points. First, when this review is done, it is important that the mediation system that comes out is capable of being enforced. There are basically two types of mediation—what in lay man’s terms we used to call family mediation, and commercial mediation. The weakness with family mediation was that it was non-binding. I never did family mediation, but I belonged to a group with both sides in it, and one of the most distressing things was the huge amount of time that could be put in, and then the mediation agreement was just renounced and set aside. That has to be avoided; we cannot be in a situation where there is an NHS mediation and, let us say, the senior consultant says, “I’m not having that—I refuse to agree.” There has to be something equivalent to what in commercial mediation is known as the Tomlin order, which is the order whereby the court underwrites the mediation; it does not intervene in it but it gives it the force of law so that it can be enforced.

The detailed points that I would like to make to the Minister are as follows. First, in the clause that he has tabled, the department refers to

“the carrying out of a review into the causes of disputes”.

It needs to go a bit wider than the causes; it needs to be a review into the causes and the ways of solving disputes. It is no good having a catalogue saying, “This is where there are disputes.” It has to actually provide a solution to the disputes.

My second point is about where the provision refers to

“a report on the outcome of the review, within one year beginning with the date on which this section comes into force.”

It is a very simple question here: when does the Minister envisage that the section will come into force? There are things in Acts that have been around for years and which have never actually come into force. When will this come into force? I also hope that he will be able to give us a favourable answer on Motion L1, and the additional amendment, tabled by the noble Baroness, Lady Finlay. It adds a couple of very important points to this amendment, and I hope that it will be accepted.