Clause 21
Health and Social Care Bill
9:30 am
Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)
I beg to move amendment No. 24, in clause 21, page 11, line 17, leave out subsection (3).
I am sure that hon. Members on both sides of the Committee realise that this clause relates to a slightly different concern. Amendment No. 24 would delete subsection (3), which states:
“A failure to observe any provision of a code of practice under section 17 or guidance under section 19 does not of itself make a person liable to any criminal or civil proceedings.”
That removes any legal sanction or teeth behind the provision.
The explanatory notes to the Bill state:
“Although a failure to comply with either the Code of Practice or the Commission’s own guidance does not in itself constitute and offence, they may both be used as evidence in criminal or civil proceedings as examples of what is expected behaviour in the areas they cover.”
Writ large across the amendment are those 270 patients who died from superbugs as a result of the appalling hygiene standards of the Maidstone and Tunbridge Wells NHS Trust, 90 of whom died from C. difficile.
In its report into the deaths at Maidstone and Tunbridge Wells, the Healthcare Commission estimated that
“of the total 345 patients who died in the relevant periods who had been infected with C. difficile, there were approximately 90 deaths where C. difficile was definitely or probably the main cause of death...C. difficile definitely contributed to the deaths of approximately 145 out of 345 people, and probably or definitely to approximately 270 out of 345 people.”
Both the Health and Safety Executive and Kent police investigated whether they could bring charges against senior managers. I think that I am right in saying—I am more than happy to stand corrected if it is not the case—that neither the HSE nor Kent police have yet drawn any conclusions, or brought the matter to a conclusion. That is relevant because the force of this clause may be to limit what the commission can and cannot do.
The Committee will also be aware that the chief executive, Rose Gibb, was told that she would get a pay-off of at least £250,000 when she quit. Although the Secretary of State stepped in to block that payment, the Department has not yet confirmed whether he was successful. The Sunday Express,on 30 December 2007, reported the following:
“Sources at the Department of Health conceded it is ‘likely’ that she will eventually receive at least some of the money when legal arguments are finished.”
Two health care assistants have been sacked from the trust. One staff nurse and another health care assistant have been disciplined, but will remain. In light of that and similar cases, should not the Committee leave the door open for failure to observe the provisions of the code of practice on health care associated infections to be justiciable or triable in court? Does it not say something about the lack of seriousness with which the Government are approaching the issue, and their lack of faith in their own code and in our NHS, that they may be unwilling to do so?
If amended, this clause would enable an individual to sue for negligence on the basis of illness or injuries arising from the failure to observe the code of practice on HCAIs. This issue is crucial to understanding the import of the question whether the clause should stand as it is, thereby removing the teeth of any form of civil or criminal legal sanctions. For example, has the Secretary of State been successful in blocking Rose Gibb’s £250,000 pay-off? I am sure that each and every one of us would regard it as a scandal if she received a penny piece, in the light of what took place. Where are the police investigations up to, and why should such failings not end up in court? If they are not to end up in court, why should we engage the police’s time at all? Surely, the whole point would be to have internal inquiries or a commission inquiry.
If the commission has no teeth, what will be the sanctions? As we all know, it is very rare that one needs to refer to legal sanctions, if they exist, because everyone knows whom they are dealing with—the commission or the police—and where the case may end up. That, in itself, has an extraordinarily powerful effect, without ending up in either civil or criminal proceedings. If those sanctions are not available, I can well imagine that people will be able to run rings round this provision. I hope, therefore, that the Minister realises that our amendment would give to the commission, which the Government are putting into statute, the teeth that it currently lacks, in order to ensure that it is effective. Rejecting the amendment will create problems over time. It would be genuinely instructive to keep in mind the events at Maidstone and Tunbridge Wells and, in particular, Rose Gibb and what might have happened as a result of the failures that she unfortunately allowed to happen.