Report (2nd Day)

Part of Health and Social Care Bill – in the House of Lords at 4:45 pm on 13 February 2012.

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Photo of Lord Newton of Braintree Lord Newton of Braintree Conservative 4:45, 13 February 2012

My Lords, I am tempted to chip in-rather unwisely, no doubt, as usual-by the last two speeches. If it does not seem paradoxical, I must say that I agree with almost every word of both of them.

I certainly share the view of the noble Baroness, Lady Pitkeathley, and have some experience in having chaired three NHS health trusts since 1997, that there are too many cases in which an apology, together with an assurance that action will be taken to make sure it does not happen to anyone else, as well as achieving closure in the individual case would have made a material difference. I would add that ingredient to what she said. Indeed, I could give examples of where I spent hours of doing exactly that in one of my capacities with some parents who had experienced a tragic loss. I endorse that and I think that she is right. I also endorse her comments about not quite recognising this as a common feature in health trusts.

Most importantly, like everyone else I am in favour of motherhood, openness, transparency, guide dogs for the blind and all sorts of things. However, I have some worries along the lines so expertly expressed by my noble friend Lord Faulks about the effects of writing this proposal into the Bill and whether it would achieve what we really want. Everyone agrees that a culture change is required. From my experience, the key culture change is the willingness of teams of clinicians-I do not mean just great doctors but nurses and all sorts of others-to own up in case conferences and in peer-group reviews to what has gone wrong and to collaborate on how to make sure that it does not go wrong again.

My concern is that this duty of candour, which in this amendment is placed on organisations and not on individuals, seems to lead inescapably to the imposition of such a duty by the organisation on the individuals in their contract of employment. Therefore, at one remove, the effects would be much the same. My concern is one of ambivalence rather than certainty as to which will prevail. Will it be the influence on the organisation, or will it be the effect on the individual who knows that something has gone wrong and finds himself in a position not to own up or to be faced with the possibility that if he does own up, it might escalate all the way up to a massive clinical negligence claim?

I am only speculating, but it is very difficult to predict exactly what the effects of legislating in these terms would be. Since we all want to see greater openness and transparency, a greater willingness to apologise and for teams to say, "We got that wrong. How will we make sure that it doesn't happen again?", we should be a bit cautious before going down that track. If, as the noble Baroness, Lady Masham, said, the Minister has indicated that he would like to tackle this matter in secondary legislation, guidance or whatever rather than through primary legislation, as there is for welfare reform, that may be a far more productive way to approach it than what is proposed in this amendment.