Report (2nd Day)

Part of Health and Social Care Bill – in the House of Lords at 5:15 pm on 13 February 2012.

Alert me about debates like this

Photo of Earl Howe Earl Howe The Parliamentary Under-Secretary of State for Health 5:15, 13 February 2012

My Lords, this has been an excellent debate and I would like first to pay tribute to the noble Baroness, Lady Masham, for her tireless advocacy of the need for openness and transparency in the NHS. She spoke very powerfully. What struck me from the debate is the consensus that there seems to be on all sides of the House on three key points. First, there is agreement on the importance of openness and candour in healthcare, and I think we would all accept that the NHS could only call itself a world-class health service if it embraced openness wholeheartedly. Secondly, there is agreement that at present there is significant room for improvement, the story of my noble friend Lady Hussein-Ece being a case in point. While areas of the NHS, such as Barnet and Chase Farm, are already providing exactly the transparency we wish to see, that is not by any means universal. Thirdly, there is agreement that something needs to change.

I, too, am in complete agreement with those points. I agree that we must do all that we can to encourage the development of a culture within the NHS that supports people to disclose where errors have occurred, so I am at one with the noble Baroness in her intention in tabling her amendment. The question before us is not whether we should do something but what we should do. We need to ensure that the route that we choose gives that good intention the best chance of succeeding. I note from today's debate that opinion has not been all one way.

In that context, I remind the House that the Government's preferred position is to place a duty of candour in the NHS standard contracts. We have chosen that route because we feel that it has the best chance of working. The view that we have taken, on the basis of clinical advice, is that the responsibility for ensuring openness needs to rest as close to the front line as possible, rather than being the responsibility of a remote organisation such as the CQC. I would like to focus noble Lords' minds on that point. A contractual duty of candour places the responsibility for requiring openness directly with the organisation looking after patients and with clinician-led commissioners. That is the main reason why we think it will be more effective. By proposing to place a duty of candour in the NHS standard contracts, we are placing the power to hold the NHS to account as close as possible to the people affected by a lack of openness.

There is another dimension to this. Our proposal would create a single standard requirement that applied across all providers of NHS acute, community, mental health and ambulance care. If you had a statutory requirement, there would always be the potential for different interpretations of it. On a purely practical basis, that means that instead of a national body having to examine many thousands of cases, individual commissioning groups would have the much more manageable task of examining only their own local providers.

Making this a local contractual issue would enable the use of local intelligence about openness, or a lack of it, shared among clinicians, including those leading the commissioning process. That, too, we see as an advantage. That would maximise the chances that a lack of openness would be detected and acted upon, and that the action taken would be appropriate. More importantly, though-and this point was made effectively by my noble friends Lord Faulks and Lord Newton-it would be much more effective at achieving culture change, which, as many noble Lords have said, is what is really required, rather than trying to drive improvement through yet another law or regulation.

I listened closely to the arguments put forward by the noble Baroness, Lady Masham, in support of the amendment. She suggested that the contractual duty would be useless in detecting cover-ups because, as she put it, it would apply only to incidents that were reported. Checking if an incident has been reported to the CQC or the national reporting and learning system is only one mechanism by which commissioners could check if an incident had occurred but had not been disclosed to the patient. It is not the only mechanism; a commissioner could review medical records or review the care received outside incident reporting. If the evidence indicated that an incident had occurred but not been reported or disclosed, that would be a breach of current CQC regulations and, indeed, the contract. That would be quite unacceptable and action could then be taken.