Report (2nd Day)

Part of Health and Social Care Bill – in the House of Lords at 5:30 pm on 13 February 2012.

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Photo of Earl Howe Earl Howe The Parliamentary Under-Secretary of State for Health 5:30, 13 February 2012

The question of the noble Baroness relates back to something that I said some time ago. The answer is that we believe that culture change stands the best chance of happening when you bring home to those with direct responsibility for patient care that it is in the contract of the organisation that it must be candid. There are different views about this. I do not disagree with the noble Baroness that, in some cases, regulation is the right way to go. I will say a little more about that in a moment, as I wind up.

I was just talking about primary care in sympathetic terms. We need to remember that other requirements for openness still apply to all NHS services. All primary medical service contractors must have regard to the NHS constitution, professional codes of conduct, any guidance issued by PCTs or the Secretary of State and so on in relation to openness. Once they are registered with the CQC, a failure to be open with patients contravenes clear expectations set out in CQC guidance. The CQC can then take action. Therefore, primary care contractors currently have no excuse to avoid telling their patients about things going wrong with their healthcare. However, I acknowledge the concern of the noble Baroness, Lady Finlay, and others that primary care contractors will not be covered by the current proposals for a duty of candour in the NHS standard contract. Any contractual amendment in relation to primary care contractors is a more complex process, requiring amendments to secondary legislation, among other things. Specifically because of this, we asked for views on this in our recent consultation, which closed at the end of last month. I can confirm to the House today that we are giving further thought to the issue of primary care and the duty of candour in light of the consultation responses we have received. They are complex issues. I hope noble Lords will understand that I cannot prejudge the careful analysis that is already under way in deciding how we go forward in this area. However, it is something that we are actively considering.

My noble friends Lady Hussein-Ece and Lord Ribeiro, the noble Countess, Lady Mar, and the noble Baronesses, Lady Pitkeathley and Lady Wheeler, all made the same point: more than anything else, patients or their families often wish for an explanation, an apology and some assurance that lessons have been learnt. As part of our consultation, we have reiterated that there must be an apology and a basic step-by-step explanation in a face-to-face meeting quickly. That should be required as a minimum. The NHS Litigation Authority has made clear, as have we and the National Patient Safety Agency, that an apology is not an admission of liability and should be immediately offered.

My noble friend Lady Williams and the noble Baroness, Lady Finlay, spoke about whistleblowing. I completely agree with them and the Government support the right of NHS staff to raise concerns. We expect all NHS organisations to do likewise. Measures to promote whistleblowing include a free, independent advice line for staff and a proposal to strengthen the NHS constitution in this area.

My noble friend Lady Oppenheim-Barnes asked me whether the NHS should circulate information about a mistake after it has been made so that lessons can be learnt. I completely agree with her. It is a very important issue. The NHS can and should report the details of patient safety incidents to the National Reporting and Learning System, which collates such information, distils the learning, spots trends and risks and then disseminates the information to the whole NHS to prevent a recurrence. That will continue.

My noble friend Lady Tyler asked whether I would report back to the House on the consultation that recently closed. Of course I shall. The Government will publish a full response to the consultation once the submissions that we have received have been fully analysed. Early indications are that opinion is split. Our initial analysis suggests that around one-third of respondents were supportive of a contractual duty, while a similar number were not. The remainder provided mixed comments. We will review the information carefully and respond to it in due course.

In addition to this and, once again, in response to my noble friend's question, I confirm that I agree with the proposal that she put forward, which I think the noble Lord, Lord Beecham, asked about in Committee. It was that the Government should undertake a future review of the effectiveness of the contractual duty of candour after an appropriate interval and include within this a specific analysis of whether its effectiveness is being substantially held back by the lack of a reference in primary legislation. If this review were to highlight that this was happening, the Government would give it very significant consideration and take it fully into account in the context of future primary legislation.

I hope that the noble Baroness will take that reassurance on board. I hope, too, that it will be clear to her that this debate is not about the principle of candour, but about what in practice is most likely to influence the culture of an organisation. We simply do not think that more regulation is the right way to go. I hope that the noble Baroness will accept that we have listened to her point of view and considered it very carefully. However, for very good reasons we think our preferred route is better.