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Health Service Safety Investigations Bill [HL] - Second Reading

Part of the debate – in the House of Lords at 6:00 pm on 29th October 2019.

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Photo of Baroness Meacher Baroness Meacher Crossbench 6:00 pm, 29th October 2019

My Lords, along with other noble Lords I very much welcome this important Bill, at least in principle—I think it could go one way or the other. I declare my interest having worked in the NHS for many years; I also have two doctors in my family, which, I suppose, is bound to influence my opinions somewhat.

During my years with the NHS, I was terribly conscious that it was far from straightforward for lessons to be learned across the complex web of organisations within the NHS following an incident; indeed, lessons from excellent practices in one trust somehow failed to get across to trusts around the country. We certainly have a problem. The other tragedy in our health services, in my view, is the appalling toll on doctors’ morale of investigations into complaints, so many of which lead to no further action—or in some cases lead to minor or, on occasion, inappropriate recommendations—after months of misery for the professional involved. No account seems to be taken of the huge pressures under which doctors and nurses work these days.

The blame culture that pervades the health service undoubtedly reduces staff morale and therefore the quality of service for patients—which, at the end of the day, is what the NHS is all about. This culture also reduces the willingness of doctors to be open, so we do not learn the lessons that we need to learn.

The Bill is not about doctors and nurses versus patients—quite the opposite. If we manage to reduce the blame culture, and the unpleasantness of this culture, for professionals, that will undoubtedly benefit patients at least as much as it benefits the professionals. Much will depend on the relationship between the HSSIB and other regulatory bodies. The GMC refers to Clause 12, which envisages co-operation between the HSSIB and regulatory bodies. It is not clear what this means. What do the Government intend this co-operation to involve? In particular, would the Minister be interested in exploring the possibility of reducing the blame culture more widely through the work of the HSSIB?

Of course, firm action does need to be taken where necessary. Clause 15 makes this point clear and I welcome the emphasis on limiting disclosure to situations where there is,

“a serious and continuing risk to the safety of any patient or to the public”.

The “safe space” for doctors to provide information will need to be protected, as other noble Lords have pointed out. It is absolutely priceless to this Bill.

I hope that we can discuss in Committee the possibility of a restorative justice approach at the very start of certain complaints. Of course, this has worked extremely well in the criminal justice system. It would involve a meeting between the doctor, the patient and an independent person to try to resolve the matter amicably. I think a lot of patients would welcome that approach; certainly, the professionals would. Obviously, if you cannot resolve the matter amicably you have to move on to a further investigation. I would have thought that, in many cases, to avoid the blame matter coming into play, the HSSIB would be a good place for these investigations to go.

The GMC wants greater flexibility to enable it not to waste resources on investigations which lead to no further action. At the moment, it complains, the GMC is required to investigate every one of the thousands of complaints made every year concerning doctors’ fitness to practice. I hope we can support the GMC in its wish to reduce that work and reduce the misery for professionals through amendments to the Bill.

As the Minister pointed out, the model for the HSSIB is of course the aviation safety investigation system that has apparently been so extraordinarily successful in improving safety through getting rid of the blame culture. A particularly difficult issue, I recognise, is raised in Clause 25. The clause limits disclosure to other regulators if the interests of justice in a particular case are outweighed by the public interest in doctors’ willingness to participate in HSSIB investigations and the need to secure service improvements. This will undoubtedly raise concerns in many parts, but I welcome the assertion of the supremacy of the public interest.

NHS Providers proposes that the disclosure provisions be more tightly drawn, limiting disclosure further than envisaged in the Bill. It is concerned about Clauses 17 and 19, and I am inclined to agree with its argument. It argues that it cannot be right for a doctor to be compelled to give information to the HSSIB when they would be committing an offence if they did not do so, and to give that information on the understanding that they are acting within a safe space, and then for the information to disclosed to other investigating bodies. This seems to me to be a very serious issue, and I am sure we will come back to it in Committee.

The Parliamentary and Health Service Ombudsman argues that the HSSIB should be required to disclose information to it because the lack of disclosure could prevent it carrying out an effective investigation. It seems to have managed fine up to now without the HSSIB helping it, so I have no sympathy, I have to say. I would be very concerned if the safe space aspect of HSSIB were weakened. That would surely negate the whole point of the organisation, inhibit openness on the part of doctors and others, and limit the potential for learning lessons. In my view, we really would have scored an extraordinary own goal. Again, we will no doubt return to this issue.

Finally, I support the call from the Royal College of Surgeons in its helpful briefing for the remit of the HSSIB to extend to non-NHS services in the independent sector. That proposal is supported by the Independent Healthcare Providers Network. I understand that the Government have a reason for not including this at the moment because of the Paterson report but, like the noble Lord, Lord Hunt of Kings Heath, I hope that at least we would include an enabling power in the Bill. However, I am much more persuaded by the noble Lord, Lord Scriven, who spoke very powerfully on the basis that we do not need to wait for the Paterson report at all and that the remit of the HSSIB should be extended to the independent sector where it is caring for people not under the NHS. My reason for supporting the surgeons’ proposal comes from my experience as a Mental Health Act commissioner when I used to visit private and independent hospitals as well as NHS ones. It is so clear in my mind that the very worst services that I ever visited were in the independent sector. If we leave that out, we really have not done very well.

Like other noble Lords, I regard the Bill as having great potential. I just hope that we can play a constructive role in making sure that that potential is achieved.