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Health Service Safety Investigations Bill [HL] - Second Reading

Part of the debate – in the House of Lords at 6:41 pm on 29th October 2019.

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Photo of Baroness Thornton Baroness Thornton Shadow Spokesperson (Health) 6:41 pm, 29th October 2019

My Lords, I am resisting using words such as “zombie” in this debate, particularly so close to Halloween. Given the debate taking place in the Commons right now and the fact that a decision might be taken as we speak to dissolve Parliament, this debate may come to naught. However, it seems likely that we will find ourselves discussing this issue again after a general election. I reassure the Minister that, when our positions are reversed, the work that she is leading on this Bill will not go to waste.

I thank all noble Lords for their contributions and the Minister for her comprehensive explanation of the Bill at the beginning of this debate. I agree with the noble Baroness, Lady Jolly, that, in his way, my noble friend Lord Turnberg’s wise speech has given the House a test that we need to pass to make this Bill work. He did that eloquently and movingly and I thank him for that.

The noble Lord, Lord Patel, was quite right about the NPSA. I forgive the Minister for not having our historic memory; we had this in the past. I have in front of me quotations from the speech that the noble Earl, Lord Howe, made when he killed it off. He said that we needed to get rid of the arm’s-length body of the NPSA and integrate patient safety into the NHS and the social care system. Here we are today setting up an independent arm’s-length body to do just that. That is all I am going to say on that matter.

On these Benches, like most noble Lords today, actually we broadly support the aims of the HSSIB—not pretty, that name—and welcome the changes that have been made to the Bill since it was introduced in 2017.

I congratulate the Joint Select Committee on its deliberations and thank the many organisations, including the Library, which have taken the time to send briefings through to assist our consideration of the Bill.

Of course, the test of the Bill’s success will be whether it has a significant impact on patient safety and changes culture, habits and working practices. I hope that we will not find ourselves in five years’ time realising that we simply added another layer of complexity and bureaucracy to the NHS’s existing patient safety regimes and that it had little impact. The reason I say this—again, it was highlighted eloquently by the noble Lord, Lord Patel—is that we know that it is people who need to change their habits, culture and working practices. However clever the structures and however laudable the aims of the HSSIB, if it cannot influence and change those habits, culture and working practices throughout the NHS, it will not succeed. In many ways, that is the most difficult thing we seek to do here.

The concept of safe space is interesting, plucked from the aviation industry, as many noble Lords said, where it has worked well. However, the NHS is not British Airways. In many ways it is a much more complex organisation, and it is full of human beings who do things to other human beings. Whether it is possible to transpose that concept is one of the key questions we will have to address during the passage of the Bill. The safe space provisions need to be balanced with the rights of patients and their families to be involved in the investigative process, and their results being open to public scrutiny—the noble and learned Lord, Lord Judge, said that, drawing the attention of the House to the need for patients to be at the centre of this, which is absolutely vital.

Is there a potential conflict between the proposed safe space powers for the HSSIB and the duty of candour for healthcare professionals? The duty of candour is intended to promote openness and transparency with patients and families within health and care. However, will the proposed powers for the HSSIB undermine that by allowing professionals to share information in private? Perhaps the Minister would like to share her thoughts about whether the duty of candour is helped or hindered by the proposed safe space powers. As the Professional Standards Authority says in its brief:

“The proposed powers for HSSIB must not be a substitute for further work to embed a learning culture within regulatory structures and ensure that professionals feel safe and empowered to raise concerns within their workplace”.

The issue of protected materials was raised with us by several organisations. It is obviously true that newspapers, in print and online, play a vital role in scrutinising the NHS on behalf of the public, so transparency and freedom of information laws not only help to protect the public but are part of the public confidence in the system. That the Bill seeks to impose a statutory ban on the disclosure of information beyond that warranted for its purpose, and backed by criminal sanctions, is very serious indeed. Our job is to scrutinise the breadth of that ban, and to test whether its sanctions could prove counterproductive. The question is whether the Bill could undermine confidence and patient safety rather than improve it. I think we all look forward to probing this issue, particularly when we read the comment of the Campaign for Freedom of Information:

“The FOI Act’s nuanced approach protects the information that the government says this bill is designed to protect, but without the bill’s sweeping secrecy. The purpose of the prohibition, and the threat of prosecution, may be to reassure participants that they can assist the HSSIB without jeopardising their own position. But the terms in which this is done will lead to the withholding of information that could be disclosed without undermining that objective and which could contribute both to public understanding of safety issues and the HSSIB’s own accountability”.

There are serious questions which we will have to address in the later stages of the Bill. How will the public and other stakeholders be able to assess the rigour of the investigation, the propriety of the recommendations or whether improvements are being made, if they do not have access to the information on which the recommendations are based? Is the Bill compatible with Article 10 of the European Convention on Human Rights on the freedom of expression?

I turn to the issue of privately funded care. The HSSIB’s investigations are limited to NHS services and do not extend to privately funded care under Clause 2. However, only today, noble Lords will have received a report from the CQC that addresses the safety issues in cosmetic surgery. Of course, most cosmetic surgery procedures are privately funded. The report is very critical and underlines the point about independent hospitals, 41% of which the CQC recently rated as requiring improvement. We must include the independent sector under the scope of the Bill.

The Joint Committee highlighted the restriction to NHS-funded care and asked that it be reconsidered. In 2015, the Public Administration Select Committee said that the exclusion of the independent sector is not consistent with the whole-system approach, which is kind of obvious. The EHRC, in its briefing, asked the Government to look further at extending the HSSIB’s remit to privately funded care. I have a great deal of sympathy with the RCN, which said that,

“patients who use both NHS-commissioned health care services, and those who opt to have healthcare provided by private services, should receive the same rights to protections and safety from harm”.

Like many other noble Lords, we will be raising this issue at the next stage of the Bill, and we have time to draft the necessary amendments for consideration.

It does not need the setting up of the new structure, or the time and expense that that involves, to know that we have a crisis in our NHS workforce. That of course has an impact on patient safety. Will an HSSIB review consider planned and actual nursing staff levels in healthcare settings during any incident that takes place? Will it do that in every investigation that it undertakes? That will be crucial.

Turning to the exceptions from prohibition, on the High Court order, Clause 17 states that a person may apply to the High Court to disclose protected materials to the HSSIB. It states that:

The High Court may make an order on application … only if it determines that the interests of justice served by disclosing by the protected material outweigh … any adverse impact on current and future investigations by deterring a person from participating in them, and … any adverse impact on the ability of the Secretary of State to secure the improvement of the safety of NHS services”.

Some of the briefings we are receiving express concern that the test for disclosure by the High Court is too vague. They are unclear how the considerations set out in Clause 17(3)(a) and (b) can be evidenced, other than by a statement to the effect that they apply in a case. The reasons that healthcare regulators will seek disclosure from the High Court are likely to be linked to the proper exercise of their public protection duties. Is not the Minister concerned that we might find a high volume of speculative applications to the court in cases where insufficient information is held by the regulators to satisfy themselves that they are aware of all pertinent information regarding their statutory duties to maintain public protection? That is one area where we will need to determine the interests of the different regulators.

As the Minister knows, I serve on the quality and safety committee of my local CCG. Our objective as part of the commissioning landscape in our area is to improve the quality and safety of commissioned services by identifying gaps in and concerns about service provision and to seek assurance related to those issues. If that sounds familiar, that is because it is exactly what is being said in the Explanatory Notes to the Bill.

My point is that many parts of the NHS are looking at patient safety. We look at all the never events in the hospital trusts in our area. We look for patterns; we look to fill gaps. That is exactly what we are there to do. Last night, I put to the Minister the question of how that fits into this new regime because, as the noble Lord, Lord Faulks, said, the question here is one of duplication and confusion.

Finally, what about people? How will we stop people taking a scattergun approach when they are outraged about the treatment of a member of their family and going to everybody—which happens, as we can see—including to this new body? It seems that we will have to be much more concise.

I will not cover the maternity issue. I am confused about that; we will need clarity on it. As I say, we welcome the Bill. We have heard some excellent contributions. The noble Baroness, Lady Hollins, asked what is, in many ways, the most pertinent question: how do we ensure the proper implementation of the excellent reports that the Bill will produce?