Effect of code under s. 17 and guidance under s. 19

I beg to move Amendment No. 24, in Clause 21, page 11, line 17, leave out subsection (3).

I am sure that hon. Members on both sides of the Committee realise that this clause relates to a slightly different concern. Amendment No. 24 would delete subsection (3), which states:

“A failure to observe any provision of a code of practice under section 17 or guidance under section 19 does not of itself make a person liable to any criminal or civil proceedings.”

That removes any legal sanction or teeth behind the provision.

The explanatory notes to the Bill state:

“Although a failure to comply with either the Code of Practice or the Commission’s own guidance does not in itself constitute and offence, they may both be used as evidence in criminal or civil proceedings as examples of what is expected behaviour in the areas they cover.”

Writ large across the amendment are those 270 patients who died from superbugs as a result of the appalling hygiene standards of the Maidstone and Tunbridge Wells NHS Trust, 90 of whom died from C. difficile.

In its report into the deaths at Maidstone and Tunbridge Wells, the Healthcare Commission estimated that

“of the total 345 patients who died in the relevant periods who had been infected with C. difficile, there were approximately 90 deaths where C. difficile was definitely or probably the main cause of death...C. difficile definitely contributed to the deaths of approximately 145 out of 345 people, and probably or definitely to approximately 270 out of 345 people.”

Both the Health and Safety Executive and Kent police investigated whether they could bring charges against senior managers. I think that I am right in saying—I am more than happy to stand corrected if it is not the case—that neither the HSE nor Kent police have yet drawn any conclusions, or brought the matter to a conclusion. That is relevant because the force of this clause may be to limit what the commission can and cannot do.

The Committee will also be aware that the chief executive, Rose Gibb, was told that she would get a pay-off of at least £250,000 when she quit. Although the Secretary of State stepped in to block that payment, the Department has not yet confirmed whether he was successful. The Sunday Express,on 30 December 2007, reported the following:

“Sources at the Department of Health conceded it is ‘likely’ that she will eventually receive at least some of the money when legal arguments are finished.”

Two health care assistants have been sacked from the trust. One staff nurse and another health care assistant have been disciplined, but will remain. In light of that and similar cases, should not the Committee leave the door open for failure to observe the provisions of the code of practice on health care associated infections to be justiciable or triable in court? Does it not say something about the lack of seriousness with which the Government are approaching the issue, and their lack of faith in their own code and in our NHS, that they may be unwilling to do so?

If amended, this clause would enable an individual to sue for negligence on the basis of illness or injuries arising from the failure to observe the code of practice on HCAIs. This issue is crucial to understanding the import of the question whether the clause should stand as it is, thereby removing the teeth of any form of civil or criminal legal sanctions. For example, has the Secretary of State been successful in blocking Rose Gibb’s £250,000 pay-off? I am sure that each and every one of us would regard it as a scandal if she received a penny piece, in the light of what took place. Where are the police investigations up to, and why should such failings not end up in court? If they are not to end up in court, why should we engage the police’s time at all? Surely, the whole point would be to have internal inquiries or a commission inquiry.

If the commission has no teeth, what will be the sanctions? As we all know, it is very rare that one needs to refer to legal sanctions, if they exist, because everyone knows whom they are dealing with—the commission or the police—and where the case may end up. That, in itself, has an extraordinarily powerful effect, without ending up in either civil or criminal proceedings. If those sanctions are not available, I can well imagine that people will be able to run rings round this provision. I hope, therefore, that the Minister realises that our amendment would give to the commission, which the Government are putting into statute, the teeth that it currently lacks, in order to ensure that it is effective. Rejecting the amendment will create problems over time. It would be genuinely instructive to keep in mind the events at Maidstone and Tunbridge Wells and, in particular, Rose Gibb and what might have happened as a result of the failures that she unfortunately allowed to happen.

This Clause and the amendments do not relate to employment contracts or redundancy arrangements, so I shall not comment on them.

I welcome the hon. Gentleman’s support for the new enforcement powers and I share his desire for them to have teeth. However, the Amendment is perhaps based on a misunderstanding of, or a blurring of the distinction between, guidance and regulation. The amendment would give statutory force to the guidance, but it is the regulations that will have statutory force. The guidance will inform the regulations, which we will consult on, as I have indicated on a number of occasions. The problem with giving statutory force to guidance is that it is not scrutinised by this House, which is why subsection (2) of the clause clarifies that, as is common, guidance can be used in court as evidence of what could reasonably be expected to constitute compliance with the legislative requirements. Those are what have the legal force, because they are scrutinised by Parliament. That is in the interests of fairness and justice to the accused.

I have made it clear that I do not think the amendment appropriate. The Bill and regulations made under it will set out all the legal requirements that the services must meet. Clause 31 makes it an offence to contravene or fail to comply with those requirements. It would be inappropriate, therefore, to make it a criminal offence not to comply with the guidance, when it will be an offence not to do so with the regulations, which will be informed by the guidance.

We are genuinely struggling with this point, although I am grateful to the Minister for seeking to address it. Often the easiest way for the Opposition to scrutinise a Bill is simply to ask why something has been drafted in a certain way. However, we really are wrestling with this piece of drafting. Interestingly, during consideration of previous clauses, I did not ask why the Government have used in the Bill the words, “health care associated infections”. The word “associated” seems to have become a substitute for “acquired”, which is more commonly used; indeed, the Minister used it earlier. When one sees a word moved like that, one must question what is meant by it. It could not have happened by accident, because those who draft these Bills are highly expert wordsmiths and lawyers. It is right, therefore, that we question this.

I was very interested in the Minister’s answer. He spoke about how removing Clause 21(3) would give guidance statutory force, when it should be, in effect, best-practice advice—I think that that is what he suggested—and about the resulting inflexibility. I can understand that in relation to clause 19; however, clause 17 refers to a code of practice. The Minister, therefore, seems to be saying that the code of practice is no more than guidance. This point has been central to our discussions this morning: are we really saying that, because this is such a framework portmanteau Bill—drafted in generic terms and hugely dependent upon the publication, scrutiny and acceptance of the regulations in order to bring into play the true force of law—the code is to be no more than guidance? In that case, why is there a distinction between “code” in clause 17 and “guidance” in clause 19? If there is no difference, should we not just call them one thing?

Alternatively, should we not recognise that the code is likely to need some statutory underpinning, so that breaches of its provisions are justiciable? That would give the commission enforcement powers that would carry the credibility that we all want. We discussed whether the list was sufficiently comprehensive and flexible under previous amendments, the essence of which was to put parliamentary prioritisation in the minds of all of us who are concerned about the matter. Here, the Amendment would give legal earnest to the operation of the commission, using its code. There is differentiation between the words “code” and “guidance” in the two clauses, and if the Minister is going to resist the amendment because he believes that a breach of guidance should be subject to statutory legal proceedings, my point about that difference remains valid. I am not satisfied on the point, and I think that it will be appropriate to press the amendment.

Was the hon. Gentleman looking for a response, or does he wish to press the Amendment come what may? I do not want to detain the Committee.

It would be helpful if the Minister responded, because I might be able to judge whether to press the Amendment further.

First, the words “code” and “guidance” are equivalent in this case. We are using the word “code” in one instance for consistency and  continuity with the existing health care associated infection code of practice. The hon. Gentleman asked why we have changed the wording from “health care acquired” to “health care associated”. It is partly to broaden the definition, because there have been cases, for example, of visitors to hospitals acquiring infections, which is nothing to do with their own health care. The infection is not acquired through their health care but associated with health care in general. I hope that that helps the hon. Gentleman.

In that case, because we now have it on the record that “code” and “guidance” are indeed the same thing in this case, and that they are not intended to be justiciable either civilly or criminally, I do not need to press the Amendment to a Division. The issue is left standing and perhaps needs to be thought through, in the absence of knowing the remit of the regulations that will be the statutory underpinning giving rise to legal proceedings. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 21 ordered to stand part of the Bill.

Clauses 22 to 24 ordered to stand part of the Bill.