The clause has the generally laudable aim of ensuring that there is a mechanism for sharing information about health workers. As a general principle, that is to be welcomed. There have been occasions where the system has failed in the past because it has not joined up and earlier, I cited an example of a nurse in a nursing home who was able to practise for some time before her regulatory body caught up with her.
There is a concern about the current drafting. The aim of the amendment is to ensure that the sharing of any information that relates to the conduct or performance of a health worker could happen only if it actually shows that the worker is likely to constitute a threat to the health and safety of patients. The current wording in the Bill says “may”, and that seems to encompass a range of levels of proof. It would only potentially show that a worker may be a threat, and it is not clear how robust that evidence has to be.
The regulations will require NHS trusts and other bodies to provide and share information about health care workers in circumstances where a person may constitute a threat to the health and safety of patients. The BMA identified a potential problem with the clause from an employment law perspective. Clause 112(1)(a) refers to information that
“may show whether a worker is likely to constitute a threat to the health and safety of patients.”
Legal advice received by the BMA shows that if an employer were to pass on an unproven or damaging piece of information without the employee’s knowledge, it could be the basis of a claim that the employer had breached an implied term of trust and confidence in his or her employment contract. The use of unproven information does not indicate what level of investigation there has to have been. Obviously any comments that raise concerns are potentially damaging to an employee's reputation, so the matter would need to be carefully looked into. There is a case for saying that information should be shared only where the employer can demonstrate cause. In effect, that means that there would be a full and proper investigation and that the employee would be informed of the allegations.
It would be helpful to know how and when those powers will be used. Can the Minister clarify the procedures for the sharing of such information, including the need to inform the subject of the investigation at the earliest possible stage about the allegations that are being investigated? What assurances can the Minister give that the information shared would be kept in strict confidence, and to whom will that information be restricted?
Page 61, line 4 defines a “designated body”. Will the Minister clarify what other bodies he intends to prescribe for the purpose of that measure? It is right to say that protecting patients is vital, but the human rights of the health professional also need to be taken into account. At this stage, can the Minister outline the content of the secondary legislation and guidance?
I have a couple of further questions. What are the appropriate circumstances in which unproven information should be shared? If the intention is that the powers will be used only in cases where there is evidence of a significant risk to patient safety and where appropriate investigations are under way, can the Minister give examples of cases where information sharing would be an integral part of the investigation? What guidance will PCTs be given on considering all relevant factors, including assessing the degree of urgency and potential threats to patient safety, and examining the contribution that information from one organisation could make to the investigation before making the decision to share the information? Will the Minister clarify the circumstances in which it may be necessary to share information that is unproven at the time the information is shared? What onus will be on the organisation receiving the information to use the same confidentiality safeguards that it would if it had received the allegation directly from a member of the public?
There is general happiness about the overall intent of the Bill, but the use of the word “may” has given rise to some significant concerns, on which I seek the Minister's reassurance.
The amendment would prevent organisations from sharing information—even where proven—that on its own may not be enough to demonstrate a threat to patient safety. However, when such information is put together with other information a pattern of behaviour may be revealed that could put patients at risk. For example, the settlement of a clinical negligence claim does not in itself show that the worker was a threat to patient safety, but repeated claims may show that there is likely to be a threat to patients.
A common conclusion of recent inquiries, including the Shipman, Ayling and Kerr/Haslam inquiries, was that health care organisations failed, both singly and collectively, to join up information that was available to them. We are concerned that the hon. Lady’s amendment would limit their ability to do so. I will come on to the safeguards that she sought in a moment.
I absolutely understand and sympathise with the need to protect health care workers from unfounded allegations and we will therefore ensure that any regulations made under the clause are accompanied by robust guidance, which sets out the necessary safeguards regarding the way in which the shared information is stored and used in the receiving organisation. The basic principles should be that any uncorroborated information be held in strict confidence by the receiving organisation, and that health care workers be told, at the earliest possible stage, of the accusations against them and of the proposed way in which they will be investigated.
In response to the hon. Lady’s specific questions, information on unproven allegations will be shared only under strict conditions of confidentiality and on a need to know basis. There is no question of taking disciplinary action against any professional without a full investigation, in which the truth of such allegations can be rigorously tested through a fair process.
That is exactly the sort of thing we would need to make plain in the secondary legislation. Soft information should be kept subject to strict controls and confidentiality so as not to harm the reputation of health professionals. Where on the basis of the information available a health care organisation decides that there is a need to investigate further, the professional concerned must be told of the allegation and given an opportunity to give his or her side of the story.
The procedures will be set out, as I already said, in regulations. Guidance will be based on the advice of an expert group that will include the BMA, and that legislation will also be subject to full public consultation. We expect to carry that out later in the year. It is our intention that the guidance include the need to inform the subject of the investigation at the earliest possible stage.
Finally, the hon. Lady sought an example of where unproven information may be shared. One example is where a doctor is employed by two or more organisations and an investigation into a serious allegation has been initiated by one of them. In deciding whether to share that information with a second organisation, the organisation will need to consider the central issues of the nature and strength of the allegation, the degree of urgency and the vulnerability of those to be protected. I hope that on the basis of those reassurances the hon. Lady will feel able to withdraw her amendment.
I thank the Minister. There is always a problem when dealing with legislation whose detail is to come after, and when there are relatively few opportunities for parliamentarians to change the fine detail of the final product. I am happy to withdraw the amendment at this stage but I will reflect further and look closely at the Minister’s words to check that all my concerns have been allayed. I am not convinced that they have been and it is possible that we may wish to return to the point on Third Reading.
I beg to ask leave to withdraw the amendment.