LibDem discipline in the House of Lords is pretty monolithic – at least as far as the divisions on the Health and Social Care Bill are concerned.
I reported earlier in the week that in Tuesday’s five votes on amendments to the Health and Social Care Bill LibDem peers had voted en masse against every single one.
Today they were at it again.
The first vote was on a Labour proposal which would have removed the arrangements enabling NHS Foundation Trusts to earn up to 49% of their income from private patients. This was defeated by a majority of 58 with 53 LibDems voting against the amendment.
The second vote was on making HealthWatch England a genuinely independent body. This was voted down by a majority of 24 with 44 LibDems voting against the amendment.
The third vote was on Government amendments removing statutory status and governance requirements from local HealthWatch organisations. The Government pushed through their amendments with a majority of 77 with 40 LibDems supporting the Government line.
The fourth vote was on a Labour amendment which would have required clinical commissioning groups to get approval from local Health and Wellbeing Boards to their commissioning plan (i.e. to introduce some democratic accountability). This was defeated by a majority of 87 with 34 LibDems voting against the amendment.
In none of the four divisions did a single LibDem peer defy their Party whip and vote the other way.
Late this afternoon the Government finally got their way in the House of Lords and pushed through a group of fifty amendments that transform their proposals on how local HealthWatch organisations (the structures being created under the Health and Social Care Bill to represent the interests of patients in local communities) should operate. The amendments, produced without consultation and with little warning, remove the statutory status of local HealthWatch organisations, remove the schedule to the Bill that would have specified their governance and how they should be structured, and pave the way for the privatisation and fragmentation of the functions of local HealthWatch.
The amendments were approved by 168 to 91 – a Government majority of 77 (40 LibDems voted for the Government amendments with none against).
For the really, really, keen here is what I said in opposing the amendments:
“My Lords, this is a complicated group of amendments. There are, I think, 50 government amendments in this group that completely change the direction of this part of the Bill. Of course, we do not have the benefit of a Committee consideration of these changes, which is unfortunate, given the nature of the changes that are envisaged.
In fact, what we are being confronted with is an almost extraordinary volte-face by the Government about how local healthwatch organisations are going to operate and proceed. As it stood, before these amendments, the Bill provided local healthwatch with a very clear structure and very clear governance. It defined membership and it defined their role. As such, the arrangements were better than LINks, better than PPI forums and, in one or two respects, better than community health councils. It was a very clear statement. There remained the problem that local healthwatches were going to be the creatures of local government without the benefit of ring-fenced money and with the potential issues around conflicts of interest concerning social care. I am reminded that on 15 October 2007, the noble Earl, Lord Howe, clearly took the view that it was inappropriate for a local authority to be host to a LINk. Presumably, the same arguments that influenced his thinking then apply on this occasion.
We have been offered guidance on conflicts but, again, it is not clear how this will work, which is something that we could have pursued perhaps in detail in Committee. The amendment refers to having regard to the guidance on conflicts, which I suspect will not necessarily be strong enough for the sorts of conflicts of interest that potentially could arise. We also have the enormous concession, to which I referred earlier, of Amendment 226ZG, which enables HealthWatch England to write a letter if it feels that something has gone wrong.
That is where we were but now the Government, without explanation or consultation, have decided that local healthwatches will no longer be statutory bodies. We are told that that is all in the name of the need for flexibility. The noble Baroness has mentioned repeatedly the briefing which took place yesterday evening, to which, incidentally, I was not invited. Even had I been, I would not have been able to attend because the meeting clashed with the regular meeting of Labour Peers, which one would think that the Government would wish to avoid. At that meeting various papers were tabled which referred to the importance of flexibility but we are not clear as to what that flexibility will deliver.
In moving the amendment the noble Baroness talked about the Government’s proposals in the Bill as creating a series of “unaccountable quangos”. I recall previous briefings which I attended with Ministers and the Bill team when it was explained that there would be guidance about how the membership of local healthwatch was going to be derived and to demonstrate that these were going to be accountable bodies and not unaccountable quangos. Somewhere along the line, in the past few weeks, there has been this amazing change of attitude, which does not seem to follow the benefit of any real explanation or consultation with those who might take an interest in it.
That underpins the amendments spoken to by the noble Baronesses, Lady Cumberlege and Lady Jolly. The noble Baroness, Lady Cumberlege, highlighted the difficulty that would arise between members and staff. The noble Baroness, Lady Jolly, talked about the importance of lay leadership. In terms of the changes, the Government are going to make it more difficult for there to be lay leadership and the role of members versus staff will be blurred still further. Indeed, the staff will be the dominant influence.
This is not a matter on which there has been consultation. I have received a note from the National Association of LINks Members, which states:
“Ministers say that they are ‘not convinced’ that LHW needs to be a stand-alone, statutory body corporate. It is not ministers who will be relying on LHW to get them a fair shake but the old, sick, vulnerable, frightened and marginalised and these, along with the rest of the patients and the public, are the ones who need to be ‘convinced’ that we have a model that will work”.
It says that it is not convinced. It points out that local healthwatch should,
“have a standard ‘platform’ of presence everywhere in England, not merely through logos, straplines and brands”—
which the Government’s amendments will make happen—
“but through a locally elected membership, a single ‘address’ and identifiable staff that it has appointed”.
It says that only:
“Statutory, body corporate status would deliver this”.
“Government says it does not want a top-down model but it is making top-down decisions, and these fly in the face of all the evidence of the past three and a half years of LINks, all the advice of all the LINks’ members of the government’s own HealthWatch Advisory Board, of the National Association of LINks Members, all the advice of many, many LINks all over England. ‘Being heard’ has simply vanished from the national scene. The government pontificates on what it does not practise. It legislates but it does not listen”.
It suggests, although I could not possibly automatically agree, that:
“What the Government actually fears is 152 statutory LHWs, with genuine independence, with real clout and public buy-in, a separate identity, and powerful and committed membership”.
If that is the concern, where do we go from here? I am taken with the sage advice your Lordships received from the noble Earl, Lord Howe, when we debated the creation of LINks, the slightly ill-fated proposal by the previous Labour Government. The noble Earl, in his typically courteous but forceful way, said then—given these government amendments, you can simply substitute HealthWatch for LINks:
“We have come to a group of amendments most of which in their different ways relate to the same problem. I use the word ‘problem’ as the most neutral term I can readily think of for what many of us regard as a most serious and regrettable weakness in this part of the Bill; namely, the absence of even the slightest hint of a statutory identity for LINks. There is a complete lack of any descriptive reference to what a LINk might look like and practically no definition of a LINk”.
That was the noble Earl, Lord Howe, talking about the creation of LINks. Yet today he has brought forward amendments—admittedly he has delegated this to the noble Baroness, Lady Northover, who is acting as his mouthpiece on this occasion—that will do precisely what he complained that the previous Government did.
Of course he said much more than that. I will not burden the House by repeating all the remarks he made in October 2007, but if we substitute HealthWatch for LINks every time it appears, we will get the flavour. He went on to say:
“As the Bill stands there are no provisions for LINks to have any form of governance arrangements; it is left completely open as to how a LINk would be able to make decisions or authorise people to act on its behalf. This is a major issue because without some form of governance you cannot have accountability. If there are no people authorised to act on its behalf, a LINk cannot be accountable”.—[Official Report, 15/10/07; col. 567.]
He later said:
“The key issues around governance are really three: how decisions are to be made; how activities are to be undertaken; and, who is to do these things? Without those minimum requirements we would be left with a situation where someone who has joined a LINk, but who never attended any meetings or received any training or signed any code of conduct”,—[Official Report, 15/10/07; col. 568.]
could proceed in particular ways. So the lack of statutory identity was something that the noble Earl, Lord Howe, told this House was absolutely critical when we debated the creation of LINks. And he was absolutely right. I remember agreeing with him at the time and feeling that my Government had got it wrong. But this is the point. The Government have now brought forward amendments which undo all his fine words at that time and all his attempts to put this right, and that is because statutory status at the local level was what was going to give HealthWatch a cutting edge, an authority in terms of its relationships with other bodies.
The noble Earl also had a few words to say about the underlying argument that this should be delegated down. He said then, and we could say it to him now, that we were told that the Government did not want to be “prescriptive” and that it would be up to each LINk to set itself up in the way it wanted.
In June 2007, he quoted a telling Greek legend. Indeed, he may remember using this example:
“I think it was Proteus who was able to assume any shape or form that he liked. The reason why he did this was in order to avoid foretelling the future. For us debating this part of the Bill, it is almost impossible to foretell the future because neither the governance arrangements of LINks, nor their structures, nor their powers, nor even the precise scope of their activities, are set out here. In a real sense, as with Proteus, we do not know who or what we are dealing with”.
With these amendments before us today, the Government are substituting something else when we would have known what we were dealing with and where there were precise governance arrangements. But they are taking all that away and moving towards something that the noble Earl also, presciently, described in that debate, saying:
“As I understand it—the Minister may correct me—because LINks are not defined they are not classifiable as statutory bodies. We may know a LINk when we see it—although I am not completely sure about that—by virtue of the things that it does … The Bill refers to activities being ‘carried on’”.
I look at these amendments and, my goodness, Amendment 236C in the name of the noble Earl talks about,
“activities carried on for the benefits of the community in England”.
Incidentally, how a local organisation is supposed to act in the benefits of “the community in England” seems to be a very odd use of words. However, phrases such as “activities carried on” were precisely what he said then was the wrong way of going on.
The noble Earl went on to say in that June 2007 debate:
“In fact, in one way or another, there is quite a lot of carrying on in this part of the Bill. There may be a joke there somewhere but I shall refrain from trying to find it. But that nebulous form of drafting is as far as we get. It will be incumbent on us in Committee”—
we do not have the benefit of being in Committee today—to sort out this unsatisfactory regime. He continued:
“The main problem with the Bill is that because LINks”—
and you could say the same about HealthWatch now—
“have no identity or definition, they can be seen neither as bodies whose independence is guaranteed, nor as bodies which have the power to hold local health and social care commissions to account”.—[Official Report, 20/6/07; cols. 252-3.]
Those were the wise words of the noble Earl, Lord Howe, then, but he is the same noble Earl who is bringing forward amendments that create the same precisely the structure that he said was totally inappropriate then.
Let us look at what the Government are doing and I will be brief. Amendment 231B removes the statutory status. Amendment 231C removes all structure, form and governance from the Bill. Amendment 234A talks about “one set of arrangements”. It implies not just a single arrangement in any local authority area, but a set of arrangements, so it would not necessarily be one contractual arrangement: it would be a set of contractual arrangements. The word “arrangement” is in the plural.
Amendment 235C is the great catchall that tells us it is all going to be all right and that all these bodies are going to be the same in that there will be a licence to use a trademark. I am enormously reassured by that. Amendment 235D provides for subcontractors for the different functions. So what we are envisaging is that a local authority will divide up the functions of HealthWatch organisations and contract each of them to a separate organisation. Does that really make sense? Is that the strong patient voice that we were promised at local level?
In Amendments 238ZM and 238ZN there are specific references to contractors. This is essentially moving from a position where there will be a clear number of local statutory bodies delivering patient representation on behalf of their communities, with members from those communities running those organisations, because that is what the governance arrangements were before. This is essentially privatising that process, albeit by so-called social enterprises. This is privatising consumer representation.
How can contractors be representative? Yes, there is an amendment that says that these contractors will be broadly representative of the local community, but how can an enterprise itself be representative of the local community? I find this concept difficult to understand. Because we are not in Committee, we do not have the opportunity to have it explained to us fully and a chance to probe the Government.
The amendments that we talked about a few minutes ago envisaged that local healthwatch would be able to have local representation on the board of HealthWatch England. How will we have representatives from local healthwatch organisations—the arrangements that will be subcontracted for different functions to social enterprises—how will representatives be produced at the national level for HealthWatch England? Is this going to be board members of a social enterprise, charged with the effective running of that enterprise not the representation of the community? Will it be the staff? That comes back to the point about lay leadership that the noble Baroness, Lady Jolly, raised earlier.
Last night, I got an e-mail from an existing LINk member, with whom I have never previously communicated, saying:
“I’m much involved with my local LINk, which it can be argued, has already been ‘taken over’ by its Host in advance of the Privatisation of the Public’s voice when HealthWatch comes about. Lay ‘Volunteers’ have been demoted from being Members to Participants”—
there is the lay leadership of the noble Baroness, Lady Jolly—
“and our Management Committee has been redesignated as an ‘Advisory Group’”—
again, lay leadership—
“with few if any powers over anything. Expulsions have been initiated against those who don’t toe the new autocratic line—and the local authority just turns a blind eye despite appeals to the Council Leader, CEO and Portfolio holder. What hopes for a voice for the public/patient when Local Healthwatch is in place?”.
I believe that the Minister received a letter from another member of a local LINk who talks about his dedicated service. He lists at some length all the different bodies that he has sat on representing the public, then says that,
“My most precious resource—the time I have given—has, at a stroke, been set to nought”.
There is no local lay leadership in these arrangements. That is why these amendments are so sad.
We have to ask why the Government are doing this. Is it because some unit in the Cabinet Office has suddenly discovered this bit of the Health and Social Care Bill and said, “Oh, they have missed something out about the opportunity to introduce competition so let us put it in this bit of the Bill”? Or perhaps it is because Government Ministers have suddenly realised that the Bill is rather unpopular. There are some difficulties with it, the public’s perceptions of it are increasingly negative, so having proper patient representation would now be extremely dangerous.”
The Government successfully fended off an attempt to ensure that HealthWatch England (the national body that is being set up to represent the interests of patients) is a genuinely independent body in the House of Lords this afternoon.
Under the proposals in the Health and Social Care Bill HealthWatch England is constituted as a committee of the much-criticised NHS regulator, the Care Quality Commission. The amendment, which I had seconded would have made it a genuinely independent body and given it responsibility for supporting and funding local HealthWatch organisations.
In the end the amendment was narrowly defeated by 165 votes to 189 – a Government majority of 24 (44 Liberal Democrats voted against the amendment, none voted for it).
For those with time to kill, my speech was as follows:
“My Lords, I think this is the part of the Bill which I assume the Minister had hoped would give him a quiet time. Indeed, he has passed on the responsibility for answering this amendment to his noble friend Lady Northover. Originally, one had to respect the Government’s intention with regard to HealthWatch because I am sure the intention was to create effective patient representation at national and local level. That intention has been challenged in the discussions that we have subsequently had and in some of the changes that have occurred over the past few months. However, it is worth going back for a moment to first principles. What constitutes effective patient representation? The first significant element of that has to be independence. The organisation representing patients’ interests has to be independent of the providers of health services, those who commission them and those who regulate them because the act of representation can potentially challenge any or all three of those interests.
Secondly, effective representation at national level must be representative. There must be real representativeness within that structure. It must be derived from local groups and local individuals and have that authority which is derived from being a representative structure. With the best will in the world, you cannot be an organisation which can speak with proper authority on behalf of patients or, indeed, any consumers if you are simply appointed from on high by a Secretary of State. In my time, I have worked for organisations that have been structured like that and I have to say that although they can do good work, they cannot be properly representative. They cannot properly have the authority that comes from being derived from the grass roots. The third element which is critical is that the work and the comments that these bodies produce have to be derived from sound local information, which necessitates being able to pick up information from local networks around the country. That has to be safeguarded in whatever proposals are put forward.
The Government originally promised us that HealthWatch England would be the independent patients’ champion. However, as the noble Lord, Lord Patel, has just pointed out, being a subcommittee of the Care Quality Commission does not demonstrate independence. It demonstrates a subsidiary role in relation to the Care Quality Commission. I am sure that the people currently at the Care Quality Commission are motivated to try to create an arm’s-length structure. We do not know, of course, whether that desire for independence would survive the first occasion when HealthWatch England challenged the decisions made by the Care Quality Commission, or how often it would survive after repeated such challenges. However, independence is also about the perception and the appearance of being independent. How can you appear to be independent if you are a subcommittee of one of the organisations that you may have to criticise from time to time?
This amendment seeks to do three key things. It would set up HealthWatch England as an independent statutory body and write that independence into statute, set out a clear relationship with local healthwatch organisations and safeguard their funding mechanism. I recall some very wise words said to your Lordships’ House in July 2007 when we were debating the creation of the Commission for Patient and Public Involvement in Health. It was stated that,
“one signal advantage of the commission is that the money that it distributes to forum support organisations cannot be used for purposes other than those for which forums were established. Under the arrangements in the Bill, however, there is no guarantee at all that money intended to support the activities listed … will actually reach the front line. It would be possible for a local authority to say that it was delivering the activities in the Bill when, in reality, those activities were so minimal that they were hardly worth the name of patient and public involvement. What steps could be taken, in those circumstances, to ensure that such involvement in health and social care is delivered properly?”.—[Official Report, 23/7/07; col. 615.]
The person speaking said that the answer was not delivered by the Bill brought forward at that time by the Labour Government. Who was the person who delivered those words? It was, of course, the noble Earl, Lord Howe—the current Minister. He made it quite clear that the arrangements which he is now seeking to replicate were not adequate and would not, and could not, work. Yet the proposals which were going to establish the independent patients’ champion are weakened precisely because he has not accepted the lessons of his own words.
The noble Earl, Lord Howe, went on to say that he was concerned that, as:
“LINks are going to assume different forms and guises in different localities, it is axiomatic that the level of activity that they undertake is going to vary”.—[Official Report, 23/7/07; col. 615.]
He asked how the amount of money in any given area was to be assessed. Therefore, I ask the noble Baroness—who will respond on behalf of the noble Earl, who gave us that wise advice in 2007—what will be the mechanism for determining how much money is allocated to each local authority for healthwatch in its area? Will this be a global sum that will go from the Department of Health to the Department for Communities and Local Government, and then be allocated to local authorities by the mysterious process by which the block grant from the DCLG is decided for each local authority area? Or will there be a separate formula that will go with that money and decide how much money is allocated to local healthwatch around the country? If it is the latter, will that information be published? Will it be possible for residents in a local area to know how much money has been allocated so that they can see whether it is being used? I suspect that unless we have the answers to those questions we will know that the reality is that this money will disappear in the wash and not be effective. The point about the amendment is that it provides a solution to that problem because the same money would be channelled through a body that would be dedicated to the provision of local healthwatch organisations and want to ensure that the money was spent properly and appropriately.
The Government’s arguments—we have had several discussions about this with Ministers, and I am grateful to the noble Earl and the noble Baroness for providing those opportunities—seem to be broken down into three areas. First, they argue that there is a natural synergy with the work of the Care Quality Commission. However, I have already pointed out that the CQC is one of those bodies that HealthWatch England may have to criticise. There is also a synergy with the work of the NHS Commissioning Board, Monitor, Public Health England and all sorts of other parts of the new NHS. Why is there specifically a synergy with the CQC?
The Government’s second argument was that there would be cost efficiencies and that this would be the most efficient way of doing this because there would be savings due to the collocation. However, as the noble Lord, Lord Patel, pointed out, you can achieve that in many ways. You can simply say that one of the things that HealthWatch England, as an independent statutory body, could be required to do through guidance, would be to look at how its back-office operations could be provided from a variety of organisations of appropriate stature and size, where the issue of conflict would not necessarily arise. That provision could then be made by way of a clear legal agreement. However, that is not being done, and I am not quite sure why the Government are saying that there are efficiencies and cost savings that could be made only by the precise structure that they propose. In terms of providing the funding to local healthwatch, our proposal has to be a more efficient provision that will deliver the resources without leakage and without local authorities deciding that perhaps there is a greater local priority than local healthwatch.
The noble Baroness, Lady Northover, spoke vehemently about the way in which the former Commission for Public and Patient Involvement in Health had operated, and how it had a wasteful and top-heavy way of distributing resources to local patients and for public involvement. That is not the only way to distribute resources. The only reason that the former commission distributed resources in that wasteful and inefficient way is because the Department of Health at that time—I regret, led by a Labour Minister—insisted that it was done in that rather ridiculous and cumbersome way. If Ministers want distribution done efficiently and simply, perhaps that can happen. If you appoint the right people to the initial board of HealthWatch England, I am sure that they would want to ensure that that is the case. It does not have to be done in the way I described.
The third argument that I have heard Ministers make for locating this body within the CQC is that it will provide all sorts of informal support and guidance—that there will be a library, information resources and so on. However, the Government have told us how important the duty of collaboration is within the new NHS and how significant it will be. Why do you need to collocate and have HealthWatch England as a subordinate structure within the CQC when there is a duty to collaborate? Indeed, why cannot HealthWatch England collaborate with other national bodies as part of the NHS?
Within this group there are other amendments, including Amendment 224 and 225, which propose that the majority of members of HealthWatch England will not be from the CQC and will be appointed by local healthwatch. I have two concerns about those amendments. Why cannot all the members be derived from local healthwatch organisations? The bigger question comes in a later group of amendments, which is: if you have destroyed the statutory status of local healthwatch organisations, how can contractors, which will be delivering local healthwatch services at a local level, deliver representatives to a national structure? Will we thereby have representatives of different local social enterprises appointing people to sit on a national body? That is a strange representative structure.
Then there is Amendment 226ZG, which is the Government’s answer as to how they make sure that local healthwatch organisations are satisfactory. This gives HealthWatch England—this sub-committee of the Care Quality Commission—the power to write a letter. It is the power to write a letter to a local authority and say, “In our opinion, the local healthwatch organisations that you have organised in your area are insufficient”. My goodness, as a former local authority leader, I know that I would be quaking to receive a letter from a sub-committee of a national organisation that did not really regulate anything that I was particularly bothered about, telling me that I was not doing something absolutely right. There would be no enforcement powers and no means of intervention, but the power to write a letter. Brilliant. Excellent. It is just what we are looking for. It offers hardly any solution, although I appreciate the concession that the noble Baroness and the noble Earl have made in that amendment.
I conclude by saying that this is not a party-political issue. The previous Government got this wrong and, sadly, the present Government look as if they are about to get it wrong. This was an opportunity to get it right. Patients need effective representation, particularly in the context of the Bill. Even if you believe that the Bill will deliver to us a better health service—and I am obviously not one of those—patients need to be given confidence that their interests will be properly represented. At the moment, the arrangements proposed by the Government do not do that. That is why an independent HealthWatch England is so important.”
On Friday, when Parliament was not sitting, the Government published 68 amendments to the Health and Social Care Bill changing the status of local HealthWatch organisations (the local bodies that are intended to protect patient interests in the new Tory/LibDem vision of the Health Service), as I predicted a few weeks ago.
The amendments are very complex and difficult to follow – they amend amendments to Part 14 of the Local Government and Public Involvement in Health Act 2007. And they are scheduled to be debated next week during the House of Lords Report Stage consideration of the NHS Bill.
That means that these amendments – slipped out without proper warning or explanation (a normal courtesy of writing to those Peers with an interest in a particular matter doesn’t yet seem to have happened in this case) – will not receive proper Parliamentary scrutiny. They have never been considered by the House of Commons (and, if passed in the Lords, will now only be taken there as part of the truncated Consideration of Lords Amendments procedures). In the House of Lords, they have not been subjected to detailed scrutiny at Committee Stage and will essentially have to be debated on a take it or leave it basis when they are eventually reached probably some time late on Thursday. That will be the only opportunity for any discussion on what these amendments mean.
So what are these amendments about?
The biggest change is to remove Clause 181 and Schedule 15 of the Bill. These established local HealthWatch organisations as statutory bodies with a defined local membership (appointed in accordance with regulations) that could employ staff, would meet in public etc.
Instead, local authorities will be expected to make “arrangements” with a body that “a person might reasonably consider … acts for the benefit of the community in England”. And these bodies will then be able to sub-contract the patient representation work further.
The role of the national body, HealthWatch England (which the Government still want to be a sub-committee of the heavily-criticised Care Quality Commission) to advise local HealthWatch organisations is also being diluted with their power to give “advice” being changed in another amendment to a weaker role of giving “general advice”.
Presumably as a sop to people like me who had complained that there was nothing to require local authorities to provide an adequate local HealthWatch organisation (or even to spend the money allocated for local HealthWatch for that purpose), there is an amendment that gives HealthWatch England the power to give a local authority “written notice of its opinion” that the services expected of a local HealthWatch organisation are not being provided properly. This gives HealthWatch England the power to write a letter, but that is all. There is not even a requirement for a recalcitrant local authority even to respond to the letter. I am sure they will be quaking at the prospect!
The Government acknowledges that there may also be a conflict of interest between a local HealthWatch organisation and the local authority that is responsible for setting it up and funding it (for example, if a local HealthWatch criticises the quality of the social care provision provided by a local authority). They are therefore putting forward an amendment saying that local authorities “must have regard to any … guidance on managing conflicts” that the Secretary of State may issue. Again, not much of a safeguard.
The amendments also seem to envisage that a local authority may get different contractors to provide the various functions of local HealthWatch organisations, so one contractor may “gather information” and “make recommendations”, another may be responsible for “monitoring” services with the power to “enter and view” them, a third might provide advocacy services and a fourth might be responsible for “influencing commissioning”. This is hardly a recipe for an effective structure.
And there is another strange amendment which suggests the possibility of imposing a requirement that in any area “Local HealthWatch contractors (taken together) are representative of people who live in the local authority’s area”. This acknowledges that there are likely to be several sub-contractors providing patient representation services in an area, but also opens up the possibility that the sub-contractor providing one service may not be representative provided the other subcontractors compensate for the first’s unrepresentativeness.
Without these amendments, there would at least have been some clarity as to what a local HealthWatch organisation might look like – even though they would be hampered, possibly shackled and potentially starved of funds by being subservient to the local council in their area whose social care provision they would be monitoring. However, with these amendments local HealthWatch organisations are likely to be fragmented and will lose the authority they would have had by being statutory bodies. What is more by deleting the schedule that would have specified membership arrangements and governance they will now be shadowy and unaccountable structures.
The net effect of these amendments will be to make it more likely than not that the new local HealthWatch organisations will be ineffective and that there will be no proper and coherent structure of patient representation at local level.
One can only speculate as to why these amendments have been brought forward in this way at this time.
One possibility is that some obscure unit in the Cabinet Office charged with dismantling the public sector suddenly realised that there was a bit of the Health and Social Care Bill that did not facilitate privatisation and instructed the Department of Health to change it.
Another is that Department of Health Ministers have realised that the changes they are making to the NHS are so unpopular and are likely to have such a damaging effect on patients that they simply cannot risk having an effective mechanism for patients’ interests to be represented.
I don’t know which is the real reason, but it is difficult to conceive of any other rational explanation.
There is an excellent article in the New York Times that explains the behavioural psychology that is now linked to supermarket loyalty cards and on-line shopping patterns to target and personalise adverts and offers.
It describes an incident in a Target store (a major US chain) as follows:
“a man walked into a Target outside Minneapolis and demanded to see the manager. He was clutching coupons that had been sent to his daughter, and he was angry, according to an employee who participated in the conversation.
“My daughter got this in the mail!” he said. “She’s still in high school, and you’re sending her coupons for baby clothes and cribs? Are you trying to encourage her to get pregnant?”
The manager didn’t have any idea what the man was talking about. He looked at the mailer. Sure enough, it was addressed to the man’s daughter and contained advertisements for maternity clothing, nursery furniture and pictures of smiling infants. The manager apologized and then called a few days later to apologize again.
On the phone, though, the father was somewhat abashed. “I had a talk with my daughter,” he said. “It turns out there’s been some activities in my house I haven’t been completely aware of. She’s due in August. I owe you an apology.”
The amendment I signed to place a statutory duty of candour when something goes wrong on those providing health services was defeated in the House of Lords this afternoon by 36 votes with 198 in favour and 234 against.
164 Labour Peers voted in favour along with 1 LibDem and 33 cross-benchers and others. 137 Tory Peers voted against the amendment, along with 61 LibDems and 36 cross-benchers and others. LibDem Baroness Tyler of Enfield who also signed the amendment nonetheless voted against it
My speech (with interruptions) was as follows:
“Lord Harris of Haringey: My Lords, my name is down in support of the amendment. I want to make it clear at the outset that it is substantially different from the amendment put forward in Committee and has taken on board a lot of comments and points made during the helpful debate at that time.
As far as I am concerned, the origins of this go back to my meeting 18 years ago with William Powell about the death of his son, Robbie, when I was director of the Association of Community Health Councils. Mr Powell was concerned about the failure of the system to give him and his family answers as to why his son had died. Mr Powell is still campaigning for a change in law to place a requirement for some sort of duty of candour. Interestingly, that case eventually reached the European Court of Human Rights in May 2002. In its judgment, the court made it clear that at present there is,
“no duty to give the parents of a child who died as a result of their negligence a truthful account of the circumstances of the death, nor even to refrain from deliberately falsifying records”.
Most of your Lordships would find that a pretty shocking and appalling statement in this day and age, but that is where we are as far as the law is concerned and it remains a continuing consideration.
In September, as chair of the Independent Advisory Panel on Deaths in Custody, I had a listening day with a group of families whose relatives had died while detained under the Mental Health Act. Those families reported a lack of information from NHS trusts. One family reported that they,
“were unaware of any investigation, everything was released in drips”.
Another family claimed:
“They didn’t disclose anything, it was a battle to the end”.
Another said that
“the shutters came down as soon as I started asking questions”.
One parent explained that it was like being,
“in a void whilst waiting”.
These are parents or families of people who have died while in mental health care.
Even more alarming for families was the misinformation frequently provided to them. They thought that there had been a whole series of flaws in the way that the cases of the deaths of their loved ones were investigated. One said:
“The first time I had opportunity to speak to anybody was the consultant. Nobody told me about the investigation. I told the consultant that I wanted a meeting with nurses and see what happened … Consultant and matron came for the meeting with no pen and paper. I was the only one taking notes. After that the matron told me that she would try to get answers for me. I asked how she would remember 20 questions which I asked as she was not taking notes. It took three years for them to give this evidence”.
The problem is that most families feel that the investigations are not independent, and many of them feel that they are presented with lies. The problem is that the existing system does not work. It is not adequate as it presently stands.
The amendment has been significantly changed. It now relates explicitly to organisations rather than individual practitioners. The background is that there is currently no statutory requirement for organisations that provide NHS services to tell a patient, carer, or representative when something has gone wrong during their care and treatment that causes harm. The issue is left to guidance and a non-binding requirement in the NHS Constitution to have regard to the principle of openness. This has allowed cases to occur where NHS organisations have withheld such information from patients, delayed its release or, worse still, actively covered it up.
I understand that the Government have agreed that a duty of candour is required, but their preferred route is a contractual duty built into the standard contracts between commissioners and some providers of NHS services. Patient organisations and others do not believe that that is sufficient. It would not include all NHS providers—for example, GPs, dentists, pharmacists, and so on do not have such contracts—and it would not create access to the sanctions which the Care Quality Commission has at its disposal. Under the Government’s proposal, as the noble Baroness, Lady Masham, said, the duty would apply only to incidents which are already being reported through official systems, so it would be useless in preventing cover-ups.
The amendment would require the Secretary of State to create a statutory, enforceable duty of candour by amending the registration regulations of the CQC. All healthcare providers would then have to comply with them to be registered. Of the issues raised in Committee, the most important, raised by several noble Lords, including the noble Lord, Lord Winston, who I do not think is in his place at the moment, and the noble Lord, Lord Walton, was that that might overlap or conflict with the clinicians’ professional duties and the existing arrangements under the General Medical Council and other codes of conduct organised by regulatory bodies. The proposal in the amendment is for a statutory duty of candour placed on organisations, not on individual health professionals. It therefore complements, rather than duplicates or confuses, the duties in health professionals’ codes of conduct.
Indeed, Harry Cayton, the chief executive of the Council for Health Regulatory Excellence, has said:
“We support the introduction of a duty of candour in the CQC’s registration requirements, which would mean that the ethical responsibility of health professionals would be shared by organisations delivering healthcare services”.
Frankly, at the moment, doctors and nurses can be put in an impossible position where they would want to honour their ethical and professional obligations but are told by managers and lawyers within the organisation for which they work not to be fully open with patients. That would put them in the position of a whistleblower. This duty would remove that conflict for those individual professionals.
Of course, the amendment is not designed to get in the way of culture change. Several noble Lords said that we want culture change. No one disagrees. The point is that this will support the process of culture change. There is no argument for not setting out in regulations what is by any reasonable assessment as important and essential a standard of quality and safety as the others already set out in CQC regulations.
Lord Walton of Detchant: In relation to candour, the noble Lord may know that the General Medical Council published guidance just two weeks ago making it incumbent on doctors not to sign a contract or agreement that prevents them giving information which might be detrimental to the organisation that employs them. In other words, gagging orders are no longer accepted by the GMC as being part of a contract into which doctors can enter.
Lord Harris of Haringey: I am grateful to the noble Lord, Lord Walton, for that. It is an extremely important step forward and it recognises that there is an existing problem that requires the GMC to take that stance. I think that there is a distinction between gagging clauses and the sort of persuasion and pressure that may be applied to clinicians behind the scenes under such circumstances. This amendment focuses on the organisation’s responsibility and on how the managers and lawyers within an organisation should meet those obligations of candour.
I know that there has been some concern—I think that the Minister has expressed it at various points—about whether the CQC would be able to cope with regulating this duty of candour. It is worth making it clear that there is no question of asking the CQC routinely to monitor every incident with patients; it is simply about the expectation that it will be there as the backstop.
There is already a duty in the CQC’s statutory registration regulations to report to the CQC incidents that cause harm, but it is a duty which requires the organisation to report the incident to the CQC and not to the patient. It is rather anomalous that there is an obligation requiring an organisation to report something to the CQC but not to the patient at the same time. Quite clearly the CQC should have this information and be able to respond to and deal with it.
The point is that the CQC has always said that it could regulate this requirement if the Department of Health so wished. I think that there has been some recent correspondence with the Department of Health which has recognised that the CQC is currently under considerable resource constraints. However, I have seen copies of e-mails released under the Freedom of Information Act—
Baroness Wall of New Barnet: I thank the noble Lord for giving way for the second time. I certainly support the amendment but I worry about the examples that he has used. The cases that he has put forward and the experience of the patients and families concerned are horrendous and outrageous, but what I found troubling and certainly did not recognise at all was when he went on to say that the coercion, rather than gagging, that might take place inside, for instance, a provider trust such as my own—Barnet and Chase Farm—would discourage people from being anything but frank. I have now been the chair of Barnet and Chase Farm for five years. The chair is at the end of the process and during the process has the opportunity to talk to people. I hope that my trust is not unique but in five years I have never known that kind of culture at Barnet and Chase Farm. The noble Lord is looking askance but I ask him to trust me. From my experience—and I hope that it is not a lone experience—I can assure him that that culture does not exist inside my trust; nor, I am sure, does it exist in others. In fact, the opportunity to come clean is used by my trust in the whole way in which patients are dealt with and, indeed, when patients tragically die. If what the noble Lord is saying does happen, then the amendment is absolutely crucial. However, I do not recognise it.
Lord Harris of Haringey: I am grateful to my noble friend for that intervention. She has highlighted the fact that there are different practices around the NHS. Quite a number of trusts take a very positive approach, as she has described, whereby the natural assumption is that you are open because that is what the Department of Health would expect. However, the number of instances where that is not always the case and not always the culture that is adopted, is striking. That was, for example, reflected in the group of families that I met whose family member had died while being detained under the Mental Health Act; it was reflected in the case of Robbie Powell; and it was reflected in a large number of the other cases that the patient organisations which the noble Baroness, Lady Masham, listed, have come across.
So there are two cultures within the NHS and we need to ensure that the culture within the NHS is the best. That is why a statutory duty of candour would support the process, rather than hinder it. It would not cut across the position of the individual professions—indeed it would support it—and, as the noble Lord, Lord Walton, has highlighted, there has been much recognition by the General Medical Council that this is an issue—
Baroness Whitaker: I apologise for interrupting my noble friend. Perhaps I might add something to the other side of the balance. I am aware of two very recent cases—one of a death and one of a hospital-acquired infection—where information was covered up. It is not simply the case that there is a uniform culture of candour.
Lord Harris of Haringey: I am grateful to my noble friend for that reinforcement. I regret that, within some NHS trusts and some provider organisations, there is not the same approach. There is a concern that it is better to keep a patient, or the family of a patient, in ignorance and hope that the whole matter goes away. The purpose of the amendment is not to penalise the individual clinician—we all recognise that accidents happen—but to foster the culture of openness that the department wants to see; it wants to ensure that that duty is reflected, not only as far as the individual professionals are concerned, but also as far as the organisations are concerned. Otherwise, too often the lawyers and managers will say, “In the interests of the trust, let us try to keep this quiet”. I am glad to hear that it does not happen in every instance, as I am sure it does not, but the purpose of the amendment is to provide a statutory framework that will make it quite clear to all those who might otherwise be tempted to cover up these incidents that they must say, “This is important and we have to be open”.”
The amendment I have signed to the Health and Social Care Bill that would place a “duty of candour” on NHS trusts has been highlighted in a letter from patients’ organisations to the Daily Telegraph today.
The amendment I have signed would require NHS bodies to tell patients when they make errors and cause harm. According to the Telegraph report, the letter:
“the Government is merely “paying lip service” to the principle in its health bill, and that clauses meant to ensure trusts are more open will be “next to useless in preventing cover ups.”
Since April 2010 trusts have been legally obliged to provide anonymised reports of incidents causing significant harm to the National Reporting and Learning System.
However, they are not required to tell patients or the close family members, and the bill does nothing to address that.
Peter Walsh, of the charity Action against Medical Accidents, one of the 10 groups behind the letter, said: “The current situation means health organisations can effectively cover an incident up from a patient or family member, so long as it sends off an anonymised report.”
The letter also notes the duty of care, as envisaged in the Health and Social Care Bill, would not apply to GPs or dentists and “would only relate to incidents which had already been notified to official bodies”.”
The amendment which is currently signed by myself, the independent cross-bench peer, Baroness Masham of Ilton, and the LibDem, Baroness Tyler of Enfield, would make it necessary for healthcare organisations registered with the Care Quality Commission “to take all reasonable steps to ensure that a patient or, in the event of death or incapacity, their next of kin, are fully informed” of such safety incidents.
I recently became a Dignity Champion and shortly afterwards was contacted by actress, film-maker and campaigner, Amanda Waring, who drew my attention to the fact that today, 1st February, is Dignity Action Day.
If anyone doubts the importance of the Dignity campaign, they should watch this very powerful clip from the film, “What Do You See“, that Amanda Waring made in memory of her late mother, Dame Dorothy Tutin, and the distressing standards of care that she faced at the end of her life.
I urge you to watch it.
At the end of last week, I reported that Andrew Lansley was planning to change the status of the new local HealthWatch organisation so that patient representation could be put out to competitive tender.
The Department of Health has form on this: the organisations acting as “hosts” for Local Involvement Networks were selected following a competitive tendering process in 2007 and bids were sought from throughout the European Union and here, so I am told, is the text of the advert in the Uzbechistan Times:
|Gloucester: health and social work services
John Naughton in today’s Observer has an interesting article on the proposed new EU data protection directive and the way in which Facebook is getting “its retaliation in first”. The proposed “right to be forgotten” is likely to conflict with Facebook’s newish “timeline” facility. And the retaliation? This is how John Naughton puts it:
“The day before the commission made its announcement, Facebook’s chief operating officer, Sheryl Sandberg, gave a speech to a technology conference in Munich. Her menacing subtext was neatly summarised by the New York Times thus: “Concerned about privacy? Maybe you should be concerned about the economy instead.” Translation: mess with us, Eurotrash, and we’ll screw you.
Sandberg’s speech was revealing because it exposes the line of argument that Google, Facebook, et al will use to undermine public authorities that seek to control their freedom to exploit their users’ identities and abuse their privacy. The argument is that internet companies create lots of jobs and are good for the economy and European governments shouldn’t stand in their way.”
Apparently, to back this argument Facebook referred to a report that they had commissioned from Deloitte which concluded that Facebook had indirectly helped create 232,000 jobs in Europe in 2011 and enabled more than $32bn in revenues.
John Naughton is sceptical pointing out that Facebook itself only has about 3,000 employees world-wide and he continues:
“Inspection of the “report” confirms one’s suspicion that you couldn’t make this stuff up. Or, rather, only an international consulting firm could make it up. Interestingly, Deloitte itself appears to be ambivalent about it. “The information contained in the report”, it cautions, “has been obtained from Facebook Inc and third party sources that are clearly referenced in the appropriate sections of the report. Deloitte has neither sought to corroborate this information nor to review its overall reasonableness. Further, any results from the analysis contained in the report are reliant on the information available at the time of writing the report and should not be relied upon in subsequent periods.” (Emphasis added.)
Accordingly, continues Deloitte, “no representation or warranty, express or implied, is given and no responsibility or liability is or will be accepted by or on behalf of Deloitte or by any of its partners, employees or agents or any other person as to the accuracy, completeness or correctness of the information contained in this document or any oral information made available and any such liability is expressly disclaimed”.”
Although Deloitte is normally regarded as a respectable organisation, these caveats plus the rather tendentious conclusions should raise alarm bells.
Or as John Naughton puts it:
“The sole purpose of “reports” such as this is to impress or intimidate politicians and regulators, many of whom still seem unaware of the extent to which international consulting firms are used by corporations to lend an aura of empirical respectability to hogwash.”
Yet reports like this with sensational conclusions seem a particular feature of commentary on the internet.
And especially so in respect of information security, last year the UK Government published figures saying UK cyber crime was costing £27 billion per year and not to be out-done Symantec suggested that the global figure was $388 billion. The reality is that all these figures are unverifiable – and whilst I am quite clear that cyber-crime is a very serious problem for the world economy these estimates are, to use John Naughton’s word, “hogwash”.
Spurious precision – whether it is Symantec’s $388 billion or Facebook’s 232,000 jobs in Europe – should always be treated with caution.