Earlier this evening I seconded an amendment to the Health and Social Care Bill which would have placed “a duty of candour” on those providing health services requiring them to disclose “full information to patients, their carers or representative about any incident or omission in or affecting their care which may have caused harm, or may in the future cause harm.”

My speech was as follows:

“Lord Harris of Haringey: My Lords, when I was director of the Association of Community Health Councils, the message from community health councils around the country was that people who complained were seeking not compensation from, or retribution against, those who had perhaps caused the reason for their complaint—for example, the death of a loved one—but information. They wanted to know what had happened, and they wanted some reassurance that what happened to them or their relatives would not happen again.

Always, the most tragic cases were those in which people had not known what had happened and discovered the actual circumstances only much later, perhaps when their relative’s case came to an inquest or, in some cases, even long after that. I would like to hope that, in the 10 years or so since I was director of the Association of Community Health Councils, this problem would have become less, but it remains a serious blemish on the health service that, too often, such mishaps are covered up.

In a case reported only three weeks ago—the most recent case that I have come across, but I am sure there are many others—a mother discovered long afterwards that the death of her seven year-old daughter, which she had blamed on herself for not being able to perform the necessary first aid, was actually the consequence of a failure by a paramedic called to the scene. She discovered that only ages afterwards when she became aware of the transcript of the inquiry which led to the paramedic being dismissed. That case, reported in the Doncaster Free Press only three weeks ago, is an indication of the sorts of incidents that one is talking about.

I met the family of someone who had died while detained in a secure mental health facility. They discovered the circumstances in which their loved one had died only when the matter was reported at an inquest. In such incidents, the health service officials knew what had happened and had conducted their own inquiries but did not think it necessary or appropriate to tell the families concerned. That is why it is so important to have this amendment, which would place a statutory duty of candour on the health service, to make it something that runs right the way through the system.

Of course, accidents can never be eradicated. Healthcare is of its very nature a risky business and health professionals are only human, so these things will happen. However, what is unforgiveable is that the fact that something has gone wrong is not told to those concerned. The noble Baroness, Lady Masham, quoted Sir Liam Donaldson, but I thought that she was also going to quote the maxim that he gave:

“To err is human, to cover up is unforgiveable”.

That is precisely the concern that motivates this amendment.

In the White Paper Equity and excellence: Liberating the NHS, the Government said that they will require hospitals to be “open and honest” when things go wrong. That stems directly, I think, from the Liberal Democrats’ manifesto commitment, but, unfortunately, their manifesto referred only to hospitals rather than to the wider health service. I think that the Liberal Democrats intended that such a duty should be statutory, but my understanding is that the Department of Health is looking at this as something that could be written into contracts. As the noble Baroness, Lady Masham, has pointed out, having a lesser status than a requirement to inform a central agency that something has gone wrong would mean a lesser status in terms of informing the family. It is really important that we look at this issue and take it seriously, so I hope that the noble Earl will accept the amendment.

In 2005, a National Audit Office report revealed that only 24 per cent of NHS trusts routinely informed patients of a patient safety incident—that implies that more than three-quarters of NHS trusts do not do so routinely—and 6 per cent admitted that they never informed patients of a patient safety incident. Quite clearly, there is a “culture of denial”. Noble Lords may think that that is rather an alarmist statement, but I am simply quoting from a Department of Health document from 2006.

Lord Mawhinney: My Lords, I am extremely grateful to the noble Lord for giving way. I do not want him to interpret my question as opposition to the general point that he is making, but before he finishes will he say a word about the role of lawyers of health service bodies in these circumstances? I am not a lawyer, as I have told the House before, but in both cases that he has cited I could see legal advisers saying, “Say nothing”. If we are to take this amendment seriously, we need to have some idea of what part the law might play if the Bill were to be so amended. As the noble Lord has experience, I would be grateful if he would reflect on that.

Lord Harris of Haringey: My Lords, the noble Lord, with all his experience—albeit, like me, as a non-lawyer—is speaking exactly the truth. In many of those cases, the legal advice would be, “Say nothing”. There therefore needs to be a statutory duty, because then the responsibility of the lawyers concerned would be to advise, “There is no option but to tell the patients or their families”.

An interesting point is that insurers in the United States often require open disclosure policies and practice by health providers to qualify for insurance. The international evidence is that, as well as being the right thing to do morally and ethically, being open and honest when things go wrong can actually reduce litigation and complaints.

My concern is that the Government will say that they are doing enough by saying that the duty of candour can be achieved through a contractual process. However, as the noble Baroness, Lady Masham, has pointed out, this would apply only to hospitals with an NHS contract; it would not apply to GPs, dentists, pharmacists or private healthcare providers. I do not see why the duty of candour to patients and their families should be regarded as of lesser importance and impact than those things where there is direct regulation. I hope that the Minister will say that the Department of Health will take this away and that he will come back to the House with proposals to give a statutory duty of candour to protect the interests of patients.”

After a debate of over 90 minutes, the Minister was not prepared to concede a statutory duty of candour although the Government is consulting on how they might make a “contractual” duty of candour work.

I am sure there will be more debate on this at the Report Stage of the Bill.

The Home Secretary’s statement on the UK Border Agency was repeated in the House of Lords by Lord Henley this afternoon.

My exchange with him was as follows:

“Lord Harris of Haringey: My Lords, is it not the case that Home Office Ministers frequently visit our border posts? In the circumstances, is it not surprising that they did not visit sites where these pilots were taking place—or if they did, that they did not notice or hear from the staff concerned how the pilots had been extended? Can the Minister also tell us what arrangements Ministers made to monitor the pilots and the way in which they were working?

Lord Henley: My Lords, speaking for myself, I have to say that I have not visited any of the pilots, but then I have not been in the Home Office for that long. No doubt I will make inquiries of my honourable and right honourable friends and let the noble Lord know what visits have been made. However, I believe that Ministers have visited ports and airports on quite a regular basis to see how these things operate. I certainly was intending to do that at some point in the near future, but when I will be able to manage that is another matter. Of course Ministers always want to evaluate any pilot schemes they put into place, whether by visits or by other means.”

So, it IS likely that Ministers will have visited the pilot sites and YES they will have been monitoring the pilots.

The announcement that Brodie Clark and other senior officials at the Border Agency have been suspended is dramatic, but in the past anything like this would have led to Ministerial resignations.

It certainly happened when Beverley Hughes unwittingly misled people over failures in the immigration service and issues about the (non-)deportation of foreign prisoners led to Charles Clarke leaving the Government in 2006.

So my guess is that Damian Green is spending a nervous weekend waiting for Number Ten’s call.

I’ve already asked what exactly was William Hague’s grand international conference on cyberspace for, but it is clear that my scepticism is shared by the journalists who were sent to cover it and came away disappointed or as the Daily Telegraph put it:

“So what did we learn over the course of the two-day meeting? Well, in short, almost nothing. ….

As the show limped to its finale on Wednesday, many of Mr Hague’s conclusions could have been written at any point in the last six months.

“All delegates agreed that the immediate next steps must be to take practical measures to develop shared understanding and agree common approaches and confidence-building measures,” the Foreign Secretary declared. Well, quite.”

Eight days ago, the House of Lords adjourned in mid-debate on an amendment to the Health and Social Care Bill which would have restored the role of the Secretary of State for Health to “provide or secure the provision” of health services (which the Government’s Bill would have taken away).

Adjourning in mid-debate is a pretty rare (if not unique) procedure, but it has allowed for all sorts of last minute discussions to take place behind the scenes before the debate resumed this afternoon.

The original amendment was moved by Baroness Williams of Crosby (Shirley Williams as was) and was signed by Lord Patel (former President of the Royal College of Obstetricians), Baroness Glenys Thornton (Labour spokesperson on health in the Lords) and Baroness Margaret Jay (former Leader of the House).  Also debated at the same time was an amendment from Lord Mackay of Clashfern which talked more vaguely about the Secretary of State having “ultimate responsibility to Parliament for the provision of the health service”. 

In last week’s debate, I commented:

“I rise to speak to the amendment in the name of the noble Baroness, Lady Williams of Crosby, because this is an issue that requires greater clarity, and the debate and discussion that has already taken place in Committee this evening demonstrates why that is so. As my noble friend Lord Warner has reminded us, Professor Malcolm Grant, the newly appointed chair of the national NHS Commissioning Board, has made clear what appears to be the Government’s intention with regard to the role of the Secretary of State. I assume that he did so under advice, because you do not take on a role like the chair of the NHS Commissioning Board without extensive discussions with Ministers and civil servants. He must have been briefed on the matter and quite clearly the intention is to separate out the day-to-day responsibility and answerability of the Secretary of State. There has to be some clarity on this point. …

 I have some reservations about the wording used by the noble and learned Lord, Lord Mackay, in that he talks about ultimate responsibility. We may have an inkling about what ultimate responsibility means, but I wonder where else in legislation a phrase such as this is used. I defer of course to the noble and learned Lord’s far superior knowledge of the law. However, in my limited experience in this House, I have never before come across the words “holds ultimate responsibility to Parliament”. It seems a very strange usage and I think that there needs to be greater clarity and understanding about what it means. That is why it might be better to revert to the wording chosen by the noble Baroness, Lady Williams. It is tried and tested and at least we understand it.  …

The final test that your Lordships need to consider is: what do the public expect? The public’s expectation is that government is responsible for what happens in our health service; and unless there are locally elected officials who are responsible for what happens at a local level, they will expect their elected Government to be responsible, and that means the Secretary of State.”

The Government had indicated that they were prepared to accept the Mackay amendment – indeed eight days ago they announced that the amendment had been agreed, even though the debate had not been finished.  And Baroness Williams had also hinted in her speech that she might accept the “compromise” offered by Lord Mackay.

Labour Peers, however, were standing firm and had indicated that they would divide the House on the Williams amendment even if she tried to withdraw it in favour of the Mackay version.

The Government was clearly running scared and at the last minute – just as the debate resumed this afternoon – indicated that if both amendments were withdrawn they would consult all sections of the House to try and find a form of words that would be acceptable to everybody.

There followed forty-five minutes of debate when all sides of the House indulged in an orgy of mutual admiration on reaching a sensible way forward.

This orgy, however, began to go rather flat (if that is not an inappropriate metaphor) when the Minister, Earl Howe,  having promised further discussions then began to explain in some detail why the Government disapproved of the Williams amendment, saying:

“In future, all NHS services will be provided by NHS trusts or foundation trusts, both of which have their own self-standing powers to provide services and do not rely on the Secretary of State’s duty to provide under Section 1(2), or by independent providers. The Secretary of State will have no powers to provide NHS services. That is the reality.  …

There is another reason why it would be wrong to reinstate the duty on the Secretary of State to provide. Under the legal framework of the Bill, the Secretary of State no longer possesses powers to direct others to provide services. Therefore, unless we were to re-impose a system of regulations or directions by which the Secretary of State could delegate his duty to provide and control its exercise, which would risk replicating the micromanagement of the status quo, it is hard to see how this legal obligation to provide services could be fulfilled. For obvious reasons, it would be undesirable to create a situation in which the Secretary of State provided services himself. Also, in practice he would lack the capacity to do so, for example in terms of staff and facilities.”

At which point, the House began to become rather restive – the Minister seemed to be saying that there could only be more discussions provided the eventual wording still restricted the role of the Secretary fo State and the right of Parliament to scrutinise what was happening in the NHS.

So, Baroness Patricia Scotland interrupted:

“My Lords, I hesitate to intervene on the noble Earl, who knows I hold him in the highest possible esteem, but I think he is now treading on some contentious legal issues. Bearing in mind the wonderful consensus that we have now reached, I would just ask him to consider whether, at this stage, some of those issues are really helpful because the noble Earl will know that the Secretary of State does, by his servants, agents or otherwise, provide services and, indeed, there have been times when there has been a pandemic when the Secretary of State has had to make such provision. These are contentious issues which I am sure could intrigue us for many hours, but since we have happily come to the conclusion that we have had a surfeit of such happiness and wish to go forward, I gently say to the noble Earl that this might be a moment when we could swiftly do that.”

Then Baroness Glenys Thornton had a go:

“I respectfully say to the Minister that we could start the whole debate all over again if he continues telling us what the Government do or do not believe on this because that is presupposing, and possibly pre-empting, the discussions that we are about to have. The noble Lord may find it useful, but we have had a lot of this discussion. We have now, I thought, agreed to move into discussions outside the Chamber.”

The Minister kept reiterating that he thought it would be helpful to put on the record the Government’s position.

As he seemed to be preempting future discussions, I tried to get some clarity which elicited the following exchange:

“Lord Harris of Haringey: I appreciate that the noble Earl is moving to a position of not addressing those questions, but it is important that he tells the Committee whether the Government have a fixed mind on these matters or whether they are going to approach with an open mind the discussions that we, in an outbreak of consensus, have agreed should happen and try to build on that consensus. If the views are closed, it raises some very difficult issues for the Committee.

Earl Howe: No, my Lords, there are no closed views. That is the reason why I suggested earlier that it was time to reflect and engage in discussions in the spirit of co-operation. I would not have said that if I had had a closed mind to them. There would not have been any point in the discussions. I simply wished to do noble Lords the courtesy of answering their questions and addressing the points that they had made. If noble Lords would rather that I did not do that, then we can make life easier for ourselves. I will certainly write to noble Lords if they would like to inform me afterwards that they wish to receive a letter. If they do not, I will not write. It is entirely up to them. I do not wish to make work for myself unnecessarily.

I have said that I believe the balance of advantage for this Committee lies in our agreeing collectively not to amend the Bill at this stage and I am pleased that there seems to be consensus around that view. I believe instead that it would be profitable for me to engage with noble Lords in all parts of the House, both personally and with the help of my officials, between now and Report to try to reach consensus on these important matters. I would just say to my noble friend Lord Marks that that includes the issues that he has helpfully raised this afternoon. I believe that he is right to associate Clause 4 in particular with the matters that we have been considering. Those discussions can be carried out in an informal way with interested Peers or in individual meetings in the House or my department. There is a place for either type of discussion. My concern is only that it is an inclusive process involving Peers from all sides of the House, and that will include listening to the views of the Constitution Committee should it choose to continue its valuable role.

With that, I hope that no noble Lord will feel cheated by the brevity of my contribution and I shall sit down.”

So we’ve been promised discussions and a Government with an open mind.

We’ll just have to wait and see what transpires.

In August, David Cameron wanted to block Twitter, Facebook and Blackberry Messenger.

Today, William Hague said:

“Some governments block online services and content, imposing restrictive regulation, or incorporate surveillance tools into their internet infrastructure so that they can identify activists and critics. Such actions either directly restrict freedom of expression or aim to deter political debate.”

And just in case the Prime Minister had missed the point went on:

““Human rights are universal, and apply online as much as they do offline… Everyone has the right to free and uncensored access to the internet.  … We saw in Tunisia, Egypt and Libya that cutting off the internet, blocking Facebook, jamming Al Jazeera, intimidating journalists and imprisoning bloggers does not create stability or make grievances go away.”

Oh dear …..

Twice in the last forty-eight hours I have been stopped by tourists asking me to explain the significance of the Remembrance Poppy that I was wearing.

Is this a record?

In July the Foreign Secretary announced that the UK would be hosting an international conference on cyberspace.  The purpose was to bring together governments, international organisations, NGOs and businesses from around the world to “address the challenges presented by the networked world including cyber crime that threatens individuals, companies, and governments.”  William Hague said that it was “vital that cyberspace remains a safe and trusted environment in which to operate. This can only be done effectively through international cooperation, engaging both the public and private sectors. Together I hope that we can begin to build the broadest possible international consensus.”

In case you missed it this major attempt to build international consensus is taking place tomorrow and Wednesday – indeed the process of international bonding began over drinks and nibbles at the Science Museum earlier this evening.

However, looking at the programme, it is not clear what the programme offers that is going to be different from numerous similar gatherings over the last few years.  Nor is it apparent where the “broadest possible international consensus” is going to be hammered out.

But we are assured that it is going to look good …..

But this picture really does deserve a caption competition:

Printable suggestions only please.

The protesters encamped outside St Paul’s Cathedral are issuing a statement of demands later today.

And it is clear from the draft that is being circulated that the stand-off with the police is getting personal.

The draft states that the protesters want to see “the decommissioning of the City of London police with officers being brought under the jurisdiction of the Metropolitan police force.”  A demand with which I personally have some sympathy.

However, it is hardly the sort of proposal likely to endear them to the police who may be charged with evicting them.

And why do they think they would fare so much better if the HULK was in charge?

What would the people in your office do if a couple of people looking the part turned up at your office door saying that they were there to do a fire inspection?  Or said they were more or less any other branch of officialdom flashing ID and saying they needed to do an inspection?

Here is a salutory warning:

“Let’s say I am posing as a fire inspector. The first thing I will have besides my badge and uniform is a walkie-talkie, like all firemen. Outside, we’ll have our car guy. The guy that sits in the car, and basically his job in the beginning is to send chatter through to our walkie-talkies. We will have a recording of all that chatter you’ll hear on walkie-talkies. He sits in the car and plays it and sends it through to our walkie-talkies.

We walk into the facility and make sure that all the chatter is coming loudly into to the walkie-talkies as soon as we walk in their door so that we are immediately the center of attention. When I walk in, I want everyone to know that I mean business. My walkie-talkie is loud and everyone looks over as I apologize and turn it down.

I show the person at the front desk my badge. They’ll say “Hi, how’s it going?” I’ll say “Good, I’m here to do a fire inspection.” They say “Great” and assign someone to us, like a teller. It’s generally someone who’s nice. I’ll start talking with them, flirting with them, or whatever it takes. We’ll start walking around.

While I’m talking with the person who has been assigned to us, my partner knows his job is to immediately wander away from us. So, my partner will immediately walk off. In most cases our escort will say “Can you come back here? I need to keep you guys together.” We say “Sure, sorry.” But really that means nothing to us. All it means is that we keep doing it until she gives up. My partner will wander off two or three times more times and get warned until she finally stops and gives up. She just thinks he’s a fireman and thinks “Let’s just let him do what he needs to do.”

At that point, my partner’s job is to start stealing everything he can steal and start putting it in his bag. And he also has to get under the desks of any employee he can find and start installing these little keyboard loggers. I stay with the person who is escorting me and my whole job now is keeping them entertained. I keep walking around rooms, giving them advice on keeping their facility fire safe, even though I really have no idea what I’m talking about. I make stuff up and probably give the worst advice ever. I’ll pull out cords and say “This looks a little bit dangerous.” I’ll comment on space heaters. I’m completely winging it.”

You can see how it might happen.  Read on here …..