|Previous Section||Back to Table of Contents||Lords Hansard Home Page|
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
7 Nov 2011 : Column 48
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.
Baroness Hussein-Ece: I, too, wish that there was not a need for this duty and that it was unnecessary. However, as we have already heard from the noble Baroness, Lady Masham, and the noble Lord, Lord Harris of Haringey, there is a compelling case that now, more than ever, we need a duty of candour.
As has been said already, we know that accidents will never be eradicated, and nor will human error. We know that healthcare has risks-most people accept that-and that health professionals are only human. However, when things go wrong and they are caught up in things that can cause harm to patients, they need to be supported and helped to deal with a very difficult situation.
There has to be absolute clarity that anything less than complete openness and honesty when things go wrong is unacceptable in modern British healthcare.
7 Nov 2011 : Column 49
In my previous life, I was a chief officer in a community health council. Unfortunately, I came across many cases in which a complaint was brought to me and, when we started to look into it, it became apparent that all was not what it seemed. It would often take months, if not years, to establish what had happened. For a family who has lost somebody or when something has gone badly wrong, that compounds the distress that is caused. It makes things worse. As the noble Lord, Lord Harris of Haringey, said, most people want to know. They just want information; they want to know the truth of what happened to their loved one. The last thing that they want is to find out, sometimes months or years later, that there has been a cover-up or they were given the wrong information. Sometimes, deliberately, the shutters simply come down because a trust fears litigation, as we have heard. Because of that fear, parents, patients and families are often left floundering in the dark and running to lawyers.
None of us can imagine losing a loved one as the result of an avoidable error and then finding out how the information had been kept from one. As has been said, there is no statutory requirement. It would come as a surprise and a shock to most of the general public that there is simply no requirement to be told when something goes wrong with any of our loved ones. The onus would be on them to find out and get to the bottom of it. Most patient groups that are campaigning for this are coming at it from real experience of having to take up some of the most tragic cases that we have heard about in recent years. The phrase "having regard to" the principle of openness is in the NHS constitution, but it is really not sufficient. It is not adequate to deal with the sort of cases that we have heard about.
Successive Governments have usually agreed that a duty of candour is a good thing and may be required, but so far there has been a failure to establish what that duty should entail. It is different from the contractual duty built into standard contracts between commissioners and some providers of NHS services. I believe that this is wrong; surely, honesty is the only policy in this instance. This should be a commitment to the protection of patients in healthcare and a legal duty of candour, which places a duty on all healthcare professionals to be open and frank with patients and their families. I was disappointed to read just last week that the GPC said that GPs would not back an openness clause in the GP contract, for example. I found that very disappointing.
There are many tragic examples of where things went wrong and guidelines were not followed-and also, as I have said, where trusts actively covered up. I cite one instance, as citing cases is very important so that we know what we are talking about and how people have suffered. Mayra Cabrera, who was 30, died of a heart attack one hour after giving birth to Zachary, a healthy 8lb baby, in May 2004 in the Great Western Hospital in Swindon, where she worked as a theatre nurse. A drip-bag containing a powerful epidural painkiller had been mistakenly connected into a line into her right hand instead of a saline drip. Although
7 Nov 2011 : Column 50
We have heard many arguments over the years that creating a statutory duty might make people more likely to cover up. It is simply not a credible argument to suggest that placing a statutory duty on an organisation to do everything reasonably practical to ensure that patients are dealt with openly and honestly will drive people to cover up. Where is the evidence for that? The proposal also includes requirements for organisations to treat their staff fairly and support them. However, everyone needs to understand that it is simply unacceptable to allow dishonesty over medical accidents. Sending the message that cover-ups may be tolerated, as the current arrangements could imply, can in no way support an open and fair culture. We have also heard the argument that the professional duty of all health professionals to be honest with patients means that a legal duty is unnecessary. Again, that does not cover other health professionals. It is contained in codes of conduct that apply only to certain health professionals, whereas it should apply equally to health managers and trust boards.
Many in your Lordships' House will be aware of the case of Robbie Powell, whose family have lent his name to the duty of candour. The GMC in that terrible case maintains to this day that the strong allegations of an attempted cover-up and forgery of medical records were not even important enough for it to waive its five-year rule and investigate. To change culture and behaviour, we need something stronger than just guidelines. It would send out a powerful and clear message about what is acceptable and not acceptable.
The simple principle at stake is the right of patients and their families and carers to know what has gone wrong with their care and treatment. It cannot be right that distressed, bereaved families have to resort to legal remedies for years and find out at the end of it that what they thought had happened had not happened. I have been told by patients' families that I dealt with that it is like having a bereavement all over again. In the spirit of honesty, openness and transparency that we talk about a lot in the Bill, this proposal would ensure transparency-and, importantly, that patients and the public have complete confidence in the NHS.
Baroness Oppenheim-Barnes: My Lords, I intervene at this point because I have all too real personal experience that may be helpful to the movers of the
7 Nov 2011 : Column 51
We were not without means or influence, but no single lawyer would take the case. They said it was not in their interests because their main clients were usually health service providers or medical providers and therefore our case was not going to be taken. The noble Lord, Lord Harris of Haringey, made the point that these people may or may not want to follow legal processes. I make the point that if that were one of the objectives of the amendment-which I hope it is not-they would have no chance whatever.
Lord Campbell-Savours: My Lords, I intervene briefly to do precisely what the noble Baroness has just done; namely, to draw attention to an individual case that might influence the judgment of the Committee. In a former incarnation as a Member of Parliament, I received in my post an anonymous letter from a person in the north of England, which made major allegations about a hospital in the north of England where a child had been badly brain-damaged as a result of negligence in that hospital. The letter was unsigned, as I say, and the child's name was not included. I had the task of asking around in the community to find out whether they know anyone who the child might be or whether they knew anybody in the hospital who knew about the incident that had taken place. I suspected that the letter had come from a member of staff.
After some time, I managed to identify a family. I knocked on the door and a lady answered. She said, "Yes, it was our child and the health service has basically converted our garage and put a bed in it"-for this boy who was very badly brain-damaged and remains so to this day. The family had been to lawyers and been advised that that was the best deal they could get. The reason why that happened was because there was no duty of candour and because the health service covered up what had happened. I told the family that they should go to Manchester and pick a very smart lawyer whom I knew and ask him to handle their case. It took six years, at the end of which there was a multimillion pound settlement covering a lifetime's provision of care for this child.
There are many cases of negligence in the National Health Service. I have probably spent more time in hospital in my lifetime than a large number of Members of this House put together and I have seen it myself. You hear stories in hospitals all the time when you are sitting in a bed, although some of them are not so much about negligence as stupidity. I wonder whether we are really being sufficiently transparent in the way we ensure that the information is made available to patients and their relatives. I hope that the amendment goes through.
Lord Winston: My Lords, I congratulate the movers of the amendment on the sincerity with which they and the people who supported it spoke. I think that I am going to make myself deeply unpopular both inside and outside this House by saying that I am implacably opposed to the amendment. It is a profound mistake and its wording is quite inadequate and actually very dangerous for patients.
I say this because I have spent some 25 or 30 years of my practice in a secondary referral centre, where I have seen patients from all over the United Kingdom and outside it being referred because they had surgery and other treatments that were botched, mistaken or not properly done and that caused problems. From my serious experience of occasions when I was much younger, telling patients that the thing had not been properly done was often a profound error. It caused immense distress and continued to cause problems afterwards when there was no legal redress possible in any case, as there often is not. By presenting patients to a court, you often add to the distress that might be caused to them and the tensions that they have to go through. The problem with this amendment, good though its intentions are, is that it will increase that risk in the health service.
I do not wish to be anecdotal because I do not think it is appropriate. I could tell numerous anecdotes, rather than just one or two, from a surgeon's perspective to show why I am highly suspicious of this amendment. I will say one thing about why I feel so strongly about this. When you as a doctor give a second opinion on somebody who you believe has been badly treated, there is invariably a degree of subjectivity in your assessment because you are not in the situation that the previous person was in. The amendment refers to,
This is highly dangerous. I believe that it would cause massive problems to a large number of patients and I hope that the noble Lords who tabled it will think seriously before pressing it this evening.
Lord Mawhinney: My Lords, I join the noble Lord, Lord Campbell-Savours, as a former Member of Parliament. I am guessing that anyone who was a Member of Parliament for any length of time could, through their constituency casework, repeat the sort of story to which he referred; so I will not burden the Committee by adding similar types of anecdote, other than to say that we cannot all be wrong. Up and down the country, people are going to see their Members of Parliament and saying, "We have a problem that we can't get past". There has to be something in the system that is not working right. Like other ex-Members of Parliament, I have from time to time tried to intervene, but the fact that I was a Member of Parliament made virtually no difference whatever to the health authorities. Maybe you would argue that Members of Parliament were the last people they would tell, but they were not going to tell anybody.
Having said that, I also agree with one thing that the noble Lord, Lord Winston, has just said. I hope that the noble Baroness, Lady Masham, will
7 Nov 2011 : Column 53
that may affect their care. That has been taken to refer to a major problem-a life-threatening problem, a permanent disability or disfigurement problem-but, actually, it could also refer to the numerous stories that appear in our national newspapers, week in and week out, about the absence or inadequacy of nursing care for the elderly. Those are incidents and omissions that affect their care. An amendment that is that wide in its potential scope seems to me to require further thought. It might be described, to use my example, as inadequate nursing care-and, incidentally, I speak as the husband of a qualified nurse-but the nurses do not appear to think that it is inadequate, because it keeps on happening. The management does not think that it is inadequate, because it keeps on happening. The boards of the hospitals do not seem to think that it is inadequate, because it keeps on happening. So, identifying at that level what this amendment might mean seems very difficult.
I come to the central point. I share the view of those who believe that more candour is required. I hope that my noble friend will take this away and look at it again in the context of reaching out to those delivering NHS services, not just to some of them. The legal point is a real stumbling block. If you are a professional paying a lot of insurance against medical cover or if you are running a big hospital and paying a lot of insurance health cover, then lawyers are important. We can be dismissive of lawyers and say "transparency reigns, OK", but in the real world lawyers also reign, OK. If I may say so to my noble friend, your Lordships' House needs help on this issue. Do not make us pick between the reality of the need for candour and the reality of the professional job that lawyers are doing to protect their clients. Instead, I ask my noble friend to bring forward a more comprehensive view, perhaps with mediation at its heart. Even in this debate we have heard about people who did not want a lot of money or retribution; they just wanted to know. That rings bells in my head about mediation. Perhaps if a mediation type of arrangement were included in all of this, the problems with the lawyers would be so reduced that the NHS could handle it.
Let me cheer up my noble friend. I can remember my time in Richmond House, with the escalation of money that we had to set aside year by year as more legal cases went to the courts. That was a genuine problem; it was money that was not going to be available for patient care on a day-by-day basis. There are two real issues here. I think we can solve them not in terms of the Bill, either in the way it is written or, with due respect to the noble Baroness, Lady Masham, in the way that she is seeking to amend it, but rather by asking the Minister if he can come back with a more comprehensive and coherent strategy for dealing with this problem. I hope that he will put mediation somewhere near the centre of it.
Baroness Morgan of Drefelin: My Lords, I agree with the noble Lord, Lord Mawhinney, who has given the Minister some very positive and practical advice. When the Minister responds to this debate he will probably say something similar to what he said at Second Reading, where he was very clear that the Government agree that there should be a duty of candour. The question is about how best to deliver that. As I understand it, the Government have launched a consultation about how to deliver a duty of candour through the contractual means that noble Lords have already alluded to. There seems to be agreement around the House; the noble Lord, Lord Winston, suggests that he is unpopular, but he too accepts that there is an issue we need to address.
I believe that the consultation on the contractual route finishes on 2 January. I do not know how that fits in with our Committee timetable, but it would be helpful for the Committee to see how my noble friend's amendment could be worked through in a more practical way. My noble friend Lady Masham has spoken very eloquently about issues of deep concern to patient organisations in this country, and we have to do better than a contractual route. Patients have a right to know when something goes wrong, and in this country's NHS we need a system, a process, that allows health professionals to admit when something goes wrong in an environment that can learn from those mistakes. Where there are errors and where professional misconduct takes place then of course action must be taken, but it is important that there is openness so that the system can learn and these errors can be stopped from happening again. The noble Lord, Lord Harris, made the point about patients and others not always seeking legal redress but in many cases looking for an apology and an assurance that the mistake will not happen to anyone else.
I am sure that the Minister will be persuaded by this debate that we need a more practical and constructive way forward. I appreciate his comment in his response at Second Reading where he said that it would be inappropriate to pre-empt the consultation that finishes on 2 January and to amend the Bill before the Government have a chance to respond to the consultation. That may coincide very well with Report stage-I do not know what the timetable is like-but I hope that the two can dovetail and help my noble friend Lady Masham with her cause in this amendment.
Lord Marks of Henley-on-Thames: My Lords, I welcome the amendment introduced by the noble Baroness, Lady Masham, and others, and applaud the powerful and eloquent way in which she opened the debate and in which others have spoken.
I wish to make a brief contribution regarding the litigation consequences of a lack of transparency. Over a number of years, though not in the immediate past, I conducted clinical negligence cases, many of which concerned allegations of negligence against practitioners and organisations within the health service. I am not one of those who regard such litigation as frequently the result of an unwelcome development of a compensation culture within this country, approaching the situation in the United States. Without generalising, in most of the cases in which I have been involved-
7 Nov 2011 : Column 55
With respect to the points made by the noble Lord, Lord Winston, I remember cases where the process of litigation itself demonstrated not only that that particular claimant had been poorly served but that there had been systemic failings within aspects of the health service that required changes to be made. When those changes were then made, they brought substantial benefit to subsequent patients.
A feature of much of the early litigation in which I was involved, though, was that it was frequently very difficult to obtain full records and a full account of the history from the point of view of the defendants within the NHS providers, and of course they alone were in possession of the relevant information. That is against the background that for many years there has been a procedure for obtaining the disclosure of relevant documents from potential defendants to these actions, even before the actions are commenced.
In recent years, procedures have been greatly improved by the impact of the clinical negligence protocol, introduced in 1999 as part of the Woolf reforms. However, the protocol is not binding, although it introduces a code of good practice and provides a partial answer to the points made by the noble Lord, Lord Mawhinney. The code requires a comprehensive system of what it calls adverse outcome reporting. It requires clear and comprehensible information to be given to patients, and for advice to be provided to patients on any serious adverse outcome and the options available to them. In such cases, access to records is to be given to patients within 40 days of a request. The protocol has done a great deal when it is fully observed. However, the fact that it is not always observed is clear from many of the speeches that we have heard this evening.
A further point is that the protocol applies only in cases where there is a serious adverse outcome for patients. Furthermore, it is only a code and does not impose statutory requirements. Even in serious cases, and where the code is followed, requests for documents and pursuit of the procedures generally involve lawyers, and this process can be lengthy, time-consuming and expensive. If not well handled, the process can tend to harden and entrench positions, making conflict and, therefore, contested proceedings more likely. Furthermore -this is another point I make to the noble Lord, Lord Mawhinney-the process is not effective in less serious cases but this amendment would apply in such cases, although there is a limit to it. It refers only to cases that,
The cost of negligence cases to the NHS is simply staggering. According to a Written Answer given in the other place on 8 June this year, the total in damages paid to successful claimants in 2010-11, including in periodical payments cases-which are treated in the figures as lump sums-exceeded £1 billion. The total of claimants' costs paid out was around £214 million, and the total of defendants' costs was £72 million. If improvements in transparency could be made to reduce these vast amounts, particularly the costs, they would
7 Nov 2011 : Column 56
In a large number of cases, as the protocol recognises and as the noble Lord, Lord Harris of Haringey, and others have pointed out, what claimants and potential claimants want is to know at a very early stage what has happened to them-to have someone explain frankly exactly what has gone wrong and then, where appropriate, to have someone apologise for any errors. Anything that helps to bring about a more effective way of ensuring that that happens will avoid many cases that currently end in litigation. As a result, many patients will be far better served. Therefore, there is much to be said, across a range of cases, for establishing far better procedures than there are now to ensure that full explanations are provided in a timely fashion.
Lord Marks of Henley-on-Thames: My Lords, often it would. If there is to be litigation, an apology tends to suggest an admission of liability. Generally speaking, people do not apologise when they do not think that anything has gone wrong. An important exception to that-one that I have come across-might be where there is an admission of liability and that something has gone wrong, but a dispute over the consequences or what damage might have been suffered. If there would have been adverse consequences to an operation in any event, the fact that it went wrong might not make a difference. However, in those cases the apology might well avoid the litigation because of the difference in attitude and spirit between the parties that results from the apology being made and the recognition that something has gone wrong.
I suggest that we should welcome this amendment. It elevates good practice, as shown by the code, to an enforceable statutory duty of candour, as the noble Baroness points out, backed up by sanctions. It may be that this precise wording is not what is required but I invite the Minister to consider the statutory duty of candour as an important help for future patients. I welcome this amendment as going some way to helping that to happen.
Lord Walton of Detchant: My Lords, I shall be extremely brief in my contribution. As a former practising doctor and neurologist, I am fully aware of the immense distress and concern that patients, and often their families, have experienced as a result of medical accidents in the broad. It is clear that there are certain circumstances in which episodes construed as being so-called medical accidents have been the inadvertent effects of treatments that have had completely unforeseen complications, for which no one could possibly be held responsible.
When I was a young doctor, the medical protection groups-the Medical Defence Union and the Medical Protection Society-always recommended that if an error occurred, under no circumstances should one apologise in such terms as to constitute accepting liability. However, when I was president of the General Medical Council, the concerns that have been so eloquently
7 Nov 2011 : Column 57
Having said that, I understand and sympathise deeply with the purpose that underlies this amendment. However, in several respects it is very difficult to make its wording the basis of a statutory requirement. In particular, proposed new paragraph (b) states that,
This could cut across the responsibilities of the statutory regulatory authorities-the General Medical Council, the General Dental Council and the Nursing and Midwifery Council-and I simply could not accept the wording of that part of the amendment. Therefore, I have great sympathy with the view that something might well be done to reinforce the advice that is being given by a regulatory authority such as the GMC to enforce the duty of candour. However, sadly, the amendment in its present terms would not fulfil that very worthy objective.
Lord Lucas: My Lords, an apology is not, of itself, an admission of liability. I am very grateful to the noble Baroness, Lady Masham, for allowing me to put that into English law, if I can update the noble Lord, Lord Marks, on it.
I come at this question from a slightly different angle. My familiarity is with doctors who have blown the whistle and had their careers destroyed as a result. That, too, has its roots in a lack of internal candour. I want to see the health service become more constructively self-critical, and for the mistakes and wrong judgments that have been made to be the subject of ordinary conversations within a hospital or other medical organisations, so that better care is provided in the future. This is the way it is in schools. Teachers are generally pretty open about things that have gone wrong and look to find ways of doing things better, but they do not tell parents about it. You can look at schools that have improved from 20 per cent to 80 per cent of students achieving five GCSE grades of between A and C. The kids are the same and the intake is the same. That school has failed thousands of children but no one has ever admitted that to the parents, which is very hard to do. In fact, it would tend to freeze any kind of internal self-critical attitude, particularly if the duty was drawn as widely as it would be in this amendment.
I therefore find myself siding with the noble Lord, Lord Winston, in this, although I am very committed to candour. Candour needs to be there, particularly in something as dangerous as medicine, where you are skiing down the edge of a precipice for half the time. You cannot be blamed when things go wrong because mistakes are bound to happen under those circumstances. Downhill skiers crash; they do not intend to do that and are well trained not to-but it happens. This
7 Nov 2011 : Column 58
Lord Harris of Haringey: The experience within the NHS is that people go to law only because they feel that that is the only way in which they are going to get some clarity into what has actually happened.
Lord Harris of Haringey: I am sorry; I hear someone behind me saying that that is not so. My experience in my 12 years of leading the national consumer organisation representing patients in the NHS was that that was precisely the circumstance in which many people went to law. They went to law because they wanted to get the information. That was the fact, and I suspect that that is the reality.
Baroness Williams of Crosby: Perhaps I may add a few words on an aspect that was touched upon only a moment or two ago by the noble Lord, Lord Lucas-the role of people who act as whistleblowers, particularly regarding patients who, for one reason or another, are not capable of standing up for themselves, are perhaps in institutions where they get little attention paid to them, and are not much listened to. They would be heavily dependent on the willingness of NHS staff to blow the whistle when bad standards are being allowed to continue.
One thing has always worried me about the NHS. As a parliamentarian of many years' standing, I have received many letters from junior members of NHS staff asking me to look into some aspect of a hospital or care home in which they work, and almost invariably saying at some point in the letter, "I dare not do this myself because my job would be at risk". This is a very serious aspect of the amendment of the noble Baroness, Lady Masham, but we have not talked about it very much at all.
I tend to favour the idea proposed by my noble friend Lord Mawhinney for having an element of mediation, as well as an element of court behaviour, in the way in which we deal with such cases. However, it rests on us all to give high priority to thinking of the ways in which we can protect whistleblowers and distinguish the genuine whistleblowers from those who are complaining merely about their personal position. For example, if we included private as well as NHS hospitals and care homes, the kind of position that the noble Baroness, Lady Oppenheim-Barnes, talked about-she described a terrible case with regard to her daughter-would not arise so readily.
I ask the Minister to say something about the view that mediation is one way forward, as well as court cases. At least as importantly, perhaps he can say
7 Nov 2011 : Column 59
Baroness Hollins: Perhaps I may raise a couple of issues that have been touched upon. The first is that I do not know how far the consultation that is looking at the duty of candour will tease out the role played by whistleblowing. I should like some clarification about that.
The General Medical Council's document, Good Medical Practice, in paragraph 31, makes it clear that doctors must be honest and open and act with integrity. I mention that because my noble friend Lord Walton spoke about the GMC's role and said that he was not sure how far the medical defence unions currently adopt the same approach to encourage doctors, when they are aware of an error, to be open and honest. I decided to telephone my medical defence union before this debate and ask it for its current advice. It said that it refers doctors to Good Medical Practice and reminds them of paragraph 31, which states that they must be honest and open and act with integrity. I hope that the House will be reassured to hear that.
In my experience, a culture of openness and honesty leads to a culture of learning. That point has been made by a number of noble Lords. We should not be afraid of the idea that apologising will in some way lead to a greater culture of litigation. It is certainly my experience that being open and apologising does not necessarily imply negligence; it reflects the fact that something harmful has happened and that the lessons from mistakes must be learnt from in order that other people will not be harmed by the same mistakes in the future. That is what this is really about.
Lord Winston: Does the noble Baroness not agree with me, however, that this is not what this is about? The problem is that any persons providing healthcare-someone who is seeing a patient but is not concerned with the original treatment-would be required to be open and candid. The problem with that is that it is likely to be highly dangerous and damaging to patients in that situation, as extensive medical experience over many years has shown to the many people trying to do an honest and open job within the health service. The matters of each case have to be looked at on an individual basis.
Baroness Hollins: I absolutely agree with the comment of the noble Lord, Lord Winston. Commenting on another practitioner's practice and making judgments is fraught with error. That is why it is important when looking at the duty of candour to understand the role that whistleblowing plays. A great deal more could be said but it is extremely dangerous to make assumptions about another person's practice.
Lord Warner: My Lords, I was not intending to intervene in this debate, but after listening to the discussion I want to remind the Minister of the many
7 Nov 2011 : Column 60
Baroness Wheeler: My Lords, I begin by paying tribute to the excellent work of the charities, Action against Medical Accidents, National Voices and the National Association of LINks Members on this important issue. I also thank the noble Baroness, Lady Masham, and other noble Lords who have supported and sponsored the amendment and have spoken so forcefully in favour of it. They have put forward the strong arguments for a statutory duty of candour, and I do not intend to go over them or to repeat the detail of the many harrowing cases that have led to the huge support among the general public and patients' organisations for the measure.
The instances of serious failure in care and treatment that have led to the campaign in support of a statutory duty of candour are dramatic, shocking and deeply tragic. The need to ensure openness and transparency of instances of patient care which lead to harm or adverse impact on the patient's future care quality of life apply to both those major cases and to everyday care and treatment solutions. I am sure that, in respect of the latter, many of us will have had personal experience of pursuing instances of poor care and treatment, communication and ordination of services, through the PALS hospital complaints system, only to find how quickly the shutters come down, as has been said, and how hospitals can seem to go into automatic denial and obfuscation as soon as an event occurs.
This is a probing amendment. On behalf of the Front Bench, I urge the Government to look closely at the issue and respond positively on how the Bill can be strengthened to enshrine the right of patients, their carers and families to know when things have gone wrong. In April 2010, my Government established responsibility for the Care Quality Commission to require health providers to report incidents which harm patients to the national reporting system of the National Patient Safety Agency. We recognise that that was a first step. The requirement to report the incident to the patient within a specified period would be a major second step that should be considered to ensure that all information about such incidents is shared with the patient and their family.
Many, both inside and outside the Chamber, have worried about the extent to which patients actually feature in the Bill and whether it will really achieve the Government's objective for patients of "no decision about me without me". Surely, underlining in the Bill the rights of patients to be truly involved in decision-making about their care, to participate in decisions about their future treatment, and to be told honestly and openly when something goes wrong should all be part and parcel of the "no decision about me without me" mantra.
There is clearly growing momentum and enthusiasm for the current CQC regulations to be extended to provide a related duty to share all information about incidents which cause harm with the patient concerned or their family. As we have heard, the House of Commons Health Select Committee in June of this year specifically recommended that a duty of candour to patients from providers also be part of the terms of authorisation from Monitor and of licence by the CQC.
As for the Government's consultation on how a proposed contractual duty of candour should be implemented, it is regrettable that the consultation does not allow for consideration of whether the duty should have a different status. The concerns of the Health Committee and patient groups that a contractual duty alone will not be effective need to be addressed. A powerful argument for the duty being in the CQC registration requirements is that that would then cover all providers, not just those with a standard NHS contract.
The consultation document does not adequately address a number of issues in relation to the proposed contractual duty. For example, it does not make clear how the Government envisage a contractual duty working in practice; or how commissioners should act when a provider has failed to be open; or what effective remedial measures they will be able to take.
We recognise that further work needs to be undertaken on the amendment. For example, the CQC powers should not interfere with or duplicate the role of the health staffs' professional regulatory and disciplinary bodies. The noble Lord, Lord Winston, and other noble Lords have spoken about their concerns. This is a probing amendment. It is designed to raise issues and to seek ways to take the matter forward.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe): My Lords, Amendment 20, introduced by the noble Baroness, Lady Masham, looks to place a new duty on the Secretary of State to ensure transparency when something goes wrong in the treatment of a patient. I hope that she feels gratified by the quality of the contributions to which we have listened this afternoon.
I absolutely agree with the noble Baroness, the noble Lord, Lord Harris, and other noble Lords that ensuring full candour on the part of the medical, nursing and allied professions and NHS organisations is essential. We know that achieving an open and honest system is vital to ensure that the health service learns from its mistakes and that patients and their families are treated with the dignity and respect they deserve. I take no issue with the powerful arguments from noble Lords about the need for openness and candour between health professionals and patients. That is a real concern.
To emphasise that, in our response to the Future Forum's report we made a clear commitment to introduce a duty of candour-a new, contractual requirement on providers to be open and transparent in admitting mistakes. This will be the first time that such a requirement has been specified in contractual agreements with
7 Nov 2011 : Column 62
Accordingly, I support the intention behind the noble Baroness's amendment, but I do not agree that the most effective way to achieve it is through a duty set out in the Bill. The amendment suggests that the Care Quality Commission should have a role in ensuring that health service providers comply with a duty of candour. However, we do not believe that the CQC overseeing compliance would be the most effective way to underpin a new requirement. The CQC itself has said that it would not be able to enforce such a duty routinely and that it would not fit in with its role as a risk-based regulator.
The Government want the duty of candour to be as effective as possible in promoting openness. Rather than rushing to insert what may be an ill-thought-through and impractical duty in primary legislation, we are currently consulting on how best to implement a duty of candour through contracts with commissioners. The consultation explores how we can best support patients and clinicians to demand candour from healthcare organisations and how commissioners would enforce and report publicly on it. If appropriate, there may be an opportunity in future to include such information in the CQC's quality and risk profiles. Incidentally, I encourage the noble Baroness to take part in the consultation, if she has not already done so. The consultation also explores what we should expect commissioners to report publicly in terms of their enforcement of the requirement. As I said, if appropriate, there may be an opportunity in future to ask the CQC to report on that.
Transparency is important, but I assure noble Lords that measures are already in place to ensure transparency within the NHS. For example, as has been mentioned, clinicians have a professional duty to act openly and admit mistakes. In addition to their professional duty, the NHS Constitution sets out the responsibility of health service staff to aim to be open with patients, their families, carers and representatives, including if anything goes wrong. The majority of clinicians are open with their patients and will, despite the difficulty of the conversation, admit mistakes to patients, so patients receive an apology. Where openness does not happen, it is usually as a result of a closed culture that exists within an organisation rather than a case of individual clinicians simply covering things up. I agree with the noble Baroness, Lady Hollins: clinicians must be able to work in a supportive environment where they are encouraged to admit mistakes and learn from them. It is this culture that we aim to foster in the NHS. The question is how best to promote that culture.
Baroness Williams of Crosby: I am grateful to the noble Earl for giving way. Before he leaves the commissioning issue, would the conditions on candour laid down in the contracts apply to contracts with new providers who came from the private sector as well as to those from the old NHS sector?
Earl Howe: Our intention is that any provider supplying services to NHS patients should be subject to this duty of candour in the contract, but my noble friend will know that we are consulting on how best to do this.
Lord Campbell-Savours: Will this cover private contractors where they provide a service to the National Health Service? What would happen in a dual provision facility whereby, let us say, half the clients were private and the other half were from the National Health Service? Would this provision apply only to those who were in effect being funded by the National Health Service?
Earl Howe: Clearly, our concern is for NHS patients. We cannot legislate for private patients who may have completely different terms in the contract. However, the point is that if an independent provider comes forward as an accredited provider for the health service, we should subject that provider to exactly the same kinds of duties that apply to an NHS provider.
I was about to say that I listened with great care to the noble Lord, Lord Winston, and my noble friend Lord Lucas, who I thought spoke wise words in their respective speeches. We have made it clear that we think that services should be commissioned by those who are closest to patients and who best understand the needs of their patients-the clinicians. Therefore, we think it is right that the duty of candour is set out in the contracts that clinical commissioning groups will enter into with service providers. CCGs will be responsible for holding providers to account and therefore will in any case need to consider patient safety events in doing so. In future, the Secretary of State will ensure that this contractual duty is introduced consistently, as the Bill already contains powers for the Secretary of State to set standard contractual requirements where necessary using "standing rules" regulations under new Section 6E of the National Health Service Act, inserted by Clause 17.
The noble Baroness, Lady Masham, suggested that there was nothing in the Bill about patients. I confess that I am disappointed that she has come to that conclusion, as the Bill is all about creating a patient-centred health service-for example, through placing clinicians at the forefront of commissioning, strengthening patient involvement and ensuring that quality is at the heart of all that the NHS does. She suggested that if a duty
7 Nov 2011 : Column 64
I would not want the noble Baroness to think that we have chosen the contracting route as in some way a lesser option, showing that this issue is not of importance to the Government. That is absolutely not the case. We propose a contractual duty of candour because we feel strongly that it has the best chance of working. If I may say so, I believe that the noble Baroness has been rather too quick to dismiss the Government's proposals, which, I say again, represent a considerable advance on the current position.
It has been pointed out that the contractual duty will apply only to providers with an NHS contract and that GPs, for example, without a standard contract will not be covered. We have explicitly acknowledged that primary care contractors will not be covered under the current proposals for a requirement in the NHS standard contract, and we have asked for views on this as part of the ongoing consultation. We recognise that we should aim for an holistic system that applies to every provider of NHS-funded services, but we still need to consider what legislative and contractual changes will work best within primary care.
It should also be remembered more widely that the policy of openness still applies to all NHS services, regardless of the existence of any contractual requirement. For example, primary medical services contractors must have regard to the NHS constitution, the professional codes of conduct and any guidance issued by PCTs or the Secretary of State. Once they are registered with the CQC, a failure to be open with patients will contravene clear expectations set out in CQC guidance. Therefore, not including a requirement in primary care contracts now does not provide a reason for primary care contractors to avoid telling their patients about things going wrong with their healthcare.
My noble friend Lord Marks spoke with his customary experience and legal background about the effect of a duty of candour on negligence claims. He made some very interesting remarks about this, and I think he would agree that it is a complex issue. The evidence is split on the effect of a duty of candour. We are aware of studies from the United States on this topic, including work undertaken at the Veterans Affairs Medical Center in Lexington, Kentucky, and we will continue to monitor this area as further evidence becomes available. However, I can cite one example that is also from the United States. Pennsylvania has a duty to notify patients in writing if a serious event has occurred. Feedback from the Pennsylvania Department of Health on that duty to notify suggests that there are unintended consequences. Experience suggests that a likely behavioural change is towards challenging definitions of a serious event and not apologising. Lawyers may try to twist the definition of a serious event so that the hospital is legally not
7 Nov 2011 : Column 65
Lord Walton of Detchant: On the noble Earl's point about GPs who are not employed by the National Health Service and the issue raised by the noble Lord, Lord Campbell-Savours, about NHS patients and private patients, does he agree that the professional regulatory authorities impose a duty of candour on those professionals, irrespective of whether they work in the NHS or in the private sector? The same duty imposed by the recommendations of regulatory bodies applies to all.
"If a patient under your care has suffered harm or distress, you must act immediately to put matters right, if that is possible. You should offer an apology and explain fully and promptly to the patient what has happened, and the likely short-term and long-term effects".
Lord Harris of Haringey: I am grateful to the noble Earl for giving way yet again on this perhaps longer than expected debate. Although we have clarity about the duty placed by the General Medical Council on individual doctors, which is obviously helpful, the noble Earl gave us an example from the United States where in essence it is not that doctors conspire to keep material from the patients but that the management of the institution finds different ways to get round the duty to report an incident. The reason for saying that a very clear duty needs to be placed on them is management cover-up, which so often takes place when things go wrong.
Earl Howe: That is exactly why I referred to the need for a culture of openness rather than encouraging a situation in which we simply try to catch people out when they are not open. The amendment tabled by the noble Baroness looks to me like yet another way for people to get into trouble, rather than a way in which an organisation can take ownership of things that go wrong, encourage openness and look in-house to put things right. That is my fear about the amendment.
The noble Baroness, Lady Hollins, asked whether the consultation that we are undertaking covers whistleblowing. No, the consultation is focused on the duty of candour; whistleblowing is a separate, but linked, issue. Since coming to office, we have, as she may know, taken a number of important steps to promote it in NHS settings.
The noble Baroness, Lady Morgan, asked about the timing of the consultation response. She is right to say that the consultation finishes on 2 January. The government response will follow in due time after that. Unfortunately, I cannot be more specific. I shall be happy to write all noble Lords upon publication of the government response and I encourage noble Lords to take part in the consultation before it closes.
My noble friends Lord Mawhinney and Lady Williams referred to mediation. I take their point. They will know that mediation can mean a number of different things. As part of the proposed contractual requirement, we suggest that providers will have to offer an apology and an explanation and provide further information as appropriate, all in person with the patient, their representative, the relevant clinicians and other hospital or trust representatives as appropriate. That might well involve a mediator. I am all for mediation if legal fees and all the expense and heartache that goes with them can be avoided.
Lord Campbell-Savours: Following up on what the noble Lord, Lord Walton, said in his intervention about professional bodies, why can we not build into consumer law a requirement on private providers to provide a contractual obligation to their private customers?
Earl Howe: My Lords, unfortunately, I am not an expert in consumer law. My noble friend Lord Marks might be able to enlighten us on this, but there are, of course, consumer protection laws, which every organisation has to abide by, as provided for in the Consumer Protection Act. I think there are probably consumer protection aspects to contracts relating to healthcare services, but we have to tailor the contracts to ensure that we cover the issues that healthcare gives rise to.
The noble Lord, Lord Warner, asked me about the NHS Redress Act and whether the provisions of that Act were capable of taking forward some of the issues raised in the debate. I understand why he has asked that question, but there is a difference between redress for negligence and openness and it is important to distinguish between the two. As such, some of the issues raised this afternoon fall into the remit of redress and associated legislation rather than being specifically linked to a duty of candour. However, I note that, notwithstanding the long hours that we spent debating the NHS Redress Bill some years ago, the previous Government chose never to bring it into force; it is potentially on the statute book, but it is not in operation.
I shall reflect carefully on the points made in this debate. I hope that I have in some way reassured the noble Baroness, Lady Masham, that we are putting systems in place to introduce the duty of candour. To answer my noble friend Lord Mawhinney, we have a strategy. There are good reasons for the contractual route that we have chosen as well as a real potential downside if we were to go down the statutory route proposed here. So against that background, I hope that the noble Baroness will feel able to withdraw her amendment.
Baroness Hussein-Ece: The Minister's comments on mediation prompt me to ask a further question. When I dealt with many of these cases, the complaints procedure was on three levels and the first, immediate level was when the patient or the patient's representative came forward with a complaint to seek local resolution, and often mediation was used to bring the parties together to give, as far as possible, full information. This is very patchy and I was wondering whether, within the consultation and the contractual duties to
7 Nov 2011 : Column 67
Earl Howe: I shall have to get back to my noble friend on whether it is specifically mentioned in the consultation. I can say that it is absolutely pertinent to the subject matter on which we are consulting. It would be extremely helpful if some of the response to the consultation covered issues such as mediation. We need to factor that in and perhaps my noble friend, with her experience, will feel able to send us her views on the subject.
Baroness Masham of Ilton: I thank all noble Lords who have supported, or not supported, the amendment. I say to the noble Lord, Lord Winston, that the last thing one wants is to make a difficult situation more dangerous. One wants to achieve accident prevention. It is vital that patients have trust in the doctors, nurses and other professionals who are treating them. Something has to happen now about the culture. We have to look at what happened at the Mid Staffordshire General Hospital. I sincerely hope that something will be learnt from that. I know that the Government want to improve things. I think that all doctors in the House are trusted by their patients, but there are doctors who have lost their patients' trust. That is why I feel very strongly that whatever the Government try to do will have to be done by statute. Many doctors just follow the book and do not do what they should do.
I feel very strongly that your Lordships' House, with all its expertise, as displayed tonight, must find a way. I sincerely hope that that will happen with the blessing of the Minister and the Government. I hope that we can work together and, before Report, get something that is acceptable to everyone, especially to patients. One must remember the patients who have suffered so badly and who are suffering today. Every time I open a newspaper, I see something about the culture of nursing, and something has to be done. It is the Government's responsibility. We should go for a statutory obligation to protect patients. With that, I beg leave to withdraw the amendment.
Lord Warner: My Lords, my name is on this amendment along with that of my noble friend Lord Rooker, who cannot be with us this evening. I also support many of the other amendments in the group aimed at strengthening the Bill's provisions relating to reducing inequalities.
The problem of health inequalities has bedevilled the NHS since its inception. There are very considerable variations in health outcomes around the country and even in the same area between different groups. That variation was graphically illustrated by my noble friend Lord Darzi in his excellent report on London's health services in 2007, just before he became a Health Minister. That report showed that, as you travelled the seven stops on the Jubilee line between Westminster and Canning Town, so male mortality worsened by seven years. Of course, some of this deterioration is to do with income, housing, education and environmental issues. However, good access to services, good health education and good-quality treatment can have a strong mitigating effect. Therefore, we should be unequivocal in the duty we place on the Secretary of State to work to reduce inequalities. The wording that the noble Lord, Lord Rooker, and I propose is-if I may put it as gently as I can-much less weaselly than the Bill's current wording in proposed new Section 1B. Our wording effectively strengthens the impact of the other more detailed provisions in this group. I hope, therefore, the Minister will look sympathetically on our more dirigiste wording. I beg to move.
The Countess of Mar:My Lords,I support this amendment. If ever there was a case against inequality of treatment, it is for people with ME. I am saying ME rather than ME-CFS because that is too long. The postcode lottery for people with ME has been highlighted in two inquiries by the All-Party Parliamentary Group for ME over the last five years. People are constantly writing to Ministers complaining; the noble Earl himself knows, because I keep complaining about it. In 2002, the Chief Medical Officer announced an award of £8.5 million to set up specialist centres for ME. These have just fizzled out. Once the £8.5 million ring-fence money had been spent, the first thing that was cut was services for people with ME. The trouble is, they are blighted with the distinction of being yuppie flu sufferers-people who swing the lead. They are not: this is more and more often now being proven to be a physical disease with mental side effects, as cancer and MS and a whole lot of other chronic diseases are. It is time the inequality of treatment for people with ME-CFS was obliterated.
Perhaps the worst inequality is in services for children. There are virtually no ME services for children in the UK, particularly children who are bed-bound and housebound, and this is a disgrace on our society. These children-very often high-achieving children-are suddenly struck down; they can no longer have social relationships because they are too ill or too tired to cope; they cannot continue with their education and yet there is no medical attention for them. I am sorry-I am suffering myself at the moment, so I am not being very comprehensive in what I am saying-but it does need to be said that these people need to be looked after. I support the amendment in the name of the noble Lord, Lord Warner.
Baroness Thornton: Eight noble Lords have amendments down in this group about inequalities. Many of them seek to do the same kinds of thing.
7 Nov 2011 : Column 69
I will quickly run through these amendments. Amendments 21, 22, 23 and 25 strengthen the duty on the Secretary of State to reduce inequalities in the health service. The Bill currently requires the Secretary of State simply to "have regard to" this need. Amendment 21 says "is required"-the strongest of these amendments-followed by Amendment 22 with "seek", and Amendment 23 with "act with a view". Amendment 25A says it is the Secretary of State's duty to reduce inequalities between people and "between communities" in England. I will return to that in a moment. In Amendment 27A, we on this side are seeking to add detail to the inequalities that the Secretary of State has a duty to reduce. We argue that,
Amendment 31 says that, in an instance of a conflict of duties on commissioners or regulators, the duty to reduce inequalities is paramount. Amendment 32 says that, as part of this duty, the Secretary of State must publish comprehensive, publicly available data on the extent to which inequalities have been reduced across the NHS. Amendment 68A says that the duties of the NHS Commissioning Board as to the improvement of public health should be extended to cover the duty to reduce health inequalities. Amendment 68B concerns each local authority having to take steps to reduce health inequalities between people and between communities. Amendment 69B again relates to public health: the Secretary of State must also seek to reduce health inequalities between people and communities. Finally, Amendments 120A, 190A and 190B are about the national health Commissioning Board having a duty to reduce inequalities in health status. Noble Lords will get the theme that is running through here.
Clause 3 places a duty on the Secretary of State to have regard to health inequalities, and that is an aim and aspiration that we would, of course, support. However, the problem with this clause is that that duty is not capable of effective fulfilment. For example, public health analysis and needs assessment require comprehensive area-based population data. This is the basis of the current health system mechanisms for resource allocation and for the commissioning of public health measures designed to prevent or ameliorate systematic inequalities both between groups of residents in an area and across and among areas, with respect to the access of resources, services, and their use and outcomes. Census estimates, adjusted for factors such as age and deprivation, are used as the denominator for the population in such analyses. Our problem with this Bill is-and I would be grateful if the Minister
7 Nov 2011 : Column 70
Amendments 120A and 190A address the argument that local authorities and clinical commissioning groups should have a duty to reduce inequalities not only in their areas, but also in England. We think this makes sense because, for example, somewhere like Lambeth or Bradford-where I come from-could make huge improvements within area inequalities but still lag miles behind the rest of the country. Amendment 25A calls on the Secretary of State to act to reduce inequalities between people and communities. The word "communities" is important in this context because it speaks to local authorities. Given that public health inequalities are going to be in their jurisdiction, it seems that this is an important matter. Therefore, we would like the Bill to address within-area geographical inequality because it refers to inequalities between groups and communities of groups, not just an individual's access and receipt of services. We believe that the Government should set out how they intend to use non-legislative levers and incentives to translate the duties in the Bill into practical action and how the NHS will be accountable for progress in reducing health inequalities. Our Amendments 31 and 32 tie in with this. We think we need to understand where those levers will exist, how they will be used and how the Government will measure inequalities.
As noble Lords will realise, Amendments 120B and 190B also arise directly out of the Equality Act and concern individuals and discrimination in the receipt of services. I know the noble Baroness, Lady Greengross, will address Amendment 33, which is tabled in her name. We believe that Amendment 120B addresses the general duties of the national Commissioning Board, which are vital parts of the picture. If the duties to deliver and secure provision of the health service are split between the Secretary of State, the board and CCGs, corresponding duties to reduce inequalities must also be exercised by all three, and these amendments seek to put that in the Bill.
Lord Turnberg: My Lords, I had not intended to speak to these amendments, but it is clear that we have had problems associated with inequalities for a very long time, and they persist. Many years ago, we had the Black report on inequalities in health, which was a major landmark, and since then we have had Sir Michael Marmot and his marvellous book The Status Syndrome pushing away at the inequalities in health, and my noble friend Lord Layard and his book on happiness and the inequalities in life in general. There
7 Nov 2011 : Column 71
Baroness Williams of Crosby: My Lords, I am grateful to the noble Baroness, Lady Thornton, for so clearly analysing the different amendments. I shall keep to those that are grouped together. As she said, the gravamen of the amendments is towards the view that the duties of the Secretary of State and, indeed, of other bodies involved in the NHS should be strengthened and put in rather more forceful terms. Whether one prefers "require" or "with a view to", those words strengthen the position with regard to health inequalities from the rather low-level pressure of "with regard to".
I say right away that my noble friend Lord Howe said, and I thought said very strongly, that this Bill contains a great many references to inequalities. It is also absolutely true that, as the noble Lord, Lord Turnberg, said, doing something about them is a very difficult exercise. One of the striking findings of the wonderful book The Spirit Level, which I have referred to before in this House, is that where there are grave inequalities in society, there are almost invariably grave inequalities in health as well. As the noble Lord, Lord Turnberg, said, the two are very closely related. Blame cannot be put entirely, or even largely, on the health service for the continuing inequalities. We know that there are very grave inequalities, both geographical and generational, between different parts of our society. To take only one example, lifestyles that feed bad health tend to be rather different between one section of society and another. I shall quote the words of the King's Fund on the attempt made by the previous Government, to whom I give due credit, to deal with inequalities using the quality and outcomes framework. There was not much effect. The King's Fund dismissed the whole effort with slightly contemptuous phraseology. It referred to,
which is fairly damning. In addition, we know that economic differences between regions are very often reflected in health outcomes and, therefore, that looking at health outcomes has to be related to other outcomes: educational, income and social.
Let me therefore speak very quickly about some of the practical steps that can be taken to make the ethos and goal of this Bill more effective. The very first, which we will come to later, is crucial. It is taking
7 Nov 2011 : Column 72
Let me give one example. Nowadays quite a few people with chronic illnesses have formed networks of patients. They exchange an extraordinarily advanced and sophisticated level of mutual knowledge and understanding about the use of new drugs, new techniques and even about how the way in which one lives can reduce the risks inherent in particular chronic sicknesses. I think that is absolutely right. At the heart of public health is not only treatment but, perhaps more importantly, education. We still have a long way to go in that respect to bring patients into the business of helping to look after themselves, so my first question to the Minister is: how far are we putting emphasis on new communications technology as part of the future of public health?
The second thing I want to mention is the importance of clinical commissioning groups looking at the real danger, which was spelled out by Mr Dalton, the director of a PCT cluster, of creating what he called sink estates: clinical commissioning groups that end up with all the tough cases in an area. As we move towards coterminosity, I hope we will move away from that risk, but one cannot completely rule it out. It is something that a very close eye will have to be kept on by the clinical Commissioning Board to ensure that we do not see the creation of groups that are underfinanced, or at least, perhaps, underqualified, ending up with the hardest cases in the community.
I promise that I am not going to go on for very much longer, but thirdly, I believe it is of great importance to ensure that as far as possible-and this is caught up in the amendment to which the noble Baroness, Lady Thornton, referred-publicity is given to the inequalities continuing in health so that we become more aware of the extent to which health inequalities could be tackled, possibly by methods other than simply health itself.
In that context I say rather loudly and clearly that I find it rather hard to understand the distribution of funds to local authorities on the basis of the so-called non-chronic expectation of life figures-which seem to have bitten very hard on some of the poorest communities in the country-and to emphasise that it is important for those who are dealing with a health service to look at their relationships with other government departments to ensure that the one objective is supported
7 Nov 2011 : Column 73
The final instance I want to give, which I think is also very important, is the crucial role in this respect of the health and well-being boards. I pay tribute to the Government for the role they have given to health and well-being boards. We are only at the very beginning of the development of the strength and influence of them. To take one example, I hope we will move towards a situation where the health and well-being boards not only are consulted by the clinical commissioning groups but their support and approval is required before a clinical commissioning group can go ahead with the business plans it has for its neighbourhood.
Lord Patel: My Lords, I support these amendments and I have my name on two of them. I particularly associate myself with the comments that the noble Baroness, Lady Williams of Crosby, made on the need to address the issues within public health to reduce inequalities.
"We do not understand why the Secretary of State's new statutory duty to reduce health inequalities under the Bill appears to apply only to the exercise of his functions in relation to the health service. We recommend that the Bill be amended to make it clear that the Secretary of State's duty to reduce health inequalities applies in the exercise of all his functions, including those applying to public health".
The noble Baroness, Lady Williams, already referred to the inequalities in health that occur because of lifestyle-related diseases. In previous discussions we have noted that 40 per cent of acute admissions are related to lifestyle-related diseases. It must be right that the statutory duty of the Secretary of State includes functions relating to public health.
Baroness Greengross: My Lords, I will speak to Amendment 33 in my name. I am pleased to follow the noble Baroness, Lady Williams, and the noble Lord, Lord Turnberg, because a lot of my work is concerned with the sort of inequalities they have spoken about. The noble Lord, Lord Turnberg, mentioned Professor Sir Michael Marmot. I have been privileged to chair the advisory group for the longitudinal study on ageing that he established. I have done that since it started. It demonstrates so clearly the terrible, almost life-or-death sentences that health inequalities impose on different groups in terms of their life expectancy. This is really something that is quite impossible for us to continue.
My other role as the lead commissioner on age at the Equality and Human Rights Commission means that I hope very much that we can, if we amend this Bill, achieve more positive healthcare outcomes. The
7 Nov 2011 : Column 74
My amendment would define the Secretary of State's duties to reduce health inequalities against three different criteria: the definitions of equality contained in the Equality Act 2010; different parts of England; and different socio-economic strata. In any subsequent reporting of progress towards reducing health inequalities, the Secretary of State would have to demonstrate consistency in the progress made against the three criteria.
My amendment would clarify the Secretary of State's duties in relation to reducing health inequalities. I am afraid that without this in the Bill health service improvement may not reach everyone. There may be a failure to improve services for specific groups such as those mentioned within the list of protected characteristics. Clause 3 currently requires the Secretary of State to have regard to the need to reduce inequalities between the people of England with,
The amendment to this clause would ensure that access to health services and improving health outcomes were an intrinsic part of the Secretary of State's duties. Without guaranteeing improvement in access to services, there is a risk that there could be high levels of variation in the kinds of services the NHS provides across the country.
I have listed the equality characteristics detailed in the Equality Act 2010 which is not necessarily Members of your Lordships' House. Too often it has been the case that health inequalities exist in part because people belong to one of the groups listed here and there is actual discrimination against a patient. In relation to specific treatments, patients are treated differently not purely on the basis of clinical decisions but on the basis of one of the protected characteristics, particularly age. For example, despite improvements in cancer outcomes, a 2007 study of breast cancer patients in Manchester found that older women are less likely than younger women to receive "standard" management for breast cancer and less likely even after accounting for differences in general health and co-morbidity to have surgery for operable breast cancer.
My amendment will ensure that the Secretary of State's duties are clear and specific and that people across England can be sure their access to healthcare and the quality of the healthcare they need will be assured regardless of who is providing the service. The areas where the Secretary of State can demonstrate improvement in reducing inequalities should be balanced
7 Nov 2011 : Column 75
Baroness Murphy: My Lords, I have a great deal of sympathy with those who want to beef up this duty on the Secretary of State. I want to ask the Minister to explain why the public health function was left out-it is very specific about NHS responsibilities. I suspect the answer is that public health is in relation to other departments of state. He is shaking his head so perhaps that is not the answer. Working in the NHS one cannot but be aware of these profound inequalities. Within the first week of going as chairman to the east London health authority, three facts hit me in the face. First, in Hackney, people had only a 25 per cent chance of referral for a hip replacement as per the norm for England. Secondly, in Newham, mortality rates for bowel cancer after treatment were 30 per cent worse than elsewhere. It clearly emerged that there was a failure of referral to access, for, particularly, certain of the ethnic communities. Thirdly, on a visit to the community podiatry service, every patient was white in an area where the population was 25 per cent black and minority ethnic. Simply, no one had ever asked them the relevant question. Addressing inequality seems to be profoundly difficult on the ground: you must have the information and the wit to discover whether there is a problem of access, referral or discrimination and treatment, or whether there are underlying features of the illness that make inequalities difficult to address.
This clause, which fundamentally is a great improvement on what has gone before, is important because it gets the matter into the Secretary of State's duties. The phrase "have regard to" is quite powerful but I wonder whether it quite reflects the determination that we have all felt over the years when we have read the work of Michael Marmot and various groups, going right back to the Black report, and to ask why we do not have something a little stronger that gives teeth to local commissioning groups to examine these issues very carefully locally.
Lord Ribeiro: I want to pick up on something that the noble Baroness, Lady Greengross, mentioned; namely, elderly patients perhaps being denied treatment. There is a real danger in not recognising that the clinical decision is based on the quality of the patients rather than their age, which is important. We are all aware of 60 year-olds who are basically crumbling with significant code morbidity and who would not be considered for surgery. Yet, there are many fit and self-caring people in their late 80s who may fracture a hip and would be worthy of surgical treatment. In fact, many people in your Lordships' House in that age group may have benefited from that type of treatment. It is very important that we should see this in the context of clinical need rather than just one of age.
Similarly, as regards cancer and the point I made about the older generation, not that long ago in the United States a carcinoma of the prostate was open season for anyone to have a radical prostatectomy practically at any age, be it 80 or 90 years old. The morbidity and mortality associated with that radical surgery was very high. The American College of Surgeons, at recent meetings I attended, recognised that patients over the age of 75 should not be offered this type of surgery unless there is a very good reason. It is also a well known fact that 80 per cent of males aged 80 and over actually have-not just probably have-carcinoma of the prostate. But on whether they should have treatment for it, they are more likely to die from other conditions than from their cancer. Although age is important, it should not be a specific criterion for determining whether treatment is given or not.
Baroness Tyler of Enfield: My Lords, I, too, should like to speak in support of this raft of amendments which are all designed, to use the words of the noble Baroness, Lady Murphy, to give greater teeth to reducing health inequalities. We have already heard various statistics from a number of noble Lords and those for life expectancy are generally the most stark. The statistic that means the most to me relates to London, probably because that is where I live; namely, that the life expectancy of men ranges from 71 years in one ward in the London Borough of Haringey to 88 years in one ward in Kensington and Chelsea. That is a huge difference of 17 years. It is worth also pointing out that even within Kensington and Chelsea, there is a difference of nearly 12 years in life expectancy across different parts of the borough.
As many noble Lords have said, there is a whole range of reasons for this, including the social and the economic. It is one of the things that underline the critical need in our debates to put more focus on public health interventions. I also very much welcome the establishment and the role of Public Health England, and the fact that the public health function at a local level will sit with local authorities.
In discussing the need to strengthen these duties, it is important to recognise and welcome that having explicit duties placed for the first time on the Secretary of State, the NHS Commissioning Board and the clinical commissioning groups is a landmark, representing a major shift from the current position. There is something very significant about the whole raft of these NHS reforms.
The phrase "have regard to" health inequalities for the clinical commissioning groups is not sufficient because we need to make sure that they act and behave to secure real improvements, which need to be in both access to NHS services and in outcomes. I want those CCGs to account publicly for their progress, not simply as part of normal accountability but as part of sharing good practice and workforce development, and in the training of NHS employees. It should become part of the everyday currency and language of the NHS, part of the DNA of the way in which the health service operates. I believe that this strengthening is necessary if the NHS reforms are to become a real game-changer for some of the most disadvantaged
7 Nov 2011 : Column 77
Perhaps I may give an example in relation to homeless people who experience some of the worst health inequalities of any group in society. They are more likely to die young, live with a long-term condition, have multiple health problems and have mental health or substance use issues. They are also far less likely to have regular contact with a GP or other health professional and are much more likely to access healthcare through A&E, which is inappropriate and, as we know, causes all sorts of problems for A&E departments. In short, they are the most likely to have very poor health and the least likely to benefit from what the NHS has to offer.
Of course, many services are needed to help homeless people to improve their outcomes, including housing, employment, family support and other things. But it is particularly important that the NHS is able to cater for the needs of these groups. Appropriate services are far more likely to be commissioned where clinical commissioning groups have a duty to take account of these health inequalities in their plans and reporting mechanisms and the standards to which they are held to account, and that they are ensuring that these arrangements are incentivised through the commissioning arrangements.
I very much support the principle of the amendments put forward and I look forward to hearing the Government giving an even stronger commitment to tackling health inequalities and to making this a key outcome of the overall package of reforms that we are discussing.
Baroness Armstrong of Hill Top: My Lords, I seek only to intervene briefly on this. The whole issue of how to tackle inequalities in health is an extremely complex and difficult one. When I was a Member of Parliament, I looked forward to receiving from the department reports on a regular basis on how inequalities had been addressed and how health had improved throughout the constituency. What was clear was that the more effective our public health interventions were, such as on reducing smoking, the more difficult it was to tackle inequalities. The people who automatically responded best to those interventions were those on higher wages, with better qualifications and who were likely to be in higher class groups than those in the poorest parts of the constituency. That could always be seen clearly in those reports. The amendments that support better information are very important because clinical commissioning groups in particular are not well placed instinctively to tackle inequalities. It is generally not part of the training of GPs to look at these issues and work out how to address them.
We have already discussed the second issue today, and it is important-the issue of access. Unless we open up access much more sharply to the disadvantaged we will not have a chance of addressing inequalities. The noble Baroness opposite talked about homelessness. I have discussed this issue with the Minister on a number of occasions, and I am not content that the Bill deals with it adequately. It is not fair to ask clinical commissioning groups to address this issue. Sometimes
7 Nov 2011 : Column 78
I am also concerned that clinical commissioning groups may be responsible for areas with poor GP coverage and there will be a need to bring in salaried GPs. It will need someone other than a clinical commissioning group to address the issue of GP shortages-and it is always the poorest areas which have the poorest access to GPs. It is an issue that continues to have to be addressed time and time again. I was pleased when the last Government introduced many more salaried GPs, but we have to keep on top of that agenda.
I also support the amendments that look to the responsibilities of the NHS Commissioning Board. There will be occasions when the board has to come in specifically to address inequalities in a range of ways. I am not sure that it is really geared up to do that at the moment. But because I certainly do think that clinical commissioning groups are not going to be able to do this on their own, and indeed it would not be appropriate for them to address some areas of clinical commissioning, it is very important that the department, the Secretary of State and the Commissioning Board think about how they are going to do this effectively.
Baroness Hollins: My Lords, I particularly welcome the amendments which are designed to strengthen the duty to reduce health inequalities between people and communities, the emphasis here being on inequalities not between "the people of England", but between individuals as well as groups. I draw attention to this because in 2008 the Department of Health drew up a policy on health inequalities, and I sat on the group which developed it. I was pleased when the document was published in June 2008 because it talked about the group that I am interested in, which is people with learning disabilities. I shall read out a short paragraph from the executive summary because it makes my point very nicely:
"Progress on health inequalities will be judged against how public services treat especially vulnerable groups. The recent Disability Rights Commission report made it clear that people with learning disabilities often receive a poorer level and quality of service from the NHS. If services and health outcomes are improving for people with learning disabilities, they are likely to be improving for other groups at risk of health inequalities".
Baroness Thornton: My Lords, perhaps I may respond very briefly from these Benches. I took the Committee through our amendments at a gallop, so perhaps I may make two points very quickly. This debate has illustrated the problem that these amendments seek to address, and indeed it was illustrated by criticism from
7 Nov 2011 : Column 79
However, my understanding is that the weighting given to health inequalities in the formula of allocating NHS funding has been reduced from 15 per cent to 10 per cent. Can the Minister confirm that that is indeed the case? What signal does it send about the Government's priorities and their commitment to dealing with health inequalities? It seems to me that the commitment to dealing with health inequalities could be remedied. There is a need for a widened definition of health inequalities to include reducing inequalities in the health role, and of access for the Secretary of State, the NCB and clinical commissioning groups. There is a need to specify and define inequalities, particularly inequalities between groups and communities rather than individuals, and there needs to be a strong duty on local authorities as public health duties are transferred to them.
Finally, the message here is that the Minister needs to look carefully at these amendments and that the Committee is very interested in engaging with the Government to strengthen this part of the Bill. I look forward to the noble Earl's remarks.
Earl Howe: My Lords, the Government are committed to reducing health inequalities, to ensuring equity and fairness across the health service, and to improving the health of the most vulnerable in our society. On top of the pre-existing general public sector equality duty, for the first time the Secretary of State will have a specific responsibility to,
whatever their cause. This duty will be backed by similar duties on the NHS Commissioning Board and clinical commissioning groups. Taken together, these duties will ensure a focus on the reduction of health inequalities throughout the system, with special consideration paid to outcomes achieved both in relation to NHS services and to public health.
While many noble Lords seek to amend these new duties, we believe that they are right as they stand. The duty will not be an add-on or an afterthought. The Secretary of State, the Commissioning Board and clinical commissioning groups will be required always when carrying out any and all of their functions to have regard to the need to reduce inequalities. I should also point out here that the duty is purposefully non-specific. Amendments 21, 22, 23, 25, 27 and 27A all aim in different ways to strengthen the wording of the
7 Nov 2011 : Column 80
For the same reasons, I am afraid that I cannot accept attempts to amend the wording of the duty to "act with a view to" or "seek to reduce". While I understand the noble Lord's attempts to make the duty as strong as possible, "have regard to" captures the intention of the legislation; that is, that the Secretary of State must consider the need to reduce inequalities in every decision that he takes about the NHS and public health. The approach that the unamended clause sets out is the right way to achieve this. As it stands, the Secretary of State would have to have regard to the need to reduce inequalities in any decision that he made. Contrary to what some have thought, having regard is a strong duty which shows the Government's commitment to the reduction in health inequalities. The duty to "have regard to" has established meaning and has been used in other important legislation, such as the duty to have regard to the NHS constitution in the Health Act 2009. The courts can and do strike down administrative actions in cases where decision-makers have not had regard to something in contravention of a statutory duty to do so. For example, they have struck down decisions of public authorities for failure to have due regard to their equality duties. The courts have said in relation to public sector equality duties that the duty to have due regard must be exercised with rigour and an open mind-it is not a question of ticking boxes. The duty has to be integrated within the discharge of the public functions of the authority. It involves a conscious and deliberate approach to policy-making and needs to be thorough enough to show that due regard has been paid before any decision is made.
Amendment 27, tabled by my noble friend Lady Williams, would have the effect of making the Secretary of State and the Department of Health responsible for reducing inequalities generally, beyond those relating to health. We cannot accept the amendment because there are many areas, such as wealth inequality, which are rightly not within the department's responsibility, and therefore to place a duty on the Secretary of State for Health to reduce these would not be practical.
Amendment 27A, tabled by the noble Baroness, Lady Thornton, would specify that the Secretary of State's duty in reducing inequalities should be in relation to health status, outcomes achieved, experience and the ability to access services. The amendment is modelled partly on the wording of the Commissioning Board's and CCGs' inequality duties. While I agree with the intention behind the noble Baroness's amendment, I can reassure her that the reference to "benefits" in the unamended clause already covers these aspects and so the amendment is unnecessary. The reason that the Secretary of State's duty talks of benefits that people can obtain from the health service is that it includes public health as well as the NHS. The Secretary of State's duty is deliberately broader than the duty of the board and CCGs.
Amendment 29, tabled by the noble Lord, Lord Warner, aims to ensure that promoting patient choice is not given a greater priority than reducing health inequalities. I understand that some people have concerns that greater choice and competition could exacerbate inequalities, and I am aware that there are particular concerns that choice could benefit the better-off at the expense of others. However, our proposals on choice are intended to ensure that all patients are given opportunities to choose. We do not believe that the assertion that the better-off will benefit more from choice is borne out by the evidence. Indeed, recent evidence suggests that choice has the potential to improve equity. For example, some noble Lords may have seen the study published recently by the Centre for Health Economics at the University of York, which found that,
Amendment 31, tabled by the noble Baroness, Lady Thornton, would introduce wording to ensure that if the duties placed on commissioners or regulators came into conflict with any other duty, the duty to reduce inequalities would prevail. I fully share the intention of making sure that these organisations do not ignore the goal of reducing inequalities. However, the inequality duty must already be complied with when bodies are exercising all their other functions. Therefore, I cannot agree that other duties placed on commissioners or regulators would conflict with their general duty to have regard to the need to reduce inequalities.
Amendment 32, also tabled by the noble Baroness, Lady Thornton, seeks to place on the Secretary of State a duty to publish evidence about the extent to which inequalities have been reduced annually. I fully agree that the NHS and the Secretary of State should be accountable for their efforts to reduce inequality. Clause 50 already places a duty on the Secretary of State to report annually on the NHS. Since tackling inequality will be such an important legal duty throughout the NHS, we have every expectation that inequalities will be a key reporting theme in the Secretary of State's annual report.
Amendment 33, tabled by the noble Baroness, Lady Greengross, would place a duty on the Secretary of State to give particular regard to certain factors and characteristics when having regard to inequalities. Amendments 120B and 190B, tabled by the noble Baroness, Lady Thornton, would amend the Commissioning Board's and clinical commissioning groups' inequality duties, in new Sections 13G and 14S of the 2006 Act, to include the same list of characteristics and factors. I hope that I can persuade the noble Baronesses that there is no need for these amendments. First, it is unnecessary to prescribe the characteristics and factors to be covered by the Secretary of State, the Commissioning Board and the clinical commissioning group duties. The current, unamended duties would already cover health inequalities arising from any characteristic or factor. On top of this, as we have already discussed, the Secretary of State and the NHS are already bound by the general Equality Act 2010. Section 149 of that Act lists the characteristics covered in paragraphs (a) to (i) of the amendments. Therefore, the Secretary of State and NHS bodies will already have to give specific consideration to these characteristics. In not being specific in the duty on the Secretary of State, the Commissioning Board or CCGs, we are keeping the duty with regard to health inequalities as broad as possible, so that no characteristics which drive health inequalities are inadvertently omitted.
As the noble Baroness made clear, there are two new factors not listed in the Equality Act but proposed by the amendments. These are geographical variation and socioeconomic variation. However, it is unnecessary to specify these factors either. They are already wellestablished dimensions of health inequalities and will be taken into account under the duties on the Secretary of State, the NHS Commissioning Board, and CCGs. They are also already specified in the NHS outcomes framework, subject to data considerations.
Apart from being unnecessary, the amendments are also in a real sense undesirable. While I am sure that this is not the intention, their effect would be to give pre-eminence or priority to certain characteristics or factors. We are dealing here with the perennial problem of "the list"; by implication, anything not on the list is less important. Instead, the Government are committed to ensuring that all dimensions of health inequalities are encompassed by the proposed duties, a principle that I am sure all noble Lords can agree with. All factors leading to health inequalities should be considered, with the weight given to them depending on particular circumstances.
Amendments 25A, 68A, 68B, 69B, 120A and 190A have been tabled by the noble Baroness, Lady Thornton, and focus on health inequalities between communities. The amendments to Clause 9 would alter the duty on local authorities to take steps to improve the health of the people in their area and the equivalent power for Secretary of State.
Amendment 25A would amend the existing duty of the Secretary of State to reduce inequalities. While I share the noble Baroness's concerns about the reduction of health inequalities between communities, the
7 Nov 2011 : Column 83
Amendments 120A and 190A would place a similar duty on both the NHS Commissioning Board and CCGs, when exercising their functions, to have regard to the need to reduce inequalities between people and between communities, not only in access and outcomes, which includes the patient experience, but in health status, which is intended, as I understand it, to mean a standard of health and well-being.
Moreover, the amendments would require CCGs to have regard to the need to reduce inequalities between individuals and communities in their area, and in England as a whole. The board, similarly, would need to reduce inequalities between individuals, and between communities across England.
However, the amendments go beyond this simple replication of existing duties on commissioners by including a reference to health status. This would place a significant additional burden on CCGs and the NHS Commissioning Board, as neither is directly responsible for commissioning for public health.
Amendments 68A, 68B and 69B would amend new Section 2B of the National Health Service Act 2006, which relates to functions of local authorities and the Secretary of State in the improvement of public health. The amendments would add duties to reduce health inequalities as well as to improve health. While I fully appreciate the noble Baroness's intentions in highlighting inequalities, we do not think that the amendments are necessary or appropriate. I hope to reassure the noble Baroness that tackling inequalities in health is a priority for public health professionals and for the Government.
At a national level, Public Health England will be a source of information, advice and support for local authorities and clinical commissioning groups as they develop local approaches to improving health and well-being and communicating intelligence to local commissioning about how best to tackle the public health challenges that they face.
As the Committee may be aware, Public Health England will carry out the Secretary of State's functions. This means that the Secretary of State will already be closely involved in matters of public health. In exercising these public health functions, the Secretary of State is already under a duty to have regard to the need to reduce inequalities between the people of England with respect to the benefits that they can obtain from the health service, as set out in Clause 3.
Amendment 69B would amend the Secretary of State's power to take steps to improve the health of the people in England. The amendment would be intended to give the Secretary of State additional powers to take steps to improve health and reduce health inequalities between people and communities as well as steps to improve health. We think that such a power is unnecessary. In exercising his powers to improve health, the Secretary of State must have regard to the need to reduce inequalities, as a result of Clause 3. This means that he would be able to take steps to
7 Nov 2011 : Column 84
Amendment 68B would amend the local authority duty to take steps to improve the health of the population. The amendment would require local authorities to take steps to improve the health of the population and to reduce health inequalities between people and between communities.
Local authorities are independent democratic bodies that are accountable to their populations in a different way from NHS bodies. We have used different levers such as the grant circular to ensure that a reduction in inequalities is the fundamental driver of the public health system. We believe that these non-legislative levers will be at least as effective as any duty, although of course local authorities are already subject to the provisions in the Equality Act 2010.
The noble Baroness indicated that without area-based populations for CCGs it would be too difficult to measure public health data and tackle inequalities. She is incorrect about that. We disagree that the reforms will hinder the collection and usage of public health data. First, in response to her specific point, CCGs will continue to have a strong geographical basis, as we discussed at length last week. CCGs will play an active role in tackling inequalities. Secondly, the functions of bodies that are currently responsible for public health information and intelligence will also be brought into the department, such as the public health observatories and the cancer registries. This will enable Public Health England to make the most of opportunities for synergies across different services and to eliminate gaps in information to support the better delivery of public health interventions at a national and local level.
Finally, the noble Baroness asked about the reduction in the disability-free life expectancy component of the resource allocation formula. The DFLE adjustment is retained as part of our commitment to reducing health inequalities. The size of the adjustment determines the weighting of the main formula, which aims to fund equal access for all and funding for work to support work to reduce health inequalities. The main formula already includes weighting for additional need to access healthcare in elderly and/or deprived populations.
In the last allocations round, ACRA could find no technical basis for the weighting of the DFLE adjustment and left it to ministerial decision. Until further work on allocations to GP clinical commissioning groups and the public health service has been completed, it is being set at 10 per cent to ensure that funding for work on health inequalities continues.
I apologise for the length of my remarks, but it was important to set out the Government's position on each of the amendments. I hope that I have persuaded noble Lords that the Government are committed to reducing health inequalities, and that the current duties in the Bill are the most effective way of supporting this aim. In the light of my explanation, I hope the noble Lords will not press their amendments.
Lord Warner: My Lords, this has been an interesting debate. I do not want to prolong it. The mood of the House was to strengthen the wording in Clause 3 on the Secretary of State's duties on reducing inequalities. A key factor that the noble Earl may have overlooked is the relationship of that duty to the Secretary of State being more active on the subject of access, which is a key part of securing inequalities. In the mean time, I will withdraw my amendment, but I must tell the noble Earl that we may return to this at a later stage.
Baroness Linklater of Butterstone: My Lords, I am grateful for this opportunity to raise once again the issues that relate to those children in the country today who are the most difficult and challenging, the most damaged and needy. They are the children between the ages of 12 and 16 and sometimes as young as 10 and as old as 17, whose offending behaviour has resulted in them being detained in either a secure children's home, which I will refer to as a SCH, or a secure training centre or STC, which means that they are also the most expensive to provide for. Older ones, from 16 to 18, will normally be in a YOI.
Decisions on the care of these children fall to the Youth Justice Board and now inevitably are part of the focus of the range of spending cuts being made around the country. Consultations are therefore being held to develop a strategy for the next few years which will determine the need, the cost and above all the type of provision for these children. It will also, coincidentally, reveal how far we are prepared to honour our duty of care to our most vulnerable children, despite all the challenges that they present. Failure to respond effectively today will result inevitably in continued reoffending and far greater and far more expensive long-term problems tomorrow.
The most immediate evidence of the problem comes in the figures from the MoJ that the reoffending rate of this group of children is 72 per cent within a year of release. It is the highest figure for all offenders being released from custody, thus demonstrating the relative ineffectiveness of the penal approach to this group. Their experience of life is light years away from that of the majority of our children and can be encapsulated in the telling phrase, "a disproportionate experience of loss"-meaning loss of family life, love and security.
For those 12 to 18 year-olds who end up in custody, the figures illustrate that 71 per cent have been involved with, or in the care of, social services; 75 per cent have lived with someone other than a parent at some time-this compares with 1.5 per cent of the population; a quarter have experienced violence at home; 40 per cent have been homeless-we are talking here about the 21st century; and 90 per cent have been excluded from school. These are children for whom violence at home is often the norm. Some of them start their nursery schooling not even knowing what their name is, such is the absence of a loving family life. Of those who end up in custody, up to 81 per cent have mental health problems. Those figures may be enough to give a flavour of the extreme and shocking difficulties in many of these children's lives.
I pay tribute to the Youth Justice Board for its work over the past four to five years, in particular for the way in which it has succeeded in bringing down the numbers of 10 to 14 year-olds going into custody by a remarkable 51 per cent since 2006-07. The reasons for that are complex and varied, but it demonstrates not only the courts' overuse of custody in the past but the creative work that the YJB has developed with the YOTs and other agencies in the community in prevention, diversion and treatment, all of which is greatly to be welcomed.
Of course, such a reduction leaves spare capacity and, therefore, considerable savings-hence the current consultation. The decisions to be made for the future offer a rare opportunity to reconfigure provision to meet better these young people's needs and intractable problems, but it is not clear in what direction things will go. The response of the MoJ and YJB to these savings, alongside the demands for funding cuts, may be to take this as an opportunity to develop more welfare-oriented, child-centred approaches. Alternatively, there may be a threat to best practice through the merging or combining of facilities, driven by the need for cuts, which would be unlikely to reduce reoffending and would be a tragic lost opportunity.
There are several reasons for my concern. First, there has been a drop of a third in the number of children placed in secure children's homes by the YJB, while its use of STCs has risen by 19 per cent. Real concern about this trend has been expressed by virtually every specialist agency working with these children. The views of such agencies are represented by the Standing Committee for Youth Justice, which states unequivocally that the predominantly welfare-centred ethos of the secure children's homes is absolutely vital not only for the future chances and well-being of these children but for reducing reoffending. There should be no further reduction in the numbers of those beds. The suspected motive is to achieve short-term cost savings, which is simply counterproductive. By contrast, the STCs are part of the prison estate with all that that implies-they are essentially places of punishment-and are not an appropriate answer, greatly improved though I acknowledge they have become. It is also absolutely clear that more research is needed into a needs analysis of these children.
A policy starting point recommended by the Standing Committee for Youth Justice is the raising of the remand and custody thresholds, which would guarantee
7 Nov 2011 : Column 87
In my experience in Scotland as a member for nine years of the children's panel, which is the Scottish equivalent to the youth court, our guiding principle was, and still is, that the child's needs should be addressed as a priority, for it is only in understanding his or her needs that you can begin to understand and deal appropriately with the deeds that have led to the hearing. I am quite clear that there are times, especially for the most difficult, when secure accommodation is indeed absolutely necessary because security is what is really needed and the child is at serious risk in the community, whether from family, lifestyle or contacts. Indeed, sometimes the community may be at risk from a child's chaotic or violent behaviour, but this is usually for a brief period. However, any placement should be very frequently reviewed so that proper assessments are made. I believe that that is the right model.
The recent development, within prisons in England, of what are called "enhanced units" for children and young people is interesting but also worrying. For example, the Keppel unit at Wetherby YOI and the Willow unit at Hindley YOI have recently been developed. I have visited the Keppel unit and seen evidence there of very good work, of which the YJB is justly proud. However, imprisoning children with adult provision being adapted to them rather than being designed around their needs is simply not right. It raises the question of whether such provision is becoming the alternative in the MoJ's planning for secure children's homes provision. That would be a real mistake. There is no question of the need for specialist provision, but it must be properly geared to meet the needs of this group of children in a specialist environment.
Cost is a very real issue for the YJB. For example, the cost per bed night in one of the four STCs, such as Oakhill, can be £861.40. There has always been a perception that secure children's homes were more expensive, but the Prison Reform Trust has demonstrated that this is no longer the case. It quotes one children's home at a mere £599 per night. This is important because it seems that there is more scope for negotiating price. The figures for residential provision, although absolutely mouth-watering, reflect the needs of the most vulnerable children, to whom our duty of care must be honoured.
These are just some of the issues that the Government must take into account. False economies are not what these children, or the country, need. I look forward to hearing reassuring words on the future of current best professional practice in secure children's homes from the Minister.
Lord Beecham: My Lords, I declare an interest, which the Minister may think singularly inappropriate-I am a member of the Out of Trouble advisory group of the Prison Reform Trust-and I congratulate the noble Baroness, Lady Linklater, on introducing the debate.
The background to the debate is that in this country we criminalise children at much too young an age, much younger than in most other jurisdictions. We lock them up five times more on average than similar societies do. For example, to compare ourselves with Finland, we have 2,000 youngsters under 18 in custody, whereas Finland, with one-tenth of our population, has precisely six. Finland has 4,000 adolescent treatment centre places, whereas this country, with 10 times the population, has a mere 1,100. There is also the significant cost, to which the noble Baroness has referred; it costs £51,000 a year to keep a child in a young offender institution and £165,000 in a secure training centre. Of course, we now have cuts of 20 per cent in the YOTs budget-23 per cent, actually, in London-at a time when, as we have heard in the past couple of weeks, reoffending rates in 70 per cent of youth offending team areas are beginning to rise.
The noble Baroness has referred to the background of many of these youngsters. Three times as many suffer from mental health problems as in the general population and 25 per cent of them have special needs, while 23 per cent of them have IQs of less than 70 and 36 per cent have between 70 and 79. That is nearly 60 per cent with IQs of under 80, and 60 per cent have poor communication skills. All too often, they are in custody because of breach of an order, such as an ASBO, and not necessarily for serious offences. In cases of non-violent, less serious offences resulting in custody, about 61 per cent arise from a breach of an order.
The Prison Reform Trust recently published a document on this whole process, pointing out that far too often it is the breach of an order that leads to custodial sentences, and it made eight significant recommendations for improving that situation, including topics that one might have thought would be useful across the whole of the system: involving children in decisions taken about them; improving the quality of intervention in the community; and identifying and meeting welfare needs leading to offences in the first place, dealing with the problem before it translates into a criminal offence. That involves not just the criminal justice system. Clearly it goes much beyond that and involves the health system, children's services and, arguably, the whole issue of family responsibilities. This issue certainly needs to be progressed.
Other factors also cause concern. In the population of young people in custody, a disproportionate number of children are from black and minority ethnic backgrounds, particularly in remand. They seem to have a significantly higher propensity to be remanded in custody than other children. The position of black and minority ethnic girls receiving custodial sentences is also distinctly out of line with either their male
7 Nov 2011 : Column 89
"Just threatening to lock young people up will not break the cycle. Of course criminals need to face penalties for their actions but we desperately need to deal with the reasons why they are committing crime in the first place. Otherwise we move from being 'tough on crime, tough on the causes of crime' to being 'tough on headlines, soft on the causes of the headline'".
Lord Dholakia: My Lords, this debate identifies two issues that need to be addressed. First, there is the effect of budget cuts on secure children's homes and, secondly, there is the impact of cuts on policies designed to deal with reoffending rates. In this debate, we cannot ignore the fact that in recent times there has been a reduction in the custody of children of 10 years of age. That is welcome, but we should also be concerned that England and Wales has the lowest age of criminal responsibility and the highest level of child incarceration in western Europe. These are the further issues that cannot be avoided or ignored.
Past government announcements have made it clear that the independent role provided by the Youth Justice Board is, they say, no longer required. There is no dispute that the Youth Justice Board was created in response to a lack of cohesion and collaborative working, which was a feature of our justice system in dealing with children and young persons. Equally, it is true that the Youth Justice Board has, over 12 years, developed a secure and distinct estate for young people. This is something we all welcome. I am aware of the Government's intention to retain youth offending teams and that they will continue to place young people separately from adult offenders in dedicated, secure estates. The Youth Justice Board already has a proven record and I suspect that it should be a barometer against which all future successes or failures will be measured.
There is ample evidence at hand that preventive intervention in the lives of children with behavioural problems can bring about improvements and reduce the risk of serious or persistent offending at a later stage. That is why this must be at the heart of any policy development in reducing offending. It is beyond dispute that a substantial number of young people-the figure could be as high as 70 per cent-reoffend within two years of leaving a penal establishment. Prisons do little to correct this behaviour. This is where specialised
7 Nov 2011 : Column 90
We had an interesting debate last week on the role of magistrates. It is clear that sentencing should never ignore the two other pillars, restoration and prevention, on which our justice system is based. Each of those pillars has its own role but each is dependent on the other two. Put together and effectively co-ordinated, they help in the problem of integrating the offenders in society. Of course, we must never underestimate young people who are violent and for whom secure settings are appropriate. When we examine the reoffending levels associated with youth custody, there must be something fundamentally wrong; three out of four are reconvicted within a year of completing their sentence.
Against this background, we must also recognise a striking improvement in the youth justice system: the frequency of reoffending by young people has been reduced since 2000; the number of young people coming into the youth justice system for the first time has reduced significantly in the past two years; and over our first 18 months, there has been a very significant decline in the number of young people under 18 being held in custody. This is a distinct youth justice strand, and my plea to the Minister is to ensure that whereas the current economic circumstances require the Government to make substantial reductions in public expenditure, it is not inconsistent with policy that these cuts do not impinge on the success of youth justice work.
We need great care and sensitivity to ensure that the system breaks the cycle of deprivation, otherwise children and young people from disadvantaged communities and neighbourhoods will be recycled again and again within the criminal justice system. We understand the Government's dilemma; pressure on public spending requires the need to eliminate waste and invest in services that deliver value for money. Against that, we need to respond to the real difficulties faced by our children, particularly those from deprived or disadvantaged backgrounds. The Government alone cannot solve this problem. Communities have to come together to provide better life chances and skills and address the anti-social behaviour of their children. We need to build a carefully structured and adequately resourced youth justice system that will lessen the impact of crime in the community. In conclusion, we have a success story to tell; let us hope that budgetary cuts do not bring us back to the dysfunctional youth justice policies before the Youth Justice Board was established.
Baroness Shackleton of Belgravia: It is a great honour to rise for the first time and speak in your Lordships' House. I would like to thank your Lordships for the quality and the depth of the welcome I have received from all sides of your Lordships' House. It has, for me, been a very sharp learning curve. Indeed, I was so ignorant that when mention of another place was
7 Nov 2011 : Column 91
My great-grandfather arrived from Russia almost penniless. He started work in the East End, sifting rags. My grandfather left school when he was 16 and my father, having won an exhibition to Cambridge, was the first member of his family to attend university. My mother's family had arrived a few generations before and was already successful by the time my parents met. My parents both worked hard, my father in his chosen career and my mother devoting herself to him, the family and numerous charitable causes. That was the example that they set. Education was of paramount importance at home and doing one's best was the gold standard.
I was fortunate that there was no gender discrimination and it was expected that I would strive to become self-sufficient in the same way as my two brothers. At 12, I was sent to boarding school. I was not an especially good student and felt that some of the existing customs were rather strange and capable of improvement. One of these was the way our day was managed. The whole community was controlled by the almost Pavlovian ringing of bells to get up, start and stop eating, begin and finish lessons and go to sleep. My year group occupied some prefab classrooms and one day, together with a more nimble friend, we tape-recorded the school bell and then blocked the real bell at the end of the corridor. For a blissful week we got away with operating the tape recorder and cutting five minutes off each lesson, until the truth was out. In January this year, when I was woken at 3.43 am by the Division Bell in this House, I thought of the irony of the by then familiar noise that now regulated my life.
I was inspired at school by my headmistress, who taught law. I recognised that, used effectively, it was a means that enabled people to protect others. I subsequently obtained a disappointing law degree from Exeter University but managed to get a sought-after place to do my articles in the City, at the firm Herbert Smith. It was there that I had the good fortune to work among hugely talented people, one of whom is my friend, the noble Lord, Lord Hart of Chilton, who sits on the Benches opposite and was then in charge of the articled clerks. He encouraged me and inspired me to keep going and make my career in law. So much of life is luck, and I have been blessed with people who can see light at the end of the tunnel when it is not always obvious that there is any there.
During my articles I shared a room with a legal executive, Stanley Grant, who had had little formal education but who knew everything that was worth
7 Nov 2011 : Column 92
I am grateful for this opportunity to make my maiden speech in today's debate on budget cuts for secure children's homes and reducing children's reoffending rates. It is a topic of great importance that touches on the work that I do. I have three points to make: first, the importance of a stable home life; secondly, the importance of education; and thirdly, the important role of teachers as carers, educators and inspirers. Nothing that we do in policy-making should detract from these important principles, all of which can both diminish the risk of offending in the first place and assist in rehabilitation when it occurs. Children are frequently the innocent victims of a breakdown of the family unit, be it a cohabitation, a marriage or a civil partnership. Without any feeling of belonging, they are the most vulnerable to offending. It is my belief that prevention is better than cure, and this is the way to seek to cut the cost of these problems.
As he retired, the parting message of Lord Jakobovits, not only to the Jewish community but to the British people, was that marriage and family life had to be learnt but that if necessary we should have classes for young people, teaching them the importance of family life and how to bring up children, how to discipline them kindly but firmly and how to instil the sense of moral law within them.
I express my gratitude to my own family, my grandparents and parents, for their example of hard work and fun and their unblemished record of staying together, and to my husband and children for their understanding and tolerance, without which I doubt I could deal with the things that are, sometimes literally, thrown at me. It has been a long journey but I hope very much that over time I will be able to make a proper contribution to your Lordships' House. I feel proud and humble to be a Member.
Lord Judd: My Lords, I know that I speak for noble Lords on all sides of the House in saying without reservation how warmly we welcome the noble Baroness, Lady Shackleton, to our midst. Her speech was significant and I shall return to it in a moment. First, let me just say that it is good to have with us somebody with such a powerful reputation in her career, and with so much insight into the legal dimensions of our society and, beyond that, into the stories behind those legal dimensions. I know that Exeter University has a tradition of producing strong and formidable women-my wife is one. It is small wonder that that university so wisely awarded the noble Baroness an honorary doctorate. Before long, I am sure we shall want to award her all sorts of plaudits for the contributions that she makes. We welcome her most warmly and look forward to her contributions.
In her speech, the noble Baroness made reference to the importance of family life, education and stability in the upbringing of children. It could not have been a more significant contribution to make to this debate, in which we are dealing with children who have lacked stability; children who frequently have not enjoyed any kind of family life; and children who have, for one reason or another, not had the benefits of continuous and sound education.
The noble Lord, Lord McNally, who will wind up, always admonishes me when I make this kind of point, saying, "Please remember that there are children from such backgrounds who make it", and that cannot be disputed. However, what also cannot be disputed is something of which I became very aware during nine years as president of YMCA England, when I looked very closely at and came to admire the work being done with young offenders by the staff and volunteers. What became very clear was that so many of these young offenders had such horrific and sad stories behind them, with so much disruption in their lives, that it would have been a bit of a miracle had they not found themselves in trouble with the law. What is so important is that all who deal with such children are discovering that there is a need for them to be handled in a secure and intimate atmosphere, where it is possible to get behind the immediate situation that confronts us and understand where they come from and how they can be helped back into a productive role in society.
Any tendency to move still further away from secure homes of this kind is calamitous, not just because of the consequences for the children and the dangers of reoffending, as referred to by the noble Lord, Lord Dholakia, but because it makes for economic nonsense. The Public Accounts Committee in the other place has estimated that the cost of offending by children is in the realm of £11 billion a year. That is an immense cost to society. We can get no satisfaction simply from punishing the young. We have to prevent them reoffending. If they are to stop reoffending, we have to get close to them in an environment that can ensure that they get back into a constructive role in society. The evidence is that in larger young offender institutions and other institutions of that kind this does not happen.
There is one other point that I must make, which is that as a society and state we ourselves have a responsibility for the children in our care. One of the most alarming and disturbing statistics that is seldom recognised on the scale that it should be is that, since 1990, 31 children have died in care in young offender institutions and secure establishments. Contrast that with the fact that there have been no deaths in secure children's homes during that period. How is it that we can recognise that statistic yet move firmly in the opposite direction from the logical conclusion? On economic grounds and on humanitarian grounds-but very powerfully indeed on economic grounds-for any chance of being able to claim to be a civilised society in the treatment of our children, it is essential that we do the sensible thing. If we are going to strengthen anything in our penal system for the young it should be to strengthen, not diminish, the role of secure children's homes.
Lord Carlile of Berriew: My Lords, I congratulate my noble friend Lady Linklater on her ability in presenting, and on securing, this debate on an important and valuable subject. I also congratulate my noble friend Lady Shackleton on her excellent maiden speech. I found it quite moving, coming from the same parental and grandparental background that she does. She may find that that background is a real driver towards contributions on matters on which one feels strongly in this House-where good argument is heard with patience and respect, and where bad argument is rejected with mere politeness. I am sure that she will make a great contribution to our affairs.
I recognise in the speeches that have been made so far, and in some of the briefings that heralded this debate, the statistical soup that can surround this subject about offending children and young people. It points in many different directions but always produces the same unpalatable reduction, which is that we are not succeeding in reforming the activities of children in custody and sending them out quickly into society as people who will not go through the revolving door of custody, time after time. Unfortunately, the picture is of a very fast-revolving door.
The cohort of residents in custody has multiple issues to face up to. They are troubled and we do nothing to deal with that trouble constructively, except in a relatively small number of cases. We have one of the lowest ages of criminal responsibility in the world, yet we have a higher recidivism rate among children than almost anywhere else in the world and, despite having spent many years looking at this subject, I do not quite understand what we are doing wrong. However, I believe that the kind of regime provided in local authority secure children's homes has been far better designed to reform than anything provided in secure training centres or young offender institutions.
Five and a half years ago I chaired an inquiry for the Howard League for Penal Reform, of which I am currently the president, on the use of restraint, strip-searching and isolation among children in custody. It was not happening in local authority secure children's homes. It was happening in other institutions. It is still happening in other institutions. The Howard League this year conducted a two-day evidence hearing that I chaired to see what had happened in the five years since the report was produced in 2006. Some good progress had been made; the provisions made for young people in custody have improved the situation, and I share the view that it is good news that far fewer young people are in custody-particularly those between 14 and 16 years of age-than before. Nevertheless, far too much restraint is still being used.
What is it that secure children's homes provided that enabled us to avoid those pitfalls of restraint, strip-searching and isolation? It was a number of qualities. First, they were small; they are small. It is within something that is much more like home that children learn the habits of a home. One of my observations, having visited secure children's homes and other custodial institutions for children and young people, is that most of the young people in them have never enjoyed the sort of home to which my noble
7 Nov 2011 : Column 95
Next, secure children's homes have high ratios of well trained staff, specialist staff who understand children. It is self-evident that we should deal with children as children, not as criminals, if we are to succeed in reforming them and turning them from children into adults, rather than from child criminals into recidivists. Next, they have education. Secure children's homes, in my view, have a very high standard of education. With that, they combine therapeutic and behavioural provision tailored to children's needs. That provision is not being made adequately in the other parts of the child and youth custodial setting. Therefore, the Government should be looking at more, smaller units, far more like secure children's homes, rather than going in the opposite direction, towards larger institutions, which appears to be policy at present.
Baroness Howe of Idlicote: My Lords, I join other noble Lords in thanking the noble Baroness, Lady Linklater of Butterstone, for this opportunity to discuss the impact of budget caps on the work of secure children homes in reducing children's reoffending rates. I also congratulate the noble Baroness, Lady Shackleton, on her excellent maiden speech, which I found personally moving. I am sure that we shall hear a lot more from her in future. The noble Baroness made a strong case for not closing secure children's homes. From my experience as a juvenile court chairman in inner London for 20 years, they have clearly retained their reputation of providing the best service for those children, for whom that kind of placement was essential.
I want to address how, by spending more resources at an earlier stage of those children's lives, there would be less need for the state to be locking up children. Keith Joseph's speech in 1978 on the cycle of deprivation was made more than 30 years ago, and still we have a pattern of families where we know, or strongly suspect, that early intervention, support and mentoring may have prevented the pattern of offending that is so grossly expensive in both financial and personal ability terms. It is certainly good news that the number of juveniles offending who have been imprisoned has dropped overall, but there are also counterproductive aspects to these statistics, if the result is that young people who are given custodial sentences are imprisoned so far away from their families that any form of effective family therapy is virtually impossible.
There are other concerning aspects too, some of which have been mentioned by the noble Lord, Lord Beecham, showing that the percentage of black and minority-ethnic youngsters is rising and that the proportion of young men imprisoned for the first time is up by over one-third. Another worrying aspect is the number of imprisoned juveniles-one-third of boys and one-fifth of girls-who have reported that they felt unsafe at some point. Indeed we have just heard cited by the noble Lord, Lord Judd, the appalling statistic which I will not repeat, but which I was going to use. The Youth Justice Board spends £268.9 million
7 Nov 2011 : Column 96
|Next Section||Back to Table of Contents||Lords Hansard Home Page|