Health and Social Care Bill

My Lords, Amendment 20 would establish a duty of candour so that any provider of National Health Service services would have to inform a patient, or their family or next of kin if they died or lacked capacity, when something went wrong with their care or treatment that had led to harm or could cause harm. The principle of ““no decision about me without me”” has been stressed. If the patient is to be central to the legislation, the amendment should be taken very seriously. I hope that your Lordships agree with me that there are always risks in the treatment of patients, but that there should be openness and transparency, with no cover-ups, when things go wrong. There is currently no statutory requirement on providers of National Health Service services to tell a patient, or their carer or representative, when something has gone wrong during their care and treatment, while a host of compulsory standards are set out in statutory regulations. The issue is left to guidance and a non-binding requirement in the National Health Service’s constitution to have regard to the principle of openness. This has allowed cases to occur where NHS organisations have withheld such information from patients, delayed its release or, worse, actively covered it up. Organisations concerned with patient safety have campaigned for a statutory duty of candour to rectify this situation. The Government have agreed that a duty of candour is required, but their preferred route is a contractual duty built into the standard contracts between commissioners and some providers of NHS services. Patients’ organisations do not believe that that is adequate. It would not include all NHS providers, only those with standard contracts, and would not create access to the sanctions that the CQC has at its disposal. It is not just patients and patients’ groups who advocate a statutory duty of candour. Action Against Medical Accidents presents an impressive list of organisations and leading clinicians who support it. Just recently, at the Mid Staffordshire Hospital NHS Foundation Trust public inquiry, Sir Liam Donaldson, the former Chief Medical Officer for England and internationally renowned champion of patient safety, reiterated his long-held belief in a statutory duty of candour. When asked directly, he said that he had always personally agreed that there should be a statutory duty of candour. He explained that he favoured it because he was of the view that professionals should be encouraged to take responsibility when they have done something wrong rather than withhold instances of harm. I believe that failure to commit to a more meaningful measure in this Bill will not only fail to have the desired effect, but is a snub and an insult to patients, patients’ groups and other experts. There is little if anything in the Bill that is genuinely drawn directly from the priorities and wishes of patients. A commitment to a statutory duty of candour certainly would be. This is an opportunity to show that patients really are being listened to. If the Government agree that the requirement to be open really is fundamental and essential, why on earth would a different approach be taken to this essential requirement, with it being left to the commissioning process? Commissioners are simply not equipped to regulate issues of this kind. If one accepts the argument that this is the appropriate way to proceed, then all of the core standards currently in the CQC regulations could simply be dealt with in the standard contract for providers. Another key weakness in the Government's proposal is that providers’ contracts relate only to NHS contracts with trusts, PCTs and private voluntary providers of NHS services. That would not include primary care practitioners such as GPs. The Government admit in their consultation document that GPs are subject to different arrangements and that the duty could be brought in only in negotiation with their representing organisations. Very significantly, the BMA General Practitioners Committee has already stated that it would not sign up to a duty of candour, but it should not be negotiable. A duty is a duty. The Government’s proposed contractual duty of candour would be weak even where it did apply. It simply would not cover the area where so much NHS care is undertaken—in primary care. As recently as June of this year, MPs on the Health Select Committee recommended, in their report Complaints and Litigation, that a duty of candour be included in the licensing arrangements with the Care Quality Commission. That is precisely what AvMA and others are arguing for. Restricting the duty of candour to the contracting process diminishes its importance and impact and is inconsistent with how any other genuine ““must do”” is regulated. It is also offensive to patients, and undermines the principle of candour, that there is a statutory requirement in the CQC regulations for providers to report patient safety incidents to the CQC but no statutory requirement to report them to the patients affected. Inclusion of such a requirement in the CQC registration regime would cover all providers of NHS services—not just those with a particular form of contract—including dentists and, in due course, GPs. We believe that creating a statutory duty of candour to provide a right for patients to know when things have gone wrong with their care and treatment is fully justified, would improve healthcare, would put the patient at the centre of health services and could, I hope, gain the support of the House. If the patient is to be central in this Bill, I can see no reason why the Minister should not accept this amendment. I beg to move.