Health and Social Care Bill

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. That is what I understand that the amendment is trying to achieve—a duty of candour. 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 it became clear early on that the drug error had something to do with her death, there was an internal investigation and Mayra’s husband, Arnold Cabrera, was told that Mayra had died from a rare but natural event—an embolism. He was given no idea that something untoward had happened. It was not until some 14 months later, after a legal investigation had been instigated by this solicitors, that the circumstances were revealed. The records showed that in May 2004, as had been acknowledged internally, a drug error had been a contributory factor in Mayra’s death, yet no one at the trust had informed her husband. It is quite extraordinary that no one had a duty to do that. They did follow guidelines—they just did not do it. This is simply wrong. We need a consistent, strong, statutory procedure, not just guidelines, in order that this should happen automatically. It should run in parallel with a very strong, robust complaints procedure. 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.