My Lords, this has been another very good debate on the duty of candour. As we have discussed previously, the Government's position is that the NHS contracts are the most appropriate mechanism through which to implement a further requirement for openness. Amendment 38A proposes that the contractual duty of candour should be given a specific reference in primary legislation. I hope that I can satisfy the House on this and that the undertakings I am about to give the noble Baroness from this Dispatch Box will reassure her sufficiently to enable her to withdraw the amendment.
I give an assurance to the House that the Government propose to use the provisions in Clause 19 relating to the standing rules to specify that the contractual duty of candour must be included in the NHS standard contract, developed by the NHS Commissioning Board. If that assurance is accepted, as I hope it will be, a specific reference is not required to ensure that a contractual duty of candour is imposed. The question, therefore, is whether, despite my assurance, it is necessary or appropriate to include a provision in Clause 19. I have given this proposal substantial thought, and I admit that it is one which on the surface has some appeal. I have spent a good deal of time discussing the matter with noble Lords as well as with Professor Sir Bruce Keogh, the NHS Medical Director.
Let me explain where my deliberations have taken me. At present there is a very wide range of issues that we incorporate into the standard contract. These include issues of paramount importance to the quality and safety of healthcare. For example, the contract is used as one of the mechanisms that we are using to drive improvements in prevention of venous thromboembolism, or VTE. It has been estimated that every year 25,000 people in England die from VTE that they have contracted in hospital. We also use the standard contract for driving improvements in cancer treatments and referrals in healthcare-associated infections in issues such as consent and many other areas.
As the Bill stands, it does not contain a list of the requirements which are to be included in the standard contracts, and for good reason. The Bill should not contain unnecessary detail. On top of that—and I think that this is perhaps a more important point—there should be sufficient flexibility for the Secretary of State and the board to consider and draft appropriate terms and conditions and adapt them to changing circumstances.
The question I pose to myself is this: if, through a reference to the duty of candour, we are to start down the road of specifying particular quality and safety contractual requirements in the Bill, then where do we stop? Just including the few issues that I have briefly mentioned, without any others, means that we will almost certainly land up with a cumbersome and unwieldy list. There are many other areas besides those which some might see as having a similarly valid claim to be mentioned. We should not use primary legislation to cherry-pick priorities to the detriment of other equally important areas.
We have further concerns about precisely what the amendment would require the Secretary of State to provide in the standing rules. We are still looking at what the appropriate contractual term should be in the light of the recent consultation that was mentioned. Imposing a duty in the Bill to adopt a specific formulation, as the amendment would have us do, constrains our ability to take proper account of the consultation and the engagement that we have had with stakeholders—it risks forcing us to implement an inappropriate requirement—and from easily improving it in the future, if the evidence supports that.
I was struck by the very powerful speech of my noble friend Lord Faulks during our last debate on this topic, and indeed by his words today, when he challenged the House to consider the difficulties involved in drafting a duty which adequately encapsulates these obligations. The noble Lord, Lord Winston, was very wise in what he said. For example, how would we specify the types of incidents to which any contractual requirement would apply? The contractual duty and provision in the regulations must be neither too wide nor too narrow in order to be effective and proportionate. We need the flexibility to consider this in more detail.
The noble Baroness's amendment would have us require particular steps to be taken in particular defined circumstances and adopt a particular definition of the incidents to be covered by the duty of candour. I am extremely uncomfortable with that. Apart from anything else, we specifically asked this question in the public consultation, so we would be undermining that process if we were not properly to consider the responses we received. I really think, therefore, that it would be better to let that consultation guide us as to the precise way in which the duty should be framed. It is for those reasons that, after considerable thought, I can tell the noble Baroness that I do not think it would be wise for us to accept Amendment 38A.
The noble Lord, Lord Walton, asked about the duty placed on individual doctors within a trust. Doctors are expected to follow the code of practice laid down by the GMC, as he will know, and failure to do so may lead to action against a doctor by the regulator in the exercise of its statutory powers. I can confirm to the noble Lord that the code is not just words; it is backed up by real regulatory force. Indeed, I have the wording of the code in front of me: "““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””."
There are similar provisions in the Nursing and Midwifery Council code as well.
My noble friend Lady Tyler asked about the time period for the review of the contractual duty that I promised last time we debated this. My view at present is that about three years from the implementation of the duty would be an appropriate period. We will be setting out in more detail when we propose to conduct that review when we respond to the consultation.
I reiterate on the record the Government's and my commitment to introduce a contractual duty of candour to require openness and transparency in the NHS. I understand the strength of feeling on the topic; indeed, it is for exactly that reason that I promised in our earlier debate that the Government would undertake a review in future of the effectiveness of the contractual duty of candour, and to include that within a specific analysis of whether its effectiveness was being substantially held back by the lack of a reference in primary legislation. If that review were to highlight that this was indeed happening, the Government would give that fact significant consideration and take it fully into account in the context of any future primary legislation. On top of that, I reiterate the commitment that I have given today that the Government intend to use the ““standing rules”” regulations to specify that the contractual duty of candour must be included in the NHS standard contract. I hope that I have provided the noble Baroness with cast-iron reassurance upon this topic, and I therefore ask her to withdraw her amendment.
Health and Social Care Bill
Proceeding contribution from
Earl Howe
(Conservative)
in the House of Lords on Monday, 27 February 2012.
It occurred during Debate on bills on Health and Social Care Bill.
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