My Lords, we come to a very important clause, which I think the Government might describe as a Francis clause since it clearly seeks to respond to the Robert Francis inquiry into the Mid Staffordshire hospital problems. In fact, judging by the rigour of the Government’s initial response to Mr Francis, one might have thought that there would have been a series of clauses reflecting the 290 recommendations. It would be helpful to know why the Government consider that this is an adequate legislative response. Can the Minister say whether there is likely to be further legislation or whether, in effect, this is the definitive legislative response to the Francis report?
Clause 81 creates a new offence so that providers of health services and adult social care that supply, publish or otherwise make available information that is “false or misleading” could be subject to criminal sanctions. The offence applies to a care provider as a corporate body, not to individual directors or employees. Clause 81 outlines the scope of the offence, including where care providers are potentially subject to it and the type of information to which it relates. I understand that further detail will be specified in the regulations as appropriate.
Let me say at once that this clause is welcome, as far as it goes. However, I have two questions to ask. First, is it possible to be rather more explicit than the Explanatory Notes are as to what information is likely to be covered by the offence? This is important as I have received a briefing from NHS employer organisations, which recognise the seriousness of the potential offence in this clause and would like to see clarity as to the kind of information that is embraced.
It is disappointing that the clause does not contain a provision to enact a duty of candour, as recommended by Robert Francis. That is the subject of my Amendment 76B. He said that a statutory duty should be imposed to observe such a duty of candour on healthcare providers who believe, or suspect, that treatment or care provided to a patient has caused death or serious injury to inform that patient or another duly authorised person as soon as is practicable. At Second Reading, the noble Earl said that the duty of candour would be dealt with through CQC registration via regulations. I am very puzzled that such a key recommendation—it was almost the headline recommendation—of the Francis report is not going to be dealt with in the Bill when the Government clearly have the vehicle to put it there, so I am very sympathetic to my noble friend Lord Warner’s Amendment 77, which I think is consistent with my Amendment 76B. It is always nice to feel that I am consistent with my noble friend.
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It is also noticeable that the Government appear to have rejected Francis’s recommendation to place on individuals a statutory duty of openness, candour and transparency. I am not unaware of the concerns in the NHS and social care that an individual duty such as this might perversely lead to increasing the incentives to staff to hide information about adverse events because of the potential repercussions. It has certainly been put to me that any legislative proposal must avoid dissuading the reporting of any kind, deterring clinicians from undertaking complex medical cases or discouraging innovation.
I well understand that and why the Government may be somewhat reluctant to go down that route, but it is noticeable that Mr Francis has expressed in public his disappointment with the Government’s response. Most recently, he was reported as saying that prosecutions should occur only for the most serious cases for the sorts of behaviour that he saw so many examples of in the Mid Staffordshire inquiry, as he describes it,
“of absolutely appalling care, insulting to human dignity and in some cases life-threatening behaviour leaving people naked, unfed, covered in faeces”.
He went on to say:
“Unless we have a criminal offence, we will not be reflecting adequately the gravity of the terrible things it seems are capable of being done in our hospital wards if they are not properly run”.
He concluded:
“If we don’t reflect somehow the fact that the public rightly think some things are terrible and there should be real accountability for them, then I believe the public confidence in the NHS will evaporate”.
I do not pretend this is an easy question, but I would be grateful if the Minister would inform the House of his thinking, the extent to which Professor
Berwick’s review will input into this, and whether the Government have closed the door completely on individual statutory liabilities.
Of course, I was tempted to put down amendments relating to all 290 recommendations of the Francis report, but I have chosen two as symbols because they are so important. I would be interested to know whether the Government are going to move on them. The first relates to the consequence of the abolition of the National Patient Safety Agency. We debated this in the Health and Social Care Bill. I have a particular interest since I was a former chair, although the noble Lord, Lord Patel, has also chaired the NPSA. The key point about the NPSA is not the organisation. It practically ran the national reporting and learning system. This was developed by the former Chief Medical Officer using the example of the airline industry, where airline staff are encouraged to report near misses on the basis that they will not be penalised for doing so, but by reporting one can learn and improve safety. The airline industry is a very good example of how that has occurred.
The Government’s current decision was to transfer responsibility for the national reporting and learning system to NHS England. I think they have sub-contracted the job to Imperial College, which is fine, but I have concerns about NHS England being the repository of the national reporting and learning system, because the role of NHS England is basically to beat up the system to deliver on the targets. I heard with interest Sir David Nicholson’s rather extraordinary speech where he presented an image of NHS England taking forward the great vision of the future and taking everyone with it. However, those of us on the ground see old-style performance management operating well and effectively in NHS England, and there could be issues in the future with staff being reluctant to report incidents because they are sent to the management body that oversees the performance of the NHS. Robert Francis said, first, that the NPSA’s resources need to be well protected. He clearly recognised the importance of the national reporting and learning system and made clear that he thought that the responsibility should be placed under the regulator. I wonder if that is not a sensible suggestion. I do not think it is at all satisfactory that it remains with NHS England.
Amendment 73B, my second, comes back to the current debate about safety and quality in the NHS. One thing that has become clear from Mid Staffordshire is that, in its urgency to get foundation trust status, the board was prepared to squeeze the staffing numbers. That was surely one of the main contributors to the poor quality of care. I do not think we can run away from the fact that there is a direct relationship between the number of clinical staff treating patients and the quality of care. Interestingly, Mr Francis, in one of his earlier recommendations, said:
“The National Institute for Health and Clinical Excellence should be commissioned to formulate standard procedures and practice designed to provide the practical means of compliance, and indicators by which compliance with both fundamental and enhanced standards can be measured”.
He went on to say:
“The standard procedures and practice should include evidence-based tools for establishing what each service is likely to require as
a minimum in terms of staff numbers and skill mix. This should include nursing staff on wards, as well as clinical staff”.
Are the Government going to ask NICE to be commissioned to undertake that work? If they are, the Care Quality Commission clearly needs to take that into account when it monitors, visits and inspects NHS organisations and, indeed, other organisations for which it is responsible.
I am not holding a candle for rigid staff to patient ratios on every ward in the country being set at a national level, which is why I am attracted rather more to Robert Francis’s concept of benchmarking. However, I have no doubt that he is right to want to try to safeguard quality by making sure that enough staff are available in clinical areas. We cannot escape from this. Given the financial constraints on the NHS, there has to be some protection when it comes to staff numbers, and the Francis report offers us a rather sensible way through on this. I beg to move.