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Nhs (Freedom Of Speech)

Volume 300: debated on Wednesday 5 November 1997

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Motion made, and Question proposed, That this House do now adjourn.— [Jane Kennedy.]

6.45 pm

This is an extremely important subject. When I saw the statement by the Minister of State, Department of Health, my hon. Friend the Member for Darlington (Mr. Milburn) on 25 September, committing himself and the new Labour Government to protecting the freedom of speech in the national health service, I felt that an important step had been taken. My hon. Friend made it clear that the issue could not be disconnected from an overall concern for openness and accountability in the conduct of public services, or from considerations about how NHS staff carried out their work, and the circumstances and constraints of their work.

In making that important commitment, the Government were also making it clear that they understood that questions of freedom of speech could not be disconnected from questions of practice, conduct and behaviour. Questions of freedom of speech could not, therefore, be disconnected from some of the unfortunate uncertainties of what constitute good practice and good conduct, as the case that I bring to the House's attention today illustrates all too clearly.

As I speak today, I bear in mind the words of Professor Liam Donaldson, now chief executive of the NHS regional executive in the Northern and Yorkshire region, who pointed out clearly some of the dilemmas facing doctors and medical staff when they seek to exercise their freedom of speech. He said:
"On many occasions I was told by those making the referral"—
or a complaint
"of their reluctance to report problems because they thought that nothing could or would be done, or because of the tendency in such cases for early involvement of defence societies and their lawyers. Moreover, whereas doctors' colleagues were often willing to report concerns confidentially and informally they were extremely reluctant to go on the record. Some considered that this would amount to disloyalty; others feared giving evidence in a hearing or believed that defamation actions would be launched against them."
Those, of course, are precisely the dilemmas faced by doctors in seeking to exercise their freedom of speech—which the Government rightly wish to defend—in the context of their practice.

This debate—which is less limited than I had envisaged—is about how doctors work and the standards to which they work. It involves the way in which doctors work with each other and the trust that patients place in them. Such trust is fundamental. The abuse of that trust, no matter how rarely it occurs, is always to be taken seriously. The principle of informed consent stands as a protection both for doctors and for their patients. It is to seek openness and accountability in the exercise of the principle of informed consent that I speak today.

My dilemma is that on the same day that my hon. Friend the Minister was issuing his statement, my constituent Mr. Sinha, a consultant gynaecological oncologist—a cancer specialist—at Gateshead's Queen Elizabeth hospital was issued with an instruction by the chief executive of that hospital in the following terms:
"I must instruct you that you must not under any circumstances discuss issues regarding the GMC and"—
a consultant is named—
"with any patient."
That is an instruction without any condition or qualification.

Were my constituent Mr. Sinha to accept that instruction, he would be in breach of his duties under the British Medical Association guidance to doctors. I have on two occasions asked the chief executive of the Gateshead hospitals trust to explain what legal or contractual authority could possibly give rise to an instruction in such sweeping terms. I am still waiting for an answer.

Today's debate, therefore, is about freedom of speech. Let us not confuse freedom of speech with whistleblowing. A whistleblower can leak and can spin. A person seeking to exercise his freedom of speech does neither. Such a person doggedly pursue his rights, responsibilities and duties through the procedures and under the guidance that he comes across, in trying to carry out his duty as he sees it. Such people may be awkward, persistent, inconvenient and sometimes difficult to handle, but that is the nature of those who pursue freedom of speech. Those who seek to leak and to spin are under no such limitations.

I am in a peculiar position tonight, as there has been a great deal of press speculation and, I understand, a press release this afternoon from the NHS regional executive, which speculates about this debate. In the light of that press speculation—although I admit that I do not have the precise text of the NHS executive press release, as the executive did not elect to send it to me—I am forced to name the doctors and the hospital involved.

There are, in my view, matters that need further inquiry, but I shall contain those matters and any concerns that may arise from them within the narrowest grounds. For that reason, and that reason alone, I am obliged to name the two consultants concerned and the hospital.

My constituent Mr. Sinha is a consultant gynaecologist at Gateshead's Queen Elizabeth hospital. That hospital is a regional specialist centre for gynaecological cancer. Until the hospital trust was set up, it was run by the regional health authority.

My constituent has approached me under the terms of circular EL/93/51, which my hon. Friend the Minister put at the heart of his statement on 25 September, and correctly so. I make it clear to the House that my constituent has, in my view, rigorously, scrupulously and at all times in his dealings with me observed the terms of circular EL/93/51.

The length of time that it takes to pursue issues is a major limitation on the exercise of freedom of speech. Almost 10 years ago, my constituent, Mr. Sinha, first made known to the regional health authority—at that time, his employer—his concerns about the practices of a fellow consultant, Mr. John Monaghan. The response of the regional health authority at that time was to treat the issue as a matter of personal or perhaps professional politics. I use the term "politics" not in the sense in which we use it in the Chamber, but to mean the conduct of affairs.

After two years, the regional health authority carried out an inquiry into those matters. The results of that inquiry led to recommendations, one of which was that Mr. Monaghan should cease reporting his own pathology as a gynaecological expert. That was put into force in 1991. The other recommendation—that there should be central records and file keeping in that unit—was not put into force.

From that point, a remarkable set of arrangements has existed in the unit, which was put into place by Professor Donaldson and the regional health authority. I say that the arrangements are remarkable; I hope that they are also unique and that they will not continue much longer. Part of my purpose in raising the matter today is to ensure that those extraordinary arrangements are brought to an end at the earliest opportunity.

The arrangements involve the department being effectively split between my constituent Mr. Sinha and Mr. John Monaghan—there was at that stage no third consultant—with each consultant being responsible for his own case notes. One set of notes was held in the hospital's central records, and the other was not. It was an extraordinary arrangement. It was full of risks to good, sound patient care. Those risks exist because of the need to consult records, potentially on a daily basis.

That arrangement was put into place by the then regional health authority and it still exists. It served only to institutionalise, not to resolve, the distrust and conflict that gave rise to it.

Professor Donaldson has written in articles about the difficulties of resolving disputes between doctors and the necessity to act decisively and to see matters through to a conclusion. The arrangements that were set in place in Gateshead's Queen Elizabeth hospital could not conceivably be described in those terms and gave rise to constant difficulty which put patient care at risk.

I should note also that my constituent Mr. Sinha had raised with the regional health authority—his employer—an incident of physical conflict in an operating theatre. Professor Donaldson asked my constituent in writing not to refer that incident to the inquiry that was then going on and assured him that it would be the subject of a separate inquiry. That has not occurred. I hope that when the Minister investigates these difficult matters—as I hope that he will—he will address the possibility of racism. That should give rise to considerable concern.

My constituent persisted with the substance of his inquiries, but it was a further four years before they were investigated by an outside party, Mr. Michael Brudenell. Mr. Brudenell's report on the complaints made resulted in the following rather uncertain conclusion. He wrote:
"My own feeling is that there is not a prime facie case against Mr. Monaghan although he clearly chose to ignore accepted practice in the management of Mrs. A and Mrs. B."
He continued:
"I cannot find any evidence in the notes that Mrs. B had a preliminary biopsy although your letter"—
he wrote to the regional medical director, Dr. Hill—
"implies that she had."
He went on:
"Accepted practice is hard to define precisely and I suspect that if the complaint was argued out in the disciplinary hearing, experts would be found who would think that Mr. Monaghan was justified in acting as he did."
He then referred to the possibility of adverse publicity.

The fact that Mr. Monaghan chose twice to ignore accepted practice in the management of patients is serious. As a result of that disregard of accepted practice, two women underwent radical vulvectomies—in one case with dissection of the groin nodes and in the other with deep node dissection. Those are very serious and radical surgical procedures.

In making his conclusions known, Mr. Brudenell gave consideration to adverse publicity. I am not convinced—I invite the Minister to consider the matter carefully—that adverse publicity is a proper consideration in such matters. However, I note that, at precisely the same time as this matter was under report, the trust and the unit were associated with adverse publicity regarding a problem with cervical cancer screening.

This involved a local GP's method of taking cervical smears—I hope that it was an entirely novel technique which will never be repeated—which was supported by Mr. Monaghan. I discovered this while pursuing the concerns of some female constituents.

The ultimate report turned up an extraordinary letter written by Mr. Monaghan and addressed to "To whom it may concern". In that letter, Mr. Monaghan endorsed the high quality of the practice, and said:
the GP whom I do not propose to name—
"does not routinely use a speculum"—
to carry out cervical smears—
"as he finds that many of his patients being lower socio economic group object."
That was a "To whom it may concern" letter. There was no doubt about Mr. Monaghan's endorsement of the practice on the basis that some patients were from a lower socio-economic group. That would appear prime facie to be a breach of the guidance to doctors that their practice must at no time be guided by issues such as the socio-economic group of the patients they treat. It is a matter of record that the issue was put before the General Medical Council, and we are still waiting for a resolution. The Brudenell report also states:
"if the complaint were argued out in the disciplinary hearing, experts would be found who would think that Mr. Monaghan was justified".
I was astonished to read that conclusion. If a doctor "chose"—that is the word used in the Brudenell report's conclusions—to ignore accepted practice, how could other people be found to endorse his actions? It is here that we come up against one of the real difficulties faced by those who seek to exercise freedom of speech in the NHS: when they try to exercise that freedom, they discover that the ground rules that they thought they were following are very insecurely based, and they are therefore left vulnerable to attack.

I find extraordinary the claim that others might be found to endorse this inadequate practice. I pursued the matter with the Royal College of Obstetricians and Gynaecologists. My correspondence began with Mr. Geoffrey Chamberlain and, fortunately, moved on rapidly to Mr. K. R. Peel, the then senior vice-president of the college. In his letter to me, he wrote:
"I have today checked on a number of standard texts which deal with the subject and the titles of which are listed below. All clearly state that vulval cancer should be confirmed by biopsy prior to surgical treatment. Whilst the College Council have not discussed this topic, on a personal basis I would not do a radical vulvectomy and groin node dissection operation without histological confirmation of the cancer."

Subsequently, the council of the Royal College of Obstetricians and Gynaecologists was not willing to go quite that far. I have persisted with my inquiries with the college, as has my constituent Mr. Sinha, as one of its members, seeking to discover in what circumstances there could be exceptions to such guidance. No clear explanation has ever been given, but the college wants that option. The House can imagine my utter astonishment when I discovered that one of the sources who says that in all circumstances biopsy procedures should be carried out was none other than Mr. Monaghan himself. What are we to make of that? He writes articles in which he says that particular procedures are required and then in his own practice chooses to ignore them.

These are very serious matters. As a result of my subsequent correspondence with the regional health authority, I have very good grounds for believing that Mr. Sinha's concerns were well founded. There has been a serious breach of good practice. That cannot be disputed. The possibility exists that both women were damaged and subsequently deceived. The regional health authority was never able to assure me that either of them had conditions that warranted their undergoing the very serious procedures that were carried out by Mr. Monaghan.

By September 1994, these two cases, with others, had reached the General Medical Council. Once the procedures were exhausted with the regional health authority, my constituent moved immediately and correctly to place this matter before the GMC, but it was not until April 1997—nearly 10 years after these matters had first been raised with the regional health authority—that the GMC reached any conclusion. Then it chose to investigate just one of the two cases. It chose not to investigate a variety of other cases that were placed before it by Mr. Sinha where alteration of case notes was involved.

This is an important issue. How much, before and after their procedures, did these two women know about what had happened to them? The GMC has maintained throughout that informed consent, which is the benchmark protection for patients and doctors, is not a matter for it, and that it is a matter for legal procedure; but there is no law on informed consent. The legal procedures involve, perhaps, the police, perhaps charges of criminal assault. These are very serious and extreme measures. They are not measures which a doctor carrying out his work will readily or properly wish to explore, although he may have them as an ultimate option.

The GMC maintains that informed consent, which lay at the heart of this, was not something which it could investigate. If the women do not know what has happened to them, their ability to make their own inquiries and engage in whatever course of action seems correct to them and their relatives under the circumstances does not exist. The GMC chose to consider just one case—in which the patient has died—but what of the woman who is still alive? The GMC said that it could not come between the woman and her consultant, Mr. Monaghan. That was a further serious indication to me that the patient had not been informed and that she may well have been entirely ignorant of the damage that could have been done to her.

For me, there is now an additional complication in all this; an extraordinary twist in the affair that wholly breaches all the guidance and procedures and is an extraordinary act of negligence on behalf of Dr. Hill of the regional health authority. In the course of our correspondence, meetings and exchanges, he made available to me in writing—I did not request it, and I would far rather be here tonight not knowing—the name of the patient who is still alive. That should never have been disclosed. That—if only that—should become a matter of serious inquiry. In revealing the name to me, Dr. Hill has made my position tonight almost impossible and untenable, as it has been for many months.

The situation is, then, that two women have not been operated on according to good practice. There is the likelihood of severe after effects from the procedures that were carried out. It appears, from the conclusions of the GMC, that no one other than Mr. Monaghan himself had the right or duty to tell the women. These are extraordinary affairs. The GMC decided, on the basis of the one case that it examined, to offer guidance to Mr. Monaghan on his future practice and to seek clarification from him about what the nature of his practice would be. Clearly that was sensible. My constituent Mr. Sinha has been vindicated. The GMC had, in effect, held up a yellow card, as it offered advice on future conduct.

However, the number of inquiries and the extraordinary length of time involved have seriously compromised my constituent's position. As far as I know, the situation that existed at the hospital still exists at this moment—he has no access to Mr. Monaghan's files; nor Mr. Monaghan to his. It is extraordinary that a doctor can be required to offer cover for another doctor without there being a central filing system to which all those who are properly entitled have access.

My constituent has been subjected to disciplinary procedures. We now come to the last difficulty about freedom of speech in the NHS—the nature of the NHS's internal procedures under the guidance issued by the previous Government, HC90(9). Under those procedures, there is an entirely inadequate distinction between professional and personal conduct. The lack of clarity about what is personal and what is professional seriously undermines the ability of people, such as my constituent Mr. Sinha, to speak out. The present situation is that using the disciplinary procedure on the basis of personal misconduct means that there can be summary dismissal. In that event, there is no recourse to the Secretary of State.

Personal misconduct, as defined by Professor Donaldson—the professor's explanations, which we constantly come across, cover this point, too—can relate only to a limited number of acts such as sexual harassment, fraud and false expenses claims. There can be no doubt that the charges against my constituent Mr. Sinha, brought against him by the trust—relating to an extraordinary working environment that was laid in place by the regional health authority—do not fall into that category.

There is a need to review the procedures so that we are clearer about what is properly personal and what is properly professional. We need to find a method of adjudicating clearly at an early stage in all proceedings the nature of the particular matter that is under investigation.

The matters that I have described are complex and, in a sense, individual, but they raise some general and fundamental questions that are important for the House. I ask my hon. Friend the Minister to seek to get the General Medical Council to clarify the issues involved in informed consent. The GMC is moving on from the position that it struck when dealing with my constituent precisely to begin considering the issue of informed consent. I invite my hon. Friend to go further and to encourage it to go further and lay down some guidelines so that, in future, people faced with problems such as those confronting Mr. Sinha do not face similar uncertainty about the procedures involved.

I ask my hon. Friend the Minister also to review the dismissal procedures that the previous Government put in force, so as to safeguard rights being exercised in the specific context that I have described—against instructions such as the one with which Mr. Sinha is faced, which lead to a command of total silence on a range of subjects that he has been pursuing for many years. Rights in those circumstances should be safeguarded.

I ask my hon. Friend also to provide some guidance on a patient's right to know in matters where consent to treatment is given or could be given without his or her being made fully aware of what is involved in the absence of the necessary confirming procedures, prior to the patient being invited to undergo radical courses of surgical treatment.

I invite the Minister to set up an inquiry into the management and practice of the gynaecology department of the Queen Elizabeth hospital at Gateshead to review its present organisation and practices and to review past cases to ensure that the highest standards that are associated with the department's historic links to Sir Stanley Way, a major pioneer in the treatment of women, are continued and maintained. As a matter of urgency, a central record system should be established that does not put patient care at risk in the way that the present articulated system of record keeping does.

I apologise to the House for taking so much time over this matter, but it is one which I have wrestled with for some time. The Government's existence is a proud matter for all of us who sit on the Government Benches; freedom of speech in these circumstances, even when one is being difficult or might be represented as being difficult, is seriously put to the test. The accountability, transparency and honesty which freedom of speech involves are matters to which my hon. Friend the Minister referred in his statement of 25 September, which is a benchmark of progress and good practice in these matters. I hope that my hon. Friend will agree that the Government are committed to examining the possibility of malpractice and of seeking the highest possible standards that patients—in this instance, women—are entitled to expect. If only two women are involved, that is two women too many.

My constituent Mr. Sinha, in raising these issues—awkward, difficult, complex and fundamental though they are—has always adopted formal procedures in dealing with professional bodies. He has persistently raised them with regulatory bodies. He has never dealt with the media. He has never engaged in leaking or spinning. The issues that he has pursued for so many years, however awkward and inconvenient he may sometimes have appeared to be, were raised in the course of his duty as a doctor, in a direction and to a direction that we would expect those with the care of ourselves to observe.

7.27 pm

I congratulate my hon. Friend the Member for Newcastle upon Tyne, Central (Mr. Cousins) on securing the debate. He has raised some extremely important issues about freedom of speech within the national health service in the context of particular and serious concerns in the area that he represents. I shall address these issues immediately and state unequivocally the Government's support for freedom of speech within the NHS. I hope that the House will understand that I cannot discuss confidential clinical decisions relating to individual patients or detailed individual decisions affecting the employment of NHS staff. It would not be right or proper for me to do so.

The specific issues that my hon. Friend has raised in relation to Gateshead have a long history and are highly complex. The fact that they have not been satisfactorily resolved is clearly a matter of concern. It would not be right for me, however, to deal with the rights and wrongs of individual cases here and now. Such matters warrant proper investigation. If my hon. Friend writes to me setting out the details of his concerns, I shall look into them and ensure that he receives the fullest possible reply. I hope that this approach will provide my hon. Friend with the reassurance that he needs.

The Minister of State, Home Office, my hon. Friend the Member for Gateshead, East and Washington, West (Ms Quin), in whose constituency the hospital lies, is unable to be in the Chamber this evening because of ministerial business. However, she takes a keen interest in the Queen Elizabeth hospital, which enjoys the active support of her constituency. I am able to give my hon. Friend the Member for Newcastle upon Tyne, Central the assurance that we are actively considering what further guidance on disciplinary procedures is needed to supplement HC(90)9. As he is aware, the current arrangements were introduced by the previous Government, even before the advent of NHS trusts. At its simplest, some of the advice refers to grades that no longer exist.

My hon. Friend also pointed to difficulties in the law on consent. A particular difficulty may be that, although the expression is in common use, the often-quoted concept of "informed consent" does not exist in the law of England. The courts remain the ultimate arbiters of what constitutes consent.

It is important that patients give valid consent or refusal. To be valid, consent must be based on sufficient information to enable the patient to make a decision, and must be freely given. In general, all adult patients have the right under common law to give or withhold consent prior to medical examination or treatment. They are entitled to receive sufficient information, in a form that they can understand, to help them to make a decision.

The NHS Executive issued guidance in 1990: "A guide to consent for examination or treatment". That guidance makes it clear what the patient's rights are, what the duties of the doctor or other health professionals are, and how consent should be obtained. A doctor treating a patient without obtaining valid consent may be liable to a charge of assault.

I want to make it absolutely clear that there can be no justification for an employer penalising staff who speak out about genuine concerns. That is why we have outlawed in NHS contracts gagging clauses that are intended to conceal from legitimate public scrutiny information that the public have every right to know. I have done that in advance of the wider statutory protection in the Public Interest Disclosure Bill, because I believe that unless NHS staff have the right to speak their mind, patients will never get the health services that they need. These measures clearly outlaw any attempt by any NHS employer to impose contractual codes of silence on their staff to protect wrongdoing.

The NHS chief executive has also assured the Public Accounts Committee that such clauses have no place in the NHS. Perhaps nowhere in our public service is the freedom for staff to speak out more important than it is in the health service, which, with its almost 1 million staff, is the largest employer in Europe, and in which almost all of us place our trust at some point in our lives. In an organisation of that size, complexity and importance, genuine staff concerns arise. Because so many of us place so much faith and trust in the service, it is critical that such concerns are properly and thoroughly addressed.

Monday's statement by my right hon. Friend the Secretary of State for Health on breast screening services at the Royal Devon and Exeter trust, and cervical screening services at the Kent and Canterbury hospital trust, was a salutary reminder of what can happen when poor practice is not adequately challenged and exposed. Behind a wall of silence bad practice thrives. Minor problems fester and grow. Those who suffer when bad practice remains concealed are the patients who use services, the public who pay for them, the staff who have to tolerate the intolerable at work, and, let us not forget, the employer who will, at the very least, suffer waste and inefficiency.

For that reason, staff must be readily able to raise issues with their line managers and, where necessary, with the most senior levels of their organisations directly and, on occasions, publicly. Staff have sometimes raised issues in public and, in so doing, have provided an important safeguard for the public. It is essential that they act professionally and responsibly. Local management arrangements should be in place so that staff can raise concerns privately before that is ever an issue.

As my hon. Friend rightly said, I reinforced the five messages that are contained in the current guidance to the NHS on relations with the public and media when I wrote to chairs of NHS trusts and health authorities on 25 September. First, the NHS exists to meet the needs of patients, which must be paramount. Individual members of staff have a right and a duty to raise with their employer any concerns that they may have about the delivery of care or health services to a patient or client in their authority, trust or unit. If patients or clients are detained under the Mental Health Act 1983, staff may also raise concerns with the Mental Health Act Commission.

Secondly, every manager in the NHS has a duty to ensure that staff are easily able to express their concerns through all levels of management to the employing authority or trust. Managers must ensure that any staff concerns are dealt with thoroughly and fairly. Thirdly, NHS employers should ensure that local policies and procedures are introduced to allow those rights and duties to be fully and properly met.

Fourthly, staff in the NHS have an obligation to safeguard all confidential information, particularly about individual patients or clients. Such information is, under all circumstances, strictly confidential, even if staff believe that disclosure is in the patient's interest.

Fifthly, under no circumstances will employees who express their views in accordance with this existing guidance be penalised for doing so. That does not justify disclosure that is not in the public interest. For example, malicious or frivolous disclosure is never justified. The guidance is clear that if, having exhausted local procedures, including reference to the chair of the employing body, employees are contemplating public disclosure, they are advised to seek professional advice to ensure that there is a soundly based case that disclosure is in the public interest.

The new guidance that I have issued to NHS employers enshrines freedom of speech for health service staff. They should be able to raise issues of concern in a responsible manner, without compromising patient confidentiality and without fear of victimisation.

Similarly, I have told NHS employers that racism has no part to play in a modern national health service. My hon. Friend alluded to allegations of racism surrounding this sorry case. I told health care human resource managers in September that I want them to identify racism wherever it is and act to stamp it out. Staff must know that they will be vigorously supported if they are discriminated against, and those who practise racism in the national health service must learn to expect zero tolerance.

More generally, as my hon Friend may know, the Government support the Public Interest Disclosure Bill presented by the hon. Member for Aldridge-Brownhills (Mr. Shepherd), which would protect those who express genuine concerns about victimisation. The Government are also committed to a freedom of information Act, which was a key manifesto pledge and is central to our programme to modernise and reform government. It will bring about a sea change, so that, instead of public bodies having the final say on what information is provided, people will have a statutory right to information. I hope that my hon. Friend agrees that that is an important shift in the relationship between government and governed. It is long overdue in a mature democracy.

My hon. Friend has raised a welter of serious concerns. I promise that I shall investigate them thoroughly. I have taken note of what he said, but I will examine the record closely. I repeat to my hon. Friend the invitation to write to me with further concerns, if he has them, and I give him an assurance that there will be a full and detailed investigation and a full and detailed reply to the anxieties that he has expressed.

More generally, as my hon. Friend knows, Government bodies are answerable to the House for the proper use of their resources and the way in which they conduct themselves. It is intolerable that bad practice should continue. The Government are committed to ensuring that NHS staff have the mechanisms to identify and question bad practice and that, where necessary, they also have the right to raise issues such as this publicly, without victimisation. That right should be incorporated in law. We are also committed to exposing issues of concern by ensuring that both health authority and hospital trust board meetings take place in public and by ensuring that the current codes of practice on openness are replaced by a statutory right to information.

It would be wrong to pretend that bad practice can ever be completely eliminated in any large organisation, but I believe that maximum exposure of the workings of the NHS to public scrutiny is the key to identifying and overcoming the problems that sometimes arise.

Question put and agreed to.

Adjourned accordingly at nineteen minutes to Eight o'clock.