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Care Bill [HL]

Volume 745: debated on Wednesday 12 June 2013

Committee (3rd Day) (Continued)

Clause 79 : Unitary board

Amendment 73

Moved by

73: Clause 79, page 66, line 13, at end insert—

“( ) a Chief Inspector of Hospitals,“( ) a Chief Primary and Community Care Inspector,”

My Lords, I have put down this amendment to explore briefly the Government’s thinking on the appointments set out in the amendment. As has already been said, I am sure we are all delighted that Professor Sir Mike Richards has been appointed Chief Inspector of Hospitals. I was doubtful about the practicality of this post but if anybody can make a success of it, I think Mike Richards can. Why did the Government not make this a statutory post? Is it because they see it as a time-limited appointment?

The second part of the amendment explores a slightly wider issue. I know that the post of Chief Inspector of Social Care has been advertised but does the Minister think that the post has been too narrowly drawn and represents a bit of a missed opportunity? I know from remarks he has made at events I have been at that the Health Secretary has considered whether there should be a chief inspector of primary care, which I am sure has strengthened his relationship with GPs. For my part, poking around in some of the murkier corners of primary care and trying to strengthen it would be no bad thing.

However, the wider system problem we face in the NHS is the weakness of the combined set of non-hospital services and their integration with social care. That weakness is now leading to moves in some places for acute hospitals to think of themselves as the base for community-based services. I suspect that is a development we will regret in the longer term, particularly if those services end up bearing a disproportionately high amount of the overhead costs of acute hospitals. Can the Minister say a little more about whether the Government are considering appointing a chief inspector of primary care and whether further consideration could be given to widening the brief of the Chief Inspector of Social Care to embrace community health services and possibly primary care? I beg to move.

My Lords, my noble friend’s amendment is very penetrating. Under this clause the Secretary of State will appoint only the chair and other non-executive members while the CQC appoints its own executive members, including the chief executive. I draw the noble Earl’s attention to our debate on day one of Committee when we discussed the governance of Health Education England and the Health Research Authority. I still fail to understand why the Secretary of State has to approve the appointment of the chief executive of those bodies when he does not in relation to the CQC. I take from it that HEE and HRA are less independent than the CQC. It would be interesting to know whether he can confirm that.

I thought my noble friend made a very powerful point about the appointment of a chief inspector. I endorse his remarks about the appointment of Mike Richards. He commands great respect, but I wonder why it is not in the Bill. It seems to me that the relationship between the chief inspectors and the chief executive and the board of the CQC is going to be a delicate one. Once you nominate somebody as chief inspector the implication is that they are independent in their job. My experience when I was at the DWP and responsible for the Health and Safety Executive is that it had some chief inspectors. There was the equivalent of the Nuclear Installations Inspectorate, although that has now gone, and the Chief Inspector of Construction. It was felt necessary in some of the most important sectors to have a figurehead. My understanding was that when it came to issues to do with the regulatory function they were independent and could not be second-guessed by the board. The relationship between the chief inspectors and the board is very important. I wonder whether the noble Earl’s department is storing up trouble for the future by not making them statutory post-holders so that it is absolutely clear in legislation what their responsibility is. I can see problems arising in future on this.

This issue about putting primary and community healthcare together will also be very important. The breakdown in the NHS over the past few months has been a breakdown in integration between different parts of the service. Putting primary and community care together would be very helpful.

I support the amendment and in particular the argument for the chief primary and community care inspector. Many of us who operate within the service—even people who use it—know that often the weakness has been in the delivery of primary care. We talked earlier about reconfiguration. The only way that that would be successful is if we had better primary care facilities and care that people could access nearer to home—all aspirations that the Government have. I strongly support having that watchful eye on making sure that primary care works effectively.

My Lords, I thank noble Lords for their contributions to this mini-debate on Amendment 73. We are sympathetic to the view behind this amendment —or what seems to lie behind it—which seeks to ensure that the new chief inspectors will be given a place on the board of the CQC. I echo here the praise of the noble Lord, Lord Warner, for Professor Mike Richards. I know that the professor’s cancer colleagues will miss him in that field.

Noble Lords are absolutely right about the importance of improving quality and in particular of trying to drive up quality within primary care. The Secretary of State announced the appointment of a Chief Inspector of Hospitals as part of the Government’s response to the Francis review into Mid Staffs. As has been referred to, since that time the Government have also announced the positions of a Chief Inspector of Social Care and a Chief Inspector of General Practice. These three chief inspectors will sit within the CQC and lead for it on the inspection and regulation of all registered providers of health and adult social care. They will be high-profile positions—as the appointment of Mike Richards demonstrates—and will speak for the CQC on the quality of care that they find. As such, it is likely, as noble Lords have indicated, that they will have a lot to offer the CQC board in knowledge, experience and leadership.

The noble Lord, Lord Warner, asked about the areas that the Chief Inspector of General Practice might cover and whether the post might be drawn more widely. In some ways, that rather bears out my point: setting this in stone in statute may not be the best way to make everything link up so that the new positions work as effectively as possible. The CQC needs to move this forward so that it can best drive up quality. It will be for the CQC to determine the exact remit of each of the chief inspectors. All providers of registered health and adult care services will fall within one of the chief inspectors’ remits. Perhaps that will reassure the noble Lords, Lord Warner and Lord Hunt. The CQC is working up detailed proposals. No doubt it will pay attention to what noble Lords have said. Broadly, the Chief Inspector of Hospitals will cover acute trusts, including mental health trusts; the Chief Inspector of Social Care will cover providers of regulated adult social care, including care homes and domiciliary care agencies; and the Chief Inspector of General Practice will cover GP and dental practices as well as walk-in centres, private healthcare and independent ambulance providers. Clearly, the CQC will look at how it gets comprehensive coverage.

We have deliberately avoided requiring that these inspectors should have a seat on the board for two reasons. First, the aim of Clause 79 is to give the CQC more autonomy in determining which executive members sit on its board. This is in line with best practice, as no doubt noble Lords will recognise. We would not wish to remove this new autonomy by requiring that any executive, other than the chief executive, must sit on the board. Secondly, we have designed the chief inspector roles to be non-statutory. They are internal to the CQC, and the CQC will have the power to design, shape and adapt the roles in a way that best enables their operational effectiveness. I hope that that helps to reassure the noble Lord, Lord Warner.

I am very grateful to the noble Baroness. Does that mean that at the end of the day the chief executive of the CQC can overrule the chief inspectors? That must be the implication of what she said.

Perhaps I could carry on. I will come back to that in a minute.

Setting these roles as non-statutory clearly gives the CQC important flexibility to design them to fit their method of regulation in the fast-developing field of health and social care, without the constraints of prescribing the functions of the chief inspectors in statute. As these roles are not mentioned in the legislation, it would not be appropriate to require in legislation that they should have a seat on the board. Having said that, discussions with the CQC chair and chief executive showed them to share the view that chief inspectors will have much to offer the board. Their preference, subject to appropriate board approval, is that when practicable these executives should be appointed to the board. Given the intended importance of these roles, we fully agree with that. In advance of the new legislation coming into operation, I can confirm that the Secretary of State would consider using his current powers to appoint the three inspectors to the board if that was requested by the present CQC chair and chief executive.

The noble Lord, Lord Hunt, asked about Health Education England and the HRA. These will be established as unitary boards, which is to say that they consist of both executive and non-executive members. I can clarify that the chief inspectors are accountable to the chief executive and to the CQC’s board. They will speak for the CQC on their findings when they inspect providers. Having clarified these areas and reassured noble Lords about the significance of these roles and the need for flexibility, I hope the noble Lord will be content to withdraw his amendment.

Clearly the noble Baroness has clarified matters, but whether she has reassured me is another question. I think the Government underestimate the profile of the Chief Inspector of Hospitals in particular. There is no doubt that this will be a very powerful and important post with an enormous profile. The idea that this person can be overruled by the chief executive and the board, as this legislation sets out, poses a problem I certainly want to think more about.

I also think that there is a gap here. Community health services are not clearly in anybody’s remit. I am sure my noble friend Lord Hunt would agree that if we were to identify one black hole where there is not a great deal of data on performance and quality, it would be community health services. It is an area that has not been probed well by independent inspection, and as far as I can see the game plan is to have no inspector looking into that area. Given everybody’s concern about integration, it seems a bit of a missed opportunity for there not to be some linking up there.

I want to consider this much further. It would be helpful if Ministers sent the Committee the job description for the three inspectors they propose. In my experience, it is rather difficult to appoint anyone to anything without a job description. It would be very helpful to our deliberations to have that before Report.

It seems to me that unless this is sorted out there will be problems in the future, notwithstanding the calibre of the current leadership of the CQC, which I readily acknowledge. If the chief inspector does not have total operational independence when acting as chief inspector, I see a recipe for potential trouble. We will not reach Report until October, so there is plenty of time. My noble friend and I would be very interested to have at least some discussion about how the CQC will avoid the kind of conflicts that clearly we would rather not have, if at all possible.

I am very happy to take back to the department the request for further descriptions of the jobs in these cases. We should also bear in mind that the aims of these chief inspectors, as part of the CQC, are to maintain safety and effectiveness and drive up quality. They have shared aims; it is not as if they have different ambitions in this regard.

That is extremely helpful, but my noble friend is absolutely right. Bearing in mind our earlier discussion about warning notices and enforcement, in reality what the chief hospital inspector says in many cases is what will determine whether the CQC goes ahead with a warning notice, which might trigger trust special administration. That is a really powerful position in the public arena. I would welcome, with my noble friend, a discussion with Ministers about this, but in the mean time I beg leave to withdraw the amendment.

Amendment 73 withdrawn.

Clause 79 agreed.

Amendment 73A

Moved by

73A*: After Clause 79, insert the following new Clause—

“National Reporting and Learning System

The National Reporting and Learning System shall come under the control of the Care Quality Commission.”

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.

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.

My Lords, this is a very interesting group of amendments. I will initially address the amendment relating to staffing requirements. I declare an interest, having been involved with Gwent Police at the beginning of its Operation Jasmine investigation into nursing homes. It became evident there that the staffing levels in nursing homes—which were owned privately by a GP at the time—fell to such a level that the care was non-existent. What was happening was absolutely appalling. I urge the Government to ask NICE to look at this and come up with some guidance. The biggest problem may well be outside of the hospitals, in the nursing home and care sector. It is not only the staffing levels and the skill mix but about how staff are expected to behave, what they are expected to do and their taking on broader responsibilities for the care of patients. I am not sure whether the wording is right for the Bill itself, but it might be helpful for NICE to come up with some guidance that CQC could use for benchmarking.

It is important that we look at the organisational duty of candour and are cautious so that it cannot simply get focused down and pinned on the individual. The Government have done a great deal of work already, as has the General Medical Council, on the duty of candour of doctors towards patients when something has gone wrong. Sadly, however, the medical defence unions have all found that doctors, by and large—two-thirds of doctors have reported this—are working in what they feel is a blame-and-shame culture in which it becomes increasingly difficult to report errors, and 70% of them report that they do not feel supported when they report errors. However, there is an undoubted need for there to be a duty of candour to patients when something has gone wrong.

One of the clinical difficulties that arise is that in very complex situations, however well a team functions, things sometimes do not go the way you expect them to. It is important to be able to differentiate that situation from one in which somebody has done something wrong, which has resulted in harm to a patient. Therefore, I have a slight worry about whether perverse outcomes might occur that could increase that fear of blame and shame. However, it is important to emphasise that since April this year there is a contractual duty on organisations providing care that advises that doctors should tell patients when something has gone wrong. That has been a major culture shift for many, but patients are, in fact, very receptive to being told when something has gone wrong. I have done it myself with the team, and the other, non-medical members of staff were astonished at how welcoming the patient and their relatives were to being told that something had gone wrong and what we were doing about it. There is also already the ability to impose fines, with the recovery of up to £10,000 from the provider and criminal prosecution for significant or recurrent breaches of the duty of care, and, of course, if an individual professional has failed to be candid about an error, they should be referred for impaired fitness to practice and potential suspension or erasure from the professional register, whether it is a doctor or a nurse.

I will give a quick clinical example of where the situation could get complicated. Take a patient who is prescribed a drug such as methotrexate and is to be monitored regularly by the GP. The GP asks the receptionist to put a flag on the system, but the receptionist forgets to do it. The patient carries on taking the methotrexate, becomes neutropenic—has bone marrow failure—is admitted to hospital and is septic. The patient recovers from that, and in hospital is told exactly what has happened. When the patient leaves hospital, understandably very angry, and goes straight round to the GP, the GP has not yet received the discharge letter and finds it difficult to understand what has happened, and there have been delays in the system so that the discharge letter was delayed in getting to the GP.

That is the kind of catalogue within a whole team of lots of people not quite doing it right, and it becomes very difficult to pin the blame on someone, although undoubtedly an error occurred. That is why I support the duty of candour on an organisation, but we have to be careful that we do not end up creating such a culture of fear and blame that other parts of the organisation get scapegoated and blamed, rather than there being corporate ownership for what has gone on.

One of my other concerns about Amendment 76B is in the first part of the amendment, about being,

“honest, open and truthful in all their dealing with patients and the public”.

I would like to be assured, by those who tabled the amendment, that there is no conflict with the requirement for confidentiality in terms of what you are told by a patient. I could see a clinical situation in which information held by a patient might have made their care more difficult. It might have been disclosed to only one healthcare professional, and the patient may have said that it was not to be disclosed to anybody else. Therefore there are complexities behind this, so that enforcing it in law and imposing sanctions and penalties might become difficult.

My Lords, I shall speak to Amendment 77 standing in my name. I have taken a slight different approach from that of my noble friend, but I was out of the traps a little before him. I was trying to do something slightly different, but I am equally happy with his rather more elegant amendment on the duty of candour. Whether I have got the wording of the amendment right is another matter, but I was trying to link the organisational responsibility for a duty of candour to the registration process. Therefore, that right at the outset, as a condition of registration, the organisation had to sign up to the idea of a duty of candour.

When one is in the patient’s position, the duty of candour in relation to the employee becomes very important. The patient sees individual people, not necessarily something called an organisation. On the other hand, for the reasons that the noble Baroness, Lady Finlay, mentioned, one has to provide cover for individuals who operate in that organisation, both to protect them from unreasonable attacks by the victim of the mistakes, but also from attacks by the employer for blowing the whistle on them. In this amendment, I am striving for an obligation on the employer—the provider of the services—to have a duty of candour as part of their registration conditions. At the same time, the employee should be protected against unfair employment practices or unfair criticism. One is then forced along a path—which is not fully explained in my amendment—where the contract of employment between the individual and the employer gives some protection to the employee who blows the whistle.

That is quite complicated stuff and this is a complicated area, but we have to strive not just for organisational candour, but for some protected way for the employee to level with people when things have gone wrong. I think the secret lies somewhere in the contract of employment. We do not want that routed only through doctors. In a care home, for example, it will not be the doctors talking to the residents, their families or whoever. We need to do more work on this. Given that this was such a high-profile issue in the Francis report I, like my noble friend Lord Hunt, find it surprising that we are not trying to deal with it in the Bill, complicated though it is. We need to put some wet towels around our heads to try to find a way of capturing this in the Bill, so it is both fair to the employer and to the employee. That is what I am trying to do. Whether I have succeeded in my simpler version in Amendment 77 I am not sure, but that is the thinking behind it.

My Lords, I welcome the debate on the duty of candour. It almost seems as though we are rewinding to 18 months ago, when we had similar debates during the passage of the Health and Social Care Bill. Although I would not have wished the events at Mid Staffordshire Hospital on anybody, I am really pleased that as a result the Francis report recommended a duty of candour. I therefore welcome the Government’s intention to implement that duty. However, as we have seen over the past 20 minutes, nothing is as straightforward as it first seems, so a lot of hot-towel work needs to be done to get this right.

I shall not detain the Committee long, but there are two sets of choices that the Government have made and I am curious why they made them. The first is whether the duty of candour is on the individual or on the organisation. The second, to which the noble Lord, Lord Warner, has just referred, is whether it is going to be in the Bill or in secondary legislation.

The duty of candour will cause a large change in people’s behaviour and it should be a game changer in lots of ways. As an aside, I think that complaints will fall. If somebody turns around and says, “I’m sorry”, people are less likely to complain. Certainly, those of us who have been involved in complaints will know that on many occasions patients just want someone to say that they are sorry and to explain why and how it went wrong, because they do not want it to go wrong in the same way for anybody else. So there might be an unintended consequence there.

When the Minister sums up, I would like to know why the decision was made not to put the duty in the Bill. Is that decision irrevocable?

My Lords, I support Amendments 76B and 77. There has been so much said that there should be a change in the culture in the NHS after the scandal of Mid Staffordshire Hospital. Amendments 76B and 77, dealing with the duty of candour, might help to do this. For years, relatives of patients who have died or been badly damaged have not always been treated in an honest and open way; many times, the causes have been covered up and there has been much suffering by those who need to know the truth and have an apology. It is also terrible that when people who fear for patients’ safety speak out to warn of unsatisfactory and dangerous situations, they are silenced and gagged. Surely, we should do something about that. It is our duty to speak out now and make patients’ safety a reality.

One elderly Member of your Lordships’ House told me yesterday that she was frightened in case she might have to go to hospital. How many people throughout the country must feel like that? The culture of fear and neglect must be changed. I hope that the Government understand that.

My Lords, I have considerable reservations about the whole question of the duty of candour, as I was saying to colleagues earlier today. I want to put to a counterargument to the House.

Recommendation 177 of the Francis report says:

“Any public statement made by a healthcare organisation about its performance must be truthful and not misleading by omission”.

Therefore I presume that, under a duty of candour arrangement, there would be a requirement to admit negligence, if there was negligence.

After my last visit to the accident and emergency department at Wexham Park Hospital in Slough, I left the car park and saw a huge sign on a van at the side of the main road, which said, “If you believe you’ve been a subject of medical negligence, please ring the following number”. I worry that with the way in which this whole issue is being addressed, under the conditions of the duty of candour, which in principle I would like to support, those people who put up those signs may well make rather a lot of money out of it. They will find a basis on which to start bringing more and more actions against the National Health Service. I do not know the way round it, because if that is what is happening, and there are so many people out there who are prepared to bring legal action, if they believe that they have the remotest chance of winning such an action, the duty of candour will be used as a means to bring about those actions.

I cannot see how we can stop it. That being the case, I believe that we are going to find that, irrespective of this duty, people will, to put it bluntly, continue not necessarily to tell the truth when responding to complaints that are being made by members of the public over their healthcare. I am sorry to dissent slightly from my own Bench on this matter, but I have a concern here and I think that the Minister, in winding his up, should be far more open in this discussion about the possibility of litigation arising out of the introduction of the duty of candour. As I say, I would like to pursue it and I support it in principle, but I am worried that it may lead to more actions.

What would I do as an alternative? In the contribution that I made on Monday, I concentrated on what I thought were the problems from which complaints arise. These are, essentially, simple complications that arise on the ward through minor negligence or lack of concentration by healthcare assistants or nurses. I think that we have to go back a stage from this whole process of candour, litigation and complaint systems, to what is actually happening on the wards so as more effectively to police the way that treatment is carried out more.

At the end of last year, I and a colleague in the Commons conducted interviews with many people involved in healthcare about the problems on wards in hospitals. I drew the conclusion that we should have on every ward a very clear set of entitlements set out on large boards whereby patients and their relatives may understand their entitlements. Instead of being hesitant about going to complain within a ward about the way that they were being treated, they would be able to point to a document and say, “Look, Sir or Madam, this says that that is my entitlement”. If we can get across the fact that people have entitlements, and that they have a right to higher standards of healthcare on wards, there will be fewer complaints in those circumstances and so less incidents of complaints that, in the responses, must rely more on this duty of candour, if it were to be introduced.

I am concerned. I think that we are looking at this problem from the wrong end. We should go right back to the ward and deal with the problem there. They say that ward problems are about leadership on the ward. I am not altogether convinced of that. You cannot have someone on the ward running around telling everyone what to do all the time. You have to have a process of accountability for those who work on the ward to the patient and to the patient’s relative, being their representative. I will not go into my idea about these signs on wards in great detail tonight, but perhaps I will at another stage in the Bill.

I will however deal in detail with one area under Clause 81. An offence is defined as follows:

“A care provider of specified description commits an offence if … the information is false or misleading in a material respect”.

So that is an offence. The care provider is defined under subsection 3(b) as,

“a body (other than a public body)”—

in my view, that means a private body—

“which provides health services or adult social care in England pursuant to arrangements made with a public body”—

that might well be the commissioning body—

“exercising functions in connection with the provision of such services or care”.

I understand that to mean that you could have a private nursing home with an NHS contract to provide continuing care where the moment that they receive their first patient under continuing care arrangements—an NHS patient in a private nursing home—then that nursing home then falls under the provisions of subsection 3(b). Have I got that wrong? That means that the commission of an offence, if

“the information is false or misleading in a material respect”,

would apply to a nursing home where just one person is in receipt of care paid for by the National Health Service under a contractual arrangement, as against a nursing home next door where there are no NHS patients under a continuing care contract and all the patients are privately funded. There, that offence would not necessarily apply. That is how I understand what is said in that clause. I hope that the Minister will clarify the matter.

My Lords, I welcome this very interesting debate which has gone in various directions. We have a number of amendments to consider here.

Amendment 73A would transfer the responsibility for the National Reporting and Learning System from NHS England to the Care Quality Commission. We wish to take the opportunity to underline the importance of the data and information available through the NRLS to the work of the Care Quality Commission. Indeed, a key component of the CQC’s new three-year strategy sets out how it will make better use of intelligence to inform inspections. However, I remind noble Lords that it was only on 1 June that responsibility for the National Reporting and Learning System was transferred to NHS England. This transfer puts patient safety at the heart of the NHS—I heard what the noble Lord, Lord Hunt, said, but I think it is extremely important that it is at the heart of the NHS—and will build on the excellent work of the National Patient Safety Agency. NHS England plans to develop a responsive NRLS that will provide a one-stop shop for NHS clinicians, patients and the public.

Additionally, noble Lords may be aware of the Berwick review of safety—reference was made to it—which seeks to learn lessons from the Francis report. It will report in July on a whole system approach to ensure that there is zero tolerance of harm in the NHS. We will, of course, give full consideration to any recommendations that that review might make on the effectiveness of the NRLS. In view of these important developments and reviews, we believe that reallocating this work now would be unnecessarily disruptive.

Amendment 73B introduces a new clause which would require the CQC to have regard to guidance on staffing numbers and skills mix in carrying out all its functions. I fully understand the sentiment behind this. All noble Lords will agree that high-quality care is dependent on the people giving it. We heard from the noble Lord, Lord Campbell-Savours, about the problems that arise when that breaks down. Clearly, the right staffing in terms of numbers and skills is vital for good care. It therefore follows that staffing levels and skills mix are key considerations for the CQC in regulating quality of care. However, as the noble Lord, Lord Campbell-Savours, says, that is not necessarily sufficient. The CQC’s registration requirements place a clear legal duty on providers to have sufficient numbers of suitably qualified, skilled and experienced staff in place for the services provided. It is the responsibility of individual providers to be accountable for staffing levels and the skills mix of staff in their organisations. Where a provider does not meet the staffing registration requirement, the CQC is able to use its enforcement powers to protect patients and service users. However, I note what the noble Baroness, Lady Finlay, said about this being an issue which is not necessarily best placed in primary legislation. The point is to try to achieve quality, safety and efficacy.

The CQC will shortly review and consult on its registration requirements. We intend to amend the requirements so that they will include fundamental standards. These will set the basics below which standards of care must never fall. We can assure noble Lords that the new chief inspectors that we talked about previously, based within the CQC, will have the power to inspect and assess staffing numbers and the skills mix as part of examining the quality of care and will be able to take any necessary action as they consider appropriate. Noble Lords asked whether NICE might become involved in that. We believe that the current legislative arrangements already require the CQC to assess staffing levels. However, we will work with NICE, the CQC, NHS England and other partners to review the use of evidence-based guidance and tools to inform staffing decisions locally.

Amendments 76B and 77 each introduce a stand-alone duty of candour in primary legislation. We had an extremely interesting debate that demonstrated the complexity of the issue. As the noble Lord, Lord Warner, noted, it is a complicated area. The noble Baroness, Lady Finlay, illustrated that, as did my noble friend Lady Jolly and the noble Lord, Lord Campbell-Savours. He noted that there could be unintended consequences such as unwanted litigation. However, my noble friend Lady Jolly said that often all that patients and their families need is clarity and something being admitted to. All these issues show how complicated the area is. The noble Baroness, Lady Finlay, spelt that out.

The Government share the view that providers of health and care must be open in their dealings with patients and service users. Our response to Robert Francis’s report makes a clear commitment to introduce a statutory duty of candour. I therefore wish to reassure noble Lords that we are doing that. In particular, I should like to reassure the noble Baroness, Lady Masham, on that point. That is what we are doing. The route that we are taking is perhaps endorsed by the nature of this debate. We see this as something that is better taken through by secondary legislation. Let me spell that out. The Government intend to introduce an explicit duty of candour on providers as a CQC registration requirement. This will require providers to ensure that staff and clinicians are open with patients and service users where there are failings in care. I hear the warnings voiced by the noble Baroness, Lady Finlay. In the end, the aim has to be to improve the quality, safety and efficacy of care. I note what she said about confidentiality.

As with all requirements for registration with the CQC, the Government intend that the duty of candour should be set in secondary not primary legislation. There are very strong reasons for that. Using secondary legislation will enable us to expedite the introduction of this duty and provide a degree of flexibility to get the design of the duty right. I am sure that the department and my noble friend Lord Howe will welcome noble Lords’ engagement, bringing their own wet towels if they wish to, as we take this forward. Secondary legislation will still allow for full parliamentary scrutiny, given that the changes to the regulations that set CQC registration requirements will be subject to the affirmative procedure in both Houses. The duty itself will have the same legal power in secondary legislation as it would in primary legislation. There is also the additional advantage that in such a new and important area we can refine this new duty over time, if noble Lords’ warnings prove to be significant. That is why I commend the Government’s preferred approach of setting the new statutory duty of candour through secondary legislation.

Amendment 77A has the effect of removing the power to specify the type of information and the type of care provider within scope of the new false or misleading information offence. This is a different but obviously related area. This would mean that we have a criminal sanction that applies to all information required by legal obligation, including under contract, which would be disproportionate. It is important that the offence does not inhibit providers from sharing information voluntarily, but we also need to keep the flexibility to respond to new information or different priorities for information over time.

We appreciate that noble Lords will be interested in understanding more about the types of providers to which this offence will apply. The Government are still considering the scope of the offence and I am absolutely certain that my noble friend Lord Howe will be happy to discuss this further with noble Lords.

We start from the issues raised in the Francis inquiry. We are therefore clear that the offence will apply to providers of NHS secondary care. This includes NHS trusts, foundation trusts and independent sector providers of NHS secondary care. We are giving further thought to whether the offence should also apply to other types of providers. We will consider whether, for example, there is a case for extending the offence to providers of adult social care, general practice and mental health services. We will consider this, working together with our stakeholders, and we will of course keep noble Lords informed as to our thinking as this moves forward.

I am sorry to interrupt the noble Baroness’s flow, but could I just get her to expand a little bit on the approach on the issue I raised about protecting the employer? I was pleased to hear what she was saying about using the registration process to impose the duty of candour on the employer, but there remains the concern, which I think a number of us have, about how the employee who blows the whistle actually gets protected under the arrangements that she is talking about.

My noble friend says that they have protection under the NHS constitution. I hope that that clarifies it for the noble Lord but, given the time, I am happy, if necessary, to write to cover that further.

There were a number of questions, but I am well aware that time is pressing and that we are almost at the end of this part, so I will just come to one or two of them. In terms of the individual statutory liabilities in Patients First and Foremost, the Government stated that:

“before we introduce criminal sanctions at an individual level…we would want to ensure that this does not unintentionally create a culture of fear”.

The noble Baroness, Lady Finlay, spoke about that. We are, of course, waiting at the moment for the Berwick review, and no doubt we will be addressing this further in the light of it.

The noble Lord, Lord Hunt, asked about various points in relation to Francis. Francis himself made clear that many of his changes can be taken forward within the existing legislative framework and, as the noble Lord, Lord Campbell-Savours, indicated, they are, at heart, about changing behaviours in organisational cultures. The responsibility is therefore with each and every person serving patients to take action to make the changes needed.

However, we have these reviews coming forward, and we will obviously review what else we need to do. This has been an ongoing, long-standing problem, as noble Lords will be aware. I have listened to many debates in your Lordships’ House where these issues have been addressed, and people are endlessly frustrated in terms of trying to make sure that the quality and safety that you see in certain parts of the NHS is replicated in all parts of the NHS.

I am scurrying on through. If there are issues which I have not addressed, I am sure that—

I asked about the circumstances in which a private home took in a single National Health Service patient on a continuing care basis, paid for by the National Health Service. Does that home then come under the provisions of Clause 81? I am talking about one patient. Could that be an impediment to that home being prepared to take on NHS patients? I shall wait for the response to that.

The noble Lord may wish to bear in mind that his Government extended the inspection to private providers. The scope of the offence is wide enough to capture such providers, and it would first be necessary for such providers to be specified in the regulations made under Clause 81. I hope that that helps to clarify the matter for him but, if it does not, we will be happy to fill in any further details.

But does the noble Baroness recognise that that might then determine the policy of nursing homes concerning whether they are prepared to take on the responsibility of carrying NHS patients? They will then be chargeable with an offence which otherwise—if they were not to take on those patients—they would not be subject to.

Perhaps I may ask my noble friend whether that then comes to the point that the noble Baroness raised earlier about needing to extend this duty to GPs and social care providers. The reality is that if the duty were extended to social care providers, most of those homes would not be viable unless they accepted either local authority-funded clients or clients from the health service. Is not the answer to extend the duty to make sure that we cover GPs, community health and so on?

In terms of the division that the noble Lord pointed to, if a provider decides that it does not want to take on NHS patients because it will have to reach higher standards than for private patients—which appeared to be part of what he was saying—once that is publicised and becomes apparent, that will not exactly encourage people to use those providers.

No. My case is that they could be prosecuted in circumstances where they might otherwise not be prosecuted because they would not fall under the provisions of Clause 81(1)(c).

It might be better if my noble friend answered. However, I think that it would be best if we wrote to the noble Lord and explained the detail in this regard.

Perhaps I may conclude so that we can move on. I hope that it will reassure noble Lords that the draft regulations will be available for them to consider on Report, giving full details and specifying the type of information supplied or published by providers of NHS secondary care that will fall within the offence that I have just been talking about. Regulations will, again, be subject to full parliamentary scrutiny of both Houses using the affirmative procedure. I hope that that provides reassurance to noble Lords.

The Government place great importance on ensuring that the public, regulators and commissioners have an accurate picture of a provider’s performance and can have confidence in the information supplied or published by providers.

I trust that noble Lords will find some reassurance in regard to the actions that the Government are taking, particularly on the duty of candour, the complexity of that, the importance of putting it into secondary regulations and the involvement that they may wish to have as that is taken forward. Even if I need to clarify the specific points that the noble Lord, Lord Campbell-Savours—

I have one other point to make. When the reply comes, it might deal with whether that provision applies only to that individual patient who is subject to NHS support, as against the balance of residents in a nursing home.

My noble friend says no. I can see that the van advertising litigation probably does not want to encounter the noble Lord, Lord Campbell-Savours, as he comes out of whichever hospital it is.

In the light of what I have said, and anything else that we need to clarify, I encourage noble Lords not to press their amendments.

My Lords, we are extremely grateful to the noble Baroness for that reply. There are obviously a lot of issues that we may want to return to, but clearly the main debate is about the duty of candour. It has been a good debate because noble Lords have identified the problems of a statutory duty on individuals. This presents some real challenges, which clearly need to be thought out with great care and attention. I very much accept that there is a real risk of perverse incentives and discouraging staff doing the right thing because of the fear of prosecution.

However, I am puzzled about the duty of candour. I do not understand why the Government have included this offence of supplying false or misleading information in the Bill when the duty of candour, which is clearly much more important, will be relegated to secondary legislation. From the debate and the comments of all noble Lords who spoke, clearly this is not easy. It has to be got right. The best way to get it right is through primary legislation.

The problem with secondary legislation is that, at best, we will have an hour and a half of debate and we are not allowed to amend it. This issue is so complex and important that it warrants more. I strongly recommend that the Government to look at this again and bring back an amendment on Report in the light of Professor Donald Berwick’s recommendation. I think that they will find that the duty of candour is the flagship of the Francis report. Not to have it included in the Bill means that we are missing something. I suspect that patients will miss out in the end.

Having said that, this is a good way to conclude our discussions tonight and I beg leave to withdraw my amendment.

Amendment 73A withdrawn.

Amendment 73B not moved.

House resumed.

House adjourned at 9.52 pm.