§ 5.30 p.m.
§ House again in Committee.
§ Schedule 2 [The Commission for Health Improvement]:
§ Baroness Sharp of Guildford moved Amendment No. 83:
§ Page 48, line 9, at end insert ("at least three of whom shall be lay members representing all sections of the community including older people").
§ The noble Baroness said: We now move from the commission for long-term care to the commission for health improvement. Indeed, we are looking at the question of appointments to the commission for health 1407 improvement. Those provisions are set out in Schedule 2 to the Bill. As it stands, other than the appointment of a chairman and a representative for Wales, the schedule does not specify how many members there shall be or from which professions they may be appointed.
§ Once again, the question posed in these amendments is about how far we want the commission to be dominated by healthcare professionals or how far we wish to see wider representation from the community on the commission for health improvement.
§ The amendments which we have tabled propose to widen the membership to include lay members, including older people; to have representatives from the professions allied to medicine and from the universities; and to include NHS managers and representatives of users in the form of patients and carers.
§ A key issue covered by the amendments—and in particular Amendment No. 84, in the name of the noble Lord, Lord Harris, and Amendment No. 86—is whether there should be a majority of lay members on the commission for health improvement. In other words, is it to be an organisation established to provide an independent check on local systems of monitoring and improving healthcare which is to have a majority of health professionals judging themselves or is it to have a majority of people from outside the health professions? On these Benches, we should prefer to have a majority of lay members on the commission.
§ In addition, we recognise the contribution which other organisations can bring to the commission. We believe that it is extremely important that there should be representation from users, patients and especially older patients, carers and the voluntary organisations which represent them. It is important that a variety of skills which make up the NHS are represented on the commission. In that regard, I mention in particular the professions allied to medicine—physiotherapists, radiologists and also NHS managers and their representatives.
§ Finally, I make a special plea on behalf of the academics who are among the key partners. Academics who are part of medical faculties spend half their time providing patient care. The role of academics as leaders in their disciplines of evidence-based developments of clinical care will be vital to the commission's work. Amendment No. 88 is essentially a probing amendment to discover whether the Government have in mind that there will be significant academic representation on the commission. I commend the amendment to the Committee. I beg to move.
§ Lord Astor of Hever
I rise to support Amendment No. 83. The demographic explosion which is currently taking place as a result of an ageing population poses enormous ethical and economic problems. That is particularly true with regard to healthcare provision.
Charities which work with older people are worried that age will be used increasingly as a factor in determining whether or not someone receives treatment and what priority the patient is given. I trust that the 1408 Minister will be sympathetic to an amendment which seeks to ensure that older people are represented on the commission. As such, they would be well placed to ensure that the issue of age discrimination is brought to the fore in any discussions regarding treatment. I cannot believe that the Government would support discrimination against such a vulnerable section of society.
§ Baroness Gardner of Parkes
I support these amendments. As the Committee will know from our previous deliberations on the Bill, I am not in favour of having a great professional majority. Likewise, I should not wish to see a great lay majority. There should be just a majority of lay members. That means that people must attend the meetings and there is no guaranteed in-built majority for any group. If there is, people become lazy and do not turn up at the meetings. That throws out the whole balance.
When the Minister replies, I ask her to define the word "older". We have discussed already the definition of "older" and the Minister suggested that perhaps 60 was an appropriate definition. Many Members of this House would not consider 60 to be "older". Therefore, perhaps the Minister will be rather more specific than are the provisions of the amendment.
I suppose that I should confess that I do not feel much different now from how I felt when I was 50. I am sorry to be so personal but I just wished to mention that because I do not want to talk about old age.
I seek some clarification of the word "lay" in the amendments. That word necessarily varies according to the context. If one is setting up a supervisory body over lawyers, "lay" means anyone who is not a lawyer. But here we are setting up a supervisory body over doctors, nurses and administrators within the health service who may be of a very large number. I ask the noble Baroness who moved the amendment whether she will tell me, perhaps even before the Minister replies, what is her opinion of the meaning of the word "lay" in that context.
§ Lord Walton of Detchant
I wish to ask a question about that particular point. In the health service there are many healthcare professionals and many different categories. There are administrators and a great many other people who, in certain respects, may be regarded as lay individuals. Hence, the definition is important.
It seems to me that Amendments Nos. 83 to 88 have a great deal to commend them because they specify rather precisely the kind of individuals who should be appointed to the commission for health improvement.
Having said that, I believe that there is one problem of which the Committee should be aware to which we have referred on earlier clauses in the Bill. It would be dangerous to be over-specific in relation to the membership of such a body. On Thursday afternoon, as we now know, we shall examine the role of the regulatory authorities in the health field. For example, the General Dental Council has been anxious for many years to increase its lay membership but is unable to do so without primary legislation. We must ask ourselves 1409 how specific we should be on the face of the Bill. May it not be more appropriate for the actual membership of the commission to be defined more precisely in secondary legislation rather than on the face of the Bill? That is merely a question that I wish to pose to those who have tabled the amendments.
§ Lord Harris of Haringey
My starting point in tabling Amendment No. 84 was that I agree with Bernard Shaw that,All professions are conspiracies against the laity".I was delighted to hear the noble Baroness, Lady Gardner, support the amendment, because I have not called for a greater majority of lay representatives, but I believe that there should be a majority of lay representatives. And the noble Lord, Lord Renton, raises an important point in relation to definitions of "lay"; it sometimes seems to be an extremely flexible term. I am conscious from my background in community health councils that those councils, which I had always understood were lay organisations, sometimes had quite prominent members. To take but two examples, there was a retired consultant geriatrician and a practising dentist on one council, neither of whom seemed to me to be that "lay" a person.
Given that there is widespread concern about the system of professional self-regulation and that the new commission will play an important part in reassuring the public about health service standards and quality, it is important that the intelligent lay person is clearly represented on that body. I noted that in the Government's White Paper—A First Class Service—there was a reference to,The Commission will need to provide a balance of expertise and experience and this will be reflected in its membership which will be drawn from patients, the professions, the NHS and academia".I hope that a significant part of that—a majority but not a great majority—will consist of lay people who are not themselves practising or retired clinicians, but people who are able to bring a perspective of ordinary common sense of what it feels like to use the services in question. That seems to me to be the core definition.
§ Lord Rea
If the actual composition of the commission is not to be on the face of the Bill, can my noble friend give an indication of the underlying principles on which the members of the commission are to be selected? In particular, will it be part of those principles that the commission will have expert public health advice, particularly people who understand health statistics and epidemiology on which the whole measurement of health is based?
§ Baroness Sharp of Guildford
I endorse the definition given by the noble Lord, Lord Harris, of the concept of a "lay" member. From these Benches we believe that the definition is someone who is not actively engaged in the provision of services within the National Health Service.
§ 5.45 p.m.
§ Baroness Hayman
Perhaps I can pursue that issue. I am not sure that that will fit the bill in all 1410 circumstances. I, too, was once asked to be a "lay" member of a Royal College ethics committee. I was told that I would be one of three lay members and felt enormously reassured by that because I would not be alone. I then found that, of the other two, one was an emeritus professor of moral theology and the other was the senior partner of the leading firm of medical litigation lawyers in the country. As I understood it, I was there to speak for the women of Britain. So we can all find ourselves in situations where the definition of "lay" is not as it would appear to the uninformed observer, and I accept the spirit of the argument.
Also, I recognise that in your Lordships' Chamber the definition of over 60 as "older" may not necessarily gain approval; outside your Lordships' Chamber it might be considered more acceptable given current retirement patterns. However, questions of definition should go back to the proposers of amendments rather than to the Government, who felt it better not to include them in the first place. I am much reassured by the comments of the noble Lord, Lord Renton. I was feeling considerably older as I approached my 50th birthday, but if I continue to feel the same way for decades to come then I think I shall be all right.
Returning to the amendment before us, the Government share the concerns expressed by the Committee today that the commission should have the right balance of membership to ensure that it undertakes its work effectively. It is important that the commission has the respect and confidence of the public and the NHS, of those who make use of the NHS as patients and carers, and of the staff who deliver the services. In that context, the points made in relation to the role, for example, of appropriate public health advice, the role of academic medicine and the role which has been focused on most, that of a lay membership with personal experience of using NHS services, are extremely important.
In A First Class Service we highlighted the need for the commission to have access to a wide range of experience and expertise drawn from those with clinical and other professional backgrounds, academia, management and a lay membership. We also made it clear that appointment would be on merit rather than representative of any specific interest or group. That is important. If we look at concern for the elderly, that should not be compartmentalised and be the responsibility of only one member of any board or commission.
The proposals we put forward met with broad support and the Explanatory Notes, at paragraph 138, stated that the commission's membership will include those with a lay background. Recognising also that the commission will cover England and Wales, in this one instance the Bill makes explicit provision for its membership to include a member appointed by the National Assembly for Wales who will make the special interests of Wales his or her personal care.
Members of the Committee can be assured that careful consideration will be given to appointments to the commission. The process will be open and in line with guidance issued by the Commissioner for Public 1411 Appointments. We intend that the commission's lay members should provide broader views and experience. They will provide an essential and major contribution to the commission's approach. We also made it clear that we felt that the commission should have a lay chair.
It was useful to hear the comments today of Members of the Committee. They will help us as we give further thought to the commission's membership and take recruitment further. For the reasons discussed in earlier debates in Committee relating to the possible exclusivity of lists, it is not essential to specify those on the face of the Bill. However, I hope that Members of the Committee will feel that we have given and will continue to give due weight to the need particularly to ensure that the commission has effective lay members and that it includes a broad range of expertise and experience.
§ Baroness Sharp of Guildford
I thank the Minister for that forthcoming reply to the series of amendments we have been debating. It has been an extremely good debate and I take on board her assurances that the Government will be looking at a broad membership in considering appointments to the commission for health improvement. I noted in particular the mention that the chair would be a lay representative. We are encouraged by that reply and therefore I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 84 to 88 not moved.]
§ Lord Clement-Jones moved Amendment No. 89:
§ Page 50, line 16, after ("State") insert ("and to the Public Accounts Committee of the House of Commons").
§ The noble Lord said: The spirit of this amendment is very much on the lines of the theme that we have tried to introduce; that is, improved transparency throughout the Bill. We talked earlier about reports from primary care trusts. Now we are in the area of reports, and the publication of reports, from the commission for health improvement. Amendment No. 89 deals with an obligation to publish reports or to submit reports to the Public Accounts Committee. The other amendments relate to the Secretary of State's obligation to provide wider publication.
§ The functions of the commission for health improvement are set out in Clause 15. They include: making reports on the arrangements that PCTs and NHS trusts have for monitoring and improving the quality of healthcare; making reports on the management and provision or quality of healthcare for which health authorities, PCTs or NHS trusts have responsibility, and making reports on the management, provision or quality of, or access to or availability of, particular types of healthcare for which NHS bodies or service providers have responsibility.
§ Clause 15 currently states that the Secretary of State may, by regulations, make provision as to the publication of reports and summaries of reports of the commission for health improvement. Schedule 2 states that the commission must report to the Secretary of State 1412 after each financial year on the exercise of its duties during the year and must provide the Secretary of State with such reports and information relating to the exercise of its functions as he may require.
§ In the interests of freedom of information, we believe that all of the commission's reports should be published and made available to the public, who have a right to know about the standards and quality of care being provided to them. In the event of a failure of standards, it will be even more important that information is made available to the public in order to avoid any fears of a cover-up and so that accountability can be properly exercised.
§ In cases where mistakes or accidents occur in the delivery of health services, it can be particularly upsetting for patients and their relatives to be left without a clear idea of what went wrong. It is probable that, at some time in the future, the commission may find itself investigating such sensitive and difficult cases.
§ The amendments in this group, from Amendment No. 91 onwards, would ensure that the Secretary of State does not have power to withhold any of the commission's reports from the public domain. Instead, the amendments would ensure that all the commission's reports were published and that the commission could also initiate publication of any other reports and information that it saw fit, without having to be requested to do so by the Secretary of State.
§ As regards the obligation to report to the Public Accounts Committee, I have no doubt that Members of the Committee have read a number of excellent reports from that committee. I can commend one in particular—by way of a plug for a debate on Wednesday—that it published on cervical cancer screening. That report shows that the committee has a good grasp of health issues. Such provision would be a good way of bringing into the public domain the reports of the commission for health improvement so that it is not simply at the discretion of the Secretary of State for Health to decide whether or not to publish. I beg to move.
I hope that my recollection is not wrong. The Minister will, I am sure, from her experience—which was also in another place—correct me if I am wrong, but I hope that she will confirm that the Public Accounts Committee had, as of right, the opportunity to look at the public accounts of any body appointed by statute. If we start to say that, by statute, a particular body may have its accounts so scrutinised, we may get into an unfortunate situation. If that were done too often, and then there is no mention of public accounts being available for scrutiny by the Public Accounts Committee, they could not be so. Therefore, I think that we have to be very careful about Amendment No. 89. I really do not see the need for it.
As regards the other amendments in this group, I do not think that the noble Lord has developed those to any great extent. At the moment, I have no comment to make on them.
§ Baroness Hayman
Perhaps I may look at the general intention behind this series of amendments and say to 1413 the noble Lord, Lord Clement-Jones, that I recognise that intention. Indeed, I share it, if it is to ensure that the commission, as an executive non-departmental body, operates in a fully open and accountable way. We are determined that that shall be so.
However, I believe that we have already made adequate provision for that within the Bill. Clause 15 makes clear that the commission will make reports on the exercise of its functions. The Explanatory Notes also clearly state the intention to make those available to the organisations involved and to the Secretary of State, and to make provision for their publication.
The commission will be able to report on its findings. Importantly, it must be recognised that, in doing so, the commission will provide an external and independent assessment of NHS arrangements to improve quality. Thus, Clause 15(2)(d) allows for the Secretary of State to make regulations as to when and how the commission publishes its reports.
A key aim will be to ensure that the Secretary of State may make provision for the commission's recommendations to be published quickly after a review or investigation so that the organisations involved may act on the report as soon as possible and that others may learn from it.
Where the Secretary of State asks the commission to report to him on the exercise of its functions, the Secretary of State will decide on the arrangements for publication. In doing so, he will have due regard to the Code of Practice on Access to Government Information. I have to say that it would be our intention that such reports should be made public. They are obviously of general interest. However, equally I have to say to the noble Lord that the Secretary of State might ask for something much more run-of-the-mill in terms of a publication and that to have a general duty to publish everything might not be sensible.
Amendment No. 89 seeks to ensure that the commission's annual report be sent to the Public Accounts Committee. I believe that on this point the noble Lord, Lord Renton, is absolutely right in terms of the role of the Public Accounts Committee. We do not need to list it on the face of the Bill to ensure that it would have a role over a non-departmental public body. However, it is certainly the intention, as far as the annual report is concerned, that it would be sent to that committee as well as being made generally available as a public document.
Schedule 2 also makes clear that the annual report will not be the only means by which the commission is to be held to account to the public and to Parliament. It will be subject to the Parliamentary Commissioner for Administration, and members of the commission may be called before the Select Committee on Health and, indeed, the Public Accounts Committee of another place.
These provisions in the Bill demonstrate a commitment to openness, greater transparency and accountability both to the public and to Parliament. It would not be sensible to put on the face of the Bill provisions to ensure that everything on which the commission reports is automatically made public. It is 1414 sensible for the Secretary of State to have some discretion in this matter, particularly having regard to the delicacy and confidentiality of some of the subject matter that might possibly be involved.
However, I hope that I can reassure the noble Lord that, as far as the generality of reporting arrangements is concerned, we would wish the commission to operate in a transparent way.
§ Lord Clement-Jones
I thank the Minister for that helpful explanation of how the Government see the reports being published in what she describes as a fully open and accountable way. We shall certainly look at what she says with great care. However I believe that much of what she said was reassuring.
Before I seek leave to withdraw the amendment, perhaps the Minister could clarify one matter. I believe that she mentioned that the commission for health improvement was to be treated as a non-departmental public body in terms of its relationship with the Public Accounts Committee. Can she direct me to where that appears? Is it in the Explanatory Notes? I cannot see, on the face of the Bill, as regards CHI, or CHIMP, as others like to call it, that that is so. However, if that is the case, I am more than happy with the relationship that it will have with the Public Accounts Committee. If the Minister wishes to write to me on that point, I would be more than happy.
§ Baroness Hayman
I shall certainly write to the noble Lord, giving chapter and verse. Implicit in the need for the body to be set up statutorily is the fact that CHIMP is to be independent. The national institute for clinical excellence is being set up as a special health authority. That shows the distinction between the two. However, perhaps I may write to the noble Lord with the details.
§ 6 p.m.
§ Lord Clement-Jones
I thank the Minister for that reply. It is precisely because of the issue of the status of the commission for health improvement that we have asked about publication and the relationship with the Public Accounts Committee. We want the body to be independent. At Second Reading I referred to the way in which Her Majesty's Inspector of Prisons has a particular status relative to the Home Office so that he can go about his business entirely independently. The commission must operate in that way. I shall be most interested to see the Minister's reply but, in the meantime, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 90 to 93 not moved.]
§ Schedule 2 agreed to.
§ Clause 15 [Functions of the Commission]:
§ [Amendments Nos. 94 and 95 not moved.]
§ Lord Harris of Haringey moved Amendment No. 96:
§ Page 11, line 29, at beginning insert ("giving due consideration to any concerns of the relevant community health council,").1415
§ The noble Lord said: This clause sets out the functions of the commission for health improvement. Within those functions, it is clear that the commission is intended to provide an independent scrutiny of local efforts to improve quality. It will seek to ensure that serious problems are addressed and will be able to spot check quality standards.
§ Amendment No. 96 seeks to give community health councils a role which would effectively enable them to act as trigger mechanisms for the commission. Given that community health councils have extensive local knowledge of health provision and are often aware of where problems lie, that seems a helpful mechanism to ensure that the commission pursues issues relevant to local communities.
§ Community health councils assist complainants with some 30,000 NHS complaints each year. That work provides them with an unrivalled source of information about where the problems in service delivery may lie. Again, that seems an excellent qualification for enabling them to assist the commission.
§ I recall that in 1992 the Association of Community Health Councils and Action for Victims of Medical Accidents (AVMA) drew up proposals for a health standards inspectorate. In many ways, CHIMP bears some resemblance to those proposals. I should have thought that the commission would want to use the expertise of local community health councils and bodies such as AVMA to identify patients' complaints in order to guide its investigations.
§ Amendment No. 101, which is grouped with Amendment No. 96, refers to the commission's report and suggests that such reports should automatically be made available to community health councils to assist them in monitoring the commission's progress. It may seem self-evident that reports should be provided in that way—one would certainly expect the commission's reports to be made public—but it is perhaps worth stating that, in the interests of freedom of information, it is important that the commission's reports are published and made available to the public who have a right to know about the standards and quality of care being provided to them. In the event of a failure of standards, it would be even more important that such information should be made available to the public to avoid any fears of a cover-up and so that the accountability can be seen properly to be exercised. Where mistakes or accidents have occurred in service delivery, it is particularly upsetting for the patients and their relatives to be left without any clear idea of what went wrong. It is probable that at some time in the future the commission will have to investigate such sensitive and difficult cases.
§ I should have thought that requiring the commission to make its reports available to CHCs would increase public confidence in the work of the commission and enable the CHCs to monitor the progress made with regard to any of the commission's recommendations. I beg to move.
§ Baroness Hayman
Both of these amendments seek to place on the face of the Bill arrangements to ensure 1416 that community health councils are involved with, and informed about, the commission's work. My noble friend has made clear why he thinks that that is appropriate. I recognise and welcome the interest that CHCs and other groups representative of users, carers and local communities will have in the work of the commission and their potential to contribute. However, I must advise my noble friend—this is something of a current refrain—that I do not think that this is a matter for the face of the Bill or that individual organisations should be singled out in this way.
The regulations under Clause 15(2)(a) will provide for the manner in which, and the persons in relation to whom, the commission will perform its functions. We do not want unduly to restrict the commission's independence with regard to how it carries out its function to review clinical governance arrangements. In assessing how clinical governance is supporting the drive for high quality services, it will no doubt want to have regard to the knowledge and experience of CHCs. As my noble friend said, that is particularly relevant. Community health councils will be able to contribute to that assessment, as will a number of other community groups and patient and carer representatives.
Equally, it does not seem necessary to require on the face of the Bill that the commission, when conducting a national service review, should make its reports available to the relevant community health council. As was discussed earlier, we intend to provide for the publication of the commission's findings. Therefore, they will be available as public documents to CHCs and other interested organisations. On that basis, I hope that my noble friend will accept that I understand and sympathise with his intentions, but believe that the Bill already covers his concerns. I hope that he will feel able to withdraw his amendment.
§ Baroness Fookes
I have considerable sympathy with the amendment. It seems to me that responsibility for making available, and publication of, such reports rests very much with the Secretary of State. As the Minister indicated earlier, on the face of the Bill, the Secretary of State has total discretion about what is published, not just some discretion. It is important that we are clear that publication should generally take place. It may be that the present Government are much committed to open government, but we are making provisions for the future—and a future Secretary of State might be of a more secretive nature. That is why we are relying on what the Bill states.
§ Baroness Hayman
We covered this issue earlier. It is our intention to act publicly and openly in such areas. The provisions on how the recommendations should be made public, quickly if necessary, relate to simply functional arrangements. We have a code of practice on access to government information and we may well have more far-reaching freedom of information legislation to deal with such areas. Therefore, in the long term, I believe that these points will be covered. However, again, I do not think that we can deal with the general 1417 issue to which the noble Baroness refers by amendments such as these, which deal only with community health councils.
§ Lord Harris of Haringey
I am grateful to the Minister for that response, I take her point that it may not be appropriate specifically to single out community health councils on the face of the Bill. However, I hope that it may be possible either in regulations or in guidance to the commission to suggest that it should be a priority for the commission to listen to, and to seek representations from, local community health councils when considering what work to carry out, and to direct the attention of local CHCs, where appropriate, to the reports published. I appreciate that the reports will be in the public domain, but there is a difference between that and reports specifically being drawn to the attention of local bodies which can keep track of what has happened as a result of them. I hope that the Minister will revisit some of these questions in terms of regulations or guidance. In the meantime I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 97 to 107 not moved.]
The Deputy Chairman of Committees (Viscount St. Davids)
Before calling Amendment No. 108, I should point out to the Committee that, if Amendment No. 108 is agreed to, I cannot call Amendment No. 109.
§ Lord Clement-Jones moved Amendment No. 108:
§ Page 12, line 10, leave out from beginning to (", and") in line 12.
§ The noble Lord said: This is, unashamedly, a probing amendment. It would clearly remove the power of the Secretary of State to issue regulations enabling the commission for health improvement to recover money in respect of expenditure it incurred in the exercise of its functions. The effect would be that the commission could not charge fees or be self-financing, but would have to be government funded.
§ Our interest was drawn to this provision allowing the Secretary of State to make regulations in this way as it is not clear who will be charged or what institutions will be charged by the commission. Clarification is required about the degree of funding that the commission will receive, on the one hand from central government and, on the other, from the charges that it makes. If it is expected to become self-financing over a period of time, what is that time period? What charging structure does the department believe is appropriate? Can the Minister clarify whether Ofsted or HM Chief Inspector of Prisons are charged for inspections? What is the practice across government? Is it a common practice? Is the commission being singled out for this kind of purpose and what is the broad time scale?
§ Major sums could be involved. If, in looking at the GMC Bristol-type case, the commission also looks at the non-competency related aspects, the sums incurred could run into millions. Are we saying that that particular hospital would be responsible for the charges of the commission? We want to elicit the basis upon 1418 which the commission will be operating. We hope that the Minister can give further information in that regard. I beg to move.
§ Lord McColl of Dulwich
I should like to speak to Amendments Nos. 109 and 110 which do not go nearly as far as Amendment No. 108. The Bill allows CHIMP to recover from any individual costs incurred in the course of its duties. In theory this would permit individual GPs to be billed for the work of CHIMP. In exceptional circumstances, this could exhaust the entire budget of a PCT, if a particularly lengthy report or investigation were undertaken.
By changing the word "persons" to "bodies", the amendment does not give total protection against such circumstances, particularly for PCTs. However, it allows a greater degree of protection to individuals who could otherwise face very large bills for investigation by CHIMP which they did not request and over which they had no control.
There is an additional worry that the powers of CHIMP to recover costs could be used to recover the costs of NICE in situations where CHIMP has followed up the work of NICE in a particular area. That would represent an additional cost and would take away money from frontline services in order to finance bureaucratic activities. As NICE is not included in the Health Bill and is not a statutory body, it would be quite wrong to use CHIMP as a means of clawing back the costs of NICE.
If the Secretary of State had intended NICE to be part of the statutory body with powers to cover its own costs, that should have been included in the Health Bill. As the Government have decided that NICE does not need to be included in the Health Bill and can be dealt with by order, one has certain suspicions as to the actual powers and scope for action and cost recovery that NICE will have.
§ 6.15 p.m.
§ Baroness Hayman
I hope to be of assistance to the Committee on the general probing issues and the specific points about recovery of funds from other bodies, and the possibility of charging individuals, which was raised by the noble Lord, Lord McColl.
Initially, while the commission is developing its role we do not envisage that it would charge any individual organisations for the bulk of its local review work. But in the longer term, once the commission has demonstrated its effectiveness as a body to help the NHS improve quality and tackle service problems, we see merit in moving towards a system where more of the commission's work is directly funded locally.
It is not an unusual arrangement. For example, it applies in the case of work carried out by the Audit Commission for NHS bodies, and that would include the 1419 value-for-money studies which are very much in line with some of the work that the commission would be doing.
§ Lord Clement-Jones
NHS trusts are charged on an individual basis by the Audit Commission for value-for-money work, are they not?
§ Baroness Hayman
They certainly are, and the rates, the number of days and all sorts of things are determined for you. The trusts pay individually to the Audit Commission.
§ Lord Clement-Jones
This is work that they commission of their own volition; it is not imposed on them that they should invite the Audit Commission in; they invited the Audit Commission in, and it is only fair in those circumstances that they should pay.
§ Baroness Hayman
No, it is an analogous situation to the commission. If the Audit Commission was doing a national value-for-money study and was looking at an individual trust, that trust would pay towards that study in the same way as the commission might look at implementation of a national service framework and therefore charge the individual institution for that work.
This is a developmental agenda and an enabling provision, but it is very much in line with work that has been carried out already and is analogous work to that of the Audit Commission.
The costs of the commission will not be met at the expense of direct patient care. Any charges will need to be offset by reductions in non-care expenditure elsewhere; for example, by ensuring more effective use of other external audits in order to avoid duplication and an unnecessary administrative burden, and by reducing the amount of resources currently spent on litigation and the other effects of poor quality care.
The Secretary of State will determine the level of the commission's charges and how and when they will be made. The costs of an investigation or review would have to take into account various factors, including the number of review days involved and the nature of the review. It is worth noting that the commission will be under a duty, set out in paragraph 3 of the schedule, to carry out its functions effectively, efficiently and economically, so it is not as though a blank cheque is being written.
I should like to move on to Amendment No. 109. The Bill allows the commission to recover costs from persons or bodies, and those will be set out in regulations. I can reassure the noble Lord, Lord McColl, that it is not the intention that the commission will charge individuals for its services. It will review the systems which NHS organisations have in place to monitor and improve quality and will investigate service problems experienced by an organisation. That is the approach which will inform regulations in due course. Nonetheless, we would not want unnecessarily to restrict the bodies with which the commission can work and recover costs. While it is not our intention to charge 1420 individuals or individual GPs as instanced by the noble Lord, the commission will, as we discussed the other evening, be looking at the healthcare provided to NHS patients by the independent sector. NHS bodies enter into agreements or arrangements with a wide variety of private individuals, organisations or bodies.
As I understand it, if we restricted the terminology of the Bill to the word "bodies", the legislation would not necessarily cover all the situations which might arise and for which the commission might need to recover charges. For example, services provided even by a private partnership might not be covered by the word "bodies".
I turn now to the issue of the recovery of funds from other bodies, which relates to Amendment No. 110. I suggest that this could lead to the undesirable result of the commission being prevented from working beneficially with other bodies. It will only recover expenditure which has been properly incurred and the costs of carrying out its own functions. For the avoidance of doubt, perhaps I may make it absolutely clear for the benefit of the noble Lord, Lord McColl. NICE will be centrally funded and that cannot be changed.
The commission will only recover expenditure under Clause 15(2) where it has been directly incurred by the commission. If the expenditure is not incurred by the commission, there is no power of recovery. However, we need that power because in the course of its work the commission for health improvement may wish to draw on the particular expertise of other bodies, such as the Audit Commission. In assisting the commission those bodies would incur costs which they might wish to recover. The commission may meet those costs by making payments to those bodies in respect of the work carried out. This will be expenditure which the commission could recover under Clause 15(2)(e).
As it stands, the amendment would confuse the matter and might suggest that the commission could not recover costs in so far as they may be related to the making of such payments. Therefore, it would cast doubt on the extent to which the commission could be assisted by other bodies. We believe that that would be undesirable. The commission needs to be able to recover costs incurred in engaging other bodies to assist in its work. That is why we need the provision and not, indirectly, to fund inappropriate bodies—and certainly not indirectly to fund NICE. We must recognise the fact that there may be an area of joint working using someone else's expertise for which the commission needs to have some flexibility. Therefore, it is appropriate for the commission to be able to make charges under the provision.
§ Baroness Fookes
It seems to me that the Minister's reply actually causes one to ask more questions. First, will the bodies that might be charged at some stage be expected to include an element of that in their budget for the year? How can that not affect patient care in the 1421 sense that it is a charge upon them? Secondly, is there some kind of appeal system if it is thought that the charges made are exorbitant or unreasonable?
§ Baroness Hayman
I tried to cover such issues in my response. There are management costs which are part of running any organisation. I have in mind costs like publishing an annual report—some Members of the Committee are anxious about that—which are met. Of course, if you are incurring such costs, you are not spending that money on patient care. Nevertheless, they are considered to be part of, and a contribution to, providing high quality, accessible and publicly-transparent care. I am sure that Members of the Committee who have worked in the health service are aware of these circumstances. I do not believe that there is any appeals mechanism against the scales of payment of the Audit Commission or, indeed, its allocation of numbers of days to carry out the work.
We believe that the work that the commission will do for organisations will not just be some added bureaucratic cost; it will actually be an important input into improving quality. As we have discussed at other points in our debates on the Bill, improving quality is not necessarily something which always costs more. Indeed, in the long term, it can actually save money.
§ Lord McColl of Dulwich
I may be wrong, but I believe I heard the Minister say that she was a little concerned about private partnerships and that that is why we get into difficulties when using the word "bodies". However, I thought that there was no intention of applying CHIMP to the private sector.
§ Baroness Hayman
There is no intention of applying the commission to the private sector as regards providing care for private patients. However, we recognise that it might well have a role in relation to the provision of service to NHS patients in private establishments. It is in those circumstances that the need for some flexibility of terminology may arise.
We discussed the provisions about quality and the commission in regard to the private sector very late at night. I made it clear then that the commission would have a role to play both in the provision of care to NHS patients in private institutions and indeed in the provision of private care to private patients within NHS institutions.
§ Lord Clement-Jones
I thank the Minister for that reply. However, I agree with the noble Baroness, Lady Fookes, that the response raises more issues than even I had thought of when I tabled this probing amendment. The problem with these inspections is that they will be undertaken without the trust really having much say in the matter. The commission will review or investigate and, despite the fact that the charges will be set by the Secretary of State, the trust will really have no say in it. It will not be a contractual bargain; indeed it is not like a piece of management consultancy being undertaken by the commission.
1422 I accept the fact that the Audit Commission may well have been able to do exactly the same in the past, but I am afraid that I do not believe that that is necessarily the best course for the commission to follow. The point was rightly made by the noble Baroness, Lady Fookes. I say that because if we look at it closely, we have to ask: where does the money come from? For example, an NHS trust may be charged by the commission for undertaking a review. It may have been a particularly bad assignment which cost a great deal of money. Where does that money come from? Well, it comes out of management fees, IT costs or something of that nature. What we are saying is that a failing hospital actually has to pay more to CHIMP than perhaps the more successful hospitals. That kind of spiral cannot be correct. However, if the Minister then says that the Secretary of State will ensure that such a hospital has enough in its budget to pay the commission in those circumstances we are just talking about exchanging wooden dollars between the NHS trust and the Department of Health. That does not seem a very sensible way forward.
I shall seek to withdraw the amendment, but clearly we shall need to look again at the matter on Report. It seems to me that there are potential problems for budgeting at NHS trust level if the Secretary of State simply allows CHIMP in due course—I accept the fact that it may well take place over a period of time—to levy charges on trusts where it has not been part of their request for CHIMP to come in.
§ 6.30 p.m.
§ Baroness Hayman
I am grateful to the noble Lord for those comments. I tried to make it clear that we were talking about moving towards a system where more of the commission's work was directly funded locally. The noble Lord may have highlighted a situation involving great difficulties where a major investigation is carried out where this provision is not necessarily appropriate. As a general rule we believe that this provision will encourage greater involvement in reviewing an investigation and will lead to wider ownership of the results, particularly when an organisation has invited the commission to investigate.
However, I must put the other side of the argument. If this can be done only at the invitation of an organisation, that could enable people to opt out of monitoring their arrangements for clinical governance. That would not be appropriate. I am happy to consider the issue in the light of the comments that the noble Lord has made but I believe that some of the problems that have been highlighted are perhaps not as great as the Committee may think.
§ Lord Clement-Jones
I thank the Minister for that reply and particularly for her undertaking to consider my comments. I understand the comments she has made. I also understand that a trust will become more involved in this matter if it is picking up part of the bill. But if at the end of the day budgets are effectively reduced, albeit not as regards patient care, that will constitute a considerable injustice when these organisations are trying to improve standards by inviting CHIMP to 1423 monitor them. In many respects standards are improved as much through the money that is spent on patient care, as perhaps through the number of managers in a hospital, through IT or through other aspects.
§ Baroness Hayman
But the money does not grow on trees. If the commission were centrally funded by the Department of Health, the money would be top-sliced from the money that would go into patient care nationally. It is not that we suddenly have extra resources for patient care; it is a matter of whether the money is taken off through top-slicing or at the individual institution level. We should not think that there is a pot of gold to meet the cost if it is not met within the health service.
§ Lord Clement-Jones
I fully accept that and I shall not extend this debate any further. However, one faces a situation where one simply exchanges "wooden" money between trusts and the Secretary of State, unless the trusts which are under the greatest degree of investigation by CHIMP effectively pay CHIMP's costs in the future and therefore cut their budgets in some cases in the very areas where they need to make improvements. Therefore they are working with one hand behind their backs. I shall withdraw this amendment but I may return to it on Report. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 109 and 110 not moved.]
§ Lord Clement-Jones moved Amendment No. 111:
Page 12, line 15, at end insert—
("( ) Notwithstanding subsection (2) the Commission shall be entitled to exercise any of the functions set out in subsection (1) as a result of its own decision or on a complaint being made by a member of the public or of NHS staff.").
§ The noble Lord said: One of the key issues surrounding the powers of the commission for health improvement concerns whether it will be able to exercise its functions of its own motion, or whether in every case it will effectively work only at the behest of the Secretary of State. It is important that we should clarify for the purposes of this debate whether that is the case.
§ This amendment would mean that the commission could exercise any of its functions in response to a complaint from a member of the public or NHS staff. This could include complaints or concerns raised by CHCs or other groups representing patients or users. It is important that the commission for health improvement should be able to respond to concerns raised by members of the public, community health councils, NHS staff and the professional organisations that represent them. In the past staff have sometimes felt powerless to raise concerns about poor practices or low standards because of the fear that they would be victimised for whistle blowing and that no positive changes would result. Certainly such representations have been made to me. I welcome the steps the GMC has taken in this direction. A culture where genuine whistle blowers are shunned or bullied out of their jobs 1424 must be consigned to the past and a more open culture of effective clinical governance must prevail. For the Government's agenda of improving quality in the NHS to succeed it will be vital that effective systems of clinical governance are created, but these need to be broadly based involving all professional groups with no single group having dominance. Clinical governance will need to incorporate clear procedures for staff to follow if they are concerned about failing standards.
§ For all of this to work it is vital that NHS staff and the professional organisations representing them are able to raise concerns directly with the commission. Although this provision may be rarely used, it is important that staff feel able to make changes from within the workplace and speak openly to their managers about standards and quality of care.
§ Therefore we believe that for the commission to carry public confidence it must have the power to respond to concerns raised directly by the public. A full investigation may not always be necessary in every case, but the commission must be set up in a way which allows it to be responsive to public concerns. This could lead in some cases to problems being nipped in the bud as public concerns could trigger early intervention from the commission rather than having to wait until the problems are so grave that they reach the attention of the Secretary of State. I beg to move.
§ Baroness Cumberlege
I understand the Government's wish to establish national bodies such as NICE and the commission for health improvement and to establish service frameworks. However, I think there is a penalty to be paid for all of this. I understand what the noble Lord, Lord Clement-Jones, said about whistle blowing and staff having an opportunity to express their concerns when they feel there is a low quality, low standard of service being provided. But the penalty of that is that all the time one is bypassing local management, and indeed management higher in the chain. Staff who wish to make a complaint have opportunities to do so. They can make a complaint to their immediate managers, the chairman of the board and the non-executive directors. They can also approach their professional bodies and trades unions. They can approach the ombudsman and local MPs. As regards employment issues, there is a whole legal framework in terms of tribunals and other such provisions. In certain circumstances they can approach organisations such as the Commission for Racial Equality.
I am concerned that if we give more and more power to these bodies that are being established, they may not adopt a light touch. If they are given more and more power I believe that to some extent they will undermine local management. We know that the NHS succeeds where it has managers who are imaginitive, who are prepared to take risks, who know their staff, who walk the wards, who are involved in the community and work with voluntary organisations. These are the people who inspire others and obtain a much better quality of service from their staff. We should support those people. I am concerned that if we build up these mega bureaucratic, 1425 centralised organisations, we shall undermine the very people we should support. I am afraid that on this occasion I cannot support the amendment.
§ Baroness Hayman
This has been an interesting if short debate. I hope I can help by clarifying what I believe is the middle course that the Government envisage the commission taking between removing completely any idea of local responsibility for these issues and retaining the flexibility to respond when a matter that is raised by an individual, or a member of staff or anyone else is one that is appropriate for the commission to take forward.
The commission is being established as an independent body at arm's length from government. It is our intention that regulations made under Clause 15(2) will not prevent the commission exercising a discretion as to when it may carry out its reviews. This amendment raises the issue of NHS staff and members of the public being able to raise concerns directly with the commission. They will, of course, be free to do so. The commission will consider these and may decide to take action in a number of ways.
The commission's primary focus will be on organisational systems rather than the care provided to individual patients. But where an individual complaint indicates a wider significant clinical problem in an NHS organisation, the commission may wish to follow this up. It might, of course, wish to draw some complaints to the attention of the appropriate body; for example, the health service commissioner in cases of complaints about the care and treatment of individual patients, or the appropriate regulatory body where the concern is raised about the performance of individual clinical staff. The commission would, if it wished, be able to advance the place of an NHS trust or primary care trust within its rolling programme of local reviews as a result of concerns raised by the public or members of NHS staff about service problems that require continuing local action.
The commission may also wish to raise concerns about the public or a member of staff directly with the appropriate regional office, the NHS Executive or the health authority to check on progress made by the organisation concerned and to provide supporting evidence for the concerns. As a result, it might be agreed that the commission investigates further. The commission may also raise concerns brought to its attention by the public and NHS staff with the Secretary of State who will be able to direct the commission to investigate where necessary.
In all this, it will be important to ensure that the commission's help is targeted where help is needed most; that its approach is consistent with the objectives and priorities set for the NHS; and that the commission operates with regard to existing NHS mechanisms for assuring quality and tackling local service problems. I think that that is the issue to which the noble Baroness, Lady Cumberlege, referred. For example, there are already well-established arrangements for patient complaints, both locally and, ultimately, to the health service commissioner. The commission for health improvement is intended to complement these and not 1426 to be a substitute for them. I agree with the noble Baroness that, where they are working properly, that is the proper route through which individual concerns should be addressed in the first instance.
The new clinical governance arrangements which we are introducing to strengthen arrangements to assure and improve quality will provide clear channels for staff to voice concerns and to take account of patients' views, including concerns raised through the NHS complaints procedure. The commission will of course look at these aspects of clinical governance as part of its general programme of reviews.
I hope that the noble Lord will feel that there is already ample scope for patients and staff to raise concerns and for these to be properly and appropriately followed through. I hope therefore that he will feel able to withdraw his amendment.
§ Lord Clement-Jones
I thank the Minister for that reply, which I thought entirely satisfactory in terms of what will be regulated for under subsection (2) of Clause 15. If it comes about in the way she suggests, access to the commission will be entirely as we would have hoped. I do not think that anything she said or I said goes counter to the wish to keep the procedures, particularly since clinical governance will be a quite complicated area, as simple as possible. It is obviously the case that staff will try to gain remedies at local level under local clinical governance procedures. But as a safety valve, when other things fail, the commission may well be a useful port of call. The noble Baroness made clear that that will be available to members of the public, CHCs and staff in an entirely desirable manner. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 6.45 p.m.
§ Earl Howe moved Amendment No. 112:
§ Page 12, line 17, leave out ("be absolutely privileged") and insert ("have qualified privilege").
§ The noble Earl said: In an earlier debate I made so bold as to introduce a metaphor involving jungle animals—perhaps it was a little too colourful for the time of night—but, as beasts of the jungle go, "CHIMP" will, without doubt, be a creature wielding considerable power and influence if it so chooses—a power of entry to premises; a power to seize documents and information; a power to breach patient confidentiality in a surprisingly wide set of circumstances, which we will be discussing later; and, as we see from Clause 15(2) and (3), a power to say what it likes about someone and then to charge him for it.
§ I am sure we all understand that if a body like a commission is set up matters have to be arranged in such a way that it can do its job properly. But, equally, if it is to command universal respect from clinicians as well as patients and the public its powers have to be used responsibly. Many of CHIMP's functions will be advisory, but where it engages in the business of what is sometimes referred to as "naming and shaming"—something that no doubt it will need to do on rare occasions—it is important that it sets about its task in a 1427 sober, dispassionate, conscientious and expert fashion. It will not rush to conclusions; it will listen to both sides of the case; it will look at clinical treatments and clinical judgments in their full context; and it will take expert advice. The result of that measured deliberation will, I trust, be a published report which commands universal respect and confidence. That is the aim.
§ The point I want to stress is that it is not simply the result of the commission's work that needs to be right but also the way in which it reaches that result. Clause 15(3) provides for the publication of anything by the commission to have the status of absolute privilege in law. Very few bodies enjoy that privilege in statute. Absolute privilege is conferred by statute on the ombudsman, the MMC, the Director General of Fair Trading and certain statutory tribunals. It means that if something is uttered or written that enjoys the status of absolute privilege, it automatically falls outwith the scope of the law of defamation.
§ The question posed by my amendment is this: is it appropriate that the commission for health improvement, for all its important functions, should be able to say and write with impunity exactly what it likes about anyone? Qualified privilege, as proposed in the amendment, is a status which confers similar protection to absolute privilege, the difference being that it affords no protection against a suit for defamation if the publication concerned is shown to have been made with malice. To utter something with malice, as I understand the term in law—although I stand to be corrected by those more learned than myself—is to utter it knowing or believing it to be false or with a reckless disregard for the facts. The consequence is that if you say or write something in good faith and advisedly, a court will protect you in any suit brought against you for defamation.
§ The Government are saying in the Bill that the commission may not even be taken to court. It can say or write whatever it likes, even with a reckless disregard for the truth. But, as I pointed out, a reckless disregard for the truth is the very antithesis of the way that CHIMP will set about its work, or so we hope—and hope is all that we can really lay claim to at the moment. For a body with the extensive powers that it will possess, I believe it is right that the Bill should encourage it to use those powers responsibly.
§ I am the first to admit that we do not want to provide encouragement to anyone who might wish to try his luck in court by serving a libel writ on the commission, but I put it to the Committee that if the commission is as professional as we would all wish it to be, that is not a realistic anxiety. If the commission is not as professional as it ought to be, then a citizen who believes himself to have been defamed should enjoy the right of recourse through the courts. I beg to move.
In my opinion my noble friend Lord Howe has moved a very important amendment. I hope that the noble Baroness, even if she cannot give a complete answer today, will consider the matter very carefully. I agree with my noble friend's statement of law. However, as the wording of subsection (3) stands, 1428 it is not merely a matter of the publication of formal reports, or annual reports, by the commission; the subsection provides that,the publication of any matter by the Commission shall be absolutely privileged".That must be wrong. It could mean that if a letter is written by the commission or on its behalf which seriously damages the reputation of any nurse, doctor, dentist, health worker, or anyone else involved in the work of the National Health Service, whoever has written that letter can get away with it scot-free. That would be utterly wrong. I cannot believe that that is the Government's intention. If the noble Baroness is going to give a serious answer, perhaps she will say whether an exact precedent can be quoted in support of this provision. I doubt whether she can.
Absolute privilege is very limited indeed. I shall not enumerate the various circumstances in which it may arise. Some examples are reports of parliamentary debates; reports of judicial decisions; documents arising in the course of the law such as in indictment, and so on. To include in the Bill this huge opportunity for serious defamation entering a person's whole life is utterly wrong.
§ Baroness Thomas of Walliswood
In following the noble Lord, Lord Renton, on such a matter, metaphorically speaking I take my life in my hands. I certainly shall not challenge anything that the noble Lord has said.
I can understand that the Government might wish the commission, in publishing material, making reports and so on, not to be the subject of the kind of challenge that people and organisations might make even if they have been justifiably criticised because that criticism might make them less able, as it were, to attract custom. I can see why the Government might wish to provide that particular privilege. However, at the very least, it lays a considerable burden on the commission. The "naming and shaming" approach that we have seen in other inspectorates in different parts of the jungle (if I may use that expression) has been very damaging to the institutions so named and shamed. Indeed, it has often been entirely irrelevant to the good conduct of those institutions.
At the very least we need some reassurances as to what might result from subsection (4), which provides that,The Secretary of State may give directions with respect to the exercise of any functions of the commission".What directions, if any, have the Government planned in order to circumscribe in any way the considerable powers that the noble Earl, Lord Howe, and the noble Lord, Lord Renton, drew to our attention in introducing the amendment?
§ Baroness Fookes
I am not a lawyer. However, this was one of the phrases that struck me forcefully when I first read the Bill. I am delighted that my noble friend Lord Howe has presented this amendment as an 1429 alternative to qualified privilege. The noble Baroness will have a hard job to prove to me that this is not a right and proper amendment.
§ Lord Walton of Detchant
This is a matter of fundamental importance. I wholly agree with the remarks made by the noble Earl, Lord Howe, and the noble Lord, Lord Renton. A number of situations have arisen recently whereby the publication on the Internet of documents placed before various public inquiries has given considerable concern as they have been exceptionally critical of various bodies and individuals. I believe that publication on the Internet would be covered by this provision. Qualified privilege is right, but absolute privilege would be totally wrong.
§ Baroness Hayman
This has been a brief, but deeply felt debate. I have listened very carefully to the opinions that have been expressed. I should say at the start that I concur with the analysis made by the noble Earl, Lord Howe, of the way in which the commission should approach its task. It should adopt a considered approach. There are responsibilities here of a broad and deep order, as well as important areas in which the commission will be able to contribute to public protection.
In the phrasing of the Bill as presently drafted there is absolutely no intention that the provision of absolute privilege should be used as some sort of smokescreen for behaving in a way that is less than proper in these areas. As I am sure noble Lords agree, it is important that the commission is able to be frank and open in identifying areas for improvement. It will be in the best interests of the public for the commission to have the ability to make clear where NHS organisations are failing to meet their statutory duty. It would also be in the public interest that the commission's resources are not unnecessarily diverted into supporting litigation and that the publication of reports is not improperly delayed because litigation is entered into for that purpose rather than any other.
I wish to reassure the noble Lord, Lord Renton, that this provision is not unprecedented. Bodies similar to the commission have statutory provisions of absolute privilege for their reports for the purposes of defamation. That includes the Health Service Commissioner, the Parliamentary Commissioner for Administration, the Occupational Pensions Regulatory Authority, the Director-General of Fair Trading and the local government ombudsman. So this provision is not outwith the line for other bodies operating in similar fields.
Absolute privilege will not be a licence for the commission to act recklessly. It will be bound by the rules of natural justice and will have to act fairly. It will therefore be the general practice of the commission to give an organisation that it proposes to criticise in its report a fair opportunity to comment before publication. It is not the task or aim of the commission to assess or make public a clinician's individual performance. The commission will look at organisations' abilities to provide high-quality care and the systems that are in place. If it finds evidence of poor individual 1430 performance, it will draw that to the attention of the employing organisation to take action, and may, if appropriate, bring it to the attention of the professional regulatory body concerned.
If a report were to contain defamatory material, an aggrieved individual could seek to prevent publication by seeking an injunction; but by conferring absolute privilege the person would not be able to institute such proceedings. However, in public law the person would be entitled to take judicial review proceedings if the procedure adopted by the commission had been unfair. That would provide some safeguards to the healthcare provision professionals who are the subject of the commission's investigations.
So the provisions as they stand on the face of the Bill are not completely outwith areas of—
I thank the noble Baroness for giving way. Will she bear this in mind? As I recollect, the cases that she mentioned, and was justified in mentioning, are much more restricted in the grant of absolute privilege. On the other hand, this provision refers to:the publication of any matter by the Commission".I am sure that the other cases mentioned by the noble Baroness do not go so far as that, although I should need to refresh my mind and go into the detail of them. I hope that she will bear that in mind.
§ Baroness Hayman
I shall bear it in mind and I shall investigate all the bodies that I have mentioned. As far as the pensions regulatory body is concerned, for the purposes of the law of defamation, the publication of any matter by that authority is absolutely privileged, so that is an analogous situation. However, I do not want to rest simply on precedent. Grave concern has been expressed by Members of the Committee. If the Committee will permit me, I shall give further consideration to the matter and perhaps we can return to it at a later stage.
§ 7 p.m.
§ Baroness Gardner of Parkes
I have not intervened previously because I have agreed with everything that has been said. However, during the debate on the National Health Service some weeks ago I raised the issue of privilege in relation to internal inquiries in hospitals and referred to the fact that no privilege attached to those cases, as a result of which there was a disincentive for findings to be made completely open and clear. Will the Minister consider an extension of privilege in respect of such cases? Perhaps it would be appropriate to bring forward an amendment at a later stage of the Bill.
§ Baroness Hayman
I cannot give a commitment to bring an amendment forward, but that issue is the counter-balance to the one we have been considering today. I undertake that when I look at the question of whether absolute privilege is appropriate here I shall 1431 also investigate the matter which the noble Baroness raised as to whether some qualified privilege might be appropriate in other cases.
§ Baroness Knight of Collingtree
There has been a very slight shift of view from the Minister during the course of the debate but it has been so slight as to leave me without any feeling of confidence that the matters raised by my noble friends will be properly addressed. I cannot see why the slight change in wording from "be absolutely privileged" to "have qualified privilege" should be so hard to accept bearing in mind the clear feeling of Members of the Committee who have great experience in these matters. The Minister said at the beginning that she must listen but not that she must act. She later moved to say that she would consider the matter further. I hope that there will be a clear attempt to meet the concerns of Members in all parts of the Chamber.
§ Baroness O'Cathain
For once I disagree with my noble friend. I think that the Minister has moved considerably. Perhaps the problem is the shorthand way in which we talk about these matters. I congratulate the Minister because she has listened and has heard. We hope that she will come back with what we consider to be the right statement.
§ Baroness Hayman
I am grateful to the noble Baroness. Obviously I did not express myself clearly. I was trying to suggest to the Committee that the Government's original proposals were not without precedent and that we did not think that they were without merit but that I had listened carefully to the considerable concerns expressed in the Committee and that I should like a little time to consider the issue in the hope that we might be able to bring forward something at a later stage that would be satisfactory to the Committee.
I am extremely grateful to the Minister. She is, as we all know, a listening Minister. What she has said is all that I could reasonably expect of her at this stage, after what has been a very useful debate. I am extremely grateful to all Members who have spoken.
Frankness and openness is all very well, but it cuts two ways sometimes. It is all too easy to imagine a situation in which it can lead to grave unfairness. The point of my amendment was to suggest that qualified privilege was a more than adequate substitute for absolute privilege. It would allow CHIMP to be totally frank and open because it would be possible to challenge it effectively only if it were shown to be malicious or if the information was known to be false.
I agree with my noble friend Lord Renton. I am not sure that the other examples of absolute privilege are entirely relevant in this context. We are relying on an assurance from the Minister that CHIMP will be entirely responsible. We all hope that it will be. She believes that it will be and I am sure that most Members of the Committee believe it will be, but that is all we can say at the moment.
1432 The point raised by the noble Lord, Lord Walton of Detchant, is extremely pertinent. The accidental release of otherwise confidential documents or comments on the Internet or indeed in any other way makes one all too conscious of the issues here.
My final comment relates to what the Minister said about judicial review. I do not believe that judicial review would provide a proper safeguard. It would allow for challenges against the commission's work only where it was seen to be ultra vires or in matters where the commission had judged in its own cause. I am not clear that judicial review is an adequate substitute. However, I am grateful to the Minister for what she said and for the time being I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 113 and 114 not moved.]
§ Clause 15 agreed to.
§ Clause 16 [Obtaining information etc.]:
§ [Amendments Nos. 115 to 117 not moved.]
§ Lord McColl of Dulwich moved Amendment No. 118:
§ Page 13, line 22, after ("individual") insert ("or a deceased person").
§ The noble Lord said: In moving Amendment No. 118, I should like to speak also to Amendments Nos. 119 and 121 and 124 to 128. These amendments concern patient confidentiality.
§ Amendments Nos. 118 and 124 are designed to ensure that deceased persons and patients no longer in contact with their doctor have the same rights to confidentiality over their medical records as do individuals who are still alive.
§ Amendment No. 120 is designed to ensure that even if an individual cannot be traced their confidentiality should be protected. We believe that CHIMP should not be able to name individuals in its reports or disclose their details until 30 years after the recorded death of an individual. It is odd that the commission is able to make public details of patients without any hindrance immediately after their death. Publication of details, especially relating to the recently deceased, can cause distress to relatives and friends. Moreover, they would have no say as to whether such details can be made public because CHIMP has, or may have, absolute privilege in respect of what it says. They would have no recourse to law if damaging or otherwise incorrect details were made available about relatives who had recently died. We feel that a reasonable period of time should elapse before disclosure.
§ I am sure the Committee will agree that personal health information is collected for the provision of care to individual patients and generally should not be used for other purposes without the patient's permission. Only where there are exceptional circumstances may information be used without consent—for example, where disclosure is essential to avoid a risk of death or serious harm to people and it is not possible to obtain consent.1433
§ The grounds for disclosure must be of sufficient severity to justify a breach of the duty of confidentiality. That duty of confidentiality extends to all patients and endures beyond their death. The law relating to statutory rights of access prohibits doctors from disclosing information which patients gave on the understanding that it would remain confidential. As with living patients, this confidentiality may be breached only where it is essential to protect the vital interests of others.
§ Amendments Nos. 119 and 121 seek to provide a better safeguard against the identification of patients from documentation or information that is available to the commission. If the standard is simply that an individual cannot be identified from the documentation or information alone, that is a major cause of concern. The amendments seek to raise the level of protection of the patient's identity akin to that set out in the Data Protection Act 1998. Amendments Nos. 127 and 128 seek to raise the standard of reasons for disclosure to the same splendid standards as those issued by the General Medical Council. I beg to move.
§ Lord Walton of Detchant
I very warmly support these amendments, although I have minor reservations about whether it is necessary to place on the face of the Bill a specific time limit upon the disclosure of such information. During my presidency of the General Medical Council many years ago a spirited debate took place on the whole question of whether it was ever proper for a medical historian in writing a book or paper to disclose information about an individual who had died some time ago. That issue was highlighted by a book review published in a prestigious medical journal. Information in an anonymous review had made it clear that the author of the review had known the public figure who was the subject of the book being reviewed and had in consequence disclosed some quite disturbing confidential medical information. That had raised a great deal of anxiety. The GMC stated very clearly that in the doctor's duty of confidentiality to his or her patient the death of the patient did not absolve the practitioner from that responsibility. Hence, I believe it to be very important that this issue should be clarified. For that reason I warmly support the amendments.
I am disappointed to learn that the Government have decided that CHIMP should not apply to the independent private health sector. The Registered Homes Act 1984 covers a number of independent hospitals but not a very large number of private hospitals that now provide a wide range of acute care. At Second Reading I expressed concern about the fact that there was no legal protection at the moment, at least not in statute, against an individual working as a non-clinical member of staff in a private healthcare organisation disclosing confidential information about a patient. The noble Baroness was kind enough to write to me in detail about this issue. She indicated that not only were such staff subject to a statutory duty, as under the Data Protection Act 1998, to respect the confidentiality of information, but that they would also have a personal common law duty of confidence to both patients and their employers.
1434 However, the BMA remained concerned in that it believed that common law protection was not enough. The commission and its staff must comply with these duties. On the rare occasions on which CHIMP required access to confidential patient information this would occur only in limited circumstances. CHIMP would be able to access such information only with consent and that would be looked at by a clinical member of the CHIMP review or investigative team. I was reassured to learn from the noble Baroness that the Government proposed to introduce a new criminal offence relating to the unauthorised disclosure of confidential information by the commission, its staff or those working with the commission in the exercise of its functions. But I pose the following question: does that proposal cover individuals who may in the past have worked for the commission or, for example, a private healthcare organisation? Does the duty of confidentiality persist even after that individual is no longer employed by the commission or that other health body?
§ 7.15 p.m.
§ Lord Clement-Jones
I rise to speak to Amendment No. 126, which is part of this grouping. However, I have considerable sympathy with the other amendments in the group. In particular, I believe that we must listen with care to the observations of the noble Lord, Lord Walton, about this matter not being four square with the way in which clinicians currently believe their duties of confidentiality must he exercised. Can the Minister say what consultations have taken place with the medical profession on the provisions of this clause? Clearly, this is a matter of considerable importance. Amendment No. 126 itself arises out of concerns on the part of the medical profession. Although previously, under the Police Act, the medical profession was entitled to disclose information only when a serious criminal offence had been committed, we now find that under the provisions of this Bill the word "serious" has been deleted. The secondary legislation under the Police Act drew attention to the special sensitivities of medical confidentiality. Certainly, those representatives of the medical profession who have made representations to me do not wish to see the confidentiality of information exchanged between a patient and doctor compromised. How is this provision to be exercised? More generally, is there any way in which we can beat out a common set of provisions on confidentiality with which clinicians can be perfectly happy and which the Government find acceptable?
§ Baroness Hayman
This set of amendments and the debate upon it rightly highlights a very important issue regarding the confidentiality of information relating to individuals and the intention to protect that wherever possible. We intend and expect that information that is produced by the commission should, wherever possible, be in a form that protects the identity of the individual. The intention is that the circumstances in which information that identifies an individual is obtained without consent are kept to the absolute minimum necessary to ensure that the commission is able to fulfil 1435 its functions with access to essential information subject to necessary safeguards. It is a difficult balance to strike and it is important that we get it right.
I turn to the specific areas of concern that have been raised in the debate. As to Amendments Nos. 119 and 121 relating to the anonymising of data, the Government expect confidential information to be produced in the form in which the identity of the individual cannot be ascertained wherever possible. Where the relevant document or information is produced in such a form the existing provisions under Clauses 16(2)(a) and 17(3)(a) allow for the obtaining or disclosure of such information. Where information is obtained or disclosed under these provisions the intention is that the documents or information should be anonymised or produced in a statistical or summary format so as to protect the identity of the individual concerned. We do not intend that the information should be in a form that enables the commission to identify the individual using other information already in its possession. That is the concern to which Amendments Nos. 119 and 121 are addressed.
If access to such information, put together with other information held by the commission, could enable the commission to identify an individual clearly it would not be in a form in which the identity of the individual could not be ascertained. The disclosure would therefore not fall within those permitted by Clause 16(2)(a).
We believe that the existing provision largely achieves the result intended by this amendment and recognises the issue to which the noble Lord, Lord McColl, drew attention. The effect of the amendment would be to insert an explicit test on the face of the Bill. It will be the person or body who holds the relevant information who must anonymise or otherwise ensure that the information is in a form that protects the identity of the individual. The holders of the information may not be aware of exactly what information is in the hands of the commission. It would be even more difficult for them to assess with certainty what information the commission is likely to obtain in the future. We are concerned therefore that the amendment as phrased will impose too heavy a burden on the holders of confidential documents as it will require them to make a difficult judgment about what might be ascertained from their information when placed together with material outside their control.
The Bill includes scope to make regulations imposing any further safeguards that may be necessary. The safeguards on the face of the Bill are not necessarily the only safeguards. I should be happy to consider further the case for regulations on that point within the appropriate framework that I think the Bill sets.
Important points have been raised. I should like to take away for greater consideration the question of how we ensure that the identity of individuals is protected further. Clauses 16 and 17 set out limited circumstances where the commission will be able to obtain or disclose information which has not been put in the form in which the identity of an individual cannot be ascertained. In particular, we have had a debate about information 1436 relating to a deceased person which is covered in Amendments Nos. 118, 124 and 125, or untraceable people, in Amendment No. 120.
If the safeguards in Clauses 16 and 17 on disclosure of information on living individuals were extended to deceased people as proposed in the amendments, the commission would be able to obtain such confidential unanonymised information only in the limited cases where consent to release of the information was not required. Similarly, if Clause 16(2)(c) were removed, the commission could not obtain information about an untraceable individual other than in these circumstances.
It may be helpful if I refer in more detail to the protection of information about deceased people since the legal position here is complex. We believe that the amendment would seem to go beyond existing law in this area. The application of the common law of confidentiality to deceased individuals is not altogether clear. But what seems clear is that no one has a legal right to give consent on behalf of a deceased individual to the release of information about him although the individual's personal representatives may have certain other rights. For example, they are able to sue in respect of rights that have passed into the estate of the deceased individual—for example, rights in relation to land and other property.
In the absence of anyone legally able to consent, the statutory restriction proposed by the amendment would unnecessarily restrict the commission's ability to disclose information where it thought it necessary or appropriate to do so. Perhaps I can give some examples of the kind of circumstances in which that would be a worrying constraint. If the commission, when conducting an investigation, considered it a threat to the health and safety of patients, it would be able to obtain the information under provisions in Clause 16(2)(d). However, it might not always be immediately apparent without further investigation that the quality of services provided by a particular organisation constituted a threat to the health and safety of patients. In those cases, where confidential information might provide clear evidence to support various concerns about the quality of care provided by a service, the commission might wish to obtain that information. The health and safety of others could be at risk if that information was not obtained. The commission might also feel that it needed to disclose the information to an appropriate person such as the relevant regulatory body. The proposed amendments would stand in the way. While it would be wrong, I believe, to prohibit the commission accessing the information in those special circumstances, I recognise the sensitivities and importance of proceeding with due care, paying particular regard to the concerns of the relatives of the individual concerned. The noble Lord, Lord Walton of Detchant, made clear why we should take these issues seriously.
On safeguards regarding untraceable people, where it appears that an individual cannot be traced the commission would need to ensure that all reasonable efforts had been made to trace them. The commission would work closely with the organisation concerned in the attempt to ascertain the patient's whereabouts in order to obtain consent. As regards deceased people it 1437 is a difficult and sensitive area, as we have said, and it is appropriate for safeguards to be put in place. I should like to consider what further safeguards might be imposed by regulations under Clause 16(1) concerning the commission's access to the information or directions given under Clause 15(4). In addition, we expect that the commission will draw up appropriate guidelines for the obtaining of disclosure of confidential information about deceased patients, including any arrangements for obtaining the consent of relatives.
Perhaps I may reply to the specific question from the noble Lord, Lord Walton of Detchant, as to the persistence and duty of confidence even when an employee is no longer in the employment of the institution, the commission, involved. Yes, indeed, Clause 17(2) applies to any person who knowingly or recklessly contravenes that subsection. It would include past as well as present employees of the commission.
I turn now to Amendments Nos. 126, 127 and 128 which cover circumstances in which confidential information relating to an individual could be obtained or disclosed. First, I give the overall reassurance that such information would be released only when it was in the public interest so to do. In connection with a criminal offence—Amendment No. 126 deals with that—under Clause 17(5)(e) the commission will be able to disclose information,in connection with the investigation of any criminal offence triable in the United Kingdom".We would want the commission to be able to disclose such information if it could facilitate a criminal investigation and if it were considered that this would be in the best public interest.
The proposed amendment would allow such information to be disclosed only in connection with investigation of a serious triable offence. The difficulty is to categorise exactly what would be serious in this context. I suggest that perhaps it is wise not to be drawn into the attempt. Such cases would be extremely rare and we would not want to put restrictions on the face of the Bill. Judgment on whether the public interest in maintaining the confidentiality of personal information is outweighed by the public interest in detecting and prosecuting crime is, I suggest, best made in the individual case. However, I should be happy to consider what further guidance or secondary legislation we might frame to cover those rare eventualities which might give some comfort to noble Lords who have been supporting the amendments.
I move to the situation where an individual is considered to be a threat to health and safety under Amendments Nos. 127 and 128. Clause 17(5)(h) allows the disclosure of information about an individual without consent where that same individual is likely to constitute a threat to the health and safety of individuals. Again, the information would be disclosed only to those to whom it was in the best public interest that it should be disclosed. For example, if in the course of an investigation the commission discovered that an individual health professional was threatening the health and safety of individuals, it would want to pass that information on to the employing organisation, or, if 1438 appropriate, the relevant regulatory body, for it to take appropriate action to prevent any further threat to individuals.
The amendments state that disclosure should be made only where there is a serious risk to individuals. Again we face the problems of definition. But I cannot accept that where the commission has clear evidence of a threat to health, falling short of death or serious harm, it should overlook it. The commission will have experienced clinicians on its team who will he able to decide whether there is such a risk to health and safety that information about an individual should be disclosed. I can tell the Committee that similar provisions also apply to the health service commissioner who is not limited to disclosure in cases where there is a risk of death or serious harm.
It may help the Committee if I add that we are satisfied that these provisions are consistent with the European Convention on Human Rights which concerns the right to respect for private life. The article provides that a public authority may not interfere with the right unless such interference is in accordance with the law and necessary in a democratic society in the interests of, among other things, public safety or for the protection of health. We consider the provisions in the Bill fall within that exception. I should like to make it clear that it is not the intention that the commission will name and shame individuals, but it must be able to pass information to the appropriate people or bodies when that is in the best public interest.
In discussion we have been carefully through the clauses. In phrasing them we have sought to strike the right balance between safeguarding patient confidentiality and allowing the commission to act in the best interests of patients and the public.
Some points were raised in respect of which we would wish to consider further safeguards either through regulations or guidance. I hope that the Committee will consider that that will correct any imbalance it feels exists on the face of the Bill and I hope that the noble Lord will feel able to withdraw his amendment.
§ Lord Walton of Detchant
In respect of one provision which the Minister said she would reconsider, it might be helpful to consider the exact wording of the advice given to the medical profession in 1984 following the passage of the Police and Criminal Evidence Bill. It was that it was proper for a doctor to breach confidentiality in order to assist the police in the investigation of a grave or very serious crime.
§ Baroness Carnegy of Lour
The Minister made one point which I cannot accept, but I am grateful that she will reconsider the matter. As regards Amendment No. 118, which refers to deceased people, she said that no-one has the right to give consent on behalf of a deceased person. All right, but we did not previously have the commission with its draconian powers and she must consider how that will affect the position of the relatives of deceased people.
1439 I believe that 30 years, which my noble friend thought would be a suitable period after which someone might be named, is very short. I think of one of my parents who died 30 years ago and know that I would intensely dislike her name to be produced in such circumstances. This is not a matter of balance; it is a moral judgment. I suggest that the Government should be very careful about it.
§ Lord Clement-Jones
I thank the Minister for that extremely careful reply. We on these Benches will wish to consider it and digest it further. However, it confirms the need for consultation with the medical profession. We cannot have a situation in which doctors and others involved in healthcare are obliged to disclose information which is against their code of professional ethics. The noble Lord, Lord Walton, said that previous definitions have been found. I am sure that with the noble and learned Lord the Lord Chancellor present in the Committee we could easily find a definition of a serious crime in a matter of minutes and amend the Bill forthwith. The fact is that there has been a previous definition with which the medical profession were happy. I urge the Minister to meet representatives of the profession between now and the Report stage not only in respect of Amendment No. 126 but the other serious points made during the debate. The length of her reply showed the seriousness with which she took those points and I thank her.
She mentioned certain safeguards; for example, that disclosure would take place only when it was in the public interest. That is a wide interpretation and could butt up against professional ethics. I believe that consultation with the medical profession could bear fruit on this most important issue in the Bill.
In my experience, the seriousness of a crime is defined by the length of the sentence which can be given for it. I see crimes separated into serious and less serious in other legislation and I am surprised that the department does not. Perhaps if it looked at the legislation of other departments it might find it such a definition.
I am concerned with Amendments Nos. 127 and 128. The Minister appeared to be saying that any individual with a venereal disease, however insignificant in terms of the risk to life or longevity of the person to whom it is passed on, would have no protection under the Bill as drafted; because of necessity they posed a risk to the health of other people that information could be divulged. I believe that that would be an undesirable change in the law.
§ Lord McColl of Dulwich
I, too, thank the Minister for her thorough and careful reply. I was encouraged because she gave the impression that there would be a lot of discussion about the provision and perhaps some rephrasing. It is looser than the regulations of the General Medical Council, in particular with reference to Amendments Nos. 127 and 128, and it would be much 1440 better if it were tightened up. I thank her again for her thorough reply and beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 7.35 p.m.
§ Lord Hunt of Kings Heath
I beg to move that the House do now resume. In moving the Motion, I suggest that the Committee stage begins again not before 8.35 p.m.
§ Moved accordingly, and, on Question, Motion agreed to.
§ House resumed.