here - United Kingdom Parliament

271WH
Candour in Health Care
1 DECEMBER 2010
Candour in Health Care
272WH
[Mr Robert Syms]
into force in April 2010. That introduced a statutory
requirement on health care organisations to report
anonymously incidents that caused harm to the national
incident reporting system. However, it did not include
an equal requirement on the organisation to inform the
patient or their relatives.
Therefore, an organisation is not currently in breach
of the regulations if it covers up an incident from
patients or relatives. It may be bad practice, but there is
no real sanction as long as it sends an anonymous
report to the system. An organisation will be ticked off
if it does not send a report for the purposes of national
measurement, but it will not be ticked off it fails to be
open and honest with a patient or their relatives. Let me
draw the Chamber’s attention to a document produced
by Action against Medical Accidents entitled “The
need for a statutory duty of candour in healthcare.” It is
a good article for those who want to look at the more
detailed requirements involved.
I pay tribute to my constituents, Derek and Joan Bye.
As MPs, we deal with many constituents, but Mr and
Mrs Bye have had to put up with a horror story following
the death of their daughter, Helenor Bye, who died on
27 April 1978 in south Wales. There was a catalogue of
medical errors. The parents were lied to, records were
altered and their MP, John Morris, then the right hon.
Member for Aberavon, held a debate in the House of
Commons on 27 November 1979, volume 974, columns
1253-64. He called for a public inquiry, although that
was turned down.
The situation was compounded by the fact that body
parts were taken from Helenor Bye, some of which have
been returned over the years. The last time body parts
were received by the parents was in 2005. They have
been through the most horrific period because of what
happened to their daughter, what happened subsequently
and, more importantly, because all along the line they
felt that they were being lied to and that people were not
being open and honest. Mr and Mrs Bye have become
doughty campaigners for a more honest and honourable
system of health care. They have also campaigned on
their concerns about the drug Epilim. I cannot do
justice to that campaign today, but if any journalist
wants to know what can go wrong, I advise them to
look at the case of Mr and Mrs Bye. They have had a
very rough time.
Action against Medical Accidents calls for a change
in the law and the introduction of a statutory duty of
candour. It is called “Robbie’s law” because of the case
of Robert Powell, who died on 17 April 1990, aged 10.
His parents have campaigned for over 20 years to try
and get justice. Similar things happened to them, such
as changed medical records, and there was a catalogue
of events, but they still do not feel that they have justice.
Their campaign has continued under several Secretaries
of State. The case is currently with the Welsh Assembly,
and Mr and Mrs Powell are waiting to hear whether
there will be a public inquiry into what happened to
Robbie. Will Powell, who feels passionately about putting
right what happened to his son and getting to the truth,
has been a doughty campaigner for a long time. I pay
tribute to him.
All the people whom we are talking about are, in their
own way, fighting for the truth, not only to find out
what happened to their loved ones, but so that such
things do not happen again to someone else. This
debate is about setting out a context and a better way of
doing things, so that we have a much more honest and
honourable system and families do not have to spend
10, 20 or 30 years going through absolute hell. Mr Bye
told me that the start of the healing process is learning
the truth and knowing what has happened to one’s
relative. That is a very important point.
The Government have two options to consider. They
can go for an explicit duty or for more guidance. Ministers
often go down the guidance route. When the NHS
constitution was being debated in the previous Parliament,
the then hon. Member for Wyre Forest, Dr Richard
Taylor, who served with me on the Health Committee,
raised the issue of openness and whether we could go
further down that route. He was informed by the then
Minister of State, Mike O’Brien, “No, we can do it all
through guidance,” yet guidance so far has not produced
the results that we need.
Department of Health officials met representatives
of Action against Medical Accidents and other stakeholders
on 16 November 2010, when the two options were
discussed in some detail. I shall go through the pros and
cons of both. Option 1 is no new statutory duty but
refreshed guidance in respect of the existing CQC
regulations. The pros of that are that it would require
no new legislation or change in the regulations.
Dr John Pugh (Southport) (LD): Is not the difficulty
with guidance the fact that guidance is already in place
and any other guidance would simply reiterate what it
says? Clearly, guidance by itself is not doing the trick in
this case.
Mr Syms: The hon. Gentleman makes a very important
point, because we have to change the whole culture of
the national health service and I am not sure whether
guidance will do that.
An argument can be made that the existing CQC
regulations, backed up by clearer guidance, could be
interpreted as making it a requirement to be open. For
example, regulation 17 has been cited. It says that
service users should be provided with adequate information
and support in relation to their care or treatment. The
guidance could clarify that that includes telling them if
something has gone wrong. However, one of the cons is
that, as the hon. Member for Southport (Dr Pugh) said,
that would be in effect no different from the current
situation. Such guidance and the existing regulations
already existed when the policy to introduce a requirement
was agreed. They were clearly not seen as sufficient
then.
Given that the Department of Health was of the firm
opinion previously that the existing regulations, even
with the guidance alongside them, did not constitute a
statutory duty to be open with patients when things go
wrong—because at that stage they were not supporting
a statutory duty—it is hard to see how that could be
credible now.
Such a measure would be unlikely to be enforceable.
Lawyers would no doubt have a field day if, given the
above, the CQC tried to impose sanctions on a trust
based on such a tortuous and dubious interpretation
when the opportunity to be clear and specific had not
been taken. Even if such a measure were enforceable,
the CQC would be unlikely to give it a high priority,