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287WH Candour in Health Care 1 DECEMBER 2010 Candour in Health Care 288WH [Dr Pugh] between the NPSA and the other operations of that body? It crosses my mind that risks can allegedly be increased or decreased by commissioning decisions themselves. Under those circumstances, the NPSA has got to be free to impute itself, as it were, if the national commissioning body is going to be part and parcel of the same organisation. So, can the Minister assure me that there will be no conflict of interest when the NPSA is placed within the national commissioning body, which may itself—through its commissioning procedures—be one of the risk factors? Anne Milton: The hon. Gentleman is absolutely right. That is terribly important. It is not only important to have Chinese walls and be seen to be separate; it is important to be separate. I will come to that point in detail in a minute. Measuring openness is not as straightforward as measuring reporting. We welcome high levels of reporting, as they are an indicator of an open and supportive culture of patient safety, but there are still reasons why people within the NHS and organisations shy away from openness. Without a doubt, professionals who strive for excellence are reluctant to admit errors. The higher up the tree one is, the harder it is to say, “I’ve made a mistake.” All of us face that issue in our professional lives. People may have unfounded concerns about possible admissions of liability, even though apologising when something has gone wrong is not in any way an admission of liability. The fine line between the two sometimes prevents people from saying what relatives want to hear: “I am so sorry this happened.” That is not necessarily saying, “I have made a mistake.” It is such a shame when professionals resort to a defensive stance, often encouraged by myths about where liability lies. Also, at times, they may fear reprisal, blame and even bullying. We are considering options for introducing a requirement for openness and will make a decision in due course. The hon. Member for Southport felt that we were hesitating, and was concerned about possible evidence of Sir Humphreys in the Department. We are considering, not hesitating. It is important to get it right. Members have discussed the three options, but I will run through them quickly and mention a few relevant issues. The first option is using what is in the existing Care Quality Commission registration requirement regulations. It is already mandatory for NHS trusts to report all serious patient safety incidents. We could also require organisations to demonstrate that they have met the openness requirement, which would not require new legislation. It makes sense to use existing means to detect and investigate trusts that are not as open as they should be. The counterargument is that that approach is not specific enough, and that the wording of the guidance would need to be made more explicit. We have seen many cases in which guidance has failed. The second option involves introducing a new legal, statutory duty of openness explicit within the CQC regulations. That would send a clear signal about the importance of openness and provide patients and campaigners with a single clear duty that they could use to demand full disclosure. However, the Government want to create new legislation only when absolutely necessary, although when necessary, it should be done. We would need to ensure that any new legislation or new approach was not counter-productive. We want to make it easier for staff to come forward; we do not want new legislation to have unintended consequences. The third option involves incorporating an openness requirement into the new NHS contractual, performance and commissioning processes, to which the hon. Members for Leicester West and for Southport referred. It certainly appears possible to pursue openness through the new commissioning arrangements. For instance, it could be written into standard NHS commissioning board requirements that providers commit to being open. The hon. Member for Leicester West asked whether the NHS commissioning board would have time to take a role on patient safety. In many ways, safety underpins all commissioning decisions. Any decision on any service commissioned should have safety wrapped around it. That is fundamental. As with any complex matter, each of the options has its pros and cons. It is imperative that a decision on the issue is not rushed. I reassure the hon. Lady that campaigners and organisations have good access to officials within the Department, and I am sure that all their views will have been taken into account when a decision is made, because we are aware of the importance of getting it right. It is terrible to think that the first duty of the NHS is to do no harm. Safety wraps around everything that we do. The hon. Lady also mentioned the decision to abolish strategic health authorities. I understand that SHAs are the performance managers of trusts, yet that did not help in Staffordshire. In many ways, bringing commissioning decisions closer to the patient within general practice will mean that decisions about care and its consequences rest where they should. Liz Kendall: The Minister raises the important issue of Stafford and the lessons to be learned there, and says that the SHA did not take action. Obviously, we will wait for the outcome of the independent inquiry, but as responsibility will move to GP commissioning consortiums, can she tell us whether any of the GPs in the area raised concerns about Stafford, or whether any of them have submitted evidence to the inquiry? I am not aware that they have. Anne Milton: I did not point a finger at the SHA; I pointed out that SHAs were performance managers. Where performance fails, one must ask oneself what was happening in the management of that performance that it could fail so abysmally. The hon. Lady must not forget that the GP consortiums will involve a much wider range of professionals in commissioning decisions than just GPs, including a lot of people involved in care. They will not necessarily consist only of NHS professionals. Voluntary bodies and other organisations that provide care will also have input. The sad truth is that when things go wrong, relatives want to know what happened, as my hon. Friend the Member for Poole pointed out, but they do not always find out. They want the truth and honesty, but we often see precisely the opposite. Doors close, the shutters go down and NHS organisations resort to a defensive stance, sometimes quite aggressively. My hon. Friend
289WH Candour in Health Care 1 DECEMBER 2010 Candour in Health Care 290WH mentioned his constituents the Byes and the Powells, who have campaigned endlessly for the truth and continue to campaign. I pay tribute to all the people, some of whom we do not know about, who use their own tragic circumstances to ensure that the same thing does not happen to others. Their efforts should never be underestimated. Tom Brake: The Minister said that the NHS sometimes adopts an aggressive stance. I remind her of my question to her about the possible impact of withdrawing legal aid in clinical negligence cases. Often, families use such cases as a way of trying to secure an apology because one has not been forthcoming. If that option is not available to them, it reinforces the need for a duty of candour. Anne Milton: The hon. Gentleman pre-empts me by a second; I was about to come to legal aid. My experience is that even with legal aid, the courts are rarely an option for most people. Allowing discretion on the reporting of near misses would, I fear, open another minefield beyond which people could hide, as he also mentioned. I have certainly brokered meetings between NHS organisations and my constituents to try to bring them together and make the NHS organisations stop feeling so defensive. I have been an advocate for people in my constituency just so they could hear what happened. I should think that many hon. Members rely on personal relationships, particularly within hospital trusts, for such purposes. Maybe they know a supportive medical director to whom they can say, “Look, this family, this couple or these relatives just want to know what happened; this isn’t going to go anywhere.” That is a leap of faith. The NHS organisation has to say, “Fair enough”. When that happens, closure can follow. The hon. Member for Southport rightly pointed out that accidents occur across the NHS and mentioned, in particular, the failure to diagnose in general practice. That is an ongoing, rumbling issue that I hear about not only as a constituency MP, but as a Minister. I thank him for recognising that the solution to getting to a situation where we have effective measures in place to ensure candour is a dilemma. It is not an easy decision. He is also right to point out that the NHS is not alone in protecting itself. My goodness me, we know a lot of professions that close their doors when one of their members is under attack—the legal profession is one. People just want the truth, but sadly the shutters go down and the doors close, and closure cannot be achieved. Mr Syms: I am pleased with the way the Minister is responding to the debate and recognise that a statutory duty of candour is one of a range of measures that the Government are considering. However, if they decide not to take that route initially, it is important that they do not rule it out, because the culture change that is needed might not come about as a result of what they are doing, but we will still need to get there at some point. I still think that a statutory duty of candour would be the biggest and most successful leap towards that goal—the hon. Member for Carshalton and Wallington made a good point on that—but even if the Government choose not to go there, they should not rule it out, because I think that ultimately that is where we will end up. Anne Milton: I thank my hon. Friend for his intervention and am sure that the report of this debate will aid people in making their decisions on the matter. On the point raised by the hon. Member for Carshalton and Wallington on legal aid, I understand that the Ministry of Justice proposal on restructuring and refocusing the scope of legal aid is currently out for consultation. There will still be an exceptional funding route for those not eligible for legal aid, but he might want to raise that specific point with the MOJ because it is important. The hon. Member for Southport rightly picked up on the fact that we included in the White Paper the principle of “No decision should about me, without me”, and that probably needs to be extended to situation where harm happens. A few Members mentioned international precedents, but we must be slightly careful, because what happens abroad cannot necessarily be transported to this country. Those precedents tell us that there can be problems in adopting a statutory duty of candour. It can be difficult to measure success and, therefore, find any evidence of where success or failure has occurred. We must also be mindful of the differing health care and legislative environments that exist around the world when looking at international examples. In Pennsylvania, for example, we have been told that a complicated set of requirements makes enforcing its version of a statutory duty particularly problematic. In conclusion, there are complex issues at play in relation to a statutory duty of candour, and views are held on both sides of the argument for and against such a duty. What we can say, as has been documented in the White Paper, is that we are absolutely set on achieving that change in culture to achieve openness and candour in the NHS and all organisations that provide care. We are exploring those complex issues carefully. The culture of secrecy and denial is a disease that needs to be cured, but to do so we need to understand and treat its causes at their source, rather than simply treating the symptoms with an ineffective plaster. As my hon. Friend the Member for Poole stated, the start of the healing process is about learning the truth. The Government will need to decide how we can provide the environment, with or without legislation, in which the truth can come out immediately—in a timely fashion— and openly. We need inspirational leadership and highly developed management skills in our NHS leaders to create that change in culture to create an open atmosphere among staff, not the closed culture that we have seen. We need a culture that replaces the fear of the consequences of openness with the courage to recognise that openness, honesty and truth will, ultimately, not only give families what they need to heal their wounds and achieve closure, but allow staff to learn from their mistakes, raise their standards and raise the bar on their professional standards. The Government will consider all that when making the decision, but Members should rest assured that everything that has been said today and all the effort to highlight the issue will be taken in account to ensure that we get the right system in place to give people what works. 10.55 am Sitting suspended.
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