My Lords, as noble Lords know, the Opposition support the Bill. However, issues have been raised which I hope the noble Earl, Lord Howe, will help to clarify.
I should like to pick up my noble friend’s point about whether this issue is raised at institutional or individual level. It looks as though the Bill focuses on individuals. Will the noble Earl confirm that it is his view that responsibility ultimately lies with the corporate boards which are responsible for the activities taking place in the National Health Service? If that is so, why does the Bill not list those bodies which it covers so that it would be clear who should take corporate responsibility?
Secondly, I take the noble Earl back to the Statement he made last week about Morecambe Bay. It was very telling when he talked about the concerns raised by Dr Bill Kirkup about the lack of a culture of openness and transparency. He said that,
“this report makes clear that there is a long way to go. It seems medical notes were destroyed and mistakes covered up at Morecambe Bay, quite possibly because of a defensive culture where the individuals involved thought they would lose their jobs if they were discovered to have been responsible for a death. However, within sensible professional boundaries, no one should lose their job for an honest mistake made with the best of intentions. The only cardinal offence is not to report that mistake openly so that the correct lessons can be learnt”.—[Official Report, 3/3/15; col. 160.]
Will the noble Earl say very clearly that that point, which I agree with, is not in conflict with the Bill, and in particular with Clause 1? It is very important—the
last thing we want to do is discourage people from being open about mistakes. We do not want that to be an unintended consequence of the Bill.
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The noble Earl sent me a very helpful letter after Committee because I had raised the point that every NHS body in the country reports annually hundreds of incidents of mishap to patients. I want to be clear on whether, because of that and the provisions of Clause 1 in particular, it would be possible to say, once the Bill is enacted, that every NHS hospital would be in breach of the duty in Clause 1. He said in his letter that,
“harm will only be ‘avoidable harm’ if it cannot reasonably be avoided … providers will be required to take all reasonable steps to make sure that the care they deliver is provided in a safe way in order to comply with the regulations. It is also a defence to criminal proceedings brought for a failure by a provider to provide care in a safe way to show they took all reasonable steps and exercised all due diligence to prevent the breach occurring”.
The noble Earl went on to give a very helpful example. He said that,
“in a case where an individual doctor makes a prescribing error that results in a reportable patient safety incident or near miss, if the provider had taken reasonable steps to prevent such an error (through its medicines management arrangements, training, supervision and so on) then it would not constitute a breach of the regulation”.
I should be grateful if the noble Earl could clarify from the Dispatch Box whether that is the correct assessment. Again, it would be very useful to our understanding of how the Bill’s procedures will be implemented.
The noble Lord, Lord Ribeiro, will know of the WHO checklist, which is meant to be gone through by surgical teams before they start a surgical session. It is known that virtually no organisation in the UK reaches 100% application of that checklist. It is also known that some consultant surgeons refuse to take part or show clearly by their attitude during the check that they do not agree with the practice. I would like to know who is responsible in that context. If the noble Earl says it is the organisations, that would suggest that they are in breach if they do not take disciplinary action against consultants who do not engage enthusiastically with the WHO checklist. I know that it is difficult to answer specific examples, but it would get to the heart of some of the issues people have with the current definitions in the Bill.
This is a very important Bill that is clearly aimed in the right direction. We are all committed to reducing harm, and avoidable harm, in the health service, but it is important to understand where, exactly, responsibility lies.