Health and Care Bill — House of Lords, 2022-03-16
Topic: Health
Richard Balfe (Conservative, Centre-right): My Lords, my only previous intervention on the Bill came about when I read the proposed clause, and in my capacity as a trained mediator I thought that the original proposed clause was not very sound. The proposed new clause is a huge improvement on that, and I hope it will be looked on with favour. As the noble Baroness said, it is about evening up the power relations If you are in a hospital and dealing with anyone who is ill, but particularly small babies, it can be a very difficult experience. My daughter-in-law had two very small twin babies. Gathered around the incubator were one PhD and three decent BScs, and we did not know what to do. We felt quite powerless, but we also felt that it was very difficult to get the doctors to tell us what the prognosis was. In fact, the prognosis was quite good—they recovered and are now both in the school football team—but at the time there was on our part a great sense of powerlessness and a feeling that the doctors did not feel they really needed to communicate with us. That level of powerlessness is what this aims to address It is about early access to independent mediation. The first qualification of a mediator is that independence. They will not get a result, and nor should they, unless they have the trust of both sides and unless both sides enter into it in a good spirit, looking for a solution. Finally, if they get a solution, it has to be one that sticks. That is why the amendment refers to "the senior doctor with overall clinical responsibility." This cannot be a mediation where a junior member of the medical staff is sent along, where it has no binding effect and where the senior doctor looks at it and says, "I don’t like that; we’re not going to do that." There has to be some sort of legislative backing However, as noble Lords will have seen, the amendment states: "Where the authorities … become aware of the difference of opinion they must take … reasonable steps." It is all about getting consensus; it is about releasing medical data to both sides, and it is about ensuring that the doctors responsible for treatment are at least obliged to listen to any alternatives that the parents might wish to put forward When we last debated this issue, I advised—and indeed this has been done—that we knock out the financial provisions, because we thought that the Government would object and say, "We can’t sign a blank cheque." However, clearly not all the people listened, because this very morning the Ministry of Justice released its Legal Aid Means Test Review, which states: "We are proposing to increase significantly both the income and capital thresholds for legal aid eligibility, and remove the means test entirely for some civil cases. These include legal representation for children, and legal representation for parents whose children are facing proceedings in relation to the withholding or withdrawal of life-sustaining treatment." It rather shoots the government fox that was running around, does it not? It was said that mediation would encourage litigation, whereas now mediation will discourage litigation, because it will be in the interests of both the health service and the medical profession to make mediation work. In making it work, they will not have days and days in court, but they will have a chance of putting the case to a mediator—having been one, I can tell you that it is a lot cheaper than a barrister—and coming to an agreement without needing the great generosity of our Deputy Prime Minister, Dominic Raab, in offering to pay all these costs. I must say that I was surprised by that statement, but if anyone wants to read it, there are multiple copies in the Printed Paper Office, which is where I got mine I hope that the Minister will be able complement his colleagues in the Ministry of Justice by taking a positive attitude to curing this particular result. Otherwise, we will be in a position where the Department of Health and Social Care is saying no to mediation, but where we are now going to get free access to the law courts to run up huge bills. What the Ministry of Justice does not say is which departmental budget will pay for this concession. I would not mind placing a little bet as to which one it has in mind. So I am asking the Department of Health and Social Care to save itself some money, thanks to the beneficent amendment proposed by the four noble Baronesses and supported by me. We are out to save the Government some money, to make it much easier and to build into the system a right for parents to have a more evenly balanced say in what happens to their child at what is a very difficult and distressing time for many of them.