Health and Care Bill — House of Lords, 2022-02-09
Topic: Health
Terence Etherton (Crossbench, Unknown): My Lords, I have added my name to Amendment 311 in the name of the noble Baroness, Lady Neuberger. The heart of the complaint which has prompted the amendment is that the Bill fails to provide a proper balance between the role of the HSSIB and the role and standing of the PHSO, and it fails to recognise and provide for the PHSO to be treated as part of the HSSIB’s safe space under the Bill The Bill’s prohibition on disclosure by the HSSIB to the PHSO of material obtained by the HSSIB in connection with its investigation of incidents that may have implications for patient safety impedes the statutory functions of the PHSO, diminishes the standing of the PHSO, is contrary to the independent, non-judicial constitutional role of the PHSO, and is contrary to the UK’s obligations as a member of the Council of Europe and the United Nations regarding ombudsmen The PHSO in his role—and it is a "he" at the moment —as the Parliamentary Commissioner for Administration acts pursuant to the statutory framework in the Parliamentary Commissioner Act 1967; and, as the Health Service Ombudsman, he acts pursuant to the Health Service Commissioners Act 1993. Under those statutes, his role is to investigate complaints by members of the public who claim to have suffered maladministration or to have sustained injustice or hardship in the delivery of a health service The legislation which I have just mentioned effectively gives the PHSO unrestricted access to evidence and other information in order to carry out his investigations fully and effectively. As the noble Baroness, Lady Neuberger, has said and as is obvious, there will often be an overlap between the work of the PHSO and that of the HSSIB both in respect of particular incidents and in relation to general inadequacies in practice and procedure—reference has been made to eating disorders and learning disabilities. There are very limited exceptions under the Bill for disclosure by the HSSIB of protected material to third parties. These do not include routine disclosure of evidence and information which is relevant to investigations by the PHSO, who will be able to obtain such material only if he obtains an order from the High Court. This is so even if both the PHSO and HSSIB are investigating the same incident and even if the PHSO in his capacity as parliamentary commissioner is investigating a complaint by a person of maladministration on the part of the HSSIB itself. This simply does not make any sense. Notwithstanding the observations made by the noble Baroness, Lady Young of Old Scone, it seems that the restriction on disclosure is based on a misunderstanding about the confidentiality of material held by the PHSO and about the safe space in which he currently operates. The legislation governing the PHSO provides that he must conduct his investigations "in private". Subject to limited exceptions, the PHSO is not permitted to disclose to third parties information obtained in the course of an investigation. Disclosure cannot be made by the PHSO in any circumstances where that would be contrary to the public interest. Information obtained by the PHSO is also subject to absolute exemption from disclosure under the Freedom of Information Act 2000. No persons are identified in the PHSO’s reports, and names are anonymised. Mirroring the safe space provisions in the Bill for HSSIB investigations, reports of the PHSO do not apportion blame to individuals, and do not assess or determine civil or criminal liability or whether disciplinary action needs to be taken Furthermore and critically, the terms of the proposed amendment would impose a complete legal block, prohibiting the disclosure to a third party of any protected material disclosed to the PHSO by the HSSIB except by order of the High Court, and then only for certain very limited purposes. The effect of the existing statutory provisions and the conditions in the amendment prohibiting disclosure to third parties mean that the PHSO and the HSSIB fall legally and naturally within the same safe space As presently worded, this will be the first occasion on which the PHSO’s access to information will have been curtailed. At the same time, in extending the right of disclosure of the HSSIB’s protected material to coroners, the Bill discloses an incomprehensible inconsistency, since not only are inquests increasingly adversarial, as has been noted by a number of speakers, but such disclosure is not allowed by the PHSO under the PHSO’s governing legislation. As the noble Baroness, Lady Neuberger, has said, ombudsmen are internationally regarded as having a constitutional role in addressing the imbalance of power between the individual and the providers of public services, and in their autonomy and independence from the executive and judicial branches of government. That constitutional role is enshrined in the Venice principles adopted in 2019 by the Council of Europe and by the UN’s General Assembly in 2020. A written opinion of the Venice Commission, published in October 2021, concluded that the exclusion of the PHSO from the safe space created by the Bill, and denying the PHSO to full access to the HSSIB’s protected material, would be contrary to the Venice principles. It would therefore place the United Kingdom in breach of its international obligations. The amendment is, for all those reasons, both necessary and desirable.