---

Health and Social Care Bill

moved Amendment No. 150: 150: Clause 116, page 63, line 25, leave out ““may”” and insert ““would, if the case were proved,”” The noble Earl said: In moving the amendment, I shall speak also to Amendment No. 151. We now come to the sensitive issue of information sharing. Clause 116 provides for regulations to be made to require NHS trusts and other bodies to provide and share information about healthcare workers in circumstances where that person, "““is likely to constitute a threat to the health and safety of patients””." There is an issue here that I am sure all noble Lords appreciate. Sometimes there can be a situation in a hospital where a doctor or healthcare worker has been found to have put patient safety at risk through some aspect of his practice. Let us say it is a doctor. If that doctor moves to another hospital, there needs to be a way for that hospital to be aware of the adverse incident. I have little problem with that. Where I have a problem is with a system of information sharing that fails to draw the line between hard facts and soft intelligence. There is all the difference in the world between an adverse incident that has been investigated with the full knowledge of the doctor concerned and where the facts have been firmly established and unsubstantiated rumblings about something that might have happened. It is not acceptable for unproven gossip or tittle-tattle to be treated as if it were fact and passed on as such. If a concern arises about the performance of a hospital doctor, whether from a firm allegation or simply as a product of the rumour mill, an employer should investigate to see whether there are any grounds for the concern and the doctor should be informed of what is going on so that he can comment on it. This is in the interests of the doctor as well as everyone else. Any doctor will understand how important it is for him and for his patients that concerns of this kind are properly investigated and dealt with. Then, if the concerns turn out to be unfounded, they should be removed from the doctor’s file. What an employer should not do is to allow soft intelligence to lie on a file when that does not amount to grounds for serious concern. All that that does is create a delay in acting on the concerns as well as the potential for misunderstanding on the part of anyone reading the file about the limited value that the information has in protecting patients. It is also inherently unfair to the doctor. With modern appraisal and clinical governance systems there is no reason for that sort of thing to happen. The national clinical assessment system is in operation across the country. If an issue for any reason needs to be taken up the chain, the GMC can issue a warning or retraining order in circumstances where a doctor’s fitness to practice is not completely impaired. All those systems are designed to address concerns about professional competence in a timely and businesslike way. The other aspect of this, as I have indicated, is the need for the doctor to be aware of any concern that may be raised about his performance. If he is not, there is huge scope for false information to be spread about and the doctor will have had no opportunity to give his side of the story or to put the record straight. On the other hand, if the concerns turn out to have substance, the doctor will have had no opportunity to improve his conduct or performance so as to prevent a similar problem from arising in future. The difficulty that I have with this part of the Bill lies in subsection (1)(a), which refers to, "““the sharing of information which relates to the conduct or performance of any health care worker and which may show that that worker is likely to constitute a threat to the health and safety of patients””." It is the word ““may”” that we need to look at. Left unqualified, it looks far too tentative and wishy-washy. The noble Baroness, Lady Finlay, has tabled an amendment that would substitute ““shows”” for ““may show””. In other words, if I understand her intention correctly, the information would have to consist of proven fact before it could be passed on. I have considerable sympathy with that amendment. The reason for my own less tight amendment is that there could be circumstances in which serious concern could arise about the performance of a doctor where there was no opportunity to investigate it before the doctor moved from one employer to the next. In those circumstances, it would be irresponsible for the first employer to do nothing at all about passing on the concern, even though the allegation might as yet be unproven. But in those sorts of case, the sine qua non is that the doctor himself should be informed of exactly what information has been passed on to the other employer. To be honest, I think that there is a case for marrying up the amendment proposed by the noble Baroness with my own, so that the clause would refer to, "““information which … shows, or would, if the case were proved, show that the worker is likely to constitute a threat””." The noble Baroness may disagree with that, and I shall be interested to hear what she has to say, but she and I can certainly agree that the current wording will not do. These are important issues. I hope that the Minister will feel able to look at them afresh. I beg to move.