National Assembly for Wales

I'm pleased to move formally, Chair. The purpose of our amendments in this whole section, really, not just section 1, is to try and put some meat on the bones of what we mean when we talk about quality. It seems self-evident that we cannot talk about a quality of service without talking about the people who are providing the service and whether we've got enough of them in the right place.

Our intention was to build—except for section 4—on what the committee has already decided needs to be improved in the Bill, so I don't propose to speak at great length, but just to say that this particular section deals with workforce and appropriate staffing levels, and it seems clear to us that if we are going to legislate about quality, we need to have some idea of what that means. As a first step, we need to ensure that the service is staffed adequately. So, I therefore move amendment 19 and the other amendments in this section proposed by myself.

Thank you, Chair, and the amendments that we've tabled are amendments 68 and 69, and so I move those. I'd like to first of all say that we understand and support the drift of the Bill, but all of our amendments are tabled here to try to improve it and to ensure that there is further clarity in some areas and protection in other areas. We will be supporting all the amendments put forward in this stage by Helen Mary Jones. As to our amendments—amendments 68 and 69—they underpin the committee's recommendation from Stage 1, committee recommendation 4, on specific provisions about appropriate workforce planning.

We've worked specifically with the British Medical Association to understand the real issues about the real-time staffing assessments and risk escalations and to ensure that they are covered within the duty of quality.

Amendment 68 outlines that the Welsh Government must take reasonable steps to ensure that there's a sufficient number of specific healthcare staff, including nurses, midwives, and medical practitioners. I want to pick up on maternity services in particular because it was heartbreakingly clear in the case of Cwm Taf that a number of factors, including an insufficient level of midwives, caused a catastrophic collapse there in the provision of safe care. So, we believe it is Welsh Government's duty, through this Bill, to try to ensure that this kind of thing is not repeated again.

Welsh Government is yet to routinely report on the full picture of midwifery vacancies in Wales. In their last state of maternity report in 2018, the Royal College of Midwives stated there were around 1,400 midwives in Wales, but did not report on vacancies. I'm not saying there are vacancies, but we need to know because if we know, then we can plan. Healthcare Inspectorate Wales's national review of maternity services in Wales is scheduled to report in the summer of this year, but without this key data on an ongoing basis, rather than a one-off review, we are not sure about our levels of staffing.

The first part of our amendment 69—a duty to ensure appropriate staffing—is intended to hold the Welsh Government to the same standards and expectations as NHS bodies, and it does require the Minister to demonstrate what action has been taken to achieve this. I accept that this is an amendment you're unlikely to wish to accept, Minister, but we do feel, as this was one of the strong committee recommendations that was cross party, that we must hold the Minister and your Government to account on the strictest possible terms in regard to this. [Interruption.] Excuse me, I've got a frog or two in my throat.

The second part of that is a duty to have a real-time staffing assessment in place, and we believe that that will ensure that regular staffing assessments are routinely practised and held as part of this duty. We want to see these things happen in real time, instead of only responding to appeal procedures months or years from months or years before.

It's clearly an issue, especially with regard to nursing levels. While it's been nearly four years since the Nurse Staffing Levels (Wales) Act 2016 was passed, the Royal College of Nursing is still concerned that neither the Welsh Government nor NHS Wales publish national figures for nursing vacancies using an agreed definition of what constitutes a vacancy. We believe that annual data published by the Welsh Government does not adequately reflect patient need or service development, including co-morbidities and the fact that we have a seriously ageing population.

The third and final part of our amendments is the duty to have a risk-escalation process in place. We believe that will give every single member of staff a clear mechanism to raise concerns if they're working in settings where they feel that the available levels of staffing are not conducive to safety. This is all about underpinning that duty and about ensuring that we have patient safety and staff safety.

Thank you, Chair. Of course I support the principle that there must be sufficient staff in our national health service, and having the right staff in the right place with the right skills. But I'm firmly of the view that laying amendments at Stage 2 of this Bill is not the appropriate mechanism for enacting a change of this magnitude. And I think, actually, the amendments go significantly beyond the committee recommendations.

It's worth considering the nurse staffing levels Act. That benefits from years of planning and considerations of practicability and financial ramifications. It was subject to the full scrutiny that we would expect from a landmark piece of legislation. Applying any principles of that Act to all other clinical staffing groups in Wales without the same degree of consideration and scrutiny would, in my view, be inappropriate and inconsistent. It marks a significant whole-system departure from the nurse staffing levels Act without the scrutiny, evidence and challenge that Members in all parties provided for that piece of legislation.

As with our nurse staffing levels Act, the new Health and Care (Staffing) (Scotland) Act 2019 relies on prescribed staffing level tools that we refer to in Wales as evidence-based workforce planning tools. In Wales, the evidence-based workforce planning tools are currently developed only in relation to the two settings that are subject to the current section 25B duty in the nurse staffing levels Act. The amendments would impose a blanket duty across the service in the way that they're drafted once implemented, and I don't think that's a practicable way to achieve the objective.

It's not just my view, of course, as acknowledged by the Royal College of Nursing in their evidence, a change of this magnitude is not something that they believe is suitable to try and achieve by way of an amendment. When you consider not just the headline measures, but also the process measures that are set out in Angela Burns's highly detailed amendments on the face of the Bill for the reporting mechanisms, you'd have to do a considerable amount of financial work on workforce implications as well as the availability of staff and having the tools necessary to calculate staff in different settings.

The proposed amendment is, in essence, that blanket extension of section 25A of the nurse staffing levels Act, and that is a duty on health boards and trusts, not on Welsh Ministers. I want to say that the duty of quality we have is deliberately broad. It captures all aspects of the health service and relates to everything the health service has responsibility for. Workforce considerations are clearly a key enabler to meet the duty of quality, as I've stated before in both the committee at Stage 1 and in the Stage 1 debate in the Chamber. No body can ensure it secures services that are, for instance, safe and effective and provide a good experience unless they have given consideration to the types and numbers of staff needed to achieve it. In moving forward on the duty of quality, we're using the internationally recognised definition of quality put forward by the former Institute of Medicine in the United States. As I've said, having the right staff in the right place with the right skills—they are in effect the main resource needed to secure improvements in quality, and staffing in and of itself is not defined as meaning quality.

I can't support the amendments put forward in this area, and it will be for NHS bodies to demonstrate that full consideration has been given to workforce matters in discharging the duty of quality. The NHS already has arrangements in place to ensure that managers and senior decision makers are informed of staff shortages where that could present a risk to patient safety. Those include actions taken in hours and out of hours, and they include arrangements to report to executive board members in real time as well. We also, of course, have procedures, whistleblowing procedures, within the national health service as it exists, in addition to the protection offered by the Public Interest Disclosure Act 1998 as it amends the Employment Rights Act 1996. The challenge is a rather more practical one, and the culture within a workplace, rather than the actual headline employment rights that exist. The statutory guidance that we're proposing will deal with the application of the duty across all functions of the health service, and could highlight, for example, the importance of workforce planning, alongside the requirement to consider securing improvements through areas such as prevention, health improvement and taking action to address inequalities.

So, I'd ask Members not to support this, and allow us to move forward with the comprehensive guidance we expect to co-produce with healthcare and social care professionals and patient representatives. 

Just to say, briefly, Chair, that my group's view of this Bill as it stands is that it is so broad and so much a skeleton as to be entirely vague, and the whole purpose of legislation ought to be to place detail and for people to be clear what the requirements are. The Minister has acknowledged that the staff are the main resource, that they are the main drivers of quality, and therefore I am surprised that he is not prepared to at least consider the principle behind the amendments and whether perhaps something broader could be brought forward at the next Stage.

As I said, our instinct was that this Bill was not fit for purpose and should be voted down. All the amendments that we've put forward are an attempt to put some meat on the bones and to give the health bodies who'll have to deliver this some actual clarity about what the requirements of them will be. So, I do still intend, despite what the Minister's said, to move the amendments in this group tabled in my name. 

Thank you, Chair. The first group of amendments—20, 26, 32 and 38—again, the intention of all of these is to put a bit more clarity into what we mean when we talk about quality. This group of amendments incorporates the duty for the prevention of ill health into the Bill and to appropriate bodies. The next set of amendments, which I really would hope that Members will be able to support—22, 28, 34 and 40—incorporates a specific duty to reduce health inequalities. Now, this, of course, is something that is regularly raised in the Chamber. We all know that services that are provided to poor communities tend to be services that are not of the same high standard as they might be. I think we—well most of us, at least—would acknowledge that part of the issues that arose in Cwm Taf arose from the fact that these are services provided to poorer communities that may be less able to articulate their concerns, less able to ensure, themselves, that they get quality of service. Therefore, we feel that, if we're going to legislate for quality, we don't want to be legislating for a vague concept, we want to have some clarity about what that means, and I would have thought that particularly the Members opposite would want to include that commitment to the reduction of health inequalities. 

The next set of amendments—23, 29, 35 and 41—incorporate the requirements for services to be available through the medium of Welsh. We know that that is not only a question of people's human rights to receive a service in their language of choice, but we know that particularly older people and children are more likely to make a better and swifter recovery if the services are provided for them in their own language. It seems to me entirely consistent with this concept of quality and with other legislation in this place that we should include, as part of the definition of 'quality' and what we mean by 'quality' in this legislation, the requirement for services to be available to people through the medium of Welsh when they need it. We have seen recent examples of the possible devastating consequences of not having a clear duty in this regard, with the risk, recently, of an elderly gentleman who had lost his capacity to speak English at all at risk of being sent to a specialist facility, from the north of Wales, in England, where there would have been nobody with whom he could communicate. These proposed amendments in this legislation would prevent health authorities from trying to do this kind of thing, and they would be clear about their duties and their responsibilities. So, I therefore move all the amendments in this group. 

Yes, I'd just like, Chair, to add my support to these amendments. The Welsh Conservatives tabled pretty much identical amendments at Stage 2, so we are very keen to see these go through, and we do totally agree with the importance of the inclusion of Welsh in the provision of health services. The case that Helen Mary has just referred to is not the way we should be treating people, and we would like to see these amendments go through. 

Diolch, Cadeirydd. I have a deal of sympathy with the objective you've talked about around health inequalities, but it would—I guess my question to the Minister is whether it's appropriate to put something like this on the face of the Bill. Because it would seem that the late Dr Tudor-Hart's concept of the inverse law of care, the idea that we need to shift things upstream, that we need to be preventative, that we need to deal in those communities where the greatest inequalities are underpins the health service and should underpin everything that it does—. I'm not sure that—. I am not sure that it needs to be laid out on the face of a Bill, but I would be seeking some clarity from the Minister about how this is delivered consistently in all health settings, right across Wales.

But I'm just not sure whether I agree that it's something you bolt on to the face of a Bill. This is integral—or should be integral—to the whole basis of our national health service, from primary care, from community settings, all the way through to acute settings and intensive care, but I'd be interested in the Minister's response, because I have a degree of sympathy with the sentiment of what you're trying to achieve. My argument would be that that's in the DNA of the health service and to have to spell it out in that way—I'm not sure that it's quite right. It's almost like saying, on an education Bill, 'Well, we expect education to deliver for every community, particularly my communities and some of the most disadvantaged communities.' Yes, absolutely. So, that's my only query, Chair: seeking from the Minister clarity as to, if not on the face of the Bill—because I'm not sure that is the right place—then how do we ensure that that issue of that quality that Helen Mary has referred to is delivered? 

Thank you, Chair. As you know, I previously committed to bring forward an amendment to make the quality guidance statutory, and we'll vote on that later. Part of the point about the guidance is to give some specific examples of how that should be demonstrated. The current definition is deliberately very broad and that's intentional, given the broad-ranging functions of the national health service, and I don't want to potentially risk diluting that by taking a more prescriptive approach. I don't support the amendments brought forward in this group by Helen Mary Jones, but I do understand the sentiment and the driver behind them. 

Turning specifically to the amendments, of course I support the principle of prevention and making that a real and a more practicable part of the way we deliver the service, and the importance of reducing people's need for clinical interventions. So, that point about having a health service that shifts to more prevention and to being a wellness, not simply an ill-health, service—one of the key functions of the NHS is to play our part in improving the health of the population, and also we recognise regularly in this committee and others that many of the drivers for ill health lie outside the health service itself. 

With respect to the amendments, there are some challenges about the way that they're drafted and the way that they could be interpreted, about reducing the need for individuals to receive health services. I understand what Helen Mary is looking to achieve in that, but I'm not sure the drafting necessarily does that, and that could be something we could talk about. But, as I stressed during committee, I want and expect the NHS to more actively consider how we can plan and provide services that contribute to reducing inequality. And the quality guidance will also set out that expectation and the requirement to have regard to it. By including an expectation on equity within the guidance, I expect to see an increased focus on decisions made within the health service when planning and delivering services to actively consider how they can tackle inequality as part of meeting their duty to secure quality.

And, equally, when considering amendments 29, 23, 35 and 41, NHS bodies will need to develop their access and availability of Welsh language services to meet their population and individual needs in the context of the quality duty and, of course, we have Welsh language standards as well as actions under the 'More than Just Words' framework. The availability and access of services through the medium of Welsh is an important component of being able to discharge the quality duty, and that's balanced against a number of factors that are sometimes complex—about what that individual patient requires, about clinical need and the availability of services and the care for that individual. I think that we can cover that properly in the way in which we set out the guidance around the quality duty. 

And I do take seriously what Huw Irranca has said, because I think there is a real balance to be struck in how prescriptive we are on the face of the Bill and what we then deliver and produce in the statutory guidance. Within that, I think it's really important that we recognise that we want to have guidance that is co-produced between clinicians, people who work in social care, and, of course, the public. They won't all be patients: there'll be people who aren't patients, but carers and others—and people taking part in social care don't necessarily think of themselves as patients; the terminology changes. But the public will be involved and engaged around this to be part of helping to deliver that guidance, to have some real practical examples to talk through this. Because there is a challenge about what you put on the face of the Bill, what you put in regulations, the way they're drafted, and the opportunity to have a different narrative, which I think the guidance gives us. 

So, these will be, of course, important considerations in having guidance that is rounded and comprehensive, but not overly prescriptive, on the face of the Bill. I'm happy to offer an opportunity to Members, that I'll extend when responding to group 3 as well, to have a conversation about whether we can agree amendments on the face of the Bill that don't lead us into a position where we are being overly prescriptive or, indeed, to be able to give some commitments on the record and in writing around how that guidance will be produced and areas that will need to be considered and form part of it. I'm happy after Stage 2 to offer that as an opportunity to Members to have that discussion, because I do think this is an area where we broadly agree on what we're trying to achieve, and we might be able to find a way to do that either in Stage 3 amendments or, as I say, in giving commitments on the record to give Members the assurance they're looking for.  

Thank you, Chair, and I appreciate what the Minister has said and we will, of course, take up the opportunity to discuss further how we can be assured that these matters will be addressed, whether that might be through different forms of amendment or whether that would be through guidance. We will take that opportunity up. 

I want to be very clear. Members have referred to the sentiment behind these proposed amendments. There is no sentiment behind these proposed amendments. There is a need to drive quality and for quality to mean something. And if quality does not mean prevention, and does not mean health inequalities, then what does it mean? I'm very glad that the Minister has acknowledged that, of course, it does mean those things, and the question is where they need to go.

What I would say to Huw Irranca-Davies about whether or not we need to legislate around health inequalities: we have been saying these things about addressing health inequalities for 20 years, to my knowledge, and those health inequalities persist. And it is not a matter of sentiment to say that something must be done to stop them persisting. And, in fairness to Welsh Ministers, over years, they have tried to do something about this, and it has not been entirely successful. We know that.

So, I welcome the opportunity to discuss—it may not be me, with the change of role—the Plaid Cymru group would welcome an opportunity to discuss with the Minister how we might ensure that health bodies are clear that, when they are delivering quality, that is to address prevention and it is to address health inequalities.

And finally, with regard to what's been said about services through the medium of Welsh, the whole point of legislating around this is so that people's access to services through their own language should not be dependent on whether or not there is already an availability of service. The legislation would drive the necessity to ensure that there is an availability of service. So, I look forward to further conversations with the Minister about this, because this is a right that people should have, and it should not be constrained by whether or not there is an existing service that can provide it.

If we look at the social care aspects of this, the Social Services and Well-being (Wales) Act 2014 is really clear that services are to be provided around the person, not the person fitting into the services that are available. So, I think we will need to have some further discussions with the Minister about this. Again, I urge Members, particularly those Members who are concerned with health inequalities, to support the amendments today to facilitate further discussion. 

Thank you, Chair. As we discussed during Stage 1, I was persuaded that the guidance should be made statutory to accompany the duty of quality and will be central to the success of these provisions. That's why we have the Government amendments leading this group.

I'm keen to issue guidance that will assist in the implementation of the duty of quality and provide clarity on how we expect NHS bodies to observe and perform the duty. My intention is for it to be practical and a user-friendly document, with illustrative examples of how we envisage the duty working on the ground. Having this guidance to support the legal duty on the face of the Bill will also help the scrutiny architecture we have in place, such as regulators, Assembly Members and other stakeholders, who all have an interest in ensuring the duty of quality is successfully embedded, and our shared desired outcomes are achieved.

Turning to the amendments put forward by Angela Burns, I agree with the Member that it will be important to set out how a relevant body can demonstrate an improved outcome as a result of taking steps to comply with the duty. I also share the desire to see how innovations and improvements designed in one area could be spread and scaled across Wales. It's a point we talk about on a regular basis. It's part of what we set out in 'A Healthier Wales' and why we're investing in the establishment of regional research innovation and improvement hubs. And, of course, we'll have more to say on the spread of good practice in the coming weeks and months.

I would expect the guidance in respect of the duty of quality to include the need to consider how a body works in partnership, delivering services in an integrated way to secure improvements. I can see that there could be some merit in setting out on the face of Bill some indication of the areas that should be covered in guidance. And as I indicated in group 2, I'm happy to discuss that with Members after Stage 2 is complete, to see if we can agree, as I say, either for amendments to come onto the face of the Bill in Stage 3, or indeed if there is agreement about how we provide assurance on how the duty of quality will be implemented, what will be in it, and how the guidance will be formed. And I'm entirely relaxed, if we have agreement on amendments at Stage 3, for those not to be Government amendments. I'm not precious about all amendments of the Bill coming in my name.

But that's the way I'd like to proceed, so I'd ask people not to press to a vote on the amendments in Angela Burns's name, to agree the amendments that will provide the statutory power for guidance, and then, as I say, I'll engage in good faith with Members around the table to see if we can reach agreement on moving forward ahead of and through Stage 3.

Diolch, Chair. I'd like to formally move amendments 67 and 71, tabled in my name. And, just to get it out of the way, of course we'll be supporting technical amendment 7, because it is what it is. I will still continue, I'm afraid, to oppose your amendments, but I have listened to what you have said, and of course I'd be delighted to sit down and try to strengthen this further.

But for us—if I was to deal with amendment 67 first, which seeks to really underpin recommendation 2 of the cross-party response on the committee in Stage 1—the evidence we had was really striking from stakeholders. They felt very, very strongly that the Bill was not strong enough in setting out what the duty of quality is and how it would be measured. And I know that we had quite a lot of discussions during those debates about how you define quality and the international recognition of that, but this could be a significant game changer in the delivery of services. We need to really understand that people cleave to this whole ambition of having a really strong duty to secure quality.

We just feel that, although you accepted recommendation 2 in the initial report and you set out these provisions in your amendments 4, 5 and 6, they're not sufficiently strong enough to address those concerns. For example, Minister, your amendments only state that Welsh Ministers 'may' issue guidance—not 'must', but 'may'. And my understanding is, in technical terms, in legal terms, there is quite a significant strengthening from 'may' to 'must'. So, we would like to see 'must' used. We would like to have, on the face of the Bill, why it is so important and to have a provision for this 'must' versus 'may'.

We think your amendments are very brief and they don't outline what must be set out in that guidance. We're concerned that it leaves too much room for misinterpretation by other stakeholders. We believe the guidance must include how the duties of local health boards, NHS trusts and special health authorities are assessed, as well as how they demonstrate those improved outcomes. These assessments are a key plank in delivering that duty of quality. It enables the relevant health authorities to provide us, all of us here, with uniform information about their quality indicators. This is also how we move from what was criticised as an aspirational duty by the chair of the Welsh NHS Confederation management board to a very real and, we believe, enforceable duty.

We believe that getting the guidance right before the duty of quality comes into effect is essential. Currently, we're just not clear how the guidance will help health authorities to achieve set levels of expected improvements.

Finally, members of the committee have already seen the difficulties that GP clusters are having when they pilot ideas and it doesn't get past the local health board. This would not be acceptable to replicate anywhere, so I urge Members to accept this amendment.

As for amendment 71, this amendment directly aligns with recommendation 7 of the Health, Social Care and Sport Committee. Within our questioning of stakeholders, there were concerns about how the duty of quality would align with existing social care duties under the Social Services and Well-being (Wales) Act 2014. Specifically, the older people's commissioner asked how the duty of quality would interact with the understanding of quality across social care. For example, this duty must include an understanding by an NHS body of the quality of services commissioned by health from the social care sector, such as in nursing homes.

Care Inspectorate Wales—another key stakeholder—raised similar concerns, stating:

'It would be beneficial to consider how this aligns with the requirements within the 2014 Act which focuses on well-being outcomes and what matters to people. This will be important in the context of greater integration of health and social care and the increasing development of multidisciplinary service delivery.'

I listened to those stakeholders with very open ears, because we talk constantly about the need to drive improvement, the need to drive quality, the need to integrate well and the need to have everybody at the table to drive that multi-disciplinary agenda, and I don't believe that you address this directly in your response to the committee of 14 January. I don't believe you explained how this would be achieved. So, we do want far more detail from the Minister. I would be delighted to meet with you to talk through this, because I think that without this strengthening of this particular element of the Act—this particular duty—we will be missing a golden opportunity to really drive through that transformational change, and so I would urge Members to support these amendments.

Just very briefly to say that we will be supporting the Conservatives' amendments and amendment 7, which is a technical amendment. We're not going to support amendments 4 and 6 at this stage, not because we necessarily oppose the principle of the power to make guidance being on the face of the Bill, but because, like Angela Burns, I feel that we need more detail on that. So, I'd be happy to take up, again, the Minister's offer of talking about how we might be able to strengthen at the next stage that requirement around guidance, and, as the Minister has said, to look at, well, are there other things that should go on the face of the Bill or are there other ways in which he can put on the record his commitment to include certain things in the guidance. So, we'll oppose at this stage, but that doesn't mean to say that we would necessarily oppose further down the process.

The way that we've drafted the statutory guidance powers within the Bill is consistent with the way that we see drafting in other forms of legislation about the powers to issue guidance. I'm happy to continue, in terms of our conversation— regardless of the outcome today—about some of the drafting points. I don't think they should get in the way of us being able to agree progress.

I also recognise the point about wanting to see further integration between health and social care. It's interesting the way that amendment 71 actually imposes—about the alignment with social care duties. That's a novel approach that goes beyond what we set out in the social services and well-being Act as well. I still think it's something that we should want to try to discuss after Stage 2.

I'd ask Members not to support amendments 67 and 71 at this point, because I do think that if we're going to have something that is genuinely, genuinely co-produced and covers the breadth that we want it to, we have to take a point of view that goes back to Huw Irranca's comments earlier. Do we prescribe that on the face of the Bill or do we agree how we will cover that within guidance, which is going to be much more able to set out the reality of how care is provided and how people access it in a way that, I think, will make the guidance live and much more useful? And, given that health and social care providers will have to have regard to it, it will have real force. But I hope that, regardless of the outcome of the votes today, we'll be able to get some agreement on a way forward so the guidance will be statutory, and I hope that we'll have agreement on how that guidance will then be produced to make it real.

Chair, could I ask the committee to agree—? It might save some time if we don't move amendments 5 and 6, given that they won't be passed and I've already given a commitment to come back at Stage 3. So, it might save everyone some time if we don't move those two, but I do want to move the technical amendment 7.

Correct.

Thank you, Chair. I formally move amendment 43. The intention of this amendment is to ensure that we have consistency and quality in the management of our services. At the moment, we know that we have registered professionals like nurses, doctors and professionals allied to medicine who have to work to certain standards. It is very clear that, if you're performing a certain task as a nurse, we all know exactly what's required of you. It's a matter of public knowledge what level of qualifications you need to have, what levels of experience and so on and so forth, and that applies to all the other registered professions. These people, of course, are managed, very often, by professional managers, and nobody is suggesting that we shouldn't have professional managers in the system. But we have no national clarity about what is expected. We do not have a national set of agreements about what qualifications, knowledge, experience, what the capabilities of, for example, the chief executive of an NHS health board ought to be. Now it seems to me that this is inequitable, because we are setting professional standards as a nation for our clinical staff that we don't set for our managerial staff. And in terms of why introduce this amendment to this Bill, well, of course, the quality—. If we are legislating for quality, who ensures that the quality is delivered? The managers. Whether those are managers with a clinical background, in which case, they are registered in their profession, though not necessarily as managers—. But the managers who are just professional managers, we have no expectations of them.

Now, the Minister challenged my colleague, Rhun ap Iorwerth—I think it was yesterday—to say, 'Well, let's put some meat on the bones of what a register might look like.' Now, it's my understanding that, in the past, some work has been done within the NHS itself about what levels of competencies ought to be there for people at different levels of administration, so this is potentially a big piece of work if one was starting from scratch. My understanding is that one isn't, and even if that isn't the case, or if that work cannot be retrieved, there are sets of NVQ competencies for management staff and administrative staff in general terms that could be converted into other NVQ-specific management qualifications for our NHS. We did, of course, discuss this in principle on the floor of the Assembly some months ago, and the principle that there ought to be such a register, and that managers ought to be accountable in the same way that our clinical staff are, was cast.  It's come to light since that it may not be quite such a big job; we may not be starting from scratch in terms of looking at what those competencies are.

And finally, I would say that this would provide some assurance. We have, in the past—and it would be inappropriate to mention individuals—seen people who have had senior managerial roles in one service where problems have arisen, who have discontinued their work with that service, only to turn up somewhere else. Now, if you are a senior doctor, and you are faced with a catastrophic failure, ultimately, you can be prevented from working as a doctor anywhere else. We believe that it's inequitable that clinical staff can, ultimately, after persistent failures and failure to improve, be prevented from practising ever again, whereas managerial staff can, in theory, fail time and time again, and still be re-employed. This isn't fair. It's not fair on patients and it's not fair on the clinical staff that these professional managers manage. Now, I'm accepting that it's unlikely that this amendment will pass, but I hope that the Minister will agree to explore this further, because it does seem to us that you cannot deliver a quality service, unless you have quality managers to deliver it, and that we need some form of national assurance as to what a quality manager is, and what we expect of her or him, so I move amendment 43.

Yes, thank you very much for this. This is a really interesting amendment, which— . I'm going to abstain, for more support, only because I see your rationale; I've seen how it's been set out, particularly (3)(c):

'set out what competencies must be evidenced in order for a person to be registered on the register,'

but it doesn't seem to have the other side of the coin, so what are the measures that can be taken against them? What are the teeth? So I would like to see this almost developed further, and if there is a possibility of taking it to Stage 3, as actually a little bit of a bigger amendment. Because I think the idea of having a register, or the concept, is absolutely spot on—we support it entirely—but just literally having a register of these people and the jobs that they do just isn't going to go far enough. So, if you do have a manager who doesn't make the right decisions or fails in their task, there's no—you know, what the sanctions are, what the escalation procedures are, who would actually make the decision? What's the body that would actually say, 'Right, this register is registered to this body, and therefore, this body will haul you up, and have a proper investigation of what's going on'? So it's kind of not quite far enough, but I absolutely think that the concept of having a register of managers would help to underpin these duties that we are seeking to push forward in this Bill.

Thank you, Chair. On this one, I understand the principle of it, and as Helen Mary Jones has highlighted, it was brought before the Assembly and I think I voted for that principle in that debate. But we didn't actually have a good detailed scrutiny of this topic in our Stage 1, and we highlighted in our recommendation that this is not a matter for this particular Bill. So, in that context, I think I can't support the amendment, because I think we haven't done enough scrutiny on that aspect here in this Bill, and I think if it's going to go forward, more needs to be done at Stage 1 than we have done. I appreciate what you've just said, but in this situation, I can't support the amendment because I think we haven't done enough work on it and we haven't done enough investigation into it, particularly the implications of it. The principle, we've not argued with—I don't argue with it, I've supported it—but I think that at this point in time, it's not appropriate for here.

Thank you, Chair. I don't support the amendment that Helen Mary Jones has brought forward, but of course I support the overall aim of ensuring that health service managers are competent and capable, and that they can't simply fail and move on to another job in this system, consequence-free. But I don't agree that a Stage 2 amendment to create a new corporate body and a complex and bureaucratic system of registration is the right way to do that. And I recognise the point that David Rees has made that the committee didn't recommend this in its Stage 1 report. In fact, it explicitly said it was not a matter for this Bill.

The creation of a specific prospective regulatory regime would need detailed financial and policy consideration to reflect the diverse nature of the workforce and their roles. We'd need to address issues such as the balance of responsibility between the employer versus the regulator, how any requirements apply to individuals or healthcare professionals and managers, and the mobility of the workforce. And what this sets out is that if you're a clinician and a manager, you have two forms of regulation: a form of regulation as a manager and a form of regulation as a clinician, and there's a challenge there about if there's any potential conflict between the two. What set of professional standards would take precedence?

And in terms of the cost of this, it's worth recognising that any creation of a body of this nature is real money. Creating HEIW came at a cost of about £2.8 million to have a significant impact on the system. I don't think that a Stage 2 amendment is a way to have this sort of significant intervention in the way that the service is run. There are alternative models to look at, and I'm sure if you were doing this, you'd want to do it through scrutiny. There's the alternative model of company directors; you don't have a prospective list and register of them, but you can be struck off and prevented from acting as a director. This actually says that everybody must be a member of the register before they're allowed to work as a manager.

And on that point about the mobility of the workforce, it's worth setting out that this is not just a cross-border issue with England and Wales, but actually—and not just within the British isles or Europe—it's actually an international issue as well. If we set out a Wales-only register, we will undoubtedly make it more difficult to recruit. We are already recruiting nurses, as the Chair and others know, from further afield. We've had a conversation to potentially do more in parts of India. Well, actually, this isn't just an issue for staff at band 4 or 5, because what the amendment doesn't set out is who is a manager.

If you consider band 6, band 6 nurses—junior sisters, if you like, in slightly old money; it's still terminology that I regularly hear in the service—their more modern title, if they're in a hospital, is a deputy ward manager, and the clue's in the title. Now, if you're really saying that from band 6 upwards, people who do have managerial responsibilities, let alone the band 7s, 8s and others, we're talking about huge numbers of people who are managers in the health service and would need to be on the register. The level of complexity that will require, the level of resourcing that will require, and then how the body is to be funded, is it to be the general taxpayer, or is it to be the person who is a manager who will pay for their registration? None of that is set out, and you'd need to consider that in terms of, practically, whether you think this is the right intervention to deliver the sort of benefits that I understand the mover of the amendment wants to see.

I think the challenge that is worth considering in addition to the value for money is that there is every prospect that it would distract from the importance of using the existing performance management training and education system to ensure that people do their job well or have appropriate support of action if they are underperforming.

The final point that I want to make is something about where we are with other parts of the system in the UK. Within England, they had something called the Kark review—and again, all these reviews end up having the surname of the person who's chairing the commission—and that is looking at the possibility of a central database for directors, for director level, across the national health service.

So, NHS England undertook the review, but I think they recognise, as do officials within the UK Government, that if we were going to do this, it would be desirable to have agreement on a four-nation basis to do so, and I think, actually, you'd probably then have to have something about the island of Ireland, given the transfer of not just staff, but the way that services are organised. We're entirely open to it and want to be part of the conversation to look at that, because if you define something at a senior level where most of the concern appears to come from, then I think you'd need to have it on that four-nation basis to make it useful and workable and to have standards that we could all apply and all have a share of ownership of, as opposed to having a single intervention that would actually distort not just the marketplace, but recruiting and retaining managers.

Often, at the senior level, these are people who are highly sought after and cost lots of money. But then, to make sure that you can then understand how that would affect the international area of recruitment as well, which we certainly, at that senior level, still look to—. For example, we've recruited a chief executive within this part of the world within a local health board, who came from Australia. The current chief executive of the Welsh Ambulance Service NHS Trust came from Australia as well. They'd worked in the English system before, but, actually, they came from a different part of the world altogether.

So, it's worth thinking all of that through to make a change of this magnitude, but we will be, in Wales, reviewing the code of conduct and accountability of NHS boards and the code of conduct for NHS managers. They were published in January 2007, and, of course, as a consequence of this Bill and others, we want to take account of the current regulatory and governance landscape to see what we can do that would be helpful and useful. But I'd ask Members not to agree to the amendment before us and to recognise there's a much more significant piece of work that needs to be done to make sure that we get this right.

Thank you, Chair. I've listened very carefully to what other Members have said. I don't accept the Minister's position that having a register with appropriate levels of qualification would deter good-quality staff from coming. I think quite the reverse: people might very much welcome working in an environment where what was expected of them was clear. I do accept, though, some of what he says about needing to ensure that there's some synergy with things that are being done in other parts of the UK.

I do understand David Rees's point about whether or not this is a matter for this Bill. I differ from this committee in its recommendations, because I do not see how we can deliver this duty of quality if we do not have clarity about what's expected from our managers at different levels.

I do take the point that has been made about clinical staff with managerial roles, but the truth is, and I'll put this in the social services environment because that's what I'm familiar with, you can be a very good social worker, it doesn't necessarily mean that you automatically become a very good manager of other social workers. Now, when I was working for Barnardo's, when I was promoted from a front-line role into a managerial role, I was given a different set of competencies and I underwent certain levels of training. So, it didn't mean that I wasn't a competent social worker, but it meant that, in order to manage other social workers, I needed additional skills and additional knowledge.

Too often in our public services across Wales, we assume that somebody, because they are a good clinician or a good schoolteacher, can go on, as a matter of course with no additional training and no additional support, to manage their former colleagues. This does not work well, and that's why having a register that would include the setting out of what people's competencies needed to be would ensure that, when clinicians are promoted to managerial roles, their employers would be obliged to provide them with the appropriate training to enable them not only to continue to be excellent clinicians, which would be the case with a ward manager and a deputy ward manager, but also to be able to manage their staff and manage time properly. 

Will you take an intervention?

Of course.

It's a very interesting point that you're making, but then, there also has to be a look at employment laws, because if you are promoting somebody to become a manager, and you find that they're not capable as a manager, they must, therefore, also be entitled to go back to their previous post. So, there are very much employment issues here. It's actually quite a complex situation we're talking about, and I don't think the amendments to this Bill can actually deal with those complex situations.

It is complex. I completely acknowledge that. One of the other things that employment law would also allow somebody to do is if they were promoted and they weren't provided with the training to enable them to do their job, they could go back to the employer and say, 'You didn't enable me to fulfil this new role that you've given me.'

Having heard also what Angela Burns has said, with your permission and with the committee's permission, Chair, I will withdraw this amendment at this stage in order for us to have some further discussions about whether there is something that could be put on the face of the Bill that, rather than specifically establishing the register, would establish the principle about needing quality managers to deliver quality services. I'd like to explore that further. So, with the committee's permission, I'll withdraw the amendment at this stage, but that is not to be read as conceding the principle in any way, shape or form.

I move. 

I move. 

I move. 

Thank you very much indeed, Chair. This amendment, amendment 70, actually is perhaps a partial way of trying to address some of the questions we talked about with Helen Mary's previous amendments, because, first of all, it's tabled in support of committee's recommendation 6, which asked the Minister to make specific provision for the consequences of non-compliance with the duty of quality. I'm very keen to see that there are consequences, not just on individuals but on organisations. It's about giving teeth to the Act. We can all talk the talk, but what we have to do now is get people to walk that walk.

This amendment is completely in line with the committee's points at Stage 1. It's not intended to have a detrimental effect on the financial position of health boards, trusts or special health authorities, but it should be dealt with through the NHS escalation and intervention arrangements by the Minister. So, we'd like to see this duty or this, if you like, consequence if you fail to secure the quality that you are tasked to deliver.

During the evidence sessions and the committee's consultation, it was clear that many stakeholders wanted to introduce consequences for non-compliance in relation to both the duties of quality and candour. The British Medical Association noted that this needed to be addressed, stating that unless

'some form of sanction or corrective action is triggered, we believe that the proposed duty would run the risk of lacking effectiveness, and at worst would become a mere box-ticking exercise.'

That, I think, is a really damning comment to make as to their view of how this could be implemented. 

And the Royal College of Nursing noted that there

'has to be a consequence to doing it or not doing it, otherwise there's no incentive to do it, in a sense, at the most basic level.'

The whole point of this is to give teeth, to persuade people and make them understand that it is their statutory obligation to secure a duty of quality. We do need to have every tool in our arsenal to ensure that they do it, and I did, Minister, read your response to my questions on 11 July, and you said it was about securing improved outcomes, that you've got a range of measures about what outcomes get delivered within our healthcare system, and you talked about the range of measures, including the escalation framework. On 14 July you did vaguely allude to the guidance and said non-compliance with the duty will raise concerns and could lead to escalation measures. But we've got to make a big sea change here, and I think it's really important that people understand that this isn't an option, even at the most basic level, and if they don't get it right, they will face some kind of consequence. I'm not necessarily saying what those consequences are, but I think it's got to really be part of that intervention and escalation process. It's got to be something that health boards are called to account on, that trusts and all of these organisations are measured against, because this is about ensuring quality of service and that delivery directly impacts not just on patients, but actually also impacts on staff within the organisation, because if you are trying your best to deliver a defined set of outcomes to the best of your ability, and to the levels that you think you are being tasked to do, and the people around you are not supporting, are not on that journey, are not engaged with it, it must be soul destroying and leads to an awful lot of stress and disenchantment with the job. So, I'd really, Minister, like you to consider how we can give teeth to this whole Act, and that's why we have tabled amendment 70.

Thank you, Chair. I thank the Member for bringing forward the amendment because I think there are areas of agreement, even for those of us who disagree about the amendment that's been tabled in the group. We do already have strong existing mechanisms to deal with failings on the part of NHS bodies. The NHS escalation and intervention arrangements present a mixture of legislative and non-legislative measures that Welsh Ministers use with NHS organisations that are not performing one or more of the functions they should. I know that Welsh Ministers may issue an intervention order as opposed to requiring an intervention order, but there are certain times at which Welsh Ministers may issue an intervention order, which are already set out in the NHS (Wales) Act, and that includes where an NHS body is not performing one or more of its functions adequately. So, the power already exists within the NHS Act, and so the provision is actually unnecessary. But more than that, I think there is a point that the Member is making about what happens, and how does a duty of quality get to be made real, and what that means for an organisation.

I think there's something about providing assurance that this isn't just a straight-line duty, because when you think about the duty of quality, there'll always be the scale of the failure to meet that duty. It could be minor, it could be major, it could be moderate, and you think about what action then comes with that. It won't always be the case that you'd say that an intervention order would be an appropriate response, but it certainly could be the case that an intervention order would be an appropriate response. And I do think that the guidance should be used to help explain what actions can be taken should there be non-compliance, and illustrate examples of how that could actually work. Our current escalation and intervention arrangements are part of wider governance and accountability within the national health service, at both individual and system levels, whether that's through quality and safety committees, quality and delivery meetings or joint executive meetings between Welsh Government officials here, led by the chief executive of NHS Wales meeting with chief execs of health boards and trusts and their teams. These all provide opportunities for scrutiny and appropriate, timely action and learning.

I know I've said before that HIW will take a close interest in how an organisation is discharging its duty as part of its inspection and review work. Annual reports on the duty of quality will be available for scrutiny, publicly, and I'd expect that this or a successor committee will take an interest in those, not just in the first year, but more. So, it will heighten the level of interest and scrutiny in terms of compliance, transparency and accountability.

I've already stated, and I'm happy to state again for the record, that there are a range of levers that may be used where a body is failing to comply with a duty of quality, and those include the current escalation and intervention measures. It may also be helpful to put on record for the committee that the current escalation and intervention measures have been in place for just over five years, and I think it's an appropriate time to review the impact and see what learning there is to be taken from them. I think that could usefully draw in the people who take part in the tripartite conversation but, equally, as we look to do that work with those, I think there'll also be an useful opportunity for the committee to have a view as well, whether that's in public or with a technical briefing to see how that forms part of the landscape, because I don't think it's just about the duties of quality and candour; there are broader points to be made. So, I'm happy, if the Chair and the committee members want to, outside the process of the Bill, think about that and to think about how we could set up a time frame for some of that review and learning work, and for the committee to have a view as well, because I do think that more rounded conversation and that rounded approach to that is the right place to have it. We already have the powers to make intervention orders, and so I don't think that the amendment is necessary, but I recognise where the Member is coming from in moving it.

Thank you for your response. I have to say it reassures me not at all. We know that it's incredibly difficult to effect change. It's an enormous organisation, both of them—social care, healthcare. There are thousands and thousands of people working within it, and we know that whenever the Government has needed to drive a particular policy agenda, the most effective way of doing it has been to say, 'We need you to do this and these are your targets; we need you to do that and these are your targets. Oh, and by the way, you'll be measured on your ability to deliver on those targets.' And that's actually brought it to the forefront of minds. It's made it part of a driver within an organisation. Now, we can argue, especially in the light of stuff that's happened over the last few months, as to how easy it is to go down one rabbit hole and say, 'Right, all I care about is financial performance and perhaps not other measures', or 'I'm going to go after cancer waiting time targets but I'm going to let other things drop.' It's a very difficult series of balls to juggle and we all recognise that.

But this is supposed to be a game-changing piece of legislation. It's supposed to be about ensuring that our patients, our country, and that we understand that quality is really a driven part of the delivery of health and social care. And I feel that unless there is some kind of clear line of sight as to the importance that is attached to this, that it's not 'mays' but 'musts', that it's not, 'This is how we suggest you should do it', but 'This is how you must do it, and, by the way, if you don't, these are the potential consequences that you may face'—I think it's really important to have that set out somewhere.

I'm prepared to accept that I haven't drafted my amendment hugely well, or whatever it might be, but I just think that if we don't give that sort of teeth that shows how rigorous and important we believe this particular duty is—. It's not that people are going to ignore it—because I wouldn't for one minute suggest that they would—but they have such a welter of work, they have so much they have to do, they have so much new stuff bombarding them from every direction that all the people who work in health and social care are constantly having to absorb to keep up to date, to move forward, to somehow manage into their day-to-day job, that I don't want this voice to become a very small voice. I want it to be a very big voice. It's got to be an overarching voice that says, 'Whatever we do, it is about producing that quality', because it affects the patients and it affects the staff, it affects the environment, it affects their morale.

We talk about stress levels of staff, we talk about retention rates, we talk about the difficulties with recruitment, we talk about people leaving early because they're burnt out, we talk about patients who are satisfied, who are unsatisfied, who aren't sure. It's all about trying to change that mood music and I absolutely believe that to get that individual and system-level change, you've got to be able to put something like this with a bit of teeth to it. And I have read your escalation and intervention framework. I understand why, in some areas, it has to be as loose as it is because of some of the reasons that you gave, where you absolutely talk about some things where you might react in one way, and in another instance it might be another way because it's got to be appropriate. But I couldn't see anywhere in there that really would allow a compliance issue on a failure to secure an improvement in quality. I couldn't see how that was slotted into there, which is why I've brought forward this amendment. It's something I'm really keen to ensure that it works. To be frank, I'm fed up, in my years as an Assembly Member, with seeing good policy ideas turned into indifferent legislation that actually doesn't have teeth out there. And that's what I want to stop. And the idea behind this Bill has got so many good points to it, and I really want to strengthen to it. So, I am going to ask Members to really think about that, and I would like to move to my amendment.

Yes, move.

Thank you, Chair. I want to make it very clear, Minister, that this actually is a probing amendment, and it's based on the Royal College of Surgeons' written evidence to the committee and what they believed would enhance the duty of quality. It relates directly to the Bill's annual report on the steps the NHS has taken to comply with that duty of quality. Now, I've had long conversations with the Royal College of Surgeons, and I think it's very important that we listen to all of our stakeholders, especially key stakeholders such as these. 

They stated that 

'the collection and publication of data needs to dramatically improve, to help the Welsh NHS make informed judgments about the quality of patient care.'

And they explain that 

'outcomes and recording activity in particular have historically not been well resourced.'

To be frank, I'm stating the obvious here. If we don't have the right data, we can't make the right choices, whether it's whether or not we have the right staff in the right place or the right training for those particular staff, or whatever it might be, without information, you cannot make educated and informed choices and, more importantly, you can't plan well for the future. 

In July 2013, Welsh Government announced that it would work to publish surgical outcomes data in Wales at a unit level, with a promise to consider individual outcomes data at a later date. Now, this has not been progressed or achieved. That was 2013, so we are still, years on, in the dark about some of this. So this amendment is intended to drive the Welsh Government's promises forward, essentially. We want to hold your feet to the fire on this and to remind you, Minister, that the Royal College of Surgeons has already asked the Welsh Government to make this an urgent priority, and it's already happened in NHS England. So they have this information, but we don't.

There's no routine publication of data on how many operations are cancelled and whether the cancellation is for a clinical or non-clinical reason. This, they believe, would help to clarify why they're being cancelled and where pressures are in the system that are contributing, obviously, to long waiting times. Of course, it then also puts the onus back on people who cancel their operations for non-clinical reasons. We talk a lot about involving the public, about people taking responsibility for their health, about being engaged, and actually that also means that we have the right to go back to people and say, 'You've done this badly. You don't just cancel an operation at the last second, don't turn up, don't tell us why and don't have a really good reason, when we've got all these very expensive medical people on standby, a very expensive operating theatre and, more importantly, other people who could have benefited from it who haven't.' The figures I've managed to achieve, the information I've got on clinical cancellations and non-clinical, have only ever been through freedom of information requests to each health board. And, of course, each health board has answered all those FOIs in different ways. So, being able to cross-compare to see if there's consistency across Wales has been incredibly difficult.

The rest of the list that I have here are examples of what could be part of statutory reporting. I don't mean them to be the ones necessarily, they're not extensive, they're not intended to be fixed, but I really would welcome—this is why I say it's a probing amendment—because I would really welcome further discussions with the Minister at Stage 3, because I think that an openness on data collection would give us the right information that we need to tackle root causes of things such as long waiting times and cancelled operations, which are two of the areas that really trip our NHS up on a frequent basis.

Diolch, Gadeirydd. I don't support the amendment in the name of Angela Burns; I don't believe it’s necessary, but I am prepared to offer a possible way forward, because I think there are some things about how we use data, but there are some limits to it as well.

I don't think having a prescriptive list as set out would be particularly helpful. I think it would be restrictive. It’s worth remembering that NHS organisations really do gather and publish vast amounts of information, including much of what is specified in the amendment. In fact, I think, nearly all of it is contained within public board performance reports. But publishing lists of figures says little, if anything, about the quality of any services when provided on its own. While timeliness is critical in some circumstances, a focus on numbers doesn't necessarily tell us anything of value about the safety or the experience of care. There needs to be flexibility to determine what this data should be and that the NHS doesn't stand still, it needs to keep pace with technology and other evidence-based requirements, so it’s essential that any data collection keeps pace with this, rather than just being prescribed on the face of the Bill.

We go back to the points that Angela Burns made in the last group before our break about people being bombarded with new requirements. It’s about making sure that we understand why we're asking people to do something and what the potential benefit is. A key element of data gathering is being able to evidence that the data is gathered in the right way and produces the right evidence so that it’s meaningful and worth while and properly comparable. And, to be fair, that’s part of what Angela Burns recognised in her opening. Recent changes in the clinical model adopted by the ambulance service have resulted in the need to make changes to the data collection, and the way we hold the system to account for their performance using that data. That’s a good example of why having a prescribed list could be inhibitive.

We do, of course, have other work that is in train on the range of measures that we currently have or won't have in the future. Having this list could cut right across that. There are recent examples of the eye-care measures we've introduced, the conversations we're having with a range of other clinical groups about their current measures, and whether we want to update and move them into having a different focus, having clinically led and clinically focused measures. What we have in the list is very much a list of time, volume and activity that takes us away from the clinical focus that we want to have in a new list of measures. In that, we're not alone in Wales in wanting to do that; both in England and Scotland they're looking to have the same conversation about the level of data and what it tells the public. If you only provide data on time, volume and activity, it’s no surprise that people think that that’s a measure of whether the health service is successful or not. Yet the work we have, for example, on the single cancer pathway, will also necessitate changes to the type of data we collect to determine if we are making improvements in quality and service delivery.

The proposed list doesn't take account of the broader vision of health services that we talked about earlier, as well, with a greater focus on prevention and providing care closer to home, and preventing unnecessary admission. The list of indicators proposed are very much acute focused, which is no surprise—I mean, given that it’s been worked up with the Royal College of Surgeons, that’s not a surprise—but that isn't a whole-system focus and we're looking for a whole-system focus on quality. The list as proposed, I think, would inhibit our aspiration for a whole-system focus. It would undoubtedly focus our organisations on hospital-based care at the expense of primary care, and almost all of our measures at present that we publicly report on are hospital-based measures or measures that go in or out of the hospital system. That’s part of our challenge in having measures that are more useful. This list, I think, would take us further away from where we want to be and exacerbate the current problem that we currently have. I think it would be unrepresentative of NHS functions.

It's also worth reflecting, I think, Chair, on the fact that the former Cwm Taf health board has been mentioned a couple of times today already. To get a truly meaningful picture, it's essential not to look at one source of data in isolation. Numbers always need to be triangulated with patient feedback, be that positive feedback or concerns data, as well as staff feedback and other metrics. Because the former Cwm Taf was not an outlier when it came to stillbirth and neonatal outcomes. When we then had the review, though, it was plain that other information that should have been available and considered would have shown that there was an issue that needed to be addressed. So, I don't think just the data in itself will give us all of the surety that potentially we're looking for.

Now, as well as the technical points about having comparable data that's compliant with data protection measures, I do think that it's worth us looking, though, at the very wide range of information we already publish, to look at whether that covers the breadth of activity we'd want it to as well—as I say, they're almost all acute focused—and to see if we can find a way forward on what is published and when and how it's published, so the frequency, we have monthly data, we have quarterly data and some annual data, to make sure that it is genuinely useful. And I think that's a piece of work not just for the Government to do of and for itself but, again, I think a piece of work for the committee to consider as well about what sort of measures you're looking for until I have to give a proper update on the range of information that I've already said is in train, looking at changing some of the measures that we have.

So, I'll ask Members not to support the amendment, but not to close the door on a conversation about trying to update how we provide and publish information and data—whether it's the Government that does so, or whether it's the health boards that do so—the basis on which it's done and the development of those data measures that we put into the public domain as well.

Thank you. I listened very carefully to what you said, and, yes, you are right: this is very acute-driven at present because it is such a broad topic that I had to start somewhere. So, here are the two things that have really struck me over the years. The first is that if I approach you via written question, or whatever it might be, and I say, 'What's the data stream on this?', very often, the response back from the department of health is, 'The data is not held centrally', so I then have to go to all the health boards. I go to all the health boards and some will not have it, some will have it but in an incomprehensible format and some will have it in a really good format, and I'd think, 'Well, why don't that lot do it—everywhere?' But it's very hard, then, to really analyse where the hurdles are in the delivery of service. Let's take another scenario: so, we know that there are a large number of cancelled operations—cancelled by patients. And, of course, that is an expensive hit that the NHS has to take. The numbers of staff who wait there, the operating rooms that are prepped—it is thousands and thousands and thousands of pounds that we waste, and, of course, the downside is that our waiting lists grow and grow.

If we had better data on why people cancel their operations, we might be able to start addressing it. So, there'll be people who cancel their operations because they are not well enough to have them, or because they've had a tragedy in their life, or something like that. There are people who cancel their operations because they become completely scared. Elective eye surgery is one such area where a high number of the operations that get cancelled are because people take fright. So, if you had that kind of intelligent data in front of you, what you could then say is, 'Okay, if we put in just a little bit of support to people where we know there's a high propensity for that—you know, elderly people undergoing X, or young people undergoing Y—and these are the kinds of reasons we've discovered that they are not proceeding with those operations, we could then put the support in to help them through that.' So, (1) we cure the person, or we help to aid them and put them on the road to recovery, and (2) we don't continue to waste again and again and again our very expensive and highly trained resources, and (3) we start munching our way through some of these waiting times, because, of course, the people who cancel then eventually do need the operations, so they simply go back to the bottom of the queue and so the process starts. 

There is a wealth of data and, yes, you've only got to look at the stats and the surveys and this and that—but it's actually how you can absorb it and turn it into something meaningful, and that's what I was trying to do with this. This is particularly about quality of health services and how can we be smarter with data to improve the quality of health services.

Now, this is a probing amendment, Chair. I did listen to what you had to say, Minister, and what I would like to do is withdraw this amendment. But I would like, Minister, to seek time with you before Stage 3 to discuss this a little bit further to see what recognition there can be that we have to do something quite major with how we correlate and analyse our data in order to provide and measure this quality element of this Bill.

Thank you, Chair. We have a bit of a habit in this place of passing pieces of legislation where there is no consequence on an individual or a body if that legislation is breached. That is entirely pointless. If we're going to legislate, there have to be consequences.

Now, in earlier parts of this discussion, I've said that I think it's very difficult to be clear about how you place a duty of candour on an organisation, because the duty of candour on an organisation depends on individuals being honest. But we haven't attempted to amend the legislation to address that, because we've heard what the Minister and others have said in that process, of how in fact that duty, particularly on clinicians, is there already anyway in terms of their expectations.

However, if this corporate duty of candour—if I can use that terminology—is to mean anything, then we believe it should be clear to all NHS bodies that, if they do not exercise or if the Minister believes they are not exercising the duty of candour, they will automatically go into the escalation process. Now, where they would go into that escalation process and how that would be done, we're not attempting to prescribe that. The escalation process is there, we know what it is. Of course, the amendment also refers to any other arrangements that might replace it, because there will always be arrangements by which Welsh Ministers will be ensuring that NHS bodies do what's required of them.

So, the purpose of wanting to put this on the face of the Bill, rather than leaving it to the discretion of whoever is the Minister at the time, is to make it very clear to health bodies that there will be consequences if they don't do this. Now, what exactly the nature of those consequences would be, I'm entirely convinced that ought to be at the discretion of whoever the Minister is at the time, because it would depend on the scale of the failure to comply. And I have heard everything that the Minister said in response to Angela Burns around amendment 70. We also had clear evidence that it would be very unhelpful if there were, for example, financial penalties on health bodies who breach the duty of candour, because that would just then penalise front-line staff and patients, which is not what one would want to achieve.

So, this is an amendment to the legislation that I hope Members will be able to support to send a very clear message that any breach to the duty of candour automatically puts you in the process. Where you go into the process and how that's managed would be for the Minister to decide, and I'm entirely sanguine about that.

Can I make an intervention?

Yes, very happy to—

Thank you. Genuine question, just to get it clear in my mind, any breach of duty of candour would automatically, somehow, somewhere, put you into the process of escalation—any breach of candour?

Yes, because—

So, not a pattern, not two incidences, or whatever—any breach.

No. Any. Now, where that would be, what level of escalation, that would be for the Minister to decide. But my point in trying to do this, Huw, is to say to bodies that this really matters, that it's really significant, and that if you breach it there will always be a consequence. Now, the scale of that consequence, the nature of that consequence—. Because if you have to wait until there's a pattern of breaches, then how many breaches? What? Where? I just don't think—. If we're serious about this, and if we accept that it can't be placed on individuals, which incidentally I don't, but if we accept that it shouldn't be placed on individuals because it's already there, then it's got to be clear that it matters.

I share your belief that, if there's a breach of a duty of candour, it should be dealt with and it should be dealt with in a timely, urgent way; there and then. But what I'm struggling to see—. This seems like a belt and braces and everything else: you breach a duty of candour automatically. So, my question is—the mechanisms that are currently there, that are currently put there in order to deal with a breach of the duty of candour—you're saying those are not sufficient? They don't deal with it that urgent way.

That duty of candour doesn't exist on bodies, or we wouldn't be needing to legislate for it today. So, what the Minister said, when we discussed whether it should be put on individuals, was that within people's particular clinical level, within people's professional requirement, there was already—on medical professionals, on nurses—a duty of candour. So, we haven't attempted to put it on individuals. But if there is a corporate failure to comply with a duty of candour—so, if a health board has failed in its duty of candour—I think that that is so serious that I would want any Welsh Minister to step in at the first instance. Now, I haven't tried to prescribe what level that would be because it would depend on whether this was the first time it had happened, or the tenth time, whether it was an across-service failure or a failure in a particular service, and the escalation process enables Ministers to respond appropriately to that. But if we don't say, on the face of this Bill, 'If you breach the duty of candour, something will happen to you', then it just becomes another one of the meaningless bits of legislation that we pass where nothing happens to people if they breach it.

Sorry, I welcome this exchange, if you'll allow me to ask one other question. Within the current mechanism—. I'm very interested in this because I, like most Assembly Members, have had issues over lack of candour, historic ones. I'm glad to say not so much recently, but historic ones, way beyond what we've done recently with legislation here in this place. But if, for example, there was a chairman of a board or a chief executive who was found to be in breach of duty of candour, that's different from what you're proposing here, because that individual would be caught up already within the mechanisms that we have.

To be completely honest, I'm not sure in my own mind, but the Minister clearly is in his, how you have a corporate duty of candour that isn't exercised by individuals. But the Minister's told us earlier in this process that that can be done, so I've accepted that. I'm worried—. When it comes to clinicians, I accept that that's within their processes and that, if a senior doctor or nurse or whatever is less than honest, there are processes to deal with that. I'm worried that we're not sufficiently rigorous with managers when they fail, and that relates to my previous amendment about having to have quality standards for them. But the Minister tells us that it is possible for bodies to be held accountable if the body fails to be candid, fails to exercise its duty of candour. If that is the case, then it is my submission that there should be an automatic consequence for that organisation. Because otherwise, what's the point? Otherwise, it's more motherhood and apple pie, it's, 'We want you to be nice to people.'

If we need to legislate for quality, if we need to legislate for candour, something needs to happen to the organisation if they are not candid. So, I'm not trying to prescribe what that should be, because there are all sorts of levels in the escalation process. But what I think the legislation should be saying, what I'm suggesting the legislation says is, 'You must never do this. You must never breach the duty of candour. And if you do, something will happen to you.' And what will happen to you will depend on how serious it is, on what the Minister and his officials—. You will have read the process, you'll know what the escalation process looks like. So, there are whole levels, from taking the whole kit and caboodle into special measures, to all sorts of much less drastic measures. All I'm saying is that, if the duty of candour is breached, it should always result in action, and that the Minister, whoever the Minister is at the time, should have the discretion as to what action or how much. Otherwise, why legislate? Why not just tell them to do it through policy or direction or whatever?

Okay. Diolch, Helen Mary. Angela Burns.

Yes. I just wanted to say, Chair, that we support this amendment. I wanted to take up that point about any breach. I think this is an issue that we can't take prisoners on. Let's substitute the word 'candour' for a couple of other words: it's 'truthful', it's 'honesty', it's 'openness'. That's what we're talking about. We're talking about a corporate body and what would happen if they inadvertently or deliberately chose not to be open, honest, truthful and all those other words associated with candour, with communicating effectively a particular situation. So, I think I'm with Helen Mary on this, that it should be any breach, and I do agree that there will be scales, and those are for the Minister to bring forward. I had always understood that it was possible to have a duty of candour on a corporate body, because I think that individuals within a corporate body are liable for certain things. Perhaps the Minister, as a lawyer, can clarify that. But I think when you have corporate manslaughter, for example—

I'm not currently practising.

I'm not allowed to ask any of the other legal people—no legal advice. [Laughter.] You read instances of big organisations where they're found for corporate manslaughter, and individuals are then also picked up on it. So, I'm not quite clear myself, but my understanding is that organisations can have a corporate responsibility that they have to corporately discharge, and it's not left down to the lowest of the low, the most junior employee to do it. It is at a high, very, very, very senior level. So, I support your amendment.