Group 8 is the next group of amendments, and they relate to non-compliance with the duty of candour. Amendment 39 is the lead amendment in the group, and I call on Angela Burns to move the amendment and the group. Angela Burns.

Amendment 39 (Angela Burns, supported by Caroline Jones) moved.

Diolch, Llywydd. I'd like to formally move amendment 39, tabled in my name. This amendment, 39, is in line with recommendation 9 of the Health, Social Care and Sport Committee at Stage 1, which recommended that the Minister makes specific provision for the consequences of non-compliance with the duty of candour—with the duty of honesty, integrity, truth. This was tabled by the previous Plaid Cymru spokesman at Stage 2, and we supported the intentions of the amendment then. Stakeholders were very clear that legislation alone will not change the culture of the NHS. This is what this Bill is all about—changing that culture, underpinning it, driving it forward. So, it's imperative there's a mechanism within the legislation to change that at the very top of our NHS bodies.

Going back to the failings we saw at Cwm Taf's maternity services, there was a culture of secrecy, with horrific reports of failings being ignored by senior management. It's a culture shift we need, from the very top, which is what the Minister's aiming for, and I completely support him in that drive. But that's why the duty of candour must have teeth. People have got to know that, if they can't be bothered, if they choose to lie, or if they choose to be evasive, or if they choose to just be in complete denial, or they choose not to act on something, then they will be found out, and they will have to answer for it: end of the conversation. I am brought back to the evidence submitted by board of the CHCs, in which they said the duty must include recognising the key role organisational leaders have in setting the right tone and acting swiftly and decisively when things go wrong. And the Welsh Government will need to give sufficient attention to leadership development and the responsibility and accountability of senior managers in the NHS.

The NHS Confederation—they are the representative body for these health boards, but they said that the absence of any sanctions suggested the new duty of candour may achieve little over and above the duties that NHS Wales organisations and healthcare professionals are already subject to. Let me just say that again: that was the NHS Confederation, and they said that. So, that is sort of the poacher turned gamekeeper, or the other way around—I mean, if they say it, we should listen to it.

I disagree with the Minister's protestations at Stage 2 when he said,

'taking a punitive approach to try to change culture and behaviour, where you want more openness and transparency, is unlikely to achieve all the results that we would all want to see.'

And, actually, I think it's because there has been no clarity over who's responsibility it is for failings that, to be frank, buck passing has become absolutely routine in the Welsh NHS, and ignorance should not be a defence.

We would support amendments 73 and 74, tabled in the name of Rhun ap Iorwerth, as I can see the compromise struck here, and I agree with the sentiment behind reporting serious breaches to Ministers and to the Assembly. We're approaching this from a slightly different angle, but both Plaid Cymru and the Welsh Conservatives want to achieve the same aim here. I would be grateful, though, if the Member would detail what constitutes a serious breach under the amendments, just in the discussion. So, is that an adverse patient outcome, or a systemic failing like we saw at Cwm Taf?

In this group, amendments 73, 74 and our amendments—they specify that breaches of the duty of candour should be reported to Welsh Ministers, who, in turn, would have a requirement to report these breaches to the National Assembly, either via an annual report, or, when the Minister deems them serious, then immediately. I would say that that level of seriousness would be defined through guidance.

Once again, I think the reason for these amendments—both ours and the Conservatives'—is about ensuring that we start to pass meaningful legislation in this place. Meaningful in the sense that there are consequences to breaking the law—something that we've already touched on earlier this evening. The arguments made against these amendments at Stage 2 were that the Minister didn't want to encourage a culture of punishment, as he feared that would deter reporting. But, of course, it's important to point out that reporting mistakes isn't a breach of the duty of candour—it's what the duty is supposed to be about. A breach of the duty of candour is the failure to report mistakes. So, discovering a breach is already effectively discovering an incident of dishonesty, therefore is surely already serious enough to warrant reporting to Welsh Government. We don't want to be too prescriptive and say that it will definitely result in punishment, but we do feel that breaching this duty is serious enough that we need to know about it. That's vital, we believe, in order to build the kind of trust that we want within health and care in Wales.

So, these amendments would place a requirement to report these breaches to the National Assembly, either via an annual report or, as I said, if the Minister deems them serious, then immediately. But it's about, as we've heard already, teeth being given to this piece of legislation and ensuring that it actually acts in a way that means we see change and an improvement to the current situation.

The Minister, Vaughan Gething.

Thank you, Llywydd. I have listened to the rationale for laying the amendments tabled in this group, both at Stage 2 and again today. In relation to amendment 39, which, for reasons that I'll explain again, I don't agree with, the purpose and the effect is quite clear: any failure by an NHS body to comply with the duty of candour procedure regulations, or with the provisions is sections 5 to 10 in the Bill, must be dealt with under NHS Wales's escalation and intervention arrangements. Now, there is a recognition that there are those arrangements in place already. But there's a technical point, though, about the fact that the escalation and intervention arrangements and their use in primary legislation means there's a mixture of legislative and non-legislative measures available to the Welsh Ministers.

However, those very much, as I say, work within a wider governance and accountability framework within the NHS at individual body and system level, through quality and safety committees, on health boards and trusts, quality and delivery meetings, and joint executive meetings. Those are all opportunities for scrutiny and appropriate and timely action and learning.

Should serious concerns emerge from those mechanisms, they would, where needed, inform any discussions and potential action under our existing escalation and intervention arrangements. However, it is my expectation that every opportunity should be taken to address concerns as they emerge and that a body should take immediate corrective action. I don't believe it's necessary to include a provision on the face of the Bill that essentially says failures by an NHS body to comply with the duty must be dealt with under the measures that already exist.

I've listened again to the intended purpose and effect of amendments 73 and 74 and their requirement for Welsh Ministers to set out the procedure in regulations that NHS bodies must follow if they fail to follow the duty of candour procedure or comply with the reporting and other arrangements set out in sections 5 to 10 of the Bill. So, that means there would be a procedure for failure to comply with the procedure, and a duty to make statements and issue a report where the NHS has failed to comply with their reporting requirements. Now, that sounds really quite bureaucratic to me and adds unnecessary layers of complexity to the operation of the duty, which is not desirable. I also have real concerns about how this would work, or rather wouldn't work, in practice.

The requirement in subsection (4) of amendment 73 for Welsh Ministers to make a statement on serious breaches of the duty of candour procedure could result in information that enables patients to be identified being disclosed. The definition of a serious breach is not clear, and it's certainly not defined in the amendment. Requiring Welsh Ministers to report on the number of the breaches of the duty of candour that are reported to them is, again, unnecessary. In terms of monitoring compliance with the duty, I expect regular updates to be provided in public safety and quality committee meetings so independent members, as a first port of call, can seek assurance that the duty is being discharged and learning being taken forward.

Now, that will be discussed at quality and delivery group meetings between Welsh Government, individual bodies, joint executive team meetings, and of course between the chief executive of NHS Wales and the chief executives of boards and trusts, as well as my appraisals with chairs and vice-chairs. The Welsh Government will also monitor the content of those reports alongside other sources of information to help us try and get at the application of the duty with, for example, consideration of serious incident reports. The reports will also be considered by Health Inspectorate Wales as part of their wider reviews of services. Where concerns come to light through these mechanisms, they would undoubtedly inform the tripartite discussions and any subsequent advice to Ministers on escalation and intervention.

But I do need to return back to a point that was made both at Stage 2 and in the previous two contributions: the key intention of the duty is to promote an ethos of learning and improving and the promotion of an open and honest culture to be owned at an organisational level. When comments are made about how there's already been an act of dishonesty or lying if the duty is breached, I don't think that sets the right tone at all. It would be possible for an oversight or a mistake to lead to a breach of the duty, not an act of deliberate dishonesty, necessarily. And that runs wholly against our aim to foster that open culture, where people can hold their hand up when something goes wrong, rather than looking to say, 'How can I explain this away or avoid responsibility?'

The approach that is being urged on us in these amendments is, in my view, entirely the wrong approach to take. And in any event, the powers to intervene already exist. I don't believe that these overly bureaucratic amendments would facilitate the creation of the open and honest ethos that we're aiming to create. More concerning, though, is that they really could drive a much more punitive culture and a fear of reporting. I ask Members to reject the amendments in this group.

I honestly don't think I could disagree with you more, actually, Minister. Many years ago, I worked for a very wise business leader who said that he would never sack me for making a mistake, but he would sack me for failing to own it; and this is what we have here. Just let me remind you where we're at, because these are the last amendments to this Bill that are about the duty of quality and the duty of candour. Now, the whole premise of this entire Bill is about driving up the quality standards and about making our NHS more open and transparent. We have more amendments to come, but they're all about the citizen voice body and some technical stuff, basically. So, these are the two main strands: we want an honest and open culture, a culture where, when a staff nurse or midwife does a report that says that there are serious failings in maternity services, she or he would feel empowered to be able to flag that up because that's a duty of candour, and it's representing a duty of quality. 

So, what is about to be passed—because I'm sure you'll end up, because you've been whipped, voting this amendment down—is a Bill that is going to actually say something along the lines of, 'Please be candid, but if you're not, if you deliberately decide not to be, then never mind.' And that's what we're trying to do here. We may not have done it in the best way. You used the word 'punitive', and you've used it a couple of times tonight. This isn't about punishment, but it is about saying, 'Please be honest. If you're honest: absolutely fine. If you own it: absolutely fine.' That's what the patient wants, the odd 'Sorry' every now and again. That's what we want to hear, 'We screwed up on this, we need to do it differently', not hiding it. We've got too many instances where it's deliberately being hidden or there's deliberate vagueness, and it's just not being changed. So, well done, great Bill, great bit of legislation, but it's going to do very little to actually drive that culture change. 

We've all talked about it, time and time again, about being the best, about Wales having the leading NHS, the best social care, the best of everything, being the first with new and groundbreaking legislation. With this, all we're saying is, give it some teeth, so that if you are a senior manager and you see something and you choose to stick it in your bottom drawer and say nothing about it you will know that, eventually, when you are found out there will be consequences. Please vote for these amendments.

The question is that amendment 39 be agreed to. Does any Member object? [Objection.] We therefore proceed to a vote on amendment 39. Open the vote. Close the vote. In favour 22, no abstentions, 28 against. Therefore, the amendment is not agreed.

Amendment 39: For: 22, Against: 28, Abstain: 0

Amendment has been rejected

Amendment 73, in the name of Rhun ap Iorwerth, is next.

Amendment 73 (Rhun ap Iorwerth, supported by Caroline Jones) moved.

Formally.

The question is that amendment 73 be agreed to. Does any Member object? [Objection.] We therefore proceed to a vote on amendment 73. Open the vote. Close the vote. In favour 22, no abstentions, 27 against. Therefore, the amendment is not agreed.

Amendment 73: For: 22, Against: 27, Abstain: 0

Amendment has been rejected

Amendment 74, Rhun ap Iorwerth.

Amendment 74 (Rhun ap Iorwerth, supported by Caroline Jones) moved.

Formally.

The question is that amendment 74 be agreed to. Does any Member object? [Objection.] We therefore proceed to a vote on amendment 74. Open the vote. Close the vote. In favour 22, no abstentions, 26 against. Therefore, the amendment is not agreed.

Amendment 74: For: 22, Against: 26, Abstain: 0

Amendment has been rejected