(12 years, 7 months ago)
Lords ChamberRead Hansard Text Read Debate Ministerial Extracts
Baroness Wheeler
To call attention to the extent of the implementation of the recommendations of the NHS Future Forum in the Health and Social Care Bill; and to move for papers.
Baroness Wheeler
My Lords, this is an important debate. It is the first opportunity for the House to discuss the NHS following the First Reading of the Health and Social Care Bill last week. It takes place in the context of the continuing debate, controversy and deep unease over key aspects of the Bill, its incoherence and complexity even in this, its fourth iteration.
When the Future Forum report was published in June, hope sprang eternal among the many critics of the original Bill—patient groups, specialist groups for patients with long-term conditions, medical and other staff, trade unions, carers and Members across both Houses—that the report and the Government’s response to its core recommendations signified a major change of approach and strategy. My noble friend Lord Darzi was among those who recognised this change in the language and approach of the Future Forum and the Government’s response, welcoming the stated main thrust that the quality of service and care should remain the organising principle of the NHS.
We on these Benches welcomed the Future Forum report in the context that it had not covered all aspects of the Bill. We pay tribute to the work that the forum undertook in the eight weeks that it had to consult, deliberate and produce its report. My noble friend Lady Thornton, in response to the Minister’s Statement on the forum on 14 June, recognised that the Government’s proposed changes in response to the forum were indeed significant. Crucially, however, she urged Members across the House not to suspend their critical faculties but to wait for the publication of the revised Bill to ensure that the rhetoric was matched by the reality. We now have the reality before us. Three months on from the Future Forum report, fundamental questions remain about the post-pause Bill. Even after the Committee stage and Third Reading in the House of Commons, we are still no clearer about why this massive upheaval is needed. What is the Government’s future vision for the NHS? Who will be responsible and accountable for making decisions that will benefit patients and improve the NHS?
At the heart of the continuing problems are two issues that are fundamental to the ethos of an NHS that is free at point of need and provides a national public service. First, there is the importance of the Secretary of State having a continuing duty to ensure that we have a comprehensive NHS. Secondly, we must address the real concerns over Part 3 of the Bill, which places competition at the heart of the NHS and sets up an economic regulator that still has substantial powers to promote competition in the NHS. The Future Forum was clear on these issues and the recommendations are welcome and straightforward. However, the amendments to the Bill do not reflect that or translate the Future Forum’s intentions into legislation.
The Commons deliberations have failed to resolve the issue of the Secretary of State’s duty and role in relation to the NHS. Indeed, as the noble Baroness, Lady Williams, said in her recent Observer article, “confusion thickens”. My honourable friends in the other place, supported by authoritative legal opinion, have underlined that if the Bill becomes law then the duty to provide a National Health Service would be diluted and lost. The Government argue strongly for greater freedom for clinical commissioners from political interference. However, as the noble Baroness, Lady Williams, has said,
“to throw out accountability in order to tackle petty interference is to undermine democracy itself”.
The health professionals remain deeply concerned, as seen in the letter in last week’s Times from the BMA, the royal colleges of nursing, GPs, midwives and psychiatrists, and the governing bodies for the physiotherapists and occupational therapists. They warn that the new Bill will destabilise the NHS and requires further significant amendments. They say:
“Though the language may have changed, the Government remains committed to opening up the NHS further to market forces as a priority”.
The Patients Association sums up the ever increasing complexity of the Bill and the NHS structure when it says:
“It is unclear how the original commitment from the Government to streamline the NHS and remove bureaucracy will be met by current changes—one layer of bureaucracy being replaced by another”.
How does a Bill which adds more layers and bodies—increasing the number of statutory bodies from 163 to 521—substantially increases costs and fails to provide a clear rationale why it is all necessary succeed in improving quality of care and promoting integration?
At one of the many excellent seminars that noble Lords have had on the Bill at its various stages, we were promised by the Under-Secretary at the Department of Health an organigram of the proposed new NHS. That was perhaps a rash promise in view of the sheer number of organisations it has to include, but its production would at least help us to try to understand how the reforms will work as a whole and how they stand some chance of improving the quality of patient care. We know that there is a very real risk that the increased complexity added to the NHS structure will slow down or prevent decision-making, either through more bodies becoming involved in decisions or where it is not clear which organisation is ultimately in charge. How do these reforms support effective and speedy decision-making?
After the forum report publication, David Cameron said, “We have listened, we have learned and we are improving our plans for the NHS”. Nick Clegg was beside himself with joy when he declared a great victory for his party, with 11 out of 13 demands for change laid down by the Liberal Democrat conference being achieved. However, the reality is that the scorecard result is far more modest, as a number of prominent Liberal Democrats have recognised. The Future Forum made important recommendations which have not been dealt with by government amendments to the Bill, and which the Government have consistently blocked Labour, and a few Lib Dems, from amending.
In passing, as a former chair of the Labour Party conference committee in charge of the conference’s agenda programme, I have been following with interest the attempts to block debates and votes on the NHS at next week’s Lib Dem conference. For what it is worth, in my experience, keeping issues off the agenda usually results in the people affected going straight to the media and getting even more coverage than they would have had anyway, so I shall watch developments with interest and be very thankful that I am not the one defending that position on the conference platform.
In respect of the Future Forum report, I place on record for the avoidance of doubt that, of course, we recognise that the Government have acted positively on a number of its recommendations, including the change to clinically led commissioning and clarity on the wider input from health professionals. They have also clarified some of the accountability issues of clinical commissioning groups and have recognised that the timetable for reform could not be achieved. However, many concerns and issues remain in these areas and we will pursue them as we deal with the Bill clause by clause in the coming weeks.
I return to the second major area of concern: competition and the role of Monitor. The forum raised strong concerns about promoting competition as an end in itself. Recognising the problems with the original Bill, the report recommended that it should be changed to make it very clear that Monitor’s primary duty is not to promote competition but to ensure the best care for patients. Specifically, it recommended that Monitor’s powers should,
“promote choice, collaboration and integration”.
This is still missing from the Bill. The Government have also ignored the spirit of the Future Forum recommendations that sought a greater balance between competition, and co-operation, collaboration or integration. Compare and contrast the 90-odd clauses of the Bill on the regulatory regime for competition with the woolly references to organisations having to,
“act in an integrated way”,
with no definition of integration.
The Bill remains as lopsided as ever and, for a Health and Social Care Bill, there is actually precious little about social care. However, that is a whole debate in itself.
The Future Forum further recommended that the Bill be changed to clarify that Monitor be a sector regulator for health, not an economic regulator. While the duty to “promote competition” has been removed, it has been replaced with a new duty of “preventing anti-competitive behaviour”. This flipping of the language does not substantially affect how Monitor carries out its duties, its cost and its reach across the whole NHS.
Moreover, although the Bill moves away from referring to economic regulation, Monitor is still to be given sweeping pro-competition powers, including concurrent powers with the Office of Fair Trading under the Competition Act 1998 and the Enterprise Act 2002. These powers, alongside the power to license every provider to the NHS, have not been changed by the amendments. Monitor therefore remains an economic regulator in all but name. How will the Government address these concerns and issues? How will the issue of the role of the Secretary of State and the role of Monitor be resolved so that the service does not face constant legal challenges in the future about who is ultimately responsible and accountable for decisions, or about how commissioning has been undertaken and contracts awarded?
There are other issues. On transparency, the Future Forum recommended that all providers of NHS-funded services should hold their board meetings in public. The Government rejected this recommendation in their response to the Future Forum. This means that decisions about NHS services will be made in private, and could be marked “commercial in confidence”. The Government have similarly failed to bring greater transparency to clinical commissioning groups and foundation trusts by allowing substantial loopholes and leeway. There is a get-out clause for CCGs that want to avoid meeting in public. The wording of the Bill states,
“except where the consortium considers that it would not be in the public interest to permit members of the public to attend a meeting or part of a meeting”.
Foundation trusts can exclude members of the public from a meeting for special reasons with no explanation about what these are. This leaves this clause open to abuse.
There is also the important issue of the private patient cap and cherry picking by private providers. Professor Field, the Future Forum chair, admitted that the issue of the private patient income cap was not looked at by the forum and stated that,
“the feeling was that the private patient cap should actually stay”.
The Government have tabled no amendments to the clause abolishing the private patient cap. The implications of the abolition of the cap and increasing financial constraints that the service is operating under are already beginning to be seen. The Government’s amendments on cherry picking in the Bill only require that a provider be transparent in how it chooses its patients, and do not deal with preventing providers from picking the easiest and most profitable patients. All in all there is a very mixed and confused picture of implementation and translation into the Bill of the forum’s recommendations.
Finally, I come back to the Future Forum itself, as we now learn that its work is to continue with listening exercise mark 2—this time on education and training, integrated services, public health and information. Can the Minister give us more details of this? How does he envisage that this work will be fed into the Bill and what impact it will have on its parliamentary passage? Are we to have further amendments to, for example, the integration and information clauses? How long do the Government envisage the role of Future Forum continuing? Is it to be a permanent listening body—another body to be placed on the much awaited organigram? If so, when will the normal rules of public appointments and declaration start to apply to its membership? Are we to have further “pauses”?
Noble Lords will recognise that I set great store by getting the promised organigram. I am really looking forward to receiving it. When it comes, I will be asking myself three key questions. First, is this the structure to take the NHS forward into the future and provide the integrated care pathways that people with long-term conditions must have? Secondly, how will this help the NHS to deal with the Nicholson challenge of £20 billion savings over five years? Thirdly, will it now be easier for patients to find their way through the system and be clear who has responsibility for making decisions about their care? I think I already know the answers.
Lord Ribeiro
My Lords, I thank the noble Baroness, Lady Wheeler, for introducing the debate. The Future Forum addressed four core themes, many of which she has covered: choice and competition, patient involvement and public accountability, clinical advice and leadership, and education and training. The latter, as she correctly described, is still work in process under Julie Moore, who led the forum’s work on education and training. The Government have accepted that deaneries will oversee the training of junior doctors and dentists, and that that will be under the umbrella of Health Education England. That should give some reassurance to the profession, but it remains unclear who should be responsible for quality assurance of training. I do not believe that a “one size fits all” approach works, particularly with respect to the craft specialties. In this, I include surgery—here I must declare an interest as a past president of the Royal College of Surgeons. Prior to the introduction of the postgraduate medical education and training board, known as PMETB, currently responsible for quality assurance, colleges had the responsibility for accrediting training. I believe that the craft colleges are ideally placed to undertake the quality assurance of training, ensuring professional clinical input under the auspices of Health Education England.
Turning to clinical advice and leadership, the forum called for multiprofessional involvement and leadership at all levels of the system. The NHS commissioning board is a good place to start. I welcome the Government’s statement that the NHSCB will establish close links with the royal colleges and other professional bodies to entrench partnership-working at the national level. The board will have a medical director and a chief nursing officer—rather reminiscent of the old days of matron, senior medical officer and administrator, who used to run hospitals before the 1974 reforms. The board needs to be independent and free of political interference.
The role of the Secretary of State has been clarified in the Bill. I know, after following the debates in the other House and the views expressed by the noble Baroness, Lady Wheeler, that there is still concern about the role, but I believe that it is clearly expressed in the newly amended Bill. The Secretary of State will have a mandate to provide clear direction to the board, and the board will then be accountable to the Secretary of State.
One of the biggest problems that any Secretary of State faces is the reconfiguration of services—in particular, hospital services. The King's Fund this month produced a report, Reconfiguring Hospital Services. The report highlights the urgent need for clinical reconfiguration of hospital services in some locations to improve the quality and safety of patient care. The ability of politicians to interfere with the process of reconfiguration is well known, and the sight of MPs of all political persuasions on the picket line outside hospitals threatened with closure is not uncommon. The evidence presented by Chris Ham of the King's Fund of the Ontario experience in Canada suggests that an independent body can make hard decisions. The health service’s restructuring commission set up in Ontario in 1996 to restructure hospital services not only achieved its mandate but saved $1.1 billion in a total spend of $17 billion. This amount was then reinvested in other services.
The commission drove the establishment of clinical networks, a recommendation made by the Future Forum, and invested in home care and long-term care to facilitate hospital closures where required. Chris Ham also noted that the process used was not dissimilar to that used in this country to support the closure of mental and learning disability hospitals in the 1990s. The Government then transferred funding ahead of hospital closure to develop community services.
We must learn from these lessons. The Secretary of State should not be concerned with operational matters, but should be focused on strategy. Liberating the NHS implies liberating the service to rely more on professional clinical leaders. Armed with evidence, backed by research—another new responsibility for the Secretary of State—evidence-based practice can be used to reform the health service.
I believe that delay is not an option. The impact of specialisation, and in particular the European working time directive, of which we have heard much in this House over the past few years, will make it impossible to provide emergency surgical cover in all hospitals with accident and emergency departments in England. The development of trauma centres in London will create a new paradigm shift in acute care management. Reconfiguration of emergency services will be an inevitable consequence of this change, which will ultimately affect all hospitals in England. The Darzi principles, mentioned by the noble Baroness, Lady Wheeler, are important. They introduced quality outcomes based on the effectiveness and safety of the services delivered, and the quality of the patients’ experience remains a fundamental principle on which, I believe, the Health and Social Care Bill can build.
Baroness Jolly
My Lords, I thank the noble Baroness, Lady Wheeler, for securing this timely debate and for her thought-provoking speech and I thank the noble Lord, Lord Ribeiro, for his speech. I believe I speak for all my colleagues on these Benches when I say that we welcomed both the listening exercise, a process to which we contributed enthusiastically, and the report of the NHS Future Forum. We also welcome the Government’s commitments to implementing the bulk of the Future Forum’s recommendations. However, there are three broad areas—I think we shall revisit these three areas throughout the debate—on which I would appreciate further clarification from the Minister, in particular on accountability, local government involvement, health education and workforce planning.
First, it is important for the functioning of the NHS as a whole to get the Secretary of State's duties and powers absolutely right. We on these Benches have long advocated the devolution of power away from Whitehall wherever possible; and the Secretary of State should not be able to micromanage the health service. But there is a balance to be struck. The Health Secretary must remain ultimately accountable to the electorate, through Parliament, for the system as a whole; and, on the other side of the coin, he or she must have appropriate powers to intervene where the system has broken down.
Therefore, I am pleased that the Secretary of State will now have an express duty,
“to secure that services are provided in accordance with this Act”,
rather than, as hitherto, merely to,
“act with a view to securing”,
their provision. This wording ought to ensure that the Secretary of State will continue to be accountable to Parliament for what goes on in the NHS, while also recognising that day-to-day operational control rests with clinicians and managers.
I welcome, also, the clarification of the Secretary of State's powers of intervention in cases of substantial failure, and in particular the requirement that he or she be transparent in publishing the reasons for any such intervention. Set against these powers, the Secretary of State also has an express duty to promote the autonomy of other actors and players in the health service. This is a laudable duty, because it militates against political meddling. However, can my noble friend reassure me that this duty will not hamper the Secretary of State’s power to intervene when necessary in cases of failure? If there is a chance that it might have that effect, will he consider appropriate amendments to ensure that the right balance is struck?
Secondly, I am delighted to see local government attracting a greater role in the health service under the Bill. Assuming that the provisions are properly fleshed out and implemented, there is another opportunity here to press the localism agenda that is common to both parties in the coalition. The new health and well-being boards represent an opportunity to put more power in the hands of elected local representatives and their communities and so bring health and social care together in a meaningful way, but even after the Government’s amendments, the Bill leaves almost all the detail of this to regulations. Will this House have sight of the draft regulations before the end of Committee in your Lordships’ House? Will the regulations, in particular, detail appropriate outcomes, incentives and levers so that health and well-being boards are able to ensure that the integration of health and social care services actually takes place in their communities? What will happen, for example, where a clinical commissioning group and its health and well-being board cannot agree on the contents of the joint strategic needs assessment or health and well-being strategy? What recourse will there be where a clinical commissioning group strays significantly outside the provisions of the relevant local assessment or strategy? The duties of consultation and co-operation set out by the Government’s amendments are welcome, but I am concerned that they do not go far enough. There will be some situations where the health and well-being boards will need to have real teeth in order to get the job done.
Bringing public health back into the purview of local authorities is a hugely welcome development. I am glad to see that local authorities will be required under the Bill to appoint a director of public health, but can my friend reassure the House that directors of public health will be sufficiently senior and independent? They will need to have sufficient tools and resources at their disposal, financial and otherwise, to hold local authorities to account and make sure that they take their public health responsibilities seriously. In particular, will the department require each local authority to establish the post of DPH at an appropriate level of seniority, reporting directly to the chief executive? Can the public be confident that they will be adequately qualified? Will the Minister consider including this in the Bill, or at least setting it out in regulation or guidance?
Finally, education and training formed one of the four headline areas tackled by the Future Forum in its report, but is more or less absent from the Bill. While we welcome the retention of the functions of postgraduate deaneries within the NHS, the current system of medical education and training is overly complicated and was in need of reform well before the Bill appeared. However, given the impending demise of strategic health authorities, there is a danger that the existing system may disintegrate before anything can be set up to replace it. The Future Forum recommended, and the Government accepted, that Health Education England ought to be established as soon as possible with a clear mandate. I would be grateful if the Minister would update the House on progress so far on setting up the new system and the likely timetable for completing this work.
The Future Forum also recommended that education and training should be confirmed as a vital part of the core NHS, rather than established as a separate system. In the Government’s response to the Future Forum report, we were promised,
“an explicit duty for the Secretary of State to maintain a system for professional education and training as part of the comprehensive health service”.
This does not appear to have been implemented in the Bill as it stands. Will the Government bring forward an amendment in Committee to make good on this commitment?
We also understand that employer training networks—which, thanks to Future Forum, will now be known as local education and training boards, LETBs—are in the process of being set up. We welcome the move to bring healthcare providers more into the process of education and training. Will the Minister reassure the House that these organisations will be required to operate transparently and will be properly scrutinised by Health Education England?
As a result of the Government’s response to the Future Forum report, we now know in broad terms what the arrangements will be at local provider and national level, but can the Minister tell the House how strategic regional workforce development, hitherto carried out by strategic health authorities, will be carried out under the new system?
This has been a timely debate that has given us all plenty to think about at our party conferences. I will take the opportunity to update the noble Baroness, Lady Wheeler, on what will happen at the Lib Dem conference next week. There will be a debate on Wednesday in prime time, immediately before the leader's speech. In addition to that, our Minister will hold an open surgery. There will also be a Q&A session in the conference centre. There is no secrecy here. In addition, all parliamentarians involved in health will be available at a plethora of fringe meetings. I am more than confident that our membership will take every opportunity to engage us in debate.
I return to this one. I am sure that the House will agree that the issues of accountability, integration and education are critical to the smooth running of the NHS. We look forward to working with the Minister on these issues when we finally go into Committee later this month.
Baroness Pitkeathley
My Lords, like many noble Lords I have very personal feelings about any health Bill and have taken part in debates on many since I have been in your Lordships' House. Let us remember that the Bill that will shortly be considered by this House is the Health and Social Care Bill. I am grateful to my noble friend Lady Wheeler not only for securing this debate but for reminding us that at the moment there is precious little about social care in the Bill.
Social care has been one of the great commitments of my working life. The other has been about enabling disadvantaged individuals—clients, carers and patients—to speak up for themselves and to contribute to policy formation. How I judge proposals for change to health and social care services is therefore simple: will the new arrangements lead to services that are more organised around individuals and more integrated among all the providers of care, such as health services, carer services or voluntary and privately provided services? Therefore, I am delighted by the emphasis placed on integration and collaboration by the Future Forum report. I am not surprised, because calls for better integration always result from consultation with users, carers and the third sector, and the forum made excellent use of the networks of members from patient and user organisations.
I draw noble Lords’ attention to page 20 of the Future Forum report, which reminds us that the provision of integrated services is rarely dependent on structural change. It states:
“The reality is that the provision of integrated services around the needs of patients occurs when the right values and behaviours are allowed to prevail and there is the will to do something different”.
I will illustrate how we can do something different by telling noble Lords about Trevor. He is an Afro-Caribbean man in his 30s and a severely ill bipolar patient. He is treated by both health and social care services. He is an in-patient on many occasions. Staff try to get him to attend daycare when he is not in hospital so that his medication and behaviour can be monitored. Noble Lords will know that the average day care centre is not very suitable for a man like Trevor and he rarely attended, resulting in frequent breakdowns and hospital admissions. Last year staff decided to try a personal budget for Trevor. They worked with him to decide how it should be spent. He decided that he wanted karate lessons. For nine months he has been going to karate lessons almost every day in his local gym. He has become very good at karate, he is fit and stable and he has had no hospital admissions in that time. Moreover, when he is asked what benefit he has gained, Trevor says that he feels good and is a better father to his children.
Now this took place in one of the commissioning consortia pathfinder areas, but it is rare. We have not yet dealt with the problems caused by the mismatch in timing in the development of personal healthcare budgets and social care budgets. I fear that there will not be as many examples of such innovative practice as we need to see going forward.
Harry Cayton, writing in 2006 about patients as entrepreneurs, said that we got very near to enabling patients to have some real autonomy with personal budgets, but we stepped back from the brink as we were afraid of losing control and of what they might do with it. He said that we must not be afraid in the future. I am sure that that is absolutely right, but I fear that we are still afraid.
We still have the problem that commissioners may be focusing on the wrong problems. If you talk to a group of GPs, you will find that they are very clued up about the diagnosis and treatment of cardiovascular disease and even about its prevention. That was entirely appropriate when we had the worst record in Europe on cardiovascular disease, but the problems that face us now are not like that. They are about chronic illness and long-term care, and we still have a long way to go before we are innovative in that area.
The new amendments place a duty on local commissioning groups to consult health and well-being boards and HealthWatch is to ensure the involvement of patients and the public in policy and commissioning decisions. I worry that the plans for local healthwatch bodies have the potential to create conflicts of interest, as they are accountable to local authorities, the very bodies that commission and provide the services that HealthWatch is to monitor. Moreover, the consortia, as the noble Baroness, Lady Jolly, has reminded us, are under no obligation to abide by the views of the health and well-being boards, so I think there are some real questions about how much influence those boards can have. I very much endorse her call for them to have sharper teeth.
In addition, although some progress has been made toward coterminosity—that awful word—between consortia and local authorities, the populations for which consortia will be responsible will in fact be based on the practice lists, not on geographical boundaries, so there may be the sort of problems that those of us who have been around a long time have seen many times before of health and social care professionals trying to work across geographical and administrative boundaries.
My principal worry about the patient and public involvement issue is that all my experience shows that structural change does not bring about integration and collaboration, either within a service or across services; it is people and proper communication about the assessments of need and the point of view of the patient that bring that about. That was the example that I gave about Trevor.
However well intentioned the changes—and I am sure that they are well intentioned—that have been made as a result of the Future Forum’s work, have they really led to systems and structures that are in fact more complex and more difficult to find your way around, even for the professionals who work in them, let alone consumers when they are concerned and anxious? If you can ever find a flow chart about the new system—and they are pretty hard to find—they make your hair curl, as they look like one of those very elaborate electrical wiring diagrams. That is pretty difficult for any user, carer or patient to follow. I am concerned about the staff who are trying to administer such complex structures, anxious as they often are about their local position and jobs. They are anxious about the different paces at which different things are happening at local and national level, and I think that the complexity of the system will make that even worse.
I am also concerned about the mismatch that we now have in timing between a very major reorganisation of the NHS, in spite of promises that were once given about there being no such thing, and the very major reorganisation of the social care system as a result of the Dilnot commission, about which we still await government proposals. Will the NHS changes be set in stone by the time any decisions can be reached about social care?
I want to say a word about prevention. It is always a balancing act between quality and affordability. Services which prevent crises rather than intervene once crises have occurred are always vulnerable at times of financial restraint. How are commissioning boards going to see services that are not at present urgently needed but which are a good investment because they prevent crises developing? For example, I believe that some research about telecare shows that if you spend £1 now, it saves you £4 down the line. Will such investment be made?
I hope that the Minister will reiterate the Government’s commitment to prevention in heath and social care and will assure the House of their commitment to ensuring that social care is given equal status and importance with healthcare and that the reconvened Future Forum will have a clear programme of work and a timetable with regard to the integration of services. The temptation to focus social care on those with high needs and no means is very great. One of the ways of countering this short-sighted view is to remind ourselves that social care must achieve the same status as healthcare in future. In other words, it is not the province of the poor and feckless. It is in all our interests, and especially in the interests of commissioners, to ensure that it is understandable, which means that the current proposals are far too complicated. It must also be free from fear about affordability and provide dignity, safety and peace of mind. I remain to be convinced that the Bill that will shortly be before us will bring that vision closer.
Lord Rea
My Lords, I thank my noble friend Lady Wheeler for providing us with an overture, if you like, to our forthcoming debates on the Health and Social Care Bill and for her excellent speech. I apologise for missing part of it. There was an unexpected closure of the Jubilee line, which I am afraid is not uncommon.
Despite the listening exercise and the Future Forum report and a huge raft of government amendments for Report state in the other place—there were 700 amendments just for changing commissioning consortia into clinical commissioning groups—the Bill remains largely intact, not altering its unstated aim of opening up the NHS to a wider range of providers, including, not exclusively, the profit-making private sector.
There have been some improvements arising from the Future Forum report. I welcome the inclusion of hospital doctors, public health specialists, nurses and lay members in the clinical commissioning groups. Will the Minister confirm that they will have among their members or closely advising them an expert healthcare public health specialist, whether clinical or non-clinical? It is vital in helping them to plan.
I think there are too many loose ends in Schedule 2, which describes the membership and structure of the clinical commissioning groups. Too much has been left to regulations. Surely the composition of the groups should be stated in the Bill or in a schedule and some indication of the number of CCGs should be given. Are there going to be 100, 150 or 300? There should also be some indication of their catchment populations. As my noble friend Lady Pitkeathley has just said, it is going to be very difficult to arrange for coterminosity with CCGs being based on practice populations. Many feel that the population of 300,000 covered at present by the average PCT is too small for proper planning purposes, and some are already merging. Doubtless these issues will be covered in much more detail during the passage of the Bill.
A further change, which has been welcomed, is in the wording of the duties of Monitor. As the noble Baroness, Lady Jolly, has said, “duty to promote” competition has been converted to “prevent uncompetitive behaviour” in contracting. In practice, I think the changed wording may not be very different. Uncompetitive tendering or contracting surely means that before a contract is made with an NHS body, the independent and third sectors must be asked to make a bid. There are now a large number of British, European and American for-profit healthcare corporations ready and waiting to put in such bids. As we all know, many are already working inside the NHS. I do not think the change of wording is very meaningful. It enshrines in law what has been going on at an increasing rate since the Government of the noble Baroness, Lady Thatcher, first introduced compulsory tendering in the mid-1980s.
Private corporations have an advantage over third sector or in-house NHS bids because the complexity of public contract regulation and case law is now quite formidable and developing further. There are quite draconian remedies and penalties for breach of regulations. There is a real risk that there will be a deficit of suitable expertise within each commissioning group. They will probably have to bring this expertise in from outside, although I understand there are words in the Bill that seek to prevent this. Perhaps the Minister will comment on that. Like clinical commissioning groups, third sector or NHS bodies are also unlikely to have enough in-house expertise in procurement law and may not have the resources to bring it in from outside. Commercial organisations, on the other hand, need to have recourse to it in their everyday work in order to survive in the commercial world and large firms will have considerable in-house expertise. This gives them an advantage in making attractive proposals that are compliant with regulation, and of course they may also be loss leaders—the more likely the larger the firm.
I do not have time to go through every change following the Future Forum’s report. Nick Clegg, for the Lib Dems, has said that 13 of their 15 requirements for the Future Forum have been secured. Closer scrutiny of these shows his assessment to be somewhat overoptimistic. One example concerns cherry picking by private providers. The Liberal Democrats had a requirement that new private providers should be allowed,
“only where there is no risk of cherry picking, which would destabilise or undermine the existing NHS service relied upon for emergencies and complex cases, and where the needs of equity, research and training are met”.
In fact, private providers will be able to cherry pick by choosing to take on classes of patients with fewer complications, and will remove these patients from NHS hospitals which will thus lose the tariff payment that they would otherwise get. Unfortunately, there is no time to go through the other 12 Lib Dem requirements. Suffice to say that I am happy to supply any noble Lord with a list of these.
In conclusion, this has been a useful preliminary canter for our forthcoming debates. I hope that we will get further suggestions from the Future Forum regarding what has been discussed by a number of noble Lords; that is, research and training opportunities, and regulations and changes which will solidify the role of the Government in promoting these activities.
Lord Warner
My Lords, I, too, welcome my noble friend’s ability to secure this debate today because it gives us a chance to limber up for the marathon that now approaches in a few weeks’ time. I also endorse her view and that expressed by my noble friend Lady Pitkeathley with their timely reminder that this is a health and social care Bill. I should declare my interest as a member of the Dilnot commission on the funding of social care. It is important that we do not shut the door on changes in social care in this Bill that would help the NHS to face some of its challenges for the future. I have in mind particularly some of the non-financial aspects raised in the Dilnot report, such as assessment and integrating better the assessment of people for adult social care and NHS continuing care. That is one of the great and difficult boundary issues in our modern world.
Let me be clear at the outset that I fully support the need for continuing reform of the NHS. I certainly do not view the proposed changes with the same level of horror as many of the Government’s critics do. As a former Minister responsible for NHS reform, I remain a strong supporter of more patient choice and competition among a greater diversity of providers of NHS services, with an economic regulator holding the ring. We need to finish the job of separating the commissioning function from service provision. We need to give clinicians a larger role in commissioning services and to accelerate the transfer of more care and treatment to community settings across the health and adult social care divide.
However, as I have set out in a book about my own experience of trying to reform the NHS, the forces of opposition to reforming this icon are formidable. I notice the noble Lord, Lord Fowler, in his place. He has, I suspect, had a very similar experience. The Government launched this blockbuster of legislative change on an unsuspecting NHS. If you do that, it is hardly surprising, if you have such a poor narrative of why this change was necessary, if you get a rather considerable adverse response. Rebellion from the usual suspects—many of whom were my old sparring partners—was totally predictable.
The NHS is a provider-dominated service with a huge element of public monopoly provision. That is the reality of today’s NHS. It is the reality of the NHS over a long period. If you attempt to change that, you must expect vociferous opposition. It should have come as no surprise that with such a poor narrative the Prime Minister felt the need to call time out and attempt to regroup. Today, we are having a peep at the regrouping, or at least at the bits we know about because the Future Forum is still at work. I hope that the Minister can lift the veil a bit more on this and explain to us what further homework the forum has been set and how long it has been allowed to complete it.
What are we to make of the changes that the forum has proposed so far? Do they improve the coherence of the reforms and the likelihood of their success? Do they improve the prospects of the NHS meeting the formidable financial, productivity and service reconfiguration challenges that it faces over the coming years? My good friend, Professor Paul Corrigan, has today produced a new pamphlet that identifies some of these problems, and I hope that all noble Lords will avail themselves of the chance to read it. Let me make it clear that I am not paid anything by Professor Corrigan for giving his work that small plug.
The proposed changes by the Future Forum seem to have pleased the leader of the Liberal Democrats, although, from my observations, many of his foot soldiers still seem to be pretty disgruntled. Although the coalition agreement advocated making Monitor an economic regulator, the reality seems to put the wind up a number of Liberal Democrats. I have not seen many NHS interest groups putting out a lot of celebratory flags as a result of the forum’s report. The disgruntlement of the BMA and other public sector unions seems little abated. Perhaps more significantly the NHS Confederation, for which I have very high regard, hardly seems to be bowled over.
If I was still a Minister, I would also be a bit more anxious about the continuing concerns of more objective and analytical observers such as the King’s Fund and the Nuffield Trust. They have drawn attention, rightly in my view, to the additional complexity and cumbersomeness that the forum’s proposals have introduced. The original enthusiasm for GPs running more of the commissioning show seems to be evaporating as the hospital specialists fight back to retrieve more ground through the modification of consortia membership and the rather ghost-like senates that will lurk there. We certainly seem to have a lot of fingers in the needs assessment and service commissioning pie—the National Commissioning Board, a rump of SHA and PCT clusters posing as outposts of the board, clinical commissioning groups and health and well-being boards.
The forum seems to have helped the Government further along a path of public confusion over who is really in charge of NHS commissioning and who is accountable when things go wrong. There is now plenty of scope for dodging accountability and laying off the blame for failure. This is particularly the case in the area of service reconfiguration which the NHS needs so badly. It is perhaps appropriate that we have just seen a Health Secretary finally take a decision on service changes in Chase Farm Hospital the best part of a decade after it should have been taken. Let me congratulate the Health Secretary on showing the courage to do this eventually.
In my view, the forum’s proposals make worse the already unsatisfactory accountability for service needs assessment and the commissioning of services, and will make the much needed reconfiguration of services even more difficult. We have to concentrate more hospital specialist services on fewer sites and provide much more care and treatment in the community on an ambulatory basis if the NHS is to live within its means. This requires us to reduce expensive, unsustainable, low-quality and unnecessary acute hospital services and to transfer service resources to new service configurations with different providers from the public and, yes, the private and, yes, the not-for-profit sectors. We have to face up to moving away from the outdated business model of the all-purpose district general hospital of the 1960s.
Modifying reform in ways that make these changes more difficult to achieve is bad news for those of us who believe in a tax-funded NHS that is free at the point of clinical need, especially given the £20 billion of efficiency improvements that the NHS has to make over the next four years. These are issues to which some of us will want to return in a lot more detail during the passage of the Bill. I very much commend the remarks of the noble Lord, Lord Ribeiro, about some of these issues.
I conclude by saying a few words about integration and competition, which seem to have produced rather more heat than light in the recent public discourse. We are all in favour of integration, but we need to understand what we are talking about. From my point of view, I think that patients benefit from integration if it is related to the delivery of services to individual patients, but they may not benefit from the horizontal integration of service providers if it simply produces mergers that create far more monopoly provision and little improvement for patients.
It is also nonsense to suggest, as some have done, that competition inevitably means the fragmentation of service delivery and is inimical to integrated delivery. It is perfectly possible to have competition for the provision of integrated services; it just depends on the commissioner’s service specification and the payment mechanisms. In the US, Kaiser Permanente and others have shown that the integration of patients’ service delivery can flourish in a competitive healthcare market. Again, these are issues that we will need to come back to in the Bill.
Let me end by wishing the Minister well as he faces the Herculean task of taking the Bill through the House, but I cannot guarantee that it will be a totally pain-free experience.
Baroness Donaghy
My Lords, I also thank my noble friend Lady Wheeler for the opportunity to have this debate today. We have heard reference to the start of the political party conference season. The Future Forum exercise and the Government’s response have been presented by some as a David and Goliath battle to secure major concessions on the reorganisation of the health service—plucky Nick facing up to the giant privatiser and winning while claiming that it is not about winning. But we have the wrong bedtime story here. It is not David and Goliath but more like Little Red Riding Hood. I appreciate that the noble Earl might appear to be an unlikely wolf, but let us not forget that even the wolf dressed up in a frilly nightcap and adopted a soft voice. There are more questions than answers here, and some of the original questions remain. Why is there to be a major upheaval of the health service when all the staff are working flat out to provide a good and comprehensive service? Why are more quangos to be created rather than fewer? What will be the real role of Monitor in its revised format? And why are we giving £80 billion to the NHS Commissioning Board, the daddy of all quangos?
Since the Future Forum listening exercise, and here I must commend the diligence of its members, a revised Bill has been presented which we will debate in this House in October. But the Bill gives rise to new questions. First, in revised Clause 1, the Secretary of State’s powers and duties are closer to the current duty as set out in the NHS Act 2006, but as has been said, the phrase “to provide” has been deleted on the grounds that,
“having the premises and the staff necessary to offer health services directly does not reflect the reality of the situation in which commissioning and provision rest with the NHS bodies, not the Secretary of State”.
I think we all accept that no matter how hard they might try to distance themselves, the political reality is that Governments will always be held responsible for the state of the health service. So why should we worry about semantics, and indeed, is it about semantics? The Government’s response to the Future Forum exercise stated that the Bill would,
“make explicit that the Secretary of State remains fully accountable for the NHS”.
That sounds fine, but where is the responsibility for social care, a question also asked by my noble friend Lady Pitkeathley? What will be the definition of the NHS further down the line if providers are private companies? I am not a lawyer and I have no idea what the legal implications of this change mean, but I am a graduate in English language and literature. I know what “to provide” means and I am concerned that the significance of this omission will grow and grow as the years go by.
My concern is heightened because the responsibility for defining what constitutes the health service is being transferred from the Secretary of State to clinical commissioning groups. While the Secretary of State is still responsible under the new system for the promotion of the health service and ensuring that it is free of charge, clinical commissioning groups will determine what services actually constitute the health service. Just when I tell myself that I am worrying unnecessarily, I am then reminded that in the summer, the Health Secretary instructed primary care trusts to identify three services to be put out to contract. I am supposed to be reassured that the new private providers will not be allowed to cherry-pick, but the Bill only requires transparency in how patients are chosen. It says nothing about the easiest and most profitable types of treatment to provide, which could still destabilise the National Health Service.
I turn to the role of Monitor. The language is definitely softer: its primary duty is no longer to “promote” competition, but to prevent “anti-competitive practices”, a point already raised by my noble friend Lord Rea in his contribution. The Minister in the other place has claimed that this is a fundamental change and that Monitor’s main duty would be to protect and promote the interests of people who use healthcare services not by promoting competition, but by promoting the economic, efficient and effective provision of healthcare services. Again, I would love to ask a seminar of English language undergraduates to write a critique of the difference between promoting competition and preventing anti-competitive practices; drinks on the Terrace for the best essay. The Bill gives Monitor powers to fine hospitals up to 10 per cent of their turnover for anti-competitive behaviour and a new duty to promote integration. What exactly will that mean in practice? Could we see a situation where a hospital which is struggling financially is forced into the arms of a foundation trust in the name of integration? Who will pick up the overdraft? Beware the big bad wolf.
Finally, we come to the issue of what happens if Monitor declares a commissioner’s arrangements for the provision of health services to be ineffective, perhaps where it has failed to comply with procurement regulations. Indeed, what will happen if a service runs out of money? The Government have not yet presented their revised plans for a failure regime. The Minister’s explanation was that they would not rush their proposals for such a regime as it is a complex issue and they want to “get it right”. That is the second time this week that I have come across the “get it right” reason for having no information on a vitally important topic. The first time concerned regulations on the way in which the self-employed would be treated under the Welfare Reform Bill. At some stage we really need an organigram, also called for by my noble friend Lady Wheeler, setting out what the new structure will look like, who is in charge and how social care fits into it all. Without it, I hope that Little Red Riding Hood will stay on her guard.
Lord Sawyer
My Lords, I also thank my noble friend Lady Wheeler for initiating this debate. It is very clear that the passage of the Health and Social Care Bill has been troubled and that deep-seated concerns have been expressed by stakeholders across the health sector over the past few months. The Government have made some changes to their NHS reform proposals following the legislative pause and listening exercise, overseen by the NHS Future Forum. What was put forward by the forum was seen by many as a workable set of recommendations, and in fact 16 were made in all. However, the Government’s efforts to take forward revisions to the Bill based on those recommendations have led to further serious questions from all sides. In some areas the recommended changes have not gone far enough or have been missed altogether, and even where there have been improvements, there are serious worries that they have been made at the cost of introducing new complexity and bureaucracy into the National Health Service. An already multifarious piece of legislation is sadly becoming even more complicated.
The Government have made some effort to listen to and address some of the concerns that have been expressed about the Bill to date. Despite some improvements over the summer and despite there being some positive aspects to the reforms, it is apparent that real, deep-seated problems remain.
An unbelievably wide range of voices in the health sector, such as the NHS Confederation, the King’s Fund, patient bodies as well as trade unions including the British Medical Association and Unison, have expressed concern about the unacceptably high risk posed to the health service in England as a result of the Bill. That is why those organisations are calling for the Bill to be withdrawn, or at least to be substantially amended, before matters proceed.
I agree with my noble friend Lord Rea that the Bill continues to place inappropriate and misguided reliance on market forces to shape services, which is lamentable. It is very clear that the general direction of policy travel, such as widening patient choice to any qualified provider across a much larger range of services, has the potential to destabilise local health economies. That is also implicit in the Bill, which embeds a more central role for choice without full consideration of the consequences and creates ambiguity about how the trade-offs between increasing patient choice and ensuring fair access, integrated care and improved efficiency should all be managed.
In addition, insufficient thought has been applied to the unintended knock-on effects and long-term consequences of proposals in the Bill, including for medical education and training, public health and the patient-doctor relationship. Excessive complexity and bureaucracy are associated with the changes made to the Bill to counter the lack of proper checks and balances in the original proposals. Furthermore, much detail is still lacking, being left to subsequent regulations and guidance.
The focus on the changes flowing from the reforms is already creating a noticeable distraction from efforts to ensure and improve the quality of patient care today. Anybody who works in the health service, as I do from time to time, must be distraught at the time-consuming issues that employees have to tolerate and the uncertainty that arises from the proposed legislation. This is at a time when the NHS is expected to find an unprecedented £20 billion in efficiency savings over four years. What is happening is quite remarkable.
There are still many areas that need to be addressed. The Bill seeks to ensure that the Secretary of State retains overall responsibility,
“to secure that services are provided”,
while giving operational independence for the delivery of healthcare to numerous bodies, most notably the NHS Commissioning Board and clinical commissioning groups. This has been the subject of much debate and will no doubt continue to be so, but most outside organisations believe that insufficient assurance has yet to be given that the Secretary of State will have ultimate responsibility for the provision of a comprehensive health service while allowing other bodies such as the commissioning board day-to-day operational independence. There are still big questions to be answered in that area.
The Bill establishes a new system of economic regulation of health and social care. However, there should not be a reliance on market-based policies that risk further fragmentation and destabilisation of the National Health Service. Increasing patient choice should not be a higher priority than tackling fair access and health inequalities, meeting need, promoting integrated care and optimising resources. Those are the things that should be properly reflected, underlined and given priority in any legislation.
The proposals relating to public health still require further changes. Public Health England should be established as a special health authority of the National Health Service and all specialist public health staff should be employed on national NHS terms and conditions of service. It is also important for directors of public health to be made accountable jointly to the chief executive of the local authority which they serve and to Public Health England.
It has already been said by other noble Lords that an effective education and training system is fundamental to preparing a suitably trained workforce for the future. To achieve this, oversight of education and training must occur simultaneously at both national and regional levels. The structural reforms proposed by the Bill must not undermine this. The Government say that they will bring forward amendments to safeguard education and training. I look forward to seeing the detail of those proposals.
There must be a robust and transparent process which has the full confidence of the NHS when it comes to how failing trusts are dealt with, in order to protect the interests of patients and the public. The Government have reversed proposals to use private sector insolvency processes to manage NHS provider “failure” and introduced amendments in the other place outlining new proposals. However, it is important to ensure that these proposals are sufficiently robust to do the job. Questions about this will need to be asked when the Bill reaches this House.
Despite the numerous changes made to the Bill and movements in policy following recommendations from the Future Forum, more work needs to be done to ensure that the Bill does not pose significant risks to the future of the National Health Service. If the forum makes further recommendations, they should be listened to and acted upon.
Baroness Thornton
My Lords, I am very pleased that my noble friend Lady Wheeler has put this Motion before the House today. The timing is perfect: we are within a few weeks of the long awaited Second Reading of the Health and Social Care Bill; and we are within a few days of the party conferences, at at least two of which, my own and that of the Liberal Democrats, the threats to and future of the NHS will be near the top of the agenda for our members. What happens at the Conservative Party conference is probably as much of a mystery to the Minister as to the rest of us. However, we do know from announcements made by the Prime Minister from one of his holidays this summer that he thinks that it is “job done” as a result of the work of the Future Forum, and that the Government's proposals now have widespread support from staff and patients. I could not help but wonder at what point the Prime Minister made this announcement and what particular beverage he might have been enjoying at the time.
However, as I said in your Lordships' House when the Future Forum was established, as well as when it reported, it is a political fix by the Prime Minister and his Liberal Democrat deputy. One of them had realised that his Secretary of State was not a safe pair of hands and had succeeded in uniting the whole medical profession—patients and patient groups—against his proposals; the other had just had a disastrous set of election results, lost a referendum and received a good kicking from his members at the Liberal Democrat spring conference in March. The noble Baroness, Lady Williams, described the reforms at that time as privatisation by stealth and said that they amounted to a plan to dismantle one of the most efficient public services of any in Europe.
Of course, I do not hold the Future Forum responsible for its genesis. I accept that all its members have acted in good faith and worked hard in the service of the public. I also accept that they did broadly a good job within their remit. However, it has to be said that the whole of this Bill is topsy-turvy. Instead of consultation, pre-legislative scrutiny and a draft Bill, and a legislative process followed by implementation, we have implementation speeding ahead and an initial consultation on a White Paper whose responses, it has to be said, were largely ignored by the Secretary of State when they did not accord with his plans. Indeed, that evidence included a large number of “buts” and raised many issues. Many organisations thought that the White Paper contained some very risky proposals.
Then a Bill arrived without the evidence base that the noble Earl has always said should be present before legislating. There has been no pre-legislative scrutiny. Frankly, if ever a Bill would have benefited from a Joint Committee of both Houses, this is it.
Then, halfway through its Commons stages, there was an unprecedented pause and a listening exercise, which should have taken place at the outset. We have the Future Forum. This body, which has made many recommendations about amendments to the Bill, has no authority other than being appointed by the Prime Minister. The people making recommendations and active in public life on a much smaller scale than this, with much less responsibility than the Future Forum, are subject, as are all of who have been governors of schools, to completing a register of interests. None of the Future Forum has done so. That is not a satisfactory or businesslike way to proceed with creating public policy and taking it forward into legislation.
Yesterday, I wrote to the noble Earl about Future Forum mark 2 and what influence its deliberations might have on the progress of the Health and Social Care Bill in your Lordships' House. I look forward to an answer to that. I have asked whether we will have a pause and whether we will be seeing amendments resulting from the Future Forum's deliberations.
I now turn to what the Future Forum has already said and I will use the Liberal Democrat’s aspirations for the Future Forum and what it should bring into the Bill as my guide. We know that the Prime Minister thinks that the Future Forum has done the trick, but what of his deputy, Mr Clegg? Mr Clegg had 13 red lines. On this side of the House, we believe that seven of those have failed and six have fallen short, as my noble friend Lady Wheeler has said. I think that his score card stands at C plus, but my noble friends behind me think that that is probably too generous.
I am grateful to my noble friend Lady Wheeler for reminding the House that our duty in this House is to the NHS and the nation. It is our duty not to suspend our critical faculties when we look at the Bill. We believed that this was a deeply flawed Bill from the outset, but at least it was coherent. We now think that it is immensely more complex and bureaucratic. Ultimately, it will be more expensive for the taxpayer. That was mentioned by my noble friends in different ways.
Much has been said already about the Secretary of State’s powers in the Bill. I suspect that that issue will test the House’s powers of understanding and literacy, as my noble friend said. I also suspect that some of our lawyers will probably engage with it as well, so I will not refer to that in my remarks today. I want to look at some of the other issues that the Future Forum has tackled.
On more democratically accountable commissioning, we have to say that that has failed. The relevant clauses of the Bill do not yet contain elected members or councillors on commissioning consortia, while health and well-being boards are able only to give their opinions to consortia. Consortia are under no obligation to abide by that opinion. The call for a much greater degree of coterminosity between local authorities and commissioning areas was mentioned by my noble friend Lady Pitkeathley. Practice lists do not bear any relation to local authority boundaries, by and large, so they are not a reliable solution to this problem.
A call for no decision about the spending of NHS funds to be made in private and without proper consultation, as can take place by the proposed consortia, has failed. As my noble friends have said, consortia will not be as transparent as PCTs currently are because they do not have to abide by the Nolan principles on public life and the public meetings legislation. It is left up to them to decide what business to conduct in private and not in public. That is unsatisfactory and we are talking about billions of pounds of public spending. We have failed there.
Then there was the call for the complete ruling out of any competition based on price to prevent loss-leading corporate providers undercutting NHS tariffs and to ensure that healthcare providers compete on the quality of care. There is no doubt that something has been achieved here. However, there will continue to be a number of NHS services not covered by the tariff with greater competition from private providers. That means that price competition for those services has not been ruled out. So that has failed.
We need to turn to cherry picking, which could destabilise and undermine existing NHS services relied on for emergencies and complex cases. We have failed completely on that point. The Government’s amendments addressing cherry picking require only that a provider be transparent in how it chooses its patients. It says nothing about preventing providers picking the easiest and most profitable patients. Furthermore, picking patents is only one part of cherry picking. Private providers will also be able to pick the easiest and most profitable types of treatment to provide—elective surgery, for example—while leaving the NHS to do the expensive loss-making treatments such as emergency inpatient care. Nothing in the government amendments prevents that and therefore risks destabilising those NHS services.
There was a call for government commissioning to be in full compliance with the Human Rights Act and freedom of information laws. The Liberal Democrats were particularly concerned that freedom of information should be extended throughout the Bill. That has not happened. It is an important priority for our discussions when we look at the Bill. Billions of pounds’ worth of public money and millions of people's treatment are at stake.
We also had a call for ensuring that health and well-being boards are a strong voice for accountable local people in setting the strategic direction for co-ordinating the provision of health and social care services. There is a failure there. Consortia are under absolutely no obligation to abide by the views of health and well-being boards. So we go on. I will leave the failure regime, which was introduced at such a late stage, for our attention in a few weeks’ time.
I am so pleased that there are Members in both Houses of all parties and across this House who are turning their attention to the actuality of the Bill and its applicability. I highly commend the noble Baroness, Lady Williams, and other Liberal Democrat Members—noble, honourable and plain activist—who have not swallowed the line that now all is well with the Health and Social Care Bill. I know how difficult it can be to find yourself at odds with your leadership, your party and your own Government. I have been there many times over the past 30 years. But in this case, our first duty is to the NHS, its patients and those who work in the NHS. We must proceed by not looking at theoretical structures and esoteric arguments. We must look outside the Chamber and hear the clinicians and patient groups and let them be the guide to what happens to the NHS in the future.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, I agree with the noble Baroness, Lady Thornton, that this has been a timely debate. I thank the noble Baroness, Lady Wheeler, for calling it and all noble Lords who have spoken and contributed so eloquently. To pick up the baton handed to me by the noble Baroness, Lady Donaghy, who remarked what big plans my colleagues and I have in the Government's programme of modernisation of the NHS, the debate has indeed covered a great deal of ground. I will do my best to cover most of the key issues in my speech. To the extent that I do not, I will of course follow up those points in writing.
The noble Baroness, Lady Wheeler, asked why we needed to legislate at all. The Health and Social Care Bill seeks to create a stronger, more responsive and more innovative NHS—an NHS led by clinicians, with patients in control of their own care and with a resolute and unflinching focus on results. We must streamline the architecture of the health service to improve its efficiency.
My noble friend Lord Ribeiro directed us towards exactly the right starting point by referring to the core principles underpinning the Bill. Despite widespread support for these principles—and there has been such support—some thought that the detail of the Bill could be improved to better support those principles. So we took the unprecedented step of asking a group of independent health experts, the Future Forum, to recommend changes to the Bill. I would like once again to thank Professor Steve Field, the members of the NHS Future Forum, the hundreds of organisations and thousands of people who contributed to the listening exercise. We accepted all of the forum’s core recommendations and we have since made significant changes during the Bill’s Second Committee stage. I cannot accept the criticism of the noble Baroness, Lady Thornton, of the process. Stakeholders have in fact welcomed how the forum conducted itself—for example, Mike Farrar of the NHS Confederation and Hamish Meldrum of the BMA. I believe that the process has been hugely positive and has helped us to improve a number of our plans in different ways.
First, I would like to run briefly through some of the key changes that the Government are making. My noble friend Lord Ribeiro, as might have been expected of him, referred to clinical leadership. Some were concerned that too narrow a group of clinicians would be charged with designing services, so we have amended the Bill to place stronger duties on commissioners to ensure that all relevant health professionals are involved in the design and commissioning of services at every level—including clinical networks in relation to specific conditions and new clinical senates for broader areas. The governing bodies of clinical commissioning groups will need to appoint at least one registered nurse and one secondary care specialist.
The noble Lord, Lord Rea, questioned whether there would be public health input into the commissioning process. The Bill should require commissioning consortia or groups to obtain all relevant multiprofessional advice to inform their commissioning decisions, including public health but also other types of advice. The authorisation and annual assessment process should be used to assure this. We will make sure that a range of professionals plays an integral part in clinical commissioning of patient care and we have amended the Bill to place stronger duties on commissioners to obtain that advice.
We are committed to harnessing the benefits that competition and choice bring for patient care but let me make it clear, particularly to the noble Lords, Lord Rea and Lord Sawyer, that competition will never be about serving the interests of corporations. It will be about serving only the interests of patients and we have made changes to the Bill to reflect this. We have removed Monitor’s duty to promote competition as though it were an end in itself. Instead, it will be under a duty to support services integrated around the needs of patients and the continuous improvement of quality. The choice of “any qualified provider” will be limited to those areas where there is a national or local tariff, ensuring that competition is only ever based on quality, not price. That will also ensure that there can be no cherry picking. I will come back to that point in a moment. There will be and can be no privatisation of the NHS. In fact, it will be illegal for current or future Ministers, the NHS Commissioning Board or Monitor to favour the private sector over the public sector, or indeed vice versa. While some will undoubtedly disagree, what matters is the outcome of care provided and the end results for patients, not the nature of the provider—public, private or otherwise.
The noble Baroness, Lady Wheeler, suggested that we had not implemented the Future Forum’s recommendations on board meetings being held in public. It is not correct to say that we have not amended the Bill in regard to that, as we have made it a requirement for every clinical commissioning group to have a governing body with decision-making powers. To enhance transparency and accountability, governing bodies will be required to meet in public and publish their minutes, while clinical commissioning groups will have to publish details of contracts with health services. Openness and transparency will be the bedrock of a new, more patient-centred, outcome-focused and accountable NHS. We have amended the Bill in the way that I have described but, in addition, we have said that the governing bodies of commissioning groups must have at least two lay members: one to champion patient and public involvement, the other focused on overseeing key elements of governance such as audit, remuneration and managing conflicts of interest. Foundation trust governing boards will also need to meet in public.
The theme of integration loomed quite large in a number of noble Lords’ contributions. Excellent care often means integrated care. We have strengthened the NHS Commissioning Board’s duty to integrate services and introduced an equivalent duty for clinical commissioning groups. Health and well-being boards will be required to involve the public when identifying local needs and developing the joint health and well-being strategy. In future, I think there will be far more effective arrangements than exist currently for ensuring joined-up working across the NHS, public health and social care—a theme picked up by the noble Baroness, Lady Pitkeathley. We will have an NHS Commissioning Board setting common frameworks in which clinical commissioning groups commission services, a regulator to ensure that standards in care are met and greater transparency of outcomes, which will drive up efficiency and quality. I add that we have asked the NHS Future Forum to look at integration as part of its continued conversations with patients, service users and professionals. The forum will report back to Ministers later this year on what it has heard.
The pace of change has also caused concern for some people, so in a number of areas we have made the timetable for change more flexible. No one will be forced to take on new responsibilities before they are ready to do so. However, those who wish to progress more quickly will not be prevented from doing so.
Let me now turn to some of the specific concerns which have been raised during the debate. The noble Baroness, Lady Wheeler, and my noble friend Lady Jolly referred to the Secretary of State’s duties—concerns that were echoed by the noble Baroness, Lady Donaghy, and the noble Lord, Lord Sawyer. At present, the Secretary of State has a duty to provide or secure services himself but delegates that responsibility to strategic health authorities or primary care trusts by directions. Generally, he delegates nearly all his commissioning responsibilities to SHAs or PCTs, but he has the powers to alter that and vary the extent of delegations. Under the new system, the function of arranging the provision of services—that is to say, commissioning—will be conferred directly on the board and clinical commissioning groups by Parliament, providing stability for the system and removing the Secretary of State’s ability to intervene arbitrarily in the day-to-day management of the commissioning process. That will free up those with the relevant expertise to focus on commissioning the best possible services for patients, free from political micromanagement.
Ministers are accountable for the NHS and will remain so. The Bill does not change the Secretary of State's overarching duty to promote a comprehensive health service, which has underpinned the NHS since it was founded. The Bill simply makes it clear that it should not be the responsibility of Ministers to provide or commission services directly. That should be the job of front-line organisations, free from interference. We are putting patients and professionals in the driving seat in order to create better quality care and better value for taxpayers.
The noble Lord, Lord Sawyer, said that there was not enough in the Bill to provide clarity. I understand why he makes that point. Every Bill that we scrutinise in this House needs to get the balance right between what is on its face and what is in regulations. We have republished our delegated powers memorandum, which sets out our justification for taking the delegated powers that the Bill proposes, and I hope that memorandum is well read and scrutinised.
The noble Baroness, Lady Wheeler, and others including the noble Lords, Lord Warner and Lord Sawyer, suggested that we were adding layers of bureaucracy. I think the noble Baroness said that the number of bodies would be increasing from 163 to 521, if I did not mishear her. I simply cannot accept that; it is not true that we are creating additional bureaucracy. The changes we made to the Bill as a result of the listening exercise do not create any extra statutory organisations at all and I do not recognise the figure that she cited. We remain absolutely committed to our promise to cut bureaucracy. We are removing layers of management by abolishing 151 PCTs, 10 strategic health authorities and half of the national health quangos. Administration costs across the health system will be cut by a third in real terms by 2014-15.
The noble Baroness, Lady Wheeler, spoke generally about the Future Forum recommendations, particularly about some that in her eyes the Government did not accept. We accept all the core recommendations of the Future Forum report but there are some areas that need further work before the final decision is taken. Those include further work on the feasibility of a citizens’ right to challenge poor quality services and lack of choice, and work to improve how continuing professional development is provided.
Some but not all of the forum’s core recommendations to the Bill require amendments to the Bill. For example, clinical networks and clinical senates will be hosted by the commissioning board, and will not need to be provided for by amendments to the Bill.
The noble Lord, Lord Warner, asked about phase 2 of the Future Forum’s activities. We announced in August that the forum will provide further independent advice on four themes: information, education and training, integrated care and public health. While the first phase of the forum’s work focused largely on the Bill, the second is focusing on non-legislative aspects of the reforms. It will report back to the Government later this year and publish its advice, as I indicated earlier, and we will draw on that advice as we work to implement the reforms across the piece.
My noble friend Lady Jolly took up the subject of education and training, which was also the theme of a number of other noble Lords’ contributions. It is vital that any changes to the funding of education and training have to be introduced in a careful phased way that does not create instability. We are therefore going to take our time to develop the proposals, working with our health and social care partners, and through further consultation. We will be publishing more details about that in the autumn and will bring forward an amendment in due course.
We think that individual employers with appropriate professional input and leadership are best placed to plan and develop their own workforce and assess what workforce and skills are needed on the front line to provide affordable, safe and high-quality care. Health Education England is being established to support healthcare providers and provide national oversight of workforce planning, education and training. It will be a lean and expert organisation and will provide leadership for effective workforce planning and the provision of high-quality education and training that supports innovation, value for money and better skills. We have also been working closely with strategic health authorities, which are managing the transition to the new system.
I turn to specific questions about the subject of competition, an issue raised by the noble Baronesses, Lady Wheeler and Lady Donaghy, and the noble Lord, Lord Rea, among others. “Promoting competition”, which was the original wording in the Bill, could have been interpreted in a number of ways. It could have been interpreted as proactively encouraging new providers of NHS-funded services to come forward or existing suppliers to compete for more services, irrespective of what was in the best interests of patients. Addressing anti-competitive behaviour is about preventing potential abuses by providers and commissioners to ensure that the system works in the best interests of patients. “Promoting competition” might also have been interpreted as requiring action where Monitor felt that there was insufficient competition in place, such as where there was a single dominant supplier of a particular service. The Bill now provides that Monitor should consider acting in such cases only if the provision of services is not economic, efficient or effective, or if a provider is abusing its market position to the detriment of patients.
A number of noble Lords were worried about cherry picking, especially the noble Lord, Lord Rea, and the noble Baroness, Lady Thornton. Those two noble Lords in particular were mistaken in their analysis of the position. We have consistently said that we would prevent private companies from cherry picking easy, profitable NHS services. We fully agree with the Future Forum’s call for additional safeguards against private providers being able to cherry pick profitable NHS business. We have made changes to the Bill to ensure that competition is about quality, not price; for example, there will now be a specific duty on Monitor to ensure that providers are paid in line with the complexity of the cases that they treat. Providers will have to set and apply transparent eligibility and selection criteria.
In her wide-ranging speech, the noble Baroness, Lady Wheeler, also covered the subject of the private patient income cap. Professor Field told the Commons committee in June that the Future Forum heard a wide range of views on that subject. He expressed the personal view that, because of the mixed views on this area, the forum could not make a strong recommendation as a body. In the eyes of many, the current cap is arbitrary and unfair. Foundation trusts tell us that the private income cap is unnecessary and restricts their ability to innovate and maximise income to deliver improved NHS services. We are confident that, as and when the cap is lifted, private income will benefit NHS patients. We are determined that that should be seen to happen. However, we will explore whether and how to amend the Bill to ensure that foundation trusts explain how their non-NHS income is benefiting NHS patients.
My noble friends Lady Jolly and Lord Ribeiro and the noble Lord, Lord Warner, spoke about reconfiguration. Although I have extensive notes on that important subject, I suspect that there is not time to cover it now. However, we will no doubt return to it, as we will to the many questions asked of me by the noble Baroness, Lady Pitkeathley.
I shall cover a couple of smaller issues. My noble friend Lady Jolly asked whether directors of public health would report directly to the chief executive of a local authority. We expect directors of public health to be of chief officer status and to report directly to the chief executives of local authorities. We are engaging with local government and public health stakeholders about how best to ensure that they have appropriate status.
Now that the Bill has passed to this House, I look forward to the debates that we will have in the weeks and months ahead. In preparation for those, my office will be in touch with interested Peers to arrange briefings with the Bill team and Library officials about any of the issues that we have been debating today and indeed any others that are troubling noble Lords. Those are likely to take place between Second Reading and Committee.
On the question of organigrams, I refer the noble Baroness to the original White Paper that we published, which contains a rather good one. We will also shortly be publishing a statement of accountabilities in the NHS, which will set out the roles and responsibilities of each organisation in the system.
Thanks to the excellent work of members of the Future Forum, the Bill has the potential to free clinicians to lead, to enable patients to take control and to focus the NHS on improving the quality of outcomes—principles that I hope we can all agree upon as we move forward to the next very interesting stage of the parliamentary process.
Baroness Wheeler
My Lords, this has been an excellent debate. I thank all noble Lords for their contributions, particularly the update from the noble Baroness, Lady Jolly, on the Liberal Democrat conference programme. As noble Lords have said, this is a timely debate; it is a precursor, an overture or a limbering-up for the debates that we are about to have. I am sure that we are all looking forward to that in the coming weeks. With that, I beg leave to withdraw the Motion.