18:45 - Division on Amendment 236A - Ayes: 170 / Noes: 202 - Amendment 236A disagreed.
Baroness Northover
My Lords, I think that, one way or another, I am going to disappoint: I am going to disappoint the noble Lord, Lord Beecham, that the response is not coming from my noble friend Lord Howe, whom he is so fond of, or—
Baroness Northover
I am absolutely delighted.
In answer to the noble Lord, Lord Warner, it may be that the version of my noble friend Lord Howe that he is seeing now is slightly different from the one that he usually sees, but I am surprised at his comment about my noble friend having made little movement. The noble Lord will know—
Lord Warner
I thank the noble Baroness for giving way. I encourage her to reflect on what she might experience in terms of surprise on Report if we do not see a little more flexibility.
Baroness Northover
As a former Minister, the noble Lord, Lord Warner, will be familiar with how—much more familiar than I was when I came into this position—change is discussed and then moves forward. I can assure him that the Government are very much listening and discussing the issues that have come up in your Lordships’ House. As he will know well, it is usually in Committee that noble Lords probe issues and flag up concerns, and usually on Report that shifts occur. I hope that the noble Lord understands that we are indeed listening. Perhaps noble Lords will bear in mind the fact that there has already been much discussion of issues such as ministerial accountability, education and training, research, HealthWatch England and patient involvement, among other issues. Public health is undoubtedly one such issue. I can assure him that that is the case. As the Bill moves along there will undoubtedly be open discussion. I have certainly seen that from the inside.
As noble Lords will know, we previously discussed the high-level provisions relating to the public health powers and duties of local authorities and those of the Secretary of State. We are now focusing on the process of local engagement whereby health improvement responsibilities will return to local authorities. When discussing Clauses 8 and 9 I briefly referred to the role of the director of public health, but I should like to take this opportunity to highlight the importance that the Government attach to the role of director of public health and local government within the new system.
The director of public health will be ideally placed to embed public health across the work of the local authority, acting corporately but exercising the appropriate professional autonomy where necessary, to advocate for the health of the local population. As the noble Lord, Lord Patel, put it, he or she indeed needs to be the strategic leader on public health in the local authority. Other noble Lords echoed that view. We understand that there are a number of concerns about the status of the director of public health but I hope that I can reassure noble Lords on the points they have raised. We are indeed seeking the kind of status that they referred to.
Amendments 228, 229, 232, 233 and 233A relate to the status of the director of public health. As my noble friend Lady Cumberlege noted, given the importance of their leadership position, we would expect a director of public health to be of chief officer status with direct accountability to the chief executive. We hear what noble Lords say about the importance of that.
We have progressed this important issue—the noble Baroness, Lady Cumberlege, wanted an update—and we expect to make a formal announcement in the new year about how we will ensure the senior status of the directors of public health. We are committed to addressing that further. I hope that noble Lords will be reassured by what I have said.
Amendments 229, 231, 233 and 233A relate in particular to the qualifications and experience of the director of public health. The director of public health will be jointly appointed by the Secretary of State, who will be able to ensure that only appropriately qualified individuals are appointed. The fact that the Secretary of State, in the shape of Public Health England, will play an active part in directors’ appointments will help to bind the system together and help to ensure consistency of approach to the role without infringing unduly on local authorities’ independence.
In the National Health Service, some standardisation is imposed by the NHS (Appointment of Consultants) Regulations. The joint appointments process for directors of public health would allow the Secretary of State and local authorities to agree similar standards for local government.
Amendment 225 would require the Secretary of State to agree the appointment. I can reassure the Lord, Lord Patel, that the joint appointment process would already involve the agreement and active participation of the Secretary of State. The local authority and the Secretary of State could not properly imply with their duties and conduct a fair appointment process unless the individual chosen was suitably qualified with appropriate professional expertise. The joint appointment gives the Secretary of State more involvement in the Bill as it stands than under the amendment, which would limit his role to approval.
Amendments 234 and 234A would require the local authority to obtain the agreement of the Secretary of State before dismissing a director of public health. Under new Section 27(2) of the 2006 Act, the director of public health is an employee of the local authority, although any local authority wishing to dismiss its director of public health would have to consult the Secretary of State. Directors of public health will also have the full protection of employment law. Given that their employment relationship is with the local authority, we believe that this provides an appropriate level of protection.
I thank the noble Lord, Lord Patel, for Amendment 236. The amendment would allow the Secretary of State to issue guidance to which local authorities must have regard in relation to the appointment and termination of the director of public health. My noble friend Lord Howe and I will commit to considering this further.
Amendment 339 inserts a new clause which would require the Health Professions Council to establish a register for currently unregulated public health specialists. This links to Amendments 229 and 230, which would require that all directors of public health are on a register. I share the desire to assure the quality of all public health specialists in a way that is robust and effective.
The consultation on Healthy Lives, Healthy People and the NHS Future Forum identified a number of options for assuring the decision-making of public health specialists, including assured voluntary registration and compulsory statutory regulation, and we have sought further evidence from the public health profession to demonstrate whether compulsory statutory regulation is needed. We want to assess this evidence carefully before making final proposals. I assure noble Lords that we are listening.
I also reassure noble Lords that if compulsory statutory regulation of all public health specialists is introduced, we would seek to ensure that the bodies responsible for regulation would be subject to oversight by the Council for Healthcare Regulatory Excellence, which is renamed the Professional Standards Authority for Health and Social Care in the Bill.
Amendment 259 would place in the Bill requirements in relation to the terms and conditions of public health staff working in Public Health England and local authorities. I reassure the noble Lord, Lord Patel, that employees who are compulsorily transferring with their current work function from the NHS to a local authority or Public Health England will—by virtue of either the Transfer of Undertakings (Protection of Employment) Regulations, TUPE, or a statutory transfer scheme under Clause 294, where the Cabinet Office statement of practice on staff transfers in the public sector, COSOP, applies—have their pay, terms and conditions protected.
The Government are currently working with stakeholders to develop a public health workforce strategy, and a formal consultation will be published in due course. We are now beginning the detailed work of developing a new set of terms and conditions for Public Health England and we have started work with trade union colleagues to negotiate a package on that.
The noble Lord, Lord Walton, asked about health inequalities. This is an issue that we covered when we talked previously about public health. I reiterate that we intend to encourage local authorities, through the conditions that we attach to their new funding, to consider the need to reduce inequalities when they discharge their public health functions. The noble Lord also asked whether the CCGs and the board will have duties to obtain appropriate advice. Again, this is an issue that has come up before. They will explicitly need to do that. He also asked whether they should be on these boards. We intend to require local authorities to have a core offer of public health advice to the NHS and we will publish more information about that shortly.
Coming back to the question of local authority terms and conditions of transfer, work is currently under way on a concordat, which will provide principles and standards relating to the transfer, selection and appointment processes affecting public health staff moving to local authorities. This is expected to be published shortly.
Various noble Lords made reference to emergencies. As the noble Lord, Lord Beecham, said, we will be talking about that when we come to a later group of amendments, so perhaps we can postpone consideration of that subject until then, when I can answer any questions that have come up.
In conclusion, I commend noble Lords for their great expertise in this area—expertise in public health and right across the domain, and also, as the noble Lord, Lord Beecham, showed, in local government. It is very important that this is put together effectively. Many have welcomed the move of public health to local authorities, and this should, as noble Lords have previously noted, present many very useful opportunities to put public health centre stage. We hear the concerns that noble Lords have flagged up as these changes take effect but I hope that they will note that we are taking back many of the issues for consideration. I see scepticism on the face of the noble Baroness, Lady Thornton, but I hope that noble Lords will have listened to what I have said in the key areas that they have flagged up. On that basis, I hope that the noble Lord will be prepared to withdraw his amendment and that noble Lords will continue their constructive engagement with the department in this area.
Lord Warner
Can the noble Baroness write to us about central government approval of people who are employees of the local authority? There are three areas where I should certainly like to be a lot clearer. The first is what the position with medical officers for health was in the past. My memory is that they were approved by the then Health Secretary. The second is the position of directors of social services. In the past, as I recall, they used to be approved by central government and were employees of the local authority. The third is the current position of chief constables. As I recall, they certainly had to be approved by the Home Secretary and I think may technically—although I am not sure—be employees of the local authority. It would help us to understand the Government’s position on this if we could have more clarity—certainly on those three examples.
Baroness Northover
I am more than happy to write to the noble Lord about those areas.
Lord Beecham
Perhaps the Minister, if not today then subsequently, could address her mind to the significant issue that I raised about the positions of directors of public health and district councils. Her assumption, which is fair enough at the present stage of the Bill, is that to all intents and purposes Public Health England and the Secretary of State are one. It is a political version of the theological concept of consubstantiation. I understand that, but that assumes that Amendment 260, which calls for Public Health England to be a special health authority, will not be approved. If it were approved, what would the Government’s position be on the question of joint appointments and consents that under the Bill at the moment would lie in the hands of the Secretary of State? At that point, Public Health England would not be the special health authority. I am not asking for an immediate answer, but if the amendment were to be approved—and I certainly hope it will be approved in due course—would it be Public Health England in those circumstances or would it be the separate Secretary of State’s role to adjudicate on those matters?
Baroness Cumberlege
I thought we were going to debate Amendment 260 later today and I would like to take part in that debate when we come to it in the groupings.
Baroness Northover
I thank noble Lords for being so willing to receive letters about the areas that they are concerned about. I found myself retrieving what I learnt in my history degree, and I suppose this then becomes the Reformation. I will ensure that we write to noble Lords about these areas.
Lord Patel
I thank the Minister for her detailed answer. I know that this is a complicated group of amendments, each one referring to different aspects of public health. As I said in my opening remarks, it is extremely important that we realise that if we want a strong, reliable, effective, qualified, properly trained and accountable public health workforce, we need to address their accountability, employment status, registration and regulation. I did not put these amendments down lightly. They in no way seek to change the policy or structures of the Bill; they merely seek to strengthen the role of public health directors and public health consultants.
I do not know whether the noble Baroness passed the Warner test, but I listened carefully and I know she said a couple of times that the Government were looking at it and will produce a plan in early January. We will look at that carefully and carefully read what she said. I am very willing to engage with her because the public health faculty out there has great concerns. It is not concerned because it wants to be difficult; it is concerned that it will be asked to deliver something while its hands are tied behind its back. It would much rather come out into the open, to be told its status and to have that status put into the Bill so that it can begin to do the work that it is being asked to do. On that basis, I beg leave to withdraw the amendment.
Lord Beecham
My Lords, again I have a great deal of sympathy with the amendment moved by the noble Lord, Lord Patel, and the amendments in the name of the noble Baroness, Lady Williams. It seems to me that there is the potential for confusion over the differing roles that arise in situations such as an outbreak of disease or other public emergencies. The Bill variously imposes duties on the director of public health, although not specifically on the local authority, to act in such cases, bearing in mind that the documents are to be issued by the Secretary of State. Quite what documents would be issued in an emergency is not clear.
Amendments 227 and 235 in the name of the noble Lord, Lord Patel, accord better with the situation which might arise. They clearly make the point of local authority involvement and do not simply rely on the provisions of Clauses 43 and 44, which confer duties on the board and clinical commissioning groups. Incidentally, the fact that such duties are imposed on clinical commissioning groups surely enhances the need for the director of public health to be a member of, or to be represented on, such groups. But that is a matter to which we will no doubt return when we come to the governance arrangements for clinical commissioning groups.
Clause 43 makes it the responsibility of the board to ensure that all providers designate an individual to be responsible for the relevant emergency. Again, it is not quite clear what is meant by providers in that context. The board is also required to secure that it and the clinical commissioning groups in the health service—but, specifically, not local authorities—are prepared for emergencies. There seems to be some fragmentation in the distribution of responsibilities for this situation. That matter is also reflected in the general position in relation to resilience and emergencies generally. At the moment, there is a strong regional structure and if there is a problem, the regional director of public health can intervene and can require steps to be taken. There is always the facility for someone to be directed to act in the case of an emergency; as it were, someone will always be on call. It is not clear that that will survive the new structures.
It is essential in these cases also to recognise the important role that the voluntary sector plays in a public emergency. The Red Cross and other organisations of course are very often the first on the scene. I know that the noble Baroness, Lady Emerton, will address this issue when she speaks to her amendment. In advance of her doing so, I want to indicate support for the involvement of that sector as a consultee in the question of appointing directors of public health but, more widely, for the contribution of that sector to be recognised.
This issue of fragmentation of responsibility and the lack of a regional structure, which will follow if the Bill is passed in its present form, is a matter that attracted the attention of the Health Select Committee. That committee’s report indicated that there is a lack of confidence in the structures that would replace the regional structures under the provisions of the Bill:
“We are concerned at the lack of clear plans for Public Health England to be established at the regional level. The idea of “sub-national hubs”, in some—as yet undefined—alignment with the sub-national structures of the NHS Commissioning Board and the Department for Communities and Local Government does not seem to us adequate”.
Public Health England needs clear strategic and regional accountability, and although we are not yet debating Public Health England, nevertheless there is clearly in the mind of that committee—and I share that view—considerable doubt about whether the structure, with perhaps four sub-national hubs and a number of groupings around the Health Protection Agency when it is now combined with and taken into Public Health England, will in fact be sufficient. Although Clause 44 gives the Secretary of State powers of direction, the absence of regional arrangements clearly could, in the minds of that committee, create considerable difficulties. So there are issues which are partly reflected in the concerns of members of the Faculty of Public Health to which I referred in the debate on the previous amendments, and the role of the Health Protection Agency in the new structure will bear materially upon that issue.
I think the amendments tabled by the noble Lord, Lord Patel, actually take us in the right direction. We need a stronger structure to cope with problems of disease, immunisation and particularly emergencies, and again I draw attention to the fact that local authorities that would be involved in emergencies are not necessarily the principal authorities with which a director of public health would be involved. Again I raise the issue of how district councils in shire county areas will be involved in those situations. Without necessarily seeking a response today, I hope that is a matter that the noble Baroness the Minister would take away and consider. I am afraid it is becoming a bit of a recurrent theme, but for that very reason it seems to me that we need to address it properly so that the entirety of the local government family is involved in preparing for and dealing with emergencies as they arise, given in particular that district health authorities have very significant responsibilities in some areas. The noble and learned Lord, Lord Mackay of Clashfern, referred to E. coli, and food safety is the function of district council authorities and clearly part of the agenda which has to be addressed when looking at public health as a whole.
I hope that on this occasion the Minister will be somewhat more sympathetic than she proved to be last time to the amendments that have been tabled by the noble Lord.
Baroness Northover
My Lords, we are always sympathetic to all sorts of amendments, and the fact that we take away amendments and consider them further should, I hope, reassure noble Lords—
Baroness Emerton
I apologise to the Minister; I was waiting to speak to my Amendment 236ZA. The issue of voluntary sector involvement is important because the changes proposed in the Bill have significant relevance to it and in particular to the voluntary aid societies. The British Red Cross and St John Ambulance provide emergency response and are recognised respondents under the regulations of the Civil Contingencies Act. I declare an interest as a member of St John Ambulance for 66 years.
The history of the status of these two organisations goes back to the Geneva Convention. Because they have a specific responsibility for providing emergency services, there needs to be clarity about the lines of accountability within local authorities. Both organisations are recognised in the humanitarian field and for first aid and for looking after civil or military emergency situations. That is their responsibility. The auxiliary status is enshrined both in the royal charter for the Red Cross and in the Geneva Convention. The Women's Royal Voluntary Service used to be included, but it has withdrawn from voluntary aid society status. Nevertheless, all voluntary organisations are important in that they are present and they will need to know how to be organised under these new arrangements. They want to be assured that they will be commissioned, as they are now under the Civil Contingencies Act. Prior to this Bill, they were commissioned by the PCTs through local authorities and these changes have significance for them in how they will be managed and how the chains of communication will work.
The community-based presence of both organisations means that they are involved in vital emergency responses. They are first-responders and deal with civil emergencies. They hold, for example, a large number of ambulances with four-wheel drive. Indeed, the London Ambulance Service says that it cannot possibly cope in an emergency without the backup of the volunteer ambulances, particularly in bad weather. I speak to this amendment because voluntary organisations need to be involved and need clarification of their communication with local authorities.
Baroness Northover
My Lords, these amendments address the response to emergencies. We agree entirely that dealing quickly, decisively and in a co-ordinated way with sudden threats to public health must be a priority for the new system. We believe that the establishment of the position of director of public health within local authorities will strengthen considerably their capacity to respond to emergencies. However, the overall response will depend on the precise nature of the threat, as my noble friend Lord Ribeiro has indicated, and it is very likely to involve the NHS and other agencies, such as Public Health England, as well as local authorities. Therefore we want to allow for local flexibility in deciding who is best qualified to lead the response to a particular incident. Nevertheless, we must also ensure, when incidents occur, that all the responders are prepared and fully understand the parts that they play. We agree that the duty for local authorities, which we intend to prescribe in regulations, must be strong enough to ensure that the right arrangements are in place, not just a document that describes those arrangements.
We believe that the Bill already provides for the kind of coverage that is required. Clause 27 sets out a number of responsibilities for directors of public health and is already clear that these include the local authorities’ functions in planning for and dealing with public health emergencies. This, we think, fully matches the intention behind Amendment 227.
We agree with the spirit of the noble Lord’s Amendment 235. Clause 15 gives the Secretary of State the power to specify in regulations certain steps that local authorities must take under their new public health duties. The regulations will be subject to the affirmative procedure in Parliament, but I can assure the noble Lord that we expect that the steps the Secretary of State prescribes will include ensuring that robust and agreed local plans are in place for dealing with threats to public health, even if they are not full-blown emergencies.
Amendment 236ZA, tabled by the noble Baroness, Lady Emerton, and other noble Lords, recognises the invaluable role that the voluntary aid societies, such as St John Ambulance, can play in dealing with emergencies. We certainly have no difference with the noble Lords on that, and hope—and expect—that local authorities will involve St John Ambulance and other agencies, such as the British Red Cross, when they ensure that plans are in place for tackling threats to health. We will consider how to address this issue in the regulations that we intend to make. On that basis, I hope the noble Baroness will be willing to withdraw her amendment.
I come now to the amendments in the name of my noble friend Lady Williams of Crosby. My noble friend Earl Howe said that at this point I should simply concede because they were in the Bill anyway, but I will address the substance of her amendments. She seeks to enhance the readiness for emergencies by conferring additional duties on the Secretary of State. I assure noble Lords that the Secretary of State already has the clear duty to protect health not only by virtue of Clauses 8 and 44 but under the Civil Contingencies Act 2004. Both the NHS Commissioning Board and the Secretary of State will be category 1 responders. As such, they will have a duty to assess, plan and respond before and during an emergency. This is made clear in Schedule 7 of the Bill. There might have been a slight misunderstanding over this.
The words at the start of Clause 43 that will replace the current cross-heading preceding Section 253 of the 2006 NHS Act that reads simply “Emergency powers”, are:
“Emergencies: role of the Secretary of State, the Board and clinical commissioning groups”.
New Section 252A then deals with the role of the board and CCGs, and Section 253 deals with the Secretary of State. We are not removing the Secretary of State’s role. The Secretary of State retains his role, exercising his powers as indicated in Section 2 of the 2006 Act and under the Public Health (Control of Disease) Act 1984, as well as his duties under the Civil Contingencies Act 2004. I hope that my noble friend will be reassured in this regard.
Amendment 238, tabled by my noble friend Lord Marks, would require the NHS Commissioning Board to consult a Secretary of State before it takes steps to facilitate a response to an emergency that requires co-operation between different parts of the health system. These are operational decisions that are often taken at a local level where speed is very important. For example, hospital operations in one part of the country may need to be suspended because blood supplies are needed elsewhere. The amendment could inadvertently introduce additional delays into the decision-making process in a response to emergencies.
The clauses as currently written allow the health service to respond to emergencies directly and effectively and give the Secretary of State the power to intervene. We will consider what noble Lords have said but, in the mean time, I hope that they will not press their amendments.
The noble Lord, Lord Ribeiro, asked for a definition of emergency. I am assured that emergency has its ordinary meaning. I will write to him with the full definition rather than take noble Lords’ time. On the basis of what I have said, I hope that the noble Lord will be willing not to press his amendment.
Baroness Emerton
I thank the Minister and look forward to seeing the regulations.
Lord Walton of Detchant
Before the Minister writes to the noble Lord, Lord Ribeiro, with a definition of emergency, could she clarify whether we are talking in this Bill about medical emergencies, such as serious epidemics, or whether we are also talking about terrorist attacks, floods and natural disasters, all of which may require the deployment of medical resources? It is important that that should be clarified.
Baroness Northover
My Lords, I will write to noble Lords if it is not that wide a definition, but my assumption is that it is the wider definition that needs to be covered.
As a brief response to the noble Lord, Lord Patel, I can say that much of this will be in regulations. I know that the previous Government had problems when they said that they would put something in regulations. The House would say that it wanted to know while it passed a Bill exactly what it would be, but a distinction needs to be drawn between the kind of things that you want in the Bill, where there needs to be an architecture and structure that gives flexibility, and the kind of precision and more detailed explanation that you have in regulations. The noble Lord will be familiar with that. If we can take anything further and outline what sort of things might be in the regulations, as the previous Government also sought to do, I am sure that we will.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, Clauses 30 and 31 abolish strategic health authorities and primary care trusts and remove the relevant parts of the NHS Act 2006. Let me start by addressing the noble Lord, Lord Warner by setting out where I feel we have consensus, because I think there is some consensus.
There is agreement that decisions in the NHS need to take place at different levels and we need to ensure that decisions take place at the appropriate level. I agree with the noble Lord that these levels do include an intermediate tier and there are decisions which should happen. However, where we differ is on how best to facilitate these decisions. We do not feel that the best solution is to have separate statutory bodies to play this role. Instead, we propose flexible arrangements that will best meet the changing demands of what needs to happen at this level—hence the board’s field force, which noble Lords have spoken about, which will be adaptable in the future to grow and evolve in partnership with CCGs. That is the background to our approach.
As we have already discussed, many of the necessary functions and duties SHAs currently undertake will, in future, be undertaken by the NHS Commissioning Board or by clinical commissioning groups. Where existing functions or duties are unnecessary, we are removing them, making the system more streamlined and reducing administrative burdens. The amendments in this group would prevent the abolition of strategic health authorities until such time as the Secretary of State is satisfied that all of their functions and duties have been transferred to other bodies.
I understand the importance that noble Lords place on getting the timing of the transition right. As the NHS Future Forum pointed out following its consultation exercise, some people felt that the changes were proceeding too quickly, while others were concerned that the pace of change was not fast enough. The forum recommended further changes to phase the transition, and the Government responded by postponing the abolition of SHAs by a year. I believe this allows enough time for a safely managed transition.
The NHS Commissioning Board is due to take on its commissioning responsibilities in April 2013, and we believe that it is vital that SHAs and PCTs do not continue beyond that date. There are two main reasons for that. A key aim of the Bill is to ensure that the functions and duties of all bodies within the system are clearly defined. To have a confusion of responsibilities would be a retrograde step. The second reason is that allowing SHAs to run beyond the current proposed deadline for their abolition would also incur extra costs and hinder the Government from meeting the efficiency targets set by the quality, innovation, productivity and prevention programme. I will say more about that factor in a moment.
Lord Mawhinney
My noble friend knows that three months ago in the Peterborough PCT there was a non-executive chairman and six non-executive directors. To the best of my knowledge, they have all gone. What now constitutes the Peterborough PCT and how does it make decisions when a cluster refers something to it for legal validation?
Earl Howe
The clustering is a clustering of the boards. In other words, there is one board serving two or three PCTs, depending on the area of the country. The staff of the PCTs remain in place. There is capacity there to carry out the functions of PCTs. That is why PCTs remain statutorily accountable and they are in a position to perform the functions that the law places on them. We have streamlined the direction from board level. That is a practical and efficient thing to do and I do not think that it poses the kinds of risk that my noble friends were suggesting that it would.
I am very happy to meet both my noble friends again. I would say to my noble friend Lord Mawhinney that I was smiling when he spoke only because I know that Sir David Nicholson would be amused to be referred to as the chief technocrat. I would simply say that the NHS chief executive, while no substitute for me, I quite agree, may nevertheless prove helpful. That is certainly the object of his offer to meet my noble friend.
Lord Newton of Braintree
My Lords, I think that we are talking about conflicts of interest in two different senses. My problem about conflicts of interest goes back to the accountability point that the Minister touched on. These two or three PCT boards remain accountable at least in part to the people of the area they were appointed to represent. Then there is conflict of interest in the narrower sense. I am chair of the board of the Suffolk Mental Health Partnership. If I had an interest in a private sector mental health outfit, I would obviously declare that and that is normal business. I am talking about a fundamental conflict of interest between the people on these boards and the interests of the people to whom they are supposed to be accountable, wearing three different hats.
Earl Howe
My Lords, my point was that such conflicts have been managed in the past and can be easily managed in future. While there may be a specific example my noble friend wishes to draw to my attention, which of course I shall take seriously, I am not aware of any such examples. The clustering arrangement in practical terms is working efficiently around the country. Of course, I regret if hard-working non-executive directors who have served PCTs in the past have stepped down, because they have done sterling service, but it has been necessary to rationalise that structure.
Lord Beecham
Would the Minister care to reply to the rather disturbing question of the noble Lord, Lord Mawhinney, about the threat to members of the PCT who decline to resign and the consequent apparent disqualification from subsequent appointment?
Earl Howe
My noble friend refers to the current legal position—that a non-executive director can leave his or her office in only one of two ways: by resigning or by being forced to resign. There is no desire on anybody's part to force non-executives to resign. These are not non-executive directors who in some way have misbehaved—not at all. However, it is necessary in the interests of the NHS that we rationalise the system.
The proposal put before non-executive directors was that, in the interests of the health service, they should consider their positions. That is not because they have done anything wrong but because of the transition that we find ourselves in. I would ask any non-executive directors who are listening or who read Hansard not to take offence at this. It is no reflection of their service to the public or the health service; it is simply a reflection of the transition that we are going through.
With my noble friend's permission, I should cover some of the other questions that have been raised. Of the many functions transferring from SHAs, Amendment 236AAA specifically seeks to address the role of postgraduate medical and dental deans in the new system. I recognise the vital role that the deans currently play to ensure quality within education and training. The important work of the postgraduate deaneries will continue through transition and into the new arrangements from April 2013. The SHAs will continue to be accountable for postgraduate deaneries until 31 March 2013, allowing time for a phased transition of their functions. This will ensure stability and help develop the improved system.
As the noble Baroness indicated, I have undertaken to come forward with more detailed proposals on education and training between now and Report. I repeat that assurance. Further work is under way on the detail of those arrangements with the right accountabilities for the quality of education and training to Health Education England and the professional regulators. That detail will be published as soon as possible. I hope I can reassure her that we have listened to the concerns in this area and that we are taking steps to address them
I would also like to address the matter of Clause 45 standing part of the Bill, which is part of this group. This clause will ensure that the Secretary of State will be able to establish new special health authorities only temporarily, for a maximum of three years. If there is a compelling reason for a special health authority to continue to exercise its functions beyond the three-year deadline, it is possible to extend its existence. However, any decision to do so would be subject to full parliamentary scrutiny via the affirmative procedure. This is to reflect our intention that any body in the health system exercising functions on a longer-term basis should have those powers transparently conferred on it in legislation.
Lord Warner
I am sorry to interrupt, but I am really bemused by what the noble Earl has just said about the accountability of the local entity of the national Commissioning Board to health and well-being boards. Health and well-being boards have no budgetary responsibility whatever, as I understand what the Government are saying; whereas the national Commissioning Board has two lots of budgetary responsibility—for its own specialist commissioning and for its oversight of the money that it hands out to clinical commissioning groups. Perhaps the Minister can explain it to me. I can understand that it might want to consult the health and well-being boards but, in terms of accountability, I cannot understand how it can be accountable for its budgetary priorities and decisions to the health and well-being boards.
Earl Howe
It is accountable for its decisions at a regional or sub-national level in a real sense. If it was not interacting with the boards, the noble Lord, Lord Hunt, might have a point; but it will be. I think that that is accountability in a meaningful sense. The noble Lord, Lord Warner, talks about budgetary accountability, and I understand that that is a real issue. Of course there will be no budgetary accountability, but there will be accountability for the decisions and actions taken by the field forces.
I was saying that the structure means that all too often neither of the roles that PCTs perform is performed well. GPs, who actually make the clinical decisions, are not properly involved in PCT commissioning; and PCTs do not have the detailed understanding of their communities or the link to other local public services. The result is an unsatisfactory compromise, with commissioning that fails to deliver improvements in health outcomes and local services that are fragmented and not integrated.
It has been suggested by some noble Lords that one could have kept PCTs and parachuted in a whole lot of doctors, perhaps filtering out some of the administrators. Anyone who has visited any pathfinder CCG and put that question to the doctors and other clinicians involved will know the answers to why that would not have been a valid and sensible idea. The way in which services are commissioned has to depend on the judgment of clinicians and the wisdom of establishing geographic areas for commissioning groups that make sense in terms of patient flows and in terms of links with local authorities, social services and public health. It does not make sense to retain structures that, frankly, are administrative constructs that do not necessarily bear any relation to patient flows or relationships with local authorities. These clinical commissioning groups are being created from the bottom up by those who know what is in the best interests of patients, and it is to patients that we must always return in our thinking. We currently spend £3.6 billion a year on the commissioning costs of PCTs. PCT and SHA management costs have increased by £1 billion since 2002-03. That is a rise of over 120 per cent. We cannot make savings on the scale that we need to while retaining the administrative superstructure of the NHS.
The noble Lord, Lord Hunt, suggested that the pathfinder CCGs were being built on nothing at all. They are not being created from nowhere. They are building on, and are indeed a logical development of, practice-based commissioning groups, of which there were a very significant number. There are currently 266 pathfinder clinical commissioning groups covering 95 per cent of GP practices in England. As I have indicated before, I cannot say how many we will eventually end up with, but that will give noble Lords a rough indication of the order of magnitude.
The noble Lord, Lord Rea, quoted some words of mine from a debate of several years ago. I would simply say to him that I was speaking then of something completely different from the Government’s current proposals, and I am grateful to the noble Baroness, Lady Murphy, for pointing that out. These reforms place leadership of commissioning firmly with clinicians. I completely agree that giving leadership to a non-statutory, private-sector firm would be a bad idea. That is why there are very clear safeguards against this happening. With PCTs, I feel that there was a genuine question over where commissioning leadership really lay, and this is very firmly no longer the case.
On Amendment 236A, I must clarify one point. It is not the case that a clause stand part debate on Clause 30 would be consequential if a Division was to be called on Amendment 236A and won. It would simply amend this clause and not entail that it needs to be removed.
I hope that I have sufficiently covered the issues raised by noble Lords. I do not suppose that I have satisfied everyone, but I hope that I have at least indicated the direction of government policy in a coherent way.
Lord Rea
The staff of PCTs below management level are going to be rather disappointed that the Minister did not answer my question regarding their employment and the possibility of their being moved over to the CCGs, where many of their functions are going to be precisely similar. Are they going to be made redundant? Is it going to be possible to move staff over smoothly without a break in their employment status?
Earl Howe
My Lords, the rules apply on transfer of employment, and we anticipate that around 60 per cent of PCT staff will transfer to clinical commissioning groups, local authorities or the NHS Commissioning Board. It has been necessary to institute a programme of managed accelerated retirement for those for whom there will be no posts. However, this is being done in as friendly and generous a way as possible and the process is working well. But on the noble Lord’s main concern, yes, the terms and conditions of employment should not alter for those who stay.
Lord Warner
Could the Minister give us an assurance that before Report he will give us some idea of the extent to which the current arrangements are going to meet the targets set by the Government for delivering the Nicholson challenge for this coming year, so that we can see the extent to which the Government are at risk if they abolish the SHAs from April 2013?
Earl Howe
My Lords, the SHAs have already published their plans for delivering the Nicholson challenge and those are on the SHA website. There is no secret about that. I can tell the noble Lord that we are on target to deliver the Nicholson challenge over the four-year period as a result of savings already made.
Lord Hunt of Kings Heath
My Lords, this has been a very interesting and instructive debate. I should tell the noble Earl, Lord Howe, that I do not have a rose-tinted view of primary care trusts. They were improving, I believe. But the question that I put to the Government is why on earth, instead of going through this convoluted and complex restructuring, they did not say immediately to primary care trusts that they should divest themselves of the services that they ran and get a move on with giving more responsibility to GPs? They could have done it on their first day, instead of which, instead of SHAs and PCTs, we have a much more complex structure, with clinical commissioning groups, health and well-being boards, senates, the NHS Commissioning Board and—blow me down—their field offices as well. I can tell the noble Baroness, Lady Murphy, that as the NHS Confederation says, we now have a very complex structure—not a streamlined approach that will deal with all the problems of the NHS. My goodness me, this structure will cause as many problems as it is potentially there to deal with.
There are some very serious questions about how the Government have done this. I am glad to know from the noble Lords, Lord Mawhinney and Lord Newton, that I am now part of the same region as they are. I look forward to further discussions and perhaps meetings in Nottingham from time to time, if we are summoned together.
The fact is that, in effect, primary care trusts have been abolished in advance of legislation. I understand what the Minister says—that by creating a cluster with non-execs from the PCTs, in effect those non-execs become the non-execs of each primary care trust. That is how the Government are essentially doing it, but that is a very disingenuous way in which to deal with the issue. They are skating on very thin ice, and the potential for judicial review is, I suspect, quite considerable.
Let us take this issue of the interest of the non-execs in Peterborough and Cambridge. I do not know the area particularly well, but let us say that, because of the financial issues facing Peterborough, a decision was made by the cluster to reduce services in Peterborough and ensure that those patients then went into Addenbrooke’s. I suspect that might well be a proposal. The question arises as to the legitimacy of that decision if people in Peterborough think that they are being marginalised from that decision. That some bold decisions need to be taken I do not doubt, but I suspect that there will be some issues about legitimacy.
As for the issue of tiers, my noble friend Lord Warner is surely right. Since 1948, the health service has not done without a regional tier. The fact that the Commissioning Board is going to have to set up local field forces is a recognition of that, but they will have a heavy responsibility. The financial challenge, the reconfiguration challenge and the specialty challenge call for strong leadership at that level. My argument for the Minister is that they surely need to be accountable and seen to be accountable in their communities. I do not believe that in the end the mandate set by the Secretary of State or the outcomes framework really satisfies that kind of accountability, given that they are clearly going to have to intervene at local level and deal with issues to do with finance and reconfiguration.
I have listened to the noble Lord, Lord Mawhinney, when he advised me not to oppose that Clause 30 or 31 stand part of the Bill. I fully accept what he says. However, as the Minister has made clear, my Amendment 236A stands apart from that. It is a question of timing, and I do not believe that these changes should take place until we are sure that they are right. I beg leave to test the opinion of the House.
Lord Colwyn
My Lords, my noble friend Lady Gardner reminds me of how I used to practise. It is not a lot of fun to pull a load of teeth out for a child under general anaesthetic. We are in great danger of getting into a pro and anti-fluoride debate, which I do not want to do. However, I want to support the noble Lord, Lord Hunt, who is a patron, or vice-president, of the British Fluoridation Society, as am I.
As it stands, Clause 32 will mean that after 1 April 2013 the money currently spent on the existing NHS schemes will pass to local authorities, which do not have a dental budget. They would have to pass it on to the Secretary of State via Public Health England to pay the continuing bills. Would it not be more efficient and quicker if the current NHS spend on fluoridation went directly to the Secretary of State—that is, Public Health England? It would mean that the organisation that pays the bills has the money in its account and is not reliant on transfers from local authorities.
As the Bill stands, when any new schemes are agreed by local authorities after they take charge of consultations on fluoridation, the Secretary of State will look to them to pay for those schemes. However, local authorities are not responsible for dentistry and have no dental health budget. The amendment of the noble Lord, Lord Hunt, means that although local authorities will be the decision-making bodies in future, the money for any fluoridation schemes that they support will come from the dental health services budget of the NHS Commissioning Board—the body that stands to benefit from the reduced treatment costs that would inevitably follow. The NHS Commissioning Board would transfer funds to the Secretary of State, who would pay the bills submitted by the water companies. Does the amendment of the noble Lord, Lord Hunt, not simplify the process?
Baroness Northover
My Lords, let me first set out the Government’s position on fluoridation. The Government’s policy is that decisions on fluoridation should be taken locally. That is why we have transferred the responsibility for conducting consultations and determining their outcome to local authorities. More than 5 million people, mainly in the West Midlands and the north-east of England, receive a water supply in which the fluoride content has been topped up to a level of one part per million. Worldwide, some 200 million people now receive fluoridated water in the United States and 11 million more in Australia. There are also fluoridation schemes in Ireland, Canada and Hong Kong.
I hear what the noble Earl, Lord Baldwin, said about evidence. A report, A Systematic Review of Public Water Fluoridation, commissioned by the department of health at the University of York, was published in September 2000. It concluded that water fluoridation increased the proportion of children without tooth decay by 15 per cent and that children in fluoridated areas had, on average, 2.25 fewer teeth affected by decay than children in non-fluoridated areas. However, as the debate has shown, there is a great range of views on this matter. That is why we feel that decisions must be taken at a local level following extensive consultation.
Our view is that the responsibility for proposing fluoridation schemes and for conducting consultations on such schemes should transfer to local authorities, while the responsibility for contracting for fluoridation schemes should transfer to the Secretary of State. In practice, the Secretary of State’s functions would be carried out by Public Health England. Making local authorities responsible for consultations on fluoridation schemes fits well with their responsibilities for public health. We anticipate that proposals for fluoridation schemes will derive from the joint strategic needs assessments that local authorities and health bodies will make of their populations.
The noble Lord, Lord Hunt, raised the question of whether local authorities would neglect dental health. Dental ill-health would seem to have wider repercussions. The great difficulty, particularly among older people whose teeth have decayed, certainly bears out the necessity of preserving teeth in younger life. It is not simply a matter of looking at children’s teeth and the impact on them but of seeing dental health as lifelong. Health and well-being boards would therefore have a responsibility to consider dental health because of that significance.
More than one authority might be involved in any scheme that is put forward because water distribution systems are generally larger than the area of an individual local authority. The Bill sets out a number of initial steps that the lead or proposing local authority must take, including consulting relevant water undertakers and the Secretary of State to ensure that a proposed scheme is operable and efficient. Unless only a single authority is affected, or the other affected authorities do not wish to participate in the process, the Bill requires local authorities to arrange for a joint committee to carry out the consultation process and make subsequent decisions in relation to the proposal. From 2013-14, the department intends to allocate a ring-fenced public health grant to local authorities. The ongoing costs of fluoridation schemes will be reflected within the grant to those local authorities.
The noble Earl, Lord Baldwin, asked about neutral information. This is an area where we should proceed on the basis of evidence. Public Health England might well be the right body to assess such evidence. The noble Earl also asked about schemes going ahead only with the support of the local population. The provisions in the Bill transfer responsibility for consultations to local authorities and include powers for the Secretary of State to specify the steps that local authorities must take in relation to consultation. We expect that the evidence base will still determine a decision to consult. However, putting local authorities in charge of consultations would make decisions on fluoridation more democratically accountable. We intend to consult on the detail of the regulations, including the process that local authorities must follow when ascertaining public opinion.
My noble friend Lady Eaton asked whether people would be able to reject local fluoridation. Of course, consultation needs to be meaningful. The decision to consult and whether to fluoridate will be for local authorities, not the Secretary of State, to take. We expect them to take account of the scientific evidence as well as public opinion.
I acknowledge that these provisions and the whole area are complex. Much of the technical detail will be included in regulations. No doubt we will have further profound discussions of this. We intend to consult on the policy proposals for the regulations that we will make under the powers in this clause in a consultation document that we will publish in due course. In the light of this, I hope that noble Lords will be content not to move their amendments, and that the noble Lord, Lord Hunt, will be happy for the clause to stand part of the Bill.