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Health and Social Care Bill
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“( ) In subsection (5), for “this section, section 245 and section 246” substitute “this section and section 245”.”
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, unusually, it falls to me to introduce this group of amendments. In moving Amendment 327ZC and speaking to Amendments 327ZD, 327ZE, 327ZF and 327ZG, I confine myself to saying that these are minor technical amendments to Clauses 187 and 188. For the most part, they ensure consistency between the scrutiny provisions in the Bill and in the Localism Act. I hope that they will receive the support of the Committee. I beg to move.
Baroness Massey of Darwen
My Lords, I speak to Amendments 330, 333 and 334 in this group. I draw attention to issues important for strengthening integrated working in children’s health and well-being. Of course, integration is important for all consumers of health, but services for children have often been fragmented and disconnected, sometimes with tragic results, as we all know. I spoke last week about the importance of listening to the voice of the child. If children had a voice, they would say—as they do when we speak to them—that integration of services is not good in many areas. It should be, for effectiveness and efficiency.
My amendments require all health and well-being boards to promote close, integrated working between health, social care, and health-related services in their area. Specifically, Amendment 330 requires that they “must,” rather than “may”, include in their joint health and well-being strategy,
“a statement of their views on how arrangements for the provision of health-related services in the area of the local authority could be more closely integrated with arrangements for the provision of health services and social care services in that area”.
Amendment 333 requires, again, that they “must,” rather than “may”,
“encourage persons who arrange for the provision of any health-related services in its area to work closely with the Health and Wellbeing Board”.
Amendment 334 requires that they “must,” rather than “may”,
“encourage persons who arrange for the provision of any health or social care services in its area … to work closely together”.
As the Bill stands, health and well-being boards’ role in bringing health and social care together with health-related services is optional. The National Children’s Bureau and its Every Disabled Child Matters campaign believe this role must be strengthened so that there is a clear duty on all health and well-being boards to promote joined-up commissioning and delivery of services in their area. This is particularly important for children and young people for three key reasons. One reason is that joint working across local agencies is crucial for children’s and young people’s health and well-being. Integrated planning is particularly important for children and young people, for whom some of the most effective interventions are those delivered through non-health settings and services, such as schools and colleges, children’s centres, and youth services. For example, the national evaluation of Sure Start found that a child with access to a children’s centre—formerly Sure Start local programmes—had more immunisations and fewer accidents than young children living in other areas. School health initiatives can have a positive impact on pupils’ health and behaviour—I am thinking of health-promoting schools, for example.
However, evidence suggests that health, social care, education, early childhood, youth and other services are not always working in partnership to secure good outcomes for children and young people. The Marmot review identified the lack of consistent partnership working between such bodies as the barrier to delivering services that reduce health inequalities. Similarly, the Kennedy review highlighted the fact that the requisite links between the NHS, social care, education and criminal justice services to support juvenile people are not always made. His report recommended that local partnerships covering all services for children should have,
“a duty to ensure that local organisations work together”.
Close working between local partners is particularly vital for children with complex needs, such as disabled children or looked-after children, who need co-ordinated interventions from a range of services. A recent report from the Every Disabled Child Matters campaign found that families of disabled children often report experiences of fragmented service delivery and have been caught between services that do not communicate well. One parent has said:
“As a parent, you just want a service, but it’s like health, education and social care are all separate and they don’t really like working together. What you need as a family is one system—not three”.
The Government have expressed aspirations for better partnership working across a broad range of children’s services. For example, Support and Aspiration, the special educational needs and disability Green Paper, states,
“we want to make it easier for professionals and services to work together, and we want to create the conditions that encourage innovative and collaborative ways of providing better support for children, young people and families”.
I believe that unless the Bill strengthens the framework for local integration, the ability of local areas to implement these aspirations will be undermined.
The Bill contains many key measures promoting joined-up working on health and social care, through relationships between local authorities and NHS commissioners. However, many of the services that promote the health of children and young people, such as schools and colleges, children’s centres and youth services, are or will be provided by bodies which are independent of the local authority or NHS. Health and well-being boards should have a mandatory and not an optional role in promoting the involvement of these health-related services in joined-up commissioning and delivery.
Schools need to be encouraged and enabled to play their part. Schools are key partners in securing the health and well-being of children. The public health White Paper, for example, recognises the role that schools can play, stating that:
“Good schools will be active promoters of health in childhood and adolescence”.
This is crucial for reducing health inequalities. The Marmot review, again, recommends that schools should take a “whole child” approach and they will be unable to do this without routine engagement with partners from other agencies.
Over 1 million children and young people now attend academies, which are independent of local authority oversight and will not be represented by health and well-being boards. According to the Department for Education, more than 40 per cent of all secondary schools are now open or are in the process of opening as academies. The Government have taken a step towards promoting joint working by dropping proposals in the Education Act to remove the duty to co-operate under the Children Act 2004. However, this Bill does not create the structural environment within which co-operation with education providers will be possible. Health and well-being boards have the potential to act as a forum for schools to fulfil this duty to co-operate. A clearer role for health and well-being boards in bringing a broader range of services together beyond health and social care, as provided by these amendments, should help to secure this.
Finally, health commissioners should be supported to meet their new duties on integration. Duties were introduced, following the listening exercise, for the NHS Commissioning Board, clinical commissioning groups and Monitor, whereby they are required to carry out their functions with a view to securing that the provision of health services is integrated with the provision of health-related services. As the Bill stands, the role of health and well-being boards in securing this integration remains an optional part of their remit and the scope of their local strategy. Health and well-being boards are expected to play a role in holding health commissioners to account for securing services that fulfil priorities set out in the joint health and well-being strategy. Furthermore, health commissioners will need a forum through which to drive forward better joint working and integration with health-related services. Without a guarantee that health and well-being boards would prioritise encouraging this close working across health, social care and health-related services, there is a serious risk that health commissioners’ new integration duties will be ineffective.
I hope that, in this Bill, the Government will take note of issues which will affect children. I know that the noble Earl, Lord Howe, is listening and I hope that on Report we can reach some agreement on children’s health and well-being.
Baroness Finlay of Llandaff
My Lords, I speak to the amendment to which I have added my name in relation to children, but also speak to a raft of other amendments related to allied healthcare professions. Last week we had a debate about the need for the voice of children in the Bill to be strengthened. On reflecting on this and the debate that we had over other vulnerable groups, it struck me quite forcefully that children are the only group who do not have an independent voice en masse. In all other vulnerable groups, there will be a spectrum of people, some of whom can be outspoken and some who can be advocates for others, even among groups such as those with dementia, the very elderly and those who have come here to this country as asylum seekers. However, children under the age of 16 are completely dependent for consent and for other issues on those who have a legal parental role to act on their behalf and to consider their best interests.
We discussed last week the fragmented society in which some children are now brought up, and the difficulties that individual children face. We also discussed the need for health and social care services to reflect the needs of children. I urge the Minister, in looking at these amendments and those we debated before, to consider very carefully where our society will be heading if we do not strengthen the voice of children on the face of the Bill.
Amendment 330A, to which the noble Lord, Lord Low, has put his name and, I believe, will be speaking, will try to secure a change so that this Bill parallels the change in the Education Act.
I will now address my remarks to the need for representation and consultation of allied healthcare professionals, and in so doing declare my interest as president of the Chartered Society of Physiotherapy. Physiotherapists are the largest part of the allied health professions’ workforce. The Bill needs to state that allied health professions as a group are consulted, because there is, sadly, great ignorance in medicine and nursing as to the full range of professional services that allied healthcare professionals can contribute. They contribute right across the range; innovative models of service provision now being developed are able to free up medical and nursing time and decrease the number of interventions needed, particularly on aspects such as orthopaedic surgery, where physiotherapists are running clinics and are able to intervene and completely obviate the need for some patients to progress to surgery.
Allied health professionals by and large, and physiotherapists in particular, are focused on re-enablement; on keeping people healthy; working with the parts of them that are healthy and helping them cope with the parts that are not; on preventing absence from work and avoiding unnecessary hospital admissions and unnecessary interventions. We are already hearing of delayed discharges from hospital. The Health Service Journal of 27 October this year had a piece on this. Patients are having to wait for care packages, including physiotherapy services, that could enable them to be cared for in their own homes. Without the allied healthcare professional voice being involved at senior-level commissioning, acute services will not be joined up in the community, and that leads to fragmented care for patients and poorer health outcomes. Care in the community setting is viewed as key to the Government’s efficiency savings in relation to hospital admissions. Allied healthcare professionals enable patients to take control of their own care and resume living in their own homes, empowering them and easing the burden on front-line services. There are a whole group of amendments in my name which list allied healthcare professionals. I hope that the Government will look favourably on these.
Baroness Greengross
My Lords, my Amendment 332A follows well from the previous two speakers. It would ensure that integrated working in health and social care delivery—particularly the latter, which we know from many noble Lords who have spoken, including the noble Lord, Lord Warner, is often very much the junior partner in these discussions—is given an explicit place on the face of the Bill, rather than simply being relegated to regulations and guidelines. In his report on Fairer Care Funding, Andrew Dilnot commented that when someone has a care or support need, they do not really know which part of the range of state funding is going to provide the services that they need. This particularly applies to people with multiple needs and co-morbidities, which is often the majority. We know that there are many different services delivered at national and local level—for example, the NHS, the adult social care system, social security benefits, public health services and housing services. They can all be critical in meeting people’s needs. The problem is that all these elements overlap and interact, sometimes positively but sometimes rather negatively. Dilnot noted forcefully that when services that are shaped around people work well together, outcomes are better; when they do not, people experience very disjointed services and their experiences are poor.
We need a care system that is more consistent, with less variability, and one in which people feel that services are working for them, not against them. In this context, I welcome the Department of Health’s commitment to breaking down the barriers between health and social care to improve the outcomes and experience of users. Having a National Health Service that is free at the point of need, but a shared-responsibility system of social care, means that difficult decisions will continue to be made if this carries on. For example, in response to the Nicholson challenge, how will clinical commissioning groups ensure that the focus stays on the patient and on integration of services and not on contracting and other arrangements? Do we know what type of support managers need to make integrated services a reality? How can staff be encouraged to work collaboratively? Through this process, how can the correct values and ethos concerning the dignity and respect of patients, which we all believe in, be developed and maintained within and across organisations? There are many examples of where the consequences of having different care streams can seem extremely unfair to people. But when streams have been integrated or a more co-ordinated approach is taken, there is evidence of improved outcomes, high-quality services and better value for money, as well as the fostering of innovation. In my view, the powers proposed in Clause 192 for the health and well-being boards to support integrated working should be extended to encourage explicit joint commissioning.
In support for innovation in Part 5, greater regard should be given to the role that service and technology solutions, for example, can have in breaking down traditional boundaries and in encouraging better integration of health and social care services. All generations, including older people, are having their lives transformed by the dramatic changes that we daily witness in communications technology, yet in the UK the adoption of telehealth into health and social care, particularly in prevention and intervention, has sometimes been much slower than in many countries in the industrialised world. In other parts of the world, we have clear evidence of the key role that these systems play in the prevention of ill health, in self-management, in the provision of improved outcomes and in dependence for service users and efficiency savings for the taxpayer. As part of the overall redesign of care, this represents a vital element in the shift towards more preventive care, reducing the imbalance between hospital and primary care spend and making better use of scarce clinical resources. Better integration should facilitate such innovations and would go a long way to making health and social care more self-directed and giving a boost to the personalisation agenda. Integration deserves to be more than a footnote in this Bill. It could be the cornerstone of better quality, value for money and patient-centred care.
Baroness Jolly
I have put my name to Amendments 328B and 330ZAA. I send the apologies of the noble Baroness, Lady Tyler, who is not well. She had hoped to be able to speak to these instead of me. First, I should like to make a few general points about health and well-being boards. It should go without saying that the Liberal Democrats really welcome local democracy in health and the far greater involvement of local authorities than is the case at the moment, as well as the use of scrutiny committees. We are somewhat saddened that in the legislation there is only one elected decision-maker on a health and well-being board. I understand the Government’s unwillingness to prescribe, but they have not quite got the balance right. There may be as many elected councillors as other voting stakeholders, with maybe a casting vote given to the chair. That feels much more like localism in action than what we currently have.
Linked with that is the role of district councils, which is not mentioned terribly clearly. Here I have another apology, because I know that the noble Lord, Lord Greaves, had hoped to speak on this point. What we are losing in his eloquence we are probably making up for in brevity, but I still feel as strongly as I am sure he will. I can almost feel him behind me now, as I speak, but he is not well and is not able to be with us.
Where are district councils in this framework? I know that a lot of local authorities have now become unitary, but there are really key parts of England where strong county councils are well underpinned by district councils. They need to be there, because they provide planning, housing, leisure and environmental health—all these things that have to be well woven into the fabric of this Bill and the delivery of services. They are also part of the solution for the big public health issues. Three examples come to mind without even having to think very hard. Wearing their leisure hat, obesity is a very big issue. Some people prescribe exercise for obesity. On housing, in my neck of the woods, with the warm, wet westerlies, housing gets damp very easily. That brings with it chronic heart and lung problems, particularly if you cannot afford to heat. District councils also play a key role in housing on mental health issues. They are often providers for county councils and PCTs and I know that they would hope for a similar relationship with clinical commissioning groups, when things become established. They should be at the table of the health and well-being boards. I appreciate that you cannot have every district council having one representative. In Kent, where there are 16, or in Devon, where there are eight, you cannot bring those in, but there needs to be some arrangement for working together to ensure that district councils should be there.
Baroness Wilkins
My Lords, I fully support the amendment just spoken to by the noble Baroness, Lady Jolly, in relation to housing. I speak to Amendment 330A, which is down in my name and in those of the noble Baroness, Lady Finlay, and the noble Lord, Lord Low. It is a probing amendment to ask the Minister to ensure that education providers, including academies, schools and colleges, are represented on the health and well-being boards, in order that there should be integrated planning for disabled children. The National Children’s Bureau, through the Every Disabled Child Matters campaign, has raised concerns that the Bill does not provide equivalency with the Education Act, which has retained the duty to co-operate for schools. This Bill does not ensure that schools will be an integral part of the health and well-being boards, so, while education providers will have a clear duty to co-operate, there would be no equivalent duty on health and well-being boards to include education providers.
Integrated planning and commissioning is particularly vital for children with complex needs, such as disabled and looked-after children, who need co-ordinated interventions from a range of services. Many disabled children require health-related services at school, including physiotherapy, occupational therapy and speech and language therapy, as well as specific medical interventions. There are often problems with providing such services on the school site, or it is not properly co-ordinated with other activities at the school. As Adam, one young disabled person, said,
“I went to a mainstream secondary school. I did not get to see a physio or OT regularly. This is because I didn’t go to a special school for disabled people. I think health, education and social services need to work more closely together”.
This lack of co-ordination of support presents disabled children and young people with barriers to participation in education that their peers would take for granted. As Sir Ian Kennedy’s recent report, Getting it Right for Children and Young People, recognised:
“If children do not receive appropriate support from the school, at worst those with severe health problems receive a ‘double whammy’ as their ill-health damages their education by disrupting their schooling, either through being forced to stay at home or by long stays in hospital. Children with severe or long-term conditions receive enormous benefit from continuing their education during their treatment. And there are social as well as educational benefits. Continuing in education is a signal, to the child themselves, the parents or carers and the peer group, that a child with a severe or complex health condition continues to belong to the ‘community of children’ and does not become defined by their condition”.
When education providers and health services do not collaborate to meet the needs of children and young people, it also has a significant impact on their families. A study by Diabetes UK found, for example, that half—46 per cent—of primary school pupils with type 1 diabetes and one-third—29 per cent—of their secondary school counterparts report that their parents have had to reduce hours or give up work to help them administer life-saving insulin injections. It is clear that when children need such support during school hours, local services should work together to ensure that it is available.
As the Minister will know, the Department for Education’s recent Green Paper, Support and Aspiration: A New Approach to Special Educational Needs and Disability, proposed a more co-ordinated approach to the delivery of education, health and social care. These proposals included the delivery of a single assessment process, a joint education, health and care plan, and a local offer, which sets out all services available to disabled children in the area. EDCM is concerned that these proposals will not be deliverable if education providers, including academy schools and colleges, are not given a presence and a voice at health and well-being board level, which this amendment would provide.
Lord Ramsbotham
My Lords, I rise to speak to my amendment, Amendment 330C, which relates to the fact that offender health is a public health—particularly prison health—issue. Since almost every prisoner will be released, their mental and physical state when they are is therefore a matter of public interest. I wish to speak to something related to imprisonment, rather than to imprisonment itself. There are two other activities associated with this part of the Bill which also affect activities of other ministries, the Ministry of Justice and of course the Home Office, to which I would like to draw attention.
As we all know, prisons are wells of psychiatric morbidity. At one end of the spectrum, some 500 prisoners have to be transferred to special hospitals each year. At the other end, some 70 per cent are suffering from at least two personality disorders which are bound to impact upon their behaviour. Prisons are also the unfortunate recipients of people who were in asylums, until these were abolished. To prevent that happening the previous Government initiated a report, conducted by the noble Lord, Lord Bradley, on diverting people with mental health problems away from prison. This was a very, very comprehensive report, with recommendations which affected the courts and the police in particular. This Government, as I understand, have accepted the recommendations and are working towards them. However, they of course depend on there being proper mental health assessment and treatment available at the point where a person comes into contact with the criminal justice system. This is usually at a police station, to start with, and then at a court. I have been to see one of the pilot schemes in Brighton, where an extremely able psychiatric nurse in the court was able to divert people away from imprisonment, not least because they had taken enormous trouble to ensure that the necessary support for people with mental health problems was available from that moment on. Without that support being available, the scheme becomes worthless. However, before that, the first time that people come into contact with the system is in police stations. What worries me about progress in the future is that unless there is a police representative on health and well-being boards able to represent the needs of the people who make those assessments at the police station, the diversion scheme could fail at its start. The purpose of my amendment, therefore, is to ask the Minister to consider very seriously the addition of a police representative on health and well-being boards, to make certain that the needs of police stations are represented at source, in every area of the country where diversion schemes will start.
I say this because when I started inspecting prisons, I discovered that prisons, alone in this country, were not part of the National Health Service. Indeed, they did not become part of the National Health Service until 2003. The result of that was that the needs of people from prisons were not built into National Health Service estimates, and so they were always competing for other requirements. To avoid that error being repeated, I therefore believe that it is essential to have police representation at the place where planning is carried out.
My second area is to do with probation. With regard to the plans—“Breaking the Cycle”, the rehabilitation revolution and all the noise that has come from the Ministry of Justice about reducing the prison population and providing alternatives to custody—most of that comes down to the probation service. There is absolutely no reason why the probation service should not carry out exactly the same programme as happens in prisons; that is, people are assessed, programmes are made and conducted, and then the person is transitioned into the community. There is no reason why the assessing, the programming and the supervision of mental and physical health treatment should not happen to somebody on probation in exactly the same way as it happens in prison. However, the probation service needs help and guidance in the provision of that assessment and programming. That is why I am asking the Minister to consider that a representative of the probation service should be included on the health and well-being board, in order to ensure that its needs are included in the plans, so that the probation service can make the delivery of community sentences more effective and more acceptable in the public eye, and is therefore able to contribute to what the Secretary of State for Justice is seeking; namely, a reduction in the prison population.
Lord Low of Dalston
My Lords, I add my voice very briefly to those of the noble Baronesses, Lady Wilkins and Lady Finlay, in support of Amendment 330A, which provides that health and well-being boards should include a representative of education providers in the area. The noble Baroness, Lady Wilkins, has spoken to the amendment very fully and ably; however, perhaps I can underline the point to which she has already alluded. When we considered the Education Bill in Grand Committee earlier in the year, there was great concern that the Government wished to remove the duty on schools which had only recently been laid on them, to co-operate with other services in pursuing the welfare of children. We were particularly concerned about this at the time of the riots, when people were emphasising the role that schools had to play in combating exclusion and disaffection among children. I am glad to say that the Government took the force of our point and withdrew the proposal to remove this duty from schools. I hope that the Minister will agree that a joined-up approach would suggest—as the noble Baroness, Lady Wilkins, has argued—that there should be a reciprocal duty on health and well-being boards, at least to include a representative of education providers on the board.
Baroness Farrington of Ribbleton
My Lords, I rise to speak about the importance of the role of the police. I made my maiden speech in your Lordships’ House on the subject of care of mentally ill people taken into custody in police cells. I was struck at that stage—I declare a former interest as a member of a police authority and a visitor of police cells—that time after time, I was informed and became aware that people were being taken into custody, not because it was most appropriate, but because their problems were mental health related. They were being taken into police cells for their own protection or for the protection of other people, because there was nowhere else for custody officers to deal with this. I hope the Minister will take this carefully into account when looking at the role of the police, in particular at that initial point of contact. Sadly, many people who end up in custody and police cells have problems that are either mental health related or drug or alcohol related. It creates a problem for the police service, particularly at weekends. It also leads to a reaction to those people who have behaved in a way that causes them to be taken into custody so that they end up in prison, rather than receiving a course of treatment.
Baroness Donaghy
My Lords, I support the amendments of the noble Baroness, Lady Finlay of Llandaff, which refer to allied health professionals, and I want to widen them to include the whole health team. We have been talking about structures, consultation, rights of representation, and roles and responsibility in the new structures, but we need to ensure that the service is delivered to the patients by the health team. Nowhere does the Bill appear to acknowledge the importance of the majority of staff in the health and care services: the invisible majority. I know from working in universities for 33 years that there are academics and students, and then all the rest who are often referred to in the negative as non-teaching staff. In the health service, there are doctors, sometimes nurses, and patients, while the rest are rarely referred to as people: they are back office or integrated services. I want to place on record the importance of the health team: the cleaners, caterers, maintenance staff, technicians, receptionists, secretaries, administrators, finance staff, and those involved with transport, as well the allied health professionals mentioned by the noble Baroness, Lady Finlay.
When I was a non-executive director of a foundation trust, we had to deal with the issue of staff who were employed by PFI projects. It is not my intention to discuss the rights and wrongs of PFI, but to illustrate the huge efforts required to ensure that the PFI staff felt part of the health team, even though the foundation trust had no direct management responsibility. The same applies to contracted-out staff generally. Some, though not all, of the problems of hygiene in hospitals and failure to feed vulnerable patients were caused by the separation of these contracted-out staff from the health team. If transport is not co-ordinated, a patient can be in a ward for an extra day. An efficient receptionist can make the difference between an efficient department and a failing department. Those are only two examples. There has been a deafening silence about the health team, and I am seeking a statement of support for all the staff in the health service and an acknowledgement that the future of the service, whatever that is after this unnecessary Bill, will depend on the health team being able to work together in an integrated way.
Baroness Cumberlege
My Lords, I address my remarks to Amendment 330ZAB and others that concern the composition of the health and well-being boards, and I would like to say a word in general about the boards.
To me, they are a spark of inspiration. In the next grouping we will have some specific amendments from noble Lords concerning integration, and we have heard a bit about it already today. I have been conscious that throughout the Committee debates the virtues of integration have often been referred to by my noble friend Lord Howe, and part of the integration he has cited is that very valuable tool, the health and well-being board, bringing together social services, health, and importantly, local healthwatch.
The Bill is gratifyingly lean in its suggested membership of the board: just six essential members. However, in Clause 191(2)(g) it gives flexibility in allowing the board to appoint:
“(g) such other persons, or representatives of such other persons, as the local authority thinks appropriate”.
However, in the same clause, 191(9), it must consult with the members of the board. That seems absolutely right and proper. The success of these boards will be in their balance. That is very important, and what we cannot afford is a single constituency trying to pack the board with its own colleagues. The board itself can put a brake on that, and keep the balance right.
The board itself can appoint additional members, and I can see that being invaluable if the board has chosen a subject which it wishes to target, such as obesity, as mentioned by my noble friend Lady Jolly. Poor housing was also mentioned, as well as alcohol, sexual health, prisons, probation, or children. There is nothing to stop the board giving the individual a short tenure, if the board so wishes. However, if we concede to all these additional, very persuasive arguments that are being put for adding more and more members—I had a quick count of all the amendments on the Marshalled List—we would have statutory boards in the order of 24 members. That is a nightmare for quick decision-making.
I chaired a joint finance committee years and years ago, when we were trying to do the same thing, and we had a board of that size. It became a talking shop. No one would take the decisions that were really necessary. With great respect to local government, where I spent 20 years, we do not want another committee of the council. These boards have to be different.
I said I thought the concept was a spark of inspiration, but I can see this spark extinguished very quickly if we end up with big, unwieldy, cumbersome talking shops. The health and well-being boards should be composed of the great innovators; people with unusual and challenging ideas; people who are prepared to think the unthinkable; imaginative people, fleet of foot, trying new ideas, and abandoning them if they do not work out. Above all, they should be the risk takers.
We know that innovation seldom comes from large, cumbersome committees. It very often comes from young people sparking off ideas. These are people who are probably quite difficult to work with. The Steve Jobs, the Bill Gates, the James Dysons of this world, determined to get their ideas from the drawing board into our homes, changing our lives for the better. They are the people who are not afraid of disruptive innovation.
The NHS thirsts for innovation, but it cannot face the disruption. One of the examples of successful disruptive innovation that I came across is Hairdressers for Health. In a very impoverished area south of Manchester, where you heard the crunch of broken glass under your feet when you walked, where graffiti was everywhere, where the school was protected by razor wire, the hairdressing salon was one oasis of peace and sanity. A junior director of public health, who was very anxious to increase the uptake of cervical screening, recruited the hairdressers to ask their clients—people will know that hairdressers always refer to their customers as clients—whether they had had a cervical screen and, if not, to give them the reason why they ought to go and have one. The hairdressers were given a book of difficult questions that they could answer and a phone number if they got stuck. The results were really impressive. When I asked the women why they went for cervical screening, they would say, “Tracy does my hair. She does it beautifully and I really trust Tracy”.
There are a million reasons why you should not go down that road. If you had a big, cumbersome committee, I can just hear the remarks, “The hairdressers aren’t up to it. The hairdressers really won’t have the information. The clients won’t believe the hairdressers”. No, here was a courageous young director of public health, not working through a huge board, thinking really laterally and doing something terrific. That is what we want from these health and well-being boards. We do not want large committees full of worthies shirking innovation because it is just too risky. Of course, there are always a million reasons why you should not do something. What started as an inspiration is quickly reduced to the boring status quo because that is safe. It takes an awful long time to get back to the boring, safe status quo.
When people decide for themselves, they are more likely to be successful. I applaud the flexibility of the Bill. I see merit in every case that is being put today. The case is being put extremely persuasively, but I urge your Lordships to resist the temptation to tie the hands and stamp on the autonomy of the new boards. We need them to be a success. I am working at the moment with some that are in shadow form. The good will that is in those boards is terrific. We should be enhancing and cherishing that and not directing exactly how they should work. If we do that, I regret that we will simply have just another committee of the council.
Baroness Benjamin
My Lords, childhood lasts a lifetime. Whatever happens to people during childhood, they will take with them long into adulthood. Sadly, many children’s early lives are broken by the relentless mental and physical suffering that they go through daily. Even children who suffer from lesser known conditions such as sickle cell, which is not widely recognised by teachers or schools, are made to feel inadequate and lose their confidence. We need to put in place a holistic provision of care for those children, for their voices to be heard and for them to know that society cares about their well-being. That will give them hope for the future.
As we have heard from noble Lords across the House, we need joined-up policies for everyone to work together. I hope that my noble friend the Minister will show compassion and understanding when he considers these amendments, which I believe put children first and show that we are a nation that cares about our children, our future.
Lord Warner
My Lords, I want to say a few words about children in this group of amendments. I know and agree with the arguments put forward by the noble Baroness, Lady Cumberlege. We do not want this to become a huge talking shop. I sympathise with and support that idea, but I think that children are different in kind, in part for the reasons given by the noble Baroness, Lady Benjamin. If we are serious about investing in the future, we need to pick up some of the issues around children much earlier. Diabetes and obesity are big issues facing our society. Many of our services are not very good at picking up the needs of children and responding to them in a comprehensive manner. There are lots of organisations that speak on behalf of them, just as there are lots of organisations that speak up for other interest groups, but I would say that the investment issue on children is much more significant than the investment issue on 80 to 85 year- olds, or even 70 year-olds. That is not to say that those people do not need a good or compassionate set of services responding to their needs, but if we as a society neglect the voice and needs of children, we are just bringing a lot of problems upon ourselves as a society—more so than if we have less good care at much older age groups.
From my time as a Minister, I thought that the voice of the child in the NHS was really quite muted. The working across boundaries in the needs of children is often far less good than it should be. We need to put in the Bill a stronger requirement to listen to the voice of children and to have their representatives fully focused in the health and well-being boards. They are different in kind and their voice has not been heard enough. Too often, public services operate through parents rather than going straight to the child. That is particularly an issue with young carers and with adolescents. We need a bit of a wake-up call on the needs of children in our NHS and social services and across the spectrum of their needs. I hope that the Minister will look carefully at this issue in the particular circumstances of children.
Lord Beecham
My Lords, these few clauses relating to health and well-being boards are perhaps less politically exciting than many of those that we have spent days debating—days that are rapidly drawing to a close—but they are potentially highly significant and their importance will be realised over time. The purpose of these boards is to facilitate integration between local government and the National Health Service in the planning and provision of all services relevant to the health and well-being of the present and the future population. They should take a strategic view of a range of services—health in its conventional sense; public health, which is now effectively to be restored to local government; social care; children’s services; housing; environmental services; leisure; and the criminal justice system, all of which have been mentioned by various of your Lordships this morning.
In addition to that fundamental strategic role, these clauses provide for greater democratic accountability at local level and the engagement of the community and the voluntary sector. As we have heard, they also ought to provide for the engagement of staff with a range of professional skills to be brought to bear on the issues that communities face.
I listened with some care and, frankly, growing concern to the observations of the noble Baroness, Lady Cumberlege. If I may say so, she got it wrong about the purpose of the health and well-being boards. They are not operational boards. They are to produce a health and well-being strategy. They operate at that level. They will not be directly involved with implementing that strategy. They will not be responsible for the range of services which will be required both to work together and to work efficiently to impact on the health and well-being of an area.
The noble Baroness also perhaps misunderstands how influential bodies like local government can be. When I had responsibility in the area of social care in Newcastle, many years ago, I was able, with a committee of 15, to drive through a significant programme of change in our authority. We created one of the first welfare rights services, we trebled meals on wheels, we doubled the home help service and we made vast changes in the way that we provided for children’s services and adult services alike. It is perfectly possible to do that with a reasonably sized committee, provided that there are people on it with the kind of vision which is necessary, and people in the employ of whatever authority is providing those services who, equally, have drive, sensitivity and vision.
In looking at the role of the health and well-being boards, then, we have to have regard to that area of responsibility. Of course they will be working to an agenda which will actually be set rather separately, in a sense, because it is the local authority and the clinical commissioning groups which will be responsible for the preparation of the joint strategic needs assessment. That is the basis upon which matters will have to be carried forward.
I am afraid that the noble Baroness, Lady Jolly, joins the noble Baroness, Lady Cumberlege, in possibly having slightly misunderstood the nature of one of the problems that she touched upon. She is absolutely right that housing has to be an integral part of the programme to deal with health, both for communities and individuals, but her amendment is the wrong way around. It is not that the health and well-being board has to take into account the views of the planning authority. It is the other way around—the planning authorities and housing authorities should be drawing up their plans on the basis of the strategic needs assessment and the health and well-being strategy that follows it. We are not at odds about that, really; it is perhaps simply the wording of the amendment. I will have to make a confession about the wording of my amendments later, so I might also plead guilty to the charge that I have levied at noble Baronesses opposite.
Before coming on to the amendments as such, there are two or three questions upon which I would like to hear the Minister’s views. The first is in relation to the relationship between the national Commissioning Board, and its local outposts in particular, and the health and well-being boards. The Bill refers to the position of the national Commissioning Board, but I am interested to learn how he sees the role of the local outposts—I think that is the phrase—which will be established, because part of the agenda which will remain with the national Commissioning Board will impinge pretty directly upon the local strategy and will have very significant and very specific local implications.
Going beyond that, perhaps the Minister would comment upon whether the Government intend to replicate at national level the kind of joint working across departments that they are, perfectly properly, looking to create at local level. Will we see some ministerial committee or some forum for relevant government departments? I go beyond even those that have so far been mentioned. I am thinking in particular of the Department for Work and Pensions and the impact of the Welfare Reform Bill, as well as its general responsibility for benefits; and, bearing in mind the observations of many noble Lords about having regard for the needs of children and young people, but also adults and people with learning disabilities and so on, the Department for Business, Innovation and Skills clearly has a role. It would be interesting to learn whether the Government’s thinking has taken them beyond the local level to looking at how these matters might be addressed nationally.
In addition to that, there is the question of community budgeting, as the phrase now is: whether it is envisaged that it has a role in this context and whether some of the pilots being considered nationally could address those issues.
I will now speak to the amendments in my name and those of my colleagues, Amendments 330ZB, 330ZAB, 331A, 331AAA, 335A, 336A and 336AA. Amendment 330ZB requires the publication of an integrated commissioning plan to which all partners must have regard. That might go somewhat beyond the terms of the Bill as it stands at present, but it seems essential that there should be an integrated commissioning plan across the piece. We are, after all, talking about very considerable sums of public money being spent. Since most of the health budget as such is being devolved to clinical commissioning groups, we are talking about £80 billion nationally. That would be translated into smaller but nevertheless significant sums of money locally, to which would be added the local authority’s own contributions in any given area across its own responsibilities. For a large authority, we are probably talking of a budget of close to £1 billion —possibly more—which will be encompassed within, though not directly administered by, the health and well-being board.
Amendment 335A calls on the health and well-being board to have the responsibility of signing off the clinical commissioning group’s commissioning plan. This is to ensure consistency and a degree of accountability for the work undertaken by the clinical commissioning groups. That is backed up by another amendment which gives the health and well-being board the right to request information as to the progress in implementing the strategy, so that, in addition to the scrutiny committee of the local authority—it in any event has a wide range of possibilities to scrutinise what is happening—the board itself, having set the strategy, is able to see how it is being implemented.
We now come to the question of membership. This is certainly a somewhat difficult issue. There are a whole range of amendments, most of which I would agree with, setting out the wide range of organisations which should be included in membership of the board. They include representatives of education providers; pharmacies; the probation and police services, mentioned by the noble Lord, Lord Ramsbotham; allied health professionals, about whom the noble Baroness, Lady Finlay, spoke; and people from the field of alcohol and drug abuse and the field of safeguarding. It is a significant number.
The Bill at present constitutes the health and well-being board as a committee of the local authority, yet somewhat paradoxically, as the noble Baroness, Lady Jolly, pointed out, only requires a single member of a local authority to be appointed to a board. Admittedly, this is as a minimum, but it could hardly be less. Interestingly, my own authority in Newcastle recently agreed a shadow board, in my absence, which is 25 strong. That strikes me as slightly on the high side, but it includes two representatives from each of the two clinical commissioning groups in the city, from the three trusts that serve the city and from a range of other organisations —many of which reflect the bodies to which noble Lords have referred this morning in debate or in amendments—as well as just three councillors.
Lord Mawhinney
I am most grateful to the noble Lord. I think he knows that I listen carefully to him when he is on his feet. The essence of a democracy is that people are elected to represent their community. I can see an argument for having some professionally trained people adding their expertise, because it might be a stretch to expect locally elected people to command the technicalities of a professional view, but given that commitment of democracy, why does the noble Lord think it necessary to have so many other people representing—in the best possible spirit, I hasten to add—specialist vocations or vested interests?
Lord Beecham
In the first place, I am grateful to the noble Lord, Lord Mawhinney, for recognising when I am on my feet, given that there is not much of me to be seen. In relation to his question, I am not suggesting that they should be voting members. That is the point. There is a difference. The voting members—I do not mean executive members—should be confined to elected councillors and those representing the other partners, the clinical commissioning groups and the trusts. It is a partnership arrangement. You have this sort of arrangement in care trusts and the like. It is an acceptable one, but at the very least there should be equality of arms between the elected members and those from other organisations.
Baroness Murphy
Can we be quite clear that the noble Lord, Lord Beecham, is asking for a health and well-being joint board on which the director of social services and the director of public health—two crucial people contributing to the board—have no vote?
Lord Beecham
That is exactly right. They do not have a vote in the council, which determines a budget of several hundred million pounds and deals with huge issues of social care and public health. They are paid officers. That is a distinct, separate role. On this, the noble Lord, Lord Mawhinney, and I are entirely at one.
There are ways in which the current positions can be improved. I hope that the Minister may be able to give an indication today that there is some scope for change. However, there may be issues that we need to address on Report if what is basically a good plan cannot be further improved today.
Baroness Cumberlege
I do not really accept the noble Lord’s criticism of my thinking. Of course I understand that these health and well-being boards are essentially planning boards. I will read very carefully what he has said in Hansard, but I am sure he accepts that you cannot do the planning if you are totally ignorant of the implementation of what you are planning. Clearly, finance and other things come into this. The health and well-being boards that I have spoken to say that what is really important to the success of the board is the equality of members on it. If he is saying that only local government councillors have a vote, I think that people who also hold budgets—the clinical commissioning group people and the health people—would be very upset if decisions were made involving their finances without them having an opportunity to put their case in a vote, if it comes to that. Again, the boards that I have been speaking to and working with have said that they would always try very hard to avoid a vote.
When I came into the health service from local government, I found the whole culture very different. I enjoyed working as an equal partner with those who were advising me, such as the district or county medical officer and others. We really should leave this to the health and well-being boards to decide how they want to run their business. Why do we always think we know best? Every health and well-being board will be totally different, representing different areas of the country and all sorts of different interests. For once, let us have a light touch and trust the people who are going to be doing this business.
Lord Beecham
I think we need to set out a minimum requirement. That is all I am seeking to do. I am not seeking to circumscribe.
Lord Beecham
The minimum requirement in the Bill is the wrong requirement. That is the point for some of us, at any rate.
Lord Beecham
Rubbish is the responsibility of district councils, as the noble Baroness, Lady Jolly, would point out—at least its collection is.
We clearly do not agree about this. The Bill does not go sufficiently far to underpin democratic accountability. It goes too far to entrench professional and bureaucratic interests, whose voice should certainly be heard but who should not be able to vote on these decisions, just as they are not in central or local government.
Earl Howe
My Lords, this group of amendments has prompted a very worthwhile debate. They all relate to health and well-being boards, and in particular their statutory minimum membership, their responsibility for preparing joint strategic needs assessments and joint health and well-being strategies, as well as their role in promoting integration. On the first of these issues, concern has been expressed about the membership of health and well-being boards. I am sympathetic to the very important points that several noble Lords have raised. We are all keen to ensure that health and well-being boards access the best expertise and professional advice on the myriad complex challenges facing the health and well-being of their local populations. However, taken together these amendments would significantly increase the minimum membership of each health and well-being board, making the requirements substantially more prescriptive. We want to preserve local discretion and flexibility in these arrangements and the ability of boards to shape wider membership in a way that reflects local priorities. These amendments would severely limit that flexibility and discretion. Their other big downside is that they could lead to larger and somewhat unwieldy boards, making meaningful dialogue and decision-making more difficult. My noble friend Lady Cumberlege was absolutely right to sound the note of warning that she did.
In general, we want to avoid being too prescriptive. The Bill sets out a minimum membership for health and well-being boards, but members can be added by either the local authority or the health and well-being board. I would say to the noble Lord, Lord Beecham, in particular that following the Future Forum report, we made a commitment that it will be for local authorities to determine the precise number of elected representatives on their board. We fully recognise that health and well-being boards will want to draw from a range of expertise beyond the statutory membership, such as clinicians, allied health professionals, police, probation service and voluntary sector groups. However, in deciding who to invite, they will need to consider local needs and priorities and the delicate balance between having the right people and having too many to make it an effective board.
The noble Baroness, Lady Finlay, was quite right to emphasise that the right people needed to be there. It is perhaps worth highlighting in that context that we have retained the power for the Secretary of State to issue guidance on the preparation of joint strategic needs assessments, and there will be power to issue guidance on the preparation of joint health and well-being strategies, particularly when it comes to defining what best practice looks like.
The noble Lord, Lord Beecham, asked how the NHS Commissioning Board would fit in with health and well-being boards. The NHS Commissioning Board will be required to send a representative when asked by the health and well-being board and where the discussions touch on the proposed exercise of local commissioning functions of the commissioning board, for example when discussing primary care commissioning. It will also be required to send a representative to participate in the health and well-being board’s preparation of the JSNA and a health and well-being strategy. With the agreement of the health and well-being board, the Commissioning Board may appoint someone to represent it who is not its member or employee, such as a clinical commissioning group representative.
Lord Beecham
Does that mean that it will be the local outpost, if that is the correct phrase, of the national Commissioning Board that will have that relationship, or will this in effect be directed from London?
Earl Howe
It will almost certainly be the local outpost that will have direct responsibility for those matters.
A number of amendments would introduce specific requirements in relation to the JSNA, but before I move on to that I have been informed of something that I think I probably implied, if not stated. It would be up to the board to decide who would be most appropriate to attend at a particular health and well-being board meeting.
I agree that the JSNA must be a full analysis that covers the current and future health and social care needs of the local population. It will be a framework to examine inequalities and the factors that impact on health and well-being. This could include aspects such as deprivation. Its scope will naturally include health and social care needs that are related to a wide range of areas, such as alcohol harm, disability or older people.
Baroness Massey of Darwen
Could the Minister tease out for us the difference between the words “may” and “must”? Is he saying that the word “may” will refer to issues that will be in guidance and the word “must” will be in the Bill, or is it more complicated than that?
Earl Howe
I hope the noble Baroness will have sensed from my remarks that we want to avoid being overprescriptive. On the other hand, we are clear about what best practice looks like, and in framing JSNAs and the health and well-being strategies we have provided for statutory guidance which can set out what best practice looks like.
I think that that is the appropriate balance, rather than putting “must” in the Bill all the time. Local authorities are autonomous bodies and we must hesitate before directing them too closely. I very much agreed with the points made by my noble friend Lady Cumberlege on this. It is not, of course, that we regard these as unimportant; it is a question of how much we mandate and how much we leave to local discretion.
Baroness Finlay of Llandaff
My Lords, I will build slightly on that because I have my name on the same amendments. I understand the Minister’s response regarding the need not to be over-prescriptive, and not to have boards that are burdensome and cannot take decisions easily. He has referred to guidance. It would be very helpful if he could assure us that the contents of this debate and the trends and themes that have come through will inform that guidance, and that the health and well-being boards will be asked to particularly consider and consult with the broad range of professionals and prisoners, and the particular needs of children—which I emphasise. This will ensure that their strategy is broad and really meets the needs, so that there is not, inadvertently, a small board taking narrow decisions.
Earl Howe
My Lords, I can assure the noble Baroness that the substance of this debate will most certainly be fed in. We will be revising the statutory guidance on the joint strategic needs assessment in due course to reflect the changing system. As a result of the Future Forums recommendations, we will also be issuing statutory guidance on the joint health and well-being strategy. There is therefore plenty of scope to build in the very salient and important points that noble Lords have raised.
Lord Warner
Lord Warner
My Lords, I shall speak also to Amendments 335 and 336, which I degrouped from the previous grouping.
Amendments 332 and 335 provide an opportunity to press the Government again on securing more precision in this Bill about what we mean by integration. The integration that means most to patients and service users and their carers is the integration of service delivery. That is what Amendment 332 tries to bring out, by replacing reference to people working “in an integrated manner” with wording that ensures that they work in,
“a manner that integrates the delivery of services to individuals”.
Amendment 335 has another go at trying to persuade the Government to include in this Bill a definition of integration. I find it very odd that the Government go to all the trouble in Clause 192—as elsewhere in the Bill—of providing definitions of health services, health-related services and social care services, but will nowhere provide a definition of integration even though the term is liberally sprinkled throughout the Bill. I congratulate them on that liberal sprinkling, and I think that the intentions are very good. However, using the term “integration” in a variety of ways, without being clear what the important meaning of it is to patients, promises a lot but risks ensuring that there is a likelihood of delivering very little change that actually benefits individuals or helps break down the barriers between health and social care. My particular concern is that some people will take away from this Bill that they have met the needs of integration by organisational integration rather than focusing on the thing which matters to individuals, which is the integration of service delivery.
I hope that the Minister will think further about inserting a definition of integration in the Bill, to give it more precision. I would be happy, as I am sure other noble Lords across the Benches would be, to help him to try to secure a definition. I do not claim that getting that definition right is easy, but I think that while the Bill is in this House it is worth the trouble of trying to get a more precise definition of the integration that would really benefit individuals in the area of service delivery.
Amendment 336 also seeks to push integration, but in a very specific way. It proposes that a local authority with a health and well-being board may approach the national Commissioning Board about assuming,
“some or all of the functions (and associated funding) of a clinical commissioning group where such a group agrees that this is in the best interests of patients”,
particularly if it improves integration. The Government are very keen to argue that people at local level should be able to shape their local arrangements for commissioning and providing services. I have a great deal of sympathy with that approach. This amendment would enable clinical commissioning groups and health and well-being boards to come together to form a single body for commissioning services in accordance with a joint service needs assessment. Given the variation in the size of clinical commissioning groups, there may be some large ones that would like to share staff and reduce overheads by amalgamating their activities in the way that this amendment permits. In addition, some of us believe that it will not be possible to sustain 250 or more clinical commissioning groups, which might then raise the issue of merging those groups and possibly going further and merging the merged with a health and well-being board as well.
There is no compulsion or pressure in this amendment. It merely enables clinical commissioning groups and health and well-being boards to come together, integrate their activities, share priorities and work closely together in the way that public money is spent, particularly in relation to integrating services across the NHS and local government boundaries. I hope that, in the spirit of local decision-making, a permissive but non-mandatory power of this kind could be inserted into the Bill.
I would very much like to hear the Minister’s views on this probing amendment and whether he sees merit in it. I shall be returning to the issue of integration, and a definition of it, on Report. I think there is support for this across many parts of the House. I beg to move.
Baroness Williams of Crosby
My Lords, we on these Benches have strongly supported the many references to integration that have been made in Committee, and it is obviously central to the whole of the attempt to deal with the major problems that confront us all over the next few years. However, I completely agree with the noble Lord, Lord Warner, that it is not very clear what this is, other than a nice word. The more flesh that we can put on it, the better all round, and the clearer the position of local authorities will be.
Many local authorities have of course already delivered, on behalf of the primary care trusts, the kind of approach that the noble Lord, Lord Warner, has been advocating, but the situation has to go a great deal further. We are particularly attracted by his Amendment 336 because it is very clear and precise in what it suggests about the relationship between CCGs, particularly those who wish to devolve some of their responsibilities, or in some cases are unable to deliver on those responsibilities.
I would like to say, from these Benches, on behalf of my noble friend Lady Jolly and myself, is that it is crucial that at an early stage health and well-being boards are able to mount mechanisms for early decision-making. If a CCG is unable to meet part of its responsibilities—and that may happen at relatively short notice—it is critical that the health and well-being boards have structures within their own management which would enable them to deal with the issues rapidly. It would be no good at all if there is a long interregnum when services to patients are put at risk.
I would advocate, in addition to what the noble Lord, Lord Warner, has said, that the new health and well-being boards should make an early approach to seeing how they would deal with what might be, if not an emergency, at least the beginnings of an emergency in the particular aspect of what the CCGs are proposing to deliver.
Baroness Murphy
My Lords, I have added my name to these amendments. Like the noble Lord, Lord Warner, I have come back time and again to this issue of what we really mean by integration, and what it will mean for patients, clients, and people living in the community. It must be a seamless service. They do not mind, of course, where the services come from, but it has to be utterly without gaps. It has to operate 365 days a year, year after year after year, if it is to work.
It seems to me that these health and well-being boards have two huge areas that they will have to work in: the public health and well-being functions around housing, the health of children, and the education of children, for example; and the delivery of services. These two arms are quite difficult to meld together in any joint planning arrangements. The joint strategic needs assessment will try to produce these two focused blocs, but it is actually quite difficult. I am sure I am not the only alumnus, or graduate, or perhaps I should say survivor, of joint planning arrangements. I am even a survivor of a health action zone. I know how difficult it is, and how many hours of work go into properly well-functioning joint planning arrangements, which can commit funds. It takes hours of time and extraordinary leadership from health and local authorities to make them work properly.
I am not sure that I think these health and well-being boards are an inspiration, as the noble Baroness, Lady Cumberlege, does. They are a bit of an improvement on what went before, but to work properly they are going to have to work very hard locally to get it right, and get the structures right. I think it would help enormously if they were working towards something real. For me the real thing would be the integration of the working of health and social care, both at the patient level and at the public health and well-being end of the population. Our Amendment 336 provides one option for a way of working together—an option that local organisations might want to take up. It is an idea, and I am sure that we can think of many others that would also fit the bill. I want these boards to be real and their functions to be made practically useful on the ground, so I support these amendments.
Lord Patel
My Lords, I have my name on these amendments. Of course, we have had an opportunity to discuss integrated care at length at other times. However, I agree that integrated care and the delivery of it is one of the key challenges in the Bill. I agree with what the noble Lord, Lord Warner, said. To a patient, integrated care is the care they need: primary care, secondary care, social care and care in the community.
What leverages will there be for the commissioners to promote the integration of health and social care? They will have the budget, but what other incentives will they have? There is some evidence that contracting of provision of care to a population, particularly the elderly, the frail and those with complex diseases, will require much more care but also use more resources and services. It is not only value for money, but improved patient experience and patient outcomes. How will the commissioners be encouraged to do this? Does the Minister think that three separate outcomes frameworks in health, social care and prevention will help or hinder integration of care? There is also an issue about who will lead this change, if we think that this is the key challenge in the Bill. I agree that putting a clear definition of what we mean by integration, or what a patient means by integration, into the Bill will give a clear message to all those who commission and deliver the care, to know exactly what they have to do.
Baroness Pitkeathley
My Lords, my name is on Amendment 332. As other noble Lords have said, the Committee hardly needs reminding of our previous debates about the integration issue, or of the importance of health and well-being boards to the interests of patients. It is too easy, as the noble Lord, Lord Warner, has reminded us, for those delivering care to think that they are delivering an integrated service, because they are talking to each other—although it is not as common across services, in fact, as we might like to think—or because they are making joint plans, or they have made some kind of structural change, to give a nod to integration. What matters is how the services are received. Are they received by the patient in a way that is coherent and co-ordinated to the patient and to their family and carers?
The services will be delivered by a variety of providers—more, it seems to me, than the two arms the noble Baroness, Lady Murphy, reminded us about; that is, not only by health and local authorities but also by third sector organisations, particularly for those with long-term and chronic illnesses; by charities, by social enterprises and of course across the private sector. However the health and well-being boards end up being constituted in a particular area, it seems to me that some of the members at least will be patient representatives. They will be in an ideal position to monitor the patient’s response to service delivery and that it is indeed being integrated across all those services. It is very good news that the Future Forum is now working on integration. Will the Minister assure the Committee that the report, which I think he said would be available in January, will be available to the House by the time of our Report stage?
Baroness Barker
My Lords, my name is not on these amendments, but I want to make a couple of points, partly because I have a longstanding interest in this and partly because in recent weeks it has been a very personal feature in my life.
The noble Lord, Lord Warner, is absolutely right to keep pressing the Government to come up with a definition of integration. Like him, I struggle to know what it is. I know the factors that should be focused on, which create or prevent integration. One is the overall sense of purpose in your work. For many of the health and well-being boards, the key role will be in the prevention of illness. The biggest challenge for hospitals and the acute sector, which perhaps they have not yet woken up to, in the way in which they are going to have to work with health and well-being boards is about discharge from hospital and ensuring that people who have been ill, particularly older people, have access to nursing care in the community that enables them to live with long-term conditions.
One of the most important factors is money. The noble Baroness, Lady Murphy, made me flash back to many a meeting that I have been involved with, but one in particular in a borough in south London where the local Age Concern had an excellent handyperson scheme. They worked with the OTs to dramatically speed up the process of older people being assessed and given aids and adaptations that enabled them to live with long-term conditions. I well remember sitting in the meeting when somebody from the health service announced that the health service were going to start their own rival service. Why? Because a pot of money had come along and they were going to use it. Patterns and flows of money have been the bedevilment of integration, very often.
Integration can work well, particularly when both parties take a strategic view of what they are supposed to be doing. I cite again the case in Islington, when my colleagues were running the council. The local authority took the decision that it would do everything related to children and the PCT decided that it would take responsibility for adults and long-term care. That is a very imaginative way to start addressing problems at a strategic level. If you address them properly at strategic level, the greater the chance that when it comes to individual cases, you will indeed get integration of services around a person.
I am therefore pleased to see Amendment 336, tabled by the noble Lord, Lord Warner. I would just query one point with him on drafting. As drafted, there is a slight problem, because it seems to imply that any move towards integration has to be approved by the commissioning board. I know that is not what he intends. Small-scale schemes should just go ahead without reference up the line, so I think he needs to look at the wording, but that is very helpful.
The noble Lord, Lord Patel, is absolutely right. Three different outcomes frameworks setting the agenda for the three different parts of what will make up a health and well-being board is wrong. It is only when people in the NHS understand that they have to help social care outcomes to happen that we are really going to move forward towards integration as a mindset for professionals and a reality for patients.
Lord Warner
Could I just clarify for the noble Baroness that I do not claim that my wording is perfect? I brought the National Commissioning Board in—slightly against my better judgment, I have to admit—because it has the responsibility for, in a sense, approving the commissioning arrangements and spending the money. My instincts were that it would not support this unless it had been consulted and was satisfied with the commissioning arrangements.
Baroness Thornton
My Lords, I will be very brief because my noble friend and other noble Lords have pretty much covered the territory here. This small group of amendments is rather important and significantly improves the Bill. I realise that they are probing amendments, but they do three things. The first amendment is about changing culture. It talks about the manner of the integration of services, not just an integrated manner. The second one says that we need to define integration. This must be perhaps the third or fourth debate that we have had on integration in the past however many weeks. It seems quite clear that there needs to be some definition of integration in the Bill. My noble friend Lord Warner explained that. Given that many parts of the Bill offer a list of different ways in which things can be described and done, I see no reason why the same list on integration cannot be included. The third point in the amendment to which I was pleased to be able to put my name is about encouraging co-operation across the piece. Having the national Commissioning Board mentioned in that is rather important.
Those three points about changing the culture, defining what you mean and encouraging co-operation seem to me to be the type of message that any health and well-being board will look to as it starts up its work. It will look to what is in the Bill, what is in guidance and what is in statutory instruments to help it to work out what to do. To have something that defines the kind of culture that is expected, defines integration and the way the bodies should work, lists the bodies that should work together, if not in the Bill then certainly in guidance, and explains the manner in which they are expected to work seems to me to be a very helpful way forward.
Earl Howe
My Lords, these amendments from the noble Lord, Lord Warner, are primarily concerned with strengthening the role of health and well-being boards in promoting integration between health and social care and wider aspects. I completely understand why noble Lords have felt moved to support these amendments. They are undoubtedly well intentioned, but I am afraid that I have a problem with them.
Amendment 336, which I will speak about more fully in a second, could be seen to enable changes to be made to the fundamental responsibility for functions, which we are clear would not be right. Amendments 332 and 335 would also introduce a prescriptive definition of integration. I resist that idea not just because it would be counter to the principles of localism, which we believe are very important, but because it could act as a diversion from effective integrated working between commissioners. I do not see the need for a definition beyond what the clause already says, which seems quite clear.
We have a shared intent on the importance of integration, but I cannot agree that this cause would be aided by pinning down a definition in primary legislation. I see no need for that. Apart from anything else, having a definition set in primary legislation would risk creating inflexibility as times and practices change. We should focus on removing barriers on the ground to ensure integration. That is where the Government’s response to the Future Forum’s work will, I hope, make a difference. We aim to publish our response to the Future Forum’s report before the Report stage of this Bill.
I am sure that Amendment 336 is intended to be helpful, but it might create confusion between the arrangements mentioned in the amendment and those made under Section 75 of the NHS Act, which would enable local authorities and CCGs to enter into partnership arrangements such as lead commissioning and pooled budgets. Existing provisions in the Bill are designed to encourage and enable the NHS and local government to improve patient outcomes through more effective co-ordinated working. The Bill provides the basis for better collaboration, partnership working and integration across local government and the NHS at all levels. I hope that that, in part at least, answers the question posed by the noble Lord, Lord Patel.
Indeed, health and well-being boards will have a strong role in promoting joined-up commissioning between health, public health and social care. Through their duty to promote integrated working between commissioners, they will also be in a good position to promote more integrated provision for patients, social care service users and carers. They will also be able to encourage close working between the commissioning of social care, public health and NHS services and aspects of the wider local authority agenda that also influence health and well-being, such as housing, education and the environment. Through statutory guidance on preparing the joint health and well-being strategy, and the Government’s mandate to the NHS Commissioning Board, we will be encouraging lead commissioning and integrated provision.
There are enough levers and mechanisms in the system to encourage every part of the system to look for ways of joining up services, and the commissioning of those services. I hope that I have reassured noble Lords of our intentions, and that the noble Lord feels able to withdraw his amendment.
Baroness Thornton
If a new health and well-being board got in touch with the Minister, or perhaps with the Commissioning Board, and asked whether it would please say which form of integration it should be using or how it should be doing this, would he tell it to work it out for itself?
Earl Howe
My Lords, we have to give credit to people on the ground to be the professionals that we know them to be. Integrated working can take many forms, as we have discussed quite often in Committee. I will not rehearse the various manifestations of integration. Once we have mandated the duties in the Bill and issued statutory guidance on what good practice looks like, I really think that it will be up to people on the ground to decide how best to set about fulfilling the duties and expectations placed on them.
Baroness Williams of Crosby
I will pursue for a minute mechanisms for an early decision. I do so because the health and well-being boards will obviously be new and will be moving into a relatively new structure in their relationships with the medical and clinical CCGs, and they might not realise that this could happen rather quickly. No one is thinking of laying down the law, but a mechanism under which they are reminded that this could arise quite suddenly at an early stage and that they therefore need a structure that enables them to react quickly is an important feature of what the noble Lord, Lord Warner, was arguing.
Earl Howe
This is exactly why we have established the early implementer health and well-being boards. These cover virtually the entire country; a very small number are not yet in existence. I can tell my noble friend that local authorities have seized this opportunity with alacrity and are getting to grips with just the kind of issues that she has in mind.
We have a lead-up time available to enable the boards to consolidate the learning that is undoubtedly going on and the dialogue that is taking place with the pathfinder clinical commissioning groups. We are supporting that process from the centre. I hope and believe that by the time the health and well-being boards go live they will be in a very good position to hit the ground running.
Lord Warner
My Lords, I am grateful to all noble Lords for the support that they have given, and indeed am gratified by it. I hear what the Minister says, but we have been talking about integration for 25 years. You have to be one of life’s supreme optimists to think that just because the Government have passed this Bill you are going to change the culture of 25 years. It is very important that we try to have a go at a definition in this Bill. I will read very carefully what the Minister has said but I can assure him, as a Christmas present, that I shall be returning to this subject on Report, after taking some soundings at the local level. He is quite right: we do need to be sure what people at the local level want, but I do not think that we can move away from trying to give a lead on what we mean by integration. In the mean time, I beg leave to withdraw the amendment.
“Health Service Ombudsman for England and Health Service Ombudsman for Wales
All patients receiving care from an organisation that receives any funding from the NHS shall have the right of complaint to the relevant health service ombudsman.”
Baroness Finlay of Llandaff
My Lords, this Bill in vast part concerns England only. This amendment concerns both England and Wales. I have tabled it to try to clarify an area in the role of the ombudsman which is currently not clear. Having spoken to the ombudsman in Wales at length about this, and discussed it with the ombudsman in England, with the emergence of any qualified provider and a range of licensed providers in this system, it seems that there is a need to clarify the role of the ombudsman, to make sure that patients have a final port of call when the complaints system has failed them.
I will quote from the Complaints and Litigation report of the House of Commons Health Committee from the previous Session. It states:
“Many people see the role of the Ombudsman as a general appeals process for the complaints system, but the remit under the Health Service Commissioners Act is much narrower than that. The Committee is of the view that a complainant whose complaint is rejected by the service provider should be able to seek independent review. The legal and operational framework of the Ombudsman’s office should be reviewed to make it effective for this wider purpose”.
The Health Service Commissioners Act 1993 set out the principle that the ombudsman should be able to investigate an issue if the provider was providing services,
“under arrangements with health service bodies or family health service providers”.
The Public Services Ombudsman for Wales was established in 2005, and also has a responsibility for cross-border work. Last year, however, there was an investigation into a children’s hospice in Wales which revealed the ombudsman’s difficulty when investigating an organisation that provides services for and on behalf of, and receives funding for providing services to, patients in an area but which does not fall under the NHS jurisdiction in any way, and simply has a contractual service-level agreement. The report from the ombudsman in Wales states:
“The Ombudsman does not have jurisdiction for the hospice and was unable to investigate Mr & Mrs A’s concerns about the hospice’s actions”.
It goes on to say:
“The Ombudsman commented on his lack of jurisdiction for the hospice, and that there was no other independent body able to investigate Mr & Mrs A’s concerns about the hospice. This is profoundly unsatisfactory. The Ombudsman asked the Welsh Assembly Government to consider what action it could take to bring the hospice into his jurisdiction”.
Hospices are just one area of provision. They are well known, and it is very unusual for there to be complaints in hospices. However, they do occur, and it seems that those using the services of any independent provider in such a way should have the same right of redress as if they were in an NHS facility. The purpose of the amendment is to simply clarify that wherever a patient is being treated, if the NHS has any interest whatever—if this patient is being treated as part of an NHS provision —it should come under the remit of the ombudsman to investigate should the ombudsman feel it is warranted.
I looked back through the report of the Health Service Ombudsman for England and noted that there were 325 complaints last year that did not fall into the remit because they were for privately funded healthcare. This amendment does not ask that the ombudsman’s report should necessarily cover privately funded healthcare. In all honesty, however, if somebody is receiving healthcare, however it is funded, and if that is part of our licensed, inspected and regulated system in this country, where it goes seriously wrong and those bringing a complaint feel it has not been handled satisfactorily, my own view is that we have a national duty to be able to investigate. In doing so, we may find that our inspection processes have failed and that our regulatory processes are not functioning as they should.
That is the background to what might seem a very simple amendment. I really hope the Government will look kindly on it, because having discussed it and its wording in detail with the ombudsman in Wales, I know that it is certainly supported there. I also know that it is not opposed by the ombudsman in England.
Baroness Williams of Crosby
My Lords, the combination of the noble Baroness, Lady Finlay, and the noble Lords, Lord Walton of Detchant and Lord Wigley, is a pretty powerful triad by any standards. I express my support for what the noble Baroness said. We have seen some remarkable work done by the ombudsman for England—who I think is retiring from her post—particularly in respect of the care of elderly people. It has been very important in giving the public a sense that they have access to the highest levels when they have a complaint.
My only concern about this amendment is that it is very important indeed that as far as possible complaints are dealt with by health and well-being boards locally, because very often local knowledge is crucial in understanding why something has gone badly wrong. I always think it is significant that the ombudsman for England has been most effective when she has written reports that cover an area. When it comes to a personal complaint, very often it is the local level which is the appropriate one to deal with it. More than that, very much part of the education and understanding that a health and well-being board can bring to the whole issue of patient responses and patient care in the NHS is that people should at least see the local level as the first point of complaint. Having said that, it is obviously important that there is a final, as it were, court of appeal —I do not mean that in a legal sense of the word —and that is what the ombudsman ought to be. Clearly he or she should be independent of any particular interest in the health service, and I agree with the noble Baroness, Lady Finlay, that it should apply across the board to all providers whether private, voluntary or within the NHS structure.
With those few words, I support the amendment and think it is an important one. However, I emphasise that the starting point should always be, wherever possible, at the local level, and that the ombudsman should be seen as the last and final resort.
Baroness Wheeler
My Lords, I support this amendment from the noble Baroness, Lady Finlay, and I am grateful to her for explaining its context and background so clearly. The Parliamentary and Health Service Ombudsman is currently excluded from investigating complaints about the health service in Wales, so this amendment will ensure that the role of the Public Services Ombudsman for Wales, in investigating complaints against local health boards, NHS trusts, GP services and community health councils in Wales, is recognised and included in this Bill.
Ensuring that the Public Services Ombudsman for Wales has the legal right to share complaints reports with people he or she considers appropriate is a minor but important amendment and safeguard. I look forward to the Minister’s response.
Baroness Northover
My Lords, the amendment links to an important point of principle which we wholeheartedly support: that any patient or person who receives NHS-funded treatment or care, whether the treatment or care was provided by an NHS or private provider, should have recourse to the Health Service Ombudsman, should their complaint not be resolved through the NHS complaints arrangements at a local level. I assure my noble friend Lady Williams that that is the first stage.
I reassure noble Lords that these types of situation are already provided for in law. I wish to address directly what the noble Baroness, Lady Finlay, has raised, which is the situation in Wales. The Public Services Ombudsman for Wales recently called for his office to be given more power to independently investigate hospices. This follows complaints from the family of a teenage girl who died of leukaemia, about the way their concerns over her care were handled. The ombudsman pointed out that he had no power to investigate the family’s complaints against the hospice, although it received public funds, as it did not fall into the same category as a hospital or a council-run service.
In response to a report published by the Public Services Ombudsman for Wales in 2011, we understand the Welsh Government are looking into extending the ombudsman’s remit, to enable him to investigate complaints about hospices and hospice services, as well as extending the existing complaints advocacy arrangements to cover complaints about hospices.
I therefore hope that the noble Baroness will be reassured by what I have been able to say, in that regard.
Baroness Finlay of Llandaff
I seek a little clarification. If I have understood right, the noble Baroness said that any provider is covered by the Health Service Ombudsman in England, and any cross-border provision would also be covered by the Public Services Ombudsman for Wales, irrespective of who that provider is. Therefore, the only change needed in primary legislation is to the remit of the Public Services Ombudsman for Wales, to make sure that the remit for non-NHS providers is extended within Wales; but that otherwise all patients, wherever they are in England, wherever they have come from and irrespective of the provider, have recourse to the NHS ombudsman. I suppose the same should apply to Scotland as well, though there is not the same cross-border flow.
Baroness Northover
To clarify, I say that all care paid for by the NHS in England is covered—that is the crucial thing. My noble friend Lady Williams also mentioned other care that might be covered. Whoever provides the care, the crucial thing is who pays for the care. Even if there is a private provider or a voluntary provider as well as an NHS provider, if the NHS is funding that care it comes under the ombudsman’s responsibility.
Baroness Finlay of Llandaff
I do not want to detain the House much further, but I think this is something we need to discuss, and probably away from the Floor of the House. One of the issues about hospices is that their care is not fully funded by the NHS: it is only partly funded. Some providers receive grants to provide care because they are mostly charitably funded, partly NHS-subsidised and helped—but it is not that the NHS is paying for that complete package of care. That is where the confusion and the difficulty lie. It would be helpful if we could unpick this later and see whether we need to return on Report with a very small amendment, so that we can make quite sure that the system is watertight for all patients.
Baroness Northover
I am very happy to take up the noble Baroness’s suggestion that we discuss this further. I hope she will be reassured by what I can say about Wales. However, if there is a company, for example, that is providing care partly within the NHS funding, the ombudsman would not cover the rest of what they are doing. It could lead to confusion if that were the case. I mean the NHS-funded part of care. However, I am very happy that we should discuss this concern further. I hope that on that basis the noble Baroness will be willing to withdraw her amendment.
Baroness Finlay of Llandaff
I am grateful to the Minister for that reply. On the basis of that and of further discussions, I beg leave to withdraw the amendment.
Lord Clement-Jones
“Power to regulate pharmacists
(1) The Medicines Act 1968 is amended as follows.
(2) After section 58(6) there is inserted—
“(7) Subsection (2)(a) does not apply to the sale or supply of a medicinal product by a person lawfully conducting retail pharmacy business where the sale or supply is in accordance with a prescription and, having exercised all due diligence, believes on reasonable grounds that those requirements have been fulfilled.
(8) The activity under subsection (7) shall be regulated by the General Pharmaceutical Council.
(9) The General Pharmaceutical Council may take what steps it considers necessary under section 6(1) of The Pharmacy Order 2010 (S.I. 2010/231) in relation to a person who performs an activity referred to in subsection (7).”
(3) After section 64(5)(b) there is inserted—
“(6) Subsection (1) does not apply to the sale or supply of a medicinal product by a person lawfully conducting retail pharmacy business where the sale or supply is in accordance with a prescription and that person selling or supplying the product, having exercised all due diligence, believes on reasonable grounds that those requirements have been fulfilled.
(7) The activity under subsection (6) shall be regulated by the General Pharmaceutical Council.
(8) The General Pharmaceutical Council may take what steps it considers necessary under section 6(1) of The Pharmacy Order 2010 (S.I. 2010/231) in relation to a person who performs an activity referred to in subsection (6).”
(4) After section 85(5) there is inserted—
“(6) Subsection (1)(a) to (c) does not apply to the sale or supply of a medicinal product by a person lawfully conducting retail pharmacy business where the sale or supply is in accordance with a prescription and that person selling or supplying the product, having exercised all due diligence, believes on reasonable grounds that those requirements have been fulfilled.
(7) The activity under subsection (1) shall be regulated by the General Pharmaceutical Council.
(8) The General Pharmaceutical Council may take what steps it considers necessary under section 6(1) of The Pharmacy Order 2010 (SI 2010/231) in relation to a person who performs an activity referred to in subsection (6).”.”
Lord Clement-Jones
My Lords, the amendment has been tabled with the support and assistance of the Royal Pharmaceutical Society and has been designed as a new clause that amends the Medicines Act 1968. It is also designed to increase patient safety by removing barriers to a learning culture across the prescription dispensing process, and to remove the injustice that pharmacists alone, among healthcare professionals, face through criminalisation. Single dispensing errors should be treated in a proportionate way that retains the ability to prosecute those who have been negligent or who have committed a deliberate act but that does not penalise pharmacists who wish to declare a dispensing error in the interests of patient safety.
The role of pharmacy continues to be vital to communities throughout England. Pharmacists are at the forefront of providing advice to patients in an increasingly high-pressure environment. In 2010 nearly 927 million prescription items were dispensed in England. This is a 4.6 per cent rise on 2009 and a 67.9 per cent rise on 2000. Despite this, the error rate of dispensing remains minuscule.
What is the background to the current state of the law? Sections 58, 64 and 85 were inserted into the Medicines Act 1968 to regulate the quality of medicinal products being manufactured in pharmacies across the country. There were concerns that the production of these items, primarily creams and solutions that could be prepared to suit to individual needs of patients, required a legal standard of purity. Nowadays, the practice of creating preparations in community pharmacies is practically non-existent. However, these sections of the Medicines Act have been used in a way that they were not originally intended for: to prosecute a pharmacist who makes a single error while dispensing a medicinal product. The law as it stands makes a single error an automatic criminal offence that is punishable by up to two years in prison.
Why should we support this amendment? Currently, pharmacists are expected to declare dispensing errors in the knowledge that they will face prosecution if they do not do so. Clearly, any person who is either wilfully negligent or deliberately acts in a way to harm a person must face prosecution under criminal laws. This amendment would allow that to continue but would also enable a proportionate response for those who make an error. Minor errors should be learnt of and dealt with through improved practice rather than through discouraging healthcare professionals from feeling able to report errors. Decriminalising dispensing errors will be beneficial to patients and the pharmacy profession through the creation of a culture of learning.
The current system goes against the spirit of openness in which pharmacists and other healthcare professionals should be allowed to work, so as to enhance patient safety. This amendment, or something similar, is the right way in which to tackle this important issue. The passage of the current Bill presents an opportunity to tackle this, and one that should not be missed. I beg to move.
Baroness Finlay of Llandaff
My Lords, I support the amendment. It raises a very important issue, namely what happens when an error occurs. At the moment, there is an enormous disincentive for the pharmacist to do what one would say is the right thing, which is immediately to contact the patient, or their family, carer or nursing home, to try to put an immediate stop to the further use of that medication and to do all they can to correct the error. In the law as it is written at the moment there is an in-built incentive to a pharmacist to attempt a cover-up, to weigh up whether the error is a major or minor one or one which they might just get away with, or perhaps even to make a phone call that fudges the issue and tries to cover up the fact that they have made a dispensing error, and to reclaim the medication in another way.
In addition to the importance of a spirit of openness, there is an actual safety issue here. We know from looking at medicine and nursing that when you make it easier for people to admit immediately that they have made an error and to do all they can to correct that error, they are much more likely to handle things in an open and honest way and to learn from it. Certainly I say to all my junior staff, “I know that you will make mistakes. The only thing that I will hold against you for the whole of your career is if you do not immediately notify whoever is the consultant covering you at the time. Mistakes will happen, but you must let people know immediately and take every step to correct them”. I do not see why we should be treating pharmacists in law in a way that works against that type of principle and which is inappropriately punitive.
Baroness Pitkeathley
My Lords, I, too, support this amendment. I remind the Committee of my role as chair of the Council for Healthcare Regulatory Excellence, which has an oversight role with the General Pharmaceutical Council. We believe that single dispensing errors should be treated in a proportionate way that still prosecutes those who have been negligent or have committed a deliberate act but does not penalise pharmacists who want to declare a dispensing error in the interests of patient safety—and I very much agree with the noble Baroness, Lady Finlay, that this is about patient safety.
In the interests of patient safety and public protection, we of course expect the regulator to be able to co-operate with other agencies if it is aware of a pattern of repeated single-dispensing errors that might reflect wilful and deliberate acts with the intention of harming patients. In those circumstances, there would of course still be recourse to criminal prosecution. With these exceptions, I very much support this amendment.
Baroness Jolly
My Lords, I, too, support this amendment. I have some personal experience that I can bring to bear, and it was not until I was reading through the amendments a week or so in advance that I put these things together. Some years ago my mother became really ill with a very strange set of symptoms and no one could work out what the problem was. Eventually her GP came round. Like many people of that age, she takes several drugs. He sat down on her bed, took out her box of drugs from her bedside table drawer and went through them. There was one drug that she should not have been taking at all. It was completely wrong and should have been taken sparingly, not three times a day. My mother lives in a small town and the GP knows the pharmacist well, so he high-tailed down to him straightaway to find out what exactly the issue was. In this case, the dispensing pharmacist was unaware that there was a mistake.
It was really quite interesting to see how it had all happened. The medicines were all stored on a shelf in alphabetical order by drug name, not brand name. The drug in question was adjacent to my mother’s normal drug, and both were generics produced by the same pharmaceutical company. The narrow little rectangular boxes looked the same, so the pharmacist had picked the wrong one off the shelf, popped it into the bag with the rest and it had gone home. My mother, whose sight is not what it was, had taken them all out of their boxes and popped them all into her pill box. The deal was done, it was really very easy, and the whole thing was completely indistinguishable.
Fortunately my mother recovered once it was sorted out. It was a regular, well-known, high-street pharmacy, and it was absolutely excellent. It wrote a letter immediately saying that it was going to instigate a clinical governance review. It then wrote again to tell us exactly what it had done, including changing its methods of storage and ensuring that someone double-checked all drugs before they were bagged-up. This had been a mistake, but there is absolutely no doubt that it was completely negligent, and also avoidable. However, it was not criminal. There was no malicious intent. It could have been terrible, but mercifully it was not. The employer spoke to the pharmacist who admitted exactly what she had done once they had worked it all out. The pharmacy took proportionate discipline, and that is what we as a family wanted. We wanted something to happen, for it be arranged that the mistake could not happen to anyone again and for anything that happened to be professional and proportionate. That is what happened. As a result, I totally support the amendment that my noble friend has tabled with the support of the Royal Pharmaceutical Society.
Baroness Masham of Ilton
My Lords, I shall add a few words because a pharmacist contacted me. Pharmacists are being encouraged to take on more and more, and the drugs are extremely difficult. Some drugs are the same but have different names. It is extremely difficult for patients too, and as they often go to pharmacies for advice it is really very important there this is openness and honesty when a mistake is made. However, I would not like this amendment to open a door for more mistakes to be made.
Baroness Thornton
My Lords, I support the amendment. I would have put my name to it, had I had the opportunity. However, in Committee those on the Liberal Democrat Benches have tended to block up their own amendments and have not sought support from across the House, which is a great pity.
My experience in dealing with the many drugs that my mother takes is that in fact pharmacists are often those who spot the doctor’s mistake. Our local pharmacists do an excellent job. My wider interest in this Bill and in pharmacists is that they play the proper, important role they need to play at local level in the health and well-being boards and with the planning at a local level of both preventive medicine and their jobs at dispensing.
This is also about a level playing field in regulation, which is very important. This Bill offers probably the only opportunity that there will be in the next few years to put right this wrong. I hope, therefore, that the Minister will support this amendment—and if not this one, then one like it at a later stage in the Bill—and rectify this error.
Earl Howe
My Lords, the amendment relates to an important issue: the concerns among pharmacists about the risk of prosecution where they normally follow good professional practice but make an inadvertent dispensing error. I am very grateful to my noble friend for raising this issue. I warmly welcome the opportunity to discuss it and have been listening carefully to the points made.
We are on the record as saying that we intend to take legislative action to address the issue. We want to see a learning culture that encourages the reporting of dispensing errors so that any helpful lessons can be learnt. The noble Baroness, Lady Finlay, was quite right about that. However, we need to make any changes in ways that continue to protect patients under the law. The noble Baroness, Lady Pitkeathley, drew our attention to that aspect.
Section 64 of the Medicines Act 1968 provides that,
“No person shall, to the prejudice of the purchaser, sell any medicinal product which is not of the nature or quality demanded by the purchaser”.
This is a strict liability offence, and contrary to what my noble friend stated it does not relate only to pharmacists. Various other healthcare professionals could be affected, as well as other parties who are not subject to professional regulation. Guidance issued to government prosecutors in 2010 has been helpful, but we recognise that it does not remove the underlying problem.
My noble friend is to be commended for raising this issue, but the terms of the proposed amendment present a number of problems that we would need to work through before an appropriate drafting solution could be found. It does not cover other healthcare professionals affected by the current legislation, and in relation to pharmacy it covers only a proportion of pharmacy activity—retail pharmacy—and only where a pharmacist is responding to a prescription. The amendment does not address the different arrangements for the professional regulation of pharmacists that apply in Northern Ireland. There is also some ambiguity as to how it would be determined in practice: that is, whether a pharmacist would be subject to the revised provisions in this amendment. The amendment extends beyond Section 64 and would also change Section 58, on prescription-only medicines, and Section 85, on the labelling of packages and containers of medicinal products, of the Medicines Act 1968.
The legislative ramifications of the issue are therefore quite complex, and I am sure my noble friend will appreciate that we need to get this right. However, let me assure him that we have listened very carefully to the debate and the representations made to us, and that we will continue to work with all relevant parties to find a solution. I also wish to reiterate our commitment to bring forward a suitable legislative change at the earliest possible opportunity. I hope that with those assurances my noble friend will feel able to withdraw his amendment.
Lord Clement-Jones
My Lords, I thank the Minister for his response. I also thank all noble Lords and noble Baronesses who have spoken in the debate. I should at the outset have declared an interest as chairman of the council of the School of Pharmacy. My noble friend the Minister has pointed out, quite rightly, that the amendment as drafted only covers the pharmacy profession. He has also pointed out a point picked up by almost all the speakers in the debate, namely that the essence of the provision is the ability to admit and correct error, which is vital in these circumstances.
I welcome very much the forensic way in which the Minister responded to the amendment. I did not think that it was the kind of amendment that would cause Ministers to throw their hands up in the air and say, “Wonderful! We will put this in the Bill”. It needs refining. One of the key issues is that it currently only relates to retail pharmacy. Obviously, it should cover hospital pharmacy as well. There are also issues about Sections 58 and 85 in Northern Ireland.
The Minister has assured us that he has listened very carefully and that he intends to legislate at the earliest possible opportunity. That phrase was very carefully chosen, I am sure, as my noble friend always chooses his words extremely carefully. If the Minister would indicate that, if humanly possible, this will be inserted either on Report or at Third Reading—as the Bill provides a very good opportunity to include reform—I think that the pharmacy profession and others which, as he said, are subject to this kind of disproportionate criminal liability will be extremely happy. I am sure that they would be very grateful to the noble Lord if he could make sure that that was the case. The Minister is not indicating that he is going to say anything further—but maybe he will.
Lord Clement-Jones
My Lords, the Minister chooses an even more felicitous phrase. I thank him, and I look forward to further progress during the course of this Bill. In the mean time, I beg leave to withdraw the amendment.
Baroness Emerton
“Power to regulate health care support workers in England
(1) The Nursing and Midwifery Order 2001 (S.I. 2002/253) shall be amended to provide that all health care support workers in England shall be registered by the Nursing and Midwifery Council and regulated in accordance with the terms of that order.
(2) For the purposes of subsection (1), a health care support worker shall be an individual whose work is routinely delegated to them by a registered nurse or midwife or has a qualification in health and social care at level one (or higher) of the Qualifications and Credit Framework, in England.”
Baroness Emerton
My Lords, I shall speak to this amendment in my name on the power to regulate healthcare support workers, which is supported by the Royal College of Nursing. I begin by declaring an interest: I am a retired nurse, nurse tutor and manager; former chair of the nursing, midwifery and health visiting regulating body, the UKCC; and past chair of an NHS trust.
I start by looking back to the Bill’s beginning and its aim to improve the quality of patient care at every level of the NHS and to integrate social care, providing holistic care with clearly defined care pathways. The three constituents, as we know, to improving care are improving clinical outcomes, the safety of the patient and a good patient experience. The current situation is that, almost daily, a report is made of essential care being below an acceptable standard, or of poor hygiene, poor hydration, poor nutrition and poor personal care, with staff not even washing patients, making them comfortable or listening to their immediate anxieties. Where healthcare support workers move into areas of work beyond their competence, questions have to be asked about the safety of patients. For example, if a healthcare support worker is left to give drugs without supervision, this is an unsafe practice and a danger to the patient. The responsible person is the registered nurse, who is accountable for delegating any area of practice to the healthcare support worker.
However, the growth in numbers of healthcare support workers dates back a long way and those numbers continue to rise. Over time, there has been a variation of titles, roles and functions, and there have been calls for regulation by the Royal College of Nursing since 1999, when Project 2000 was introduced and the enrolled nurse training was phased out. The reason given for phasing out this training, and the case for change in moving nursing to higher education, was that the rapid developments in medicine and technology led to a need for registered nurses to have a more detailed knowledge to equip them to be fit to the level of practice required—that is, to have a degree qualification. Holistic care of patients demands a correlation of knowledge and practical application that meets the total physical, mental and spiritual needs of patients, their relatives and friends.
Degree courses contain 50 per cent theory and 50 per cent supervised practice. Enrolled nurses had played a very important part in the delivery of care, but they were being abused and misused by being placed in charge of acute wards at night, and taking on roles that their training had not equipped them for. We face the same situation today, where healthcare support workers are abused and misused by being expected to take on roles they have not been prepared for, and are left unsupervised.
This raises three important issues. First, there is the role of the registered nurse, who dedicates and supervises the healthcare support worker. The problem is that if there are not enough registered nurses to supervise, then they become unsupervised. We know from the recent inquiry into Mid Staffs that in order to change the finance situation there, the ratio of registered nurses to untrained nurses was reversed from 60 per cent trained to 40 per cent untrained, to 40 per cent trained and 60 per cent untrained, leaving the registered nurse with a much larger task in supervision.
The role parameters within which the healthcare support worker works, and the preparation they have had, need to be looked at. Who sets the code of conduct—the employer, or the profession of nursing, midwifery and social care? Recent inquiries into failing healthcare systems have pointed to a range of causes, from trust boards and their executive and non-executive members, to the bedside and the delivery of care—that is, registered nurses and unregistered healthcare support workers.
The most recent inquiry was at Mid Staffordshire, which I have already mentioned. Not only was an inquiry held to identify the failings; there was a further inquiry, on the demand of the public, to discover the root causes. Events this year at Winterbourne View, a unit for those with learning disabilities, resulted in a number of healthcare support workers being arrested, and a registered nurse went before the NMC for a hearing on fitness to practise. Inquiries in the 1960s at Ely, Farleigh, Whittingham, Normansfield, and more recently at Stoke Mandeville and Maidstone and Tunbridge Wells trusts, all demonstrated failing systems of care delivery, the involvement of all levels of care staff, and an overall lack of leadership from the board to the bed in maintaining delivery of high-quality care.
How can Her Majesty’s Government allow the NHS to continue a system that has been proven to fail? The public and patients deserve—and have the right to expect—high quality and safe delivery of care. The Royal College of Nursing has been pressing the Government since 1999 to address this issue, and it continues to do so, recognising the complexity of the issue and that there have been some attempts to rectify an unsatisfactory situation. The chairman of the Royal College of Nursing healthcare support workers group sat in on the debate on front-line nursing on 1 December in this Chamber, and pleaded with me afterwards to ensure that regulation of support workers would be taken on by Her Majesty’s Government.
The way in which the assistant nursing practitioner level 4 healthcare support worker has been introduced under Agenda for Change has identified and clearly set out the role parameters within which a healthcare support worker can work under the supervision of a registered practitioner, having reached a recognised but not regulated standard. However, this accounts for only a small number of the total healthcare support workers employed in the hospital and community setting. Further work could easily lead to mandatory training and registration by opening the second part of the Nursing and Midwifery Council register for this clearly identified group. That has been suggested in this House several times.
Baroness Masham of Ilton
My Lords, I have put my name to Amendment 338, as I strongly agree with the Royal College of Nursing that mandatory regulation for all healthcare support workers, in order to ensure standardised training and therefore a suitable skilled workforce, is the best way forward.
As currently proposed, the health Bill provides for a voluntary register, which the RCN believes to be insufficient. A voluntary register will not protect patients from inadequate healthcare workers, who will be impossible to regulate. I am concerned that nurses who have been struck off the register can then take jobs as unregistered healthcare assistants. One only has to look at the dangers patients have been put in when patients died of insulin poisoning at Stepping Hill Hospital near Manchester and nurses were found to be stealing drugs, at the terrible suffering of patients at the Mid Staffordshire foundation trust and at the appalling treatment of residents at the Winterbourne View care home near Bristol. The latest reports from the Audit Commission, the Patients Association and the CQC highlight further problems with care of the frail and elderly. Is there not enough evidence to make the Government realise that something positive has to be done to make matters safer and better for patients?
I agree with the Royal College of Nursing that it is vital to quality patient services that anyone who is responsible for delivering care should be regulated and accountable for their actions. I received a letter recently from someone living in Malta, who said that in the state hospitals they have colour-coded uniforms for all the staff. Care assistants are clearly distinguishable in maroon and white. We have to get our house in order for the sake of patients, who seem to be becoming more and more vulnerable, rather than safer.
Thames Tunnel
(12 years, 10 months ago)
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Lord Berkeley
To ask Her Majesty’s Government what discussions they have had with Thames Water about the increase in lorry traffic in London caused by the construction of the Thames Tideway Tunnel.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Taylor of Holbeach)
My Lords, we have regular contacts with Thames Water on all aspects of the tunnel proposal, including its strategic approach to transport. Details on lorry movements are a matter for the project sponsor, Thames Water, and are included in its current public consultation. Final proposals will be in its planning application, expected in autumn 2012. The planning process ensures that environmental factors such as transport impacts will be considered.
Lord Berkeley
I am grateful to the Minister for that reply. He is certainly right that, in its second consultation, Thames Water has reduced the volumes of lorry traffic by half by agreeing to transport the spoil by river, which is about half the total. However, is he aware that in Network Rail’s construction of Blackfriars station most of the materials, not just the spoil but other construction materials as well, are coming in by river? I am sure the Minister will agree that that is very commendable, given the traffic jams around there. What will he do to try to persuade Thames Water to do the same for that very much bigger project, including bringing in tunnel linings, concrete and things like that by river?
Lord Taylor of Holbeach
My Lords, the noble Lord has great experience in tunnelling and engineering, which I respect, and I share his view that the river is a great London resource that should be optimised and used for such occasions. It is important to emphasise, however, that at the moment the project is undergoing a consultative phase. There are guidelines on the use of rail and river for the movement of waste soil, for example, which are already laid down. I hope that any members of the public who have an interest in this matter will make their views known during the consultation period.
Baroness Gardner of Parkes
My Lords, is the Minister able to tell us whether he and Thames Water are aware of the great concern of local residents, many of whom I know, about the constant use of their streets in the area? Will there be limited hours of work? Will they have any respite during this work, which I must say is very important for the future of London?
Lord Taylor of Holbeach
My noble friend is right to emphasise that there are local neighbourhood implications in any project of this size. As I have emphasised, the project is at the moment in consultation and it is very important that people who feel they may be affected make their point of view clear. Thames Water has estimated that there will be around 4.6 million tonnes of excavated material generated in the lifespan of the tunnel’s construction. The management of that lies with the principal contractor, who will have to abide by the planning conditions laid down when planning permission is granted.
Lord Brooke of Alverthorpe
My Lords, while I recognise that the planning process is still under way, could the Minister, who is very popular in the House, not agree with the view of my noble friend Lord Berkeley that, in addition to spoil, efforts should be made by the contractors to use the river more than they are doing at the moment? Could he not just simply drop a little Christmas note to them to that effect?
Lord Taylor of Holbeach
I am of course grateful to add to the House’s Christmas cheer, and this is a great opportunity to do so. I think I made it pretty clear that I saw the river as a great resource and that it would indeed make sense to use it for the shipment of materials, but in the end the process really is that Thames Water has to make the application. I have given a pretty strong steer as to what we expect of Thames Water and, indeed, of the contractors.
Lord Bradshaw
Does the Minister agree that, in view of the large number of accidents to cyclists in London, including, unfortunately, a lot more deaths this year, he should ensure during the process that a proper risk assessment is conducted on the means of both supplying material and taking it away?
Lord Taylor of Holbeach
The use of roads is very important, as is the way that goods are shipped. That is a hazard that needs to be taken into account before planning permission can be given.
Lord Teverson
My Lords, given the importance of bringing in materials, would the Government perhaps ask the construction authorities and Thames Water to look at the use of Cornish china clay spoils materials? They could be brought to London so that we could have the benefit here, while removing some of the spoils from Cornwall.
Lord Taylor of Holbeach
My Lords, that is an unusual suggestion, which even in my wildest moments I had not anticipated being asked. I am sure that anything that makes my noble friend feel more at home must be a jolly good idea.
Lord Berkeley
My Lords, I am grateful to the Minister for his reply and to the noble Lord, Lord Teverson, for suggesting the use of china clay waste—I live in Cornwall and it is dear to my heart. I wonder if I could press the Minister a little further, though. Half the materials may be transported by road, which would mean around 250 trucks a day. The noble Lord, Lord Bradshaw, has also mentioned the risk of accidents to cyclists and so on. Surely it would be a good idea for a planning condition to be put on this development saying that perhaps 90 per cent of all materials must come by river or rail.
Lord Taylor of Holbeach
As I have tried to emphasise, those terms ought to be set in the planning decision. It is not for us at this stage of the process. I have tried to make it clear that there will be consultation, planning and then the award of the contract.
Public Disorder: Uninsured Claimants
(12 years, 10 months ago)
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Lord Clement-Jones
To ask Her Majesty’s Government what action they are taking to ensure that police authorities speedily and fairly settle claims outstanding under the Riot (Damages) Act 1886, particularly for uninsured claimants.
The Minister of State, Home Office (Lord Henley)
My Lords, the Government are committed to dealing with all claims where property was damaged in the August disturbances. We are working closely with the affected police authorities and the insurance industry to ensure that the processes that they have in place allow claims to be made as quickly as possible.
Lord Clement-Jones
My Lords, thousands of households and businesses are still waiting for compensation from police authorities after all this time. Some £3,500 has been paid out, of the £200 million or so worth of claims, and many valid business interruption claims are being contested. Does the Minister agree, especially in the light of the Prime Minister’s assurances on 11 August, that this is quite unacceptable? Will the Home Office issue firm guidance to police authorities to speed up the processing of claims and stop them hiding behind technicalities—for instance, that in some areas the disturbances did not constitute a riot for the purposes of the Act?
Lord Henley
My Lords, I accept what my noble friend says, that things have not been as speedy as they should have been. We estimate that some 5,000 claims have been received, totalling in excess of £250 million, but we must remember that a lot of those claims will include claims for loss that are not covered by the Act. We have to ensure that we do not pay out for things that the Government are not responsible for. We will try to deal with—as the noble Lord implied in his original Question—the uninsured claimants first of all, but obviously we want to deal with the insured claimants as well. That is why I stress that we are working with both the police authorities and the insurance companies to ensure that that is the case.
Baroness Sherlock
My Lords, I am grateful to hear that the Minister has offered a figure. I put down a Written Question to ask him how many payments had been made under the Riot (Damages) Act, and the Answer was three sentences long. It told me that applications for compensation were made directly to police authorities, and:
“There is no requirement for them to provide this information to the Home Office. Therefore, the precise figures of payments that have already been made to claimants will be held locally by each police authority”.—[Official Report, 8/12/11; col. WA198.]
In other words, go and ask them. Does the Minister accept that the Government in fact bear responsibility for sorting this problem out? If so, will he be willing to report to the House what progress is being made?
Lord Henley
My Lords, I gave an estimate of the number of claims but I cannot give an absolute figure. That is why I stress that it is only an estimate that 5,000 have been made. One has to accept that a lot of those claims will not be valid; in certain areas there have been many more claims than one would expect. I make no further comment on that.
I will certainly keep the House fully informed about how we are getting on with these matters. We want to ensure that all claims are settled as quickly and fairly as possible, and that when we are dealing with public money it is handed out in the appropriate manner.
Lord Imbert
My Lords, does the Minister agree that the Riot (Damages) Act, which was passed in 1886 for a different society from the one that we have today, is anachronistic, outdated and unfair? The police service has had its budget cut by 20 per cent this year. How can it afford up to £200 million in compensation? The Act has the connotation of blame. If we are looking for blame for the riots, should we look at the economic policies of successive Governments in failing to provide employment?
May I draw a picture of a single mother, living on the 13th floor of a block of council flats with three teenage children? She starts work at 5 am every morning as a cleaner, does another job in the afternoon and comes home to hungry and cold children, yet we blame her for not looking after them. They have never, in their whole lives, had a new pair of trainers but now have an opportunity. As far as the money is concerned—
Lord Imbert
What about the £200 million or so that the Government will spend on appointing political commissars in the police service next year?
Lord Henley
My Lords, the noble Lord is making another point. I accept his remark that the Riot (Damages) Act 1886 is possibly past its sell-by date. For example, it does not cover motor vehicles, which had not been invented at that time. However, the Government have made it clear that we stand ready to provide financial support to police authorities and we do not see any of them losing out as a result of these claims.
Lord Cotter
My Lords, it is four months since the riots occurred and very strong assurances were given by the Government that businesses would be helped. The official report and other reports indicate that very few businesses have received the help that they expected to be given—and that we expected them to be given. I asked in September whether the Government would monitor the situation. Will the Minister give tangible figures and update us on the situation?
Lord Henley
My Lords, the Government have been monitoring the situation. My honourable friend the Minister for Policing has met representatives from the West Midlands police force, the Greater London Authority, the Met and the Greater Manchester police force. He has met the insurance companies, Kit Malthouse and a vast number of people. We are doing these things as quickly as possible. We extended the deadline by which people could make claims by 42 days. We have the whole subject under review, as I made clear in response to another question, and we will respond to those reviews in due course.
Lord Hughes of Woodside
My Lords, the Minister has been asked for figures three times. He keeps saying that the situation is under review and is being monitored. It is not monitoring that is required—it is action. Will he do something about it?
Lord Henley
My Lords, I totally reject that. I have made it clear that we estimate that there have been something of the order of 5,000 claims. We estimate that those claims total some £200 million to £250 million. That does not mean that all those claims are valid. Before we pay out public money, we want to make sure that they are valid and we will do that properly. We want to make sure that the uninsured are paid first and then deal with those who were insured, making sure that the insurance companies are repaid. That is why we are talking to the ABI.
Lord Elystan-Morgan
My Lords, I give the fullest support to the Minister’s indication that the Government regard the Act as having passed its sell-by date. Taking the point of the noble Lord, Lord Imbert, may I ask the Government to look very carefully into the whole philosophy of whether it is right, in the 21st century, that claims should be made against police authorities, as opposed to a more general claim, perhaps against the Government? I also make the point that the definition of “persons” in the Act is deeply flawed, as are the definitions of “property”. The Act should also be brought up to date to allow claims in respect of motor vehicles.
Lord Henley
The noble Lord is right to quote me as saying that the Act is beyond its sell-by date and needs to be reviewed. That is why it is being reviewed. I do not believe that the police forces will lose out. That is why we have made it clear that the Home Office is ready to support them. We will make sure that that is the case where appropriate. However, the important thing is that we look at the result of those reviews of the Act and then make the appropriate decisions.
Energy: Winter Fuel Payment
(12 years, 10 months ago)
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Lord Oakeshott of Seagrove Bay
To ask Her Majesty’s Government whether they will make the winter fuel payment subject to basic and higher rate tax and limited to United Kingdom residents.
The Parliamentary Under-Secretary of State, Department for Work and Pensions (Lord Freud)
My Lords, the winter fuel payment is a simple to administer payment that ensures that older people can turn up their heating in the winter months without worrying about the cost. We have no plans to tax the payment. We are obliged under European law to continue paying the winter fuel payment to people who qualify for a payment in Great Britain and then move to another European Economic Area country or Switzerland.
Lord Oakeshott of Seagrove Bay
I thank the noble Lord for that reply. I am rather nervous about this Question because 674 noble Lords are entitled to receive the winter fuel payment. That is 81 per cent of us. Would I be right in guessing that the Minister, who is 61, is, like me, one of the half a million top-rate taxpayers who benefit from this farcical tax-free bung? Why cannot winter fuel payments at least be taxed like the old age pension? That would raise £220 million a year to help people in real need in our country.
Lord Freud
Yes, my Lords, like the other 81 per cent in the Chamber I have to declare an interest in this matter, although I shall keep my tax arrangements between me and HMRC. One of the issues around taxation is that it is not straightforward to tax the winter fuel payment as it stands because it is a household payment whereas tax is done on an individual basis. It could be done but it is rather complicated.
Lord Faulkner of Worcester
Can the Minister confirm that there is nothing whatever to stop the noble Lord, Lord Oakeshott, giving away the money if he does not want it?
Lord Freud
My Lords, as the noble Lord knows, all money is fungible. This is a matter of psychology rather than funding. If people find it convenient to look at money as being in separate packets and give money in a particular packet to a particular charity, that is a very excellent thing to happen, particularly if it encourages charitable giving more generally.
Lord Palmer
My Lords, is it fair that this tax will be the same whether you live on the south coast of England or the north coast of Scotland?
Lord Freud
My Lords, I think it depends on what side of the country you live. I understand that the Mull of Kintyre is rather warmer than East Anglia, so I think that what the noble Lord suggests would be a pretty complicated thing to do.
Baroness Hayman
Would the noble Lord be kind enough to clarify his original Answer on overseas payments? Am I to believe that my Trinidadian born neighbour, who complained to me recently that a family member of hers who had returned to the West Indies was in receipt of the winter fuel payment, was incorrect?
Lord Freud
Yes, you can keep your winter fuel payment only if you go to another European country, so if it is being obtained by someone in Trinidad, the noble Baroness might make a call to Crimestoppers or someone.
Lord Stoneham of Droxford
Does not my noble friend agree that it would be fairer to tax the winter fuel allowance and use the money to ease the burden of his housing benefit reforms?
Lord Freud
My Lords, clearly, one can look at how one treats this, but essentially it is a simple payment. It is one of the universal payments to pensioners along with the state pension, additional pension and passported benefits such as NHS prescriptions. That is how it is designed. It would be rather complicated and expensive to tax it.
Lord Kinnock
My Lords, the Minister appears to be very sympathetic to the idea of changing the system, and I am not taking into account the season of the year. Will he reconsider the possibility of a levy on higher-rate taxpayers? After all, what is good for King Wenceslas should be good enough for 81 per cent of us.
Lord Freud
My Lords, I am grateful to be told where my sympathies are but the reality is that about 500,000 people would be affected and the saving would be about £40 million a year. It would be expensive and difficult to do and, therefore, on its own, it would not be a good idea. That does not suggest where my sympathies are at all.
Lord Campbell-Savours
Would not this proposal actually penalise low-income group, basic-rate taxpayers?
Lord Freud
I am sorry—I missed the point of that question. Will the noble Lord repeat it?
Lord Campbell-Savours
Would not the proposal penalise low-income group, basic-rate, elderly taxpayers?
Lord Freud
No, I do not think so. This is just a universal benefit that is paid on a simple basis to households that need it. Older people above 80 receive rather more than those below that age.
Lord McKenzie of Luton
My Lords, for the winter fuel allowance to be put to good effect, you have to have a home to heat. Sadly, we know that homelessness is on the increase in our country. The Minister is always keen to look at funding within fixed envelopes, but on what does he base his philosophy for supporting the retention of tax-free winter fuel allowances for higher-rate taxpayers, rather than providing more support for the homeless?
Lord Freud
My Lords, I hope that I have made it quite clear that when you have a universal benefit you pay it out on a simplified basis. Because it is a household payment, it would be enormously complicated to change that. Clearly, it could be done. There has been a small increase in homelessness but it remains at historically low levels. We are watching the figures very closely and it is a priority for this Government that we do not see an excessive rise in homelessness.
Immigration
(12 years, 10 months ago)
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Lord Taverne
To ask Her Majesty’s Government whether they will reconsider their curbs on immigration in the light of their effect on competitiveness and economic growth.
The Minister of State, Home Office (Lord Henley)
My Lords, we will not. We are clear that the United Kingdom remains open for business. Our changes mean that we will continue to welcome the brightest and best who have the most to contribute to this country. At the same time, we are putting an end to the unlimited migration of recent years that has created unacceptable pressures on our public services.
Lord Taverne
My Lords, I acknowledge that there is a need for some control, but the Government seem to have indicated that they will reduce the number of non-EU migrants who wish to settle here after they have completed their studies. Will the Government take note of a powerful letter, written about a month ago to the Financial Times, by a number of very eminent academics who came here as non-EU immigrants and who would not have come if they had been told at the start that they would not be allowed to stay?
Lord Henley
My Lords, we will obviously listen to those academics but I have to say that the university sector as a whole is not complaining about what is happening. What we did was introduce a cap of just over 20,000 people, following the advice of the Migration Advisory Committee, on the number of skilled workers who were coming in. So far, in the first six months of this year, some 6,000 of those places were taken up—there is obviously a lot of slack in the system. There is no danger that any skilled workers are being denied the opportunity to come in.
Lord Hunt of Kings Heath
My Lords, on the question raised by the noble Lord, Lord Taverne, can we come back to the issue of universities and overseas students? The Minister has always maintained that the Government’s restrictions were aimed at bogus colleges. If we accept that, will he acknowledge that universities are now reporting that the policy is having an impact? First-class universities are being affected by the cap and first-class students are being turned away. Surely that part of the policy ought to be reviewed.
Lord Henley
My Lords, obviously, we will keep all these matters under review as is appropriate, but the noble Lord will also accept that it is quite right that we should attack the bogus colleges, which his party took no trouble to attack over the years. That is why there was a dramatic rise in the number of people coming here allegedly to learn English or some other thing, who went to colleges where no courses were going on and virtually no one enrolled other than to get round immigration rules.
Baroness Hollis of Heigham
My Lords, does the noble Lord accept, as my noble friend said, that about 60 per cent of the non-EU migrants to this country are students and that, of those doing a proper degree course at the sort of university that my noble friend talked about, 98 per cent are compliant with immigration controls and return to their country—98 per cent? So we are losing both the opportunity of their fees coming into the university sector and the possibility of helping DfID export their skills back to their home country.
Lord Henley
My Lords, I do not accept what the noble Baroness says, but if she can provide proper evidence for that, we will certainly look at it in due course. We are not aware that universities are complaining; we are aware that a certain number of private colleges— the bogus colleges to which I referred earlier—are complaining. That is why we will want to deal with that. In the main, I think it is quite right that we should tighten up on people coming to university and that is why, for example, there are rules about family members coming in which, again, the party opposite failed to introduce. Those have been tightened up for undergraduates but not for postgraduates.
Lord Hannay of Chiswick
My Lords, has any consideration been given, or is consideration being given, to taking students out of the immigration system? Now that the business of bogus academies has been dealt with rather effectively—I welcome that—would it not be sensible to recognise that the university sector is the most rapidly growing invisible export that this country has? It is simply not good enough to say that universities are not complaining. There may be some vestige of a lack of complaint from some body or other, but I would suggest that, if the noble Lord goes round the universities carefully, he will not find that that is the case.
Lord Henley
My Lords, I accept what the noble Lord has to say about universities being a very valuable export—we acknowledge that—but there should also be controls on students coming in. One area where we provided stricter controls is on undergraduate students bringing in families, which was seen as a form of abuse. We were quite right to tighten up on that and to keep more general matters under review, and that is what we will continue to do.
Lord Cormack
My Lords, of course my noble friend is right to maintain his attack on bogus colleges, but the point made by the noble Lord, Lord Hannay, deserves real consideration. At a recent dinner attended by the Minister for Universities and Science, Mr Willetts, at which there were eight or nine historians each from a different university, they were unanimous that this is having a deterrent and potentially disastrous effect. All we need is a little more sensitivity in the interpretation of the rules, or to put students in a separate category.
Lord Henley
My Lords, I acknowledge what my noble friend says. I am fully aware of these problems, having been the spokesman on higher education in this House, but there have been abuses. I referred to the fact of family members coming in with undergraduates. We have tightened up on that. I remember, as can many other noble Lords, that back in the early 1980s, when we first brought in fees for overseas students, we thought that we would lose out dramatically. We did not; we saw an increase in the number of overseas students coming in. I am sure that if we get this right and listen appropriately, we will continue to see a great many overseas students coming to our world-class universities.
Lord Tomlinson
My Lords, why does not the Minister agree with the sensible report that came from the House of Commons Home Affairs Committee? That raised the very issue raised by the noble Lord, Lord Hannay, that students should not be treated as migrants. We are sending out a message to all overseas students who would otherwise have come to this country—some in the public sector, some in the private sector—that they are a troublesome group who need to be controlled.
Lord Henley
The very simple reason is that some—particularly in the private sector, which is why I referred to private sector colleges—were involved in an abuse. If there is an abuse of the system, we have a duty to tackle it, and that is what we have done.
Baroness Hamwee
My Lords, the Minister may be aware of a recent report from the London Chamber of Commerce and Industry entitled Migration Reform: Caps Don’t Fit. It concludes:
“Our research shows that one of the main reasons companies recruit from beyond the EU is their desire to explore and invest in new, overseas markets”.
It also says that, if the UK’s economic recovery is to be export led, this is a particularly important consideration. Does the Minister acknowledge that?
Lord Henley
My Lords, I think that I have followed what my noble friend has said. Obviously, we recognise the importance of universities—as I said in response to the question from the noble Lord, Lord Hannay, they are a major part of our exports. However, I also see what my noble friend is getting at. I have not seen the research that she refers to, which talks about the need to bring in workers from outside the EU. However, the point that I was making in my first supplementary answer was that we have a cap on the number of skilled workers, and we have not got anywhere near that cap in the first six months of this year.
Open-Ended Investment Companies (Amendment) Regulations 2011
(12 years, 10 months ago)
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Lord Sassoon
That the draft regulations laid before the House on 21 November be approved.
Relevant document: 34th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 12 December.
Elected Local Policing Bodies (Complaints and Misconduct) Regulations 2011
(12 years, 10 months ago)
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Lord Henley
That the draft regulations laid before the House on 14, 21 and 25 November be approved.
Relevant documents: 33rd, 34th and 35th Reports from the Joint Committee on Statutory Instruments, considered in Grand Committee on 14 December.
Health and Social Care Bill
(12 years, 10 months ago)
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Lord Patel
My Lords, I shall speak to Amendments 338 and 340, to which I have added my name in support of the noble Baroness, Lady Emerton. For those of your Lordships not familiar with the amendments, they are to do with the regulation of healthcare support workers. As many noble Lords will know, these workers were introduced into the health service just over a decade ago, and they are untrained, unqualified and unregulated. There are 300,000-plus of them in the health service, with many more working in nursing homes.
Any debate about the regulation of healthcare support workers will need to take account of current workforce trends. In April 2011, the Royal College of Nursing reported that NHS trusts were increasingly looking to reassess nursing roles in order to deliver short-term reductions in the wage bill without a full clinical assessment of the impact of this action on patients’ safety and the quality of patient care. The RCN reported a notable change in the skill mix of teams, with an increased reliance on unregulated healthcare support workers.
The other workforce in nursing is trained and regulated. It is made up of registered general nurses and registered midwives, and we also used to have state-enrolled nurses. The view could be taken that it is the responsibility of employers to make sure that their workforce is adequately trained and has the skills to deliver the care, but many recent reports with which noble Lords are familiar highlight poor-quality nursing care. Some of them have appeared in the press and include the failings at Stafford Hospital, where hundreds died unnecessarily, and at Winterbourne View care home, where staff were filmed abusing vulnerable patients, as well as a series of critical reports, most recently from the Care Quality Commission, which has condemned NHS care for the elderly. Some, including regulatory authorities and particularly the Council for Healthcare Regulatory Excellence, favour the employer-led model of training of healthcare support workers or of those who are not trained yet provide nursing care. This model was introduced in Scotland. The important thing is that it has never been evaluated. That needs to be done first. Secondly, and more importantly, the ratio of trained nurses to untrained support workers is quite different in Scotland. Anyone who promotes this model needs to look at that first.
I return to some of the issues. The noble Baroness, Lady Emerton, made all the points in an excellent introductory speech. It is a pity that we did not have a continuation of the debate so that we could have heard her comments and responded to them. However, the Bill proposes that the regulators of healthcare professionals should have the ability to establish voluntary registers for currently unregulated workers and professionals who are, or have been, engaged in work that supports or otherwise relates to work engaged in by members of the profession that the body regulates.
In proposing voluntary registration, the Government have accepted that unregulated workers supporting healthcare professionals represent a risk to public protection that needs to be addressed. If they did not, why would they even consider voluntary registration? It must be because they think it is a risk. Voluntary registration for healthcare support workers carrying out tasks delegated by nurses or midwives is not sufficient to protect the public.
The other argument used is that it is the trained nurses—the registered nurses—who supervise these support workers who are not trained or regulated. How can a nurse, or two nurses, in a ward of 15 or 16 intensive care patients, supervise three or four unregulated, untrained workers, who then carry out nursing tasks? The noble Baroness, Lady Emerton, cited a real case of such a worker measuring blood pressure who did not understand why she was doing it. If one is going to have people who look after ill, frail people, one needs to make sure that they are trained properly, that their training is assessed, and that they are regulated. I understand that this cannot be done overnight, particularly as we now have nearly 400,000 such people working in the health service, but there ought to be some mission to do this in a relatively short time, maybe even in two or three years. To go after voluntary registration is not the answer.
There is currently no consistent UK-wide training standard for healthcare support workers. Courses can range from an hour-long induction up to NVQ level 3. Assistant practitioners are experienced health support workers. They are different, and they may receive training up to NHS-level band 4, which is equivalent to the level of the previous state-enrolled nurses, but, again, there is no consistency across the UK. Clause 231 gives no indication that a voluntary system will be underpinned by consistent UK-wide standards of training that will assure the public that employers who employ health support workers have the knowledge and skills that they need to practise safely. I strongly support this amendment. Whenever the noble Baroness wishes to call a vote, I will join her.
Lord MacKenzie of Culkein
My Lords, I have long been an advocate in the cause of statutory regulation and registration of healthcare support workers. When one has been around the health service for a long time, it is not unusual to see the wheels turn full circle. We went from support staff to auxiliary nurses, to nursing assistants, to state-enrolled assistant nurses. Then the word “assistant” was dropped and we had state-enrolled nurses. Then, as the noble Baroness, Lady Emerton, said earlier, the roles of the state-enrolled nurse and the registered nurse became very confused and the titles became interchangeable, which should never have happened. Then we moved to Project 2000 and the move from hospital-based training to higher education, and we are now moving from diploma to an all-degree profession, which is right and proper.
In 1999, my union, the Confederation of Health Service Employees, supported Project 2000, but we foresaw a gap that would be left by the ending of enrolled nurse training, which would lead to there being many more auxiliaries or healthcare assistants, as they became. We called for support workers to have about a year’s training to an agreed national standard and statutory regulation by the United Kingdom Central Council for Nursing, Midwifery and Health Visiting, as the regulatory body was called. We did not get that. The idea was opposed because it was argued that it would replicate the then existing confusion between enrolled nurses and registered nurses.
Where are we now? We have an explosion in the number of support staff who have taken the place of enrolled nurses; there are far more than any of us ever envisaged at the time. As the noble Lord, Lord Patel, said, more than 300,000 support workers are now employed in various roles with a number of job titles. One figure that I saw in research produced by UNISON said that there were more than 120 different job titles for healthcare support workers, which is astonishing.
We have a situation in which the patients do not know who is caring for them. It is not just a question of uniform, although that is important. Support staff carry out many duties that were previously the role of regulated nurses. Many of those roles, such as nasal gastric tubes, cannulation, catheterisation and blood pressure, are intimate and invasive, as we have heard. Almost uncannily, in view of what the noble Baroness, Lady Emerton, spoke about, I spent some time in hospital a couple of years ago when I had my blood pressure taken sitting in a chair beside the bed and my diastolic pressure was down to 40. I said to the healthcare assistant who took that blood pressure, “I had better get back to bed and I think you’d better call a senior nurse and doctor”. She said, “No, you are going down for an MRCP scan; just sit where you are”. Fortunately, being a nurse, I knew what I was talking about and I was able to get a doctor and a nurse, and before very long I had massive amounts of fluid pumped into my veins to restore my blood pressure. Had I not understood the situation, that could have resulted in a serious condition. It is quite frightening. You can be trained to take blood pressure, but not trained in the skills of observation and in understanding the readings that are being taken.
With the drive to reduce costs, there is, and will be, more substitution of registered nurses by healthcare workers. In effect we have a new second level, but that new second level is not regulated and not registered and the staff are not professionally accountable for their practice. That is not good enough. That is not in the interests of patients’ safety or protection. Nor will assured voluntary registration deal with the matter. Voluntary registers already exist for other professions and there are very real concerns about their inadequacies. They have no teeth, and staff can leave a voluntary register, particularly if there is any investigation for possible discipline.
The registration and regulation of healthcare support workers is supported by the Nursing and Midwifery Council, by the Royal College of Nursing, and by UNISON, although in fairness I should say that UNISON would prefer registration by the Health Professions Council. Registration is supported by the Queen’s Nursing Institute, by the health committee in another place and, most importantly, by healthcare assistants themselves.
In the Nursing Times of 6 December, I was interested to see in a small article about the Mid Staffordshire NHS Foundation Trust public inquiry that Robert Francis QC spoke of 20 issues that he would consider when drawing up his recommendations, which are due to be published next year, and the regulation and training of healthcare assistants was to be first on the list. I hope that that does not mean that they will carry the can for all the problems in Mid Staffordshire because that is certainly not the case; they go to a much higher level than that. Counsel to the inquiry, Tom Kark QC, said that the lack of regulation of healthcare assistants appeared to be surprising and dangerous.
There is inexorable pressure for this matter to be dealt with—and dealt with soon. It is not something that can be put on the long finger. If there is a strong recommendation from the Mid Staffordshire inquiry, we cannot leave it to be dealt with in a future Bill because we will not be getting another health service Bill for some time. This Bill gives us the opportunity to do this and to get it right. I strongly support the amendment by the noble Baroness, Lady Emerton. Healthcare assistants who have work delegated to them by nurses should be properly regulated and registered.
Baroness Pitkeathley
My Lords, I am very sorry to take issue with the opinions of noble Lords with whom I usually agree most heartily. I remind the Committee of my role as chair of the Council for Healthcare Regulatory Excellence. I should make it clear that I am in no way taking issue with noble Lords' concerns about the practice of healthcare assistants, nor with the emphasis—given particularly by the noble Baroness—on the need for proper training. The only thing I take issue with is whether statutory regulation is the correct solution to the problem.
I am not aware of any body of evidence that demonstrates that the risks of future harm presented by the practice of healthcare assistants could not be successfully managed by the existing processes and governance systems if they were applied effectively. That is the point. Healthcare assistants are already supervised by other staff who have the professional responsibility to supervise them. As we have heard, they almost always work in supervised settings, with supervision usually being the responsibility of staff who are statutorily regulated. Statutorily regulated professionals have a responsibility to ensure that the staff whom they manage offer safe care, conduct themselves professionally and are delegated only tasks that are within their technical competence. For example, the Nursing and Midwifery Council’s code states:
“You must establish that anyone you delegate to is able to carry out your instructions … You must confirm that the outcome of any delegated task meets the required standards … You must make sure that everyone you are responsible for is supervised and supported”.
In other words, we already have in place a governance system to ensure that healthcare assistants work safely and with proper delegation, supervision and support from a statutorily regulated professional. Employers are required to ensure safe systems of work, which will include providing support in delegating and supervising effectively.
Creating a list of people is not in itself an effective safeguard. Effective regulatory conditions are often much closer to home. For example, in an environment that is poorly managed and distant from scrutiny, poor standards of care can become the norm, with staff being drawn into collusion with poor care. We have seen many examples of this recently, particularly of the process of collusion, with people working in a poorly managed environment unable to resist the downward spiral of standards. The most effective way to invert the spiral is by employers properly managing the specific environment, not by establishing another structure.
Winterbourne View was referred to several times in this short debate. Perhaps it is worth reminding noble Lords that registered professionals were involved in delivering poor care there. Statutory regulation did not prevent it. We should always bear that in mind. Regulation is not necessarily the answer. Further, we cannot ignore the fact that statutory regulation would be expensive and cumbersome for a large, low-paid workforce with a high annual turnover. It is not proportionate to the risk, which can be managed by effective training, delegation and supervision.
The recent announcement by the Secretary of State about improving standards of training and the potential to develop a voluntary register of healthcare assistants is encouraging. I also welcome the Nursing and Midwifery Council's announcement that it will fully engage with the project that the Secretary of State announced, and with any further developments around assured voluntary registration for this particularly valuable group in the healthcare workforce. It is important that we make sure that we value this group, who are of such importance in the front line of the nursing and patient care environment.
Lord Warner
My Lords, I am speaking because my name is also on this amendment. We need to reflect on several aspects relating to the context of this issue. I do not think that there is much doubt that we have a problem of some significance, or any doubt that the problem has been growing over a long time. I also do not think that it is an easy fix simply to jump to statutory regulation. I went through the process when the whole issue of regulating social workers arose, and that proved extremely difficult to introduce. I do not doubt that we will end up with statutory regulation of some kind, but we might have to go through some processes before we get to that point.
I do not want to duplicate the history that other noble Lords have put forward most expertly. I came into this story as a very young civil servant at the end of the 1960s when the Salmon committee was set up. Some noble Lords may be old enough to remember the Salmon committee—I was assistant secretary to the committee. This was in the days when civil servants could not hold a job for long and were moved on at a tremendous rate. While doing this work we saw how things worked at the ward level. In those good old days of the 1960s and early 1970s there was a ward sister, state-registered staff nurses, nursing auxiliaries and state-enrolled nurses. We also had a set of arrangements in which oversight of cleaning was largely the duty of the ward sister. Furthermore, bank working was not that common.
What has happened since those “good old days” is that hospitals have become used more intensively. Bank working has meant that there is a higher flow of different people moving through the wards, and the profession, with good reason, has wanted to make itself a graduate profession. The context has changed a lot, so the dynamics of those wards has changed quite a lot.
Alongside that we have been growing another industry in the community: in nursing homes, residential care homes and—not quite as fast as one would like, within the health service—a district nursing service. One of the problems in both these areas, whether acute hospitals or the community, is that with the demand of patients for services, and the demography which has gone alongside that shift in time, the qualified and registered nursing profession has inevitably had to look for help from sub-professional groups to help carry the load. In the community there is not a strong management structure to oversee this, so to some extent it is difficult for district nurses to oversee any work done by unqualified personnel. Such oversight might be the theory but in practice it will often be difficult to achieve.
Community services are burgeoning, the hospital service has changed, and we have a problem of a growing need for more people who are not qualified and registered nurses to work alongside such nurses to provide some of the care. We are looking to the Government to produce a comprehensive review that examines the situation that we face now rather than the situation we faced 10 or 15 years ago and which was very different.
I suspect that we will have to move by interim steps towards statutory registration, and perhaps voluntary registration is an interim step. However, I am not convinced that we have a comprehensive set of answers to a continuing and serious problem. The Government need to think about how they will deal with this very serious problem.
Lord Alderdice
My Lords, I also have some scepticism about assured voluntary registration, but I will come back to that when we debate the subsequent amendment. I have some sympathy with the noble Baroness’s amendment. I had not intended to speak on this amendment until I heard a number of noble Lords speak, and I take a slightly different lesson from the history of the past number of years in the development of the nursing profession.
Like the noble Lord, Lord Warner, I remember sisters, state registered nurses, state enrolled nurses, nursing auxiliaries and so on, but one of the key things was that all those professionals described themselves as nurses. Indeed, I very well remember as a young doctor that nurses would not say, “I looked after that person”, or “I was on the ward when that patient came in before”, but said, “I nursed that patient”. There was a quality of compassion and relationship that was critical to the profession. I think that not only nursing as a profession, but many other professions went down the wrong road when they took the view that the future was in tighter registration and a graduate profession because that was not fundamentally the need. I heard my right honourable friend in another place being asked questions in the past few days about poor care of patients with dementia, and he made a very important point. He said that you can find two wards beside each other in a hospital with nurses with exactly the same level of training and qualifications but in one of those wards the patients are cared for with compassion and in the other ward they are not. When we move to healthcare support workers, it seems to me that whatever we move to, we do not move to a title that expresses compassion and care for the patients who are being nursed.
My gratitude to the noble Baroness is not for the specific terms of her amendment, and I do not think that they were the burden of her bringing the amendment forward. It is that we engage in a serious, proper debate about this issue, not just for nurses, but for other professions. There are some for whom I believe that statutory registration is the proper way ahead, but there are others for whom it does not seem to be the case that always moving to graduate professions with training and registration is the sole and most important way of dealing with these questions. It is quite clear that making nurses graduates and having registered nurses only has simply opened a door that has had to be filled with other, less qualified and, it has to be said, less expensive employees. Now we have a problem with them not measuring up to the professional standards of compassion that all of those—or at least, almost all of those—who aspired to be nurses at whatever level in the past aspired to in the best sense.
I welcome the fact that the noble Baroness has tabled this amendment; I am not quite sure it is the precise solution, but I hope we find ways to come back to the serious ongoing debate that the noble Lord, Lord Warner, has pointed to because there is a crisis in this area. I remember saying this two, three, four years ago in your Lordships' House and noble Lords who are now on the Benches on the other side thought it was simply a party-political attack. It was not—it was a genuine sense of concern that things were deteriorating. They have continued to do so, and it will not be dealt with solely by registration, training and academic qualifications because a quality of care and compassion and a culture of compassion are necessary. That is not to take away from the question of assured voluntary registration, which I wish to explore in a further amendment.
Lord Hunt of Kings Heath
My Lords, I, too, pay tribute to the noble Baroness, Lady Emerton, for her perseverance and determination in this very important area. Rather like the noble Lord, Lord Alderdice, I am clear that the role of healthcare assistants has to be seen in the context of a much more general debate about nursing care, including the compassion that he talked so eloquently about.
As the noble Baroness said to us rather earlier this afternoon, we had an excellent debate on nursing on 1 December, and we are presented with something of a paradox: on the one hand, we should not ignore the huge advances in the nursing profession over the past 20 years. There has been the move to a graduate profession and nurses have taken on much greater responsibility, including for complex care and specialist care, and I think that, overall, the public have welcomed that increased responsibility. At the same time, there has been real and mounting concern about basic standards of care and issues to do with hygiene, feeding of patients, nutrition, dignity and even face-to-face contact—the kind of compassion that the noble Lord, Lord Alderdice, has just spoken about. We have seen the reports from unannounced visits of various bodies. Recently, the CQC has undertaken important visits to many of our hospitals. There seems to be real evidence and concern about a falling of standards of basic care.
The reasons for that are not clear. It is possible that nurse training is now too focused on academic performance rather than on practical nurse training. It is also at least possible that the drive for specialist nurses and modern matrons has taken from the ward the many experienced nurses who, in retrospect, might be better placed in leading their ward as ward manager or senior sister. What is not in doubt is the need for serious thinking about how we can enhance the overall quality in standards of basic care that nurses give.
That brings us to the role of healthcare assistants. Again, in our debate on 1 December, the noble Earl, Lord Howe, in responding, referred to the concerns that had been expressed about nursing in the acute sector in particular. He said he felt that that,
“related to inappropriate delegation by nurses to healthcare”,
assistants. He continued:
“Wherever there is a multidisciplinary team of regulated professionals and unregulated healthcare workers, appropriate delegation and supervision is vitally important. This is an area ripe for formal review”.
He also said that the Government welcomed,
“the NMC’s plans to update its guidance on delegation”,
and that they have,
“asked Skills for Health and Skills for Care to accelerate production of a code of conduct”.—[Official Report, 1/12/11; col. 419.]
I am sure that those actions by the Government are very generally welcomed. The question before us is whether they are sufficient. From what the noble Baroness, Lady Emerton, has said, it is clear that she does not think that they are. Powerful support for that argument has been received from the Nursing and Midwifery Council, which argues that a system of regulation for healthcare support workers should contain provisions for consistent UK-wide standards of training and practice that would assure the public and employers that they have the knowledge and skills to practice safely. It further suggests a mandatory register to ensure that workers who have been struck off the nursing and midwifery register are not re-employed in a healthcare support role, which has been the subject of some concerns. It is also notable that the House of Commons Health Committee supports mandatory statutory regulation of healthcare assistants, which it believes is the only approach that would maximise public protection.
However, we have heard from my noble friend Lady Pitkeathley, chair of the Council for Healthcare Regulatory Excellence, who has put a different view. It will be interesting to hear the response of the noble Baroness, Lady Emerton, on why she thinks that a voluntary register for healthcare assistants is the way forward. I should like to ask her whether she would support NHS bodies which require healthcare assistants to be voluntarily registered as a condition of employment. If that were the case, what safeguards does she think could be put in place as regards a worker who was dismissed because of poor conduct towards a patient? How could we ensure that in those circumstances that person could not then work in another part of the care sector? That seems to me to go to the heart of the issue of whether a voluntary register could work.
I have no doubt that NHS employers could be encouraged to make it mandatory but the problem with that is that too many people could slip through the net. I would also ask the noble Baroness to respond to my noble friend Lord Warner. I share his view that, clearly, we are crying out for a fundamental review of these issues around nursing quality and care, compassion, and dignity of care being given to patients, and that relationship to healthcare assistants. If the Government are not prepared to move on this and on the point about only going as far as a voluntary register, can they at least give some comfort and assurance that they recognise that this matter needs close attention?
I am not a great believer in royal commissions—I think it was Harold Wilson who said that they could be established in a minute but take years—but there is a strong case for a fundamental review of the nursing profession, embracing healthcare assistants. Would the Government be prepared to give us some comfort on this?
Baroness Northover
My Lords, these amendments seek to extend compulsory statutory regulation to healthcare support workers. I thank noble Lords for the amendments because they raise important issues about the ways in which we assure the quality and safety of those who work in support of our regulated health professionals. The Government are publishing a fact sheet on this issue that will contain further details about their proposals, which I hope will be helpful to noble Lords.
There are more than 200,000 nursing assistants and approximately a further 1 million people working in similar jobs in adult social care in England alone. The majority of support workers give the highest quality of care. However, a minority let patients down. This is rightly a cause for concern, although as a former historian I have to say that I do not fully recognise the notion of everything having been perfect in earlier periods but everything breaking down at this point. One needs only to look at what has been said from Florence Nightingale onwards about what happened during the interwar periods, during times of war and so on. This has always been more varied than perhaps noble Lords are allowing for. Nevertheless, it is extremely important that we try to drive up quality and ensure that quality holds good right across the health service and social care. It is right that there is discussion and debate about the best way of ensuring that high standards of care are delivered at all times.
As the noble Baroness, Lady Pitkeathley, pointed out, there are already existing tiers of regulation that protect patients and service users. Professionals struck off by their regulator or sacked by an employer who pose a risk to vulnerable adults or children should be referred to the Independent Safeguarding Authority, which has been very clear that it expects this to happen. In the same way, employers should make referrals about individuals from unregulated groups where they pose a risk of harm to vulnerable adults or children. Providers and employers also play a key role in ensuring safe, high quality care that patients and service users can be confident in, being both responsible and accountable for the staff they employ. Under the registration requirements of the Care Quality Commission, providers must take steps to ensure that at all times there are sufficient numbers of suitably qualified, skilled and experienced persons employed for the purpose of carrying on any regulated activity.
An individual being on a list does not alter this and would not remove employers’ responsibility to undertake a range of checks on the suitability of any persons who they appoint, including qualifications, relevant registrations, employment history and reference checks to ensure that an individual is competent for a specific role. Equally, appropriate delegation and supervision is a necessity within teams made up of both regulated and unregulated professionals and workers. Guidance by the Nursing and Midwifery Council is being updated so that nursing staff know how to delegate appropriately and safely.
We are not ruling out compulsory statutory regulation for healthcare support workers, but our view is that the case has not yet been made for imposing further compulsory statutory regulation, given the tiers of existing regulation and the duties on regulated professionals. There is no solid evidence that demonstrates that healthcare support workers and adult social care workers should be subject to compulsory statutory regulation. Research by King’s College London concluded that little evidence could be deployed to show that regulation of healthcare support workers would reduce the risk to the public, although it was clear that some healthcare workers were undertaking roles that had traditionally been done by nurses. The point is that quality is not always what is delivered. Therefore, we have to try to tackle that concern and not simply assume that regulation will deal with it. As the noble Baroness, Lady Pitkeathley, mentioned, there are regulated professions which are in some instances letting us down. We must focus on the real problem and figure out ways of tackling it.
The Government’s view is that high standards for healthcare support workers and other professional occupational groups can be assured without imposing compulsory statutory regulation. That is why, in the wider context of supporting providers, we are creating through the Bill a system of external quality assurance for voluntary registers. To pick up the point made by the noble Lord, Lord MacKenzie, there are various examples of voluntary registration for groups of professionals. We are proposing a quality-assured voluntary approach, looking at how those registers are set up and operated and what training is offered and so on. A quality-assured voluntary register will set standards for training, conduct, competence and ethics that all registrants must meet.
Lord Hunt of Kings Heath
My Lords, if the Government are putting so much faith in the quality-assured voluntary register, surely the evidence from King’s College would show that that was not necessary. They cannot have it both ways. Either regulation, and what comes with it, provides advantages or it does not.
Baroness Northover
Regulation and training are often put as two words in one sentence. Regulation may indeed include training; assured voluntary registers may also include training. The noble Baroness, Lady Emerton, talked about that. Perhaps I may come on to it, because it is potentially relevant here.
I am particularly grateful to the noble Baroness for her contribution to this debate, not only today but throughout her time in the House of Lords. We agree that common standards of training are needed for those working in both health and social care, as well as more role-specific training, and that this will lead to a more capable and flexible group of support workers. As we seek to integrate health and social care more effectively, this area deserves a lot of scrutiny.
We expect work on the standards to begin by April 2012 in terms of training, and for them to be agreed ahead of the establishment of voluntary registers for healthcare support workers and adult social care workers, which could be operational from 2013. This will allow unregulated workers to demonstrate that they meet a set of minimum standards for training and are committed to a code of conduct.
Lord Hunt of Kings Heath
My Lords, I still do not understand this. If it is so important that the voluntary registers are established, for the reasons that the Minister has given, why on earth not go the full hog and make registration compulsory? If the Government do not think that it is important, they would not be pursuing the voluntary register approach. However, by taking that approach, they will leave lots of people outside the net.
Baroness Northover
As the noble Baroness, Lady Pitkeathley, and others have indicated, one has to be proportionate about this and not think that simply going down the route of regulation is going to crack it. Nevertheless, training and making sure that people are well prepared for the work that they are doing is clearly of great importance. We would expect a voluntary register, quality assured in the way that I have described, to provide a way for employers to assure what they are offering in terms of staff. There will therefore be greater take-up. Those who are on the quality-assured register will find themselves more employable, which will move things forward. Meanwhile, if, as we continue to debate this, voluntary registration does not seem sufficient and regulation seems the route to go down, the Government do not rule that out. However, it is extremely important to focus on the end point, which is to try to drive up quality, and not simply be deflected by thinking that this would crack it.
I assure noble Lords that we will keep this issue under constant review. We are well aware of people’s concerns and that standards need to be driven up in a much more even way across the board. As I say, we are developing the education and training which I hope will go some way towards this.
Lord Patel
I wish to pick up on one point. Can the noble Baroness reassure us on what it is she will keep under constant review? I understood her to say that the Government will rely on employers to ensure that these support workers have some kind of training. There will be no national training standards and, once the employers are satisfied that these people have some kind of training, they will be entitled to go on a voluntary register. As I understand it, the logical thing here is first to establish a national standard of training; then to ensure that those national standards are implemented; and then to allow people to register. If they register, the next step would be regulation. The first step is not immediate regulation but national standards of training and assessment that those standards are being met, before people can go through any kind of registration. What is the noble Baroness agreeing to keep under review?
Baroness Northover
I should perhaps explain that more precisely. This issue will be constantly under review so that if there are concerns in this area they will be flagged up. The Government will of course continually consider how best to respond and make sure that standards are of the quality that we need. The noble Lord is right: national standards of training are indeed the start. Then people are admitted to a register and so on. A voluntary-assured register would demand that kind of national level of standards in training. I hope that in that regard I can at least reassure the noble Lord.
Lord Warner
One question has puzzled me more and more as the noble Baroness has progressed. My noble friend Lady Pitkeathley laid great stress on the position of the regulated nurses and the fact that they will have to ensure that people working in the healthcare assistant type of roles under their supervision do not take on roles that they are not competent to fulfil. Going back to my description of the way the NHS works in reality, particularly in acute hospitals, there is a constant flow of different people on these wards—regulated and registered staff, agency or bank staff, are there particularly in the evenings, for unsocial hours and at weekends. We have heard a lot about employers. I am still puzzled about how the statutory regulated nurses satisfy themselves about the competence of the healthcare assistants working under their direction. They seem to be the people most exposed—at least theoretically—to cop it from their regulatory body if they have not made extensive inquiries about the competence of these healthcare assistants. How does the noble Baroness square that particular circle if we do not have much knowledge of the training of these people and they have not even registered on a voluntary basis?
Baroness Northover
The noble Lord will be familiar with being on wards at changeover time and when there is a pooling of information about who is on the ward and what the problems are. Issues are flagged up and one team passes information on to the next.
Lord Warner
I have seen changeovers at weekends, when visiting relatives. It is not a pretty sight.
Baroness Northover
I have seen many, many changeovers. The proposal is being brought forward so that registered, regulated nurses have a better idea of when and how to delegate, and that is extremely important for the reasons that the noble Lord has just indicated. As I have indicated, the training and national standards of healthcare workers, to which the noble Lord, Lord Patel, referred, are also important—as is taking that forward so that the registered nurses are aware of the kind of training that those healthcare workers have had. I want to pick up on the case that the noble Baroness, Lady Emerton, mentioned about the healthcare worker who was taking a patient’s blood pressure but did not know what the reading meant. Surely, it was for the person to whom that was reported to take action on the significance of that. That information was to be passed on to somebody else to read, understand and interpret.
Lord MacKenzie of Culkein
But if that healthcare assistant does not have the basic training or an understanding of the reading that she or he has just taken, they may not see the importance of reporting it to another nurse.
Baroness Northover
I am not suggesting that they would. What I am suggesting is that the registered nurse might go and check the chart.
Baroness Emerton
My Lords, perhaps I could be helpful at this stage. I am grateful to noble Lords who have contributed to this debate. A large number of issues have been brought forward; I shall start with the title “nurse”. As noble Lords have mentioned, a person who is nursed—and feels that they have been nursed—experiences care, compassion, respect and dignity. There has been a lot of discussion among the public, and indeed in this House, about registered nurses becoming graduates and whether they will be too posh to wash, to put it colloquially. To me, a nurse who is a graduate would be only too grateful to be able to attend to the basic needs of patients, because that is part of holistic care. When you do various intimate things for patients, you learn a great deal about their condition.
The point that has been raised about the nurse is very important. We talk about support workers but we cannot talk about support nurses, because the term “nurse” is completely left for the statutory requirement of a regulated nurse. We are looking for a support worker who is able to do tasks which they understand, with the skills of the graduate nurse—because by 2013, we will be producing all-graduate nurses—within holistic care. That is the point I was trying to make this morning: it is the holistic care we are looking for in the delivery of care. However, it is not only holistic care in the acute sector; we are looking at the holistic care which is integrated with social care, because we are now looking at patients going into the community. Indeed, people working in the acute sector need to understand that the patients they are discharging are going into the community, which is a different scene and which may require not only a nurse but social care support. Therefore, somewhere in our education we need to bring together a basic core of understanding healthcare, nursing care and social care.
The point that the noble Lord, Lord Warner, made is very important. We need to conduct this review. On the other hand, the research evidence shows us that as regards highly qualified registered staff, the higher the proportion, the less likely it is that patients will have a longer stay in hospital. They will have a better clinical outcome. I hope that the Government are not going to ignore that research. If possible, we should carry out a truly safe cost-benefit analysis into increasing the number of trained staff, seeing where they are needed, rather than having a higher proportion of support workers.
The Royal College of Nursing has been resolute in putting forward the regulation of healthcare support workers because it feels that that is the way to ensure that they are answerable to a registered nurse. We talk about employers but I am not sure who the employers are going to be—social workers, managers or the nursing profession. This whole issue needs to be taken away and looked at, and perhaps we could return to it. I do not know whether these comments are helpful but I feel strongly about this issue, as noble Lords may have gathered. I pass it back to the Minister.
Baroness Northover
I hear what the noble Baroness says. She is extremely well informed, as ever, and I hope that she will continue to engage as we take this forward, as she has done up to now. However, at this point I hope that she will withdraw her amendment.
Baroness Emerton
My Lords, I am prepared to withdraw but we will probably come back to this on Report. I beg leave to withdraw the amendment.
Baroness Thornton
“Power to regulate clinical physiologists in England
(1) Section 60 of the Health Act 1999 (regulation of health care professions) is amended as follows.
(2) In subsection (1) after paragraph (b) insert—
“(ba) regulating the clinical physiology profession in England,”.(3) In that section, after paragraph (bb) insert—
“(bc) regulating clinical physiologists in England who appear to require regulation in pursuance of this section,”.”
Baroness Thornton
My Lords, I shall speak also to Amendments 338ZB, 338F and 339ZB. We return to a regulatory issue. Amendments 338ZA and 339ZB are new clauses relating to the power to regulate clinical physiologists in England. Amendment 338ZB is a new clause requiring clinical physiologists to be registered by the Health Professions Council. Amendment 338F says that the Health Professions Council, in exercising its functions, shall co-operate with the regulation of clinical physiology in England and with the provision, supervision or management of services of people engaging in clinical physiology in England. The noble Baroness, Lady Finlay, has an amendment in this group and we support what she is proposing.
I am sure that other noble Lords have received the helpful briefing note from the Registration Council for Clinical Physiologists, which highlights that the Government’s current approach—a preference for voluntary registration, as the Minister outlined in the previous debate—has been applied to clinical physiologists, despite a recommendation from the Health Professions Council in 2004 for statutory regulation. The RCCP has a substantial amount of evidence suggesting that, in the case of clinical physiologists, voluntary self-regulation is not as effective as statutory regulation.
In the Command Paper Enabling Excellence: Autonomy and Accountability for Health and Social Care Staff, the Government stated that statutory regulation would be considered for those professions where a compelling patient safety case could be made and be supported by an evidence-based cost-benefit risk analysis. Ten months later, though, no such risk assessment has been undertaken, and the RCCP continues to believe that clinical physiologists should be statutorily regulated.
The disciplines that are covered by clinical physiology are audiology, cardiology, gastrointestinal physiology, neurophysiology and respiratory physiology. Clinical physiologists work directly with patients, performing sensitive procedures such as assessments of pacemakers, testing lung function and assessing and diagnosing hearing loss. Many of the procedures performed by clinical physiologists in the UK are performed by statutorily regulated professionals in much of western Europe and by clinicians in the United States.
A body that I have mentioned, the Registration Council for Clinical Physiologists, maintains a voluntary register of clinical physiologists in the UK and Northern Ireland. It has more than 5,000 registrants across a number of different disciplines in clinical physiology. These professionals play an integral part in the process of diagnosis and treatment, undertaking procedures such as ECGs, which pose significant risks to patients. That, really, is the point here.
Baroness Masham of Ilton
My Lords, I should just like to add my support for this amendment. Clinical physiologists, who perform some very invasive procedures, feel that they need statutory regulation. They have had a voluntary scheme, which they say is not adequate.
Lord Walton of Detchant
My Lords, I should like to ask the Minister to clarify a point of some importance. Many years ago, in the early stages of my neurological career, I was involved in interpreting electroence- phalograms. Subsequently, I was heavily involved in the pursuit of electromyography—a technique for measuring the electrical activity of the muscles in health and disease—and in measuring nerve conduction velocity. I also looked at evoked nerve potentials. A group of individuals grew up in that field originally; it was called the EEG Society. Then there was the Electrophysiological Technologists’ Association—the EPTA—of which I was briefly president. Eventually they came together to form the association of clinical neurophysiologists.
The Health Professions Council regulates 15 health professions, including biomedical scientists and clinical scientists. My understanding is that clinical neurophysiologists, like other clinical physiologists, are not included in or embraced by the term “clinical scientist”. However, I wish to know whether they are covered by the Health Professions Council. If they are not, it is important that they should be regulated. For that reason, if they are not included at present under the terms of the Health Professions Council, I strongly support this amendment.
Lord Rea
My Lords, in supporting this amendment I declare an interest. Not only my former patients but I, as a patient, have received skilled help from clinical physiologists. The pacing unit at St Mary’s Hospital, which is run by clinical physiologists, has monitored my pacemaker since it was fitted four and a half years ago. My life has literally been in their hands while they periodically adjust my heartbeat to get the best setting.
The Registration Council for Clinical Physiologists, which has been described, has been trying to persuade the Department of Health to include the profession in the mandatory regulatory framework for health professionals for the best part of a decade. The Health Professions Council recommended in 2004 that clinical physiologists should be included in its regulatory regime, as well as other clinical scientists whose work involves a potential impact on patient safety. The then Secretary of State accepted this recommendation but still no action was taken and has since not been taken despite frequent reminders from me, among others. On my count, 30 parliamentary Questions have been tabled on this issue. It has also been raised in your Lordships' House in a debate on an order to do with the Health Professions Council. I hope that this amendment will serve to speed up the process by focusing the Government’s attention on an overdue step that we feel needs to be taken.
Baroness Finlay of Llandaff
My Lords, this group of amendments is very interesting as it reveals the enormous number of people involved in healthcare who literally hold the lives of others in their hands and are not subject to any statutory regulation but are voluntarily registered. I have an amendment in this group which seeks to establish,
“a statutory register of Physicians’ Assistants (Anaesthesia)”
and of other healthcare professionals. I will speak about that in a moment in relation to clinical perfusion scientists.
Physicians’ assistants in anaesthesia already have a voluntary register in place and they applied to the Health Professions Council for registration and had their application accepted. However, that all went on hold with the emergence of this Bill. The Royal College of Anaesthetists does not allow physicians’ assistants in anaesthesia to become associates as they are not registered with the General Medical Council, but it permits them to have affiliate membership. However, the college does not have a regulatory role as such; it is tied up with education and standards.
Physicians’ assistants in anaesthesia urgently need statutory regulation, given the range of invasive, and potentially life-threatening, procedures that they perform and the knowledge and autonomy of practice required in the roles that they carry out. These practitioners perform tasks that, in the UK, were previously carried out only by doctors. They cannot get indemnity insurance for their practice or apply for prescribing rights, even though they sometimes have to be able to respond in a matter of seconds, not minutes, if something goes catastrophically wrong with an anaesthetised patient while the anaesthetist is outside the theatre for whatever reason. They are on a voluntary register, which provides some reassurance for patients and employers, but that cannot realistically be seen as an alternative to statutory regulation. I think that in 2009 they were identified by the Department of Health as being urgently in need of registration. The Health Professions Council felt that these assistants fulfilled sufficient of its criteria to warrant the recommendation for statutory regulation being accepted.
Irrespective of whether Members of this House have undergone a procedure requiring anaesthesia, would they consent to being rendered unconscious by an individual who was neither bound by a stringent professional code of conduct nor properly registered to practise? After all, we would not get into an aeroplane if we did not know that both the pilot and the co-pilot were appropriately qualified to a very high degree, with ongoing continuing professional registration. We trust them just as we trust these physicians’ assistants, but if something goes wrong in theatre it does so with catastrophic rapidity. When I did my training in anaesthesia, on more than one occasion I saw these physicians’ assistants recognise problems arising before the trainee anaesthetists had done so. They carry enormous responsibility during complex procedures.
I have included other healthcare professionals in my amendment as I am well aware that the Government do not like to have enormous lists in a Bill. My amendment would therefore leave the door open to include clinical perfusion scientists—the other group involved in theatre—whose role is primarily to maintain a patient’s circulation during open-heart surgery, during a period of surgical repair when the heart has been stopped. They were recommended in 2003 for statutory regulation.
There have been two high-profile cases involving clinical perfusion scientists. The first fatality, in 1999, led the Southwark coroner to recommend the immediate statutory regulation of clinical perfusion scientists. The second fatality, in 2005, was attributed to inappropriate drug administration by a clinical perfusion scientist during an operation on a five-month-old baby at Bristol Royal Infirmary. That led to the publication of the Gritten report, which concluded that:
“The incident occurred because of latent weakness that lay dormant for years hidden by healthcare professionals compensating for inadequacies within national and local systems”.
The report recommended that action at national level should include,
“regulation and guidance on perfusion practice in cardiopulmonary bypass”.
More recently, there have been fatalities that have led to clinical perfusion scientists’ actions being questioned by coroners—the most recent of these incidents occurring in 2010 at Nottingham City Hospital.
I do not want to scare people from going in for surgery and I do not want to scare Members of this House who may be going in for surgery, but in the current climate people need to know that these very critical roles are being undertaken by people who are on a voluntary register but do not enjoy indemnity, as they would if they were on a statutory register and subject to the rigours of being statutorily regulated.
Baroness Pitkeathley
My Lords, I do not want to sound like a broken record in always resisting more statutory regulation or in disagreeing with colleagues with whom I normally agree, but I want to emphasise the application of light-touch regulation. We should use only the minimum regulatory force to achieve the desired result. Therefore, we should be considering extending regulation only where the risks to patient safety and public protection are such that other mechanisms such as those I previously mentioned—employer’s guidance, clinical governance, appropriate delegation and multidisciplinary teamworking—are unable to manage those risks.
When the Council for Healthcare Regulatory Excellence becomes the Professional Standards Authority for Health and Social Care, it will be accrediting voluntary registers as a more proportionate and targeted approach to developing high standards of care for people working in health and social care who are not statutorily regulated. I remind your Lordships that statutory regulation can be expensive and it is important that we explore and develop a range of options for maintaining and improving the quality of care delivered by people working in health and social care. It may be more proportionate, for instance, to promote greater co-operation and sharing of good practice. We seek to find the most efficient and common-sense solutions to the kind of problems that your Lordships have identified.
Baroness Oppenheim-Barnes
What proportion of voluntary persons employed in operating theatres are expected to be affected? Is it not the case that the great proportion of them are specialists who are subject to statutory regulation?
Baroness Pitkeathley
Currently, a great proportion are in statutory regulation, given that voluntary regulation is being developed. The CHRE is currently working on that.
Lord Alderdice
My Lords, I should like to press this question in the context of the amendments in this group. What is the Government’s rationale for making a difference between statutory registration and quality-assured voluntary registration? The noble Baroness, Lady Pitkeathley, has used terms such as “light-touch”, “proportionate”, “appropriate”, “not so expensive” and so on. However, I have difficulty in seeing consistency here.
On the one hand, we can see that there are very small groups such as clinical perfusion scientists who are employed in only a few centres where open-heart surgery is being done. One could see that there may be a degree of expense in setting up a whole scheme of statutory registration. However, when it comes to groups such as clinical scientists and physiologists, there is a much larger number, but almost all of them are employed in the National Health Service. I understand the argument that they are all, or almost all, operating under the supervision of people who are statutorily registered and are operating in the context of the NHS, which deals with financial claims and so on.
Lord Walton of Detchant
What is troubling me about this whole exercise is that, under the Health Professions Council, statutory regulation applies to art therapists, biomedical scientists, chiropodists, clinical scientists, dieticians, hearing-aid dispensers, occupational therapists, operating department practitioners, orthoptists, paramedics, physiotherapists, practitioner psychologists —in what way do practitioner psychologists differ from the psychologists to whom the noble Lord referred?—and many others. A lot of these people are already regulated. Where the statutorily regulated bodies end and the voluntarily regulated bodies begin is very unclear.
Lord Alderdice
It may seem a little unclear to the noble Lord, but it is not so unclear. Psychologists are qualified as psychologists, not as psychotherapists or as counsellors—they belong to a different professional body and have different qualifications and requirements. Psychologists themselves campaigned for many years for statutory regulation and finally got it through the Health Professions Council. Arts therapists and so on went through the HPC because many of them were occupational therapists, but try as I might—and I have been doing so for well over a decade—I cannot get successive Governments to address the question of psychotherapists and counsellors, despite the fact that they constitute a far larger number of people.
My dilemma with the current set of propositions is that, of the arguments adduced to try to persuade noble Lords that a quality-assured voluntary registration scheme is appropriate because the people referred to—the physiologists, the perfusion scientists and so on—are operating within the health service under supervision, are employed there and are smallish in number, none of them applies to this other group of people, for whom I have had precisely the same reply from the Minister. Therefore, I am keen to hear from the Government what the set of criteria is. Is it simply that this Government are not keen to pursue anything in the way of regulation except at the most modest level? If so, that is a legitimate argument but it needs to be made. If not, then I do not quite see the consistency of the current application.
Baroness Finlay of Llandaff
Perhaps I may add a small point. I do not know how many physicians in anaesthesia are employed in operating theatres in private hospitals, where an enormous amount of private surgery is done. One of the main reasons for people going to a private hospital is for surgery—particularly elective orthopaedic surgery. Therefore, although I cannot put any figures on this, I do not think that it is correct to assume that these people are necessarily operating only in the NHS and are subject to current NHS structures.
In the new world where we will have a broad range of providers, it will become even more important to know that there is a minimum standard and that all the people at each step of the way will be answerable. The patient may well choose to go to an organisation where these people are employed but the patient will not know that. No one gives him a list and says, “Of all these people looking after you, these will be statutorily registered but these may or may not be on a voluntary register”. If we are thinking about patients taking informed decisions regarding their future, I suggest that the coroners’ reports that we have had to date should already be sounding alarm bells.
Lord MacKenzie of Culkein
My Lords, I support this group of amendments. I want to make just a couple of points, as I think that most of the others have already been covered.
I am looking at some information sent in an open letter from the Registration Council for Clinical Physiologists to Anne Milton, the Parliamentary Under-Secretary of State in another place. Interestingly, in that open letter the registration council, which operates a voluntary register, takes the view that the council is rather toothless. It says that the professions covered by clinical physiologists will continue to be,
“saddled with a toothless system of voluntary registration, in which those managing the registers are exposed to unacceptable legal risk when attempting to enforce the meagre sanctions at their disposal and maintain professional standards”.
It says it is evident that those administering the current inadequate voluntary registration process are being threatened with civil action by those whom they are forced to reprimand. It is a pretty poor state of affairs when those who are trying to enforce professional standards are themselves threatened with legal action.
I know from talking to people involved with the registration council that people leave the register when disciplinary issues come to the fore. I gather that in one instance a person left the register when faced with discipline, emigrated to Australia, continued to practise and got in trouble there. As I understand it, the Australian statutory body that exists for clinical physiologists was astonished to discover that there was no statutory regulation in force in this country.
I do not think that we can continue with this so-called voluntary system and light touch. We need to do what other countries do and have statutory responsibilities and statutory training and registration for these very important groups of staff.
Baroness Northover
My Lords, these amendments seek to extend compulsory statutory regulation to physicians’ assistants in anaesthesia and clinical physiologists and to make changes to legislation to further provide for the compulsory statutory regulation of clinical physiologists.
I make it clear at the start that healthcare scientists such as clinical physiologists play an important and highly valued role as part of clinical teams, and this is also true of physicians’ assistants. It is a testament to their professionalism that the Department of Health is not aware of any general concerns about the standards of practice of either group. Furthermore, we need to be absolutely clear that the purpose of regulation is to protect the public, not to support the development of a profession.
Given the wider systems of assurance in place such as the Care Quality Commission’s registration requirements, and the vetting and barring scheme, the Government do not consider that the case for compulsory statutory regulation of these groups of healthcare scientists not already subject to regulation, and physicians’ assistants, has been made. However, we agree that there need to be processes to ensure high standards of care, and assured voluntary registration overseen by the Professional Standards Authority for Health and Social Care has the potential to provide this. It will ensure that there are robust standards of conduct and training. It will be open to employers and commissioners to insist on only recruiting staff on voluntary registers. Those doing so would secure many of the benefits of compulsory regulation. Both healthcare scientists and physicians’ assistants already have established voluntary registers and would be well placed to seek accreditation from the authority.
The noble Baroness, Lady Thornton, asked why we were not taking forward the regulation of clinical physiologists as recommended by the Health Professions Council. The recommendations of the Health Professions Council were not based on an assessment of the risk presented by a profession, but rather on whether that profession had already developed processes of assurance which prepared them for professional regulation. There is therefore no evidence that compulsory statutory regulation is necessary to mitigate the risks posed by the professions recommended for such regulation by the Health Professions Council. This is probably why the previous Government did not decide to regulate, although this is an issue that has been flagged up for a number of years. The professions recommended by the Health Professions Council for compulsory statutory regulation will be well placed to join the system of assured voluntary registration that we are proposing.
The noble Baroness, Lady Thornton, asked about research in terms of regulating clinical physiologists. We are not planning on commissioning research into the case for regulating them, but we will review the case for introducing compulsory statutory regulation for clinical physiologists and, obviously, others in the light of experience of assured voluntary registration, and the evidence about risks available.
Baroness Thornton
Perhaps the Minister could tell us what sort of timescale she envisages for this, or whether it will have to wait until an accident happens like the noble Baroness, Lady Finlay, recorded and then the Government will deal with it.
Baroness Northover
The noble Baroness will be fully aware, because she was a health Minister, that if there is no evidence of there being a risk then you do not choose to regulate. That is presumably why the previous Government chose not to.
The noble Baroness, Lady Finlay, flagged up the position of anaesthetists’ assistants. I had interesting discussions yesterday with an anaesthetist and an anaesthetist’s assistant, and it was very enlightening. As the noble Baroness will know, the anaesthetist is of course ultimately responsible. Assistants must always be supervised by a consultant who needs to be available within two minutes. The issue that the noble Baroness raises is one of quality assurance. As she knows, the Royal College of Anaesthetists runs the training and the registration for those assistants. After they have done a science degree, generally it is 27 months of practice. If the Royal College of Anaesthetists judges that that is inadequate, on the basis of the kind of concerns that the noble Baroness raises, then it is clearly for it to say that there are risks, it has encountered risks, and that needs to be addressed. If this system comes under the quality assurance system that I mentioned earlier, there will be another body looking at whether that kind of training, assurance and registration is adequate. However, there have not been cases flagged up as causing concern. I also point out that there are few anaesthetists’ assistants. They are more generally used in other countries, I gather, but not so much in the United Kingdom. The noble Lord, Lord Alderdice, asked why there is not more statutory regulation. In some ways I think I have addressed that. Although compulsory statutory regulation is sometimes necessary, one has to look at the risks and at what is proportionate.
Baroness Thornton
The health Minister Anne Milton said that those professions in which a patient safety case can be made, including that of clinical physiologists, will be considered for statutory regulation subject to a cost-benefit risk analysis. Will the Government carry out that analysis and, if so, when and in what time? I do not particularly want an answer about what my Government may or may not have done or may or may not have decided. The noble Baroness’s own Minister has pronounced on this matter since the general election so it seems to me that she needs to answer the question: when will they do the risk analysis?
Baroness Northover
I have already mentioned to the noble Baroness—she is probably totally familiar with this—that the Department of Health does not have evidence of there being a risk in this regard. Clearly, as I mentioned on the earlier group, these issues will always be kept under review. If the concerns that she has flagged up and if the association, which is particularly encouraging the regulation of clinical physiologists—that is fine; it is all part of professionalisation—flags up particular concerns that emerge from other evidence, then of course the department will take that very seriously. However, things need to be proportionate.
Baroness Finlay of Llandaff
I have listened very carefully to what has been said about the assistants relating to anaesthesia, but I also used the more catch-all phrase about the clinical perfusion scientists. I would be grateful if, after this debate, the noble Baroness would write to me and explain why coroner recommendations in relation to clinical perfusion scientists are not considered to be enough of a risk to take action. If one is trying to assess this on a risk spectrum, it would be helpful to understand why a coroner's decision to recommend that this small, contained group of clinical perfusion scientists should be regulated does not constitute enough of a risk to go down that route to regulate them and to have them on a statutory register.
Baroness Northover
I am very happy to take away what the noble Baroness has said and to discuss the situation further with her.
We expect the assured voluntary registration to be up and running by 2012. Therefore, afterwards that would need to be assessed to see whether anything further is required, as noble Lords have figured might be the case. We are hoping to see how it all works.
The noble Lord, Lord Walton, flagged up various groups which were regulated and he could not quite see why others were not. Given that I used to bump into the noble Lord, Lord Walton, in the Wellcome Library for the History and Understanding of Medicine, I think he will fully understand that the way in which regulation has grown up has not necessarily been logical or consistent. Therefore, I flag up the 2005 Hampton review on regulation which says that it should be proportionate to the risks that it seeks to mitigate and various other provisions. That is what we are seeking to do. Of course, we shall keep under review what we are doing to see whether it is adequate. In the mean time, I hope that the noble Baroness will be willing to withdraw the amendment.
Baroness Thornton
My Lords, I thank the Minister, but this is not yet a satisfactory situation. We might be moving towards one but we are not there by any means. If I were on the register of clinical physiologists I would find it slightly offensive for the Minister to suggest that I was asking for statutory regulation as a kind of professional development of the organisation. Physiologists are very clear in all of their briefings that they think that this is important for patient safety. That is why they want statutory regulation and that is why we need to listen to them very carefully.
Baroness Thornton
I thank the noble Baroness for that. The noble Baroness, Lady Finlay, made a graphic and powerful case. I thank my noble friend Lord Rea, the noble Baroness, Lady Masham, and the noble Lord, Lord Walton, for their support for the amendment. My noble friend Lady Pitkeathley and the Minister are coming at it from a different point of view. It is entirely possible that an arbitrary decision was taken, quite possibly by my Government, that there was enough statutory regulation. It is possible that this Government need to think that that was an arbitrary decision in the history of regulation and that exceptions need to be made.
There are questions about the limits of assured voluntary registration. Do clinical physiologists carry out invasive procedures that could harm patients? Yes, they do. Are clinical physiologists incentivised to join the voluntary register? No, they are not. A small number of NHS and private employers notionally require applicants to be on their register but there is no mandatory requirement for this. Are professionals incentivised to maintain the voluntary register? No, their activities are carried out on a voluntary basis by the chair and other officers. Does the voluntary register empower patients to make formal complaints? No. While the Health Professions Council operates a system whereby anyone can make a complaint about the fitness to practise of a professional on its register, in most instances members of the public are not aware of the existence of voluntary registers. Finally, does the voluntary register have any powers of enforcement? No, it does not. The RCCP operates a disciplinary code and procedure but it cannot protect patients from continuing to be treated by practitioners who have not been registered and who are potentially unfit to practise. I beg leave to withdraw the amendment.
Independent Commission on Banking
(12 years, 10 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Commercial Secretary to the Treasury (Lord Sassoon)
My Lords, I shall now repeat a Statement made in another place today by my right honourable friend the Chancellor of the Exchequer.
“Mr Speaker, the Government are proposing the most far-reaching reforms of British banking in our modern history. Our objective is to make sure that what happened in Britain never happens again, that taxpayers are protected and that customers get a better service.
Last year the Business Secretary and I set up the Independent Commission on Banking to look at what I called the ‘British dilemma’: how Britain can be home to one of the world’s leading financial centres without exposing British taxpayers to the massive costs of those banks failing. In the years leading up to the financial crisis, a failure of regulation contributed to the build-up of a debt-fuelled boom. Banks borrowed too much and took on risks they did not understand. When the bubble burst these banks turned out to be too big to fail and the previous Government had to spend billions of pounds bailing them out.
Of course, major financial institutions in other countries were bailed out by their taxpayers, but the British bailouts were on a different scale. The Royal Bank of Scotland bailout was the biggest in the world. The FSA’s recent report into the failure of RBS attributed this to ‘poor decisions made by the RBS management and Board’ against a backdrop of a regulatory regime that failed to stop them. The politicians responsible are named in the report.
This Government are determined to do better at protecting British taxpayers from the cost of failing banks while at the same time acknowledging the importance of the financial sector to our country. Britain should remain home to one of the world’s leading financial centres and the home of global banks. However, the strength of this industry is also a potential weakness to the economy if not properly regulated. The sector supports nearly 1.4 million jobs, not just in the City but across the whole of the UK. The balance sheet of our banking system is close to 500 per cent of our GDP, compared to 100 per cent in the US and 300 per cent in Germany and France. So while a European and international regulatory response to the crisis is important, we cannot rely on this response alone to make our banking system safe.
We in this Parliament have to take action, and under this Government, we are. We are putting the Bank of England back in charge of prudential regulation. We have created the Financial Policy Committee to look at risks across the financial system. I also welcome today’s report from the Joint Committee on the Draft Financial Services Bill. I wanted proper pre-legislative scrutiny. That has happened, and we will respond in the new year so that we improve the legislation. We have also introduced a permanent bank levy on wholesale funding, and we have introduced the toughest and most transparent pay regime of any major financial centre in the world. However, we also need to address the structure of our banks. That is why the coalition Government set up the Independent Commission on Banking. I want to thank Sir John Vickers and the other members of the commission—Clare Spottiswoode, Martin Taylor, Bill Winters and Martin Wolf—again for their impressive report.
The commission made three main recommendations: first, that everyday high-street banking services should be separated from wholesale and investment banking activities, and that this be done via a ring-fence; secondly, that banks be required to have bigger cushions to absorb losses without recourse to the taxpayer; and thirdly, that competition in the banking sector be strengthened by increasing the number of banks on the high street and the power of customers to switch accounts. When its final report was published in September, I made it clear that I welcomed these recommendations in principle, and would return to the House by the end of the year. Today I fulfil that commitment.
Let me now set out in detail how the Government plan to respond and invite further views before we publish a White Paper next spring. First, the Government will separate retail and investment banking through a ring-fence. It is important to know that this ring-fence will not prevent banks failing, but it does mean that if banks get into trouble, those elements of the banking system that are vital for families, businesses and for the whole economy can continue without resort to the taxpayer. So the following will be in newly ring-fenced banks: the deposits of individuals; their overdrafts too; and the deposits and overdrafts of small and medium-sized businesses. They will all be kept separate from riskier wholesale and investment banking—which will have to be outside the ring-fence.
Larger corporate deposits and lending, and private banking, can either be in the ring-fence or outside. The ring-fenced bank will be legally and operationally independent. It will be able to finance itself independently, have its own board and there will be limits on the amount it can lend to the rest of the group. The commission’s interim report proposed a de minimis exemption for small banks that were clearly not systemic and we invite opinion on whether to proceed with this.
Our objective is clear. We want to separate high street banking from investment banking to protect the British economy, protect British taxpayers and make sure that nothing is too big to fail.
Secondly, we will make sure that banks have bigger cushions, so they are better able to withstand losses. The international Basel III requirement—which the UK was instrumental in negotiating—requires banks to hold minimum equity capital of 7 per cent, and there is a top-up for systemically important banks. We will go further. Large ring-fenced retail banks will be required to hold equity capital of at least 10 per cent. There will also be a minimum requirement for the loss-absorbing capacity of big banks of at least 17 per cent. This requirement will apply to the UK operations of British banks. It will also be applied to the non-UK operations of UK headquartered banks, except where they can demonstrate they do not pose a threat to the UK taxpayer.
I can also confirm that this Government will introduce the principle of depositor preference. In other words, the principle that unsecured lenders to banks, who are better placed to monitor the risks that banks are taking on, should have to take losses ahead of ordinary depositors. We seek further views on the best way to implement this principle. This comes on top of the guaranteed protection that the Financial Services Compensation Scheme offers, which covers 100 per cent of eligible deposits up to £85,000.
All these proposals on loss absorbency will also strengthen the European single market. One of the greatest distortions to the single market in banking is the perceived implicit taxpayer guarantee for all European banks. Through these proposals the UK is setting out a plan to remove this distortion for UK banks. The European Commission has indicated plans to consider what it can do to reconcile that distortion at an EU level. I welcome that, and the UK will engage actively in the debate.
This House and other member states have objected to the European Commission's proposals to impose maximum standards for bank capital. These proposals undermine efforts we and others are making to improve financial stability and the single market. In the view of bodies like the IMF, the European Commission's proposals also water down the international Basel III agreement, giving exemptions to globally active banks in certain European countries. We will be seeking, with others, changes to ensure that the EU faithfully implements international agreements.
Thirdly, the Government will take action to increase competition in the banking sector. The disappearance of banks such as Bradford & Bingley and the decisions taken by the previous Government on the merger of Lloyds and HBOS mean the banking sector is dominated by a handful of large banks. Last year, just four banks took 70 per cent of the market share. We need new banks to enter the market to provide consumers and businesses with more choice. The Government announced the sale of Northern Rock to Virgin Money last month, creating a new competitor in our retail banking sector.
In the coalition agreement, we made clear we wished to foster diversity in financial services, including promoting mutuals. We welcome last week’s announcement that Lloyds has identified the Co-op as preferred bidder for the divestment of more than 600 branches to create a strong challenger in the high street. We will also make it easier for people to switch their current accounts. This recommendation from the commission has received less attention from the media, but could be of huge benefit to millions of customers. The idea is that individuals and small businesses can switch to another bank within seven days and all the direct debits and credits will be switched for them at no cost. The Government have secured the banking industry’s agreement that it will implement these proposals by September 2013.
We will also support the Treasury Select Committee’s proposal to bring the Payments Council within the scope of regulation and I can confirm that our financial services legislation next year will specify that one of the objectives of the Financial Conduct Authority is to promote effective competition in the interests of consumers. A new statutory competition remit will provide the FCA with a clear mandate for swifter, more effective action to address competition problems in financial services. So within months of the ICB report, legislation to bring this change into force will be introduced.
This brings me to timing. Some have questioned whether the Government will seek to delay implementation of these reforms—questions that come from people who never even contemplated reform when they were in office. In fact the reverse is true. On the advice of Sir John Vickers and others, I will be bringing forward separate legislation to implement the ring-fence. The Government’s intention is that implementation should proceed in stages, with the final changes related to loss absorbency fully completed by the beginning of 2019 in line with the Basel agreement. But I can confirm to the House today that primary and secondary legislation related to the ring-fence will be completed by the end of this Parliament in May 2015 and banks will be expected to comply as soon as practically possible thereafter. The Government will work with the banks to develop a reasonable transition timetable.
Of course, there are both costs and benefits to these reforms. The Government estimate the total costs to UK banks to be between £3.5 billion and £8 billion, broadly in line with the commission’s estimate. Most of this reflects the cost to them of removing the subsidy that comes from any perceived implicit taxpayer guarantee, which is precisely what we intended. The cost to GDP is estimated by the Government at just £0.8 billion to £1.8 billion—slightly lower than the commission’s estimate. These are far outweighed by the benefits of the ICB’s recommendations. Even a relatively modest reduction in the likelihood or impact of future financial crises would yield an incremental economic benefit of £9.5 billion per year. Such is the cost of financial crises to the economy. Since the wholesale arms of non-UK banks would be unaffected by these reforms and the principal recommendations relate to UK retail banking, the competitiveness of the City of London as a location for international banking will not be affected.
We are fixing the banking system to protect taxpayers in the future. But we also need to clear up the mistakes of the past. I have already mentioned Northern Rock and Lloyds but the biggest call on the taxpayer was the bailout of RBS. The FSA’s recent report was a damning indictment of all that went wrong in this crisis. Those responsible are clearly identified in it. We need to deal with the mess that they created.
Despite promises from the previous Government that taxpayers would profit from the RBS bailout, the Government’s shareholding is now worth around £27 billion less. We are already reforming the regulatory structures that allowed these catastrophic failures to occur. Bonuses are a fraction of what they were four years ago. Early this year we placed a limit of £2,000 on cash bonuses for RBS and Lloyds. We have made it very clear that the bonus pool next year must be lower again and more transparent. We are also clear that at a time like this the Financial Policy Committee’s advice should be followed—that bank earnings should be used to build capital levels, not pay out large bonuses.
RBS itself has also made significant changes since 2008, including reducing the size of its investment bank by half. But I believe RBS needs to go further and the management agrees. We are the largest shareholders. Let me set out our view: RBS has already announced that it will further shift its business strategy towards its personal and SME customers and its corporate banking business which serves UK and international companies. We believe that RBS’s future is as a major UK bank, with the majority of its business in the UK and in personal, SME and corporate banking.
Investment banking will continue to support RBS’s corporate lending business but RBS will make further significant reductions in the investment bank, scaling back riskier activities that are heavy users of capital or funding. RBS should emerge a stronger, safer bank, able to maintain lending to businesses and consumers, and which in time can be returned to full private sector ownership.
The British people are angry about what happened in our banks and angry at the politicians who let it happen. This coalition Government see two parties working together to clear up the mess of the past and to create a banking system that protects taxpayers and serves customers better. Today, we present the most far-reaching changes to banking in our modern history so we can build an economy that works for everyone. I commend this Statement to the House”.
My Lords, that concludes the Statement.
Lord Eatwell
My Lords, I am most grateful to the noble Lord for repeating the Statement made by the Chancellor of the Exchequer in another place. However, I regret that effective scrutiny by this House has been limited by the Government providing the 80-page response only half an hour before the noble Lord got to his feet.
As the Statement makes clear, banking policy in this country has two potentially conflicting goals: first, to ensure that a stable domestic financial system supports the real economy with a steady and reliable flow of appropriately priced credit, together with other domestic and international banking services; and secondly, there is the goal to sustain the City of London and other UK centres as the world’s premier offshore financial centre, providing a wide range of financial services that transform and repackage saving flows from all around the world. This was the core conflict highlighted by the Independent Commission on Banking—the trading activities of the offshore centre can inflict instability and contagion on the domestic economy. The proposal of the ring-fence that the Government are endorsing today is a response to that core conflict. It is an inadequate response, but perhaps something is better than nothing.
Why is it an inadequate response? Noble Lords may be surprised to learn that more than three years on and contrary to the assertions of the ICB in its final report, nothing in these policy proposals would have prevented the collapse of Northern Rock. The reason is that there are two serious flaws in the ICB approach. First, there is the belief, echoed by the noble Lord, that moving to a 10 per cent capital to risk-weighted assets ratio will provide the resilience to the banking sector required to head off a serious crisis. This belief is a fantasy without empirical foundation. For example, Allied Irish Bank had capital in excess of the maximum now being proposed by the Government prior to its collapse. It was not enough. In a real financial crisis, no feasible capital ratio will be enough. While on the subject of risk-weighted assets, do the Government intend to maintain the Basel II approach that leaves the calculation of these risk-weights to the banks themselves? With respect to other primary loss-absorbing capacity, what is the Government’s view of the buoyancy of the market for these instruments on which they put so much weight and which do not at present exist?
Secondly, the report maintains the outdated and indeed discredited approach of focusing on the asset position of the banks and has very little to say about the liabilities side of the balance sheet. Hence, the ring-fencing proposals are all about what is done with depositors’ assets and the capital needs are related to that dubious measure of risk-weighted assets. But in the case of Northern Rock, the collapse was entirely attributable to what was happening on the liabilities side of the balance sheet. It was the inability to turn over short-term funding that resulted in the taxpayer needing to provide a £30 billion rescue. The ICB’s claim that current liquidity proposals could have prevented this is, I believe, wishful thinking. By the way, in the glance that I have been able to give the Government’s response, I would suggest that the illustrative diagrams of balance sheets on page 28 are profoundly misleading as the boxes do not represent the proportions of liabilities and assets as they are presumed to do. I shall return to the issue of the liabilities side of the balance sheet later. For the moment, I give one cheer to the Government’s endorsement of the ICB’s approach. At least it is better than nothing. Ring-fencing is the right thing to do even if they put the fence in the wrong place.
Crucial to the entire approach will of course be the construction and policing of the ring-fence. Can the noble Lord tell the House whether the Government have accepted all—I stress, all—of the ICB’s proposals on the construction of the ring-fence? In particular, the Government seem to suggest that ring-fenced banks will be permitted to hedge risks to which they are exposed in derivative markets. If they are allowed to hedge, how is the line to be drawn between hedging and speculation, and who is to draw that line? A major hole in the ring-fence as it now stands—or perhaps it is a flexible thing as it now waves in the wind—is that banking activity for large companies can take place either within or without the ring-fence. This means that organisations that produce well over half the UK’s GDP will have banking services outside the ring-fence. In that case, will not banking operations outside the ring-fence be too big to fail, because they could bring down major British companies, and will not the exposure of the taxpayer that the ring-fence is supposed to eliminate be almost as great as it ever was?
More generally, it is a well known outcome of regulatory activities that they stimulate a creative response from the banks, creative in the sense that they work out ways to circumvent and/or evade the regulations. Hence there will be a need to keep the operations of the ring-fence under continuous review. How do the Government intend to do that? The response states:
“The Government believes that the location of the ring-fence should be flexible”.
What does this mean—it sounds like a fine opportunity for lobbying to me—and who will determine the location of this “flexible” fence? Would it not be appropriate to keep the ICB in being and charge it with the task of reviewing regularly the performance of the ring-fence?
One of the declared objectives of the ring-fence, which the noble Lord repeated, is to protect the assets of depositors from the casino operations of the investment banking divisions of the banks. Where a ring-fenced bank is the wholly owned subsidiary of a bank holding company and that holding company fails, perhaps due to casino-style activities, will its creditors have access to the assets of the ring-fenced bank? If not, why not? If so, what is the value of the ring-fence?
I turn to the liabilities side of the balance sheet. Am I right in saying that the Government have no intention of limiting the wholesale funding of the balance sheet other than through the imposition of a leverage collar that fails to discriminate between deposits and wholesale funding? Why are the Government therefore intent on penalising banks that have a strong deposit base—banks that proved to be the most resilient during the financial crisis? Of course, the FSA’s proposals on liquidity and a leverage collar will improve the situation, but surely they are not enough. Why do the Government not take note of the research that demonstrates that deposits by families and firms are “sticky”, while wholesale deposits embody greater risk? On the other hand, what is to be the role of the interbank market within the ring-fence?
On competition, the noble Lord made it clear that the higher levels of capital and loss absorbency will apply just to UK banks. What of the branches of non-UK banks operating in the UK, such as Deutsche Bank? What is the Government’s assessment of the competitive impact on UK banks of branches of European or other banks operating in the UK not being required, as the response states, to have the same levels of loss absorbency?
On timing, the ICB said that the ring-fence should be in place as soon as possible and well before the Basel III deadline. The Statement refers to compliance with the legislation on ring-fencing being as soon as “practically possible”. Who is to determine what is practically possible and what are the criteria for that determination?
What do the Government expect to be the impact of these recommendations on the supply of credit? Given the abject failure of the Government’s Project Merlin and the desperate need to increase lending at reasonable rates to UK SMEs, the Bank of England’s executive director for financial stability has suggested that the ratio of capital requirements to risk-weighted assets should be lowered, not raised as the ICB and the Government recommend. Do the Government agree with the ICB or with the executive director of the Bank of England?
I welcome the Government’s announcement on the Royal Bank of Scotland. These are changes that we on this side have urged for some time. This is a taxpayer-owned bank and it should pursue the taxpayer interest.
I therefore give one cheer for a faltering step in the right direction. We will seek significantly to improve the approach when the Government bring forward their legislative proposals.
Lord Sassoon
My Lords, I suppose I should be grateful that we got one cheer from the noble Lord, Lord Eatwell, who is a hard man to please. I am sorry that he finds serious flaws in the ICB’s analysis where most other commentators have not found flaws with what is widely recognised as an impressive and important analysis and one that is being looked at well outside the UK for the light that it sheds on continuing issues that other countries have around their banking systems.
I shall take a number of the noble Lord’s many questions. First, he asked about risk weights and the loss-absorbing capacity. The ICB did a detailed analysis of almost 40 banks. Its key chart is picked up in the Government’s document today. Of the 40 banks that suffered significant losses that the ICB looked at, the noble Lord, Lord Eatwell, highlighted the Anglo Irish Bank as the only one where the loss exceeded the 17 per cent—I think he referred to 10 per cent—loss absorbency which the ICB recommends for big banks. As my right honourable friend the Chancellor of the Exchequer made clear, this is not about making sure that no banks will fail but about a combination of things, including loss absorbency, that will make our banking system much more resilient in the face of the range of losses that are likely.
The noble Lord also asked whether the Government have accepted all the ICB’s proposals on the ring-fence. A detailed discussion of ring-fencing issues takes up one chapter, or some 15 pages, of our response today. A number of outstanding technical considerations are clearly set out in the discussion. As I have already said in repeating the Statement, this is the first round of a sequence of consultation and draft legislation, both primary and secondary, to get this right. I make no apology for not having answers to all the very detailed questions at the moment. We are putting out this 70-plus-page document today as the start of the discussion that must go on.
The noble Lord then questioned what activities should be inside and outside the ring-fence. On the question of where the ring-fence is located, he picked up on the adjective “flexible”, which is advisedly used in the Government’s response document. The key driver about what should be inside and outside the ring-fence in the ICB’s analysis is whether it is an essential banking service, the interruption of which would cause great difficulty. For individual and SME deposits and overdrafts it is quite clear that interruption of normal banking activity would cause hardship whereas large corporates and private banking are clearly categories of banking consumer much better able to look after themselves for a period in those circumstances. That is what has determined in principle where the ring-fence should be. On this flexibility, in order to have an efficient banking system, it is quite right that the banks should be able to decide on a one-off basis whether their large corporate activity should be inside or outside the ring-fence so that they can match up their activity on the lending side with the structure of their deposit base.
The noble Lord, Lord Eatwell, then raised questions about the situation of branches of a European bank in this country. It is certainly the case, as he recognises, that branch activity of a European bank would not fall within the provisions of this ring-fence. They cannot and should not do so under the arrangements for the single market. However, in relation to branch activities in this country, the supervisors—the FSA and, in future, the Bank of England—will of course have regard to subsidiarisation in relation to the scale of activities that are carried out through foreign bank branches.
Lastly, the noble Lord asked about implementation and timing. As I have said, both the primary and secondary legislation will be completed in the course of this Parliament. The final part of the proposals in line with the ICB’s timetable—on loss absorbency and with regard to capital—will be in place on the same timescale as the Basle III implementation in 2019, but between now and then we expect to see the ring-fence itself put in place. As I have said in repeating my right honourable friend’s Statement, we will work with the banks on what is judged by the Government to be a practical implementation timetable. That, I emphatically say, will, along with all the rest of it, be a decision for the Government and, where appropriate, for the legislation that will come before Parliament in due course. We have been fast on the case to respond to what has been an enormously detailed report and, as I say, we will get the legislation through in the course of this Parliament.
Lord Newby
My Lords, I warmly welcome these proposals because we have been advocating many of them for a number of years. I have two questions. First, on timing, the noble Lord has made it clear that the aim is that primary and secondary legislation will be completed by 2015. Can he confirm that, given that there will be a lot of secondary legislation, the Government intend that the primary legislation will be introduced in the 2012-2013 Session, so that we can get that through and then get all the secondary legislation through well in advance of an election in 2015?
Secondly, on bonuses, the Minister made it clear that the Government wish the bonus pool in respect of RBS and Lloyds to be lower next year. Can he confirm that the Government have done more than express a view on this, and have in fact instructed UKFI that the bonus pool, particularly in respect of RBS, shall be significantly less than it was last year and that we have not a vague aspiration but a very firm steer from the Government?
Lord Sassoon
My Lords, I am grateful to my noble friend for welcoming the Government’s response to the ICB. On his question about timing, I cannot go further than what I said already: that we will bring out a White Paper in the spring, followed by the draft legislation and that we will get all the draft legislation, primary and secondary, through in this Parliament. There is a detailed table in the response document published today of all the ICB recommendations and whether they require legislation or could be put in place by regulatory action. There are other things which are already proceeding, particularly on competition, and there are other matters where regulatory action can take place.
I was grasping to think what my noble friend’s second question was. I can indeed confirm what he said about the Government’s firm intention regarding bonuses for this year.
Lord Lawson of Blaby
My Lords, I warmly welcome the Government’s determination to press ahead without equivocation with the radical proposals in the Vickers commission report. My noble friend will be aware that ever since the banking crash of 2008 I have been campaigning for a complete structural separation of retail and investment banking. The proposals go a long way towards that, although not all the way.
I realise that there is a problem, which the Vickers commission recognised, that full enforced structural separation is probably contrary to European law, but, as I am sure that my Liberal Democrat friends would agree, that is not something that we should allow to stand in our way.
My concern is twofold. First, the top management of banks may be deficient in judgment and in some cases may be deficient morally, but they are certainly not deficient in well advised ingenuity. There is a real risk that they may find ways around the ring-fence if there is not full structural separation. Secondly, what we need is a cultural separation. We need to have a culture of prudence back again in retail banking, unlike the culture of adventure, if I may call it that, in investment banking.
I confess to my noble friend that I am concerned about the difficulty of having two totally separate cultures in one organisation. When this is in place it will be necessary, as the noble Lord, Lord Eatwell, said, at least to keep it under review all the time, although I think he is wrong in saying that we should keep the Vickers commission alive to do it. We should charge the Bank of England and the organisations that have been set up under the new regime with the responsibility of keeping this under close monitoring all the time, so we may need to go to full separation.
Finally, on the timing—I will confine myself to the ring-fencing—I am very glad that the ring-fencing legislation is going to come forward first, but there is bound to be a time lag because not only is the legislation complex but the banks will then need time to change and reorganise themselves to implement whatever the final decision of Parliament is in that legislation. I urge my noble friend to introduce the legislation not merely in this Parliament but in its next Session.
Lord Sassoon
My Lords, I well recognise the consistency, firmness and clarity with which my noble friend has held his views on separation from very early on in this debate; we discussed it three years ago. However, the Government agree with the ICB that full separation is not the route to go down. I say to him that having independent directors on the boards of the ring-fenced banks will go a long way towards making up for, as he puts it, possible deficiencies of top management and their ability to get around these things. Having independent directors of ring-fenced subsidiaries is a model that has worked well in utility companies. As he says, it is right that the Bank of England will be watching this in its new role of supervising the system.
Lord McFall of Alcluith
My Lords, when Sir John Vickers appeared before the Draft Financial Services Bill Joint Committee, it was clear that his report would not solve the “too big to fail” issue. What was required was a good regulatory structure, and no regulator globally succeeded in that.
In the draft Financial Services Bill report there were a number of issues relating to the governance of the Bank of England, and I should like an assurance from the Minister that the Government will take these all-party proposals very seriously. As a previous speaker said, culture is more important than architecture. I think that will be one of the main recommendations of our report.
The Minister mentioned the issue of switching current accounts. Will he accept that the portability of current account numbers is the key? That revolutionised the mobile phone industry. Only with the portability of current account numbers will we see a revolution in switching accounts in the banking industry.
Lord Sassoon
My Lords, I can confirm to the noble Lord, Lord McFall of Alcluith, that the Joint Committee’s report, which was published only today, will be taken very seriously on governance and all the other matters that are contained in it. As to switching accounts, I hear what he says about number portability, which is not at all an easy issue, as he well knows. All I would say is that the ability for seven-day switching, including all direct debits, credits and standing orders—which we now have the banks’ agreement will be implemented by September 2013—is a significant advance that will help millions of consumers.
Lord Higgins
My Lords, the report by the ICB is very large, comprehensive and detailed. It says that it would be desirable for the Government to express a view on it as soon as possible, which they have done. However, the Statement appears also to include one or two items that—I think I am right in saying—are not in the report. In particular, I understood my noble friend to say that there would be a tightening up of the Basel proposals, or that the Government would propose that. Secondly, he said that there would be depositor preference, which does not appear in the report unless I am mistaken. Will that require primary legislation and, if so, when are we likely to have that? Overall, it seems that we have just had another Statement, which has become available only recently. When will we have an opportunity to debate it? We have not really had any opportunity to comment on it now, since it appeared only a few moments ago.
Finally, on timing, there are two things. I agree very much with my noble friend Lord Lawson about the timing of the legislation. The banks need to know what is in the legislation. We should get that through the House at the earliest possible moment. Saying that we will do it in the course of this Parliament means that it will take far too long. Waiting until 2019 for the overall implementation is absurd. To suppose that there will be no financial crisis that is related to these proposals until 2019 would be the height of optimism. We have to get it through before then.
Lord Sassoon
My Lords, on the tightening up of Basel III, as my noble friend puts it, the provisions around loss absorbency of 17 per cent and the bailing provisions are items that go beyond Basel. They are welcomed on a global basis. We now have to make sure that the way in which the EU implements Basel III is not only compatible with Basel III itself but allows the UK to go further for as long as the global community is entirely comfortable with that. Depositor preference requires primary legislation. In relation to primary legislation, discussion of all this and the process, the next major stage will be a White Paper, setting out in greater detail how the remaining important detailed matters will be handled in the draft legislation. The draft legislation will then come. I believe that there will be plenty of opportunity, in a staged way, for noble Lords to consider all the detail.
Lord Lea of Crondall
My Lords, is this what one might call the final stage in a number of statements about reform of the banking industry, following what has happened over the past four years? Is the Minister aware of the concern about this up and down the country? I welcome the Statement, with the sort of qualifications given by my noble friend Lord Eatwell.
There is great concern about accounting standards which led to false accounting regarding the state of many banks. While no one is suggesting that any senior banker should be shredded in front of his family, the fact is that there seems to be a total black hole as regards anyone taking any responsibility in the banking industry. Is that not something that still needs to be corrected?
Lord Sassoon
My Lords, the report today is a response to the Vickers commission’s work on the structure of banking. I fully accept the noble Lord’s reference to other matters, particularly accounting standards. The committee of this House did some extremely important work in that area. I do not pretend that we are solving everything today and accounting is another issue that I am sure Members of this House will not forget as we go forward.
Lord Stewartby
My Lords, will my noble friend say something about supervision and where it fits into this very complicated arrangement of new committees and authorities? The report of the Joint Committee, which was published only today, states that it is planned that microprudential regulation will be done through a new subsidiary body called the prudential regulatory authority. However, regulation is not a micro-activity. Supervision is a micro-activity, but regulation is not. If microprudential regulation is meant to refer to supervision, it would be better to say so and not to put it in that form of verbiage.
Lord Sassoon
My Lords, I am sure that there will be other occasions and places in which to discuss the Joint Committee’s important report on the Bill, so I do not want to get dragged too far into doing that. I recognise that, even for those of us who have been involved in the banking industry, confusing “regulation” and “supervision” can sometimes be a trap into which it is easy to fall. Supervision will be the responsibility of the Bank of England in the new structure, if the Bill is passed by Parliament.
Lord Newton of Braintree
My Lords, I have two quick questions. First, is there any estimate or expectation of a rise in the costs of retail banking as a result of these proposals? It seems to me that that must be a possibility. Secondly—I declare an interest as a 55-year long customer of Lloyds TSB bank in Harwich, Essex—given that the Minister has welcomed the sale of some Lloyds branches to the Co-op Bank, what will happen if we immediately use our switching rights to go back to another branch of Lloyds Bank if we are sold like a commodity?
Lord Sassoon
My Lords, the ICB estimates that the increased cost of borrowing could be of the order of 0.09 per cent to 0.16 per cent as a result of implementing these proposals. That is a very modest additional cost which is well within the smallest ever incremental change to the bank rate introduced by the Bank of England. I will not speculate about what might happen to bank customers where they are sold from one bank to another, but I believe that it is completely right that we should make it easier in all circumstances for bank customers to be able to switch their accounts. That is what the banking system is going to deliver.
Lord Hamilton of Epsom
My Lords, like my noble friend Lord Lawson, I shall sleep at night only when retail banks and investment banks have separate shareholders. Will the noble Lord answer my noble friend’s point about the ingenuity of those who run banks to find a way round the ring-fencing, thereby enabling retail banks to continue to back investment banks?
Lord Sassoon
My Lords, as I have said, the way that the governance will work is that the ring-fenced subsidiary will have to have independent directors in the way that, for example, regulated utilities have to have directors who are independent of the holding company’s board. That is the principal protection in these circumstances.
Lord Hollick
My Lords, I welcome the Government’s response. It is an important step, but only a first step, to what surely must be full separation of the banks. That is the logic of the Vickers report and is, I should point out, the logic of the Government’s response, which states:
“The Government believes that the ring-fenced bank should not be dependent on the financial health of the rest of its corporate group for its solvency or liquidity”.
If that is to be achieved, the treasury function, which is right at the heart of banking, would need to be split and there would need to be two treasury functions. Similarly, loan capital would have to be provided separately from the high street bank. That would simply leave the question that my noble friend Lord Eatwell raised: what happens to the capital in the event that the holding company goes under? Surely, the logic of this is to separate these two completely. Can the Minister confirm that banks would be required to separate the treasury function, whereby loan capital will have to be raised separately for the high street bank?
Lord Sassoon
First, I do not accept that the Government’s logic drives towards complete separation any more than the ICB itself argued for it. The ICB and the Government believe that there are efficiency and other benefits in allowing banks to keep the two parts of the business together under one holding company. However, the principal protection in the areas to which the noble Lord refers is that there will be limits on the exposures of the ring-fenced bank to other parts of the group. That is what, in particular, will deal with the noble Lord’s concerns.
Lord MacGregor of Pulham Market
My Lords, in the recent hearings of the Select Committee on Economic Affairs, the banks accepted that the Vickers report is more or less a done deal but argued that the costs would be considerably higher than those that Vickers calculated and the costs that the Government have estimated today. If in the forthcoming negotiations there is a major dispute about costs and their possible effect on customers, will the Government keep reminding the banks that there is still more to be done to contain costs on bonuses, salaries and other payments?
Lord Sassoon
I agree with my noble friend’s sentiments on costs and I have stressed in the Statement that the position of the Bank of England, at this time in particular, is that banks should be using profits they generate to rebuild their balance sheets rather than pay out bonuses. However, to differ a little from my noble friend, I do not see this as representing any negotiation with banks over the costs. The ICB carried out an analysis, and the Treasury made a separate analysis that has resulted in different figures. We have used the input of the banks and their modelling in order to arrive at those numbers. We have come up with numbers for the costs that were higher in some areas than those originally estimated by the ICB. They are very much based on a lot of numbers that the banks themselves have modelled. I do not see a negotiation to be had in that area.
Health and Social Care Bill
(12 years, 10 months ago)
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Lord Hunt of Kings Heath
My Lords, we come to one of the most important parts of the Bill—the regulation of social workers. Although the Bill is entitled the Health and Social Care Bill, the reality is that most of our debates have been about the National Health Service. It is right that in these latter stages of Committee we give a little attention to social care and specifically the condition of social workers.
I do not think that anyone in your Lordships' House will be in any doubt about the scale of the responsibility placed upon social workers or the pressures that they come under. Although Professor Munro’s review was centred on the child protection system, what she had to say about social workers would apply more generally to the profession. I was particularly struck by the conclusion, which stated:
“While well intentioned, attempts in the recent past to improve the child protection system have not secured the improvements children and young people deserve. Professional practice with vulnerable children and families has been driven too much by compliance with regulation and rules”.
The review found that,
“frontline social workers in particular operate within an over-standardised framework that makes it difficult for them to prioritise time to form relationships with children and to understand their needs. In parallel, it has becomes more difficult to provide the range of help and services to respond to the wide variety of needs and circumstances presented”.
The Government have said that they will,
“oversee a radical reduction in the amount of regulation, working with partners to see a corresponding reduction in locally designed rules and procedures”.
They have also said that they want,
“to improve radically the knowledge, skills, and expertise of social workers from initial training through to continuing professional development”.
The Government said in July that they will,
“work with higher education institutions, employers, the General Social Care Council”,
to ensure that the specific capabilities identified by Professor Munro will,
“explicitly inform social work training, professional development and performance appraisal”.
I am sure that that is welcome and would be generally supported. It is interesting that only five months ago the Government were happy to acknowledge the role of the General Social Care Council. It must surely follow by implication that if the Government are seeking to enhance professional expertise and give social workers more discretion on the front line, it needs to be done in the context of a proportionate, though robust, statutory regulation of social workers. That is what the General Social Care Council exists to do. After a difficult start, which many would acknowledge was difficult, it is performing well. This is not the time to tear the General Social Care Council up by its roots and start again, but that is precisely what the Government propose to do in this Bill, by transferring social worker regulation to the Health Professions Council.
Currently, the council has a register of around 200,000 people, covering 15 health professions. If it takes on social workers, it will have a further 100,000 on the register from a single additional profession. I understand that the reason for which the Government have put forward these proposals is related to cost, not the current performance of the General Social Care Council, which the Government, in the form of the Department of Health, have acknowledged to have improved its performance considerably.
The argument on costs falls away immediately. Registration with the General Social Care Council currently costs £30 per registrant. This is a low figure compared to other regulators, and the Government subsidise the council’s operations to the tune of around £16 million a year. The Government want to get rid of that subsidy and their original aim was to transfer the function to an independent body that it was acknowledged would need to charge higher fees to cover costs. Originally, it was intended to make the General Social Care Council independent and for it to recoup all its costs from its registrants. However, the Government argued that an independent self-financing council would be unaffordable for social workers because registration charges for individuals would be in the region of £200 to £300. This calculation did not take on board the work that the General Social Care Council has done in developing a financial plan for independence. My understanding is that the latest calculation from the GSCC is that the actual cost would be far lower, and not dissimilar to the current HPC charges of £76 per annum. I hope that the noble Baroness will answer that point when she responds and not cite those higher figures for costs. I am clear from the evidence I have received that it would be possible to provide independent regulation in a single body for the kind of figure that the Health Professions Council charges.
Concern has been expressed about the Government’s intentions. First, within the social care sector, the transfer of the General Social Care Council to the HPC, a multiple profession regulator with generic professional standards, threatens to dilute the unique identity of the social work profession at a time when, as we know, the profession has come under considerable pressure. Some critics cite the reduced representation of social workers within the new Health Professions Council and the fact that the name of the regulator will not contain the term “social work”. There are also concerns that a generic, multi-professional regulator will not be well suited to deal with the complexities of social work and the social model, which underpins the practice of the profession.
There are also concerns about changes to the regulation of social work students. Like the General Social Care Council, the HPC does not currently register students of the professions it regulates. I understand that consultation is being or will be undertaken by the HPC on this matter, but it is widely expected that it will conclude that the way in which students are dealt with—in other words, that they are not registered—will continue and that, therefore, social work students will not be registered in future.
That is one problem that we face. I make no criticism of the Health Professions Council, but it has a one-size-fits-all approach to regulation. Its philosophy is that it does not really matter who you register—it could be social workers, clinical psychologists or any profession you like—its model will fit. I am worried about that approach for social workers. That is why I have tabled a number of clause stand part amendments. I think social workers need to have regulation that is geared entirely to the social work profession. My amendments are intended to tease out the Government's approach to how, if social workers come within the Health Professions Council, they are to be given special provision. My Amendments 338B, 338C and 338D are aimed to do that by, first, establishing a statutory committee within the Health Professions Council to oversee the social work regulation, to ensure that the appropriate person will be director of social worker professions’ regulation. That is to ensure that a senior officer is directly responsible for social worker regulation and recognised as such in statute. Next, it is important that there are social workers on the council of the Health Professions Council. I do not understand why the council of the HPC is not being dissolved and a new council formed. The number of social workers coming over to the Health Professions Council suggests that that is what should happen: not simply that the council carries on. There should be specific recognition and social workers should be on the council.
Lord Mawhinney
My Lords, a couple of minutes ago, the noble Lord said that he was not going to make any criticism of the HPC. He then sets out amendments which tell the HPC how it is supposed to behave. Is there not a smidgeon of contradiction between those points?
Lord Hunt of Kings Heath
I cannot see any contradiction, although I will of course search my mind to see whether I have been guilty of such. I wanted to make it clear that I do not seek to criticise the Health Professions Council as a body. As I set it up, I have a certain feeling of support for it. I am not sure that its approach to generic regulation, which essentially says that it can regulate any profession in the health service and does not in any way need to change how it does it, should apply to social work, which is a different profession to which different matters apply.
Lord Mawhinney
But is the noble Lord not in effect saying that he does not trust the HPC properly to discharge its responsibilities, so he has to tell it how it should go about it?
Lord Hunt of Kings Heath
If I were to say that I did not trust the Health Professions Council, that might be taken as rather pejorative, and I would not seek to do that. It has done a good job on the health professions it regulates. I simply do not feel that it is right for it to regulate social workers. I do not think that it is prepared for it. Its philosophy is not attuned to it. That is why, if the Government insist on going ahead, some protection needs to be given.
My final amendment relates to the name of the new HPC, the Health and Care Professions Council. I am puzzled why “social worker” is not in the title. Why was it felt that when bringing 100,000 people into this body, it was not thought worth putting “social worker” in the title. I do not think that Health and Care Professions Council can possibly describe a body that will regulate 100,000 social workers.
I hope that the Government will be prepared to consider the matter again. I know that they want to reduce the number of quangos and regulators, although, if the noble Baroness had been here for the Statement on the banking system, she would have discovered that all Governments start by having a bonfire of the quangos and then inevitably they start to grow again. We saw in the past few minutes a good example of the Government starting to grow some new regulators. In this case, I do not think that the issue of money comes into it—the cost of the balance sheet is taken off the public purse, because it will be funded by registering. Because I am satisfied that the General Social Care Council can fund this through fees which would be similar to those of the Health Professions Council, I hope that the Government will give this further consideration.
Baroness Meacher
My Lords, I support the opposition of the noble Lord, Lord Hunt, to Clauses 206 and 208 to 211 standing part of the Bill, and will also speak to Amendment 338B. The noble Lord, Lord Hunt, has elaborated these issues extremely comprehensively and powerfully. I want to avoid duplication and will therefore concentrate on a few specific concerns that, for me, are the most serious, although the matters raised by the noble Lord, Lord Hunt, are also important to me.
Social work carries onerous public protection responsibilities that, to my mind, differentiate it importantly from the other professions regulated by the Health Professions Council. One issue that highlights that problem is the registration of social work students referred to by the noble Lord, Lord Hunt. This and other key matters are left to regulation under Clause 208 without any clarification of what that will mean in practice.
It is important to bear in mind that social work students have direct and unsupervised contact with vulnerable people, including children, whose lives may be at risk. That is rather different from the contact that other professionals tend to have with individuals. Following an impact assessment, the GSCC, not surprisingly, concluded that compulsory student registration was necessary. At present, the GSCC makes grants to the universities providing social work training. Those grants are conditional on the registration of students. The result is that 95 per cent of students are in fact registered. I am not sure what happened to the other 5 per cent, but in essence it is a form of compulsory registration of students.
As a result, any serious complaint about the conduct of a social work student can be referred for investigation by the GSCC. Although the number of serious complaints is small, it is larger than that of complaints about other professions. It is very important that these individuals are picked up early before they can do any severe damage to young children, or indeed other children. If a student is found guilty of misconduct and dismissed from their course, they cannot simply go across to the other side of London or to Newcastle and register on a different course, as this will be picked up by the GSCC. However, that will be lost in the new system. This system of student registration seems to be an important safeguard in public protection.
As I understand it, the HPC is consulting on whether the registration of students should be purely voluntary, as it is in the other health professions regulated by the HPC and as mentioned by the noble Lord, Lord Hunt. The concern is that the consultation includes all the health professions, which of course will say that registration does not need to be compulsory, and indeed it does not for these other professions. Any social work professional will recognise the importance of the compulsory registration of students, but of course they will be outnumbered by all the other professions. As a result, social work registration is likely—in fact, almost certain—to become voluntary. I understand that Paul Burstow, the Minister in the other place, has some concerns about this. Can the Minister tell the Committee what progress has been made to ensure that social work registration remains, de facto, compulsory under the student arrangements?
It is worth flagging up that Northern Ireland, Wales and Scotland will continue to have compulsory registration of social work students, and England will be out of line if this provision goes ahead. As a result, inappropriate students—potentially dangerous social workers—will come across the border into this country and practise. Do we really want that to happen?
Another issue is the assessed and supported year in employment—the ASYE. This is not yet in place but has been recommended by the Social Work Reform Board and is supported by the GSCC. I understand that senior social work professionals do not expect the HPC to introduce the assessed and supported year for newly qualified social workers because they want a common system for all professionals, as alluded to by the noble Lord, Lord Hunt. This provision is not necessary for professionals without a public and child protection responsibility.
Again, there is a problem here because of the differences between social work on the one hand and all the other professions on the other. As someone who practised social work—albeit briefly and many years ago—I fully appreciate the importance of a year immediately following qualification when social workers carry a lighter case load and receive support with more hands-on supervision to enable them to consolidate their knowledge. You could say that this was all a bit heavy-handed if it were not for the public and child protection duties of these workers. However, it really is important that those people know what they are doing and that they do not miss high-risk cases.
The GSCC wants the assessed and supported year to be a registration requirement in the future. Northern Ireland has this system. Of course, this would need to be tied in with some control over the number of social work trainees, but in my view it is a very important matter. What are the Minister’s plans in this regard?
My third area of concern is the standard of social work training. Those at the head of the GSCC would agree that we need more, rather than less, rigorous regulation of social work training. Social work standards set by the Department of Health have already fallen over a period; certainly they are quite unrecognisable to me. I think all of us who are aware of the Baby P report would agree with that assertion. We can expect these standards to fall further under the HPC because, as the noble Lord, Lord Hunt, mentioned, the HPC has basic standards across all professions at roughly NVQ level 3—not a degree level and not, in my view, a sufficiently high level—and just a few generic standards for each profession. It is not looking for intellectual rigour and does not have practice standards. Its focus is on outputs, which we all recognise and think are a thoroughly good thing. However, we all know that outputs based on book learning without any fieldwork requirements will miss absolutely essential elements of effective social work professional practice. The Social Work Reform Board is setting higher standards but these will not be regulated. Only the most basic standards set by the HPC will have that regulatory framework.
The Government are, I believe, leaving it to the yet-to-exist College of Social Work to promote excellence in social work. The BASW is challenging the establishment of the college, I understand. Will it exist and, if it does, will it be delayed? If so, for how long? I gather that even when it does exist, the college will be toothless—it will have no powers to regulate training at all. It may set standards of excellence but it will have no powers to ensure that those standards are met. Does the Minister agree that social work standards need to rise, not fall? If so, will she agree to take away these concerns and consider how best to ensure meaningful progress on the issue? That is vital to the protection of children and to avoid more Baby P scandals, with huge embarrassment to the Government. I trust that the Minister will take this seriously.
Finally, I ask the Minister what will become of the GSCC code of practice for social care workers, which is another group altogether. It is important that this code of practice is retained as an element in the standards framework for social care. This is all about standards and the quality of provision. Will this code of practice be hosted by Skills for Care in the interim before any registration of these workers, or will it be lost? I reinforce the point made by the noble Lord, Lord Hunt, about the spurious financial justification for the abolition of the GSCC. I, too, understand that, financially, keeping the GSCC would stand up perfectly well—it could be self-funding on a similar basis to the HPC. I hope that the Minister will be able to explain this.
Very real risks arise from this planned merger. England will move out of line with its neighbouring countries, and we will reduce standards and safeguards in a profession at the front line of child protection. Is it really too late to rethink this high-risk plan?
Baroness Pitkeathley
My Lords, I have interests to declare other than being chair of the Council for Healthcare Regulatory Excellence in that I chaired the advisory body that led to the setting up of the General Social Care Council, and I was its first chair.
It is not for me to question the Government’s decision on these matters, but I draw your Lordships’ attention to the fact that neither the decision nor its implementation have been easy for those involved. I pay the warmest possible tribute to colleagues at the General Social Care Council and the HPC for the way in which they have dealt with this difficult situation. In particular, I acknowledge the role of the oversight group, which is chaired by Harry Cayton, the chief executive of the CHRE, and consists of colleagues from both organisations and other interested parties. However difficult those discussions may have been at times, the professionalism and commitment of those involved to the safety and interests of the end users of social workers’ work have been exemplary, as has been the commitment to ensuring that there should be as little disruption as possible to their functions during any transition period. Thanks to that professionalism, these reforms will allow for the greater integration of health and social care regulation through the renamed Health and Care Professions Council. Regulation by the HCPC—I shall have to get used to the new initials—will extend regulation to the competence of social workers, as well as to their conduct, and thus improve public protection.
I have some concerns about the proposals for the governance of the HCPC, as they do not reflect the general direction of travel in recent reforms across professional regulation. These have emphasised and focused the regulator’s governance and operations on the primary duty of public protection, not of professional representation. Historically, allowing reserved places for particular professionals in councils and committee structures was thought to be damaging to public confidence in regulators and in their decisions about standards and fitness to practise. These proposals might therefore represent a step backwards and not demonstrate good governance principles for professional regulation.
The HPC has a strong track record in taking on new registers, and has established quality assurance mechanisms to facilitate appropriate input from professional expertise, where appropriate. I hope that we shall be able to see that this is an important development, and one that protects all those professions, as well as, most importantly, the public, in the integration of social care and health in the way that we have been calling for in so many debates during the course of this Bill.
Lord Walton of Detchant
My Lords, I shall be brief because most of what I would hope to say has already been said by the noble Lord, Lord Hunt, by my noble friend Lady Meacher, and by the noble Baroness, Lady Pitkeathley. This Bill, in Clause 209, will abolish the General Social Care Council and place social worker and social care assistant regulation in the Health Professions Council, which is to be renamed the Health and Care Professions Council. This is highly undesirable for a profession that faces enormous challenges and which has only had its own regulator for just over two years. Is it possible for the Government to turn back from the brink? To take the regulation, education and performance standards of social workers and social care assistants—100,000 of them—into a body such as the Health Professions Council is likely to overload considerably the administrative procedures and activities of that council.
If this change is inevitable, the amendments that have been tabled by the noble Lord, Lord Hunt, and others are worthy of very serious consideration. They would give social care and social workers a very special and identifiable voice in the Health Professions Council. Is it really appropriate that this mass of social workers should be regulated by a body that already regulates art therapists, biomedical scientists, chiropodists, clinical scientists, dieticians, occupational therapists, physiotherapists, and many others—people who all work primarily in the health field? I quoted many of the bodies regulated by the Health Professions Council earlier today. It seems that putting the social care profession under this council is going to make it a very uncomfortable bedfellow.
I wholly appreciate the Government’s wish to have a bonfire of the quangos, and I understand why they wish to reduce the number of regulatory authorities, but there is no doubt that their last mechanism for doing this, when they brought together three major bodies and cumulated them into the Care Quality Commission, has been struggling to fulfil its responsibilities. It is functioning very effectively, but it has had a massive task in taking on all the additional responsibilities that have fallen to the Care Quality Commission since that merger. I fear that the same problems might well emerge in relation to this proposed merger, about which I therefore feel very uncertain and somewhat uncomfortable. I only wish that the Government felt able to think again.
Lord Newton of Braintree
My Lords, prompted only by the debate, I ask one simple question of my noble friend on the Front Bench. What assurance can she give me, in the light of the concerns that have been expressed, that this move will not end up with the same problems that we have had with the CQC, which was asked to take on too much, too fast, and proved incapable of doing it effectively?
Baroness Northover
These amendments on whether the clauses should stand part relate to the transfer of the regulation of social workers in England from the General Social Care Council to the Health Professions Council, and I thank noble Lords for them. The regulation of social workers in England is a very important issue, and I welcome the opportunity to discuss it.
The noble Lord, Lord Hunt, having played a key role in the establishment of various of these bodies, argues his usual very strong case. We are committed to the development of the social work profession and the transfer of the regulation of social workers in England to the Health Professions Council as part of the ongoing work to reform the profession and to ensure that such regulation is effective and sustainable. Like the noble Baroness, Lady Pitkeathley, I, too, pay tribute to those who have been involved in these changes. I have met a number of them and find impressive their commitment to the profession and to making sure that, whether they supported the changes in the first place or do now, they are doing their very best to make sure that this works as effectively as possible. The noble Baroness’s tribute to them is well deserved.
The purpose of compulsory statutory regulation is to assure the quality and safety of the regulated professions. That, of course, is separate from the development of the profession itself. We are clear that if we separate professional regulation from professional representation, action needs to be taken to ensure that social work has a strong professional voice, and that is why we are supporting the development of the College of Social Work and the appointment of a chief social worker. The proposed transfer of functions to the Health and Care Professions Council will bring a number of further benefits in the form of standards of proficiency, many of which will have been developed by and tailored for the profession, and a fitness to practise process that will look at conduct and competence in the round.
The noble Lord, Lord Hunt, raised some issues about the General Social Care Council and the costs and so on. The council has made progress in developing the organisation since the discovery of a backlog of contact cases in June 2009. However, while the council is improving, there is still a lot of work to be done to bring it into line with the other professional regulators, such as the Health Professions Council. In addition, the council estimated that its costs would significantly rise as a result of these changes, and it would have been challenging for individual social workers to meet those costs.
Lord Hunt of Kings Heath
The noble Baroness says that, but my understanding is that the latest estimate given by the GSCC is that as an independent regulator, the cost to registrants would be no different from that to the cost of registrants under the HPC, so I just do not understand the costs issue.
Baroness Northover
As the noble Lord will be aware, the figures provided by the General Social Care Council indicated that the costs would rise from £21 million to £25 million per annum, which would indeed cost about £250 per social worker. I realise that the council later revised this downwards, but the noble Lord knows as well as I do that those were the original figures based upon what the council estimated at the time. Even with the revision downwards, it was still not in line with the HPC, as I am sure the noble Lord is well aware.
However, it is extremely important to make sure that the arrangements that are in place regulate the social work profession properly and separate out the professionalisation of social work. The noble Lord will remember that he asked a question on this, and I drew the distinction for the medical profession with which the noble Lord, Lord Walton, will be familiar; the GMC regulates the medical profession, and the royal colleges do a fantastic job in promoting the profession and taking it further. The original arrangements that the noble Lord introduced were an earlier stage for social work, and the task now is to take it to the next level of development.
Regulation by the Health and Care Professions Council will bring social work regulation in England within the scope of the professional standards authority, with the added scrutiny that that will bring. It is our view that it would be wrong to require the Health Professions Council to move away from its tried and tested system of regulation solely for the social work profession.
Baroness Meacher
May I ask the Minister whether she agrees that the standards set by the HPC are just lower than standards that social workers are used to and require to do the job properly?
Baroness Northover
I am not sure that I would agree with that. If the noble Baroness bears in mind that the HPC will regulate the profession and that other means will be used to drive further forward the training standards and the education of the profession in conjunction with the regulator, it may very well be that those two things have become conflated and it is important that they are separated out.
Baroness Meacher
Would the Minister be willing to write to me to explain how these things will work? As I understand it, some standards might be set elsewhere but the standards that will be regulated will be those of the HPC, which will be very low. The HPC is the one with the regulatory powers and therefore it will not regulate the higher standards that might be set, for example, as good examples by the college. It would be helpful if we could have an explanation of how that will work in practice.
Baroness Northover
I am more than happy to write to the noble Baroness. In the discussions that I have had with various organisations, including the HPC, that is not the conclusion that I come away with. I hope that she is reassured.
Lord Walton of Detchant
I apologise for interrupting and I do not wish to prolong the debate but the noble Baroness was kind enough to refer to my presence at the General Medical Council, which ended in 1989. Things have changed a little since that time. Of course, the GMC was concerned primarily with standards of education and ensuring that those who were properly educated and qualified were fit to practise in the first instance. Secondly, it was concerned with fitness to practise and with individuals in the profession who deviated from proper standards of practice as defined by the standards committee. It was concerned with the ethics of the profession and with ongoing and further education as well as with many other responsibilities. My understanding was that all those matters were within the ambit of the General Social Care Council in relation to its responsibilities. When the General Social Care Council transfers to the Health Professions Council, can we be assured that all those responsibilities that fall to the General Social Care Council, which is very young and only just finding its way, will be taken on board?
Baroness Northover
I will write with all the details so that noble Lords can see that there is no falling back in terms of the standards that people need to reach. We would hope that this separation out will drive standards up further. I will write to the noble Lord so that he can see that for himself.
On whether there should be a specific mention of social workers in the HPC and on the other points raised by the noble Lord, Lord Hunt, currently none of the professions regulated by the Health Professions Council has its own committee, director, or representation on the council. Neither is any profession mentioned in the council’s title. Ultimately, it should be for the Health Professions Council to decide how best to regulate social workers and it has already established committees and appointed staff. It is very actively involved with the organisations involved in the transfer to see how best they need to gear things so that they are dealing with social workers appropriately.
The Council for Healthcare Regulatory Excellence has made it clear that in its view it is important that council members are focused on the governance of the organisation rather than on representing particular professional interests. We agree with this. The proposed new name of the council was decided upon with reference to the views of the Social Work Regulation Oversight Group, which includes in its membership Moira Gibb, chair of the Social Work Reform Board. None of the professions that the Health Professions Council currently regulates is specifically mentioned in the name and it would not be right to single out one profession now.
The Health Professions Council does, of course, recognise how vital the expertise and knowledge of social workers will be if it is to regulate them well. Its draft standards of proficiency for social workers have been developed by a professional liaison group which included representatives of social workers, their employers and educators. In addition, it uses members of a profession as partners to support its work. These partners have a role in approving training courses, hearing fitness to practise cases and assessing continuing professional development. They will ensure that decisions made about social workers are informed by an understanding of the complexities and challenges facing the profession.
Baroness Meacher
I wonder whether the Minister would consider that there should be a compulsory requirement. If the HPC is registering these courses, could it not be made compulsory that the course must register the students?
Baroness Northover
As I just said, the HPC is currently consulting. I strongly suggest that the noble Baroness feeds into the consultation her recommendations and the evidence on which they are based so that they can be properly considered.
The question was raised of how social workers might be linked to the wider reform programme. The Health Professions Council is represented on the reform board and will be able to contribute its expertise to the ongoing reform of social work. Moira Gibb, chair of the reform board, is also a member of the Social Work Regulation Oversight Group. Her professional expertise and knowledge is contributing to the transfer process. Many organisations on the HPC’s professional liaison group, which has developed draft standards of proficiency for social workers in England, are also on the Social Work Reform Board, which has ensured that the development of standards has been informed by wider developments in social work in England.
I hope that noble Lords will see that a lot of attention is being focused on trying to ensure that the change will operate as effectively as possible and will be in the interests of those with whom social workers work. It is exceptionally important that we protect the vulnerable people whom social workers look after, and we are acutely aware of that. On the basis of what I have said, I hope that noble Lords will not press the amendments in this group.
Lord Hunt of Kings Heath
My Lords, I am very grateful for the noble Baroness’s response. Of course I agree with her last point that the end result will be the impact on people to whom social workers provide a service. However, she did not respond to her noble friend Lord Newton, who asked whether creating this new body would not repeat some of the issues that were faced by the CQC. I am left with puzzlement. I have not heard one point in favour of this happening. It is beyond me to understand why it is being done. No argument with any thought behind it has been put to suggest that this will improve the regulation of social workers.
On the question of costs, whatever the original estimate, the General Social Care Council produced new work. The noble Baroness shakes her head. Is she saying that the General Social Care Council is misleading Parliament on the issue? It stated clearly that it can produce a regulatory system that will cost the Health Professions Council very little.
Thirdly, on the question of student registration, the problem is that I know what the outcome will be of the work that the HPC will do. It will continue with the system that it applies to the health professions. It is clear that the HPC, although it is a good body, is completely inflexible and will not change its approach because a new profession has been added to it. There is no trust out there—I have fallen into the trap set by the noble Lord, Lord Mawhinney. I am talking about the professions. There is no trust because the record of the HPC is simply to embrace profession after profession, which all have to be moulded into the system that the HPC has set. While that will work for health professions, my concern is that social work is a completely different profession. This point was put by the noble Lord, Lord Walton.
I understand why my noble friend Lady Pitkeathley is concerned about an amendment that stresses the importance of having social workers on the council of the HPC. However, because of the very new nature of the body, when one brings in a completely new profession some protection needs to be given. There needs to be some assurance that the HPC will have people at a very senior level who understand social work. I still do not know why a new council is not being appointed. If good faith was being shown by the Government to the social work profession, the current council would have been stood down and a new council appointed. That is why I tabled my amendment.
Finally, I turn to the name. The noble Baroness said that we cannot put “social work” in the name of the organisation because none of the other professions covered by the HPC is in the current HPC name. If that is the case, why does Clause 210 refer to the Health and Social Work Professions Order? The Government have no problem whatever recognising “social work” in an order before Parliament. Surely it is not up to the HPC to depart from that view. Clause 219 refers to the Professional Standards Authority for Health and Social Care. Therefore, if the noble Baroness does not like “social worker” in the title of the organisation, why would she not accept “health and social care professions”? Why is there an attempt to completely remove the concept of social work and social care from the title?
Unfortunately, an existing health body is simply taking over the social work profession without any genuflection whatever to the need to embrace social workers in the new organisation, whether in governance, remit or title. It is very disappointing that the Government are not prepared to reconsider the matter.
Baroness Masham of Ilton
Baroness Masham of Ilton
My Lords, we now have another bite at a very important cherry. My amendments in this group seek to provide for a mandatory register for healthcare assistants and assistant practitioners by doing away with “voluntary”. The Government are setting out a framework to establish a voluntary register for all unregulated health professionals. In doing so, they are making a mistake and missing an opportunity. Healthcare assistants and assistant practitioners are carrying out more and more of what are seen as nursing procedures. It is not always possible to supervise them on a busy ward or in somebody’s own home. Surely there should be a mandatory register accompanied by a programme of basic standardised training.
This proposal is supported by the Royal College of Nursing and the House of Commons Health Select Committee. The Select Committee’s report expresses concern about the Government’s proposals for a system of voluntary registration:
“The Committee endorses mandatory statutory regulation of healthcare assistants and support workers and we believe that this is the only approach which maximises public protection. The Committee notes that the Government intends to give powers to the relevant regulators to establish voluntary registers for non-regulated professionals and workers, but would urge it to see healthcare assistants, support workers and assistant practitioners as exceptions to this approach who should be subject to mandatory statutory regulation”.
A voluntary register is likely to be too weak and in any event it will be avoided by the very people about whom there is most concern. The recent horrifying scandal at Winterbourne View in Bristol underlines the issues around the registration of healthcare assistants. This view is supported by the Health Select Committee. The main benefit of ensuring that every care worker and healthcare assistant is regulated by a regulatory body is that the code of practice associated with their registration must be followed or they could be subject to disciplinary procedures.
It should also be noted that the rate at which people register with a voluntary system is open to question. A similar situation arose in the UK when seat-belt wearing was voluntary. It was only when wearing seat belts became compulsory in 1983 that the rate went from around 30 per cent to its current 95 per cent. It is highly likely that the same would happen here.
If the existing regulators are too hard-pressed to take this on, I am sure that there are other willing providers who would do this job. My interest in this is the safety and well-being of patients and the morale of those who give the service that should be given with tender loving care.
I cannot accept the Minister’s statement that we have not got the evidence. What about all the recent reports from the Audit Commission, the Patients Association and the CQC, the “Panorama” programme on the appalling situation at Winterbourne View care home, the review of Mid Staffordshire NHS Foundation Trust, the deaths and poisoning with insulin at Stepping Hill Hospital and many other serious incidents in hospitals and the community? I beg to move.
Lord Ramsbotham
My Lords, I wish to speak to my two amendments to Clause 225. I must admit that they are probing amendments that ask a question. I am confused by the situation that appears to be being proposed, and I am speaking in the context of two particular groups of people: Armed Forces veterans and prisoners.
As is well known, there is a huge pool of psychiatric morbidity in prisons, which I mentioned this morning. It is also known that a considerable number of veterans suffer from a variety of mental health problems—anxiety, depression and alcoholism—but added to them is the extra spectre of post-traumatic stress disorder. Psychotherapists and counsellors are employed particularly to help with PTSD, anxiety and depression. Unfortunately, as far as veterans are concerned, they are currently denied the choice that is available to citizens in the United Kingdom because Combat Stress, which tends to be the blanket organisation for their treatment, follows rigidly the NICE guidelines in recognising only CBT and EMDR. The care and treatment that Combat Stress provides does not meet all the cases of soldiers, veterans of other services and prisoners, and other organisations, such as the Human Givens Institute, have been having enormous success with them. Those organisations currently function under the auspices of the UKCP and the BACP, which operate voluntary registers—indeed, many organisations working in this area are registered with both.
As I understand Clause 225, the HPC, established by the previous Government, will no longer exist and instead we will have two new organisations: the Professional Standards Authority and the Health and Care Professions Council. Between them, they are going to be responsible for establishing the statutory regulation, the accreditation and, we are led to believe, the voluntary registers. This is where my question comes in. The trouble with that is that it could cause confusion because you cannot have two organisations running parallel voluntary organisations if you are going to give clarity to the people who need their services. I understand that a consultation is taking place, that the outcome is due in April or May next year and that other organisations, such as the Human Givens Institute, have been invited to attend this consultation, which they are very glad of because they have at last been able to put their case on the table.
The case is very interesting because those organisations are able to prove the success of what they have done by measured outcomes, whereas organisations that follow the NICE guidelines cannot prove anything by outcomes as they have not got them. All they can say is that they have conformed to the guidelines. One of the problems in this area is that the guidelines, which I understand were originally meant to be guidelines, are being taken as tablets of stone. That is thoroughly unfortunate in this area, particularly when we are facing the need for the Department of Health to conform to the demands, for example, of the Armed Forces covenant, which will certify that all the things needed by veterans will be available—housing, of course, but also in the health area.
It is very important that this issue is resolved and that there is clarity. People should know who is responsible for setting up which register and who is responsible for accrediting whom, so that there can be no doubt in the minds of the users. Therefore, I should be enormously grateful if the Minister could clarify that. If necessary, perhaps we could meet before Report for clarification on this matter because the organisations concerned are in doubt.
Lord Walton of Detchant
My Lords, I shall be brief but, as always, my noble friend Lady Masham was very persuasive. I have always felt, as indeed she does, that there is a powerful case to be made for the statutory regulation of healthcare assistants not only in hospitals but in homes, particularly old people’s homes. As we heard during the debate on the amendment tabled by my noble friend Lady Emerton, the Government are entirely persuaded that at present the regulation of such individuals could not be done by statute. I must say that I feel uncomfortable about that.
Is there any means by which the Government can suggest a mechanism whereby, perhaps in consultation with the Care Quality Commission, the terms of voluntary registration of healthcare assistants could be based on a set of agreed principles which were accepted generally by all the professions concerned? As it exists at the moment, voluntary registration is not adequate or strong enough and needs to be strengthened. Therefore, while I support in principle the ideas put forward by my noble friend Lady Masham, I think that for the present we will have to be satisfied with voluntary registration, which should be strengthened by whatever mechanism can be introduced.
Baroness Barker
My Lords, I have a great deal of sympathy with what the noble Lord, Lord Walton, has said. If noble Lords look at A Vision for Adult Social Care, a document published by the Government last year, they will see that the principles underpinning health and social care have been set out perhaps more clearly than they have been for some considerable time. I do not think the problem is that the principles are not there or are not known; it is that the training that brings those principles to life for a practitioner is not there.
I am torn on this issue. I listened to the noble Baroness, Lady Pitkeathley, and I was persuaded by what she said. I know of organisations which use staff who are not registered but who are exceptionally well trained and have very high standards. If the Government are reluctant—I am sure that my noble friend will again say that they are—to go down the path of full registration, I would understand that position if my noble friend would give a commitment to the development of training. That would go a long way to meeting the point to which I think all noble Lords are trying to get; namely, that the training of people involved in the direct care of those who, usually, have long-term conditions is of a high-enough quality. That is the most helpful thing that my noble friend might be able to say.
Baroness Pitkeathley
My Lords, in response to the two noble Lords from the Cross Benches who have spoken, the thinking of CHRE, which is to become the Professional Standards Authority, on the accreditation of voluntary registers is quite well developed. We would be very happy to participate in any meeting of the kind suggested.
Lord Hunt of Kings Heath
My Lords, that is a very helpful offer from my noble friend. I welcome the debate and I am grateful to the noble Baroness, Lady Masham, for moving the amendment. It seems to me that there are two issues. First, we have already had a debate about whether certain professions, particularly healthcare assistants, should be statutorily regulated. No doubt, the noble Baroness, Lady Emerton, will bring that back on Report. Secondly, notwithstanding whether one might agree or disagree about which profession should be statutorily regulated, is there some benefit in a voluntary register alongside statutory regulation or is there a halfway house, as the noble Lord, Lord Walton, has suggested, of strengthening what voluntary registration means? I have not sought to amend on the principle of voluntary registration. However, if it is accepted that there is benefit in having a voluntary register—the noble Baroness gave some powerful reasons in relation to healthcare assistants in our debate before the Statement—and if it is taken further and statutory bodies such as the NHS say, “We won’t employ you unless you are on a voluntary register”, there is then the problem that people could move on to other places and work in other care settings. Such people might have been sacked or removed by a trust. There is no guarantee of safeguards for the public. I have a sense that, once you have gone down the pathway of acknowledging that there is benefit in voluntary regulation, you are acknowledging that there should be statutory regulation.
I was very interested in what the noble Lord, Lord Ramsbotham, had to say and he will know that I have a particular interest in prison healthcare. I think that the involvement of the National Health Service in prison healthcare has led to a great improvement but more needs to be done. The points that he raised are very important.
I have put my name to Amendment 339BZA, which is in the name of the noble Lord, Lord Low, who, unfortunately, is unable to be here today. Perhaps I may briefly say that he has some strong arguments in relation to rehabilitation officers for the blind. He has pointed out that such officers work within the same legal framework as occupational therapists and social workers. They case-manage clients, devise and manage packages of care, oversee the work of lower skilled workers and manage risk-intensive situations with already vulnerable people. In Wales, statutory regulation for rehabilitation officers is due to be finalised at the end of this year. The noble Lord, Lord Low, would like some recognition that at least voluntary registration could be considered for this profession under the terms of the Bill. On that basis, I hope that the noble Baroness may be able to give some positive response to the noble Lord’s amendment.
Baroness Northover
My Lords, I thank noble Lords for these amendments, which raise important issues about the ways in which we assure the quality and safety of our health and social care workforce. It is another bite of a very important cherry, as the noble Baroness, Lady Masham, put it, which is a wonderfully graphic image. We had a full discussion of this issue earlier. Perhaps I may emphasise again that the Government are committed to embedding quality of care and patient safety at the heart of health and social care provision. These are the key drivers of our policy on workforce assurance.
I fully agree with the noble Baroness, Lady Masham, that we need to drive up quality, which has run through a lot of our debates today. In considering how we achieve this, we need to ensure that any system is proportionate and effective and properly balances the need for local responsibility for providing high-quality, safe services, and the need for consistent and rigorous national standards. I assure noble Lords that we are not ruling out compulsory statutory regulation for any groups of workers. Compulsory statutory regulation will be considered where there is a clear body of evidence that the risks presented by specific groups cannot be mitigated by assured voluntary registration alongside other existing systems of assurance of standards, such as supervision of workers by qualified professionals, enforcement of standards by employers, registration with the Care Quality Commission, and the vetting and barring system.
However, compulsory statutory regulation, as we discussed earlier although we did not all agree, is not a panacea. It is no substitute for good leadership at every level and proper and visible management of health and social care services. The best protection for the public is, of course, well run services focused on the individual and delivered by qualified staff and appropriately trained and supervised care workers. Employers, commissioners and managers must take responsibility for ensuring this and we need to make sure that local service providers and commissioners are held to account for managing problems effectively and promptly.
The Care Quality Commission sets standards of care for all providers of regulated activities and takes action when they are not met. These standards include a requirement that providers use suitable numbers of appropriately trained and qualified workers. In the rare cases where health and social care workers present a risk of harm to service users, the vetting and barring system can be used to ban individuals from working with vulnerable adults and children. In this context, our view is that the standards of unregulated groups of health and social care workers can generally be assured without imposing compulsory statutory regulation. However, we recognise that we need to ensure that commissioners, employers, supervisors and individual users of services have the knowledge needed appropriately to employ, delegate to and supervise health and social care workers. The Government believe, as noble Lords have clearly picked up, that assured voluntary registration enables this to be achieved.
The amendment tabled by the noble Lord, Lord Low, and spoken to by the noble Lord, Lord Hunt, seeks to enable regulatory bodies to establish and maintain voluntary registers of unregulated rehabilitation officers for the blind in England. The assured voluntary registration of this important group of workers would enable standards to be set for entry to and practice of the profession. I hope that I can reassure the noble Lord, Lord Low, through the noble Lord, Lord Hunt, that the amendment is unnecessary as we are confident that the provisions which enable voluntary registers as social care workers in England to be established by the Health and Care Professions Council and accredited by the Professional Standards Authority for Health and Social Care are already wide enough to include such officers.
The noble Lord, Lord Ramsbotham, flagged up key areas with his particular concern about prisoners’ mental health and the mental health of those coming out of the Army. The Health and Care Professions Council will be given the power to set up voluntary registers of workers. Perhaps I may clarify for him the possible confusion over the roles of the various bodies. The council can set up voluntary registers of workers. The Professional Standards Authority for Health and Social Care will not hold registers, but will have the function of accrediting them to ensure that they are robust. However, I am happy to write with further details to clarify the situation for the noble Lord so as to ensure that he is quite happy with the way that things will be organised.
In referring back to our earlier debate, perhaps I may assure my noble friend Lady Barker, who is absolutely right in terms of training, that we place great importance on improving the training of health and social care workers, and especially on further integrating it, something flagged up not only by my noble friend, but also earlier by the noble Baroness, Lady Emerton, and others.
I hope that I have been able to reassure noble Lords of our commitment to assuring the quality and safety of health and social care workers and the contribution assured voluntary registration can make to the existing systems of assurance of the standards of health and social care workers. I hope, therefore, that the noble Baroness will feel able to withdraw her amendment.
Baroness Masham of Ilton
My Lords, I thank all the supporters of the amendment. In an ideal situation, what the Minister has said might work, but it is not an ideal world. The important point is that of picking up those people who will not come forward for voluntary registration. What does one do with them? Some agencies might not take people on who have not voluntarily registered, but others take on anyone without even taking up references. There must be safeguards, as the noble Lord, Lord Hunt, has said. We live for the Report stage. With that, I beg leave to withdraw the amendment.
Lord Hunt of Kings Heath
“( ) The Chair will be appointed by the Secretary of State with the consent of the Health Select Committee of the House of Commons.”
Lord Hunt of Kings Heath
My Lords, this amendment brings us to NICE. I start by paying tribute to its work, and I should say that I much appreciated the commendation for the institute made by the noble Earl, Lord Howe, in the Oral Question last week. NICE was established because of the slowness of the NHS to take up proven new treatments and drugs, and although there was concern at the time of its establishment, I do not think there is any doubt that it has done a good job and that it has achieved global recognition for aspects of its work. It is important to build on this in the future and not to put any qualifications or impediments in its way or undermine its independence. That is why Amendment 340W would provide that the consent of the Health Select Committee ought to be required for the appointment of the chairman of NICE. This is a very important appointment, and I would have thought that parliamentary scrutiny will enhance confidence in the independence of NICE’s role.
Amendment 340X would remove the current provision in Schedule 17 to give the Secretary of State a veto over the appointment of the chief executive of NICE. Given the Secretary of State’s desire to take a hands-off approach and given also the enhancement in the status of NICE, I remain somewhat puzzled as to why the Secretary of State wishes to maintain a veto power over the appointment of the chief executive, and I wonder if the noble Earl would consider removing it. Surely it would be appropriate to leave it to the good sense of the chairman and members of the board to appoint the chief executive.
Amendment 344ZA ties in with Amendment 344, to which my noble friend will speak in a moment. It is important that NICE should continue to assess the cost-effectiveness to the health service of new pharmaceutical products, and certainly until this matter is incorporated into a system of quality standards as provided for in Clause 231. I assume that this is also tied to proposals on value-based pricing which we debated a little at Second Reading. Essentially, however, I would like some assurance from the noble Earl that in the current circumstances, appraisals by NICE will be subject to directions so far as implementations are concerned and that clinical commissioning groups will be required to implement such guidance. The point here is this. The other reason NICE was established was to try to remove postcode prescribing as far as possible, so it is important to ensure that this continues under the Government’s new proposals. I beg to move.
Lord Warner
My Lords, Amendment 344 in this group, in my name and that of the noble Lord, Lord Patel, and the noble Baroness, Lady Thornton, has been prompted by the Government’s apparent wish to remove NICE from technology appraisals of new drugs to assess their cost-effectiveness.
I join my noble friend Lord Hunt in paying tribute to the work that NICE has done. These technology appraisals were the original purpose of NICE when it was set up, against the wishes of the pharmaceutical industry. It has done sterling work in this area which has provided it with an international reputation. One of the strange ironies of this is that the pharmaceutical industry has come almost to love NICE, because the commercial value and standing given to some of its new products when companies receive a positive appraisal by NICE has been considerable. When I went to America to make my peace with some in the pharmaceutical industry after cutting their prices, and after they sometimes broke down in tears over the drop in their profits, they would say that if the mean NHS was willing to pay for those drugs, they must be good things in themselves.
Value-based pricing still looks to be some way off and it seems premature to many to remove NICE from the sphere of technology appraisals—here, I should declare my interest, because I have been a Minister with responsibilities for NICE. I want to press the Minister to tell us more about the arguments for removing NICE from this work, particularly given the financial challenges faced by the NHS, and whether the Government will think again about technology appraisals and NICE’s responsibilities there. That is the purpose of the amendment; I look forward to hearing the Government’s views.
Lord Owen
My Lords, I wish to extol the merits of NICE after watching it from the other side, which is the pharmaceutical industry. It is certainly true that the United States pharmaceutical industry was appalled initially by the appointment of NICE and there are still a lot of people who dislike it intensely. Nevertheless, it has established a scientific credibility which is rare in regulatory activities and which it would be absurd to forgo.
I am worried about a lot of the language used about NICE in this legislation. I know that “direct” will be discussed in another context, but there is an overall intent effectively to bring the body into the Government and make it answerable to them. The important quality of NICE, which was established particularly when it first arose, is its measure of independence. If that measure of independence is lost, NICE’s authority and credibility will go with it. I see a lot of merit in ensuring that the appointment of the chair carries not just the imprimatur of the Secretary of State but the imprimatur of Parliament. The Select Committee on Health, which has shown itself over many years to take an informed and knowledgeable view of the National Health Service, is a credible check on NICE becoming not just another annexe to the Department of Health.
I am also concerned about the additional responsibilities being given to NICE. NICE’s quality came from the fact that it was highly focused. That focus was on the pharmaceutical industry but it was also on science and scientific appraisal. It is a great help to the department to have this authoritative, independent view. We all know how easy it is for so-called wonder drugs to get sponsored by newspapers, individuals or trends. What NICE did was to give an authoritative viewpoint, as far as possible objectively, and to take its time sometimes when there was great pressure for an early pronouncement. It was able to withstand that pressure and say, “Until we get more evidence, we will not be able to form a judgment”. We all know that it is very difficult for the department, for Ministers and for people who are in the front line to have that measure of detachment, but scientific evaluation requires it, as well authority that has been built up over a substantial period.
I hope that the Government will not only listen to the proposers of the amendments but take this issue away and ask themselves whether they are not scoring an own-goal. NICE is an organisation that has worked; not many of our organisations in this field work quite so successfully and build such a substantial reputation within the profession which was sceptical about it. I agree with the noble Lord, Lord Warner, that even the pharmaceutical industry has come to see its value. A lot of other countries are looking at NICE and want something similar to be established. A lot of the language in this part of the Bill goes against that trend. I will listen carefully to the Minister’s reply, but I hope that the Government will have a fresh look at this matter.
Lord Patel
My Lords, I have added my name to Amendment 344 tabled by the noble Lord, Lord Warner. NICE should continue to do technology assessments or appraisals. It is not surprising that I should support the amendment, because I was closer to the establishment of NICE than most people may know, although I said so at Second Reading. It was a paper written when I was chairman of the Academy of Medical Royal Colleges, to establish a national institute of clinical effectiveness, which led to the establishment of NICE as an institute of clinical excellence. At the same time as Mike Rawlins, a good friend for many years, started with NICE, I was involved in a similar exercise with SMC, its sister organisation in Scotland.
The key thing about both organisations is that, despite their appraisals of drugs, neither of them has been taken to court about their advice. That says something about the scientific veracity with which examinations are carried out. Although I have views that are sometimes slightly different from NICE—for example, I think that we will have to adjust in due course the QALY from £30,000 a year because we will find with drugs that are more expensive and effective that that price is too low—I go further and say not only that NICE should not be stopped from doing these appraisals but that its remit should be extended to biochemical tests, which should not be used in the NHS unless they are proven to be useful. As genomic medicine advances, more molecular and genetic tests will come on the market. It is already happening in the United States. Tests are used which are not found to be scientifically appropriate and marketed at a ridiculous price. I give the example of a test that is used to predict whether a person with a myocardial infarction will develop chronic heart failure. We use a much simpler test. They charge £8,000 for a test which must be done twice a year; we use a stethoscope to listen to the chest to see whether there are any bubbles in it. If there are not, the person is not in cardiac failure. It is as easy as that and every medical student is taught it. It will become even more important that an organisation that is as respected as NICE is given the task of assessing biochemical, molecular and genetic tests before they are implemented in the NHS, otherwise their cost will be enormous. Every marketing company will come along and say, “This test should be used”, as is happening in the United States. I would therefore extend NICE’s technology appraisal remit beyond drugs. It offers proven, scientifically driven assessments and I cannot see why we should stop them. Besides, we would see one part of the United Kingdom continuing while another part did not. I know that if NICE says a drug produced by a British pharma, particularly a big pharma, is not effective based on QUAL, it might be difficult for that pharma to market the same drug internationally, but that is an issue that needs to be tackled separately. Value-based pricing of drugs may be an area that we need to look at again, but not the appraisals.
Earl Howe
My Lords, I know that NICE is held in very high regard by noble Lords in the Committee. The Government share that view. That is why we are putting NICE on a firmer statutory footing in the Bill, extending its role to cover social care as well as healthcare and public health, and putting NICE quality standards at the heart of quality improvement. NICE will continue to play a key role in helping to ensure that decision-making in the NHS is robust and evidence-based.
The noble Lord, Lord Owen, said that the Bill gave the impression that NICE would turn into a kind of annex of the Department of Health. I can assure him that that is not the intention of the Government. A special health authority, as NICE technically is at the moment, is much closer in technical terms to the Department of Health than the non-departmental public body that we will set up. He also said that he felt that the additional responsibilities we were placing on NICE were inappropriate. When I have spoken to Sir Michael Rawlins, the chair of NICE, he does not take that view. He regards what we are doing as a vote of confidence in NICE, which is what it is intended to be.
There has been some confusion throughout the passage of the Bill about the detail of NICE’s future role. This may underlie some of the discussion we have had in the debate around the incorporation of NICE’s technology appraisals into quality standards. First, I can confirm that NICE will continue to appraise new drugs and technologies at least until we implement our plans for value-based pricing from 2014. The Bill enables us to provide for NICE to continue this important work when it is re-established.
As we develop our plans for value-based pricing of new branded medicines, NICE’s role in appraising drugs will inevitably evolve. However, we have been clear that we expect NICE to have a central role in the value-based pricing system, including in undertaking an assessment of the costs and benefits of different medicines. That is highly analogous to its current role. I very much agree with the noble Lord, Lord Owen, that we do not wish to lose—and certainly not downplay—the skills and scientific and analytical expertise that NICE undoubtedly has. We will make announcements on the precise shape of the value-based pricing model in due course but suffice to say for now that we believe that NICE is very well placed to fulfil the role of performing the pharmacoeconomic evaluation that will underpin the value-based pricing assessment.
Alongside that, NICE may also need to continue to undertake some technology appraisal activity after 2014—for example, to review existing recommendations in the light of new evidence or to assess important new non-drug technologies. It is quite wrong to suggest that we will cease that activity within NICE.
I also take the opportunity to reassure noble Lords that we will use powers in the Bill to replicate the effect of the funding direction which ensures that the NHS in England continues to fund drugs that have been recommended by NICE’s technology appraisal guidance. However, it would not be appropriate to place in the Bill such a requirement on clinical commissioning groups—as Amendment 344ZA would seek to do. That would leave no flexibility to alter the requirement in the event that there were clear practical barriers to implementation within three months of the final guidance. Amendments to the existing funding direction have only been made on a small number of occasions but it is important to retain that flexibility and secondary legislation supports this better than putting a requirement in the Bill.
Lord Hunt of Kings Heath
My Lords, I am grateful to the noble Earl. At heart, there are two key issues here. One is the independence of NICE—I am grateful for what the noble Earl said on that. I certainly support the change in status. The reason there is some anxiety about independence is that in two parts of the Bill the NHS Commissioning Board has powers of direction over NICE. We will come on to this in relation to Clause 231 on quality standards—it applies also to Clause 236 but this is where some of the concern comes from. I am very dubious about whether quangos, to put it kindly, should have power over NICE. That is where the concern comes from and why scrutiny by the Health Select Committee of the chair would be important.
The noble Earl has reassured us that the technology appraisals will continue and that, until value-based pricing is introduced, there will be a clear understanding that NHS bodies will implement the technology appraisals. He said that it would not be appropriate for those directions to the health service to be in the Bill, but can he clarify that the current order will be amended so that instead of directions to health authorities, primary care trusts and NHS trusts in England, clinical commissioning groups will appear in the title of the order? It is quite clear that although this will be done by secondary legislation, clinical commissioning groups will be required. I take his point about the need for discretion when it comes to primary legislation, but I would like to ask him about that point.
My third point to the noble Earl is about value-based pricing. One of the joys of talking about value-based pricing is that no one understands it, and, frankly, having read all the reports and the original OXERA report, I confess that I am still rather puzzled by it. It sounds good, but I caution the Government that the PPRS has served us reasonably well. It has allowed the Government to cap the profits of the pharmaceutical industry but has given them complete discretion about the price of individual drugs—the advantage being that prices set in the UK have then been influential throughout the rest of Europe. My concern about value-based pricing is that, combined with issues around the regulation of medical health research, it makes the UK a less attractive place for the industry to invest in R&D.
My noble friend Lord Warner toured the boardrooms of New York and New Jersey, and I followed him to sweep up—
Lord Hunt of Kings Heath
—not the mess, my Lords, but my noble friend’s vigorous discussions—because of the wish to ensure that those global companies continued to invest in the UK. The problem with the Department of Health is that while it sponsors the industry, its real concern, when it comes down to it, will always be the cost of drugs to the National Health Service—hence my concern that powers of direction by the NHS Commissioning Board will not be used in a way that is conducive both to the independence of NICE and to the continued R&D spend on pharmaceuticals in this country. I do not really want to institute a debate on value-based pricing at this point, but I hope that the Government will look very carefully at its introduction and all the consequences from it. Having said that, unless the noble Earl wishes to answer the point on direction, I certainly beg leave to withdraw.
Earl Howe
My Lords, I will drop the noble Lord a letter on the funding direction, but it is our intention to place this in secondary legislation, appropriately amended as he indicated. It is possible that this will be incorporated in the standing rules as a fixture. On value-based pricing, I can tell him only that quite detailed work is currently under way on the model and that, while I agree in many ways with his comments on the PPRS, it has two unsatisfactory features. One is that it does not recognise fully the factors that society values; the other is that it does not incentivise research sufficiently to address areas of unmet need. If we can achieve both those things, it will represent an advance, but the noble Lord is right that there is still some way to go before this model is finalised.
Lord Hunt of Kings Heath
My Lords, I am grateful and beg leave to withdraw my amendment.
Lord Warner
Lord Warner
My Lords, briefly, Amendment 342 is in my name and that of the noble Lord, Lord Patel, who will speak to Amendment 343, which I also support and to which I have added my name.
Amendment 342 was prompted by the rather slow progress that seems to have been made so far on developing clinical quality standards. I accept that these are very important, so there is nothing between me and the Government on the virtue and value of those standards. However, the rate of progress seems to be about five a year, on the information that I have managed to obtain, and at the present rate of progress it looks to be well over a decade before the exercise is completed—and then, I suspect, the whole process will have to start again because standards are likely to be out of date, and science and clinical practice will have changed. This exercise could become rather like painting the Forth Bridge.
I am all in favour of taking care in the preparation of clinical quality standards and of the need for proper consultation to ensure that a spectrum of expertise and discussion is brought to bear on each clinical quality standard. It is important to get clinical support for those standards, but in this area speed is also important if patient care is not to suffer. I wonder therefore whether the processes for preparing these standards do not need some review. It is possible that the resourcing of the work may need to receive some attention. In addition, I believe much work has been done in other jurisdictions—certainly, a lot has been done in the United States—and I wonder whether the Government and NICE could not draw on this work in an effort to speed things up.
To buck things up a bit, Amendment 342 requires the Secretary of State to “agree with NICE” an annual,
“programme of clinical quality standards to be completed or revised”,
in that year. This should ensure that the process and resourcing are kept under review and that faster progress is made. These clinical quality standards are critical to delivering improved quality and efficiency in the NHS at a time of great financial challenge and rapid clinical and scientific advance. We need to press on with their preparation and to ensure that the Secretary of State and NICE give proper priority to this issue. I hope the Minister can agree that an amendment of this kind will help to achieve this. I beg to move.
Lord Patel
My Lords, briefly, I support this amendment and Amendment 343, which has been tabled in my name. Although the amendments refer to “clinical quality standards”, I am well aware that the Bill itself refers to them as “quality standards”. It was I and the noble Lord, Lord Warner, who suggested in previous amendments that “clinical” should be introduced, but I recognise of course that these quality standards will concern not only clinical but social care, and there should therefore be a reference to clinical and social care.
I have also made the point before that these standards ought to cover the patient’s journey of care, which goes from diagnosis through primary, secondary and tertiary care and on to social care.
I believe that I know something about clinical quality standards, and while the noble Lord, Lord Warner, referred to standards written in the United States, closer to home there have also been hundreds of standards written over the past eight years. I bet your Lordships now that the methodology that will be used by NICE will be exactly identical, but that is an argument which I will have with the chairman or chief executive of NICE—no doubt over a dinner some time.
What is important about these standards is that they are evidence-based so that it is possible to defend them, just as technological appraisals are evidence based and therefore possible to defend. The evidence that we are looking for is that which will deliver the best outcome for the patient, in terms of safety of treatment, diagnosis, patient experience and outcomes in terms of diseases.
It is also important that they should stand the test of time—that they are written and based on evidence that is tested over time, so that they do not have to change every three months and have people complaining that treatment has moved on. Experience has taught us that it is possible to write those kinds of quality standards, which stand the test of time but, as the noble Lord, Lord Warner, said, they are time consuming to create and therefore they have to be resourced. If you are creating standards for over a patient’s journey of care, it will require several months and expertise to do so. If you intend to have more than five or six standards a year, you require to resource them fully.
Another important issue is that standards have to be tested before they are finalised so that, just as with the technological appraisal of drugs, you do not get complaints from clinicians or anyone else. I can tell noble Lords that doctors are very good at complaining afterwards if they are not consulted. There have to be consultations with both clinicians and the public so that they will feel happier that the standards are evidence-based and will deliver the outcomes that we expect.
A third important aspect is that the standards should be easily understood. I was clear when I did the job that every one of the standards written should get a crystal mark, so that they were written in a language that people could understand. If we are going to evolve and develop information standards, a further value is that each of the quality standards is an opportunity to inform the patient about what they should know about their disease and its treatment. There can be simply written questions that the patients or relatives can use to ask about the problem in question. That gives us an opportunity to use the standards not only to manage the care of the patient but to inform the public and the patients about their disease. That way, you make the public better informed and able to demand the kind of quality care that they should get, so the systems will be operating in a way that delivers care.
My Amendment 343 says that standards should also cover long-term conditions. To me, that deals with the problem of complex long-term diseases, which need to be managed in both the acute sector and the primary or community sector. The standards should therefore be written as a patient journey of care over a longer period of time. Those are the quality standards that we should be embarking on and the numbers that we should provide for.
Lord Owen
I thank the Minister for his explanation earlier. I found much of it convincing, particularly his statement that Professor Mike Rawlins thought that this was a vote of confidence in his organisation. I have long had respect for Professor Rawlins—he was an adviser to the SDP many years ago, so I can hardly disavow his advice at this stage. I urge the Minister to consider for one moment that Amendment 342 would go a long way towards reassuring a lot of us. It would take out the word “direct” and put in the concept of agreeing, which would be much more beneficial if he wants to establish the relationship in reality.
Lord Hunt of Kings Heath
My Lords, I follow on from the noble Lord, Lord Owen. Clause 231 says:
“The relevant commissioner may direct NICE to prepare statements of standards in relation to the provision of … NHS services”.
In relation to a quality standard regarding the provision of NHS services, the relevant commissioner means the Commissioning Board.
I come back to the point about independence: surely it should be the Secretary of State who should direct NICE to prepare statements of standards in relation to the provision of NHS services. Surely, under this architecture, the concern of the Commissioning Board will be money. It is going to have to ensure that the NHS delivers what the Secretary of State requires in the mandate, which is growing ever longer as we debate the Bill, and that will mean quite a lot of pressure on it. I am worried that because it can direct NICE to prepare statements of standards, it is bound to be governed by finance; in fact, it is bound to relate the number of standards that it directs to the resource issue.
Of course one has to take account of resources, and the very fact that NICE’s technology appraisals are concerned with cost effectiveness is a recognition that we have to make judgments about the use of resources, but I would have thought that there was benefit in there being a distance between that direct concern of the Commissioning Board and the overriding leadership of the service that the Secretary of State must provide.
I wonder if the Minister would be prepared to give this further consideration. In this part of the Bill and in Clause 236, where the board can give directions to NICE, one simply has anxieties that, at least visibly, the independence of NICE might be compromised.
Earl Howe
My Lords, NICE’s independence is the foundation of its reputation as an authoritative source of evidence-based advice. To guarantee that independence, to pick up the point made by the noble Lord, Lord Hunt, the Bill contains no direction-giving power to enable NICE to be directed as to the substance of a quality standard, and explicitly prohibits regulations from enabling the Secretary of State or the NHS Commissioning Board to direct NICE on the substance of its advice, guidance or recommendations. I reassure noble Lords that the independence of NICE’s advice is assured by the very mechanism by which it formulates it—through public consultation and collaboration with respected authorities such as medical royal colleges.
I shall explain in a moment how we propose that the NICE quality standards should be commissioned, because there are different arrangements for different types of quality standard. However, the amendments begin to chip away at what we want to see—that is, a clinically led process—by specifying what really does not need to be specified, as the evidence of the quality standards published to date shows. I appreciate that many people have an interest in this programme, and that is why subsection (7) not only requires NICE to establish a process for its quality standards programme but requires a consultation on that process. That gives ample opportunity to patients, clinicians and other interested parties to have a say in how the programme is delivered.
NICE is expected to develop a broad library of between 150 and 175 quality standards, spanning the domains of the NHS outcomes framework and commissioned by the NHS Commissioning Board. The Secretary of State will have responsibility for commissioning quality standards for social care and public health. For integrated pathways of care covering NHS treatment together with public health and/or social care interventions, the Secretary of State and the Commissioning Board will be able to commission quality standards jointly. So, NICE will prepare quality standards when commissioned to do so by the board for NHS healthcare services, by the Secretary of State for the public health service and social care and jointly by the Secretary of State and the board for integrated pathways.
The noble Lord, Lord Warner, expressed his disappointment at the rate of progress of the rollout of NICE quality standards. Actually, there has been a steady start to this: we have some two dozen quality standards at the moment and, as I mentioned, we will have between 150 and 175 of them over a five-year programme. We agree with the noble Lord that it is crucial to maintain momentum with this important work, and NICE has told us that it believes that the programme is realistic. It is unnecessary to undertake to agree a programme of quality standards each year. The current programme that is being overseen by the National Quality Board is ideally placed to deliver that steady steam of quality standards over the agreed timescales.
The noble Lord, Lord Patel, asked how we will ensure that standards will stand the test of time. NICE regularly reviews its products, including guidelines and standards. This is an established part of NICE’s working procedure that has helped it to attain its high standing with patients, clinicians and, indeed, the industry. NICE is keen to take into account any new evidence and to be responsive to changes in circumstances.
As I said earlier, NICE quality standards bring clarity to quality, providing definitive and authoritative statements of high quality care and based, as the noble Lord, Lord Patel, rightly said, on the evidence of what works best. As we move towards a system that will focus on improving the outcomes that matter most to patients, it is vital that quality standards reflect these.
Amendment 343, which places a particular emphasis on long-term conditions, is understandably motivated but it may have the unintended consequence of excluding other conditions. While I sympathise with the sentiment, it is probably undesirable to specify that in the Bill. That is why the National Quality Board is overseeing the development of a process for selecting topics for the rest of the library that will integrate and build on the current process for selecting the NICE clinical guidelines. This process recognises the importance of ensuring that smaller specialties are taken into consideration. I have a long list here of topics in the proposed programme that address long-term conditions. I am happy to let noble Lords have that. This reflects the fact that these quality standards are needed to help the NHS improve outcomes in this area, as we envisaged in the NHS outcomes framework.
NICE recently completed an engagement exercise on the proposed library of quality standards. The responses were overwhelmingly positive about the programme and the role of quality standards in the new system. This feedback is reassuring, and I hope it reassures the noble Lords sufficiently to enable them not to press their amendments.
Baroness Emerton
My Lords, could I just interrupt to ask a question about the evidence-based quality standards? Where do we fit in the culture change that is so important when we look at quality standards? It is very difficult to measure a culture. We talk about trying to integrate health and social care in all the standards in primary, secondary and tertiary care. An evidence base is essential for NICE, but we have not mentioned culture at all today in this context. It is absolutely fundamental, particularly with the long-term conditions, to talk about or to include some measurement of culture.
Earl Howe
The noble Baroness is quite right and no legislation can provide for that culture change, as she will appreciate. At the same time, we can put in some important building blocks to encourage a change of culture. One is to have maximum clinical input into how the quality standards are framed and formed and, indeed, input from patient representative groups. It is very important to see things from their perspective. We can create duties, as we have in the Bill.
The work that my department has done on accelerating the uptake of innovation is relevant here. The NICE implementation collaborative—the NIC—that was part of our announcement about the growth agenda some days ago is designed to bring together the relevant stakeholder groups to see how the uptake of innovation can be accelerated and how people can be made to look at working practices in rather a different way so that cultures shift. However, it is easy for me to stand here and say that; it is less easy to drive this forward. I would not pretend that the Government are necessarily in the best place to do that, although we are clear that this shift in approach, which largely underlines the QIPP agenda as well, has to take place. However, it will take a little time.
Lord Warner
My Lords, the total purpose of my Amendment 342 was to inject some momentum into the process of delivering these quality standards. I am much reassured by what the noble Earl has said. I think my noble friend’s point about directions for the national Commissioning Board is important. It can be misleading. I hope that the revelations of the noble Lord, Lord Owen, about the chairman of NICE’s past associations will do no damage to his reputation. I beg leave to withdraw the amendment.
Lord Naseby
My Lords, the Deputy Speaker called the amendment and it was agreed, but I did not specifically hear that Clause 240 should stand part. If I may, I will intervene briefly on whether the clause should stand part, particularly the additional functions under subsection (1)(a). It states:
“NICE may do any of the following … acquire, produce, manufacture and supply goods”.
I have a query for my noble friend on the Front Bench. We are well aware that in the past some hospitals have manufactured certain generic medicines and marketed them, which has caused the normal market for medicine and pharmaceuticals to be disrupted. Secondly, we are aware, particularly recently, of certain hospitals that have been selling medicines in another market, which has caused disruption to that market and particular difficulties for parts of the country where there has been a shortage of medicines.
I may be wrong but, as I read it, this clause means that NICE will be in a position to manufacture directly, maybe even under a licence. I see that under paragraph (f) NICE will be able to,
“exploit ideas and exploit intellectual property”.
Can we be quite clear? Is my noble friend really saying that NICE, the adjudicator of value for money and all the other dimensions in the Bill to do with pharmaceuticals, medicines et cetera, will manufacture certain medicines on the side? That does not seem to be part of the role of the regulator. It seems, frankly, to be virtually direct labour within the context of NICE. I would be most grateful if my noble friend would respond. If he is not able to respond today, perhaps he will respond on Report or write to me.
Earl Howe
My Lords, I hope I can assist my noble friend. Clause 240 enables NICE to undertake additional functions, such as supplying new services and exploiting intellectual property. These functions must be related to the provision of health and social care. They seek to reproduce the income-generation powers that NICE currently enjoys as a special health authority and do not therefore represent an expansion of its powers. NICE may do this for any number or type of organisations, including the private sector and overseas Governments. This clause allows NICE to charge for carrying out these additional functions on an appropriate commercial basis.
In the White Paper Liberating the NHS: Report of the Arm’s-Length Bodies Review, the Government stated that,
“where appropriate, arm’s-length bodies will be expected to exploit commercial opportunities and maximise commercial discipline across the sector”.
NICE may carry out these additional functions provided that they do not have an impact on its ability to carry out its functions. We do not envisage, and nor does NICE, that the performance of any of these functions will interfere with its normal work programme. I hope that that is helpful to my noble friend. It is certainly not the case that NICE will be manufacturing medicines, as I think he feared.
Lord Hunt of Kings Heath
Is not the point that NICE enjoys a global reputation for the excellence of its work, as we discussed earlier? I do not know how many hits it has on its website every day but I understand that it is a considerable number. Is this not a huge advantage for the UK and that all the Government are seeking to do is to ensure that NICE can exploit that so that its work in the UK can be developed elsewhere?
Earl Howe
The noble Lord is exactly right. He will know from his time as a Minister with responsibility in this area that NICE has steadily grown its reputation overseas, and that with that have come opportunities to sell its services in a number of quarters. We simply want to see that continue.
Lord Naseby
I understand that and I understand the point made by the noble Lord, Lord Hunt. Nevertheless, to the best of my knowledge, NICE has never manufactured, and presumably from what my noble friend has said is not going to manufacture, in which case perhaps “manufacture” can be deleted from the Bill when it returns on Report.
Baroness Rawlings
My Lords, I beg to move that the House do now resume. We are most grateful to noble Lords for their brevity. As a result, we have reached our target for today so noble Lords do not need to return after the dinner break this evening for further debate on the Health and Social Care Bill.
EUC Report: Money Laundering
(12 years, 10 months ago)
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Lord Hannay of Chiswick
To ask Her Majesty’s Government what is their response to the Report of the European Union Committee on Money Laundering: Data Protection for Suspicious Activity Reports (6th Report, HL Paper 82).
Lord Hannay of Chiswick
My Lords, dinner hour debates in your Lordships' House are often a welcome interlude between two lengthy sessions devoted to the House’s primary function of rigorously scrutinising and, where necessary, amending the contents of the Government’s legislative programme, an interlude during which we can look at wider horizons and examine issues falling outside the purely legislative framework. I know that that is not the situation tonight but that is by happenstance rather than by design. However, this dinner hour debate is not one of those occasions. It is rather, as I will seek to show in a minute or two, the combination of a long process during which the European Union Select Committee has pressed the Government, eventually with some success, to modify the way in which they implement a particular legislative framework, in this case one based on an EU obligation to clamp down on money laundering. It is therefore in a way an example of that post-legislative scrutiny for which so many calls are made and of which there are few practical examples. It also involves an issue that concerns the balance to be achieved between the unquestionable need to take tough action against a form of criminal activity which has grown exponentially in recent years—namely, money laundering, with the liberalisation of capital movements on a global basis driving it—and the need to respect the protection of the individual against disproportionate action by the state and against the use of information for purposes other than those originally intended. It is therefore very much a piece, albeit a small piece, of that agenda for restoring freedom which the coalition Government have set as one of their principal objectives.
If these introductory remarks may seem a trifle self-congratulatory, I should point out that the whole process was initiated by my predecessor as the chair of the EU Select Committee’s sub-committee on home affairs, the noble Lord, Lord Jopling, and brought to fruition, with rather more delay than we would have wished, only under my own chairmanship. The purpose of this short debate is not simply to ask a question but to receive a detailed answer setting out the changes in the implementation of the rules against money laundering which the Government are now introducing. With that in mind, I look forward with anticipation to the reply of the noble Lord, Lord Henley.
Many of the matters the sub-committee looks at are concerned with the use of personal data in the fight against terrorism and other serious organised crime. The use of personal data is essential for these purposes, and the committee has always said as much. We have been quite clear on that point, but we have also been concerned that personal data should be properly used and not in any circumstances abused. The balance between the interests of national security and data protection is not an easy one to strike. It is something we have considered a number of times, among others in the context of the Schengen Information System and of the proposed EU legislation on passenger name record data, which is currently under consideration in Brussels. Tonight we are considering how that balance is best achieved in the fight against money laundering.
The committee’s involvement arose in the context of our inquiry in 2009 into money laundering and the financing of terrorism. Under the Money Laundering Regulations 2007, which implement the third money laundering directive, banks, other financial institutions, lawyers, accountants, auditors, insurers and many others are required to report to the Serious Organised Crime Agency (SOCA) any transaction or activity which seems to involve funds which are the proceeds of criminal activity. Knowledge is unnecessary. It is a suspicion based regime, and the reports are known as suspicious activity reports, or SARs. As the bankers told us in the evidence we took, “If you smell a rat, you must report it”. We did not then, and I do not now, question the utility of this; it is central to the fight against money laundering. However, we did, and still do, have concerns about the handling of the data. SARs are entered by SOCA onto a database known as ELMER, which is in effect a database of suspects, and, given the number of reports, a very large database indeed. At the time of our 2009 report, there were 1.5 million entries, and the number increases by 200,000 every year. Access to the ELMER database is available, as one might expect, to police forces and others responsible for prosecuting serious crime. However, we discovered that the data were much more widely available; for example, to trading standards authorities, and to Nottinghamshire County Council to investigate housing benefit fraud. This seemed to us to be an unwarranted use of information collected for a quite different purpose.
The committee recommended that the Information Commissioner should review and report on the operation and use of the ELMER database. I pay tribute to the noble Lord, Lord Marlesford, who was then a member of the committee, and who is unfortunately unable to be present tonight, for the persistence with which he pursued this with the Government. Eventually they agreed and the matter was referred to the Information Commissioner. The Information Commissioner conducted a full investigation and prepared a report which he sent to the chairman of the European Union Committee on 29 November 2010—slightly more than a year ago. We published it in January 2011 as an appendix to the report which we are now debating.
The Information Commissioner made four detailed recommendations as to how SOCA might improve the data protection regime of ELMER. Over the past year, we have been monitoring how those recommendations have been implemented. We have had letters from SOCA and from James Brokenshire MP, the Home Office Minister, and in October we held a very useful oral evidence session with the Information Commissioner and the Director of SOCA. Since then, we have received further information from SOCA.
Our first concern was the period for which the data are retained on the database. This used to be 10 years. The Information Commissioner suggested that five years might be more appropriate, but agreed on six years. In his latest letter, the director of SOCA has told us that as of 31 October this year SOCA had deleted some 119,000 records and intended to delete a further 600,000 by the end of this year. This would leave some 1.3 million records on the database—still a very large number. It compares unfavourably with the number on the database at the end of September 2007, which was 932,324. I hope the Minister can tell me when he expects that all records over six years old that are not being used for investigations will have been deleted, how many records he estimates will then remain on the database, and whether the number is likely then still to be increasing every year.
Our other main concern was the range of persons and bodies with access to the database, and the purposes for which the SARs data could be used. I am relieved to hear that all the arrangements for local authorities to have direct access to the database have been terminated. I note that local authorities can still have indirect access to SARs by requesting SOCA to search the database. I should be happier if the Minister could assure the House that local authorities will never have access in any other way, even if they meet the new and more stringent requirements for direct access.
In all the detailed criteria for direct access to suspicious activity reports, I could not find any limitation on the purposes for which the data can be used once they have been accessed. Could they still be used to investigate housing benefit fraud? This is not something that most people would class as serious organised crime. These are still matters about which I and the committee have some reservations, but overall the position has greatly improved over the past year. The hundreds of thousands of people who do not know that their financial transactions are listed on this database have reason to be grateful to the Information Commissioner for his review and his proposals, to SOCA for its implementation of them, although it is still incomplete, and, dare I say it, perhaps even to this committee and to this House for having set the ball rolling. We hope to receive from SOCA over the coming months further details of its implementation of the Information Commissioner’s proposals.
There is one other matter arising out of the committee’s report on money laundering, which has been the subject of correspondence with a number of government departments—the assembling of ransoms for ships and crews seized by Somali pirates. The committee recognises that this activity is not, in the present state of British law, in any way illegal. However, we can see no justification at all for the view that appears to be taken by the Government that those assembling such ransoms do not need to file a suspicious activity report. After all, the money involved is quite certainly set to become the proceeds of crime. The people to whom that money is being paid are certainly criminals and the chances that the money will subsequently be laundered must be very high, even if there is not also at least a risk that it will end up financing terrorist activities. In those circumstances, it seems to me and to my committee odd, to put it mildly, that the Government do not make it clear that an SAR should be filed, particularly since that would in no way constitute an admission of wrongdoing by those assembling the ransoms.
I am afraid that our attempts to address this point through correspondence have been met by evasion and obfuscation. I hope that the Minister can give the House a clearer and more convincing response when he replies to my Question.
Lord Dykes
My Lords, I am sure that the whole House will very much appreciate the sensible comments of the noble Lord, Lord Hannay of Chiswick. It has been some time between the publication of the report in January and this debate. Perhaps there is an important point there about the need for greater speed on a matter of enormous interest to large numbers of people. I commend the report in every way and, on these Benches, we give full support to the main points to which the noble Lord, Lord Hannay, referred and to the other details in the report.
I must declare an interest as a member of the full European Union Committee, which by implication and by asserting itself in the background has given its support to this report. Sub-committees’ reports are always published as reports of the whole committee. I hope that the Minister will respond positively to some of the important points made by the noble Lord, Lord Hannay. I add my support to his comments at the end of his speech about the problem of ship ransoms, which needs to be dealt with.
The need to find a balance in these matters is always difficult, as the noble Lord declared. I agree, and the balance will be a question of continued supervision and surveillance as time goes on, and is not an easy matter. However, we live in a world where not only technology but international capital transactions and flows have improved. As has been said, there has been the removal of national and collective exchange controls of one kind or another—particularly in this country many years ago. There have also been other developments on a rapid scale in the use of the internet and communications systems. People with crime as their intention and activity, rather than just ordinary citizens in different countries, use the same systems and technologies as others to pursue their very evil objectives in the field of terrorism and the organisation of serious crime, which is in many ways a worldwide phenomenon on a gigantic scale. The statistics are very chilling indeed when one begins to examine those matters in depth.
Therefore, that balance and government rules on access to details on any database that is growing exponentially have, as has been said, produced a great deal of anxiety among the highly educated citizens of advanced countries and others in the world who are wondering how this balance will be maintained in the future. It is very difficult.
It is not right for us automatically to begin to criticise the authorities and the Government for how they deal with this because, for them, it is a difficult balance. They must support the agencies of protection for us—the secret services as well as the police authorities, our other security agencies and the military—in how they defend this country by their resistance to the ominous developing activities in serious organised crime and worldwide terrorism. But they must protect the sacred freedom of the individual citizen from the ever-more intrusive snooping that public authorities can easily slide into if they do not have the necessary legislative and administrative controls and fierce determination by Ministers to ensure that that control is exercised practically to help the citizens of this country dealing in innocent transactions which are wrongly put onto a database for reasons that need to be explained.
I was very impressed with some of the suggestions made in the latest report which, as the noble Lord, Lord Hannay, said, followed the original report under the noble Lord, Lord Jopling, from the same Sub-Committee on Home Affairs. In the recommendation for future action on page 19, paragraph 6.1 states:
“The Commissioner makes a number of recommendations to help ensure that the processing of personal data on the ELMER database complies with the requirements of the Data Protection Act and on the legislative approach to the reporting of suspicious financial activity”.
There is a mention below in the subsequent parts of paragraph 6. In paragraph 6.1.5, the sub-committee suggests:
“That the Government considers whether, in the light of experience, the current arrangements for reporting of SARs continue to be justified, whether they are both effective and proportionate and whether they could be improved. Consideration should be given to whether there is a pressing social need to justify the requirement to report any transaction which is based on a very low threshold of suspicion that handling criminal property or money laundering is taking place”.
In relation to the accumulation of names and information on the database at a very rapid rate, the exclusions announced by the Information Commissioner have been very modest. I should have thought that the number could be greater and I look forward to the Minister’s response on how he thinks that process is developing.
In the original July 2009 report on money-laundering and the finance of terrorism, the wider subject, rather than the more narrow one on money-laundering and data protection for suspicious activity, the definitional base of what is money-laundering was set out very clearly. That, too, needs more attention to detail as experience has developed of the phenomenology of money laundering, the detail of how it is done. The knowledge of public authorities about that is not perfect; they need to investigate more and share information with other Governments and collective bodies such as the European Union. We need to consider future EU legislation to strengthen the European basis for the control system without, as I said, denting significantly the precious freedom of the individual citizen, which I hope is dear to everyone in this House.
We strongly support the contents of the report and the suggestions made by the noble Lord, Lord Hannay, tonight, particularly his final remarks on ships’ ransom construction, and hope that they will be met with agreement in all parts of the House, subject to what my noble friend can say to us to guide us on how the Government will deal with those matters with the Information Commissioner.
Lord Judd
My Lords, this is an opportunity for me to share with the House what a joy it is to serve on this committee under the chairmanship of the noble Lord, Lord Hannay. He is a tough chairman, a firm chairman, never short of his own ideas; but it is really stimulating to work with him. For me, this is not a new experience because more than 30 years ago, when I was a Minister of State in the Foreign Office, he was one of the young, immensely able, talented civil servants with whom it was good to be able to work. I am therefore having another exposure to what he brings to public affairs, which is altogether good. I say thank you.
On the report itself, with which the noble Lord has dealt as well as anyone possibly could, I have just two general points to make which struck me during our deliberations. The first is how dealing with this kind of crime and others which we considered has become immensely more challenging and complex because of the impossibility of seeing a clear dividing line between legitimate and illegitimate business. This must be a huge challenge to all those who try to police what goes on in international operations. Therefore, I think that a tribute to those who are involved in that work is timely.
The second thing that strikes me equally is the vast amount of personal information which is now available to those involved in government at a national and local level. It is a matter of not just the amount of information and how it is kept secure for the purposes for which it has been gathered but the very large number of people who are involved in the operation. I am always brought back to the old adage that “confidential” means telling other people one at a time. I find it very difficult to imagine that we can have a really watertight situation in which all this information is preserved simply for the purposes for which it was gathered. That is not to call into question the good faith of the people concerned, but inevitably, with the number of people involved and the number of conversations that take place, then again at times the dividing line between the specialists working for a particular purpose and those with whom they talk must be very difficult to keep clear. There are very big issues here that we all have to watch like hawks if we are to preserve the context of freedom and human dignity, let alone human rights, as we have come to understand them in this country.
The main point that I want to make is that, if I may say so, the noble Lord, Lord Hannay, has put the findings, feelings and discussions of the Select Committee extremely well tonight, and the whole House should be grateful to him for the work on which he leads so well.
Lord Rosser
My Lords, I, too, thank the noble Lord, Lord Hannay of Chiswick, and his committee for this report. It is clear from what he said that there has been some helpful progress over the past few months, and I hope that the Minister will be able to provide an update on exactly where we are now in relation to the Information Commissioner’s recommendations and the committee’s recommendations. As has already been said, the number of suspicious activity reports is considerable and appears to be growing by more than 500 a day, with nearly 2 million entries on the database.
As the noble Lord, Lord Hannay, said, this is the second recent report on money laundering. The first, in 2009, contained a recommendation that,
“The Information Commissioner should review and report on the operation and use of the … database, and should consider in particular whether the rules for the retention of data are compatible with the jurisprudence of the European Court of Human Rights”.
The second report, which we are considering tonight, includes the report from the Information Commissioner and the reiterated recommendation from the committee’s first report that,
“consideration should be given to amending the Proceeds of Crime Act 2002 to include a de minimis exclusion”,
which arises from the committee’s concerns about the requirement to report suspicions about the commission of trivial criminal offences and now the commissioner’s doubts about the justification of reporting transactions where there is a very low level of suspicion.
In their two letters of response in May and June this year—I do not know whether there have been further letters—the Government, as did the previous Government, rejected the introduction of a de minimis requirement,
“primarily due to the opportunities for criminals to exploit the threshold of any de minimis approach based on either the value or the seriousness of the crime”.
The Government state in their response that:
“Reports on the laundering of small amounts can and do help in identifying and tackling serious crime”.
That may well be the case but, when he responds, can the Minister provide some evidence to back up the statements in his department’s response of 17 May this year about the de minimis threshold?
The committee says that it is of the belief that,
“the Information Commissioner’s report justifies our view that the … database is not fully compliant with the Data Protection Act and the Human Rights Act”.
A considerable amount of information has to be provided, ideally in a suspicious activity report—namely, the subject’s full name, date of birth and addresses, as well as subject details, such as national insurance number, vehicle registration, driving licence, passport and phone numbers, website addresses, details of occupation and employer, details of any associates of the subject, and company details, including full legal name, designation, country of incorporation and contact details. The list does not end there.
Each suspicious activity report was assigned a deletion date of 10 years after receipt and was automatically deleted unless it had been amended or updated, in which case the deletion date was reset to six years following that event. There is also a procedure for earlier deletion of individual SARs where all necessary activity relating to an SAR has been undertaken, but it does appear that only a relatively small number of SARs compared with the total number have been permanently deleted from the database, although I understand from what the noble Lord, Lord Hannay, has said that some further progress appears to have been made in this regard.
The Information Commissioner queried whether there was any evidence of the value of data over time, such as SARs, being accessed which had been on the system for, say, longer than five years. Evidence was provided of the number of times that SARs received in 2004 or earlier were accessed by end-users during each month in 2009. What the figures showed was that the number of checks dropped substantially when records were over seven years old, and in addition it is possible that some of the older hits could have occurred when searching on similar names and not because of concerns about unlawful activity by that person. The Information Commissioner was not satisfied that there was currently sufficient evidence to support the long-term retention of SARs of no concern, and it raised concerns about compliance with the Data Protection Act.
Indeed, the committee was apparently also concerned that SARs were routinely retained for 10 years on a database to which there was wide access, especially in those cases where it could be shown that the initial suspicion was unfounded. The committee referred particularly to,
“the ruling of the European Court of Human Rights that the retention on the DNA database of the DNA of persons not convicted of a criminal offence could amount to a breach of their right to respect for private life under Article 8 of the European Convention on Human Rights”.
While, as I understand it, the Serious Organised Crime Agency has been considering this point with the Information Commissioner, does the Minister feel that there is any conflict between the Government’s intended change in policy on retention of DNA and the current revised policy, as I understand it, on retention of SARs as mentioned by the noble Lord, Lord Hannay of Chiswick—particularly bearing in mind the extent of information retained about an individual and their associates?
In his letter of 24 June of this year responding to the committee’s report, Mr James Brokenshire, the Parliamentary Under-Secretary for Crime and Security, said that he would provide an update on progress being made by the SARs committee towards the end of this year. Can the Minister say what progress has been made by this committee in seeking to improve the effectiveness of the regime, including considering whether legislative changes are necessary?
Apart from the committee’s own inquiry there has been very little in the way of post-legislative scrutiny of the relevant legislation that introduced the requirement to report suspicions over financial transactions to the Serious Organised Crime Agency. The law focuses on reporting, but there are no additional safeguards on the face of the legislation to prevent a disproportionate retention or to prevent reporting of cases likely to be of little, or indeed of no, interest. It seems that the Information Commissioner’s view is that any legislation which engages significant privacy concerns should include on the face of it a requirement on the Government to report to Parliament on how the measures have been deployed, including evidence of the extent to which the expected benefits and possible risks have been realised in practice, and the continued need for the measures in question. I simply ask the Minister: what is the Government’s view on that point?
The committee’s report also states that it is estimated—and I think I have got the figures right—that between 125,000 and 175,000 businesses could be subject to the SARs reporting requirements, but that apparently only approximately 5,000 actually report. No doubt there may be good reasons for that, but could the Minister say what interpretation the Government put on this piece of information and whether any checks are done to ensure that those who are subject to the reporting requirement are actually carrying out their responsibilities if they have suspicions of potentially questionable financial transactions?
The committee concludes its report by repeating its view that the Information Commissioner’s report justifies the view that the database is not fully compliant with the Data Protection Act and the Human Rights Act. It goes on to say that it looks forward to hearing from the Minister what steps the Government and SOCA will take to comply with the commissioner’s recommendations and the committee’s recommendations. As I said at the beginning, clearly some progress has been made on these issues over the past few months, but I hope that tonight the Minister will provide an updated response to the committee.
The Minister of State, Home Office (Lord Henley)
My Lords, as always, I am grateful to the noble Lord, Lord Hannay, and to other noble Lords who have spoken, particularly the noble Lord, Lord Judd, and my noble friend Lord Dykes who are members of the committee. I am grateful that we have had an opportunity to debate this report of the EU committee as well as, to some extent, the 2009 report and the Information Commissioner’s report which dealt with a number of these matters. I am also grateful to the noble Lord, Lord Hannay, for outlining the very important work that the House does in relation to its post-legislative scrutiny of these matters. I hope that I can give a reasonably detailed response to the various points that have been made.
The first important point is the Information Commissioner’s report. I am grateful to the noble Lord, Lord Rosser, for emphasising that. That made a number of findings, notably referring to the Elmer database. As someone rather new to this, I was fascinated to discover that the Elmer referred to in that name is not an acronym but the first name of the original head of the United States Department of the Treasury intelligence unit, back in the 1920s or 1930s, who was responsible for nailing or achieving the conviction of Al Capone on the famous occasion when they got him for tax evasion rather than for other matters. We must be grateful to that Elmer—I imagine in the United States they are even more grateful—for so doing.
The first point of call with the Information Commissioner’s report is access to the Elmer database. Secondly, the Information Commissioner referred to the retention of records, which are of no concern and which may not comply with data protection principles. Thirdly, the report also refers to how SOCA develops retention policies which are data protection and human rights compliant. I hope that I can deal with all those matters as I know that the noble Lord, Lord Hannay, as chairman of the committee, will have been particularly concerned about how SOCA had been actively working on these recommendations.
I start with access to Elmer. As recommended in the report, SOCA has continued to maintain its robust policies and procedures in respect of access. It must be remembered that Elmer is a very important intelligence tool, not just in respect of financial crime but in respect of all levels of all crime. The use of financial intelligence is not an addition but an essential part of the wider armoury of techniques to investigate criminality. That said, obviously access to Elmer has to be limited and those wanting direct access have to go through a user agreement which sets very strict criteria and which is kept under review. It is also of importance that these are individual financial investigators rather than bodies themselves. SOCA provides guidance to users and all users are required to undertake training which is generally delivered by the National Policing Improvement Agency or some other similarly approved agency before accessing the database.
Having said that, I cannot give any assurance about who may have access to Elmer in the future but, of course, concerns of this House will be considered very carefully as we develop these items.
I move on to the question of record retention and deletion policy. SOCA has introduced a new retention regime that will delete suspicious activity reports that are more than six years old. It expects to complete this task very soon. I will add one further remark. I need not even say “very soon” because the task was completed today. I can assure the noble Lord that as of today there are 1,384,477 entries on the Elmer database, and that 584,351 entries were deleted in a recent exercise. All entries that were more than six months old were deleted today, so we achieved the aim of deleting them by the end of the year.
My third point on the Data Protection Act is that SOCA will implement a Data Protection Act and Human Rights Act-compliant retention policy in three months. It is important to note that the Elmer database does not focus specifically on collecting information relating to individuals. It is essentially an assembly of reports submitted in the light of the Proceeds of Crime Act, the Terrorism Act and associated regulations. SOCA has introduced processes that will provide for the immediate deletion of SARs that are confirmed as being not linked to criminality, and for the deletion of others after six years. That is why I was pleased to make the remark about what we achieved today.
The report also asked if there was a justification for the current arrangements for reporting SARs. We feel that setting a suspicion threshold would send the wrong signal to reporters, who may reduce their scrutiny. Experience shows that criminals will attempt to find ways to circumvent controls in order to avoid arousing suspicion—for example, by breaking down large deposits. Reports that may look minor may take on a much larger significance to law enforcement when matched with intelligence both within Elmer and beyond. A threshold might have the unintended and unwanted effect of causing us to miss vital intelligence opportunities.
I will deal with a couple of further questions. The first, which was raised by the noble Lord, Lord Hannay, referred to Somali piracy. We recognise the committee's concerns regarding possible links between the payment of ransoms and terrorist finance in Somalia. There is currently no evidence of any formal organisational relationship between pirates and terrorist organisations operating in Somalia. However, we are keeping this assessment under review. My honourable friend Mr James Brokenshire, who was referred to by the noble Lord, Lord Rosser, is in receipt of the letter on this matter from the noble Lord, Lord Roper, and will provide an appropriate reply in due course. I cannot take that further and say precisely when it might appear.
The second point I will deal with, which concerns money-laundering and the Financial Action Task Force, was raised by my noble friend Lord Dykes.
Lord Hannay of Chiswick
The noble Lord is moving on from the question of Somali piracy, so I must draw his attention to the fact that he has not answered the main point that I made. One can have two views about whether it is meaningful to say that there is no direct evidence of ransom moneys reaching terrorists. However, I am not pressing the point and did not press it in my introductory question. The question that I pressed, to which he did not reply, was why the Government do not consider that the assembling of such ransoms should give rise to the filing of suspicious activity reports, because the ransoms concerned will undoubtedly be the proceeds of crime and will undoubtedly end up in the hands of criminals? In all our correspondence it has been impossible to get an answer on this point. That is why I used the somewhat unparliamentary term, “obfuscation”. Why are the Government not simply telling people who put together these ransoms that if they have reason to believe that these will end up in the hands of criminals—and I cannot believe that they do not have that—then they should file an SAR? That does not mean that the person who files the SAR is committing or admitting any wrongdoing at all. However, I find it hard to believe that since the British Government are, I assume, trying to prevent the laundering of the proceeds of ransoms around the world, are working with many other countries to do that, and have, I believe, an intelligence operation based in the Seychelles to compare evidence and to try to find out where this money goes to—
Baroness Anelay of St Johns
My Lords, I think that I ought to point out, without wishing to interrupt the noble Lord, Lord Hannay, although I do, that the Minister is still restricted to a 12-minute response time.
Lord Hannay of Chiswick
I am sorry; I am just coming to the end. I just was saying that I still find it very odd—it would be helpful if the Minister would reply on this point—that the Government do not consider that an SAR should be filed in such circumstances.
Lord Henley
My Lords, the noble Lord would never expect any obfuscation from me. He is a very distinguished former civil servant from the Foreign Office, a department which also has never obfuscated in any way whatever. I would prefer it if he would wait for a response from my honourable friend Mr James Brokenshire, which I am sure will be provided in due course. I think that that is as far as I can go on these matters, and I hope that the noble Lord will accept that. I am also mindful of the intervention of my noble friend the Chief Whip that I must move on.
I was briefly touching on the question of the Financial Action Task Force, and briefly making it clear to my noble friend Lord Dykes that it is reviewing global standards on countering money-laundering and terrorist financing. In February 2012 the FATF member countries will approve changes to the standards following this review. I hope that my noble friend will be prepared to wait for that review.
I hope that I have given a number of assurances that will satisfy noble Lords, even the noble Lord, Lord Hannay. I hope that he will be prepared to await the response from my honourable friend Mr Brokenshire. Again, I am grateful to all noble Lords for their interventions in this debate. I feel that we have had a useful discussion on these matters.