(12 years, 4 months ago)
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“The Secretary of State’s duty as to the NHS Constitution
After section 1A of the National Health Service Act 2006 insert—“1AA Duty as to NHS Constitution
“(1) In exercising functions in relation to the health service, the Secretary of State must have regard to the NHS Constitution.(2) In this Act, “NHS Constitution” has the same meaning as in Chapter 1 of Part 1 of the Health Act 2009 (see section 1 of that Act).””
Lord Hennessy of Nympsfield
I shall speak also to Amendment 150, which is in my name on the Marshalled List. These amendments are a product of the conversations chaired by my noble friend Lord Laming, designed to bring the highest possible level of consensus to what the noble Earl, Lord Howe, calls the suite of clauses dealing with the accountability of the Secretary of State. I am very grateful to my noble friend for his sensitive chairmanship of the discussions and to the Minister for generously accepting the argument—that the special essence of the National Health Service as distilled in the NHS constitution be enshrined in the Bill.
With this new status, the NHS constitution will shine even more, both as a beacon for all involved in healthcare, whatever their place in the proposed new mixed economy of service provision, and as a statement of enduring values, which occupy such a central place in how we wish our services to be undertaken and how we conceive of ourselves as a people.
I shall not detain your Lordships long, as I am confident that these amendments, for all the friction and division that other clauses have generated, are ones that embrace the views of the vast majority of your Lordships as they do the country they serve. But I must also express my gratitude to the noble Lord, Lord Darzi, and his colleagues in the last Labour Government, for commissioning the wide consultation whose streams of thought fed into the NHS constitution when it first appeared in January 2009. It managed to contain the key principles in seven well worded paragraphs, which I shall not recite as your Lordships have the text to hand and will be familiar with its ingredients.
The Bill, when an Act, will take a great deal of bedding down, and it will take the second coming for the rifts between the political parties and the anxieties expressed by so many health professionals to be assuaged—and perhaps not even then. However, with the NHS constitution in its prominent place towards the top of the statute, we shall have a touchstone, not just for aspiration and inspiration but for behaviour and conduct, a shared talisman for the tougher moments when the implementation of this Bill throws up its inevitable problems and controversies. When we find a lustrous patch of consensus on the NHS’s road from 1948, as represented by the NHS constitution, we should cherish it through thick and thin, for we are never better as a country than when we concentrate on those things that unite us rather than divide us. I beg to move.
Baroness Thornton
My Lords, I am very pleased to put my name to this amendment and I congratulate the noble Lord, Lord Hennessy, on his tact and diplomacy in getting us to this point, and in getting agreement to have the constitution mentioned in the Bill, and in such a prominent part of it. In preparing a few supportive remarks, I had a look at the constitution because I was working for my noble friend Lord Darzi in a similar role to the one the noble Baroness, Lady Northover, has—as his support and his Whip—when we were working towards the constitution, and when it was discussed and adopted across government and Parliament.
The importance of having it in the Bill is there in various key parts of the constitution, which are worth mentioning on the record here because we need to remember them as we move forward to discuss this Bill in all its glory in the next five or six weeks, or however long it takes us. The constitution says:
“The NHS is founded on a common set of principles and values that bind together the communities and people it serves—patients and public—and the staff who work for it”.
It goes on to say that it,
“establishes the principles and values of the NHS in England. It sets out rights … and pledges which the NHS is committed to achieve”.
It says:
“All NHS bodies and private and third sector providers supplying NHS services are required by law to take account of this Constitution in their decisions and actions”.
That is a very important part of why this needs to be in the Bill.
The final part which I would like to draw to your Lordships’ attention is point 6 of the guiding principles in the constitution, which is a commitment,
“to providing best value for taxpayers’ money and the most effective, fair and sustainable use of finite resources. Public funds for healthcare will be devoted solely to the benefit of the people that the NHS serves”.
That is exactly right. It is not the shareholders of companies and not individuals who might seek to make a profit but the people whom the NHS serves, and the taxpayer.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, I am very grateful to the noble Lord, Lord Hennessy, for tabling these important amendments and for the eloquent way in which he introduced them. As he said, they seek to require the Secretary of State to have regard to the NHS constitution when exercising his functions in relation to the health service. I say to him in all sincerity that I very much welcome his contribution throughout this debate. I identify myself entirely with the enthusiastic remarks that he addressed towards the constitution itself, which is a most succinct and inspiring document, and I agree with him that we have reached a very workable and satisfactory outcome to the question that he originally posed to me and to the House.
I fully support these amendments. It is right that we continue our commitment to the principles set out in the NHS constitution. I hope that these amendments together provide noble Lords with reassurance of the Government’s continued commitment to the core principles and values to which the noble Lord and the noble Baroness have referred. I commend them to the House.
Lord Hennessy of Nympsfield
I am grateful to the noble Baroness, Lady Thornton, and the noble Earl, Lord Howe, for their kind remarks. Earlier, a noble Lord—I forget who—thought we were mired in the treacle of consensus. All I can say is: long may we be stuck in this particular pot of treacle.
“, and(b) the Secretary of State should by regulations set out a clear system of recourse for patients, or other concerned individuals, who do not believe that an equitable service is being commissioned either for their condition or in their locality, or both.”
Baroness Finlay of Llandaff
My Lords, the amendment seeks to ensure that there is a system of recourse for patients or other people who are concerned and who do not believe that an equitable service is being commissioned either for their condition or in their locality. One of the difficulties that patients have is to challenge decisions once they have been made without a prohibitively expensive legal challenge. As a result, many decisions are made by commissioners that are effectively unchallengeable, for example on service configurations where the public are not consulted properly or in fact feel that they have not been consulted at all.
Some clear system of recourse is required that will give patients a meaningful chance to challenge decisions that they think are wrong, poorly consulted on or inadequately evidence-based, or that might even have ignored the evidence that is there or the guidance that goes with it. In such an instance, a system of recourse would be to allow people to challenge where they believed that services had not been provided fairly or equitably. I expect that the Minister will say that there is always healthwatch and that they could go to their local one, but how is that loop closed? What are the powers to influence the commissioning decision? How are patients who feel that they have really not been provided with the service that they need able to appeal, be listened to or have a fair hearing? They may be refused or their points may be accepted, but that loop for patients needs to be closed and there need to be clear pathways.
Lord Beecham
My Lords, I welcome the noble Baroness’s amendment, particularly because it extends the implicit obligations under Clause 3 from the individual to the locality. It includes individual access, of course, but it speaks in terms of an equitable service being commissioned either for the individual patient’s condition or in their locality, and that enhances to a considerable degree the provision of Clause 3 and its proposed amendment to the 2006 Act. The drafting of proposed new Section 1B is a little odd, it might be thought. The intention is clearly good, but,
“have regard to the need to reduce inequalities between the people of England”,
is a slightly curious phrase. It might be asked, between the people of England and what? The drafting could be improved by the time we get to—actually it will not, as we are on Report. Perhaps it is capable of being improved, let us say.
The noble Baroness has touched on the broader issue of the locality, which raises issues of how the Government might pursue their objectives, which are shared by all sides of the House. There are different organisations in the new structure that will have a responsibility to promote equality, which will include the clinical commissioning groups and the health and well-being boards. Some mechanism ought to provide accountability for both those bodies. In particular, the need to promote equal treatment in a patient-centred service ought to be very much part of the joint strategic needs assessment that should be undertaken by the health and well-being boards, and ought to influence the commissioning. We hope that these regulations will establish that connection and, as the noble Baroness has suggested, lay down a clear structure, though not one that is too prescriptive—a pathway, as she usefully put it, for patients, individually or, as it were, collectively, to raise the issues that concern them through healthwatch.
There is another route that I hope the noble Baroness will agree would be helpful. Local authorities retain the duty of scrutiny of local health services. For that matter, inequalities can arise on the social care side of the health and social care world. Local authorities therefore provide an additional route that would repay further consideration. It ought to be feasible for a health and scrutiny committee, and I serve on one in my own authority, to have regard to the level and type of complaints regarding not only equitability but the standard of service in all parts of the health and social care services in that locality. Therefore, it would be useful if the Minister could liaise with the Local Government Association, perhaps to produce some kind of working model for dealing with this aspect. For example, it may be that the Centre for Public Scrutiny could, in conjunction with the department, the LGA and HealthWatch itself, representing patients, come up with a model that authorities could adopt and promote among their populations to provide clear recourse for dealing with difficulties and complaints about either individual treatment or collective provision that is a matter of local concern.
I hope the Minister will accept the thrust of the amendment and, even if it is not built into the Bill, that action can be taken to fulfil the aspirations that the noble Baroness has outlined.
Lord Willis of Knaresborough
My Lords, briefly, I should like some clarification on this amendment, and I hope that the Minister will be able to provide just that in summing up. There seems to be a real difficulty here. The architecture of the Bill says that we should have a Commissioning Board and local commissioning groups, and that those local commissioning groups will have a great deal of autonomy over the services that they commission—for example, the drug pathways that they permit—in treating particular patients. This amendment appears to say that if the treatment given through the commissioning pathway of one commissioning group is different from that of another commissioning group, you would therefore have recourse to action if you felt, for instance, that the drug regime in one group was unacceptable. Perhaps I could have clarification on that. It is important because there will be that sort of difference in provision, regardless of whether we agree to the local commissioning group position.
Lord Northbourne
My Lords, I intervene briefly to support the noble Baroness, Lady Finlay, because I believe that there will be real problems. The immense complexity of the Bill will lead to tremendous delays and a great deal of misunderstanding among people who feel, rightly or wrongly, that they have failed to get the service or treatment to which they are entitled. I hope the Minister can say something about the possibility of some sort of short-circuit response, whereby people who feel that they have been ill treated can, if necessary, have some kind of help and encouragement to make contact with the right people to resolve their problem.
Earl Howe
My Lords, this has been a very useful short debate. As the noble Baroness, Lady Finlay, said, her amendment seeks to provide appropriate recourse for individuals who believe that the commissioning of services for either their condition or their locality is inequitable. It would insert a new paragraph in the Secretary of State’s inequality duties. The noble Baroness spoke with considerable persuasiveness on this amendment but I will suggest to her that it is unnecessary and explain why.
The Bill and existing legislation already provide a number of mechanisms for exactly the kind of recourse that the noble Baroness seeks. She foresaw that I would talk about local healthwatch and I will. Local healthwatch, which will replace local involvement networks from April 2013, will provide local people with the opportunity to have their views on their needs and experiences made known to commissioners and providers of health and social care services and others. One of the roles of local healthwatch will be to make reports and recommendations about how local care services could or ought to be improved. To ensure that these have real clout, the Bill requires the people who receive such reports and recommendations, such as the NHS Commissioning Board, to have regard to them in exercising any function relating to care services.
We then have a further avenue for recourse because HealthWatch England will also provide the NHS Commissioning Board, among others, with the views of people on their needs for, and experiences of, health and social care services and on the views of local healthwatch and others on the standard of provision of services and on whether or how the standard could or should be improved. Where the board is provided with advice, it must inform HealthWatch England of its response, or proposed response, to the advice.
However, if an individual feels that a CCG, or the board, or any other body in the future health service, has neglected their responsibility with regard to tackling inequalities, they can do several things. They may raise the matter directly with the organisation itself, specifically by pursuing a complaint through the NHS complaints procedure. Where not satisfied with the response at a local level, they may refer the matter to the Health Service Ombudsman. As a last resort—I emphasise “last resort” because I do not want noble Lords to feel that this process would be run of the mill—as the NHS constitution makes clear, should an individual feel that local resolution has not been possible, and in the event that the Secretary of State or an NHS body is failing to comply with its legal duties, there would be a right to seek legal redress by means of a claim for judicial review.
There is a central issue here. CCGs will be under a statutory obligation to arrange for provision of care to meet the reasonable requirements of the people for whom they have responsibility. The local authority’s health and well-being board, the membership of which will include the CCG or CCGs, will assess local population needs, and will develop a strategy to meet those needs. Local healthwatch will also be a member of that board and be able to input into the strategy. There will be a duty on the CCG, the local authority and the NHS Commissioning Board to have regard to the relevant assessment and strategy when exercising functions. This would include the function of preparing commissioning plans. The NHS Commissioning Board will have a duty to perform an annual assessment of how well each CCG has fulfilled its duties in the previous financial year. This will include, in particular, an assessment of how well it has taken account of assessments and strategies under Section 116B of the Local Government and Public Involvement in Health Act 2007.
My noble friend Lord Willis rightly said that we should expect that there will be differences between CCGs in their commissioning policies. Of course he is right, because each CCG will be bound to formulate policies for commissioning that reflect the needs of their constituent populations. I do not think that we should shy away from variation that is considered and that genuinely reflects that diversity in population. What we do not want, clearly, is postcode and random variations which have no relationship to the needs and requirements of local patients.
We should not forget either that the Health Service Commissioner has power to investigate complaints that are not resolved locally and to make recommendations as a result of those investigations. It is very rare for those recommendations not to be implemented but, in extremis—and this is not often done—the Health Service Commissioner is able to lay a report before Parliament.
We believe, therefore, that there is already a clear system of recourse where patients are concerned that an equitable service is not being commissioned either for their condition or their locality, and the Bill strengthens the ability of patients to make their views heard. The Bill also introduces, for the first time ever, duties on the Secretary of State and commissioners to have regard to the need to reduce inequalities, and amendments we have tabled would ensure that they would have to report on how they had fulfilled those duties.
With those remarks in the round, I hope that the noble Baroness is perhaps more reassured than she was at the outset of the debate, and that she will be willing to withdraw the amendment.
Baroness Jolly
Before the Minister sits down, will he clarify whether the same processes that he has just outlined would apply to people in receipt of specialist services that are commissioned by the NHS Commissioning Board, not by local CCGs?
Earl Howe
My Lords, where a service is commissioned by the NHS Commissioning Board—and let us imagine that it is a specialised service—the patient’s recourse should be to the board. However, of course, the board will be represented at a local level rather than only centrally, and we expect that the board will be represented in health and well-being boards and in the discussions that take place there. It would therefore be possible for a patient to address their concerns, in the first instance, to the health and well-being board, which would have the ability and power to communicate directly with the NHS Commissioning Board, if that was felt to be appropriate. However, as I said, the patient would be able to go straight to the board in those circumstances.
Lord Harris of Haringey
I appreciate that this is very bad manners, given that I missed most of the debate. The Minister has just said—although perhaps I misinterpreted him—that the NHS Commissioning Board will have a representative on every local health and well-being board. If so, how will those individuals be known or accountable? Is that not the most extraordinary bureaucracy? He seems to have made a most extraordinary statement.
Earl Howe
My Lords, we are at Report stage and I hope that the noble Lord will forgive me if I do not reply at length. The point I was seeking to make was not about representation on the board but involvement in the health and well-being board’s wider deliberations. It is entirely open to a health and well-being board to invite a member of the Commissioning Board to be a permanent member, but I am not saying that we are prescribing that.
Baroness Finlay of Llandaff
Perhaps I may seek a tiny bit of clarification. The noble Earl spoke about the ombudsman as being almost a final port of call. Will the Minister confirm that the ombudsman would have the ability to investigate any organisation that is providing services to patients if it is in receipt of any NHS money whatever—not only if the care for an individual patient is commissioned from it but if it is receiving a block grant? In particular, I have in mind services such as those provided by hospices that may be receiving a block grant but do not have a specified contract per patient, and it may be that its patients want to question what is going on or that they have a concern that they wish to express and take further. Apart from the local complaints service within the organisation, it is really important that such patients have the same ability as other patients to have oversight through the ombudsman. I know that we have discussed this previously, and I am seeking clarification today on that issue.
Baroness Finlay of Llandaff
This is Report; I do not want to and fro. I will assume that that covers part-funding of care by charities as well as where care is fully funded by the NHS, so the same will apply.
I am grateful to the Minister for setting out the processes so clearly. It will be very helpful for patients, patient groups and charities in particular to see that laid out. For clarification, of course there will be local variation, different drug regimes and different ways of doing things. Equipoise is around the evidence base. The problem is where there is no provision or gross differences. That is where patient groups are concerned. I beg leave to withdraw the amendment.
Earl Howe
My Lords, I shall speak also to Amendments 9, 34, 53 and 54.
This group of amendments deals with the role of the Secretary of State in the health system. As noble Lords will be aware, our proposals for the NHS involve a fundamental shift in the balance of power away from politicians to patients themselves and to doctors and other professionals. Greater local autonomy is one of the key things that will enable local front-line services to become more responsive and innovative, in turn delivering greater efficiency and quality. The Bill makes clear that Ministers are responsible, not for direct operational management, but for overseeing and holding to account the national bodies in the system—backed by extensive powers of intervention in the event of significant failure.
The amendments we are debating here cover some of the key concerns raised by the Constitution Committee and Peers from across the House, as part of our wider discussions about ministerial accountability. These are the autonomy duties on the Secretary of State and the Commissioning Board and the link between the functions of clinical commissioning groups and the Secretary of State’s duty to promote the comprehensive health service. I will speak to each of the amendments tabled in my name, as well as the amendments tabled by the noble Baroness, Lady Thornton, which seek to remove the duties of autonomy on the NHS Commissioning Board and the Secretary of State.
Amendments 8 to 10 and 52 to 54 concern the autonomy duties placed on the Secretary of State and the board. Government Amendments 8 and 53 re-phrase the duties of autonomy on the Secretary of State and the Commissioning Board as duties to,
“have regard to the desirability of”,
autonomy, rather than duties to,
“act with a view to securing”,
such autonomy. The desirability of autonomy is therefore a factor for the Secretary of State and the board to consider when exercising their functions, rather than an end which they must seek to secure or promote. That should allay the fears of those who felt that the autonomy duties would prevent Ministers and the board intervening when they needed to.
In addition, changing to a duty to have regard necessarily means that the autonomy duties are subsidiary to the primary duties of the Secretary of State in Section 1 of the NHS Act: to promote the health service and to exercise his functions so as to secure the provision of services. To that extent, there is no further need to state that the duties of autonomy are “subject to” his Section 1 duties. However, government Amendments 9 and 54 make a further change to address this point. Rather than simply say that the autonomy duty is “subject to” the duty of promoting the comprehensive health service, they set out an explicit test, which makes clear that promoting the health service and securing the provision of services takes priority over autonomy, if there is ever a conflict between the duties. We think that this more clearly indicates how the Secretary of State and the board should resolve any tension between autonomy and the interests of the health service. I hope that noble Lords will agree that this provides helpful clarity and avoids any possible doubt.
Having said that I would address the amendments of the noble Baroness, Lady Thornton, I think that on reflection it would be discourteous of me to do so before she has introduced them. I shall therefore retain my remarks for later in the debate if she chooses to speak to those amendments. Meanwhile, I beg to move.
Lord Marks of Henley-on-Thames
My Lords, perhaps I may explain why I support the Government’s amendments on the autonomy clauses to which I have added my name—that is, Amendments 8, 9, 53 and 54.
The autonomy clauses were at the heart of the Government’s consultation with other noble Lords about the Secretary of State’s duties. During Committee and thereafter, at the very helpful discussions that we have had with my noble friend the Minister and with Peers across the House and, indeed, at the meeting of lawyers in which I took part with my noble and learned friend Lord Mackay, the noble and learned Baroness, Lady Scotland, and the lawyer advising your Lordships’ Constitution Committee, a substantial consensus was reached.
The concerns that we sought to address, which I regarded then and still regard as significant, were twofold. The first was that I believed there would be an inherent conflict between, on the one hand, the Secretary of State’s duties under Clause 1 to promote a comprehensive health service and to exercise his functions so as to secure services and, on the other hand, an unfettered duty to promote the autonomy of others. Secondly, if the Bill went unamended, there would exist a risk that a Secretary of State who was unwilling to intervene when things went wrong would be handed a justification for inaction. Such a hands-off Secretary of State could say, “I will not intervene because I am bound by my duty to promote autonomy”. In my view, with the Bill as it stands it would be very difficult to mount a successful legal challenge to such a failure to intervene.
Those were the two flaws in the Bill that the amendments were required to address. In relation to the board, the unamended Bill was flawed in exactly the same way as it is in relation to the Secretary of State.
The consultations that we held outside the Chamber during Committee led to the formulation of the Government’s amendments. As the Minister has pointed out, the effect of Amendments 8 and 53 is that the duty to act with a view to securing autonomy is reduced to a duty to have regard to the desirability of securing it. That is still subject to the limitation that the duty applies only so far as it is consistent with the interests of the health service. Therefore, what is currently an absolute duty to follow the autonomy line is to be replaced with a more nuanced and, I suggest, a more appropriate obligation to accord to the desirability of autonomy its proper place in the balancing exercise which all discretionary decision-making involves.
However, it is Amendments 9 and 54 that are decisive in addressing the concerns that we identified. Those two amendments provide that in the case of conflict between the Secretary of State’s or the board’s duties in relation to autonomy and their overarching duties under Clause 1 or the board’s overarching duties to secure the provision of services, those overarching duties will prevail. Those four amendments taken together fully address the two flaws of which I spoke and, I suggest, completely resolve the issues that they pose.
I turn now to the two amendments of the noble Baroness, Lady Thornton, directed at deleting the two autonomy clauses. Indeed, at the earlier stages of this process, I believed that the autonomy clauses could and should be deleted from the Bill. However, my view now is that with the problems that they presented having been addressed, we should support the government amendments and retain the two clauses as amended. Promoting autonomy is, in principle, to be welcomed as many who have spoken from all sides of the House both on Second Reading and in Committee have stressed. It is fundamental to the architecture of the Bill, and its great merit that it establishes a clear, decentralised structure for the health service. It is entirely welcome that future commissioning decisions, in particular, will be made locally to meet local needs, locally assessed.
Baroness Jay of Paddington
My Lords, the House will be aware that the second report of the Constitution Committee on this Bill suggested amendments in this area, precisely for the reasons well outlined by the noble Lord, Lord Marks, and as expressed by the Minister. We were concerned that the way in which the Bill was originally framed would dilute that line of responsibility through the Secretary of State and that the provisions on autonomy were such that that link would be broken, or at least threatened.
I wish to explain briefly why, although the committee produced amendments that are very similar to the ones tabled by the Government and supported by the noble Lord, Lord Marks, I have not put my name to them. That is simply because the wording of the government amendment is not as simple as the one that the Constitution Committee supported and wished to see in the Bill. We suggested:
“Subject to sections 1(1) and 1(3)”,
which we discussed on government Amendment 5,
“and so far as is consistent with the interests of the health service, the Secretary of State must, in exercising functions in relation to that service, have regard to the desirability of securing”,
et cetera. Clearly that is very close to the wording of the amendment tabled by the Government. The Constitution Committee is particularly grateful for the phrase “having regard to”, as the Minister has explained. We were not in a position to discuss the change in formulation that has occurred, and we have yet to listen to my noble friend Lady Thornton, but as there were members of the committee who, like me, would prefer to see this clause deleted, I have not put my name to this amendment although I understand that it is very close to the one that the committee originally suggested.
Baroness Finlay of Llandaff
My Lords, I wish to raise some questions because I have put my name to the amendment suggesting that Clause 4 be deleted. The Government’s guidance notes published with the amendment that has been tabled appear to make the duty of autonomy subject to the Secretary of State, but there is ongoing concern that there remains the risk that the clause could be used by clinical commissioning groups to justify not providing a full range of services or putting inappropriate services out to tender. While local organisations should have the freedom to respond appropriately to the health needs of the population, local commissioners should not be able to act totally autonomously and commissioners must have regard to national guidance. In his closing summary, the counsel to the chair in the Francis inquiry pointed out that there is a need for far greater standardisation of operating and quality standards in the NHS and close monitoring of compliance.
Concern about the inclusion of Clause 4 continues to lead to some uncertainty, confusion and concern about how competition would be applied in the new system. Phase 2 of the Future Forum recommended that the Government clarify the rules on choice, competition and integration. The concern is that if the restraint on autonomy is not as tight as it possibly ought to be, services could fragment. The Government need to clarify that integration will trump competition. I ask the Minister to clarify that the national Commissioning Board will be prepared to intervene if clinicians feel that the type of competition that is being proposed could fragment services. We have heard quite a lot about commissioning along whole-care pathways, such as musculoskeletal services and mental health services, and in whole-function areas, such as community services. There is concern that where this has happened in the east of England with musculoskeletal and respiratory pathways, there is a sense that they should have been put out to tender more than they have been. There is concern that there are times when whole-care pathways should not be subject to competition. The difficulty with the clause is that it leaves in doubt how much integrated whole-care pathways, which may not leave complete autonomy to different parts of the system, will trump competition between different parts of the system.
Lord Warner
My Lords, I had not intended to intervene in this group of amendments, but I want to make a couple of points and leave a question with the Minister. I have always been in the camp that feels that Clause 4 was misguided and should be abandoned. I can see the case, which was put very well by the noble Lord, Lord Marks, for retaining Clause 4 with these more controlled features. Listening to this debate, I have a number of concerns.
There is genuine concern that there might be a really rogue clinical commissioning group, but listening to the noble Baroness, Lady Finlay, has revived my concern that somewhere along the line, if we are not very careful and are too controlling, we will stop the initiatives that we want from commissioners as the NHS faces considerable challenges. As the House knows, I do not have the same fear that other Members of your Lordships' House have about third-sector or independent-sector providers, so I would not want anything in the peace that we see breaking out here to inhibit creative clinical commissioning groups setting off on new paths for new types of services simply because major people in the NHS have not woken up to the need for significant change. I hope that the Minister can reassure me that, in accepting this more nuanced version of Clause 4 on autonomy, we are not really inhibiting the creativity of clinical commissioning groups to bring in new players, even if it may seem a rather radical idea when they start to do it.
Finally, as the Minister knows, I have a mild obsession with the whole issue of a pre-failure provision in this legislation, which we will come to later. One of my continuing concerns is that we do not want to end up with a situation where we are restricting the ability of the National Commissioning Board to begin to intervene—to tackle failure at the local level—simply because autonomy requires people to flounder along as long as they like on the grounds that it is all about localism. I hope the nuanced version of Clause 4 that we are getting is still accepted as something that would enable the National Commissioning Board to intervene when there was a total failure by providers and commissioners at the local level to tackle the problems of clinical and financial unsustainability.
Lord Harris of Haringey
My Lords, every time I look at Clause 4—[Laughter.] I cannot understand what my noble friends find so amusing, but every time I look at this particular clause—if that makes it easier for them—and particularly listening to the remarks of the noble Lord, Lord Marks of Henley-on-Thames, I have been confused as to what problem the Government think they are solving by the clauses on autonomy.
There is apparently a concern about micromanagement. There is a desire to have local innovation, flexibility and local responsiveness. What is it about the current arrangements in the NHS that necessarily prevents local innovation, flexibility and local responsiveness? Why are we having these discussions? If there is a concern from the Government that they are micromanaging, they have a solution—they stop micromanaging. Again, what are we trying to do here?
However, once you include,
“the desirability of securing, so far as consistent with the interests of the health service”—
or whatever form of words you choose to have—this principle of autonomy, you are setting up an automatic conflict. If the form of words that the Minister and the noble Lord, Lord Marks of Henley-on-Thames, have put their names to was in the Bill, does this mean that the Secretary of State will be intervening when there are clear cases of postcode lottery? That presumably is the implication. Or is the Secretary of State now going to say that in fact a postcode lottery is what this legislation is designed to create? We should be clear about what these clauses are trying to prevent. What is the problem that they are trying to solve?
The noble Lord, Lord Marks of Henley-on-Thames, was moving in his description of how the Secretary of State would weigh these difficult issues of the possible conflict between,
“the desirability of securing, so far as consistent with the interests of the health service”,
autonomy and the priorities of the fundamental role of the NHS. This is a balance that has to be weighed. He talked about this line of accountability that will exist between the NHS Commissioning Board and the CCGs—these tentacles that the NHS Commissioning Board will put throughout the NHS. They will be unaccountable and anonymous, and individuals will be operating at regional or at local level.
There will be an army of people operating as the tentacles of the NHS Commissioning Board. They will be informing the Secretary of State so that he can exercise his judgments about the balance between autonomy and meeting the principles of the NHS. I wonder whether the Secretary of State is creating the most extraordinary bureaucratic monster to solve a problem that could be easily solved simply by resisting his tendency to micromanage.
Baroness Jolly
My Lords, I support the government amendments in this group, which are also in the name of my noble friend Lord Marks. They represent the last in a suite of 10 amendments which came out of the process so eloquently described by many noble Lords in earlier debates today, and which take us from the Secretary of State right through the board to CCGs, accountability and micromanagement, tentacles and all.
Like everyone else I should like to state my thanks, and on my Benches there are two people to whom I owe particular thanks. My noble friends Lady Williams and Lord Marks worked very hard from last March to make this happen. In association with many others, including my noble and learned friend Lord Mackay of Clashfern and the noble Lord, Lord Hennessy, who is no longer in his place, they worked extremely hard at getting these amendments together. I hope that the noble Lord feels comfortable and confident about the expression he used in Committee about the DNA of NHS Bills, and that he feels that that DNA is now weaving through this suite of amendments—from the 1940s to the 21st century. The noble Baroness, Lady Jay of Paddington, and the Constitution Committee played such a vital role, and my noble friend the Minister smoothed the way. As I say, however, I thank in particular my noble friends Lady Williams and Lord Marks.
Baroness Thornton
My Lords, when we were having our negotiations on this part—on which I was very happy to take part, even if I was regarded on some issues more as grit in the oyster than as co-operative help—they were about these issues, including autonomy. I have not changed my view. I shall speak to Amendments 10, 36 and 52.
We have no problem with the concept of autonomy. In principle our position is that autonomy has to be earned, and that it should be able to be taken away as well. That formed the principle and the basis on which the foundation trusts were established. However, we part company with the Government on their view of autonomy, and we are not completely convinced by the point made by the noble Lord, Lord Marks of Henley-on-Thames. On first sight of the Bill it seemed that autonomy was to be presumed and that each part of the service would be subject to less interference from the other parts in a way which could be detrimental. There would therefore be less performance management, and giving various bodies more powers with less need to sign off an agreement could mean that there would be less co-operation. Bodies acting in their own interests via a market process will mean that the motivation could be something that does not have the NHS and patients at its heart, and that there is less planning and system management, which sometimes actually is required. That is how you deal with things like postcode lotteries. You have to collect the information, compare it between different parts of the country experiencing different levels of deprivation, and then you have to take decisions which are about planning how to use your resources to ensure that people are not disadvantaged. So there are some very good reasons why planning and systems need to be in place.
The original briefing on the Bill stated that CCGs would not have PCTs or SHAs above them to performance manage them and that the commissioning bodies were not meant to performance manage but only to step in if there was a danger of failure. Again, that was the original briefing. It is not surprising that when we first discussed this in Committee there was general agreement across the House that the Bill would be better off without Clause 4 and what was then Clause 10 but is now Clause 12.
Since then the Constitution Committee has done what I think is really rather a good job. Although I was not deliriously happy about it, I was prepared to live with the draft produced by the committee. However, I do have problems with the draft that the noble Lord, Lord Marks, and the Minister have brought to the House. The provisions are not strong enough and some of the dangers that we originally expressed about problems with the autonomy clauses still exist. Furthermore, I take very much to heart the questions that both of my noble friends have raised. From different points of view they have asked pertinent questions and shown up the problems with the autonomy clauses. That is why, certainly in the process of our negotiations on Clause 4, I reserved my position to come to the House and explore whether what we actually wanted to do was delete it completely at this stage. On Clause 12, for the sake of consistency we feel that it should also be deleted. However, I have to say that because of the amendments that were accepted in the process of our negotiations, we feel less strongly about it.
I am not any more convinced as a result of this debate that our original position is not the right one—that if we cannot have the Constitution Committee’s version of Clause 4, we should delete the whole clause. Obviously I will listen to the Minister’s summing up of the debate, but at the moment I remain convinced that our position is indeed the correct one.
Earl Howe
My Lords, the noble Baroness, Lady Thornton, has spoken to Amendments 10 and 52, which, as she has said, would remove altogether the autonomy duties on the Secretary of State and the board. The noble Lord, Lord Harris, asked me what the problem is that the Bill is trying to solve in this regard. The duty is intended to promote a culture of fostering local autonomy rather than to outlaw specific practices; but without a focus on autonomy, it is possible that the mandate from the Secretary of State to the board or the framework document from the board to CCGs could impose disproportionately burdensome requirements on the system. The Government believe that local operational autonomy is essential to enable the health service to improve the outcomes of care for patients, provided that autonomy is within the framework of clear ministerial accountability.
The noble Baroness will be aware, because I have said it before, that we are aiming to free those closest to services to take decisions that are right for patients, free from central micromanagement by either the Department of Health or the NHS Commissioning Board. The amended duties, with the caveat that the interests of the health service take priority, achieve the right balance between autonomy and accountability. Without the clause, a future Secretary of State could choose to ignore one of the fundamental principles of the Bill, which is that those closest to patients are best placed to take clinical decisions. Without the clause, a future Secretary of State would be free to use his extensive powers to micromanage the NHS. The autonomy duty is a necessary part of the Bill, placing a duty on the Secretary of State to consider the expertise of those in the health service while recognising that there will be circumstances—
Lord Harris of Haringey
My Lords, the noble Earl seems to be saying that you cannot trust your own Secretary of State not to micromanage unless they are effectively forbidden from doing so. We have all talked of the Secretary of State’s accountability to Parliament. Surely the principle is that an accountable Secretary of State will be under enormous pressure from Parliament not to micromanage. If it is such a central issue of policy, Secretaries of State should simply be told not to do it, rather than requiring an Act of Parliament.
Earl Howe
I challenge the noble Lord to think of one Secretary of State, with the distinguished exception of my right honourable friend Mr Lansley, who has not succumbed to the temptation of micromanaging the NHS. No Secretary of State has been able to resist that temptation because, frankly, Parliament expects them to do it. That is what the system has expected of the Secretary of State. This is a burden on commissioners and clinicians, and, in the end, it does not well serve the interests of patients. It is all very well for the noble Lord to say, “Well, just stop”, but the system encourages it and the duties on the Secretary of State are there to encourage it.
Baroness Thornton
I cannot resist saying that the noble Earl’s right honourable friend Mr Lansley has dabbled and intervened on at least 12 occasions since the Bill started. He is on the record as saying on one of those occasions that certain managers should be sacked. Is the noble Earl saying that that will cease when this Bill is on the statute book?
Earl Howe
I am saying that the Secretary of State will not have the ability to micromanage the health service as he does at the moment. Whether the examples cited by the noble Baroness constitute micromanagement, if my right honourable friend is just expressing a view, I rather question.
The autonomy duty is a necessary part of the Bill because it places a duty on the Secretary of State to consider the expertise of those in the health service while recognising that there will be circumstances in which they must be able to step in to protect the interests of health service patients. That is the balance that we are trying to strike.
The noble Baroness, Lady Finlay, asked whether the autonomy duty would allow a clinical commissioning group to justify not commissioning the full range of services. The autonomy duty does not apply to CCGs; it is a requirement on the board and the Secretary of State. If a CCG chooses not to commission services and the board considers that this is not consistent with the interests of the health service, the board can intervene to direct a CCG. If the board fails to intervene when necessary, the Secretary of State has power to intervene. Finally, the Secretary of State can set out services which CCGs must commission, and he can do that in the standing rules if he considers it necessary. The CCG’s key duty is to arrange services as it considers necessary to meet all reasonable requirements of the population that it is responsible for, and the amendments do not change that in the slightest.
Baroness Jay of Paddington
The noble Lord may be surprised to hear me ask this question because, as he kindly said, I have been very determined that the provisions on accountability and parliamentary responsibility et cetera should be strengthened in the Bill. However, I listened to what my noble friend Lord Harris said about what he described as the “increasing tentacles” of these links between the various providers and the Secretary of State. Is the Minister not becoming concerned—as I would in his position—that all this new accountability and these links undermine the basic policy positions of the Bill? That is why, for example, my noble friend Lady Thornton suggested that it would be cleaner—if that is the word—to remove the whole of Clause 4 from the Bill. The complexities that are being set up and strengthened, as the Minister has agreed, make the whole thing so incredibly complicated and bureaucratic that the underlying policy positions are being totally distorted.
Earl Howe
I do not share that view at all. I do not think that the autonomy and accountability arrangements are as complex as the noble Baroness seems to suggest. Autonomy and accountability are two sides of the same coin; one confers autonomy in exchange for accountability. That is the model that we have adopted and the one that I would hope that Parliament would wish us to adopt, given that substantial sums of public money will be at the disposal of commissioners throughout the NHS. I therefore do not see that the metaphor of tentacles employed by the noble Lord, Lord Harris, is actually very appropriate. It implies that there is an organisation holding those in the health service in a grip. That will not be the case. The role of the board is to support local commissioners; it is to be there as a resource to promote guidance, supported by the quality standards that we were debating earlier. It is not—I repeat not—a replica of the kind of line management that the NHS has seen to date.
“( ) If, in the case of any exercise of functions, the Secretary of State considers that there is a conflict between the matters mentioned in subsection (1) and the discharge by the Secretary of State of the duties under section 1, the Secretary of State must give priority to the duties under that section.””
Earl Howe
My Lords, we come to an issue that exercised us on more than one occasion in Committee—the issue of health-related research and the use of research evidence in the health service. My noble friend Lord Willis and others urged me to look again at the Bill’s drafting, having expressed a concern that there was a need to strengthen the duties on the Secretary of State, the NHS Commissioning Board and CCGs to promote research, and the use in the health service of evidence obtained from research when exercising their functions.
Government Amendments 11, 60 and 103 are a response to that concern, and I hope that they will be welcome. The Government are absolutely committed to promoting research throughout the health service. By tightening the wording around the duties, we believe that the amendments send a powerful signal of that commitment. I beg to move.
Lord Willis of Knaresborough
My Lords, it is a very pleasant duty to know that amendments proposed in Committee have been accepted by the Government in their totality. I thank the Minister for doing that. Amendment 11 removes from the Secretary of State the idea of “having regard to the need to”, and gives a clear duty to promote research—and that is the case in Amendment 60, with commissioning boards, and in Amendment 103, with the local commissioning groups.
The broader research community—from the Wellcome Trust; the Academy of Medical Sciences; and members of the organisation that I chair and declare an interest in, the Association of Medical Research Charities—is incredibly grateful to the Minister for persuading his colleague, the Secretary of State, to accept far stronger policy on the duty to research. I also put on record my thanks to noble Lords on all sides of the House, including Cross-Benchers and Front-Benchers, for supporting this. It is very rare that you get such an area, which will clearly make a fundamental difference to patients, bringing the latest research to the bedside as quickly as possible—and to get the whole House to support that.
The result of this, if we make it work, will be the only research-led health service in the world. That is an incredible achievement in your Lordships' House and in many ways surpasses some of the debates that we have had about other areas, which frankly will not make a great deal of difference. I include the debate on Clause 4, which we have just had. I know that Members on the Labour Benches like debating Clause 4; it gives them a feeling of déjà vu. However, in reality, for us as a nation to say that we have a research-led health service, where we can bring our huge clinical research base very quickly to patients, gives us an opportunity not only to deliver wonderful healthcare but to use that as an economic generator right across the world, and to bring high-quality healthcare to people who desperately need it. In fact, they need it a great deal more than we do.
In order for that to work and for these to be more than simply words in a Bill or rhetoric in this House, there have to be mechanisms to ensure that the duty which we have now agreed for the Secretary of State—or which I hope we will agree—concerned with the commissioning board and the commissioning groups, is actually brought to bear. There is nothing left in the Bill which gives me the comfort of saying that is going to happen.
We asked in Committee whether the commissioning board, and indeed the commissioning groups, should have to include in their commissioning plans what activity is taking place in research. If we get the health research authority up and running—I commend the Minister for all that he has done in terms of the special health authority—and if we start to get the 70-day permissions for clinical trials in, we will have a Rolls-Royce system, if I may use that analogy, for bringing research programmes right through into our hospitals for our patient development. However, unless we are able to have that built into the commissioning plans, and unless the commissioning board and the Secretary of State drive that—and this House and another place hold him accountable for that duty—quite frankly, it will be a hollow gesture.
We also sought in Committee a requirement to report on that activity. How telling it would be if patients asked the commissioning groups or their local GP, “What is the activity in the cause that I have?”? We had that wonderful debate earlier on prostate cancer. That is the way in which we will get research developments brought into the clinics and into GPs: by patients being able to query what is happening in research. In thanking my noble friend the Minister, I ask him whether, in responding to this short debate, he will outline to the House very clearly how we are going to make this work. How will we make that duty to promote research into having an NHS that is world-class in terms of its research? How will it work?
Lord Warner
My Lords, I intervene briefly to echo everything that the noble Lord, Lord Willis, has said. We should not rest on our laurels as regards research. I do not want to go over the ground of micromanagement, but the NHS is very quick indeed to forget its responsibilities on research—and I say this as a Minister who was responsible for NHS research and development under the previous Government. We do not want to go back over the micromanagement debate, but the mandate is a critical issue if the NHS is really to keep research at the forefront of its thinking.
That is because at local level, too often on the provider side of the NHS research is forgotten. It is a Cinderella service which comes second to service delivery, and we end up seeing that people at senior levels and at local level absolve their responsibilities in this area. Nothing is a better example of that than the way in which local ethics committees and the people around them have inhibited the advance and the speedy development of research. I do not think that the Secretary of State can absolve himself of these responsibilities here with just this duty. Year in, year out, he will have to use the standing rules and the mandate to make sure that the NHS’s nose is kept to the research grindstone in the very way that the noble Lord, Lord Willis, has said. I hope that the Minister will be able to convey some of that back in the department as well as on the Floor of the House.
Lord Patel
My Lords, my name was on many of the amendments of the noble Lord, Lord Willis of Knaresborough, in Committee about promoting research. As someone who has been involved in or trying to do clinical research for many years—I declare an interest as a member of the council of the Medical Research Council—I commend the Government and welcome the amendments. They open up the possibility for commissioning groups to promote research in many ways, such as promoting clinical trials and encouraging the development of tissue banks, proper bioinformatics and proper audit and record-keeping. That will open up the field of stem cell therapy, bioinformatics, regenerative medicine and genomics, which will be very good for the NHS.
Baroness Morgan of Drefelin
My Lords, I, too, put my name to the amendments in Committee that have helped to precipitate this very welcome government amendment and the support of the Minister. I do not want to repeat what has already been said but I want to make one point: we in the House of Lords have worked hard to promote the importance of research in the NHS, and we will take a strong interest in the mechanisms that I am sure the Minister will describe in a moment, and indeed later on Report, to see how this duty will be promoted and evaluated. There are also important mechanisms in this House through the Science and Technology Committee, and I hope that many of the noble Lords who are on that committee will bear that in mind when it comes to looking at how this welcome duty is put into practice.
Baroness Finlay of Llandaff
My Lords, I would also like to formally record an enormous welcome to these changes to the Bill. What has been said in particular by the noble Lords, Lord Willis and Lord Warner, is very pertinent regarding the need to keep questioning. The one thing now that can happen is that those who are actively involved in research can actually question if they get blocked, in a way that they could not before. I think that they will be very bright and questioning people who will make it known if they are not able to do the research that they see needs to be done for the improvement of clinical services.
Indeed, if we can speed up the processes, perhaps we can create an environment in which all patients and relatives understand that a research-rich environment is one that drives up standards of care, and therefore that they are not being experimented on but are being invited to participate when there is equipoise in the highest standards of monitoring that they could possibly have. The governance around research processes in this country is potentially second to none. We may then regain some of those external trials that up until now have, sadly, been bleeding from our shores. The amendments are incredibly important and their universal welcome is very appropriate. The Minister is to be personally congratulated.
Lord Hunt of Kings Heath
My Lords, from the opposition Benches we too welcome the amendments, which very much reflect the debate that we had in Committee on the importance of research. The Chief Medical Officer has paid a visit to Birmingham over the past two days; he gave a lecture at Birmingham University and visited my own trust to discuss research and the role of the NHS in it. My noble friend Lord Warner has put his finger on it: the question to the Minister is how we make sure that the NHS makes a sufficient contribution in future to the development and support of research. The Minister will know that the Chief Medical Officer is a passionate advocate of research and excellence in the NHS, and that is to be warmly welcomed.
There are some issues that need to be tackled. We have already heard about the issue of getting approval for clinical trials. We still have the problem, which has been with us for many years now, of local committees taking far too long and repeating work by other committees. I understand that there are some issues around the fact that, because foundation trusts are separate legal entities, they have to go through the process themselves, but if they join a clinical academic network some of that work can be reduced. I know that there is to be an announcement at, I think, the end of March about how these clinical networks are to be developed in the future. That is a very important way of enhancing research.
There is no question that the more we do in research, the better the outcomes not only for patients but for the UK’s reputation and economic well-being. Healthcare research is surely an area to which we need to give great priority. The noble Earl, Lord Howe, is of course responsible and we are very glad that he is leading this work. However, there is no doubt that, welcome though these amendments are, we should be given some assurance that the Government will now take them forward into the new situation with enthusiasm.
Earl Howe
My Lords, I begin by saying how much I agree with the remarks of the noble Lord, Lord Hunt. There are two very good reasons why research needs to be promoted in the NHS. The first is that it is for the good of patients. The other is that it is potentially for the good of UK plc. If we can attract investment in translational and clinical research to this country, it will be a major advance. The sad truth is that in recent years the UK has been slipping back in the international league table as a location for clinical research. The Government are determined to reverse that trend, as were the previous Government. We are trying our best to build on the foundations that the previous Government set.
Noble Lords have asked me to explain how the Secretary of State’s duty to promote research will work in practice. I shall try to do so in a few words. The Secretary of State will use the mandate to set priorities for the health service, based on his legal duties. One of those duties is to promote research within the health service, which is shared by the board and CCGs. What are the tools at the Secretary of State’s disposal? The National Institute for Health Research—the NIHR—which is headed by Professor Dame Sally Davies, provides transparent, competitive funding to support clinical and applied health research, the training and development of health researchers, systems to support research and the NHS infrastructure for research. The NIHR will continue to be part of the Department of Health. Its budget of £1 billion is held centrally by the department. The Chief Medical Officer will remain responsible for the NIHR and its budget.
The second main route that the Secretary of State uses, and will continue to use, to support research, is through the NHS. Since the NHS was established, its patient care budget has funded the patient care costs of patients who are taking part in research in the NHS, as set out in existing guidance. In the future, the NHS Commissioning Board and clinical commissioning groups will ensure that these costs continue to be met through these arrangements. The research costs of these studies are paid by the Government and charity research funders such as the Medical Research Council, the NIHR, Cancer Research UK and the Wellcome Trust. The NHS benefits greatly from the evidence provided by this research.
Let us not forget, too, that the Secretary of State will be held to account for what he does. He must report annually to Parliament on the performance of the health service. There is an expectation that he will report on how he has fulfilled his statutory duties.
That brings us to the duties placed on the board. In the document we published, Developing Clinical Commissioning Groups: Towards Authorisation, we set out the early thinking on the authorisation process. The document highlights that as part of the process CCGs will need to demonstrate how they will exercise important functions, such as the duty to promote research, and the NHS Commissioning Board will seek consistency in the way in which CCGs exercise these duties. Furthermore, a CCG’s commissioning plan, and its annual report, as well as the board’s annual assessment of the group’s performance, will cover the exercise of all the CCG’s functions, including the duty to promote research.
I hope that that has given noble Lords a clear outline of how this is all going to work. We regard these duties as extremely important. These amendments are extremely important, as my noble friend said. I am in no doubt that both the health service and its patients will be better off as a result of them.