House of Lords
Office of Fair Trading
(12 years, 2 months ago)
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Lord Naseby
To ask Her Majesty’s Government what proposals they have to review the performance, management and remit of the Office of Fair Trading following the recent quashing of cases on appeal.
The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Baroness Wilcox)
My Lords, last year, the Government consulted on proposals to reform the competition regime including merging the Office of Fair Trading and the Competition Commission to create a single Competition and Markets Authority. Among other things, the consultation sought views on proposals to improve the enforcement of the anti-trust prohibitions. The Government will announce their conclusions following the consultation shortly.
Lord Naseby
Is my noble friend aware of just how many of our great companies—British Airways, Shell, Unilever, Tesco, the Co-op and Balfour Beatty—have been investigated over several years for alleged price fixing, fined nearly a quarter of a billion pounds by the OFT, only for each case to collapse because there was no basis in fact, law or economics to support them? The net result is a huge bill for the taxpayer to pay the legal fees. Will my noble friend call for a review of the board’s oversight and the senior management’s lack of quality control over which cases to tackle? After all, there are 600 employees at the OFT costing us £60 million per annum, let alone compensation to the companies that have been improperly charged.
Baroness Wilcox
I obviously cannot anticipate the Government's announcement, but we aim to build on the best of the OFT and the best of the Competition Commission in the creation of a world-leading Competition and Markets Authority. The Government recognise that the system for the enforcement of the anti-trust prohibitions is not working as well as it should. Cases take too long and a strong challenge to decisions is often mounted on appeal. It is worth remembering that we have a reputation in the world as being one of the best places in which markets work. Markets work well here. They are open and fair. We have to make sure that we have timely and effective enforcement. That is what the consultation has been about.
Lord Borrie
My Lords, does the Minister agree that whatever reorganisation of the competition authorities is to take place in the future, adequate resources must be made available to ensure that there is effective combating of price-fixing cartels and other anti-competitive practices? Does she also agree that in relation to the cases referred to by the noble Lord, Lord Naseby, the record shows that, on the matter of liability as distinct from the precise amount of penalty, the OFT has been upset on appeal to the Competition Appeal Tribunal only relatively rarely? It has admittedly been told by the Competition Appeal Tribunal that the amount of penalty is sometimes too large and has been reduced. Since money has been referred to by the noble Lord, Lord Naseby, is it not the case that last year, and I think the year before, the OFT brought in some £60 million to the Exchequer from fines—fines that had been upheld by the Competition Appeal Tribunal?
Baroness Wilcox
The noble Lord, Lord Borrie, was of course director-general of the Office of Fair Trading when I chaired the National Consumer Council. I have enormous respect for his view and have listened carefully to what he has just said. As I said in my original Answer, one reason why we looked to merging the Office of Fair Trading and the Competition Commission is to make sure that they are right and fit for purpose for our times and that there are the right resources needed for the world that we face. There is no doubt about it that the Office of Fair Trading has had a wonderful reputation in the past, and we would like to think that the new merger, if it goes forward, will take forward the very best of the OFT and the very best of the Competition Commission.
The Chancellor of the Duchy of Lancaster (Lord Strathclyde)
My Lords, I think that we should hear from the Liberal Democrats first.
Baroness Kramer
I shall try to be very brief. The Minister will be aware that for the ordinary consumer trying to deal with the combination of the OFT, Consumer Focus, Consumer Direct, the CBA and the Competition Commission, knowing where to go when there is an issue that needs to be raised is next to impossible. With the restructuring coming, the confusion is just adding laying layer upon layer. Would it be possible for the department to put some real clarity on its website to direct people under the current structure and with some clear indication where restructuring is going to take us?
Baroness Wilcox
Change is always difficult, but it does give us the opportunity to listen to things like my noble friend has just brought up, such as access to information. My noble friend knows, of course, that we are trying to streamline these things and bring them forward as fast as we can, but her point is well made.
Lord Campbell of Alloway
May I ask a very simple question? Is it not rather curious to rely on a decision of a first court on argument in this House until it has been accepted by the Court of Appeal or the Supreme Court? The whole of my life has been dependent on decisions that have been rejected by both of them.
Baroness Wilcox
The noble Lord was a very fine lawyer in his time, as I can witness, because he worked for me once and we won, wonderfully. I am inclined to want to agree with him, but at the moment the consultation is going through and I cannot make any statement at this stage. But I shall be interested in his views when the Government come out with theirs in the next few weeks after the finalisation of the consultation.
Lord Kennedy of Southwark
Will the Minister agree to speak to the Office of Fair Trading? One area that it could shed a bit more light on is payment protection insurance misselling claims. A whole industry has developed around it whereby people can put a claim in; they can go to a company, are given 25 per cent of the money that they have lost, and have to pay the companies. That is quite disgraceful.
Baroness Wilcox
The Office of Fair Trading is of course an independent body and is best placed to balance the work that it does; it is not the Government’s place to tell it what to do.
Zimbabwe
(12 years, 2 months ago)
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Lord Avebury
To ask Her Majesty’s Government what information they have on the progress being made towards the framing of a new constitution and preparations for elections in Zimbabwe.
The Minister of State, Foreign and Commonwealth Office (Lord Howell of Guildford)
My Lords, the Zimbabwe constitution process continues to move forward despite attempts to disrupt it at the end of 2011. We understand that a draft exists and expect a referendum between June and September 2012. The discussions facilitated by the Southern African Development Community on an election road map continue and will, when concluded, establish the necessary reforms that must be completed before polls can be held. We stand ready to support SADC in this process in any way we can.
Lord Avebury
My Lords, does my noble friend say, therefore, that the draft constitution will be published before the end of the year? What help have we offered either through the European Union or the Commonwealth to SADC to ensure that adequate electoral machinery is in place for the referendum on the draft constitution to take place in good time before the deadline for general elections in June next year?
Lord Howell of Guildford
The constitution and its production is naturally a matter for the Government of Zimbabwe, but we hope that this will come forward. We certainly take the view that it would not make sense to have an election before the constitutional process. Although Mr Mugabe suggested that there should be an election in March 2012, we really do not think that would be a serious or realistic proposition. As for working with SADC, we and the EU want to work through it to develop the right conditions for fair and sensible polls and for proper monitoring. The Commonwealth and other organisations will be ready to accede to any request from SADC for that to happen. We are ready to help, but with SADC in the lead it is obviously for it to indicate at what point it wants our help, in which case that help will certainly be forthcoming.
Lord St John of Bletso
My Lords, does the Minister agree that there is no clearly defined road map towards the constitution being agreed, nor the referendum, with the constitutional assembly arguing each week about procedural issues? With SADC being the guarantor of the GPA and the GNU, what pressure can Her Majesty’s Government put on SADC to enforce this procedure to the timetable?
Lord Howell of Guildford
The noble Lord’s analysis is quite right: there is a good deal of toing and froing, and SADC is indeed the guarantor of the global political agreement. He asked what pressure we can put on it. We are in constant contact with SADC; and we in the EU, and the Commonwealth arrangements, are also in contact with it. It is our view that we should leave the lead to SADC in this matter and in mounting the pressures on and persuading the Zimbabwean authorities, but we will certainly do our best within that context.
Lord Hughes of Woodside
Does the Minister accept that although violence has been reduced somewhat in Zimbabwe, it is still unacceptably high? That being the case, will he not only exert pressure but encourage President Zuma, the South African Government and SADC to do everything possible to ensure that there can be no proper constitutional change until the violence has ended and the global political agreement is agreed in full?
Lord Howell of Guildford
We certainly agree with that. Mr Zuma has of course taken the lead in SADC, with the support of its other member countries. They have made more progress in recent times than I think the pessimists feared, and we will continue on the path of encouragement and pressure and of offering any services that we can at the right time.
Lord Elton
My Lords, bearing in mind the difficulty of trusting the integrity of the present regime in Zimbabwe, what steps are being taken internationally to monitor the referendum when it takes place? It could be on the lines of the delegation sent by my noble friend Lady Thatcher, which was led by Viscount Boyd and included me from this House, to invigilate the first elections since independence in 1979?
Lord Howell of Guildford
All of us, including the Commonwealth, are quite ready to do the monitoring, but it has to be by the request of the Government concerned. If there is no request, one cannot simply impose the demand to monitor unilaterally, so progress depends ultimately on the willingness of Zimbabwe to have external monitors at all. That is something we will continue to press very hard indeed.
Lord Elystan-Morgan
My Lords, does the Minister accept that successive Governments, to their very great credit, made it clear that they would wish to invest very considerably in the reconstruction of Zimbabwe once certain indices of performance were achieved? Can he tell the House what those indices of performance broadly were, and how near or far the Zimbabwean people are to having those plans realised?
Lord Howell of Guildford
My Lords, if they fit the criteria for investment, we do not discourage new investment projects in Zimbabwe absolutely, but obviously they must be closely associated with the ending and the avoidance of any kind of violence, as I should have emphasised in my answer to the previous question, and must be aimed at benefiting the people of Zimbabwe, not at ending up with a lot of money going corruptly into the hands of a few. That is the broad pattern of criteria.
We are dealing with an economy that is now beginning to grow again, although admittedly from a very low level—I think that there was 9 per cent growth this year. Substantial aid is going in, not—I emphasise—through the Government but only through the non-governmental agencies. The infrastructure is beginning slowly to improve, helped also by massive Chinese investment. All these are conditions that we are watching very closely, and there are some firms willing to investigate and proceed, in very careful ways, with investment in the recovery of this once rich, and we hope rich again in the future, country.
Baroness Kinnock of Holyhead
Would the Minister join me in arguing that it is increasingly likely that Mugabe will orchestrate a repeat of the 2008 election? The strategy then was ruthlessly to unleash the army, the police and the intelligence services on the political opposition and the people of Zimbabwe. In that event, what can the international community do when China, which benefits so substantially from the mineral wealth of Zimbabwe, including diamonds, blocks any concerted efforts to deal with ZANU-PF’s terror and intimidation?
Lord Howell of Guildford
The noble Baroness’s prediction could be right, but I hope it is not. We are absolutely determined to see that the forthcoming election does not repeat all the violence and intimidation, terror and distortion of the 2008 election. There are ways in which we can work to minimise the chances of a repeat of 2008: we can engage with the Chinese in pointing out that they carry certain responsibilities, and we are doing so; we can work through the human rights agencies, the United Nations and the European Union and get them to mount pressure; and we can support all the voices in Zimbabwe that are urging that there should be real constitutional reform and a sensible election rather than the distorting and violent pattern of the past.
Health: Smear Tests
(12 years, 2 months ago)
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Baroness Hussein-Ece
To ask Her Majesty’s Government whether they have any plans to reduce the age at which women in England first undergo smear tests, to bring it into line with that in Scotland, Wales and Northern Ireland.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, there are no plans at this time to extend cervical screening in England to women who are aged under 25. In England, cervical screening starts at age 25 in line with the recommendations of the World Health Organisation and the independent advisory committee on cervical screening.
Baroness Hussein-Ece
I thank the Minister for that reply. He will be aware that in Scotland and Wales the age when women are first called for a smear test remains 20. Is he further aware that around 1,000 women a year die from cervical cancer? Does he think that there is a real problem that not going for cervical screening is one of the biggest risk factors in developing this cancer, and almost half the women who develop it have never had a cervical screening test? Does he agree that while it is not possible to lower the age at this time of budgetary constraints, far more needs to be done to raise awareness to ensure that more women survive and these deaths are prevented?
Earl Howe
My Lords, I should make clear that it is not budgetary constraints that have prevented a lowering of the age but clear clinical advice. However, my noble friend is right about uptake. We are working with the NHS cancer screening programmes and stakeholders to refine the information that we provide to women when they are invited for screening so that all are fully supported to make an informed choice to attend. To tackle the issue of low uptake among women, particularly younger women aged 25 to 29, the National Institute for Health Research health technology assessment programme has recently commissioned a study, the strategic trial, to determine which interventions are effective at increasing screening uptake among women receiving their first invitation from the programme. This is work in train and we await the results with interest.
Lord Patel
Does the Minister agree that what might be important for reducing the incidence of cervical cancer is not so much the age when the screening starts but the vaccination against HPV in younger girls? I understand that the uptake of that is now rising.
Baroness McIntosh of Hudnall
Following that question, will the Minister tell the House how widespread uptake is and to what extent there is any difference between the various groups of young people in being prepared to take up the offer of vaccination? This is clearly the best hope that we have of bringing down the incidence of cervical cancer in the long term.
Earl Howe
The latest figure I have is that there is around 82 per cent uptake among eligible girls. However, for screening the uptake is lower. The figure I have for 2010-11 is that 78.6 per cent of eligible women had a test result in the past five years and 3.4 million women were screened. In the case of screening, it depends on whether the women themselves respond to the screening call. In the case of vaccination, it will depend on the attitude of parents and medical advisers.
Baroness Tonge
My Lords, will the noble Earl remind the House of what arrangements are being made for cervical cytology should the Health and Social Care Bill ever become law? Will he also reassure us that the excellent cervical smear campaign will not fall foul of the competing interests of local authorities and the clinical commissioning groups?
Earl Howe
My Lords, inoculation is not being offered to boys as part of the national programme. As I am sure the noble Lord knows, the aim of the programme has always been to prevent cervical cancer in women. Clearly, the best way to do that is to vaccinate girls and young women. However, these vaccines can be purchased privately and health professionals should exercise their clinical judgment when prescribing products for specific indications.
Baroness Hollins
My Lords, will the Minister explain what efforts are being made to ensure that uptake of both vaccination and cervical screening is good among girls and women with learning disabilities, particularly given their low awareness of the risk of cervical cancer and the high rate of sexual abuse among this population?
Earl Howe
My Lords, as ever, the noble Baroness raises an extremely important point about those with learning disabilities. I will need to write to her because my brief does not contain an explicit reference to them. However, I feel sure that the work to which I referred earlier—the strategic trial—will incorporate work to embrace all sections of the female population. I will write to the noble Baroness about that.
Health: Stroke Care
(12 years, 2 months ago)
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Baroness Wall of New Barnet
To ask Her Majesty’s Government what assessment they have made of the consistency of care for stroke patients across England, and whether the progress made in London will inform the development of their policy on stroke care.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, stroke patients are getting faster and better treatment than ever before. The latest data show that more than 80 per cent of stroke patients spend the majority of their hospital stay on a stroke unit—a 20 per cent improvement since 2009. We want the stroke community to share and learn from what works, such as the London model of providing stroke services. The stroke improvement programme plays a central role in disseminating this knowledge.
Baroness Wall of New Barnet
I thank the Minister for his response. I remind him of the debate on stroke that we had very recently. The evidence is very clear that early intervention with stroke, as with many other diseases, plays a key part in ensuring that the cure is of longer standing. The noble Earl will know that last year’s CQC report highlighted the huge differences and inconsistencies in what happens. It would be good if we could have an assurance that the London model will be rolled out and taken on board by the national commission.
Earl Howe
My Lords, I agree with the noble Baroness that the London model has, indeed, been a model for others to follow. All Londoners now have 24-hour access to hyper-acute stroke care regardless of where they live, and London has one of the highest rates of thrombolysis for any large city in the world. It may not be appropriate to replicate precisely a model of care which works well in a densely populated capital as regards more rural areas, but that is where the expertise of the stroke improvement programme is essential in working with stroke networks across the country, sharing best practice and improving outcomes for stroke patients.
Baroness Gardner of Parkes
My Lords, is the Minister aware that although the London system is good, London has not always been at the forefront of this area? As the noble Lord, Lord Walton of Detchant, is not here to make the point, is the Minister aware that thrombolysis—the “clot busting” system—was introduced in Newcastle and was used there very effectively long before it reached London?
Baroness Gould of Potternewton
I, too, refer to the debate that we had recently on stroke. The Minister greatly praised the work of an organisation called Connect. I declare an interest as my daughter is a director of it. It is a third-sector organisation which works across the country but mainly in rural areas. Connect and many other third-sector organisations are worried that, in light of the squeeze on local authority and NHS budgets, their funding will cease and this wonderful and vital work will be lost.
Earl Howe
My Lords, we are well aware of the issue raised by the noble Baroness. Indeed, it was raised during the listening exercise last year. PCT commissioners are identifying all their clinical contracts as part of a stocktaking exercise and over the next year will be using the information collected to identify those contracts that are due to transfer to the new commissioning organisations next year. We will work with both providers and commissioners to ensure that there is a smooth transition and continuity of care for patients and service users.
Lord Clinton-Davis
Is the Minister able to give an assurance that stroke care networks and the help given by the NHS stroke improvement programme will survive after the current review undertaken by the Government?
Baroness Barker
My Lords, have the Government monitored the impact of individual health budgets which were introduced by the previous Labour Government? What effect have individual health budgets had on the commissioning and delivery of stroke services?
Earl Howe
My noble friend is right: individual health budgets have enormous potential in the case of stroke patients. I do not have any specific data on that in my brief, as it is still relatively early days for the personal health budgets. However, if I have further information to give her, I will gladly write.
Baroness Wheeler
My Lords, the CQC report highlighted huge problems for stroke patients in consistency of care and support after hospital discharge and for long-term stroke survivors in the community. Early supported discharge from hospital involves the majority of rehabilitation taking place at home and is therefore geared to the home setting, yet it is available in only 37 per cent of PCT areas. This is such an important area for progress and obviously a key way of refocusing resources into the community. How will the Minister ensure that this situation is addressed now and under the new health structures? Can he confirm to me that the CQC will continue to monitor the progress of the national stroke strategy and produce further special reviews, given that I understand the team which delivered this last report has now been disbanded?
Earl Howe
My Lords, the unwarranted variations in services are quite clearly unacceptable. The value of the CQC report is that it shines a spotlight on where variations in care need to be addressed. We believe that that will help all stakeholders involved in improving opportunities for people who have experienced a stroke. As regards post-hospital care, on which the noble Baroness rightly focuses, the accelerating stroke improvement programme, which is quite new, is already doing very good work. It was developed specifically to improve care in areas where progress needs to be faster, and that work will most certainly continue.
Lord Reid of Cardowan
My Lords, has the Minister yet had a chance to reflect upon this morning’s report that illustrates that survival rates and the reduction in the death rate from strokes, cancer, heart attacks and many other serious diseases have improved considerably over the past few years? By any standards, when comparing productivity in terms of quantity and quality, there has been a huge increase in productivity. Since the premise behind the Health and Social Care Bill was that there had been little or no increase in productivity in the National Health Service, will he share with us his reflections on that report?
Earl Howe
The premise of the Health and Social Care Bill is rather different from the one that the noble Lord cites. We believe that there is a damaging and avoidable variation in care across the country. Of course the outcomes in many areas of clinical care have improved immeasurably, as he rightly says, over the past few years—not least in heart attack and stroke. However, we still have some way to go and clinical commissioning, we believe, will take us in the right direction. Stroke features in two of the domains in the NHS outcomes framework, representing work that we have put in train: domain 1, “Preventing people from dying prematurely”; and domain 3, “Helping people to recover from episodes of ill health or following injury”. It is those measures to which the NHS will be held to account.
NHS: Management Consultants
(12 years, 2 months ago)
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Baroness Royall of Blaisdon
To ask Her Majesty's Government what the role of management consultants is in developing health reforms, including the Health and Social Care Bill, and whether their involvement in the design and implementation of reforms raises any conflicts of interest.
Baroness Royall of Blaisdon
My Lords, I beg leave to ask a Question of which I have given private notice.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, the Health and Social Care Bill and all related programmes require input from a wide range of civil servants, lawyers and other experts. Management consultants have been assisting Monitor, the developing Commissioning Board and others on specific issues. Consultancy spend has reduced very substantially since before the election. We have been transparent around spend of over £25,000 and on hospitality received by Ministers and civil servants. We have also answered all Parliamentary Questions and FOI requests on these issues, showing our commitment to openness.
Baroness Royall of Blaisdon
My Lords, I am grateful to the noble Earl for that Answer. Following recent press reports, I want to ask him about a specific management consultant, McKinsey. What payments has it received since May 2010 from the Department of Health and all other taxpayer-funded health bodies? If he is not able to tell the House that now, will he undertake to place this information in the Library of the House? Given that McKinsey seems to be setting the rules of the game in relation to the Government’s health Bill and then benefiting from the outcome, can the Minister declare unequivocally that there is no conflict of interest between McKinsey’s role in advising the Government on their health reforms and its commercial relationships with other clients?
Earl Howe
My Lords, I received notice of this Question just over an hour ago so I do not have precise figures about McKinsey. What I can say is that whereas the previous Administration in 2008-09 spent £100 million in the Department of Health on consultancy, my department has spent under £10 million on consultancy this year—very considerably less.
I read the article in the press this weekend which probably prompted the noble Baroness’s Question. I think we need to be careful before casting doubt on the integrity of public servants—and, indeed, of McKinsey. The article referred to Monitor. Those at Monitor are bound by very strict rules and procedures to ensure transparency and openness in all their dealings and to avoid any possible conflicts of interest. They follow those rules and procedures to the letter.
Lord Laming
My Lords, does the noble Earl take from this important Question the significance of having in place a robust implementation strategy should the Bill become law, because translating the aspirations of the Bill into day-by-day practice will be a considerable challenge? Can he assure the House that that will be attended to in the proper way?
Earl Howe
Yes, I can. The reform of the NHS is a major project. Frankly, it would be irresponsible if the Government were not to commission expert professional advice in undertaking a project of this kind. Consultancy, if used judiciously, can be highly cost-effective. I assure the noble Lord that the implementation of the Health and Social Care Bill is occupying our minds night and day and, so far, I am pleased to report that it is going well.
Baroness Jolly
Can my noble friend tell the House how many reports were written for the Department of Health by McKinsey between 1997 and 2010?
Earl Howe
I do not have the figure that my noble friend asks for. I do have a figure for the spend by the previous Administration between 2006 and 2010 on consultancy from McKinsey. That amounted to nearly £30 million. In 2005-06, just one year, the previous Government spent more than £170 million on consultancy services with Accenture plc.
Lord Campbell-Savours
Have civil servants been sharing information during the course of meetings with McKinsey people which McKinsey has been giving to its corporate clients? In other words, has McKinsey been discussing what has been going on in the formation of the Bill and the potential business benefits which arise from the Bill with its corporate clients? Have civil servants at any stage received any sponsorship for their travel or entertainment from McKinsey during the development of the Bill? Is it true that some meetings with civil servants and McKinsey have taken place at McKinsey headquarters in Jermyn Street in London? Does not that whole area of activity by McKinsey suggest that there is a conflict of interest which the public should know about at this stage in the development of the Bill?
Earl Howe
The noble Lord is, I think, insinuating some impropriety on the part of McKinsey and, perhaps, on the part of civil servants. I know of no such impropriety. Indeed, as I said earlier, there are clear and strict rules about transparency and openness. Declaring hospitality received is something that all civil servants and Ministers have to do. The results are published regularly. I will of course ask the question of McKinsey, which I have not yet had time to do. If I discover that there is any substance to the questions that the noble Lord has asked, I shall of course write to him and place a copy in the Library, but I very much doubt that I shall find any substance to them.
Lord Naseby
My Lords, as the Question refers to consultants and not to any specific consultant, is it not a fact that consultants provide a good interim role of management, suggestion or policy for consideration for Her Majesty's Government rather than their taking on ever more central staff? Is that not particularly appropriate, bearing in mind that the Prime Minister held a consultation on the whole of the Bill, as a result of which, as I understand it from listening to the debates in this House, changes have been made to the Bill which will have to be implemented pretty quickly? One can understand why consultants are brought in at the centre of the National Health Service. Surely on the whole it can only be healthy to have consultants there to speed up the implementation of this very important Bill.
Earl Howe
My noble friend is quite right. As I said earlier, the use of consultants—provided that that use is judicious and they are engaged in open competition processes—can be very cost-effective. It is a very flexible way of obtaining high-class advice without incurring long-term costs.
Lord Hughes of Woodside
Has McKinsey been given access to the risk assessment studies, which have been subject to some controversy in this House?
Lord Hamilton of Epsom
My Lords, surely one of the problems of the National Health Service is the wall of money that was thrown at a totally unreformed NHS by the last Government? Do we not need management consultants now to show us the way forward on the savings that need to be wrung out of the NHS so that it can survive into the future?
Earl Howe
Yes, we do, my Lords. Part of the benefit of the modernisation programme will be to streamline the architecture of the NHS so that year by year we will be saving £1.5 billion in administration costs and £3.2 billion net during this Parliament. We need good advice in order to achieve that.
Lord Winston
My Lords, the noble Earl said that this Government have spent less on consultants than the previous Government. Does he agree that, perhaps had they spent a bit more, we might have had a Bill that damaged the health service a great deal less?
Lord Brooke of Sutton Mandeville
My Lords, is my noble friend aware of the age-old aphorism among management consultants, of whom I was once one, although not at McKinsey, that 10 per cent of the work is diagnosis and 90 per cent is persuading the client to accept the advice?
Jobseeker’s Allowance (Domestic Violence) (Amendment) Regulations 2012
(12 years, 2 months ago)
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Lord Freud
That the draft orders and regulations be referred to a Grand Committee
Revenue and Customs Appeals Order 2012
(12 years, 2 months ago)
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Lord Sassoon
That the draft order laid before the House on 11 January be approved.
Relevant document: 38th Report from the Joint Committee on Statutory Instruments. Considered in Grand Committee on 6 February.
Health and Social Care Bill
(12 years, 2 months ago)
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17:53 - Division on Amendment 17 - Ayes: 198 / Noes: 234 - Amendment 17 disagreed.
19:03 - Division on Amendment 18 - Ayes: 169 / Noes: 231 - Amendment 18 disagreed.
Lord Patel
“(1A) Any arrangements made with a person under this Act for the provision of services as part of that health service must include arrangements for securing that the person co-operates with the Secretary of State in the discharge of the duty under subsection (1) (or, where a Special Health Authority is discharging that duty by virtue of a direction under section 7, with the Special Health Authority).”
Lord Patel
My Lords, here we go again. I wish to speak to today’s first group of amendments—Amendments 13, 16, 62 and 106—but, before doing so, I thank all noble Lords who have put their names to the amendments. Many noble Lords wanted to put down their names to Amendments 13 and 16 in particular but were unable to do so. However, I thank them all for supporting these amendments.
Perhaps I may start in reverse order. Amendment 106 would impose a duty on clinical commissioning groups in respect of training and education. This matter was debated on the first day on Report and the Government produced Amendment 104 to the same effect. Similarly, Amendment 62 puts a duty on the NHS Commissioning Board in relation to training and education. As the Government have brought forward Amendment 61 to achieve exactly that, I shall no longer speak to Amendments 62 and 106. I can now move on to the proper business, as the House has quietened down.
I apologise that Amendment 16 is badly worded and has some rather deliberate mistakes. Much of it was debated in the context of a second group of amendments moved on the first day of Report last week, and I shall not labour those points.
There are three key issues that we might explore further in relation to this amendment. The first is the establishment of Health Education England as a special health authority. I have no doubt that the Minister will be able to reassure us about the timing of that. Secondly, there is the issue of funding the education and training of the healthcare workforce. That budget will be held by Health Education England. The role of the respective regulators, professional organisations, universities, higher education institutions and so on has already been discussed. The Minister accepted that they have an important role to play, but it is important to establish that the postgraduate deans will continue to perform their current role. The third key issue is the role and authority of the local education training boards. They will not be controlled by employers, and employers will not have a right in statute to chair local education training boards.
Those are the key issues on Amendment 16. I can now turn to my key amendment, and I emphasise the word key—Amendment 13. This amendment tries to encompass all the issues that we discussed in Committee and last week on Report. As noble Lords may remember, I tabled some amendments on education and training and the Minister was sympathetic to several of them. They alluded to the responsibility of all those who provide health services or care or who make any provision for health services to pay regard to education and training. I have tried in this amendment to bring all those amendments together in a simplified way. I now have an admission to make. At an earlier stage I tried a slightly different amendment on the Minister—Amendment 12—which I then withdrew. However, I hope that he finds it acceptable now as I think that it encompasses the matter in a much simpler form.
What is this amendment about? It states:
“Any arrangements made with a person under this Act for the provision of services as part of that health service must include arrangements for securing that the person co-operates with the Secretary of State in the discharge of the duty under subsection (1) (or, where a Special Health Authority is discharging that duty by virtue of a direction under section 7, with the Special Health Authority”.
The purpose of the amendment is to ensure that any person providing services as part of the health service has a duty to co-operate with the Secretary of State in the discharge of the duty in new Section 1E of the National Health Service Act 2006 to exercise his functions so as to secure an effective education and training system, or with any special health authority which is discharging that duty. The amendment would achieve that by requiring commissioners of health services to include a duty of this kind in their commissioning contracts. The amendment applies to all persons commissioned to provide services as part of the health service, including NHS services commissioned by the board and public health services commissioned by the Secretary of State or local authorities. This is consistent with the powers of the Secretary of State that we discussed previously.
The amendment seeks to ensure that all providers of services commissioned as part of the health service, including NHS and public health providers as well as private alternative providers, have a duty to co-operate with the Secretary of State in the discharge of his duty to ensure an effective system for education and training. The duty will apply equally to Health Education England when it is created as a special health authority with responsibility for health education and training. Perhaps the noble Earl will confirm that that is likely to happen by June 2012. It would also require commissioners to include a duty for providers to co-operate on education and training when they issue commissioning contracts.
Since we last discussed the issue, the Government have set out their intention for the new education and training system. I welcome that. I am pleased to see that there will be a national system for education and training, and that Health Education England will be established as a special health authority. However, it is important that we secure a future for education and training through the Bill—hence my amendment—and that the necessary connections are made with other national bodies and with local service commissioners and providers. It is important that all providers of NHS-funded services participate in the planning, commissioning and provision of education and training. They are responsible for delivering front-line NHS services and therefore have a key role to play in supporting local education and training boards—and I mean supporting, not controlling. One previous issue of concern was how the budgets would be used.
It is also important that local employers should provide the highest-quality clinical placements. These placements are an essential element of the education and training process for doctors, dentists, nurses and other healthcare professionals. They give them hands-on experience of their profession or specialty through the delivery of health services in the NHS. It is important, if we are to continue to develop high-quality clinicians and health professionals, that these placements are continued. In the past, there was a tendency when budgets were tight to cut the placements. That is why I make this comment.
My amendment covers all these issues and therefore makes the Bill stronger. It is in the true spirit of revising the legislation that I move it. I was told last week that I misread the signals given by the noble Earl when I pressed my amendment. In order that I do not do so again, I ask him, if he is not minded to accept Amendment 13—although I sincerely hope that he will be, because it makes the Bill clearer—to give me clear signals that he is prepared to talk about this and bring it back at Third Reading if necessary. However, I sincerely hope that we will not go that far and that he will be persuaded to accept the amendment. I beg to move.
Baroness Finlay of Llandaff
My Lords, my name is on two amendments in this group. However, in large part they were covered by the government amendments that we accepted on the previous day of Report. Amendment 13 is particularly important. In our last debate on education and training, we spoke about the need to thread education and training as an infrastructure like scaffolding through the Bill. Carrying on with another analogy, Amendment 13 acts like a superglue that holds all the bits together. We need to make sure that education and training run through every provider, whoever they are. We cannot have some people saying, “Fine, we will have a contract and use staff who have been trained by the NHS but we will not have any obligation toward education and training”. It is within NHS services that the vast bulk of training occurs, although valuable experience can be obtained elsewhere.
The other question the Government need to ask themselves if they are thinking about turning this amendment down, but I hope they are not, is whether they can honestly say that there is anywhere that is fit to provide a service but is not fit to share its knowledge and skills with those who are in training in any part of the discipline. This is not only about specialist education and training but about increasing the knowledge base and skills at every level throughout the system.
Lord Ribeiro
My Lords, my name is on this amendment, and I wish to say a few words about it. First, I welcome the amendments moved by the Government in Committee which give the Secretary of State a duty to secure medical education and training. A comprehensive health service cannot be achieved without a properly trained and educated workforce. Health Education England, as a Special Health Authority, not only must be given the authority to influence the function of local education and training boards in the short term, as it is established this year, but must influence local providers of all sorts—private, NHS or any other type—and other organisations responsible for the education and training of their workforce.
The influence of Medical Education England and the Medical Programme Board, of which I was a founder member after the MMC/MTAS débâcle, will provide HEE with invaluable information about the oversight of doctors and dentists. For that reason, I believe there should be a medical director of MEE within HEE. While I welcome funding for education resting with Health Education England, as mentioned by the noble Lord, Lord Patel, I remain concerned that the education levy will be raised from providers who may not have the same objectives and consider that their obligation to patient care trumps their obligation to provide training.
I have concerns about who should be responsible for quality assurance and through that for quality improvements. I believe it would be best to have this done at national level. The LETBs and providers cannot be judge and jury in relation to quality assurance and the principle of independent assessment and assurance must be maintained. Quality control and quality management are local functions, currently performed by the deaneries. Quality assurance and quality improvement, which imply that after the assessment lessons can be learnt and good practice passed on, must be at national level. They must have input from the profession to provide the appropriate oversight. In this regard, royal colleges, as national bodies, are ideally placed to assist deaneries in providing independent quality assurance and quality improvement. I hope the Minister will give assurances that this will be the case.
More specific functions of HEE as a Special Health Authority are outlined in Amendment 16. It may present more of a problem for the Government as the role and function of the LETBs are not defined in the Bill. If they are to take responsibility for funding, then the lessons of the strategic health authorities’ 2006 raid on the education budget to balance the NHS budget must be learnt and the education and training budget must be ring-fenced to prevent this happening. I hope the Minister can give the House assurances on this point.
Lord Turnberg
My Lords, my name is also attached to Amendment 13. The case has been very well made by the noble Lord, Lord Patel, so I have very little to add, except that it is obvious that education and training are a key part of any service provision. For a service under pressure, looking after the patients always comes first, and it is very difficult in some circumstances to provide the time that education and training need. It takes a bit longer in an outpatient clinic to teach a young medical graduate; it takes longer in the operating theatre, I suspect, to show how it should be done. It takes time to allow junior trainees to go on education courses and rotations. The pressure on a service is always to concentrate on caring for the patients, and education and training can easily be given a back seat. This amendment helps straighten that balance.
Lord Mawhinney
My Lords, I spoke in favour of training and education at an earlier stage of the Bill, so I have no inherent antagonistic thoughts about the amendment moved by the noble Lord, Lord Patel. However, listening to him and to the noble Baroness, Lady Finlay, and the noble Lord, Lord Turnberg, it was quite clear that there is a financial cost attached to this amendment. They did not spell it out and I wish that the noble Lord, Lord Patel, had. My noble friend the Minister has already responded to the House’s concern about health training. Whether he is minded to accept or reject the amendment, can he tell us his estimate of its cost?
Lord Walton of Detchant
I support the amendment and will make a point about costs. As I said last week in a debate on education and training, since the health service began, the actual financial consequences of training specialists in all branches of medicine—surgeons, physicians, psychiatrists and all other specialists—have been the responsibility of the National Health Service. Many of us will remember the days of SIFT—the service increment for teaching—a financial increment that was given to hospitals and other organisations that provided postgraduate training at the same time as training undergraduate students. I have, I believe, an assurance from the Minister that that process is going to continue, which is extremely welcome. So I am not speaking primarily about finance.
However, I want to raise a point with the Minister that was touched on only superficially in the very helpful debate we had last week where the Minister tabled a series of very important and constructive government amendments and gave a number of very crucial assurances. I particularly want to raise the interrelationship between the health education authority and the regulatory authorities, which has not yet been clarified. The Explanatory Notes mention the importance of Health Education England working with professional regulators. I shall refer to the General Medical Council as an example because I was its president from 1982 to 1989, and before that, for seven years, chairman of its education committee. The fundamental point is that under the Medical Act, the General Medical Council’s education committee has the responsibility of ensuring,
“high standards of medical education and co-ordinating all stages of medical education”.
It is the regulator. If a new medical school is created, it has the authority to inspect it and consider whether its curriculum is sufficient. It has the authority to inspect the qualifying examinations of the medical schools in order to make certain that they are achieving an appropriate standard.
The fundamental point is that the GMC and the other regulators are not just stakeholder groups. Their statutory powers,
“provide independent assurance to patients, the professions and the service that national standards apply across the UK both in terms of the quality of medical training and the outcomes it produces”.
Of course, the important difference here is that Health Education England applies only to England, whereas the GMC and the other regulators are responsible for the oversight of education across the entire United Kingdom. What I seek from the Minister—formally, if I may—is an assurance that the activities of Health Education England will not usurp or attempt to usurp any of the statutory responsibilities of the regulatory authorities, which are already enshrined in law.
Lord Kakkar
My Lords, I support Amendment 13 in the name of my noble friend Lord Patel and Amendment 16, which again is in the name of my noble friend and to which I have added my name. This is the first time that I have spoken at the Report stage of the Bill and I remind noble Lords of my entry in the register of interests as professor of surgery at University College London, consultant surgeon to University College London Hospitals NHS Foundation Trust and fellow of the Royal College of Surgeons of England, which is one of the royal colleges that has decided critically to engage with Her Majesty’s Government with regard to the further passage of this Bill through its parliamentary stages.
The reason why there is such anxiety among so many bodies associated with the practice of medicine in our country as regards education and training is in no small part due to the fact that there was terrible trouble and a very unfortunate turn of events associated with the medical training application system—MTAS—some years ago. As a result of that, all those who have some responsibility for education and training are obliged to pay particular attention and scrutiny to any provision concerning the future of education and training for all healthcare professionals in our country.
Amendment 13 in the name of the noble Lord, Lord Patel, is very important. It brings together all those with responsibility for the commissioning and provision of healthcare under a single obligation to respond to the responsibilities of the Secretary of State for Health with regard to the specific question of education and training. There can be no doubt that all those who wish to engage in the provision of a national health service must be alive to their responsibilities in this regard. To have that commitment in the Bill would provide a very important opportunity to allay the considerable anxiety that might exist among the regulatory bodies, such as the General Medical Council, which the noble Lord, Lord Walton, mentioned, and the medical royal colleges to ensure that they have done their duty in terms of protecting a structured process for the delivery of education and training for the entire healthcare workforce.
Amendment 16 is very important because it deals with the establishment of Health Education England. At this stage, it is important to recognise the very proper and constructive way in which the Department of Health, the Secretary of State for Health and the Minister have engaged with the professional bodies with regard to education and training. It has been a remarkable process of discussion, which resulted in the important government-sponsored amendments that we were able to debate last week on the first day of Report and the important recognition that in creating Health Education England there is an obligation to bring together all the resources available for undergraduate training in the healthcare system and for postgraduate education and training.
Is it absolutely the intention that all three funding streams—SIFT, MADEL and MPET—will come together as a single budget for Health Education England at the time of its creation and that that budget will be spent by HEE through local education and training boards to engage a variety of providers at a local level in discharge of responsibilities for education and training in a postgraduate sense and to maintain the additional resources available in clinical environments—primary, secondary and tertiary care—for the continued undergraduate education of our medical and dental students and other healthcare professionals?
It is also important for your Lordships to understand how Health Education England will be composed. What will be the process for appointment to HEE once it is established, potentially first as a Special Health Authority later this year? Will the composition and membership of HEE include representatives from medical royal colleges and other organisations, such as the regulators and so on? Will HEE be responsible for the appointment of the chairs of the local education and training boards? There is particular concern with regard to the need to have independent chairs of local education and training boards. It is vital not only that at the local level these boards have appropriate provider, employer, patient and trainee representation, but also that their deliberations are conducted in a transparent fashion. This can be done only if the chairs are indeed independent of all the interested parties.
There is a further question with regard to the relationship between local education and training boards and the proposed academic health science networks. Do Her Majesty’s Government have a view about that? It is particularly important because a process is ongoing at the moment for the designation of 12 or so additional academic health science networks in the country. Those broad networks will have an opportunity to have substantial employer and provider representation, encompassing universities and NHS providers. It would be useful to understand their potential relationship with local education and training boards. Then there is the question of the future of postgraduate deans. Again, this is a matter of detail, but it is important in understanding how the structure of independent deaneries will work in a future system and, in particular, what relationships the universities will have at the level of provision of local training and education.
I think it is well recognised in your Lordships’ House that the Government have come a very long way on the question of education and training, which is much appreciated, but some further detail is important to allay anxieties and to ensure that the best possible advice, expertise and knowledge can be brought to bear in creating a new system for education and training for the future that does not result in unintended consequences and some of the disastrous outcomes associated with the previous MTAS scheme.
Lord Willis of Knaresborough
My Lords, briefly, I support Amendment 13 in the name of the noble Lord, Lord Patel, and others, particularly on what is behind the amendment. I agree with the noble Lord, Lord Kakkar, that enormous progress has been made since our first debate in Committee where we neared the point of voting through an amendment that would have stymied any discussion on education and training, and I am very grateful that that vote did not take place. However, the reality is that there is a feeling abroad that when you have underqualified providers entering the health space, they will be able to offer services without having to invest in the very important aspects of training.
Given that on the first day of Report the Minister and the Secretary of State agreed to significant amendments about a research-led National Health Service, it is absolutely crucial that whoever takes part in that is able to offer the kind of education and training that enables it to become a reality rather than simply dealing with past techniques. I hope that when the Minister sums up on this group of amendments, and particularly on Amendment 13, he will make absolutely clear what the contractual obligations of other qualified providers will be in order to ensure that the duty placed on the Secretary of State in relation to those who are wholly NHS providers is actually carried through. Will there be a contractual agreement so that they have to agree to education and training, otherwise they will not get a contract?
Lord Winston
My Lords, I support what the noble Lord, Lord Kakkar, said about higher education. He talked about the academic health science centres, but they are not what I want to talk about, although I come from Imperial College, which of course has such a centre. My conflict of interest arises possibly as chancellor of Sheffield Hallam University, which has a very big stake in health service education, as I am sure the noble Earl knows. It has one of the most successful schools of radiography in the country, a very large physiotherapy school and an immense nursing school. In particular, of course, the university has very close connections with the University of Sheffield and with health services in the area. The reason for my supporting these amendments is the need to make sure that integration continues in a health service that might become rather more fragmented as more providers come in. It would be helpful if the Minister could address that issue.
Baroness Emerton
My Lords, I support the amendments in the name of the noble Lord, Lord Patel, from the point of view of other healthcare professionals—our debate has focused mainly on medical professionals to date. The noble Lord was careful to relate his Amendment 16 to all healthcare professionals. We need to make sure that Health Education England is multiprofessional in its focus. However, the amendment makes no mention of any links with social care. I am aware that we will debate social care in the spring, but it is important that healthcare professionals have included in their programmes and curriculum information on social care.
Amendment 16 mentions workforce planning, which must be a joint exercise between healthcare education and commissioning. The professions will be reassured if they know that workforce planning will be shared between the two rather than it being the concern of health education or commissioning alone. I support wholeheartedly Amendment 13, which encompasses all our discussions and brings to the fore the need for wholeness in healthcare professional education.
Lord Hunt of Kings Heath
My Lords, I support Amendments 13 and 16. This debate follows on from our useful discussions on education and training last week. Once again, we see a tension between the need for a national strategy on education and training and the need for local ownership. Amendment 16 in the name of the noble Lord, Lord Patel, gives us that, and I hope that the noble Earl will be sympathetic to it.
We all know about the problems that have arisen in the past where there has not been sufficient national leadership. Decisions about training places have been left to local bodies and the budget has been squeezed, the result being that a few years later there have not been enough people coming into the National Health Service, which has had a very damaging impact. I think there is unanimity in your Lordships' House that there has to be a very strong national strategy.
I very much take the point made by the noble Baroness, Lady Emerton, that there must be co-ordination in workforce planning between Health Education England, as the national strategic body, and commissioners, but I would add providers because it is they who will employ the staff who have been trained. It is essential to get our workforce planning and our commissioning at a national level into sync. It is more an art than a science, and I suppose that it has never been achieved to 100 per cent satisfaction. None the less, that is what we should strive to do. Speaking as a foundation trust chair, I say to noble Lords who have discussed the national element of this that it is vital that NHS trusts and foundation trusts play a full part in the discussions. At the local level, the local education boards have a crucial role to play.
I very much support the argument of the noble Lords, Lord Patel and Lord Kakkar, on independent chairs and transparency. That is important, but it is also important that the education providers feel sufficient challenge from local NHS bodies when it comes to the quality of their education and training. I am sure that we will come later to the issue of nurse education and training. There are some real issues about the quality of nurse education and training in our universities. It is important that the local education bodies and employers provide sufficient challenge to the work of the universities. I hope that in accepting the need for an independent chair, noble Lords will agree that there should be no cosy relationship between commissioners, who ultimately have no real responsibility for the employment of staff, and universities. Unfortunately, the current system has led to too cosy a relationship. I look to the noble Earl, Lord Howe, for recognition that NHS trusts and foundations have to be very much around the table.
It would be useful if the noble Earl replied to the noble Lord, Lord Kakkar, and gave some sense about where postgraduate deans are to be placed within the new structure. I also hope that postgraduate deans will be able to recognise that in the new circumstances they can have a huge impact on NHS trusts and foundation trusts when it comes to their visitations. I also hope that clinical commissioning groups will recognise that if they are going to start shifting resources away from NHS bodies, that might have an impact on their capacity to provide education and training in the future.
That brings me to the point raised by the noble Lord, Lord Kakkar, about whether private providers will have contractual obligations with regard to education and training. It is important that there is a level playing field. If the Government insist on more contracts being placed with private sector providers in the future, there will have to be obligations on the part of providers. It would be grossly unfair and in the end it would not lead to the establishment of a national coherent system if private sector providers did not pay their fair share.
On governance, again, the noble Lords, Lord Patel and Lord Kakkar, made some substantive points about local education and training boards. It would also be helpful if the noble Earl responded to the point raised about academic science networks. We all agree that we must make the most of the fantastic basic education and science capacity in this country, and the links with the provision of patient care and the pharmaceutical industry. They have great potential. It would be useful to know how the noble Earl thinks they will fit into the new structure and particularly how they will link to the postgraduate deans and the academic science network. Overall, I am sure that the noble Earl will be able to come forward with a constructive response and I certainly hope that he is prepared to accept Amendments 13 and 16.
Earl Howe
My Lords, as I set out in our previous discussion on education and training, the Government are putting in place a strong national system for education and training, with a strengthened focus on quality outcomes.
We have introduced a clear duty on the Secretary of State to ensure that such a system is in place, and are now making good progress with establishing Health Education England and the local education and training boards. We are acutely aware of the importance of a safe transition to the new system and are proceeding with care and at a sensible pace to ensure the new system is fully up and running by April 2013.
As noble Lords will be aware, we have confirmed that we will set up Health Education England as a Special Health Authority in June 2012, so that it can take on some operational functions from October 2012 and be fully operational from April 2013, when it will take on the strategic health authority education and training functions. I repeat those assurances today. It will have an independently appointed chair and non-executive appointments. For this reason, we do not think that that part of Amendment 16, tabled by the noble Lord, Lord Patel, and others, which would place a duty on the Secretary of State to set up Health Education England as a new special health authority, is necessary.
I hope that the undertaking will be sufficient by way of reassurance to noble Lords on that score. Nevertheless, in addressing the more detailed issues set out in that amendment, it would be helpful to elaborate a little on what I was able to tell the House last week.
Lord Hunt of Kings Heath
On that welcome news, I assume that would mean that it would also not involve having a higher education chair and that, in fact, to have an independent chair means that they should be independent of commissioning, providing and university providing.
Earl Howe
That is a logical inference but, if I can get further and better particulars for the noble Lord, I would be happy to do so. Each local board will set up local advisory arrangements to reflect the breadth of local interest and ensure that its decisions are informed by clinicians, clinical networks and education providers. My noble friend Lord Willis and the noble Lord, Lord Winston, asked about “any qualified provider” and whether non-NHS providers will have to play their part. Yes, indeed; all providers of NHS services will be expected to participate in education and training activities, and Health Education England will invest only in organisations which do that. The answer to the question from the noble Lord, Lord Hunt, is indeed yes. He is correct.
By April 2012, we expect the strategic health authorities to establish sub-committees that will develop the emerging local education and training boards. The role of strategic health authorities to lead on education and training has been extended until April next year. When Health Education England is fully functional as a special health authority from April 2013, it will then, as I have explained, take on the responsibility for hosting the local boards. There are plans for a safe and effective transition to the new system, which will ensure that the strategic health authority functions for education, training and workforce planning, including the work of the postgraduate deaneries, are continued. LETBs will take on these education and training functions and it is expected that many SHA and deanery staff will migrate to the local boards to ensure continuity and essential skills and knowledge for the future, subject to affordability.
As I emphasised in our earlier debate, postgraduate deans will continue to be a critical part of the medical training arrangements. We expect LETBs to be able to demonstrate that their postgraduate deans will be able to act independently so as to be able, among other things, to provide challenge where necessary—a point raised, quite rightly, by the noble Lord, Lord Hunt. There will be systems and indicators in place to hold local education providers to account for the quality of education delivered by individual providers. Postgraduate deans will have all the powers that they have now to respond to any concerns about the quality of training, and to take action where required to improve standards and to assure the professional regulators, and indeed Health Education England, that poor performance is being tackled. In the new system, they will have support from the LETBs themselves and, if necessary, from Health Education England to challenge poor quality and behaviours.
Our proposed funding mechanisms reinforce that focus on quality by putting responsibility for education and training decisions in the right place, to be transparent so that funding follows the student on the basis of quality and value for money. The MPET budget will, as now, be predominantly provided to support the next generation of clinical and professional staff. Local boards will have some flexibility to invest in innovative approaches to continuing professional development and the education and training of the wider workforce. Health Education England will be responsible for developing a more transparent allocations policy for distributing education and training funding to local boards.
Now that the policy framework has been worked out, we need to push on and get the foundations of the new education and training system in place. We are doing that by establishing Health Education England and supporting the development of the emerging LETBs. It remains our intention to consolidate the functions of Health Education England by establishing it in primary legislation as a non-departmental public body. That will enable it to operate on a permanent statutory basis at arm’s length from the Department of Health while remaining accountable to the Secretary of State.
We want to do all this on the basis of consensus. We want to ensure that people with an interest have the opportunity to comment on and feed into the design of the new system, ahead of bringing forward the primary legislation in a second Bill. With that in mind, we intend to publish draft clauses on education and training for pre-legislative scrutiny in the second Session to ensure that the legislation is fit for purpose and to give Parliament an additional opportunity to scrutinise the proposals. I add that our vision for an education and training system that gives greater responsibility to employers and health professionals has been warmly welcomed.
As noble Lords will see, we have tabled amendments to strengthen links with the wider system. We have already discussed government Amendments 61 and 104, which would place duties on the board and on CCGs to promote education and training. These amendments were accepted in a previous debate. They are designed to ensure that commissioners of NHS services consider the planning, commissioning and delivery of education and training when carrying out their functions. The noble Lords, Lord Patel and Lord Warner, have tabled the very similar Amendments 62 and 106, and I hope that they will be reassured by the amendments that we have tabled and will feel able to withdraw them.
The noble Lord, Lord Patel, has tabled Amendment 13 on the role of providers. I say straight away that I am sympathetic to his intentions and I have given the amendment significant thought since it was first put down. In the beginning I thought that an amendment might not be needed, given that, in order to be established, LETBs will need to demonstrate that they meet robust authorisation criteria set by Health Education England, including demonstrating that all providers of NHS-funded services are fairly and properly represented in the LETB’s business.
At this point I shall answer the question posed by my noble friend Lord Mawhinney about the estimated costs of the amendment. I understand that Amendment 13 would be delivered by requiring commissioners to place a duty of this kind in their commissioning contracts. We do not anticipate any additional costs as a result of the amendment. Employers have told us and the Future Forum that they are keen to participate and play a leading role in the planning and commissioning of education and training through the LETBs, and of course we plan to legislate further for education and training, which will provide the opportunity to consider any duties that might be required of providers.
However, the amendment is satisfactorily drafted. In the light of what the noble Lord and others have said today in support of it, and in recognition of the strength of feeling on the issue, I can tell the noble Lord that I am willing to accept his proposal and support the amendment.
Lord Patel
My Lords, how can I put this? I am enormously content with all the things that the Minister has said about Amendment 16, which was badly drafted and defective but he has answered all the questions. I hope that all noble Lords who supported me will feel content that he really has been helpful. As far as Amendment 13 is concerned, I would much rather win it this way than by going through the Lobbies. I thank him enormously.
“( ) this Act,( ) the Health and Social Care Act 2008,( ) the Health Act 2009, and( ) the Health and Social Care Act 2012.””
Baroness Masham of Ilton
“The Secretary of State’s duty to ensure openness and transparency with patients when things go wrong
After section 1D of the National Health Service Act 2006 insert—
“1E Duty of candour when things go wrong
The Secretary of State must act with a view to securing that any organisation registered with the Care Quality Commission to provide healthcare is required to take all reasonable steps to ensure that a patient or, in the event of death or incapacity, their next of kin, is fully informed about incidents which occur as a consequence of providing the regulated healthcare to that patient where the incident has resulted in—
(a) any injury to a patient which, in the reasonable opinion of a health care professional, has resulted in—(i) an impairment of the sensory, motor or intellectual functions of the patient which is not likely to be temporary,(ii) changes to the structure of a patient’s body,(iii) the patient experiencing prolonged pain or prolonged psychological harm, or(iv) the significant shortening of the life expectancy of the patient; or(b) any injury to a patient which, in the reasonable opinion of a health care professional, requires treatment by that, or another, health care professional in order to prevent—(i) the death of the patient, or(ii) an injury to the patient which, if left untreated, would lead to one or more of the outcomes mentioned in paragraph (a).””
Baroness Masham of Ilton
My Lords, Amendment 17 would require the Secretary of State to introduce a statutory duty of candour for all registered healthcare providers, so that they are open with patients when things go wrong and cause harm, by amending the Care Quality Commission’s registration regulations. The amendment has been changed significantly in the light of the previous amendment, which was debated in Committee with the same aims, as a result of the helpful comments made by Members of your Lordships’ House and the noble Earl, Lord Howe. I hope it deals adequately with the concerns raised, as it draws on the existing wording and definitions used in the CQC regulations. This should be the case for most of the issues.
However, I know that, unless things have changed since we exchanged letters, the views of the noble Earl, Lord Howe, and the Government will be different. They will argue that their proposed contractual duty is an adequate or even better way of achieving the same thing. They will argue that the CQC could not cope with regulating such a duty in its regulations. I wish to summarise briefly why they are wrong on both these counts.
In Committee and since, the noble Earl, Lord Howe, brought to our attention the consultation on the proposed contractual duty of candour, which has recently closed. It is very regrettable that the consultation stated at the outset:
“This consultation does not re-open debate about the most appropriate mechanism for requiring openness and the decision to impose a contractual requirement is set”.
The least one might have expected is for it to invite the views of patients, the public, health professionals and other stakeholders before setting the decision in stone. Had this happened, the Department of Health would, I am sure, have heard even more resoundingly that the statutory duty is favoured over the contractual one. None the less, it is clear from the responses that I have seen from leading patient organisations and other knowledgeable people in the field that the department’s proposals are unlikely to enjoy public confidence.
Many Peers will have seen the letter in Tuesday’s Daily Telegraph, which was signed by 10 prominent patient and health organisations in support of this amendment. They include Action against Medical Accidents, National Voices, the Patients Association, the Health Foundation, the National Association of LINks Members, Patients First, the Neurological Alliance, Rethink Mental Illness, Asthma UK and the Stroke Association. May I remind the House that just last year the Health Select Committee in another place also recommended that a duty of candour be included in the CQC’s registration requirements? Also, in his closing submission to the Mid-Staffordshire public inquiry, which found gross examples of what happens when cover-ups are allowed, counsel for the inquiry raised doubts about the adequacy of the proposed non-statutory contractual duty of candour. The inquiry may well have something to say about the merits of a statutory duty. I hope that in his response the Minister will at least indicate whether he can promise that the Government will consider their current refusal to listen to alternative views and what the inquiry has to say and hold a new consultation including the option of a statutory duty.
As your Lordships should be aware by now, the contractual duty will not apply to GPs and others in primary care but just to NHS hospitals. Since the debate in Committee, it has been brought to my attention that the contractual duty proposal has another fatal flaw—it would apply only to those incidents which have already been reported to the CQC through the national reporting and learning system. It would therefore be next to useless in preventing cover-ups and, as the NHS Confederation has said in its response to the consultation, might actually discourage reporting these incidents in the first place.
I am sure that the noble Earl, Lord Howe, has had time to consider responses to the consultation. He will also have seen extreme disquiet from GPs and others who will be on clinical commissioning groups, who are being asked to take on the wholly unexpected role of a national regulator with regard to a duty of candour. They will have quite enough on their hands to cope with without taking on this additional role. Frankly, it is hard to see how they could possibly do it justice.
The argument that the CQC could not cope with regulating the duty of candour proposed for its essential standards of quality and safety is simply not credible. It is clear from the letter the noble Earl sent me that either there has been a fundamental misunderstanding of what is actually proposed by the amendment, or the CQC is playing games, or both. The amendment would mean that organisations would have to demonstrate that they take all reasonable steps to ensure openness with patients. This is the same formulation of words used for the regulation covering the obtaining of consent. It does not mean that the CQC would have to monitor each individual communication of incidents any more than it monitors individual incidents of consent being obtained. It would, however, be able to check that organisations have the appropriate policies and procedures in place and train and support staff in being open. It would be able to take action on suggestions that an organisation was not promoting and supporting openness when things go wrong. The CQC already has in its regulations a requirement for organisations anonymously to report incidents that have caused serious harm through the national reporting and learning system, but no requirement to be open with patients. This is a truly shocking anomaly which would remain in place under the current proposals. How can it possibly be right that the CQC can use enforcement powers as regards an organisation which is not reporting incidents through the official system but cannot take action against an organisation which it knows may be covering up these incidents from patients and their families?
We should just look at the “Panorama” programme that exposed terrible bullying and cruelty to patients at Winterbourne View. We must do better. While the ability of the CQC to use its enforcement powers when there is no compliance is an important safeguard, we should not lose sight of the fact that it is the very inclusion of an issue in the essential standards of quality and safety that makes up the CQC registration requirements. That sends such a powerful message and supports cultural change.
I do not think for one moment that creating the regulation that I am seeking will, on its own, change culture and behaviour overnight. However, just as with the other essential standards, the fact that openness with patients would be enshrined in the standards and given the priority it deserves would underpin and promote a culture change in the right direction. Not to do so sends the message that being open with patients is not really important at all.
I believe we are all in agreement that being open with patients is the right thing to do, and something serious needs to be done to make this a genuine requirement. In effect, the question is whether or not being open should be an essential standard of quality and safety, along with the other essential standards that make up the CQC’s regulations. The Minister pointed out to me that if they were minded to do so, the Government could introduce the statutory duty that I am seeking through secondary legislation, without the need for the amendment. If the noble Earl is able to give the House an assurance today that this is what the Government undertake to do, I would be happy to withdraw the amendment. I beg to move.
Lord Harris of Haringey
My Lords, my name is down in support of the amendment. I want to make it clear at the outset that it is substantially different from the amendment put forward in Committee and has taken on board a lot of comments and points made during the helpful debate at that time.
As far as I am concerned, the origins of this go back to my meeting 18 years ago with William Powell about the death of his son, Robbie, when I was director of the Association of Community Health Councils. Mr Powell was concerned about the failure of the system to give him and his family answers as to why his son had died. Mr Powell is still campaigning for a change in law to place a requirement for some sort of duty of candour. Interestingly, that case eventually reached the European Court of Human Rights in May 2002. In its judgment, the court made it clear that at present there is,
“no duty to give the parents of a child who died as a result of their negligence a truthful account of the circumstances of the death, nor even to refrain from deliberately falsifying records”.
Most of your Lordships would find that a pretty shocking and appalling statement in this day and age, but that is where we are as far as the law is concerned and it remains a continuing consideration.
In September, as chair of the Independent Advisory Panel on Deaths in Custody, I had a listening day with a group of families whose relatives had died while detained under the Mental Health Act. Those families reported a lack of information from NHS trusts. One family reported that they,
“were unaware of any investigation, everything was released in drips”.
Another family claimed:
“They didn’t disclose anything, it was a battle to the end”.
Another said that
“the shutters came down as soon as I started asking questions”.
One parent explained that it was like being,
“in a void whilst waiting”.
These are parents or families of people who have died while in mental health care.
Even more alarming for families was the misinformation frequently provided to them. They thought that there had been a whole series of flaws in the way that the cases of the deaths of their loved ones were investigated. One said:
“The first time I had opportunity to speak to anybody was the consultant. Nobody told me about the investigation. I told the consultant that I wanted a meeting with nurses and see what happened … Consultant and matron came for the meeting with no pen and paper. I was the only one taking notes. After that the matron told me that she would try to get answers for me. I asked how she would remember 20 questions which I asked as she was not taking notes. It took three years for them to give this evidence”.
The problem is that most families feel that the investigations are not independent, and many of them feel that they are presented with lies. The problem is that the existing system does not work. It is not adequate as it presently stands.
The amendment has been significantly changed. It now relates explicitly to organisations rather than individual practitioners. The background is that there is currently no statutory requirement for organisations that provide NHS services to tell a patient, carer, or representative when something has gone wrong during their care and treatment that causes harm. The issue is left to guidance and a non-binding requirement in the NHS Constitution to have regard to the principle of openness. This has allowed cases to occur where NHS organisations have withheld such information from patients, delayed its release or, worse still, actively covered it up.
I understand that the Government have agreed that a duty of candour is required, but their preferred route is a contractual duty built into the standard contracts between commissioners and some providers of NHS services. Patient organisations and others do not believe that that is sufficient. It would not include all NHS providers—for example, GPs, dentists, pharmacists, and so on do not have such contracts—and it would not create access to the sanctions which the Care Quality Commission has at its disposal. Under the Government's proposal, as the noble Baroness, Lady Masham, said, the duty would apply only to incidents which are already being reported through official systems, so it would be useless in preventing cover-ups.
The amendment would require the Secretary of State to create a statutory, enforceable duty of candour by amending the registration regulations of the CQC. All healthcare providers would then have to comply with them to be registered. Of the issues raised in Committee, the most important, raised by several noble Lords, including the noble Lord, Lord Winston, who I do not think is in his place at the moment, and the noble Lord, Lord Walton, was that that might overlap or conflict with the clinicians’ professional duties and the existing arrangements under the General Medical Council and other codes of conduct organised by regulatory bodies. The proposal in the amendment is for a statutory duty of candour placed on organisations, not on individual health professionals. It therefore complements, rather than duplicates or confuses, the duties in health professionals' codes of conduct.
Indeed, Harry Cayton, the chief executive of the Council for Health Regulatory Excellence, has said:
“We support the introduction of a duty of candour in the CQC’s registration requirements, which would mean that the ethical responsibility of health professionals would be shared by organisations delivering healthcare services”.
Frankly, at the moment, doctors and nurses can be put in an impossible position where they would want to honour their ethical and professional obligations but are told by managers and lawyers within the organisation for which they work not to be fully open with patients. That would put them in the position of a whistleblower. This duty would remove that conflict for those individual professionals.
Of course, the amendment is not designed to get in the way of culture change. Several noble Lords said that we want culture change. No one disagrees. The point is that this will support the process of culture change. There is no argument for not setting out in regulations what is by any reasonable assessment as important and essential a standard of quality and safety as the others already set out in CQC regulations.
Lord Walton of Detchant
In relation to candour, the noble Lord may know that the General Medical Council published guidance just two weeks ago making it incumbent on doctors not to sign a contract or agreement that prevents them giving information which might be detrimental to the organisation that employs them. In other words, gagging orders are no longer accepted by the GMC as being part of a contract into which doctors can enter.
Lord Harris of Haringey
I am grateful to the noble Lord, Lord Walton, for that. It is an extremely important step forward and it recognises that there is an existing problem that requires the GMC to take that stance. I think that there is a distinction between gagging clauses and the sort of persuasion and pressure that may be applied to clinicians behind the scenes under such circumstances. This amendment focuses on the organisation’s responsibility and on how the managers and lawyers within an organisation should meet those obligations of candour.
I know that there has been some concern—I think that the Minister has expressed it at various points—about whether the CQC would be able to cope with regulating this duty of candour. It is worth making it clear that there is no question of asking the CQC routinely to monitor every incident with patients; it is simply about the expectation that it will be there as the backstop.
There is already a duty in the CQC’s statutory registration regulations to report to the CQC incidents that cause harm, but it is a duty which requires the organisation to report the incident to the CQC and not to the patient. It is rather anomalous that there is an obligation requiring an organisation to report something to the CQC but not to the patient at the same time. Quite clearly the CQC should have this information and be able to respond to and deal with it.
The point is that the CQC has always said that it could regulate this requirement if the Department of Health so wished. I think that there has been some recent correspondence with the Department of Health which has recognised that the CQC is currently under considerable resource constraints. However, I have seen copies of e-mails released under the Freedom of Information Act—
Baroness Wall of New Barnet
I thank the noble Lord for giving way for the second time. I certainly support the amendment but I worry about the examples that he has used. The cases that he has put forward and the experience of the patients and families concerned are horrendous and outrageous, but what I found troubling and certainly did not recognise at all was when he went on to say that the coercion, rather than gagging, that might take place inside, for instance, a provider trust such as my own—Barnet and Chase Farm—would discourage people from being anything but frank. I have now been the chair of Barnet and Chase Farm for five years. The chair is at the end of the process and during the process has the opportunity to talk to people. I hope that my trust is not unique but in five years I have never known that kind of culture at Barnet and Chase Farm. The noble Lord is looking askance but I ask him to trust me. From my experience—and I hope that it is not a lone experience—I can assure him that that culture does not exist inside my trust; nor, I am sure, does it exist in others. In fact, the opportunity to come clean is used by my trust in the whole way in which patients are dealt with and, indeed, when patients tragically die. If what the noble Lord is saying does happen, then the amendment is absolutely crucial. However, I do not recognise it.
Lord Harris of Haringey
I am grateful to my noble friend for that intervention. She has highlighted the fact that there are different practices around the NHS. Quite a number of trusts take a very positive approach, as she has described, whereby the natural assumption is that you are open because that is what the Department of Health would expect. However, the number of instances where that is not always the case and not always the culture that is adopted, is striking. That was, for example, reflected in the group of families that I met whose family member had died while being detained under the Mental Health Act; it was reflected in the case of Robbie Powell; and it was reflected in a large number of the other cases that the patient organisations which the noble Baroness, Lady Masham, listed, have come across.
So there are two cultures within the NHS and we need to ensure that the culture within the NHS is the best. That is why a statutory duty of candour would support the process, rather than hinder it. It would not cut across the position of the individual professions—indeed it would support it—and, as the noble Lord, Lord Walton, has highlighted, there has been much recognition by the General Medical Council that this is an issue—
Baroness Whitaker
I apologise for interrupting my noble friend. Perhaps I might add something to the other side of the balance. I am aware of two very recent cases—one of a death and one of a hospital-acquired infection—where information was covered up. It is not simply the case that there is a uniform culture of candour.
Lord Harris of Haringey
I am grateful to my noble friend for that reinforcement. I regret that, within some NHS trusts and some provider organisations, there is not the same approach. There is a concern that it is better to keep a patient, or the family of a patient, in ignorance and hope that the whole matter goes away. The purpose of the amendment is not to penalise the individual clinician—we all recognise that accidents happen—but to foster the culture of openness that the department wants to see; it wants to ensure that that duty is reflected, not only as far as the individual professionals are concerned, but also as far as the organisations are concerned. Otherwise, too often the lawyers and managers will say, “In the interests of the trust, let us try to keep this quiet”. I am glad to hear that it does not happen in every instance, as I am sure it does not, but the purpose of the amendment is to provide a statutory framework that will make it quite clear to all those who might otherwise be tempted to cover up these incidents that they must say, “This is important and we have to be open”.
Baroness Tyler of Enfield
My Lords, I have a few remarks to make in support of the amendment, to which my name is attached. I shall be as brief as possible, because much of what I wanted to say has already been said. I pay tribute to the noble Baroness, Lady Masham, for arguing so eloquently for a statutorily enforceable duty of candour.
Having listened to the debate, I remain of the view that a provision in the Bill requiring provider contracts to include a duty of candour clause would be the best way forward and would send the clearest possible signal to the whole healthcare system about the need for openness. We have already heard that, as presently constructed, not all parts of the healthcare system would be covered by the contractual route. It would certainly send a much stronger message than merely relying on the contractual route. I do not see the two being mutually exclusive nor do I think that the principle of contractual freedom would be compromised by having a statutory duty of this sort. I believe that the duty of candour issue is of a different order from much of what else will appear in provisions in provider contracts. I also believe that it resonates very well with the public and would make a reality of what I think should be the most important underlying philosophy of the Bill, putting the patient first and the whole “No decision about me, without me” mantra.
Many noble Lords on these Benches feel very strongly on this issue. The key principle at stake is the right of patients, their families and their carers to know what has gone wrong with their care and treatment when, unfortunately, mistakes, including negligence, have been made. The statutory route would help to ensure consistency. We have already heard an interesting debate about the current lack of consistency. I very much agree with the noble Lord, Lord Harris, about the extent to which it would help to change the culture under which, currently, we know cover-ups have occurred, and make them much less likely to happen in the future. I recognise that a statutory duty alone will not achieve this; it will be a necessary but not a sufficient condition. The culture change that we have heard about will need role models among both clinicians and managers walking the walk, as well as training and support for staff, so that mistakes are acknowledged and, critically, lessons are learnt from the mistakes.
Lord Faulks
My Lords, I join the debate for the first time, conscious that I was not here in Committee. However, I read closely the debate that took place then and have also read the debates on the subject in the other place. My perspective on the issue comes from spending the past 25 years or so involved in clinical negligence cases, acting as a barrister for patients, doctors and other healthcare professionals, employed privately or by the NHS. Although the amendment is not specifically about litigation, the effect it may have on claims is important.
Much has changed in the way that healthcare professionals approach complaints and claims made against them. Where once it was difficult to obtain clear information about what had happened in some adverse event, often this is no longer the case. Similarly, where once medical professionals were inclined to close ranks, this is very far from the case now, where many current and former healthcare professionals provide opinions about the competence of their fellow professionals. In my experience, some of them are remarkably uninhibited in doing so.
Why have the changes come about? The establishment of the National Health Service Litigation Authority, which commenced its activities in November 1995, has been very much a force for good. Consistent with its aims, objectives and functions, the NHSLA has administered the schemes in a way that has done a great deal to increase public confidence that the truth can be obtained without too much difficulty. Where fault is found, the NHSLA is committed to providing proper apologies and explanations.
I pay tribute also to organisations such as AVMA, which was mentioned by the noble Baroness and which has championed the cause of the victims of medical errors and contributed to a much more effective system of litigation. It is appropriate to acknowledge also the major contribution of the civil procedure rules, which were the result of the investigation into civil procedure by the noble and learned Lord, Lord Woolf. The result is a much more open approach, with disclosure of rival opinions before trial and much greater control by the courts of this potentially vexed field of litigation.
I have a reservation concerning legal aid. The LSC, shortly to be replaced as a result of the LASPO Bill, has ensured that firms that conduct this type of litigation are franchised. I worry that with the potential disappearance of legal aid in this field we could return to a situation where those who conduct this complex litigation would not necessarily have the relevant experience. Be that as it may, matters have advanced very considerably and many experiences that were encountered by those in your Lordships’ House who in the past had to deal with constituents would not now happen on anything like the scale that they did in the past.
That is not to say that all is perfect. The duty of candour was, I think, first encapsulated in the Making Amends report in 2003 and has been championed by the former Chief Medical Officer, Sir Liam Donaldson; and, as other noble Lords have pointed out, the case of Robbie Powell has had a great deal to do with promoting the need for candour. I cannot imagine that anyone in your Lordships’ House is against candour or in favour of medical cover-ups. However, the question that the House has to consider is whether this amendment is really the right way of improving the culture when there are iatrogenic events.
There has been a considerable amount of research, mostly in the United States, about the effect of greater candour on patients’ willingness to sue, including an article in the New England Journal of Medicine in 2006 by two obscure politicians, Hillary Clinton and Barack Obama. I think it would be fair to say that the research on the issue is somewhat inconclusive. While some have clearly welcomed an earlier explanation of medical errors and have been dissuaded from litigation by a culture of openness, equally others have been encouraged to pursue cases that they might otherwise not have pursued because of the disclosure of errors by medical professionals.
The House is, of course, aware that when mistakes happen the NHS constitution requires staff to acknowledge them, apologise, explain what went wrong and put things right as quickly and effectively as possible. Professional codes of practice for doctors, nurses and NHS managers contain similar duties, and there are rights in the Data Protection Act that serve to empower patients, but the Government, as we know, intend to go further. It is a matter for consultation, but it is anticipated that there will be a contractual requirement on the part of all those engaged by commissioning bodies to have this duty of candour, which will involve openness about incidents involving at least moderate or severe harm or death, if not even minor incidents.
We must be careful not to underestimate the difficulty involved in trying to encapsulate the obligations that could be placed upon healthcare professionals. Thanks to the Compensation Act 2006, an apology is no longer to be construed as an admission of fault, but the House ought to consider, I suggest, just how difficult it may be for an individual, albeit via an organisation, to decide whether there has been an error such as to come within the scope of this amendment so as to bring about the various consequences envisaged by it. Where there has been an egregious error, such as the wrong patient being administered an injection or even the wrong limb being removed, that is one thing, but there are many cases in which there may be a suboptimal outcome and it is arguable that there was a departure from the appropriate standard of care.
I have spent a large part of my professional life listening to doctors of one sort or another giving their opinions, often contradicted by other opinions, about whether there has been fault. Even a so-called reasonable opinion, the expression used in the amendment, may not be accepted by another reasonable expert. What of the quite frequent cases where some acknowledged risk involved in a procedure has eventuated? Very often, this will just be the result of happenstance and involve no fault on anyone’s part. I am concerned about how this amendment would work in such circumstances.
I noted the observations made by the noble Lord, Lord Winston, and the noble Lord, Lord Walton, who is in his place, about this. I have often found that some doctors are almost too ready to admit mistakes when they have not made one, so anxious are they about the welfare of their patients. We should be careful that in encouraging candour we do not impose what I have to say is a not particularly coherent obligation in the form of this amendment. Surely the most important objective is to encourage candour so that it becomes embedded in the culture of the NHS. The intense difficulty in defining what that obligation should mean is far better teased out as a result of the consultation that is being undertaken rather than being imposed in the statutory form proposed.
I do not know whether those who propose this amendment intend to press it to a vote. Of course all noble Lords are in favour of candour and against cover-ups. Those who have supported this amendment have done a great deal to contribute to the continuing debate about the whole question of candour and should be congratulated on that, but I respectfully suggest that this amendment will not help patients or provide clarity for professionals and therefore will not provide any real benefit. I will oppose it.
Baroness Oppenheim-Barnes
My Lords, I am obliged to my noble friend Lord Faulks for provoking me into thanking him for having read the proceedings of our earlier debate on a similar amendment, in which I spoke at length about the total impossibility of someone with money and influence bringing a case against a doctor or a hospital in a situation that was completely black and white. I went into this detail only to convince those who—quite rightly—want this candour that it will not result in an “open sesame” for bringing cases in which a mistake has been made or completely bad treatment has been given.
I would also say that I wish anyone trying to deal with the General Medical Council the best of British luck, because it is not easy. It is a long process, and it involves a great deal of information being given. Even when the consultant involved has said, “I am very sorry, I have made a mistake, I have failed”, the GMC still does not find it necessary to criticise that surgeon in any way at all.
On the amendment, my noble friend the Minister was kind enough following the last debate to circulate to those who had participated a note from the NHS giving details of the steps that it takes after a mistake has been discovered: dealing with patients in counselling, apologising, all the important things that we would expect it to do. However, one thing was missing, and I hope that my noble friend will feel kind enough to grant it; it did not say that in such cases the NHS was required to circulate throughout the health service what accident had happened or what mistreatment had taken place, so that it could warn in advance that special care must be taken in the future.
Baroness Pitkeathley
My Lords, the noble Lord, Lord Faulks, speaks with his extensive legal experience, which I certainly could not match, but I have very extensive experience of working with patients and their families. It is in that respect that I support this amendment. I particularly support what noble Lords have said about seeking culture change in the NHS.
One thing that gets in the way of that culture change is the anxiety about why patients want candour and the truth. My experience is not that they seek redress or even want to pursue legal action—time and again any consultation with patients will show you that that is not their aim. Their aim, almost always, is to achieve closure after a distressing incident. What a patient said to me a year or so ago is typical: “I just wanted them to admit that something had gone wrong and say sorry. I knew it could not bring my brother back but it would have helped us come to terms with it”. That is what patients are seeking and that is what this amendment will help to achieve. We can all agree that if we are to achieve more culture change, we must move towards a greater degree of openness throughout the NHS.
Lord Newton of Braintree
My Lords, I am tempted to chip in—rather unwisely, no doubt, as usual—by the last two speeches. If it does not seem paradoxical, I must say that I agree with almost every word of both of them.
I certainly share the view of the noble Baroness, Lady Pitkeathley, and have some experience in having chaired three NHS health trusts since 1997, that there are too many cases in which an apology, together with an assurance that action will be taken to make sure it does not happen to anyone else, as well as achieving closure in the individual case would have made a material difference. I would add that ingredient to what she said. Indeed, I could give examples of where I spent hours of doing exactly that in one of my capacities with some parents who had experienced a tragic loss. I endorse that and I think that she is right. I also endorse her comments about not quite recognising this as a common feature in health trusts.
Baroness Williams of Crosby
My Lords, we have had an extraordinarily well argued debate and I do not want to involve myself for more than a minute or two because it would waste the time of the House. Perhaps I may pursue for a moment, in the hope that my noble friend Lord Howe will respond, to the point made by the noble Lord, Lord Walton of Detchant, earlier in the debate. When teams of people are involved, as they clearly often are in the case of major surgery or other major treatment systems, the team has to be persuaded with regard to the duty of candour. Very often, it is not the most senior members of such teams, such as the consultants, or the most junior members of such teams who know best about what has gone wrong. It is often true of nurses. It can even be true of assistant care workers, as we learnt all too severely from the case of Southern Cross and the cases in Bristol.
I simply want to ask whether we should not couple whatever we decide on this amendment with a complete refusal to accept gagging orders on junior staff when inquiries are made of those who are senior to them, whether they are private companies or senior figures in the National Health Service. It was encouraging to hear the noble Lord, Lord Walton of Detchant, say that there is a long way to go. Unfortunately, gagging orders are very common in the health area, and they are something that must be addressed if we are serious about getting to the bottom of things that go wrong in medical treatment.
Baroness Finlay of Llandaff
My Lords, I considered long and hard whether to add my name to this amendment. The gagging orders to which the noble Baroness, Lady Williams, has just referred run completely counter to openness and candour, and there has to be candour. I hope that the Government will take away from this debate the fact that, first, something has to be done to stop people being gagged; and secondly, whether it is in guidance or on the face of the Bill, there must be a way to ensure that there is candour throughout the whole system and that it applies to everyone. The implication that general practitioners, dentists and so on are not on an equal footing with other organisations is invidious.
Patients need to know what has happened. I admire my noble friend Lady Masham for persevering with her research into this issue and presenting it to us today. The tension arises between an individual, a doctor registered with the GMC, on whom there is a duty of candour as an individual to be open and honest with patients if things go wrong—indeed, in the relevant paragraph in Good Medical Practice 2012, the word “must” appears, which means what it says, as opposed to “should”, which is advisory—and organisations. When things go wrong, there is often a series of errors that become compounded, along with other events that may seem insignificant. For example, a patient’s notes were not available on one occasion when they were seen so the wrong investigation was ordered, and things went on from there. Another difficulty is that it is sometimes the patient’s own behaviour which contributes to the cascade. It can be difficult to confront a patient who is already distressed with the fact that the way in which they have behaved—perhaps by discharging themselves or by going off to some alternative practitioner—has contributed to the way in which things have gone wrong. Another simple example is, if you do not know that a patient is taking a certain medication, it can be very difficult to predict an interaction with a prescribed medication.
I should declare my interests, which I did not do earlier in our debates—I hope that the House will forgive me—as a fellow of the Royal College of Physicians, a fellow of the Royal College of General Practitioners, a member of the British Medical Association and a practising clinician. I will always remember as a medical student meeting a general practitioner who took me for a walk in a small village on a Welsh hillside. He took me to the churchyard and said, “I want to walk you around the churchyard”. I asked him why, and he replied, “Because I want to introduce you to my errors”. He had been working in the village for many years. Sadly, as a junior doctor I was in a hospital where there was a catastrophic medical error. What that taught me more than anything is that you have to be open from the first moment you realise that an error has been made. Anything other than openness fails.
To reinforce the remarks made by the noble Lord, Lord Newton, and the noble Baroness, Lady Pitkeathley, whenever I have had to tell patients that something has gone wrong, however minor it may be, I have been astounded at how grateful both they and their families have been for the fact that I have told them. They are also grateful when we institute intensive monitoring procedures, which can mean that patients are woken every hour through the night, and express relief touched with a sense of humour when such intensive monitoring is no longer required. Time and time again when things have gone wrong, there is an overwhelming sense that whatever it was should not happen to anyone else, along with the realism of knowing that you cannot put the clock back, and that medicine is about not absolutes but all shades of grey.
The difficulty with having this clause in the Bill is the potential for unintended consequences. That is why I hesitated about adding my name to it. I hope the Minister will take the matter forward, because this has been a very powerful debate, and put something in guidance. In 2009, the CMO recommended a duty of candour. We really must make it a reality if the implication of “nothing about me without me” is to be honoured. We need to be open, honest and realistic with our patients.
Baroness Hussein-Ece
My Lords, I, too, had no intention to speak on this amendment, having spoken on and supported the proposal for a duty of candour in Committee. Patients and public quite rightly have higher expectations of the services they receive from the NHS, both for themselves and their families. They are also better informed, and they expect NHS clinicians, carers and nursing staff to respond to that. This is not just about graveyards, as mentioned in the rather alarming story recounted to us by the noble Baroness, Lady Finlay, but also about care. Patients might not have received the quality of care that they expected. I have had experience of that with my late father. When he was terminally ill, the standard of nursing care was so poor and so distressing that the onus was on me, on behalf of my family, to take it up with the chief executive or whomever I could find and say that things were just not good enough. Even as someone who had worked in the health service and spent time as a chief officer for a community health council representing patients, I still found it hard to know who was the right person to take a complaint to. It was not a serious complaint—about medication, for example—it was just about the standard of care. In fact, the consultant on the ward asked me to take up the matter because he was so concerned and could not do anything about it himself.
What worries a lot of trusts, and I came across it in my career in the NHS, is that an apology might somehow be taken as an admission of guilt. They were therefore reluctant just to give a straightforward apology. In my case, I had to complain about a particular member of the nursing staff, with the case continuing after the death of my father and disciplinary action being taken against the individual concerned, but I still did not receive an apology. Even after my complaint was upheld, there was no apology. There was no sense of, “Yes, we realise things went wrong”; rather, it was, “Yes, this person did something wrong and she is going to be dealt with”. There was no apology, no statement of how things would change and how the culture in that particular ward in terms of caring for older patients would improve. A basic apology should be the very least thing that could happen, without there necessarily being an admission of liability or of guilt. At the human level, an apology should be made to somebody who has suffered, or to their family.
People also want a simple explanation. They do not want an incomprehensible letter about treatment; they want a step-by-step, basic explanation of what should have happened but did not—just to give someone some background. This should be done very quickly. Trusts should also offer a face-to-face meeting, which not all of them do, particularly early on. It may already be offered further down the track.
Those two or three simple measures should be put in place and become the norm. We have heard in this very interesting debate that there are variations, and there probably always will be, but we should expect a minimum standard when things go wrong or when services are perhaps not what they should be.
Lord Ribeiro
My Lords, I would like to comment on the good medical practice to which the noble Baroness, Lady Finlay, referred. It was introduced some time ago to ensure that medical practitioners would know how to communicate with their patients and were always honest and truthful when things went wrong. In surgery, we produce good surgical practice to complement that exercise. In relation to patient communication, we require surgeons to keep patients fully informed both during and after their treatment. We require them to act immediately when patients suffer harm and to apologise.
As for anecdotes, I had one patient on whom I operated for varicose veins. I pulled up something in the back of her leg that looked like a vein, but in fact it was a nerve. The net result was that the next day she had a foot drop. I went to see her and explained that I had made a mistake—I thought that it was a vein but it was a nerve. I said that we would get a plastic surgeon to see her and we would re-explore the nerve to see if it was all right. The operation was done, and, fortunately, the nerve was not torn. The period required for regeneration was likely to be six months. Every time she came to my out-patients’ clinic—although she was a private patient—I used to get a terrible feeling in the pit of my stomach, because I could hear her coming down the corridor as her foot drop made a flopping sound on the floor. She would sit down opposite me and say, “You know, I really ought to sue you”. She never did, however, because she had been told straight away the whole truth of what had gone on.
Therefore, I have tremendous sympathy for this duty of candour. What worries me is that we could end up with a contractual mechanism in legislation that leads to nothing more than a tick-box exercise. The problem with such exercises is that people will fill them in to try to avoid the legal implications that we have heard of. They will try to avoid litigation. The quality of any genuine explanation may well be lost in such a mechanistic approach. Although it has taken five or six years since the CMO first introduced this concept, we need to do very much more to change the culture. I hope that with the creation of new organisations such as local healthwatch there will be opportunities to raise the profile of the issue and to achieve the sort of explanations that patients rightly deserve.
The Countess of Mar
My Lords, when my daughter was a little girl I brought her up to tell me immediately if she had done something that she should not do or if she had had an accident, and to say sorry, and she would be forgiven immediately. It has been my experience with the OP sufferers from sheep dip, Gulf War veterans and ME sufferers that, if a mistake has been made, all they want is an apology and an explanation and to be able to say, “Please do not do it again”. That has happened over and over again. I have a drawer full of letters from people saying that.
I suspect that it is not necessarily the doctors and nurses—the medical practitioners—who are covering things up when there is a cover-up. It might be what we euphemistically call the pen-pushers—the people behind the doctors and behind the organisation who are afraid that the organisation will come into disrepute. That is where much of the problem lies. Many doctors would like to be able to say, “I’m sorry—I made a mistake”, but they are held back, which is what the noble Lord, Lord Harris of Haringey, said. If we are going to change the culture, we must start with leadership. We have heard about leadership in nursing. A nurse leader or a doctors’ leader can say to the whole of his team, “If you make a mistake please come and tell me immediately and we will go and tell the patient”. That would wipe out a whole lot of anxiety.
The noble Lord, Lord Faulks, talked about litigation. People go to law because they are angry. They have not had an explanation and they are worried that something has gone wrong with a relative or themselves. That is when they go to law. That is what happened with the sheep-dip farmers, and it certainly happened with the Gulf War veterans when Mr Soames, the MP with responsibility for the Gulf War veterans at the time, said, “See you in court”. They rise to that. If people have an explanation, they will accept it. Everybody makes mistakes, and they will understand it. So I support the noble Baroness, Lady Masham, in her cause.
Lord Cormack
I was not intending to take part in this debate, but it has been a thoroughly fascinating one. The noble Countess, Lady Mar, talks about people wanting an explanation, and of course she is absolutely right. People go to law when they are angry, she says—and that is also right—but they also go to law when they can afford it. One of the problems is that so many people cannot afford to contemplate it, yet as we have grown into this no-win no-fee culture more and more people have thought of the law and more and more doctors and nurses have become terrified of finishing up in a court of law. This is why I, as a former constituency Member for many years, who saw many of these cases, am persuaded by what my noble friend Lord Newton said. While we wish to see the Minister respond sympathetically to the amendment so movingly proposed by the noble Baroness, Lady Masham, I hope that he will give the undertaking for secondary legislation and guidelines that would meet our concerns this afternoon.
I have great confidence in my noble friend. I have an anecdote in which he is involved. For many years, I had a constituent who came to me with a series of stories, some of which were very plausible, others of which were less so. I referred this lady to my noble friend, who was the health spokesman for my party—we were in opposition at the time. I was tremendously impressed by the thoroughness with which he looked into these cases with me. Indeed, we came to the conclusion that there had been instances of neglect and even of malpractice. The way in which he looked into it and the thoroughness and compassion that he displayed makes me confident that when he replies this afternoon he will be able to give us an assurance that, whether or not this amendment goes into the Bill—and frankly I think that it probably should not—he will not forget what has been said in this Chamber. Rather, I hope that he will try to ensure that, although one cannot compel candour whatever one does, one has a right to expect it. Every patient in the National Health Service has the right to expect that those who care for him or her will do so with dedication, following a vocation, and that if mistakes are made, as from time to time inevitably in any human situation they are made, there will be a full and honest owning up to those mistakes. That, as the noble Countess indicated, is what people hope for and expect—and, if they receive it, we might gradually see the end of the litigation that has so distorted much of our public life in recent years.
Baroness Wheeler
My Lords, on behalf of these Benches, I would like to support Amendment 17 in the name of the noble Baroness, Lady Masham, to which I have added my name. As we did in Committee, we have again had an excellent debate, which I believe has gone a long way towards addressing the concerns expressed by some noble Lords during Committee and during this debate about making the duty of candour statutory, as well as demonstrating why the Government’s approach of relying solely on a contractual duty will not work or lead to the sea change in culture in the NHS that is needed to ensure openness and honesty when things go wrong in the care and treatment of patients.
The case for the introduction of a statutory duty has been forcefully made by the proposers and supporters of the amendment, and I shall not go over the issues again in detail. The amendment from Committee has now been substantially redrafted to ensure that there is no duplication or clash with the professional regulation and that the duty of candour applies only to actual patient-safety incidents, as already defined in statute. Thus we would no longer face the problem of how to define whether or not an incident is serious or harmful or whether it could lead to potential harm in future, a consequence feared by some noble Lords and by the Minister in his response to the Committee debate. Instead, our amendment would amend the current Care Quality Commission (Registration) Regulations by drawing on the actual text used in those regulations, requiring patient safety incidents which cause harm to patients to be notified to the CQC. The effect would be to place a statutory duty on any organisation registering with the CQC to,
“take all reasonable steps to ensure”,
openness with patients when things go wrong and cause harm. The definitions of harm and the organisations to which the duty would apply are exactly the same as those currently used to require notification of incidents to the CQC.
The Government's main arguments against statutory duty of candour are threefold: first, that implementing the contractual duty would suffice, and bring the responsibility for requiring openness closer to patients and with clinician-led commissioners; secondly, that the current consultation exercise on the contractual duty has only just closed and the Government need to analyse the responses—not much of an argument when the Government ruled out introducing the statutory duty in that consultation; and, thirdly, that existing provisions including the professional codes of practice, National Patient Safety Agency policy guidance and the requirements of the NHS constitution, with the new contractual duty, will address the problem.
However, as noble Lords have said, existing provisions exhorting NHS organisations to openness and health professions to openness and disclosure are not changing the culture of denial, obfuscation and blame that is so deeply embedded in many parts of the NHS when things go wrong. The instances of serious failure in care and treatment that have led to the campaign by patients’ organisations are, as we have heard, deeply shocking and tragic. Expecting CCGs to have the strength and will to take on powerful providers that have failed to be open and to enforce remedial measures without the support of a statutory authority will not achieve the changes we need.
On the role of the CQC, noble Lords have more than answered the Government's reservations. It is an appropriate role for the regulator and the new duty of candour would not require detailed monitoring of individual incidents or communications with patients, but could be reinforced by the CQC by using its guidance already in existence and setting it alongside all the other essential standards of quality and safety which have statutory force. I hope the Minister will reconsider his position and accept in principle that the duty of candour should be statutory, and incorporated into the Bill.
We of course recognise that there would need to be considerable work and consultation undertaken with all stakeholders to introduce and implement the statutory duty of candour. The work around implementing the contractual duty could be put to good use in this effect, as it would complement the statutory duty. Moreover, putting the principle into the Bill and working out later how it is to be implemented has been a central feature of most of the Bill's provisions, so it can be applied in this case. Tuesday’s letter in the Daily Telegraph from all the leading patient organisations emphasised that the introduction of a statutory duty of candour,
“would be a historic step forward for patients’ safety and rights”.
On these Benches we endorse this, and I hope that the Minister will now reconsider his position and accept this amendment.
Earl Howe
My Lords, this has been an excellent debate and I would like first to pay tribute to the noble Baroness, Lady Masham, for her tireless advocacy of the need for openness and transparency in the NHS. She spoke very powerfully. What struck me from the debate is the consensus that there seems to be on all sides of the House on three key points. First, there is agreement on the importance of openness and candour in healthcare, and I think we would all accept that the NHS could only call itself a world-class health service if it embraced openness wholeheartedly. Secondly, there is agreement that at present there is significant room for improvement, the story of my noble friend Lady Hussein-Ece being a case in point. While areas of the NHS, such as Barnet and Chase Farm, are already providing exactly the transparency we wish to see, that is not by any means universal. Thirdly, there is agreement that something needs to change.
I, too, am in complete agreement with those points. I agree that we must do all that we can to encourage the development of a culture within the NHS that supports people to disclose where errors have occurred, so I am at one with the noble Baroness in her intention in tabling her amendment. The question before us is not whether we should do something but what we should do. We need to ensure that the route that we choose gives that good intention the best chance of succeeding. I note from today’s debate that opinion has not been all one way.
Lord Harris of Haringey
My Lords, is not the point that the contractual obligation that the Government are proposing would in effect be triggered only by the reporting of an incident to the CQC? Is it not also the case that the contractual obligation that the Government are talking about would not apply to primary care?
Earl Howe
I will move on to primary care in a moment, but I do not agree with the noble Lord at all on his first point. What we see happening from a contractual requirement is a process of culture change taking the form of conversations between management and clinicians about the fact that this was something that the organisation had to focus on. I do not agree that it will arise simply by reason of reported incidents.
As I said, any disagreement that I have with the noble Baroness is not out of any difference of intent; it is because of a difference of opinion about what we feel would work. Her amendment would require the Secretary of State to act with a view to securing that any CQC-registered organisation providing healthcare was required—we should perhaps log that word—to take all reasonable steps to ensure that a patient or their relatives were informed of a serious patient safety incident.
The key points here are around a requirement in relation to CQC-regulated healthcare. Any requirement must come with enforcement, otherwise it is not a requirement. The amendment as drafted would extend to providers of purely private healthcare—that is, non-NHS-funded healthcare—which suggests that any requirement would have to be enforced by the CQC. I and my officials have spoken at length with CQC colleagues regarding this. In response, the CQC has clearly stated that it would not be able to routinely monitor and enforce such a duty. This is not due to attaching less importance to this issue than to the others areas that they regulate. It is the very nature of openness that when errors occur, it is not easy to detect routinely where a lack of openness has occurred. When a patient or their relatives are not told of an error and the incident is not reported, it is often very difficult to discover that there has been a failure by an organisation to be open. The only way to fulfil this requirement would be to verify that openness was happening and, given the very nature of the issue, that would not be possible for a national regulator. It would require it to prove a negative—in this case, that people were not told about something going wrong with their healthcare.
Lord Harris of Haringey
I am grateful to the Minister for giving way again, but I am now genuinely confused about why this is different. His argument seems to be that a contractual arrangement—we will come back in a moment to the question of who that will cover and whether it will cover primary care—would magically produce a change in culture but that a statutory obligation, applying to all providers registered with the CQC, somehow would not. This is not about requiring the CQC to monitor every interaction with a patient; it is about creating that culture change and a clear sense of obligation—you cannot be registered as a provider with the CQC unless you are committed to doing this.
Earl Howe
My Lords, I hope that the noble Lord will allow me to remind him very respectfully that we are on Report and not in Committee. I am trying to work through my arguments, which I hoped would have a flow to them, but my flow has been interrupted. I am getting to what I hope he wants me to get to.
I was saying that the amendment would effectively require you to prove a negative—in this case, that people were not told about something going wrong with their healthcare. If they were not aware of the error, they would not be aware that they had not been told about it, and the volume of incidents is such that a single national body could not possibly verify compliance with that requirement.
I know that the noble Baroness advocates that the CQC should not routinely monitor this duty and instead should require organisations only to provide evidence that they encourage openness through having appropriate procedures and policies in place. Unfortunately, what that creates—this point was made by my noble friend Lord Ribeiro—is a tick-box exercise. Organisations can provide all the assurances in the world that processes are in place and therefore they are considered to be compliant, when in actual fact it could be that patients were still not being told about errors in their care. That is not acceptable and would not deliver the culture change that we need. We must have a requirement that ensures that patients are told of errors, not one that pays lip service to this and allows organisations—
Baroness Young of Old Scone
I was not intending to speak on this amendment but, as the former chairman of the Care Quality Commission, I have to make a point.
Baroness Northover
I remind the noble Baroness that, as my noble friend said, we are on Report. If she is seeking clarification or questioning something, that is slightly different, but she should not make a speech at this point.
Baroness Young of Old Scone
I merely want to ask the noble Earl what the material difference is between this requirement being laid on organisations by the CQC and many of the other basic requirements that are laid on organisations by the CQC. Those organisations are not inspected in detail on an ongoing basis, but the requirement is intended to seek from providers of health or social care an outline of how they intend to deliver that requirement, without their being inspected regularly in all cases.
Earl Howe
My Lords, I hope I have already explained that. In our conversation with the CQC, it made very clear that this would not be like any other requirement placed upon it. A requirement to prove candour will require the CQC to engage in a much more continuous and intensive process of monitoring than some of its other requirements. That was the distinction that it made and that is why it said that it did not have the capacity to fulfil this duty if it were built into the Bill.
I am afraid that the amendment would not be effective in meeting our shared objective. That is my problem with it. I have listened to the arguments put across by noble Lords in relation to primary care. I want to see openness in primary care as much as I do in secondary care. However, we still need to consider which requirements would work best in primary care.
Baroness Kingsmill
Can the Minister explain the distinction and why we cannot have both? It seems that culture change is best reinforced by legislative change, and the contractual point that the Minister made is a good idea.
Baroness Northover
For clarification, can I point out that only the mover of an amendment or the noble Lord in charge of a Bill should speak after the Minister on Report, other than for short questions of elucidation to the Minister or where the Minister speaks early to assist the House in debate? As this makes very clear, it is possible for a noble Lord to ask a short question about what the Minister has just said, but he or she should not introduce other speeches.
Earl Howe
The question of the noble Baroness relates back to something that I said some time ago. The answer is that we believe that culture change stands the best chance of happening when you bring home to those with direct responsibility for patient care that it is in the contract of the organisation that it must be candid. There are different views about this. I do not disagree with the noble Baroness that, in some cases, regulation is the right way to go. I will say a little more about that in a moment, as I wind up.
I was just talking about primary care in sympathetic terms. We need to remember that other requirements for openness still apply to all NHS services. All primary medical service contractors must have regard to the NHS constitution, professional codes of conduct, any guidance issued by PCTs or the Secretary of State and so on in relation to openness. Once they are registered with the CQC, a failure to be open with patients contravenes clear expectations set out in CQC guidance. The CQC can then take action. Therefore, primary care contractors currently have no excuse to avoid telling their patients about things going wrong with their healthcare. However, I acknowledge the concern of the noble Baroness, Lady Finlay, and others that primary care contractors will not be covered by the current proposals for a duty of candour in the NHS standard contract. Any contractual amendment in relation to primary care contractors is a more complex process, requiring amendments to secondary legislation, among other things. Specifically because of this, we asked for views on this in our recent consultation, which closed at the end of last month. I can confirm to the House today that we are giving further thought to the issue of primary care and the duty of candour in light of the consultation responses we have received. They are complex issues. I hope noble Lords will understand that I cannot prejudge the careful analysis that is already under way in deciding how we go forward in this area. However, it is something that we are actively considering.
Baroness Masham of Ilton
My Lords, this is a very complex health Bill and I should like to pay tribute to the Minister for all the work that he does—for the meetings that he has and for his letters and explanations.
I feel that patients are not covered enough by this Bill. Patients and their supporters have to fight for everything. Why do they have to fight so much for something that should be good practice? The noble Lord, Lord Ribeiro, said that surgeons and doctors should do this. Why are they not doing it? If you look in today’s Yorkshire Post, you will see a tragic case of a woman who lost her baby through negligence in Scarborough Hospital. I have received a letter today from Dr Frank Arnold. I shall quote some of it. It states:
“I am a doctor, who suffered a near fatal adverse event in my local hospital due to errors subsequently accepted as negligent … Part of the reason that these cases recur is that they are not admitted, reported and learnt from. Similar considerations apply to many other types of repeated serious adverse events and preventable deaths. It took more than two years of struggle against hospital management and NHSLA evasions, denial and delay before my case was settled and I could speak of it in public. After that time, I took part in the discussions at the DoH about duties of candour. These revealed the extent of hostility of the Academy of Royal Colleges, insurers and GMC to any requirement to be honest with patients and the professions”.
We need an open and honest system right through primary care and secondary care and even extending to dentists. I have been very lucky. I have had serious accidents and my doctors have always been open and told me the problems, for which I am grateful. However, there are others who do not do so. Generally, the ones who do not do so end up facing legal action. We must do something. We must find a way. I am grateful to the noble Earl but I do not think that it is good enough. It is a case of words and more words.
There is another problem. The other place was not able to discuss these amendments. They did not come up as the other place ran out of time. We have time. If we could get something in the Bill it might not be perfect but at least the other place would have another chance to discuss this. Every Member of Parliament has this problem, I know. Therefore, I would like to test the opinion of the House.
Lord Hunt of Kings Heath
“The Secretary of State’s duty as to preventing bureaucracy
After section 1F of the National Health Service Act 2006 insert—“1G Duty as to preventing bureaucracy
In exercising functions in relation to the health service, the Secretary of State must, so far as in consistent with the interests of the health service, act with a view to securing—
(a) that the NHS Commissioning Board shall exercise its functions in relation to the health service with a minimum level of management tiers, and(b) that any other person exercising functions in relation to the health service must have regard to the need to curb bureaucracy.””
Lord Hunt of Kings Heath
My Lords, one by one, the pillars holding up the Government’s reasons to justify the mayhem they are raining on the NHS are being kicked away. The Prime Minister promised “no top-down reorganisation” of the NHS, yet it is faced with the biggest change since it started life 64 years ago. The Government implied that the NHS was failing, yet the 2010 British social attitudes survey put public satisfaction with the NHS at its highest-ever level. The Government have said that falling productivity is a problem, yet Professor Nick Black, writing in the Lancet, described this as a myth. The Government said they wanted to encourage collaboration and the integration of services, yet Mr Lansley spilled the beans this morning by making it clear that competition between doctors and nurses is really what he is about.
The Government argue that they will end micromanagement by the Secretary of State and introduce democracy. Last week, the noble Earl, Lord Howe, on the first day of Report, sought to persuade your Lordships that the Government are aiming to free the service from micromanagement by the Secretary of State. Indeed, the noble Earl went further and said that Mr Lansley is the only Secretary of State,
“who has not succumbed to the temptation of micromanaging the NHS”.—[Official Report, 8/2/12; col. 349.]
The noble Earl went further when he said that the NHS Commissioning Board will have a facilitating role to promote guidance, and is,
“not … a replica of the kind of line management that the NHS has seen to date”.—[Official Report, 8/2/12; col. 352.]
I say gently to him that the reality seems a little different. Indeed, since your Lordships started to debate the Bill, the Secretary of State has shown no inclination whatever to keep his hands off the National Health Service. He has announced a set of indicators for patient outcomes for NHS trusts to meet; he has pronounced that hospitals are admitting too many patients; he has pronounced that patients are being discharged from hospitals too quickly; the A&E four-hour indicators have been extended; primary care trusts have been told to speed up treatments for patients waiting longer than the 18-week waiting limit; hospitals have been ordered to remove advertisements for personal injury lawyers in NHS-branded leaflets from being distributed in casualty wards; primary care trusts have been told to identify three services that can be handed over to the private sector; and the Prime Minister—no less—has announced that there will be hourly nursing rounds to check that patients are properly fed and hydrated. I might have missed a few examples in my recording of the interventions that have taken place in a short period of time.
Lord Hunt of Kings Heath
My noble friend urges me to keep going. I will certainly continue to note down the evidence on whether the Secretary of State is not micromanaging the National Health Service.
Let me make it clear to the House that I do not have a problem with those kinds of interventions. In fact, I wish the NHS could be left to get on with dealing with some of those issues rather than having to be diverted by this centrally imposed top-down restructuring.
I do not think that we should let the Government get away with the myth that what they are proposing is some kind of anti-bureaucratic Minerva or kid us that they are standing back from interfering in the NHS. I have no doubt that the noble Earl, Lord Howe, will regale us with how many reductions there are in the number of bureaucrats employed in the NHS. He will probably pass over the huge redundancy costs that are being paid out. He might also pass over the possibility of there being a cost-shift as clinical commissioning groups, for instance, hire the very people made redundant by strategic health authorities and primary care trusts.
The fact is that the Government are busy constructing a huge edifice of confusion and a multilayered decision-making process. I remind the House that the Commons Health Select Committee report on 24 January concluded that the Nicholson challenge, the £20 billion efficiency challenge,
“can only be achieved by making fundamental changes to the way care is delivered”.
It continued:
“The reorganisation process continues to complicate the push for efficiency gains. Although it may have facilitated savings in some cases, we heard that it more often creates disruption and distraction that hinders the ability of organisations to consider truly effective ways of reforming service delivery and releasing savings”.
Let me be clear. In criticising the Government's approach, I do not seek to undermine the role of managers and leaders in the NHS. They are at a premium, and I have been somewhat concerned by the tenor of some of the Government's remarks about the role of managers in the health service. We need good managers to lead and support change on this vast scale. What we do not need are layers and layers of bodies without any clarity in organisational responsibilities. We do not need systems and practices that mean that the same information is collected many times over, and we certainly do not need the increasingly complex paperchase that the internal market will morph into when it becomes a real market.
In essence, the Government are replacing a managed-system bureaucracy with a market bureaucracy. Monitor and the national Commissioning Board will grow and grow, mostly by spending on external consultants to mask the baseline costs. Here I return to the point made by my noble friend Lord Graham. Again, one sees a plethora of organisations in the new structure. We have Monitor, with its hugely contradictory role in both supporting the foundation trusts and being the economic regulator for the NHS. We will have the national Commissioning Board overseeing the system in accordance with a mandate given to it by the Secretary of State. However, the board, which the noble Earl, Lord Howe, talked of as being a facilitating organisation, will none the less have a massive £20 billion commission of services. The national Commissioning Board will also have four regional outposts and 50 local outposts. The noble Earl called them field forces last week, but I suspect that the jargon has moved on since then.
We then have 244 clinical commissioning groups, at the last count, but because the clinical commissioning groups do not have the skills to commission services we are also to have 35 commissioning support units. Then there are the clinical senates—15, perhaps—but no one has any idea who they will be, what they will do or who they will be accountable to. We then have 165 local authorities taking over responsibility for the public health function, 165 health and well-being boards and the same number of local healthwatches. As we heard earlier, the local education and training boards are accountable to Health Education England. Then there is the leadership academy and the improvement body that the noble Earl referred to last week.
Lord Warner
My Lords, I must congratulate my noble friend. He has obviously had an extremely good weekend and is in very fine fettle. He has done a great service in moving the amendment, because it gives us a chance again to air the continuing concern in many parts of the NHS and the outside world about the cost of the organisational changes that flow from the Bill and the risks of those administrative costs escalating in future.
I recognise that nearly all organisational changes have transitional costs, and I do not doubt the Government's genuine belief that their changes will lead to savings in what they call bureaucratic costs. As the Minister knows, I moved some amendments in Committee to try to cap management costs and their annual increases. He told me in the politest possible way and with his normal, reasonable manner that that was unnecessary.
However, I remain concerned about the Government’s ability to keep under control the costs of the organisational changes that they have set in train with the very large number of new bodies that can play in the NHS game, as my noble friend Lord Hunt made clear. I do not intend to go over them again, but there are a lot more of them than there were before. Whether we call them bodies or ill defined entities, such as the senates, they are still people who will be involved in the administrative processes, and I have never found anyone able to engage in administrative processes who does not incur costs and increase the cost of those services. Some of us have been around the public sector quite a long time. Those bodies can use the age-old arguments to grow their organisations over time. Those growths of organisations are, of course, always in the interests of the public. It is always for the best of purposes that they expand.
I see nothing in the Bill that enables those costs to be contained from escalating in future. It is not just about the start-up costs of the national Commissioning Board or Monitor in the early stages; it is a question of where this whole system will end up in two, three, five or 10 years’ time, when we see, in its full glory, how it works in providing our NHS.
My scepticism rests on how the Government have modified the Bill as it has progressed through Parliament. It would be easier to be more confident about containing those costs if, after the pause and as the Bill has progressed, we had not seen modification, often done with good intentions and often moved in amendments from other parts of the House. However, we have ended up with a model that looks jolly different from the one that we started with when the Bill began its passage through Parliament.
I have also been struck by what I can only describe as the naivety of the language of some of the Government’s supporters, who seem to equate eliminating managers with reducing bureaucracy. As my noble friend said, we badly need managers to make this system work. There is a growing belief that somehow, after all these years, clinicians will suddenly be efficient, cost-cutting commissioners of services and we can forget about the quality of general managers. I am pleased to see the noble Lord, Lord Fowler, in his place because he was, if I may put it this way, the father—or grandfather—of the general management that was introduced into the NHS, and he deserves a lot of credit for that. In the 1980s, the Conservatives decided that what the NHS needed was a good dose of general management, and that is what it had. However, managers suddenly seem to be equated by some of the Government’s supporters with the cause of the problem. They are the people whom we seem to need fewer of while we undergo a massive organisational change and have to save £20 billion over four years. How that is all to be done with a new set of organisations and with many of the most experienced managers being lost to the NHS slightly eludes me.
The Government turned their face against using existing legislation to reduce the number of PCTs significantly, reconstituting them with more members from local authorities and more clinicians. Some of us have reduced the number of PCTs and SHAs and have substantially reduced the number of ambulance trusts without any primary legislation at all. I am still waiting to hear convincing arguments as to why we could not have done some of that under existing legislation without inflicting much of the organisational change relating to commissioning. I support in principle more clinician involvement in commissioning, but why could that not have been done within the existing legislative framework without this plethora of new entities being created? These new bodies will have to learn how to run the NHS and will incur quite a lot of costs while doing so.
In the current public expenditure climate, we cannot afford to have what I would call youth training scheme approaches to managing the NHS. A lot of new people will have to learn on the job. If we do not introduce into the Bill some constraints on these costs, they will escalate out of control. That is why I do not think that my noble friend’s amendment is the perfect solution, although it is an attempt to try to curb costs and stop them running out of control. However, I fear that that is what we shall see when the sets of changes in the Bill are implemented in the real world.
Lord Fowler
My Lords, when the noble Lord said that the amendment was not exactly the perfect solution, that was a brilliant understatement of the position, as I think almost everyone would agree. My concern about the amendment is that it is a prime example of declaratory law. Almost no one would disagree with the aim of reducing bureaucracy. I suspect that almost every Government since 1946 have said that that has been their aim, although I am not sure that it takes the argument very much further. I am delighted that the noble Lord, Lord Hunt, is proposing this. He was a former director of the National Association of Health Authorities and Trusts, which I never felt was in the foreground of reducing bureaucracy in the health service, but that is doubtless a very unworthy allegation to make against him. However, going purely on the basis of the wording of the amendment, I think that it is simply impractical to have a,
“minimum level of management tiers” .
What does “minimum” mean? It is a wonderfully generalised statement.
The noble Lord, Lord Hunt, touched on the fact that there is a slight implication—I know that he distanced himself from it—of there being opposition to management inside the health service. Of course I agree with the noble Lord, Lord Warner, that management is absolutely of the essence, and I am delighted to have received praise from him. When I introduced general managers into the National Health Service following the report of the late Roy Griffiths, who, people may remember, did so much and produced a wonderful and exemplary report, it was in the face of opposition from virtually all the health service unions, including, needless to say, the British Medical Association, and most of the people who have been opposing the current Bill. It was also in the face of fierce opposition from the Labour Party—in the Commons at any rate; perhaps it was different in this House. Therefore, if I can make an entirely partisan point, I am delighted that we all agree on this serious point. More than 1 million people are employed in the NHS and there is a vast budget. To believe that you can get through the reorganisation without skilful and good management is completely ridiculous and we need to underline that. We are not talking about administrators—a phrase that is still used far too often. We are talking about managers, and what the health service needs is good managers.
I hope that the noble Lord, Lord Hunt, regards this as simply a good amendment for debate and that he will withdraw it because of its manifest defects. However, he rather criticised the new organisation going down to the local level regarding health promotion. Obviously, if you go down to the local level, you are going to have a number of local authorities. However, I should have thought that one thing on which both sides of the House would agree is that health promotion should be carried out with a ring-fenced budget and with local delivery. I should have thought that most people would want to see that. It contrasts with what the previous Government did and doubtless with what happened before that. Money which went to health promotion—I remember this happening with HIV/AIDS—simply was not used for that purpose; it was used for something else inside the health authority. I think that we are taking a giant step forward with health promotion and I am passionately in favour of that.
The amendment of the noble Lord, Lord Hunt, is interesting. I obviously agree with all the sentiments behind it, as I think most people do. However, as a piece of law, it is, frankly, defective.
Lord Harris of Haringey
My Lords, it is an enormous pleasure to follow the noble Lord, Lord Fowler. I was particularly taken with his support for the principle of ring-fenced funding, which I trust the Minister will take into account when, a little later, we come to consider local healthwatch organisations.
Earlier today, we had a Question on the initiatives that had been taken in London on stroke care. I did not get an opportunity to pose this question but I was interested in who, in the absence of NHS London driving the process, would have taken the quite difficult decision to reorganise stroke care in London, given that it was opposed by a lot of the local providers and local organisations. This question also came up during the first day on Report when we looked at who would make decisions on reconfiguring services and who would make decisions when services were not adequate or when there were issues of equality of healthcare to be addressed. At one point, the Minister said:
“The CCGs will be supported in their efforts to improve quality by the NHS Commissioning Board”.—[Official Report, 8/2/12; col. 314.]
Later on, when I probed him on this, he said that “the board”—that is, the NHS Commissioning Board—“will be represented sectorally”. I was not quite sure what he meant, but it being Report stage I could not challenge him. He said:
“There will be field forces in all parts of the country … The majority of its staff will be a field force”.—[Official Report, 8/2/12; col. 316.]
I do not know how a majority can be a field force, but there we are. Later on, he said:
“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”.
When I questioned whether that meant that they would be members, he said:
“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”.—[Official Report, 8/2/12; col. 340.]
I took that to mean that the NHS Commissioning Board will be sitting at the centre of the National Health Service with its tentacles going out to all parts of the health service. The Minister did not really like that. He said:
“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”.—[Official Report, 8/2/12; col. 352.]
The Earl of Erroll
My Lords, the description by the noble Lord, Lord Hunt, of the NHS Commissioning Board and its satellites shows that you do not get economies of scale, but complexities of scale. This amendment contains a wonderful concept that bureaucrats should curb their deepest urges and I think that should be in all public sector body reorganisation Bills, but how would you enforce it? What sanctions do we have against a person who does not comply and does not curb their bureaucracy? The challenge is the same as with the previous amendment: how do we motivate people to behave in a correct and ethical way, so that patients’ and the taxpayers’ interests are looked after? I do not think that it can be done by regulation, which is very sad.
Baroness Tonge
My Lords, I cannot resist putting my oar in on this Bill. I do so because, many years ago, I was in middle management in the health service. I had to take part in the many reorganisations that happened. I suppose the noble Lord, Lord Fowler, must have been one of the culprits who added to my misery at work. I tried to concentrate on clinical work but people pestered me about filing cabinets, which office they should work in, who would be their line manager and what exactly would they be managing. The noble Lord, Lord Hunt, is quite right to point out that as soon as you start on any sort of reorganisation, the people themselves enlarge it. They need PAs, they need offices and so on. Suddenly, they find they have no one to do the bean counting, so they need a bean counter. The Government give the impression that this is all a delightfully simple, wonderful, altruistic idea that GPs, in consultation with their patients, will commission the care for their patients. I have been a GP as well, and I can tell the House that GPs are not going to go home instead of going to the golf club, take out their laptops and do a bit of commissioning in the evening. It will not work like that. There will have to be an office block full of commissioners—just like PCTs—to do the job for them. What is worse, I understand that private medical companies are anxious to do the commissioning for the clinical commissioning groups. That will mean that taxpayers’ money will go directly to private medical companies that will advise GPs on how to commission. I find that absolutely iniquitous and will fight it to the end.
We will see a mushrooming commissioning group with its advisers, whoever they are, in an office block. It will not stop there. The noble Lord, Lord Hunt, mentioned the number of different organisations that had been set up. The noble Lord, Lord Harris, mentioned the connections between them. It was deliciously simple for him to give us the image of tentacles reaching down from the National Commissioning Board to all parts of the health service. The noble Lord, Lord Rea, and I helped send round some information many weeks ago. There was a wonderful diagram of the interconnections between all the new bodies in the health service. It was like Spaghetti Junction. I am a midlander so I know what that junction is like. There is no way that one can navigate the maze of who provides what, and whether it is done nationally, locally, by local authorities or by clinical commissioning groups. It is overly and unnecessarily complicated. As the noble Lord, Lord Harris, said, we could have adapted the existing system to work much more efficiently, which would have been much cheaper and better. No wonder Professor McKee recently wrote an article in the BMJ asking who understood the Health and Social Care Bill, in which he explained that he did not understand it at all.
I will finish with an image that will delight noble Lords who are fed up with me. I went to the dentist this morning. Just as he got me in the reclining position, with the torture instruments looming, he said: “By the way, I know what I have to ask you: can you explain the Health and Social Care Bill?”. About 10 minutes or so later I noticed that his eyes had glazed over and he was reaching for the drill, so I shut up and gave in.
Lord Newton of Braintree
My Lords, I hope that the noble Lord who moved the amendment will accept my apologies. I needed to recuperate after the previous debate so I was not present for the earlier part of this debate. Therefore, it is probably unwise for me to speak. However, I have checked that I will not cross the path of my noble friend Lord Fowler in what I intend to say, so I will risk it.
The noble Lord, Lord Hunt, will also recall—if I dare advert to it—that we had a somewhat jocular conversation in a cafeteria last week. He sought my support for the amendment and I said that I thought he was joking. There is a serious point here. First, we really should not include in primary legislation things such as minimum tiers of management. Secondly—I say this with an eye on my own Front Bench as well—one of the most irritating features of the discussions for any practitioner is the naked populism of assuming that anybody who is not a doctor or clinician contributes nothing to the service. I have been chair of three health trusts, as well as Health Minister many years ago. What do we mean by “bureaucrats”? Do we mean the people who pay the nurses and doctors, and who make sure that the drugs are ordered on time and organised in neat rows? Do we mean the people whose duty is to pay small businesses in time so that they do not go bankrupt? We are all against having a system in which it takes 25 men to change a light bulb and costs about £20 when the rest of us could go out and buy one and put it in the socket. I am not talking about that kind of thing but about the fact that these resources—nurses, doctors, pharmacists and a lot of other people—are precious, and if they are not well organised by people setting up sensible systems, we will not get the best out of them. The constant knocking of management under the heading of “bureaucracy” is deeply counterproductive and I will not go along with it in the course of these debates.
I will make two further points. First, why do so many GPs’ practices have practice managers? It is because they recognise that somebody needs to manage the resource to get the best out of it. The managers perform a very valuable role. My second and even more important point, born of my experience in the three health trusts, and perhaps particularly at the Royal Brompton and Harefield, is that it is critical to involve doctors in that management. Therefore, in some ways the problem is much more complicated than has been registered. Trusts where managers sit in one silo and fire bullets or bombs at doctors sitting in another do not work. We need to engage doctors and, where they have an interest in performing a managerial role, train and involve them as managers. That is what we did at the Brompton—which was no great credit to me—and it transformed things.
This is a grossly oversimplified amendment. It does not belong in primary legislation. It rests on a crude, populist misunderstanding of what we mean by bureaucracy and management in the NHS.
Earl Howe
My Lords, during the passage of the Bill we have had much discussion about the importance of freeing front-line professionals from needless bureaucracy and ensuring that they are able to focus on patient care—not least when we considered the duties of autonomy. This is one area where the House is in agreement. Certainly one aim of the Bill is to reduce bureaucracy and micromanagement, prevent politicians in Whitehall second-guessing the decisions of doctors and nurses, and streamline the architecture of the NHS.
The noble Lord, Lord Hunt, indulged himself in one of his occasional rhetorical forays, which I enjoyed. However, the amendment is rich coming from him. Perhaps I should remind the House that the previous Government did to management costs what the noble Lord accused us of doing. Since 2002-03, the management costs of PCTs and SHAs have increased by more than £1 billion—a rise of more than 120 per cent. The Bill aims to get a grip on a problem that under the previous Government simply got out of control. The noble Lord will know that my department has confirmed an overall running-cost budget of £492 million. That represents a 50 per cent reduction in costs and staff compared to the current cost of functions that will transfer to the board. At board level, the work previously done by 8,000 people will be done in future by approximately 3,500 full-time equivalent people. That is a major reduction.
The amendment tabled by the noble Lord seeks, first, to introduce a new duty on the Secretary of State to prevent bureaucracy and, secondly, to minimise the layers of management tiers within the Commissioning Board. The noble Lord produced a confection of arguments to bolster his case that bureaucracy in the NHS is increasing rather than diminishing. I can tell the House that the opposite is true. In saying that, I should stress that I am not in any way denigrating NHS managers. I have never done that and I will never do it.
Setting aside the noble Lord’s knockabout routine and getting back to earth, I agree with the principle behind this amendment. Noble Lords will already be aware of the autonomy duties, which we have recently amended, in no small part due to the Constitution Committee. Those duties ensure that proper consideration is given to whether any requirements or objectives set by the board or the Secretary of State will place unnecessary burdens on the health service or distract from good quality patient care. In addition, the Bill places duties on the NHS Commissioning Board, CCGs and other bodies to exercise their functions effectively, efficiently and economically. That is in new Section 13D of the National Health Service Act 2006 for the board and new Section 14P for CCGs. Together, I believe that these provisions ensure that the duty to maximise efficiency and minimise bureaucracy is embedded throughout the system. We do not need anything further.
The noble Lord, Lord Warner, asked me a question that I have been asked before in these debates. It concerned why we did not simply reform the PCT model. We chose not to try to reform the PCT model because it would not have delivered the empowered clinical commissioners we want to see and, indeed, the Opposition want to see. This Government supported the principle of practice-based commissioning, but there is one thing to say about practice-based commissioning: it was not working. It did not live up to the ambitions that people had for it. Central to this was clinical commissioners’ lack of autonomy. Only by conferring functions directly on clinical commissioners, as this Bill does, can that autonomy and responsibility be properly established.
Subsection (a) of the noble Lord’s amendment refers rather bafflingly, as my noble friend Lord Fowler pointed out, to a minimum level of management tiers. I am not quite sure how that would be interpreted by the courts, but I believe that the noble Lord is drawing attention to the published proposals for the board’s organisational structure. In line with the vision we set out in the White Paper, the proposals put forward make clear that the board will be a single nationwide organisation that will work across the country to improve quality and outcomes. However, there are some who have focused on the board’s proposal for a maximum of five layers of management, claiming that this represents some sort of increase rather than a reduction in bureaucracy. That is not the case. The structure proposed by the board is based on sound and well recognised principles of effective organisational structure. The proposed organisational structure for the board is designed above all to support it in its overarching role to improve health outcomes. What surely matters is the board’s efficiency and effectiveness. In fact, as I have already said, the board will operate with a 50 per cent reduction in running costs in comparison with the current system. I am not attracted to the part of the amendment that requires the Secretary of State to influence the number of management tiers in the NHS Commissioning Board. Apart from being inappropriate, it is unnecessary. The Bill already makes clear that the Secretary of State sets the resource limit for the board and new Section 223E of the 2006 Act allows him to impose a cap on administrative spend. Together these provisions ensure that financial limits are placed on the board, which will necessarily influence the way in which it is structured. However, I believe it would be inappropriate for the Secretary of State to go any further than this in influencing the organisational design of the board. The board is the body best placed to determine how to organise itself in the most effective and efficient way. It is therefore our intention to allow it as much autonomy as possible in determining its own membership, structures and procedures.
All our proposals for modernising the NHS, including the provisions in the Bill, are designed to minimise bureaucracy, micromanagement and unnecessary waste to enable the whole system to focus on what really matters, which is patient outcomes. For example, the outcomes framework will directly link quality improvement and outcomes with commissioning; clinically-led commissioning groups will be judged, through the commissioning outcomes framework, on whether they improve patient outcomes and experience rather than process targets; the NHS Commissioning Board will hold GP commissioners to account for their performance against NICE indicators; and CCGs will hold providers to account for driving up quality improvement using contracts and incentives. It is quality and outcomes that matter and with the safeguards already in place to limit administrative spend throughout the system, I believe that the noble Lord’s amendment is unnecessary. I hope that he will feel able to withdraw it.
Lord Hunt of Kings Heath
I must say that I am really rather disappointed by the noble Earl’s response to my constructive amendment. He does not seem to have answered the charge that is being made. First, I think we are all agreed that when we talk about bureaucracy we are not talking about the fine managers that the NHS has to whom we owe so much. This is an argument about the structure, the layers and the cost of a market that the Government wish to bring in to the health service. It is not about managers in the health service.
The fact is that the Secretary of State and his colleagues, including the noble Earl, have continued to intervene in the health service on a daily basis. They have yet to explain how, if this Bill eventually receives Royal Assent, at that point, magically, Ministers are going to step back and simply let this new system continue. I do not believe a word of it. What I believe will happen is that on the one hand you will have this complex structure where the mantra is that it is all arm’s length, it is all down to the clinical commissioning groups, the market and the gentle guidance of Sir David Nicholson and his colleagues at the national Commissioning Board, and Ministers can simply step back. It will not happen. What we will have is the system that the Bill enacts, if it is enacted, and Ministers continuing to micromanage. It is inevitable that Secretaries of State are accountable to Parliament, and they will be required by the very process of parliamentary democracy to continue to intervene and to take a close interest in what is happening. That is the charge I put to the Government as to why I believe that this is going to be a very complex situation indeed.
It is always good to debate with the noble Lord, Lord Fowler. Twenty years ago, I enjoyed debating with him issues mainly to do with the funding of the National Health Service. I think the National Association of Health Authorities and Trusts was a very modest organisation. It was very lean and certainly not subject to the strictures of the noble Lord who suggested that it was part of the bloated bureaucracy that I think he was implicating me in. He does not like the idea of declaratory law. That is all very well, but what is Clause 4 but a declaratory statement: “The Secretary of State’s duty as to promoting autonomy”? Indeed, the noble Earl, Lord Howe, referred to it in his winding-up speech. I have to say to him that if the duty of autonomy were currently on the statute book, I do not think that he could have brought this legislation in under it because it states that,
“unnecessary burdens are not imposed on any such person”.
This whole edifice is going to impose enormous burdens on many such people within the National Health Service.
The noble Lord, Lord Fowler, referred to the Griffiths report—at 24 pages, it was a remarkable letter which had a long-term impact on the health service. He will recall that we were very strong supporters of the introduction of general management. I am very concerned about the structures that are now being brought in because they may well inhibit the kind of leadership and clinical engagement that we saw as a result of the Roy Griffiths management inquiry.
I have to say to my noble friend Lord Harris that the description of Sir David Nicholson as the chief inquisitor was a little unfair.
Lord Hunt of Kings Heath
All of us who have worked with Sir David will know that he is a very fine manager and I am very glad that someone of his calibre is in that position.
The worry is that although the national Commissioning Board is going to be one organisation, it will have different layers and at the local level it will be very powerful. If there are, say, 50 local offices of the national Commissioning Board, given the smallness of clinical commissioning groups—the Government have followed us into the trap made when we created too many primary care trusts—when it comes to the real issues at local level and the kind of leadership of a system that goes across local authority boundaries and covers populations of around 1 million to 2 million, the clinical commissioning groups are simply not going to be big enough to provide the kind of strategic leadership that is required. Inevitably it is going to fall to the local office of the national Commissioning Board. I worry that there is no accountability because these will be simply the outposts of a national body.
However much one might criticise primary care trusts or strategic health authorities, the fact is they had a majority of non-executive directors on their boards, they met in public and they felt some local accountability. The local offices of the national Commissioning Board will have no such feel because their sole accountability will be to the national Commissioning Board at national level. Alongside that, we see from Mr Lansley’s article in the Health Service Journal that he is very keen on the implementation of a market. We know that that will come at a price—in terms of the complexity of contract-making and of legal costs and certainly in the profits that private sector companies will wish to take out of the National Health Service.
This is a very complex structure that the Government are introducing. My amendment is a helpful reminder to the Secretary of State that there should be a very clear presumption that the kind of bureaucratic monstrosity that is now being introduced ought not to be introduced. I wish to test the opinion of the House.
Lord Hunt of Kings Heath
“(2) The Board has the function of arranging for the provision of services for the purposes of the health service in England in accordance with this Act and subject to any directions issued by the Secretary of State.
(3) The Board must exercise the functions conferred on it by this Act in relation to clinical commissioning groups so as to secure that services are provided for those purposes in accordance with this Act.
(3A) The Secretary of State may give a direction to the Board to discharge each of those functions, and in such manner and within such period or periods, as may be specified in the direction.”
Lord Hunt of Kings Heath
My Lords, Amendment 19 comes back to a theme which takes us to the overriding responsibility of the Secretary of State for a comprehensive health service and to the relationship between the Secretary of State and the national Commissioning Board. I do not want to go over the ground that we went over in the previous debate but I want to make just two or three points.
The Minister will recall that in Committee we debated the whole question of the concurrent power being given to the national Commissioning Board in relation to the Secretary of State’s responsibilities in Clause 1. Given Clause 1 and our really important debates on it, and the welcome agreement on the first day on Report regarding the way in which an amendment was accepted to make clear that the Secretary of State is accountable to Parliament for NHS provision, I remain concerned as to whether it is right that a body such as the national Commissioning Board should carry such responsibilities as well—that it should have a concurrent responsibility and duty.
Surely, ultimately, the national Commissioning Board is a secondary body as compared to the Secretary of State. The very fact that there is a mandate in which the responsibilities and duties of that board are laid down on a regular basis by the Secretary of State reinforces the proper relationship between an unaccountable body, such as the national Commissioning Board, and an accountable person, such as the Secretary of State. I should be grateful if the Minister would give further reflection as to whether a concurrent power really is the appropriate way in which that relationship should be set out.
Of course, that is associated with the power of intervention by the Secretary of State. It seems to me that in the end, since the Secretary of State is accountable to Parliament for provision and for ensuring a comprehensive service, if he feels that the national Commissioning Board is not doing the right thing or that there is a matter which requires the intervention of the Secretary of State, it is right that that intervention can be taken out without obstruction or legislation. In my view, that would lead to a confusion of role as between the Secretary of State and the national Commissioning Board.
When we discussed this issue in Committee, I asked the Minister what would happen if there was an issue. Let us take, for instance, some of the recent interventions by the Secretary of State. He has expressed concern about the way in which primary care trusts have manipulated waiting lists. Rightfully, in my view, he sought to intervene. How would you do that under the new arrangements if clinical commissioning groups or some individual clinical commissioning groups were not doing what the Secretary of State thought to be appropriate?
From our debate in Committee, I had the impression from the Minister that in those circumstances provision could be made in the mandate set for the board by the Secretary of State. I can see that every so often you can alter the mandate to deal with an issue like that. But sometimes he will need to intervene rapidly rather than have to wait for the process of a mandate to be set. I also suspect that there is a risk that the mandate could become very detailed and prescriptive—in other words, the micromanagement that the Minister is so keen not to see introduced. There will be issues that arise during the year which might not have been envisaged when the mandate was drawn up.
The noble Earl may well say that we will have the intervention powers set out in proposed new Section 13Z1 set out on page 24. My problem with this is that the wording constrains the intervention because it has to be based on a failure to discharge or a failure properly to discharge any of its functions, and the failure is significant. Of course, the intervention none the less is based on what the Secretary of State himself considers, and no doubt he would always be properly advised by his officials and, in extremis, the Government Law Officers. But I can envisage situations in which the NHS Commissioning Board actually rejects the Secretary of State’s view and where it would be deemed that the issue is not one that comes under the auspices that could lead to intervention under Section 13Z1. I think that there should be a clear right in the Bill for the Secretary of State to have a power of direction.
In the end the sole accountability of the national Commissioning Board has to be through the Secretary of State and thus to Parliament. The board is not elected; it is an appointed body. There has to be full accountability, and for me, one element of that accountability is that the Minister responsible to Parliament has the right to tell that body what to do. I feel very uncomfortable with a body that is floated off. Okay, we have the mandate, but in the end it is not an accountable body except through the relationship it has with the Secretary of State, so it is right that the Secretary of State should issue direction powers without being fettered as I believe he is in Section 13Z1.
I do not think I need to mention the other two amendments at great length. Amendment 23 merely tries to encourage the noble Earl to say that clinical commissioning groups have the function of safeguarding the comprehensive provision of NHS services. It is very important that within all the autonomy that the Secretary of State wishes to give the clinical commissioning groups, it is made clear that they must, none the less, sign up to the overriding responsibility of anyone involved in the NHS to ensure that comprehensive provision is safeguarded. Amendment 70 is really consequential on Amendment 19. I beg to move.
Earl Howe
My Lords, Amendments 19 and 70 seek to reintroduce the Secretary of State’s powers to direct the health service. I have listened with care to what the noble Lord has said, but I continue to believe that this would be a retrograde step on every count, not least that of transparency. Under the Bill as it stands, the Secretary of State will be able to set objectives and requirements both through the mandate and through “standing rules” regulations under Clause 19, but unlike directions, these would be subject to full scrutiny, and the Bill creates a clear expectation that they would be set only once a year in order to provide certainty for planning. Ministers would also have robust intervention powers in the event of significant failure, as the noble Lord mentioned.
The system we are creating is designed to be predictable, transparent and structured, and will provide stability for the health service. I think that this is a better approach than allowing the Secretary of State to direct the health service whenever he wants, which risks returning us to the unpredictability and opaqueness of the current system. The noble Lord described the Commissioning Board as “unaccountable”. I must scotch that myth. The Secretary of State will have wide-ranging powers over the Commissioning Board, most prominently through the mandate and the standing rules, which will enable the board to be held rigorously to account. In addition, the board will have to meet in public, produce a business plan and an annual report, both of which will have to be laid before Parliament. Further, I would remind the noble Lord of Clause 51, which covers the,
“duty to keep health service functions under review”.
The process of holding the board to account is not a once-a-year task. In turn, the Commissioning Board will hold CCGs to account for the quality outcomes they achieve and for financial performance—and, again, will have the power to intervene where there is evidence that CCGs are failing or likely to fail to fulfil their functions. If the Commissioning Board fails to hold CCGs to account, the Secretary of State could then direct the board to do so. If the board failed to comply with that instruction, the Secretary of State could either discharge the function himself or make arrangements for another body to do so on his behalf. So it is quite wrong to say that there are no levers available to the Secretary of State.
I turn now to Amendment 23, which emphasises the need for clinical commissioning groups to safeguard,
“the comprehensive provision of NHS services”.
Noble Lords will recall that the House has already agreed an amendment to Clause 12 which explicitly requires CCGs to act consistently with the discharge by the Secretary of State and the Board of their duties to promote the comprehensive health service, and with the objectives and requirements in the mandate.
I fully appreciate and support the intentions behind this amendment, and I hope that the discussion we have already had and the amendment we have already discussed to Clause 12 will offer the noble Lord a reassurance that the effect of this amendment is already covered in the Bill. In the light of what I have said, I hope that he will feel able to withdraw the amendment.
Lord Hunt of Kings Heath
My Lords, I am grateful to the noble Earl, Lord Howe, particularly for his remarks in relation to Amendment 23. Clearly we are not going to agree about this matter. I do wish that the late Lord Marsh could still be present because he would have enjoyed these debates. I think that he would have reminded us of the traditional relationship between the chairman of the board of a nationalised industry and the Minister responsible to Parliament. Although we have lost those nationalised industries, in one sense the Department of Health is now busily engaged in setting up the kind of structure that in many ways is akin to those industries. That is because the chairman and chief executive of the national Commissioning Board are, in essence, being handed a huge amount of power by the Secretary of State. They are to be given the budget, the mandate and the standing rules, and are to be told to get on with it. If we go back to our experience with the nationalised industries, of course it never worked because there was a continuous tension between the board of a nationalised industry and the Minister which arose from the fact that the Minister was accountable to Parliament for the running of the railways, iron and steel and the coal board.
That is exactly what we are constructing today. We have the myth that simply by having a mandate and standing rules, we can say to the national Commissioning Board, “Get on with it. I as a Minister will no longer intervene unless in extremis”, under the circumstances set out in Bill. Life is not like that. Parliament will continue to debate the health service, issues will arise and Ministers will make pronouncements. I do not believe for a minute that the 12 or so pronouncements we have heard from Ministers over the weeks that this Bill has been in your Lordships’ House will not be followed by similar pronouncements under the new structure. They will be forced to do so because Parliament will require it. That is the risk and why I believe it is such a complex system. On the one hand there is a structure which is based on an arm’s-length relationship, a market, with clinical commissioning based on a mandate, while on the other hand there is still the Secretary of State who will be fully held to account in Parliament. There will be enormous tension and great confusion within the National Health Service. For that reason, there is a strong argument for accepting that, in the end, the Minister is accountable and ought to have a power of direction. Saying that this can be done through a mandate and standing rules is not realistic, and no doubt, if the Bill is enacted, we will see this played out. I do not think anyone should be under the misapprehension about the fact that we are building into these arrangements a very unstable situation. But we have had a good debate, and I beg leave to withdraw the amendment.
Arrangement of Business
Lord De Mauley
My Lords, may I remind noble Lords that this evening’s debate, as is the case with all dinner-break Questions for Short Debate, is time-limited to one hour? Thirty noble Lords have signed up for the debate, meaning that all speakers, other than the noble Baroness, Lady Jay, and the Minister, are limited to one minute.
Assisted Dying
(12 years, 2 months ago)
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Baroness Jay of Paddington
To ask Her Majesty’s Government how they assess the application of the Director of Public Prosecutions’s Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide.
Baroness Jay of Paddington
My Lords, I am grateful for the opportunity to ask the Government this important and timely Question. On 25 February, it will be two years since the Director of Public Prosecutions published his Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide. I think that it is fair to say that those new guidelines were generally welcomed. They relate to a criminal offence which carries a maximum prison sentence of 14 years and, of course, to the general issue of assisted suicide, which, as your Lordships are aware and as we see from the speakers list tonight, continues to be of great interest and concern. Until this evening, the guidelines have not been debated in Parliament, so this is a very appropriate moment to hear the Government’s assessment of how they are working, not least because there have been two more recent publications which are pertinent.
In January, the expert Commission on Assisted Dying, chaired by my noble and learned friend Lord Falconer of Thoroton concluded after 12 months’ work that the,
“legal status of assisted dying … is inadequate and incoherent”.
The commission proposed an entirely new legal framework. I am very pleased that the noble Baroness, Lady Young of Old Scone, who was one of the commissioners, is speaking in this debate. Just last week, the General Medical Council published new draft guidelines dealing with the circumstances in which a doctor is alleged to have assisted a suicide. Those guidelines are now out for consultation.
As your Lordships can see, this is a very live current issue, but perhaps I may remind the House of the background. The Suicide Act 1961 explicitly gives the Director of Public Prosecutions discretion over whether to prosecute cases of assisted suicide. Over the years, this has led to complicated and difficult ambiguities in a particularly sensitive area. In 2009, the case of Debbie Purdy, who is suffering from progressive multiple sclerosis, came to the House of Lords. She was seeking clarity about her husband’s future legal position if he helped her to commit suicide. The Law Lords ruled that the Director of Public Prosecutions must as a result of this case create what they called a “custom-built” statement, indicating the various factors for and against prosecution. I am delighted that the noble Lord, Lord Pannick, who represented Mrs Purdy in that case, is speaking this evening.
The resulting policy guidelines, which we are discussing tonight, included 16 factors where the DPP will be more likely to judge that it is in the public interest to prosecute and six where prosecution is less likely. The six factors weighing against prosecution are: the victim had reached a voluntary, clear, settled and informed decision to commit suicide; the suspect was wholly motivated by compassion; the actions of the suspect were of only minor encouragement or assistance; the suspect tried to dissuade the victim from committing suicide; the suspect was reluctant to assist; and the suspect reported the victim’s suicide to the police and fully assisted them in their inquiries. I should note that many people object to the use of the terms “victim”, meaning in this case the person who has died, and “suspect”, the assister in this context, but I understand that the DPP feels that these are unavoidable in the criminal law.
As so often, it is probably more helpful to look at individual cases; for example, that of Geraldine McClelland. Last December, Geraldine McClelland died in Switzerland, having been accompanied to the assisted suicide organisation, Dignitas, by both her brother and her sister. Geraldine, who was terminally ill, made clear her desire to control her own death to the extent that she wrote an open letter to the public, telling us:
“I am 61 years old and am dying from lung and liver cancer … I have chosen to travel abroad to die … I am not sad that I will die today … I feel sure this is the right decision for me and I am relieved that I won’t be forced to suffer any more”.
Frankly, I cannot imagine anyone thinking that it would be in the public interest to prosecute Geraldine’s brother and sister, who accompanied her.
It is worth recording that it is estimated that more than 180 Britons have travelled to Switzerland to die in the past decade, but, to date, no one has been prosecuted for accompanying them or assisting with arrangements. Interestingly, it does not look as though the existence of the new prosecuting guidelines since 2010 has led to an increase in the number of Britons going abroad to die. The media have reported that there were fewer in 2011 than in 2010. On the other hand, the Crown Prosecution Service reports an increase in the cases reported to the authorities—50 between January 2009 and December 2011 compared with only eight in the five years between 2003 and 2008. The greater willingness to come forward seems to have been prompted, in part at least, by the new prosecution policy and is certainly to be welcomed. Overall, the legally sanctioned clearer and more flexible approach to what are often emotionally and practically difficult, sad situations is a great step forward.
However, there are two significant problems with the policy as it now stands and I should be grateful for specific comments from the Minister on them. The first and perhaps most obvious is that, although Debbie Purdy brought her landmark case in the hope of protecting her husband from criminal charges—that is, if he helped her in the future to die—the new policy maintains the position that there can be no negotiated immunity before a crime is committed. It would be much more humane and realistic to establish that, when someone has, in the words of the new guidelines,
“reached a voluntary, clear, settled and informed decision to commit suicide”,
their circumstances could be investigated before they die. Apart from anything else, if their intention was known in advance, the person wanting to die might be offered alternative care and treatment options, and might even change their mind.
A change in the law or extension of the custom-built guidelines to achieve this would also open up the possibility of involving medical assistance, because the second failing of the guidelines is the lack of advice to doctors and nurses. Indeed, the policy explicitly states that those with professional caring responsibilities are more likely to be prosecuted if they assist a suicide than a lay relative or friend. This is one of the 16 factors which tend to lead to prosecution. There is growing evidence, though, that this creates practical problems for health professionals looking after patients at the end of life. We are in danger of creating a paradox here. Doctors and nurses think that they are still actively precluded from any involvement in assisted suicide, but, on the other hand, patients and their families today feel encouraged to discuss it with the professionals whom they trust. It would be extremely helpful if there could be clear understanding about the nature and limits of any assistance that a healthcare professional might give. To take an example, is a doctor equally liable to prosecution if he prescribes lethal drugs or, on the other hand, he supplies medical records for a patient who has made the decision to travel abroad to die and asks his medical practitioner for them? I very much welcome the General Medical Council's initiative in consulting on legal issues for the medical profession as it is doing now and I hope that the council gives valuable guidance when that process is completed later this year.
Overall, the prosecuting policy has produced positive effects, which are widely supported by the public where polling suggests that more than 80 per cent are in favour of not prosecuting those who help a relative or close friend to die. I am very grateful to all the distinguished Members of the House who will take part in what may be a slightly breathless debate tonight. The number of speakers who have decided to take part indicates that this House takes this issue very seriously and we should perhaps be asking for government time to discuss it more fully soon. I look forward to the Minister's reply and particularly his opinion on whether the present policy is regarded as a permanent solution and settled, or whether it may need amendment and extension in the future.
Lord Ribeiro
My Lords, I thank the noble Baroness for bringing this very important debate to the House. I declare an interest as a past president of the Royal College of Surgeons. In 2005, we made it clear that we did not support assisted suicide. In evidence to the Commission on Assisted Dying in April 2011, the Royal College made two clear statements:
“The law as it currently stands should not be changed and no system should be introduced to allow people to be assisted to die”,
and:
“The College does not recognise any circumstances under which it should be possible for people to be assisted to die”.
I understand that the policy for prosecutors issued by the Director of Public Prosecutions does not indicate a change in the law, but for me there appear to be ambiguities that require clarification. Under the heading:
“Public interest factors tending in favour of prosecution”,
in paragraph 43(14),
“the suspect was acting in his or her capacity as a medical doctor”,
or, “nurse”, may be seen as being in danger of prosecution. That seems at odds with the, “factors tending against prosecution”, in paragraph 45(2) where,
“the suspect was wholly motivated by compassion”.
I hope that my noble friend will be able to clarify this point as it is bound to put doctors and nurses in considerable doubt as to the interpretation of their actions. A good doctor knows when he or she should,
“not strive officiously to keep alive”,
and that doctrine should be maintained.
The Earl of Glasgow
My Lords, death, as we all know, comes to all of us, so there is no point in being frightened of it. What we do fear, though, is the manner of our death. If we are unfortunate enough to contract some terminal illness involving a painful or undignified death, we may well wish to die before the worst hits us. But to achieve that we will need assistance and, as the law now stands, any doctor or relative who helps us to die prematurely is committing a criminal offence.
The only hope of getting away with it is by persuading our loved ones to take us to Dignitas in Switzerland. It is not where we want to die, it is not how we want to die, but it is the only option open to us. More than 100 terminally ill Britons have chosen the Dignitas route and although the friends and relatives who accompany them are committing a crime, the public prosecutor has chosen not to prosecute any of them. He has rightly concluded that they did what they did for compassionate reasons and were complying with the patient’s wishes. That ruling, I submit, should apply to all cases of assisted dying. The public prosecutor has chosen compassion over the law and it is time that the law was changed to reflect that.
Baroness Hollins
My Lords, I express an interest as a past president of the Royal College of Psychiatrists, which issued a statement in 2005 about the law as it relates to assisted dying. The prosecuting policy published two years ago is not the only one of its kind. There are prosecuting policies relating to other offences, including domestic violence, racial hatred, dangerous driving and rape. The Director of Public Prosecutions told the group chaired by the noble and learned Lord, Lord Falconer, last year:
“There is a residual discretion for all offences whether to prosecute or not. This is a particular version of it. But it's not unique by any stretch of the imagination; it's the way our law operates”.
We need to remember that and to see the law on assisted suicide and its associated prosecuting policy within the context of the criminal law as a whole rather than in isolation.
The penalties that it holds in reserve provide a powerful deterrent against malicious assistance and like other criminal laws it gives prosecutors the discretion not to press charges where it is clear that assistance with suicide has been, to quote the words of the prosecution policy, “wholly motivated by compassion”.
The Lord Bishop of Lichfield
My Lords, the current guidelines on assisted suicide act to protect vulnerable people and to deter others from acting in an unprincipled manner in bringing about the end of another person's life. That so few cases have been brought to the DPP is proof of the deterrent value of the law. That none of these cases has resulted in prosecution is proof that the law is being applied with compassion and good sense.
Last week, the Church of England General Synod passed a motion by 264 votes to nil indicating, among other things, its opposition to a change in the law in assisted suicide and its support for the current DPP's guidelines. The synod represents not only bishops but clergy and lay people democratically elected by their peers. Its decision, taken after careful consideration and debate, bears testimony to the efficacy of the current law and its application.
Baroness Emerton
The prosecution guidelines make it clear that there does not need to be a change in the law in any way and that encouraging or assisting suicide remains unlawful. The law that we have deters malicious or manipulative assistance with suicide and it ensures that the few cases that occur are generally those where there has been serious soul-searching and which do not need to be prosecuted. There are fewer than 20 cases a year throughout England and Wales. Contrast that with the US state of Oregon, where the current rate of legalised assisted suicide equates to more than 1,000 such cases here. The law that we have is both firm and compassionate and the DPP is on record as having said that the law works well in practice.
Baroness Morris of Bolton
My Lords, like other noble Lords who have spoken, I believe that the law we have on assisted suicide combines deterrence with compassion. Its effectiveness as a deterrent is shown by the infrequency of the offence, while the discretion that it gives to the prosecutors to assess each case on its merits ensures that there is sensitive handling of genuinely compassionate cases.
It is impossible to legislate in detail for every conceivable human situation. What we have now is a law that makes a firm statement that suicide is not something to be encouraged or assisted, but which allows each case to be dealt with by the prosecutors in the light of all the evidence.
I appreciate that the desire for clarification is driven by decency and concern, but I fear that relaxing the law will lead all too easily to pressure on the vulnerable. That is why I believe fervently that we should leave the law and prosecuting policy where they stand.
Lord Joffe
My Lords, because the Director of Public Prosecutions can only interpret but not change the law, the policy puts members of society at risk for two reasons. First, patients have to rely not on doctors but on individuals who have no experience to assist them to die, which will result in botched suicides. Secondly, safeguards are needed before the patient ends his or her life and not after it is ended, as required by the policy. The solution is to change the law to allow assisted dying with rigorous safeguards which would protect vulnerable members of society and allow terminally ill patients to end their suffering by ending their lives, if that is what they want.
Lord Butler of Brockwell
My Lords, the number of speakers in this debate shows that the appetite for debating this issue in your Lordships' Chamber has quite rightly not diminished. We should be grateful to the noble Baroness, Lady Jay, for this—albeit inadequate—opportunity. But the first question for the Government should surely be whether they can provide a proper opportunity for debate.
The existence and the content of the DPP's guidelines are welcome. But unlike other speakers, I feel that the present situation is not satisfactory. People important to someone wishing to end their lives are left in uncertainty about whether they may be prosecuted: principally their inheriting children and their medical carers. All helpers, whether prosecuted or not, face the trauma of a police inquiry. We need a proper framework of law on this very sensitive matter. It is the duty of government and Parliament to make progress sooner rather than later.
Lord Maginnis of Drumglass
My Lords, suicide was decriminalised 50 years ago, but not because it was regarded as something to be taken lightly. Consider emergency responses to 999 calls, the attempts that are made to resuscitate people who have tried to take their own lives, suicide watches where people are thought to be at risk of self-harm—society’s attitude to suicide is no different from how it was 50 years ago. We may not prosecute those who attempt it and survive, but society does not regard suicide as something to be encouraged and assisted. The law already recognises exceptional circumstances, where helping someone to end their lives for wholly compassionate reasons does not usually need to be prosecuted. The DPP has discretion to look at every case on its merits and to judge whether there has been malice or manipulation or whether there has been evidence that there has been serious soul-searching and to treat the cases accordingly. Thanks to the law’s deterrent effect, assisted suicide is a rare offence, with fewer than 20 cases a year throughout England and Wales, many of which do not need to be prosecuted.
To sum up, we have the best of both worlds—deterrence combined with compassion. We tinker with this at our peril.
Lord Turnbull
My Lords, despite the advances made by the DPP’s guidance, the new status quo still leaves the dying and their families with three unsatisfactory choices: to soldier on with their suffering; to accept assistance but still with risk of prosecution; or to pay up and travel to Switzerland to die away from home and family.
Parliament should no longer hide behind an official, however enlightened. Any change will face opposition, not just from faith groups and the palliative care sector but also from what might be called the slippery-slopers, who have already concluded that a satisfactory framework can never be found. We should not accept this defeatism; the Bill introduced by the noble Lord, Lord Joffe, was denied a Second Reading, thereby preventing the issues from being explored. With the expertise that we have in this House in medicine, ethics and the law, a robust framework of safeguards must surely be attainable.
Lord Patten
My Lords, for a quick background to my views, some, including me, sense that we are drifting more and more into an ever more eugenic society in this country and that there are those who wish to give encouragement to that direction of travel at every opportunity. While I am concerned about this drift, I am equally convinced in the matter of assisted suicide that the present prosecution policy, making it clear that it does not in any way change the law and that encouraging and assisting a suicide remains unlawful, is clear and good. This is sound principle, and the DPP is on record as stating that the law on assisted suicide “works well in practice”. Good again. This is reinforced not just by the Royal College of Surgeons, as we have heard from my noble friend, but by the Royal College of Physicians, in explaining that their duty of care does not include in any way being part of a suicide. Good yet again, my Lords.
Lord Browne of Belmont
My Lords, assisting someone to commit suicide is a criminal offence, and rightly so. At present, if someone feels that they are a burden on their families because of illness, most people will not consider assisted suicide or feel pressured by that option, for the very simple reason that it is not legal. As soon as you change the law to make assisted suicide legal, even if only in tightly circumscribed contexts, that changes. This must be of huge concern for any civilised society. Of course, I understand that there are a minority of people who really want to be helped to commit suicide; however, any benefit that they might claim to gain from a change in the law would be more than outweighed by the increased pressure towards assisted suicide that would fall on the seriously ill.
The assisted suicide guidance provided by the Public Prosecution Service for Northern Ireland reflects that of England and Wales. While I feel at times that the guidance risks giving the prosecutor rather more room to manoeuvre than suggested by the statute, I accept that in the words of the noble Lord, Lord Carlile, it facilitates the expression of a tough law with a kind face. However, it is important that the Attorney-General for Northern Ireland, John Larkin, and the Northern Ireland Assembly, should closely monitor the conduct of our Director of Public Prosecutions, Barra McGrory, in this regard.
Baroness Nicholson of Winterbourne
My Lords, all of us here have the deepest sympathy for individuals who are in the last stages of their lives and in great pain, who are seeking help to shed this life and move on. But that does not mean that we should alter the law to favour what is called assisted suicide. There are good fundamental psychological and religious principles why suicide is always frowned on by almost every society everywhere. Suicide is self-murder, and if you pull other people into that framework you are helping them to kill you, and it is a sort of murderous intention. Let us not think that the medical profession, wonderful though it is, is so spotless in all its ethics that it will not leap on the bandwagon. If you only look at Dignitas and Exit in Switzerland, for example, about a third of the people they treat—and in the case of women nearly half, I understand—are not terminally ill at all but are merely feeling rather miserable and want something to be done to help them.
I urge noble Lords not to go down this slippery slope and to recall quite seriously the early 1930s in Nazi Germany. It is all too close to home.
Baroness Hayman
My Lords, I do not believe that changing the law in this area needs to frighten us in the sense of these terrible fears of Nazi Germany and eugenics. My experience on the Select Committee on the Bill proposed by the noble Lord, Lord Joffe, led me to believe that regulation was indeed possible and desirable in this area. A benefit of the DPP’s guidelines has been increased reporting in this area; increased reporting means that we can have increased supervision and monitoring and give the protection that good regulation brings.
The noble Earl, Lord Glasgow, said that many people feared the manner of their dying. These guidelines have given some comfort to people thinking ahead who might be faced with terrible decisions about helping their loved ones. If we had a properly safeguarded approach, as they do in Oregon—it is quite different from the approach in Switzerland; they do not have to have the same approach—we could give many people comfort, security and the confidence to go forward. Many people may not avail themselves of the ability to have help but would feel comforted by knowing that it was there if they needed it.
Baroness Hayter of Kentish Town
My Lords, suicide—thankfully—is legal, but many people need help and support to ensure that it is both pain-free and risk-free and to have a trusted friend at one’s side at that hour of need. That means being able to get such support, safe in the knowledge that one’s chosen friend will neither be interrogated by the police nor face prosecution. For this reason, I would like to see the DPP’s approach given wider endorsement. I am concerned that the present law affects people unequally, given that going to Dignitas costs about £5,000 and is only available to the well-off and those fit enough to travel, and there is no safe way of having assisted death at home without risk of prosecution for loved ones, which is an unfair burden for the dying person to contemplate. I would favour a law to allow people to be helped to die if they meet safeguards and eligibility criteria, are terminally ill and mentally competent. Of course I want to see greater access to high-quality end-of-life care, but part of that comes from knowing that they will be free from suffering.
I finish with the words of the Reverend Dr John Cameron, who said that,
“the time has come … to look again at the law, because modern medicine is preventing nature from taking its merciful course”.
Baroness Howe of Idlicote
My Lords, some of your Lordships have argued that the prosecution policy on assisted suicide should have listed serious illness as a mitigating factor. In other words, helping a seriously ill person to commit suicide would be regarded more leniently than helping someone else—but that would in effect have meant that the law would offer less protection to seriously ill people than to others. Such discrimination is unacceptable in an inclusive society. Therefore, I was pleased to see that the policy does not list serious illness as a mitigating factor in assessing whether assisting suicide should be prosecuted. The law must apply equally to all of us, irrespective of age, gender, race and state of health.
Baroness Young of Old Scone
My Lords, I thank the noble Baroness, Lady Jay, for giving us this opportunity tonight. I served on the commission on the future of assisted suicide and we heard a very wide range of evidence, which we considered rigorously over a year and with a very open mind. I support the flexible approach taken by the DPP guidelines, but they are not sufficient, for two reasons among several that I could name. I will stick to only two in view of the time limit. First, it still leaves compassionate friends and families facing criminal investigation. Secondly and most importantly, it is a real barrier to healthcare professionals discussing with their patients options for their end of life. Much as they discuss options for treatment during their life, options for death need to be a normal part of the care conversation in the future. The result is that in this country, assisted suicide is in the hands of amateurs. I personally would not look forward to that prospect. The Director of Public Prosecutions said that he has done what he can with the current law. Only a change in the law can overcome these very real problems.
Baroness Berridge
My Lords, I find tonight's Question troubling as its precursor is: should the Government be assessing the application of DPP policy? I view the DPP rather like the icing in the middle of the judicial sponge cake. The top layer is the independence of judges, and the bottom layer is police operational independence. It is imperative that DPP policy and decisions are free from, and seen to be free from, government interference. I do not envy my noble friend the Minister's task in performing this assessment this evening without creating any perception of political interference in, or inadvertent pressure on, prosecution decisions and policies. These roles would also be blurred if the DPP guidelines had been statutory, as how could he then revise them? The independent DPP would be dependent on the Government or parliamentarians to change the legislation or statutory instrument. If the House were asking how the Government are assessing the application of DPP policy for prosecutions in cases of phone-hacking, constitutional alarm bells would, I believe, have gone off immediately.
Lord Turnberg
My Lords, I should express my interest as a past president of the Royal College of Physicians. The question I ask myself is whether the experience of the public prosecutor leads us to believe that we should now change the law. Fewer than 20 cases a year have been referred to the DPP and few of those, if any, have led to prosecution. A new law would, in effect, lower the barrier and remove the critical safeguard provided by an independent body making a fair and objective judgment. The question we have to ask ourselves is not whether it is desirable to make it easier for someone with impeccable motives to help a person suffering unbearably to die. They can do that now in the knowledge that the DPP has been shown to act in an entirely appropriate way. The question really is whether a change in the law will make it easier for someone with selfish, ulterior motives to help an elderly, infirm relative to die. A combination of the current law and the DPP provides a safe and humane system that we would jettison to our disadvantage.
Lord Harries of Pentregarth
The noble Baroness, Lady Jay, referred to the recent commission, which found the present legal status of assisted dying to be “incoherent”, but whenever you try to balance two vital principles, as we are here, the result can appear less clear-cut than if one had one principle alone to take into account. On the one hand, the present law expresses and safeguards the fundamental principle of respect for life—the life of everyone. On the other hand, the guidelines put out by the DPP express the principle of compassion. The present situation gets the balance between law and compassion just about right. In trying to hold these two principles together, I suggest, it is perfectly coherent. Further, when we try to hold two principles together it is important to remember that what we are comparing with the present situation is not some abstract state in which we might have only one principle to uphold. We are comparing it with actual alternatives, and in my judgment the alternatives are more damaging to the public good of this country than the present well-struck balance.
Viscount Craigavon
My Lords, I speak very much in favour of this policy of the DPP and the clarification provided by the guidelines. My main point is that I believe that more transparency and light can be thrown on the process of decisions that are now being made in this field. That obviously should not compromise any necessary confidentiality but, by revealing more reasoning and the details, it should be possible to assist one of the main purposes of this policy stemming from the Purdy judgment: that is, for the public to be more reasonably able to predict whether actions might lead to prosecution. An alternative would be for the DPP to publish an overview of his decisions without revealing identifying details of the individuals involved. That is the direction that we could be taking now, prior to any further legislation.
Lord Swinfen
My Lords, I congratulate the DPP on the way in which he has produced what in my view is a very compassionate policy. Some people have argued that it would be better to investigate a case of assisted suicide before it has happened, so that the wishes of the victim and the intentions of the assister can be scrutinised, but this would involve handing a licence to the assister based on subjective assessments of the victim's state of mind, and on presumptions about the intentions of the assisters. Such a process is far from foolproof. As one witness, who I understand is a consultant psychiatrist, put it to the group of the noble and learned Lord, Lord Falconer,
“if you want to be devious about it, you can be”.
Moreover, once a licence to assist has been granted, there would be nothing to prevent coercion or manipulation. The death would not be investigated, as it would have been officially authorised in advance.
Lord Warner
My Lords, in the Purdy judgment the noble and learned Lord, Lord Hope, said that there had been two prosecutions up until then. Since the DPP's new guidelines two years ago, as far as I am aware there have been no prosecutions. Perhaps the Minister could tell us how many cases have actually been referred to the DPP in that time. I believe that the DPP's guidelines, while well-intentioned and a sensible way forward in such a controversial area in many ways, have caused real problems for health professionals—doctors, nurses, et cetera—in discussing end-of-life issues with patients such as their own personal choices about the way they wish to end their life. Do the Government accept that there is a real issue for health professionals, with whom they need to engage in a stronger dialogue? Do they also accept the need to have a parliamentary debate on my noble and learned friend Lord Falconer’s excellent commission’s report, which dispassionately gives us a mountain of evidence that was not there before and that needs to be tackled by Parliament?
Lord Pannick
My Lords, the DPP has done a good job. His policy promotes the three main objectives which the Law Lords indicated, in the Purdy case, are vital in this sensitive area of law. First, the policy recognises the autonomy of the individual—a factor ignored by some speakers in this debate. The position is very simple: the able bodied may lawfully seek to end their life but the autonomy of the disabled person, vitally, depends on the assistance of others. The second objective advanced by the policy is to protect the sick and the vulnerable from being put under pressure to end their lives. The third objective is to introduce greater certainty into the law. I hope that the success of this policy—and it has been successful—will now encourage Parliament to show the necessary maturity to address these important issues as questions of legal rights and wrongs, not to continue to leave these matters to prosecutorial discretion, however compassionate its exercise.
Baroness Finlay of Llandaff
My Lords, I was a member of the Select Committee that looked at the assisted dying Bill. I co-chair Living and Dying Well and have worked as a hospice doctor since 1987. Assistance with suicide by a treating doctor or healthcare professional tends towards prosecution. The Royal College of Physicians advised the DPP in drawing up his guidance that a doctor’s role is,
“to work with patients to mitigate and overcome their clinical difficulties and suffering”,
and that,
“this does not include being, in any way, part of their suicide”.
Some claim the policy encourages amateur suicides. It does not. The policy recognises the asymmetric relationship between doctor and patient, with the patient dependent on professional advice and treatment and being very susceptible to nuances in the doctor’s reaction when patients discuss their dying openly. Doctors are in a position of trust; that trust must not be abused. Medical witnesses to Falconer were clear that the present law is not inhibiting open conversations. Indeed, conversations are now more open than ever before, ensuring that healthcare professionals work with their patients to improve living, to cease futile treatments and to support patients during dying. The vast majority of hospice doctors do not want physician-assisted suicide. The policy is clear, firm and compassionate.
Lord Bach
My Lords, I congratulate my noble friend Lady Jay on securing this debate. She has supported a policy of reforming the existing law for a long time and has been a distinguished advocate for that point of view. I thank other speakers too for expressing their strong views on both sides of this difficult argument. Our view in opposition is the same as it was in government: we think that this is a matter of individual conscience for Members of Parliament to decide on, not one for Her Majesty’s Government to propose legislation on at present.
We look forward to the debate in another place next month. We do not think that this sort of debate in this House is appropriate, and we feel that the matter should be debated at greater length as soon as time allows. I look forward to what the Minister has to say in his response. We agree that this is an appropriate moment to hear the Government’s view.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, I congratulate the noble Baroness, Lady Jay of Paddington, on introducing this debate, and those who have contributed to it. Noble Lords have actually left me with 20 minutes but I shall not take up all that time. The succinctness with which some very passionate points of view have been expressed is remarkable. I have heard the comments made by a number of those who have contributed to the debate about the opportunity for a longer debate on this. I would not dream of speaking on behalf of the usual channels’ business managers, but I am sure that that will have been noted on this occasion, as indeed on an occasion when the noble Lord, Lord Bach, dealt with this issue in a Grand Committee debate when he was in Government.
Lord Wallace of Tankerness
It was not quite this issue but it was related. There was also a debate in Grand Committee in February 2010 on assisted suicide to which there were many contributors, and the importance of this issue and the salient points that have been made will have been noted. It is evident that this matter generates much passion on both sides of the argument.
At the outset, I would like to make the distinction, as a number of contributors have done, between the form of the law on assisted suicide on the one hand, which is, quite properly, a matter for Parliament—I endorse what the noble Lord, Lord Bach, said: just like the Government of which he was a member, this Government also take the view that a change to the law is an issue of individual conscience. Therefore, it is a matter for Parliament to decide whether there should be a change to the law rather than one of government policy—and the prosecution policy of the Director of Public Prosecutions on the other. The DPP discharges his functions and duties within a framework determined by Parliament.
Perhaps it is important to put the position into context to be able to respond to some of the points. To understand how the policy works in practice, the Crown Prosecution Service was established by legislation as an independent public prosecution service for England and Wales. The Director of Public Prosecutions is the head of the CPS, and—to reflect the point made by my noble friend Lady Berridge—the DPP is superintended by my right honourable friend the Attorney-General, who is in turn accountable to Parliament for the work of the CPS. There is a distinction, however, between that accountability, which is quite proper, and having guidelines and policies approved by Parliament that in some respects could fetter the independence of the decision of the prosecutor.
The primary role of the CPS is to prosecute criminal cases investigated by the police in England and Wales and to provide advice to the police in some of the most serious or complex cases. However, I emphasise again that the CPS operates independently of the police.
The Director of Public Prosecutions has a statutory duty to issue a code for Crown prosecutors. This is one of the most important documents for the CPS, as the code provides guidance to prosecutors on the general principles to be applied when making decisions about prosecutions. In particular, the code sets out the full code test. That is the test applied by prosecutors to the facts and circumstances of every individual case referred to them by the police. It has two stages to it. First, there is the evidential stage: is there sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge? Secondly, there is the public interest stage: is it in the public interest to proceed with a prosecution?
It is nearly always the case that the public interest is considered only when the evidential stage of the full code test has been satisfied. It is only when there is sufficient evidence to provide a realistic prospect of success that a case proceeds to the public interest stage of the full code test. It is essential that the public interest is considered by prosecutors when making a decision on an individual case. It has never been the rule in this country that suspected criminal offences must automatically be the subject of prosecution—the point that the noble and learned Lord, Lord Hope, made in his judgment in the Purdy case, to which reference has been made—as the public interest must always be considered.
The most recent edition of the code was published in February 2010 following public consultation. It is a public document and is written in a way that enables it to be followed by the general reader so that the public are able to understand how prosecution decisions are made. However, with relevance to this particular debate, in addition to the code the DPP also publishes public policies and guidance that provide further advice to prosecutors when considering particular types of cases. The various policies and pieces of guidance are expected to be followed by prosecutors and must be read in conjunction with the code.
The policies and guidance are also available on the CPS website, again to provide transparency. The noble Viscount, Lord Craigavon, asked about transparency. As well as setting out the policy guidance, the website also sets out a few individual cases, giving the facts of the case and the route that the DPP took in coming to his decision not to prosecute. The particular case that I am thinking of is set out there. Hopefully, that will at least to some extent aid the transparency that the noble Viscount and others have asked for. The Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide is one of these documents.
It is important, as has been recognised in many of the contributions to the debate, that the policies and guidance issued by the DPP are not intended to be a substitute for the law or to replace it in some way. A number of those who have contributed to the debate—even those who have called for a change in the law—have reflected on the fact that the policies are imbued with a sense of compassion. More than one contributor talked about the law providing deterrence and the policy guidelines from the DPP enabling the law to be discharged with compassion. The guidelines are there to assist prosecutors in making decisions on individual cases by setting out in one place the relevant legislation, case law, court sentencing practice, internal operating procedures and any specific evidential and public interest factors to be taken into account. That is the purpose of the policies and guidance. They are subservient to and operate within the framework of the law as determined by Parliament.
The assisted suicide policy was published in its present form following an interim policy and consultation in February 2010. As the noble Baroness said in introducing the debate, we are coming up to the second anniversary of that policy being in place. As has been indicated, it followed the judgment in the House of Lords case of Purdy v Director of Public Prosecutions. Debbie Purdy sought information about the factors that the DPP would take into account in deciding whether to grant his consent to a prosecution under Section 2 of the Suicide Act 1961. Ms Purdy argued that the code issued by the DPP was insufficiently precise to provide her with the information that she sought. In July 2009, the Appellate Committee of the House of Lords found in favour of Ms Purdy. In so finding, the Law Lords required,
“the director to promulgate an offence-specific policy identifying the facts and circumstances which he will take into account in deciding … whether or not to consent to a prosecution under section 2(1) of the 1961 Act.”.
As I have indicated, an interim assisted suicide policy was published in September 2009. It was the subject of a three-month public consultation, in which more than 4,700 responses were received from interested individuals and organisations. The interim assisted suicide policy was revised by the DPP following careful consideration of the responses to the public consultation. The final version was published in February 2010. At the time of its publication, the revised policy met with broad approval. It is fair to say that it attracted considerable approval from many sides of the Chamber this evening. It is interesting to note that, while the commission that has been referred to, which was chaired by the noble and learned Lord, Lord Falconer, recommended changes to the law on assisted suicide in cases where a person is terminally ill, in cases where there is a non-terminal illness, it indicated the following in its executive summary:
“Therefore, we suggest that the DPP’s prosecution policy should continue to be applied to those cases that might fall outside the scope of the legislation that we are proposing for consideration (for example assisted suicides involving people with chronic illnesses or serious physical impairments who are not terminally ill)”.
Even the commission itself recognised the merit and substance of the policy. It is worth repeating that it does not seek to change the law. Indeed, it cannot change the law, as that is clearly a change that only Parliament can make.
I shall take up some of the specific points that have been made. Prospective immunity was raised. Prospective immunity has never been granted. The DPP told the commission that,
“the position of the prosecutors has been historically that we won’t indicate in advance whether conduct is criminal or not. Various rulings of the courts have indicated that that would be a wrong position for the prosecutor to adopt and therefore we haven’t done that”.
Indeed, it goes beyond the DPP’s power because the police are responsible for deciding when an investigation should be instigated. Obviously, if there was no alleged crime, that would not be possible.
With regard to the medical profession, the guidelines try to strike a balance but acknowledge that as the law stands the law does not give immunity from prosecution in this regard. I do not wish to quote at great length from the evidence of the Director of Public Prosecutions to the commission. However, he set out the balance that he has sought to apply in the policy. The policy guidelines do not refer to a medical doctor but to a person,
“acting in his or her capacity as a medical doctor”.
It would be wrong to confer blanket immunity, if that is how it would be interpreted. That would not only fetter the discretion of the Director of Public Prosecutions who needs to look at the individual circumstances of every case but would be tantamount to a change in the law. As has been said, that is a change in the law that is for Parliament to determine.
With regard to families and doctors discussing end-of-life options, the noble Baroness, Lady Finlay, indicated that she did not think such discussions were taking place. Again, however, that is a matter which would more appropriately require a change in the law rather than indicating, ahead of a potential crime being committed, that there was immunity for it.
It is very difficult to do justice to such a wide issue. In that respect, I have a lot of sympathy with those who think that we should have a much wider debate. I have tried to pick up some of the salient points that have been made. My noble friend Lord Glasgow was not alone in indicating that perhaps the time had come for a change in the law. As I have indicated, that is not a matter of government policy but is a matter for individual conscience and for Parliament. However, I rather suspect that we will be back here debating this issue in days to come.
Health and Social Care Bill
(12 years, 2 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Hunt of Kings Heath
Lord Hunt of Kings Heath
My Lords, I shall refer also to Amendments 21, 21A and 22. The amendments take us to a number of other matters in relation to the national Commissioning Board. I think that we are all agreed that the board will have an important role to play within the new arrangements, and its governance is a matter of considerable interest. My amendments, which follow closely amendments that I tabled in Committee, invite the noble Earl, Lord Howe, to give further consideration to how we can ensure that the governance of the national Commissioning Board is as effective as possible and that due parliamentary processes are involved.
The amendment would ensure that the chair of the national Commissioning Board was appointed only with the consent of the Health Select Committee. I am well aware that Professor Grant, the excellent chair of the board, gave evidence to the Health Select Committee and I am glad that that occurred. I should like to put the matter beyond doubt by putting this provision in statute for when future appointments of chairs need to be made. The noble Earl will know that I have followed precedent because this Government’s legislation that established the Office for Budget Responsibility makes it clear in statute that the appointment of its chair has to be agreed to or approved—or consent has to be given—by the appropriate Select Committee. My argument to the noble Earl is that the national Commissioning Board is as important as the Office for Budget Responsibility. I realise that one could look at a hierarchy of these organisations and I would understand if the noble Earl were to say that we cannot apply this provision to all bodies in a similar position. However, the responsibility of the national Commissioning Board is immense and there is a case for putting this in statute.
I sense that my Amendment 21 may not be necessary, but perhaps the noble Earl can confirm that the vice-chair of the national Commissioning Board would always be a non-executive appointment and that that person would always be the senior independent director.
Amendment 21A concerns public health specialist input. I should like some assurance from the noble Earl that the national Commissioning Board will have public health expertise. I understand that it is to have a medical director—and that is of course welcome—but, given the need to ensure that in the NHS, through the Commissioning Board and clinical commissioning groups, there is a good tie-in to the public health function, it would be good to know what arrangements the board will make to ensure that there is a strong enough link with public health. Having public health expertise around the board of the national Commissioning Board would, I should have thought, be very welcome indeed.
I come, finally, to my Amendment 22, which would remove the requirement for the appointment of the chief executive to be approved by the Secretary of State. I said in Committee that I had no problem with the provision that ensured that the first chief executive should be appointed by the Secretary of State. That is normal practice when new bodies are established. In order to get on with it, you clearly need to have a method by which the chief executive is put in place as soon as possible. I quite understand why it should be the Secretary of State in the first instance, but I do not understand why future appointments of chief executives should have to be approved by the Secretary of State.
Back in our debates on bureaucracy and the issue of the concurrent power of the national Commissioning Board with the Secretary of State in relation to the crucial parts of Clause 1, the noble Earl emphasised that the relationship between the Secretary of State and the national Commissioning Board should be seen principally through the mandate and the standing rules. He resisted my efforts to give Ministers powers of intervention other than the extreme power given under the Bill. If that is so, I cannot for the life of me see why the Secretary of State would want to approve the appointment of the chief executive. Surely the relationship should be between the Secretary of State and the chairman of the national Commissioning Board. Why must the Secretary of State have a veto on the appointment of the chief executive? That seems inconsistent with the general points that the noble Earl has been making about the need for the Secretary of State to have a hands-off approach.
The noble Earl may repeat what he said in Committee, which is that that is to do with the accountable officer status of the chief executive. With the greatest respect, is that very different from the accountable officer status in relation to many organisations within the NHS where the Secretary of State does not have to approve the appointment of the chief executive? I hope that at least on this one the noble Earl will recognise that Secretary of State approval for the appointment of a chief executive is wholly inconsistent with the general thrust of where the Government say that they are going, and will be sympathetic. I beg to move.
Lord Beecham
My Lords, I trust that my noble friend will not object if I claim at least parliamentary paternity of Amendment 21A—influenced, I must say, by the Faculty of Public Health and others interested in the public health dimension of the Bill. The Faculty of Public Health is a very respectable body, characterised, along with other opponents or critics of the Bill, by Mr Simon Burns, the Minister of State for Health, as zombies, a term that I cannot imagine emerging from the lips of the noble Earl. It is concerned about the degree to which the public health service and its interests and needs will be reflected in the structures that are being created. That interest is shared by the Health Select Committee.
The Health Select Committee also referred to its recommendation that the local director of public health should be a member of each clinical commissioning group. Having regard to the number of clinical commissioning groups, that is possibly asking a little much, although it would be sensible for clinical commissioning groups to consult the director or his representative from time to time in the course of their work. However, my noble friend is absolutely right to stress the importance of having a qualified public health professional on the national Commissioning Board. Public health is an enormously significant area of public policy, and we will discuss other aspects of it later this evening and subsequently during Report. The Health Select Committee was very clear that there should be a qualified public health professional on the NHS Commissioning Board and that the Commissioning Board should routinely take advice from qualified public health professionals when taking commissioning decisions.
The Government’s response to the Select Committee’s report is, to put it mildly, not very encouraging. While the board will be required to obtain clinical advice from a broad range of professionals, including those in public health—and the Government have stated their intention that there should be clinical and professional leadership on the board—they state explicitly that,
“it is an important principle … that it”—
that is, the board—
“should have autonomy of decision-making on matters such as its own membership and its structures and procedures, as far as possible, to determine how best to exercise its functions”.—[Official Report, 14/11/11; col. 514.]
That seems, frankly, to put an unnecessary degree of power in the hands of the national Commissioning Board. It again raises the issues of accountability that my noble friend dealt with so well earlier this evening. It is surely not acceptable to permit an organisation with this degree of power and influence—and, indeed, with the substantial resources at its disposal—simply to decide on its own membership, particularly when public health is not just a health service or Department of Health issue but goes much wider than that. It is important that those wider implications of the work of public health, which we will touch on later, are reflected in the board’s deliberations as a matter of course.
I hope that the Government will take the strong advice of the Health Select Committee and reconsider this position. I have no doubt that there will be a queue of other organisations wanting a place on the national Commissioning Board, but this is, in a sense, a unique function because of its reach into other areas of policy and administration, including, for that matter, other government departments. That voice, reflecting all those interests, is not likely to be represented directly in the way that other clinical interests probably will be in relation to the board. Therefore, I strongly support Amendment 21A, as well as the other amendments in the name of my noble friend. I hope that the Government will see their way to rethinking this matter and come back at Third Reading with a different position.
Baroness Williams of Crosby
My Lords, I agree strongly with the noble Lord, Lord Beecham. Public health has always been the Cinderella of the health services, yet it should not be. It is obviously crucial to the whole attempt to reconfigure services, and it is crucial to the emphasis on preventive health that we badly need if we are to stop things such as the very rapid increase in the incidence of diabetes in this country, especially diet-related diabetes. It is important that the public health service is seen by the whole of the public as central to the Government’s proposals for bringing services together. It is essential that we now publicly recognise the very great importance of the public health service and raise it to a level at least equal with other parts of the health service, including clinical commissioning groups.
As the noble Lord, Lord Beecham, said—I thought rather modestly—we accepted that it was too much to expect to have a public health officer on every commissioning group, although there is a very strong case for having one where a commissioning group is happy to have him or her. However, in the case of the board, which after all overlooks the whole CCG structure, it is absolutely vital that a public health officer should be present and should be able to put emphasis on preventive health. It would also be a signal to the health and well-being boards at the local level to follow that lead and themselves put a great deal of emphasis on preventive rather than only curative health.
I think that the noble Lord, Lord Beecham, should get the support of all parties in the House as he has put forward something perfectly sensible and moderate. What the noble Lord, Lord Hunt, was saying about this group of amendments is important, particularly on Amendment 21A, and I hope that the Minister listened very carefully, as I believe that he has a great deal of sympathy with the importance of public health. This will be a very important way in which to underline that in the manifesto.
It is fair to say that the board should make its own decisions on some of the membership, but I agree with the noble Lord, Lord Beecham, that the sheer significance for all the reforms of public health is such that this should be on the face of the Bill and that it should not be left entirely to the members of the board to decide on. There is plenty of room for them to reach their own decisions, but this involves the whole of the Government’s strategy. I very much hope that my noble friend will suggest that the Bill could carry this amendment in it.
Lord Rea
My Lords, I have a question for the noble Earl on this amendment. What will be the relationship of Public Health England, the national body that will take over the functions of the Health Protection Agency and other areas, to the national Commissioning Board? I wonder whether the noble Earl can guide me to the statutory framework for Public Health England, as it does not seem to be in this long Bill, although it is possible that I am just incompetent and have not spotted it. It seems to me that the chief officer—I hope that he will be a highly qualified public health specialist—who is the senior officer in Public Health England, should have a seat on the national Commissioning Board. That should perhaps not necessarily be permanent, but he should be consulted frequently by the Commissioning Board.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, I thank the noble Lord, Lord Hunt, and all noble Lords who have spoken in another excellent debate. I understand the arguments that have been put forward in favour of these amendments. It is important for me to say at the outset that the Government’s general approach is to allow the NHS Commissioning Board as much autonomy as possible in determining its own membership, structures and procedures. It is our firm view that the board is the body best placed to determine how to organise itself in the most effective and efficient way. We would not want to undermine that.
It is also worth restating that, looking across government, it is the responsibility of all departments to ensure that public appointments to arm's-length bodies are open, transparent and made on merit. However, it is not government policy for such appointments to be subject to Select Committee approval—in this case the Health Select Committee. These are ministerial appointments. The Secretary of State is ultimately accountable to Parliament for the performance of the health service as a whole, as we have made clear through amendments to the Bill. The current process under which some posts are subject to pre-appointment hearings by a House Select Committee does not represent a power of veto, which the amendment would amount to. Of course, noble Lords will be aware that we followed this process, as the noble Lord, Lord Hunt, reminded us, in the recent appointment of Professor Malcolm Grant as the chair of the NHS Commissioning Board Authority. When we discussed this last in Committee, I was pleased that the noble Lord, Lord Hunt, said that he thought that this process ensured proper and effective scrutiny of that appointment. I gently wish to hold him to that view. He raised the comparison of the Office for Budget Responsibility, saying that the NHS Commissioning Board was just as important. Importance is not the issue. The Office for Budget Responsibility has a unique role because it has dual accountability to both government and Parliament directly. The NHS Commissioning Board is accountable to government and, through Ministers, to Parliament, which is somewhat different.
I turn to Amendments 21, 21A and 22. We recognise that the Bill strikes a fine balance between giving the board as much autonomy as possible in how it operates, and providing the necessary accountability. It is important to strike that balance accurately and consistently. If we were so prescriptive in the Bill as to set out further requirements for the board's membership, we would be moving too far away from that necessary autonomy. It is right that it should be up to the board to decide whether it has a vice-chair or a senior independent director, as Amendment 21 suggests. Of course, a vice-chair or deputy chair, were they to be appointed, would have to be non-executive.
Likewise, while I agree that it will be key to the effectiveness of the board for it to involve and obtain sufficient advice and input from public health experts, and to have public health well within its purview, it would not be right to specify that it must have a public health specialist as a member, as Amendment 21A proposes. Again, I am sorry to disappoint my noble friend Lady Williams in particular, but we think that the board will be best placed to determine whether it has the right structure and range of skills, knowledge and experience appropriate to the issues that it will face. In the material that David Nicholson published he made it clear that, rather than making token appointments, he intends that clinical leadership will run right through the organisation. That is a very reassuring statement.
Amendment 22 takes the Secretary of State out of the loop of appointing the chief executive. That moves us too far away from one of the key principles that most of us have signed up to: the necessary accountability of the board to the Secretary of State. It also seems at odds with the ethos of other amendments proposed by the noble Lord, such as Amendment 19, which we debated on the first day of Report and which sought to make every other aspect of the exercise of the board's functions subject to direction from the Secretary of State.
Baroness Armstrong of Hill Top
My Lords, there is some confusion outside the House about the relationship between the Secretary of State, the chief executive and the other senior appointees. The chief executive’s appointment was made before there was a board and a chair, but seems to be permanent. It is very unclear what the process will be for appointing directors. Have the Government a view on the governance of those sorts of arrangements, because the governance in this case does not seem to match what people expected in other areas of policy?
Earl Howe
My Lords, I will attempt to answer the noble Baroness in a moment. She is right that the chief executive designate, Sir David Nicholson, was appointed before the establishment of the NHS Commissioning Board Authority. My right honourable friend felt that not only was it a sensible and good appointment, as we think very highly of Sir David—as most people do—but that it would provide continuity for the NHS. I hope that the noble Baroness accepts that it was a rational decision. As I outlined, Malcolm Grant, too, was the Secretary of State’s appointment, as was appropriate. I will probably have to come back to the noble Baroness on the non-executive directors because I am not aware of the precise timescale or mechanism for doing that, but I will enlighten her as soon as I possibly can.
The noble Lord, Lord Rea, asked me about the relationship between the board and Public Health England. Public Health England will be an executive agency carrying out functions of the Secretary of State with relation to public health. Those functions are conferred on the Secretary of State primarily through Clause 10. As regards the relationship between the two bodies, the simplest way of putting it is that they will work very closely together on public health issues. I have no doubt that there will be a number of ways in which Public Health England will commission public health services from the board in one or other of the aspects of its health protection role.
To get back to what I was saying before the intervention, the Official Opposition at one moment want the Secretary of State to be hands on and at another moment to be hands off, so perhaps I am entitled to feel a little confused about the direction that they are coming from here. The noble Lord, Lord Hunt, questioned the rationale for the Secretary of State appointing the chief executive. As I said in Committee, the requirement for the Secretary of State to consent to the appointment of the chief executive of the board is included for the very important reason that the chief executive of the board will be the accounting officer for the commissioning budget—more than £80 billion of public money—for which the Secretary of State is accountable to Parliament. It is entirely appropriate in our view that the Secretary of State should approve his or her appointment. It is quite usual for chief executives of non-departmental public bodies to be designated as the accounting officer by the department to which they are accountable.
I hope the noble Lord will agree on reflection that we have struck an appropriate balance between autonomy and accountability in the current provisions for appointments to the board and that he will be content to withdraw his amendment.
Lord Hunt of Kings Heath
My Lords, I am very grateful to the noble Earl, Lord Howe. He thinks that I am being inconsistent with some of my amendments, but I still believe that at this stage it is appropriate to put forward probing amendments. If I am inconsistent, I am trying to point up the inconsistency in the Government’s approach, which is that on the one hand we are told that the national Commissioning Board is to be at arm’s length from the Department of Health and Ministers, but then we find that it is at such arm’s length that the chief executive has to have his appointment approved by the Secretary of State.
On parliamentary hearings, the noble Earl said that the Office for Budget Responsibility is rather different from the national Commissioning Board because it has a unique role in being dually accountable to government and to Parliament. My argument is that the national Commissioning Board is different from many other public bodies because of the concurrent powers it is given in Clause 1 and the fact that, unlike many bodies, it does not have a straightforward ministerial power of direction, as we have discussed. The Government have deliberately sought to put it on a different plane. For that reason, it would have been useful for them to have followed the example of the Office for Budget Responsibility and given the appropriate Select Committee a veto over the appointment of the chairman. As I said earlier, I accept that the Government have certainly gone halfway in the sense that Professor Grant appeared before the Health Select Committee. That is very welcome, and I am sure it sets a precedent for the future.
On public health representation on the board, for which my noble friend Lord Beecham and the noble Baroness, Lady Williams, argued, I hope that the national Commissioning Board will take account of the views expressed in your Lordships' House to ensure that there is strong public health input at the NCB level.
The first point the noble Earl made was that the national Commissioning Board is to have as much autonomy as possible. If it is, then it jolly well has to show that it is going to be accountable. I hope that the NCB will give parliamentarians a regular opportunity to discuss with it its programmes and the way that it is going to work in the future. I would be very concerned if, through the autonomy philosophy, Ministers in one way or another resisted debates or interventions in relation to the actions of the NCB and the NCB itself proved not to be open to having debates with parliamentarians. That is where the problem may well arise.
We will have to see but I for one hope that the national Commissioning Board will accept that it has been given enormous power—albeit with some constraints, which we have discussed today—and that it has to show it is going to be properly accountable for it. I beg leave to withdraw my amendment.
Lord Beecham
Lord Beecham
My Lords, I will speak to the amendments in my name in this group. They are, in many ways, fairly straightforward.
Amendment 24 seeks to add a duty to promote public health as well as to protect and improve public health, as in the Bill as it stands. Promotion is a more positive term than simply protecting or improving public health. It implies a wider range of activities than simply dealing with public health issues and problems as they arise. I would have thought it added somewhat to the Government’s intentions—which we broadly commend, of course—in terms of the direction of public health and the further involvement of local government.
Amendment 25 simply amplifies the list of steps that the Secretary of State may take, in particular around research and training, to specify that he should use,
“the best scientific and other evidence available”,
with this key phrase,
“without regard to special interests”;
in other words, that they should look objectively and seek a wide range of resources to inform the making of public policy.
Amendments 26 and 28 substitute the word “must” for “may” in respect of some of the Secretary of State’s duties. Amendment 27 is perhaps one of the more important in this group, and refers to a duty on local authorities to improve the health of their populations and “to reduce health inequalities”.
In Committee, the Minister referred to the fact that the Secretary of State has that duty as part of his overall duty to provide health services, and that is certainly correct. However, there is no equivalent express duty on local authorities, nor could one be satisfactorily implied. Again, I pray in aid the views of the Health Select Committee, which pointed to:
“The lack of a statutory duty on local authorities to address health inequalities in discharging their public health functions”,
and called that,
“a serious omission in the Government’s plans”,
and recommended that the,
“Bill be amended to rectify this”.
The Government’s response referred to local authorities as “independent, democratic bodies” and said that a,
“ring-fenced public health grant”,
would be made available. At a later stage we will perhaps need to discuss the arrangements for such a grant, because there are concerns about it and about the health premium to which reference is also made in the Government’s response. The Government conclude that,
“these non-legislative levers will be at least as effective as any duty”.
Of course the Government refer to the provisions of the Equality Act, but that is not good enough. Surely it is important to have in the Bill an explicit duty on local authorities to promote health equalities and health improvement. I hope that the Minister will recognise on reflection that the Government will lose nothing by taking such a step. The Government would simply reinforce their intentions and put them in a framework that will send a clear signal to local government.
Amendment 28A, in the name of the noble Baroness, Lady Finlay, seeks to require co-operation between local government, the Secretary of State and quite a list of providers of public health. The amendment is virtually the same as Amendment 28C in my name. There are perhaps one or two slight differences but nothing of any great moment in that respect. I am perfectly happy to defer to the noble Baroness when she moves her amendment.
Amendment 29 seeks to establish the topics of public health that should be included in matters to be addressed by local authorities. The intention, again, is to put in the Bill what may or may not be implicit in the prevailing arrangements. In Committee, the Minister indicated that he did not think that it was necessary to have these references. On the contrary, it is helpful to send a signal of what is expected not only to local government but to those who look to their local authorities to take steps to promote public health on the issues. The list in Amendment 29 includes:
“sexual health … obesity … nutrition … alcohol and substance abuse … air and water quality … adequate housing standards … fuel poverty … occupational health”.
Those are all important issues, most of which also involve inequalities of health. The provision looks very clearly to local government to take those items seriously and to promote advances on each. It is not a mandatory requirement and, of course, the situation will vary from place to place. However, it is a shopping list for local government, citizens and interested organisations to use in pressing that policies and resources be directed at these important areas of public policy. As the amendment makes clear, it is not a restrictive list.
Amendment 31 deals with another issue raised by the Health Select Committee, although it is a matter that we also discussed in Committee. Among the partners of a local authority for the purposes of public health provision, it is very important to include the district councils. In two-tier areas, district councils have a wide range of responsibilities around the environment, housing, food safety and so on, which clearly are integral to the public health service.
It is obviously necessary therefore for a principal authority in a two-tier area to co-operate with a district, but also, conversely, of course, for the district to co-operate with the principal authority. The amendment specifically calls for the relevant partners to co-operate with the local authorities and for it not to be just a one-way street. Again, that raises an expectation on the appropriate local authority and the opportunity for its residents to push for action, if required.
Amendment 32 calls for the Secretary of State to publish annual reports on the public health impacts of budget changes on duties to improve public health. That is a glancing reference to the fact that there is to be a new financial framework and it is important to see how that impinges on what local authorities actually do, and that of course includes district councils. Again, I should emphasise that the position of district councils is yet another matter on which the Health Select Committee was very clear in its recommendations:
“We are concerned that too little attention is paid in the Government’s plans to the role of lower-tier authorities”.
The Government are relaxed, shall we say, about doing anything very specific about that, although apparently they will be issuing draft guidance. It might be thought that that is not really adequate in all the circumstances and that explicit reference should be made to the requirement to involve district councils.
As I said in Committee and I repeat today, the Opposition are keen to support the Government’s approach to returning many public health responsibilities to local government, but it has to be done in a way that encompasses the broad range of issues that affect individuals and communities, and empowers and indeed requires local government that they should take action to meet their part in discharging those responsibilities. Accordingly, I beg to move.
Lord Rea
My Lords, I do not know if it is a slight slip on the part of those who drafted the Bill that the word “promotion” is not already in the clause. The coalition agreement on public health states:
“The Government believe that we need action to promote public health, and encourage behaviour change to help people live healthier lives … harnesses innovative techniques to help people take responsibility for their own health”.
That is a bit unfair on people because lifestyles are very much dependent on life chances. People who come from a rotten background may indulge in practices which are not particularly good for their health, but you cannot really ask them to change. We need to take into account a lot of the things which my noble friend Lord Beecham has just gone through because they are relevant to the practice of public health. The word “promotion” should definitely be included at the beginning of this clause.
Baroness Northover
My Lords, in Committee noble Lords made a number of helpful and constructive comments on public health. We have carefully considered this feedback, and as noble Lords will see in later clauses, we have made some significant changes to the public health provisions. Amendments 24 and 28 both relate to the Secretary of State’s accountability and his role in the promotion and improvement of health. The Secretary of State is under a duty to protect the health of the public in England. We are clear that the primary legal responsibility for health improvement should lie with local government, although the Secretary of State will have the power to act on health improvement when appropriate. We welcomed what the noble Lord, Lord Beecham, said in Committee about a renewed involvement of local government in public health, and he has reiterated that today. It is extremely important that local government, which is often best placed to take this forward, sees its prime legal responsibility and that there is no duplication of duties. Therefore, in drafting Clauses 10 and 11, we have taken care to avoid duplicating duties and to keep roles and responsibilities clear. We do not believe that additional amendments to the Bill are needed and I hope that noble Lords will understand why we have drafted these provisions in this way.
Amendment 26 takes the list of steps that the Secretary of State may take as part of his health protection duty and turns it into a set of fixed duties. I hope that I can reassure noble Lords that the Secretary of State cannot simply ignore the steps even though we have used the word “may” and not “must”. He must give proper consideration to what steps are appropriate to protect or improve health. Although the duty does not necessarily require the Secretary of State to take all the steps listed under new Section 2A, if after proper analysis he considers that a particular step is appropriate, he must take it. However, we take the view that the Secretary of State needs the flexibility to decide what steps are appropriate. The Bill outlines the areas in which the Secretary of State might take action. It fleshes out the ways in which the Secretary of State must take steps to protect the public. To prescribe these exemplars in statute runs the risk of inflexibility. One duty in the list, for example, is to make available the services of any person or any facilities. What would that mean if it was made a “must”?
Baroness Finlay of Llandaff
Will the Minister clarify what the sanctions are when there is a failure to co-operate? Examples of failure to co-operate are emerging already. While there is an outline duty in the Bill, what are the sanctions when that is not happening?
Baroness Northover
Local authorities have a statutory responsibility for public health. If the noble Baroness looks at the outcomes framework, she will see where different authorities have different responsibilities. In order to discharge those responsibilities, those authorities will have to work together, otherwise they will not be able to deliver those outcomes.
In response to Amendment 25, we entirely share the view that we must make use of the best scientific and other evidence available. However, we do not think that an amendment to the Bill is necessary to do this. If the Secretary of State is to carry out his duty effectively, he must necessarily obtain and use such advice.
I heard how the noble Lord, Lord Beecham, read out the amendment. It is clear that evidence must be sought without it being skewed in any way by any special interests. However, the way in which the amendment is drafted implies that the Secretary of State might not be able to consult legitimate professional organisations or stakeholder groups that may have relevant expertise and experience. I made that point in Committee. We agree, clearly, that the inappropriate influence of special interests would not be right, but that is not quite how the amendment is drafted.
The Government’s Chief Medical Officer will continue to provide independent advice to the Secretary of State on the population’s health. She will be supported in this role by a public health advisory forum that will bring together expert professionals and leading partners to assist her in providing advice and challenge on public health policy and implementation. I hope the noble Lord will be reassured about that. The use of evidence underpins all this and there is no intention whatever that it should be skewed in any way. I trust that that reassures noble Lords and that they will not press their amendments.
Lord Beecham
My Lords, given the number of issues on which there are serious disagreements around the House, certainly between the Opposition and the Government, this is a shame. On an issue on which we basically agree in principle, the Government have been entirely negative about suggestions made not merely by the Opposition—heaven forfend—but by the Health Select Committee, which is less prone to charges of any sort of political bias.
I find it almost risible that the Minister should single out one line in the amendment that deals with the Secretary of State's duties in the clause by transforming an option,
“making available the services of any person or any facilities”,
into a mandatory requirement. I agree that perhaps we could have taken that particular line out, but the principle of getting stuff properly into the Bill remains important. All the other items ought to be part of the Secretary of State’s mandated responsibilities.
The Minister referred repeatedly to frameworks, but frameworks are not statute and not something that is immediately accessible to the public or others. Statute should set out a fairly comprehensive picture of what the Government intend, and there has been a failure to take the opportunity to do that, whether in promoting public health or in any of these other matters. It is perfectly true that government Amendment 144 will give the Secretary of State the responsibility of reporting back on how he has exercised his responsibilities, but he is not responsible for what is being delegated to local government. He may undertake to report back on what local government is doing, but there is no obligation on him to do so, as I read the Bill. Yet the whole issue of local authority responsibility in relation to the public health agenda, and in particular to inequalities, after—I remind your Lordships—a very strong recommendation from the Health Select Committee, could be ignored in practice. That cannot be satisfactory.
With all due respect to the Minister, I cannot say that I found her replies at all convincing or helpful, and it is a pity that in an area in which we could have worked together to improve the Bill there seems to be no inclination to do so, since the Government are simply standing pat on their original proposals, with a few very minor amendments. If that is how the Bill is going forward, I think they are missing an opportunity, but that is their responsibility. In the circumstances, since there is clearly no evidence of any intention to be flexible on the part of the Government, I reluctantly beg leave to withdraw the amendment.
Baroness Hollins
Baroness Hollins
My Lords, I rise to speak to Amendment 26A and the others in this group on behalf of my noble friend Lord Ramsbotham, who was unable to stay until this hour tonight. My noble friend was first going to explain, and apologise to the House, that the amendments, as handed to the Public Bill Office, included the word “communication”, which somehow turned into “communization” during the printing process. My noble friend was then going to thank the noble Earl for his letter, which he received on Friday, and invite him to confirm to the House what he said in that letter about the healthy child programme. The letter said that the programme,
“provides regular opportunities after birth for the parents and the health visitor to review together a child’s development, health and wellbeing including any concerns about speech and language skills”.
My noble friend was very glad to note that the Department of Health and the Department for Education and Skills are working together to ensure that the two-year to two and a half-year review that is part of that becomes an integrated review covering both health and education, which he assumes is to be compulsory. He also noted the work that was being done within the public health outcomes framework to inform decisions on services and support. However, accepting all that, he noted that, in her final report, the communication champion recommended that the Government should fund local professional development for early-years practitioners to enable them to assess and support children's communication and language development within the revised early-years foundation stage framework that is part of the public health outcomes framework. There is a possible shortfall, so my noble friend would like to ask the Minister whether that includes training of health visitors, who will make initial assessments, and a halt to the reduction of speech and language therapists, whose numbers were reduced by 3 per cent in 2010-11. Their follow-up is crucial to successful post-assessment development support. Equally crucial is that health and well-being boards understand that speech and language development not only underpins literacy development but is at the heart of the Government's proposed revisions to the early-years foundation stage framework. My noble friend seeks the Minister's additional assurance that assessment and follow-on action are properly integrated.
Speaking now for myself in support of these amendments, I have had personal experience in my family of a child needing the specialist help of speech and language therapy to be able to acquire sufficient language for day-to-day communication. The battle to provide adequate speech therapy for pre-school and indeed for primary schoolchildren has been ongoing for many years. I know that my noble friend Lord Ramsbotham was not proposing to test the opinion of the House, but I beg to move this amendment tabled in his name.
Baroness Whitaker
My Lords, in supporting this group of amendments to which I have put my name, perhaps I may first say how grateful I am to the Minister for his letter of 29 November in response to the Committee debate. He confirmed in that letter that speech language and communication needs are included in the remit of public health. This group of amendments simply makes that clear for the Secretary of State and for commissioning groups. I suggest that it would not otherwise be clear. Look at what has happened: 70 per cent of British Sign Language users admitted to A&E units will have no interpreter provided. Increasing numbers of people with hearing loss have problems even with making appointments and understanding the diagnosis of their GP.
Since Committee, as the noble Lord, Lord Ramsbotham, would have said and as the noble Baroness, Lady Hollins, said, the report of the communication champion, Ms Jean Gross, has been published with further evidence of cuts by 10 local authorities to speech therapy services of more than 15 per cent. The Royal College of Speech And Language Therapists reports that 70 of 109 such services jointly funded by the National Health Service and the education authorities had lost the NHS element. More than half of newly qualified speech therapists have not found jobs. This crisis in the provision of speech and communication therapy means that for a significant proportion of children with these conditions—I remind the House that it is the most common disability of childhood, which substantially limits the chances of reaching their potential at work and even in relationships—this problem will be neglected without the kind of emphasis that these amendments provide. It needs to be clear that the health duties will include communication needs.
Baroness Thornton
My Lords, briefly, we support these amendments and commend the noble Lord, Lord Ramsbotham, and my noble friend for tabling them again because they are indeed important. I got quite excited when I saw the original spelling which was out there because I was thinking, “Is this about TB or HIV? This is a new one on me”. Nevertheless, this is a very important group of amendments because, as the noble Lord, Lord Ramsbotham, and other Members of the House have pointed out over many years, if you do not deal with the communication, speech and language problems of children at an early stage, you are storing up problems for the future. Indeed, Jean Gross’s report on front-line speech therapy for children is a cause for great concern, because it is quite clear that significant gaps are already appearing because of the cuts that have been made to provision.
I point out to the House that the allied health professionals have expressed their very grave concern about these issues by saying that they would like the Bill not to proceed. They are among the many thousands of health workers who, in this case, have been saying that for some extremely good reasons. Perhaps the noble Baroness would like to explain to the House what she is doing to persuade the allied health professionals and the speech and language therapists why the Bill will help them do their job any better, when it is quite clear that the services to children with speech and language therapies are already suffering.
Baroness Northover
My Lords, we are very sympathetic to the points that the noble Baronesses, Lady Hollins, Lady Whitaker and Lady Thornton, have just made. The noble Baroness, Lady Hollins, is quite right about the importance of communication skills—or even “communization skills”; my dyslexic son latched on to that one. We are acutely aware that addressing these kinds of areas is critical to the reduction of inequalities.
The noble Baronesses, Lady Hollins and Lady Whitaker, were concerned to ensure that we had flagged up this area. My noble friend Lord Howe sent a letter to the noble Lord, Lord Ramsbotham, who has worked tirelessly in this area. I emphasise that the Healthy Child programme, from pregnancy to five years, is the overarching NHS framework for providing prevention and early intervention for children and their families, and consists of a programme of screening, immunisation and health and development reviews. It is led and delivered by health visitors. It provides regular opportunities after birth for the parents and the health visitor to review together a child’s development, health and well-being, including any concerns about speech and language skills. We are working to improve the coverage of the HCP by delivering the Government’s commitment to increasing the health visitor workforce by 4,200, full-time equivalent, by 2015.
As part of the HCP’s schedule, the review at two to two and a half years includes a focus on speech and language development and is a key opportunity for health visitors to identify any problem and to take appropriate steps to refer a child to speech and language therapy if required. Following the commitment in the July 2011 publication Supporting Families in the Foundation Years, the Department of Health and the Department for Education are working together to develop the two to two and a half year review to become an integrated review, covering both health and education. The Department of Health is also leading a piece of work to develop a population measure—
Baroness Thornton
How does the Minister reconcile what she has just been telling us about referring children to that service after review at two and a half years with the fact that 70 local authorities have lost their NHS funding, 25 have lost cash from the LEA and those speech and language therapists are actually not going to be there?
Baroness Northover
I would refer the noble Baroness to the public health outcomes framework and the way that this will be included in that. The framework is very widely drawn and I hope that the Opposition will generally welcome that. It builds on the work that they themselves did and I hope that they recognise that.
I think that I have covered most of the issues that were flagged up. I reiterate that we appreciate enormously the commitment that noble Lords have paid to this area. We know how important it is; it sets the foundation for what happens later for many of these children. On the basis of that, I hope that the noble Baroness will be willing to withdraw the amendment.
Baroness Hollins
My Lords, I know that my noble friend was extremely grateful for the letter from the noble Earl, Lord Howe, on this matter. Communication is fundamental and screening is critical. We know that early intervention is effective. I am disappointed that the Minister did not confirm whether there would be a halt to the reduction of speech and language therapists. I beg leave to withdraw the amendment.
Lord Beecham
“Chief Environmental Health Officer for England
(1) The Secretary of State shall appoint a Chief Environmental Health Officer for England.
(2) The Chief Environmental Health Officer for England shall give advice to and report to the Chief Medical Officer for England on all such aspects of environmental and public health as are relevant to the public health functions referred to in section 2A of the National Health Service Act 2006 and the duties referred to in section 2B of that Act.
(3) The Secretary of State shall report to Parliament annually on the work of the Chief Environmental Health Officer for England.”
Lord Beecham
My Lords, Amendment 33 proposes the appointment of a chief environmental health officer for England. Incidentally, there is such a post in Wales. It is intended to balance the clinical role of the director of public health with that of a person of almost equivalent status—although not quite—in terms of the wide range of issues that fall within the province of environmental health officers working in district and unitary authorities. As I indicated in the debate on earlier amendments, a wide range of responsibilities fall within the area of environmental health that transcend ordinary health requirements but, by definition, often impinge on public health. For many years, environmental health officers have played a key role in protecting the public and in advancing areas of public policy across a range of local authority and other functions. Again, I cite housing, environmental issues, transport, air quality, water quality, fuel poverty and the like.
It would generally strengthen the hand of the director of the national Commissioning Board and, more particularly, that of the Chief Medical Officer to have alongside him or her a person of sufficiently high status to address concerns not only within the Department of Health and the various structures that the Bill creates but across a range of other government departments, particularly those that relate to local government. That would involve the Department for Communities and Local Government, the Department for Transport, Defra and, in the context of fuel poverty, the Department of Energy and Climate Change. It would also conceivably involve other government departments and, at a local level, different organisations whose responsibilities bear on a community’s well-being and where policy lead is clearly desirable at a national level.
It used to be the case in many local authorities that a medically qualified officer of health worked alongside a chief public health officer, as I think they were then called. As I mentioned in Committee, it was certainly my experience to sit on a health committee that had two very powerful such officers. They produced very detailed annual reports independently but worked together to highlight issues that needed addressing by local and national government and other agencies. This proposal would substantially contribute to the work of whoever is to be responsible for public health within the department and it would facilitate precisely the kind of overview that the Minister has referred to as part of the outcomes framework for public health at an appropriate level.
I hope that on this occasion the Government might just consider that wisdom is not concentrated on the government Benches and that others may make suggestions that can contribute to our shared goals. I would have thought that this was one of them, which could be met at a small cost but with the potential for a high return in its impact on public health policy and administration. I beg to move.
Baroness Masham of Ilton
My Lords, may I ask the mover of the amendment whether infection control will be one of these subjects, as tuberculosis is such a problem for homeless people, and I hear that chicken flu is again occurring in China? Who will be in charge of that?
Lord Beecham
I would be loath to give a definitive answer, not even having the advantage of officials in the Box to support me on this matter. However, I would have thought that infectious diseases are more appropriately a matter for the director of public health at local level. Presumably, at national level the Chief Medical Officer would have overall responsibility. However, the noble Baroness is right to imply that there is a connection with other functions and services where environmental health could contribute. I suppose that overcrowding would be an example of that. I take it that that is what she is referring to in this context. It is precisely in that sort of area that environmental health officers and others would have a statutory responsibility. There is no direct relationship potentially between, for example, a chief environmental health officer and infectious disease, but it would be sensible to have somebody with responsibility and oversight of environmental health issues of the kind that we are discussing working alongside the Chief Medical Officer. Water quality could in certain circumstances be another example of these issues. That discipline should be at the table, as it were, in a sufficiently authoritative way to contribute to dealing with issues of that kind and, we hope, preventing them.
Baroness Finlay of Llandaff
My Lords, the question asked by my noble friend Lady Masham illustrates why we need to have a chief environmental health officer for England, as well as having that input in Wales, because by and large elements in the wider environment are determinants of health and play a much greater role in that regard than we recognise. Indeed, if the Marmot review and its aspirations are to have any effect on the health of the nation, we need to address environmental health much more closely.
I declare an interest in the specific areas of carbon monoxide poisoning and the problems contributing to that arising from the environment in which people live, and the link between the roads infrastructure and its air pollution and asthma and the underdevelopment of the lungs of children who live near major road junctions. The interplay between health and the environment in which people live is crucial. Health services on their own will not achieve improvements in health, particularly those outlined in the Marmot review. I hope that the Government will not tell us that the amendment is unnecessary, despite the initial typographical error in the reference to an “Evironmental Health Officer” rather than an environmental health officer. I fear that we will hear that the amendment is deemed to be unnecessary and that the relevant advice can be sought elsewhere. However, there is good evidence from other places that strong leadership from somebody who has a particular role in an area can bring about change and build the bridges to which I referred in the previous group of amendments.
Lord Harris of Haringey
I support the amendment. The significance of the chief environmental health officer’s role would stem from his or her being the national head of the profession. The enormous amount of work that local chief environmental health officers do will be familiar to anyone who has been involved in local government. Their work stretches from food standards in local restaurants right through to housing conditions, as the noble Baroness, Lady Finlay, said. It is important that there is a clear mechanism by which the issues that are being highlighted and the points that need to be followed through by government action are fed up to the national level of government. If the Government resist this amendment, I would be interested to hear precisely what mechanisms they see as being available to local environmental health officers and local health and well-being boards to pass through the sorts of issues that can be tackled only at national level.
Baroness Northover
My Lords, we discussed environmental health in Committee. It is clearly an important area that indeed interlinks with public health, but I hope to reassure noble Lords that we are taking action in this area through non-legislative means. The noble Baroness, Lady Finlay, is absolutely right to say that a narrow definition of public health is inadequate and it seems to me that this is the strength of moving the responsibility for public health to local government.
We need to emphasise the interlinkages in this area and I refer again to the public health outcomes framework. I am looking here at the domain “Improving wider determinants of health”, which includes indicators such as,
“Children in poverty … Pupil absence … First-time entrants to the youth justice system … Killed or seriously injured casualties on England’s road … Domestic abuse … Violent crime … Reoffending … Statutory homelessness … Fuel poverty”,
and many others. The point is that there are wide determinants of public health and it is necessary to link all these areas under the leadership of a director of public health who is drawing them together, rather than identifying an area as being the only one that links in. Directors of public health will need to link up with many other areas, nationally and locally, if that much wider definition of public health is to be accepted and become reality.
It is imperative that we continue to work with all our partners to achieve our ambitions for better public health, better care and better value for all. The Chartered Institute of Environmental Health indeed does an excellent job in presenting the issues nationally and liaising with central government. The environment within which people live, work and play, the housing they live in, the green spaces around them and their opportunities for work and leisure are all crucial to their health and well-being. For example, poor air quality is a significant public health issue and the current burden of particulate air pollution in the UK is estimated, on 2008 figures, to be equivalent to nearly 29,000 deaths at typical ages and an associated loss of 340,000 life-years in the population.
There is no doubt about the significance of that, but I should like to put it in the wider context of all the other areas with which the new director of public health will link up. Every day of the year, local councils have direct contact with many of their residents, and a fully integrated public health function in local government at strategic and delivery levels offers extremely important opportunities to make every contact count for health and well-being. I mentioned the public health outcomes framework and the way that it broadly defines things. It includes four indicators of direct relevance to environmental health professionals, and noble Lords have picked up on a number of those.
At a national level, the Chief Medical Officer will have a central role in providing impartial and objective advice on public health to the Secretary of State and the Government as a whole. We are clear that this role includes advising on environmental health issues. The Chief Medical Officer will, in turn, continue to be able to seek advice on environmental health and other issues whenever necessary, just as she can now. A public health advisory forum will support the Chief Medical Officer in this role. This will bring together expert professionals and leading partners to assist the Chief Medical Officer in providing quality advice and challenge on public health policy and implementation, including areas such as the public health outcomes framework.
The amendment also calls on the Secretary of State to report annually to Parliament on the work of the chief environmental health officer. As discussed in Committee, we agree on the need for transparency and believe that the Secretary of State’s accountability for public health at national level is a major strength of the new system, which is why Clause 52 requires the Secretary of State to publish an annual report on the working of the comprehensive health service as a whole. That will include his and local authorities’ new public health functions.
I understand the arguments that noble Lords are making. We will come on later to issues relating to directors of public health and their leadership role. There clearly needs to be co-operation there, but across other areas too. Noble Lords who have worked in this area for some time have very effectively been arguing the case for this wider definition of public health and what affects it. In the light of that and the reassurances that I have given, I hope that the noble Lord will be willing to withdraw the amendment.
Lord Harris of Haringey
Before the noble Baroness sits down, will she clarify whether she sees the chief public health officer as being essentially the head of profession for environmental health officers around the country?
Baroness Northover
This being Report, and as I am not sure that that was a brief question for elucidation—
Lord Harris of Haringey
It was exactly that. I asked specifically for an answer to the question I put earlier. That is entirely consistent with Standing Orders at Report.
Baroness Northover
Okay. I think the noble Lord has a fairly good idea of what the structure looks like. Therefore, you do not muddle it up with a multitude of different people with different responsibilities at the same level. I think that he can therefore see clearly the answer to his question. Meanwhile—one I prepared earlier—I will also write to the noble Lord in case that is not quite right.
Lord Beecham
My Lords, I have a vision of meetings in the health world now starting with, instead of prayers, as we have in your Lordships’ House, a brief recitation from the outcomes framework. That seems to be the noble Baroness’s prescription for everything. However, it does not meet the case. We are not seeking to supplant the role of the Chief Medical Officer; we are seeking to augment the resources available to the Chief Medical Officer and the Government as a whole by the appointment of someone senior with the relevant experience across a range of issues mentioned by Members on both sides of the Chamber in this debate which impinge on the health of the nation, communities and individuals.
It is lamentable that the Government fail to take sufficient regard to the potential that this has to reinforce the common agenda. It is not a question of in any way diminishing the role of the Chief Medical Officer. I do not know whether the noble Baroness has considered the situation in Wales; I am sure that the noble Baroness, Lady Finlay, would enlighten her and, perhaps, all of us about how effective that post has been. It looks to me as though another opportunity to work together to promote the common agenda is being ignored.
Therefore, I regret that I will have to beg leave to withdraw the amendment. We will have to return to the point in future. When, in due course, we have the Secretary of State’s review of what is happening in public health, perhaps we can look particularly at the role of environmental health and how it might best be deployed within the department and across government. That may be an opportunity to do something, not necessarily within the statutory framework—I am sure that an appointment can be made outside the statutory framework—but it is an issue to which we shall have to return.
“( ) After subsection (1E) insert—
“(1F) In exercising its functions under this section and section 3A, a clinical commissioning group must act consistently with—
(a) the discharge by the Secretary of State and the Board of their duty under section 1(1) (duty to promote a comprehensive health service), and(b) the objectives and requirements for the time being specified in the mandate published under section 13A.””
“( ) In section 272 of that Act (orders, regulations, rules and directions), in subsection (6) before paragraph (za) insert—
“(zza) regulations under section 3(1D),”.”
Earl Howe
My Lords, I shall speak also to Amendments 39 and 40, 74, 137 to 140 and 149.
The Government have accepted all the Delegated Powers and Regulatory Reform Committee’s recommendations for amendments to the secondary powers in the Bill. This group of amendments makes most of the changes necessary to fulfil those recommendations. The others will be included in later groups. I beg to move.
Baroness Williams of Crosby
My Lords, I shall speak briefly to this group of amendments. We are very pleased that there should now be acceptance of the detailed suggestions of the Delegated Powers and Regulatory Reform Committee. That gives a much stronger underpinning to parliamentary accountability, which we appreciate.
I should like to ask my noble friend a couple of questions. At this hour of the night I may be misinterpreting some of the wording in the amendments but I should like to address two of them in particular. The first is Amendment 35, to which I have added my name. I simply want to ask a little more about the effect of this amendment on inclusivity. As my noble friend will know, there have been many attempts to make inclusivity part of the Bill, and from time to time we on these Benches have expressed concern on the issue. I should be grateful if he could explain the effects of the Secretary of State’s ability to have a commissioning group determine when a patient can be excluded from the overall effect of the directions under Amendment 35. I assume that that would be because they come under the board rather than the CCGs but my noble friend may be able to give me a slightly purer view of the exact meaning.
My second question relates to Amendments 137, 138, 139 and 140. What are the effects of the Secretary of State’s ability, as I understand it, to proceed with orders and regulations without that effectively being the case in the Bill? In other words, could the Secretary of State, in certain circumstances, simply override what is in primary legislation by passing orders and regulations or would he effectively have to fall back on regulations and orders at a later stage?
I apologise for asking these two questions at this late hour but they are asked in all good faith. I think it is important that the public and Parliament understand exactly what is intended by the amendments. Because they are rather complicated, I may have got it wrong but I hope that I have not.
Earl Howe
My Lords, on Amendment 35, Section 3 of the National Health Service Act 2006, as amended by the Bill, states that CCGs have responsibility for persons provided with primary medical services by a member of the group and persons usually resident in the group’s area who are not provided with primary medical services by a member of any CCG. Regulations under subsection (1D) enable the Secretary of State to specify that this would not apply for persons of a prescribed description, or in prescribed circumstances—for example, for persons registered with an English GP who were resident in Scotland. As currently drafted, these regulations would be subject to the negative procedure in Parliament. Following the recommendation of the Delegated Powers and Regulatory Reform Committee, the amendment would make these regulations subject to the affirmative procedure.
Amendments 137 to 140 are linked to Amendment 39. They would make clear that the Secretary of State is not able to delegate his function of making orders or regulations specifically relating to the provision of primary medical, dental or ophthalmic services and any functions relating to local or other pharmaceutical services to the NHS Commissioning Board, a CCG, a Special Health Authority or to such other persons or bodies as may be prescribed. The amendments would make it clear that the Secretary of State cannot delegate the function of making orders or regulations to other bodies under Clause 48.
If that short explanation represents an over-abbreviated one, I shall be happy to write to my noble friend after this debate, but I hope that that is helpful.
Baroness Hollins
Baroness Hollins
My Lords, I shall speak also to Amendments 55 and 238. My noble friend Lord Rix sincerely regrets that he could not stay this evening as his wife is unwell.
The three amendments tabled by my noble friend to this Bill have been placed together in this one group. I welcome this opportunity to speak to them. Noble Lords will be aware that these issues were raised during the Committee stage of the Bill. My noble friend recently met the Minister to discuss the matters that I am about to raise in relation to people with a learning disability. It is appropriate for me to declare an interest as a psychiatrist specialising in learning disability and also because my son has a learning disability.
To be fair to the Government, it could be argued that the broader issues which these amendments attempt to resolve could have been addressed by the National Health Service many years ago. However, my noble friend and I are using the opportunity presented by this Bill in an attempt to tackle them now. The first amendment, Amendment 37, aims to ensure that health services for those with the most complex needs are commissioned by the NHS Commissioning Board. Concerns were expressed about this issue in Committee. We seek assurances that health services for those with the most complex needs, particularly people with profound and multiple learning disabilities and people with complex needs whose behaviour challenges services, will be commissioned centrally by the NHS board. This amendment would ensure that the NHS Commissioning Board has oversight in this area, including the co-ordination and commissioning of specialist services or facilities for this particular group of disabled people. Any assurances that the Minister may be in a position to provide on this matter would be welcome.
The second amendment tabled in the name of my noble friend, Amendment 55, concerns the importance of collecting data on the experience and outcomes encountered by all patients in the NHS. Where a patient has a disability, it would also ensure a breakdown of disability by impairment type. In Committee, the Minister informed the House that his department is working with the NHS information centre to explore the extent to which indicators in the NHS outcomes framework can be disaggregated to show impairment types, which we would both welcome. However, if the information is not collected at source, clearly there will be limits to which this can be achieved. The Minister also stated that the Government's NHS information strategy aims to cover this issue too, when it is published later this year. Any additional assurances that the Minister is willing to give about what steps the Government will take to ensure that data are collected at source would be welcome.
The third and final amendment, Amendment 238, concerns the provision of independent advocacy services for people who are in the process of making a complaint against the NHS. For those who are unfortunate enough to encounter it, the NHS complaints system is flawed and ineffective. We welcome the Government's proposal for local authorities to make appropriate provision to support people in the complaints process through the use of advocacy services. However, there is a risk that advocacy support could be started and then halted some time before any conclusion to an ongoing complaint has been made. In Committee, the Minister emphasised that local authorities would have the discretion to provide independent advocacy services, consistent with their legal obligations, as they deem appropriate. My noble friend is particularly concerned that such discretion could leave many families without the on-going advocacy support that they need. Is the Minister able to provide my noble friend with any comforting words on that matter? I beg to move.
Baroness Thornton
My Lords, it is important that the Minister can give us some satisfaction in answer to the remarks made by the noble Baroness, Lady Hollins, particularly in view of the tireless pursuit of these issues by the noble Lord, Lord Rix. This small suite of amendments aims to start at the top as it talks about the Secretary of State’s power to require the board to commission services including for those with profound and multiple learning disabilities. It then puts a duty on the board to reduce inequalities, which will involve collecting data on the experiences and outcomes of patients with these disabilities. It also sets out that there should be no upper limit on the length and type of advocacy support that must be provided by local authorities. Therefore, it aims to provide a suite of amendments that address the whole system and the interventions that will be necessary to provide the right framework under the new regime for some of the most vulnerable people in our country.
It was interesting that, on a more general matter concerning children and the Bill, the NHS Confederation deputy policy director, Jo Webber, said recently that the Government's plan to recruit 4,200 extra health visitors by 2015 was leading to a loss of staff in other vital roles in some areas. For example, many established and successful children's health teams are being rearranged or in some cases disbanded simply to employ more health visitors. Ms Webber’s report claimed that the Government should replace the health visitor target with one that focused on the outcomes for children rather than on the numbers of staff in place. That was a very wise remark.
I turn to the children with the most complex difficulties and the question of how under this framework they will receive appropriate assessment and treatment that will address their individual needs. At best, there will be problems with the transition to the new system, and if there are gaps in the service for vulnerable children and learning-disabled patients who perhaps have GPs with limited experience, and doubts about how GP consortia will react to the situation, that is an issue of great concern. Historically, there has been an imbalance whereby people with learning disabilities have lost out when compared with those, for example, with mental health problems—who have also lost out. Therefore, how this group of children and young people are catered for will be a way of testing whether these things will work at all.
Earl Howe
My Lords, I am grateful to the noble Baroness, Lady Hollins, for her typically knowledgeable contribution to today's debate. I hope she will accept that the Government are committed to improving the health of people with learning disabilities, to help them both to live longer and to stay healthier for longer. The Bill aims to drive improvements in outcomes by establishing clinically led commissioning, by giving patients a stronger voice and by embedding quality improvement and a reduction in health inequalities at all levels of the system.
We debated these amendments in Committee and I have since exchanged correspondence with, and met, the noble Lord, Lord Rix. I understand and share his concern, and that of the noble Baroness, that there should be robust arrangements for commissioning services for people with profound and multiple learning disabilities, and for people with complex needs or challenging behaviour. I am afraid that it may disappoint the noble Baroness to hear that I still believe that the amendments are unnecessary. However, in saying that, I hope that I can reassure her about the reasons why.
On Amendment 37, the regulation-making powers in new Section 3B are already broad enough for the Secretary of State to require the board to commission these services. The current intention is that the regulations under subsection (1)(d) will be used to give the board responsibility for commissioning specialised services for rare and very rare conditions. The current specialised services national definitions set will form the basis for the services included in these regulations. These will include a number of services for people with profound and multiple learning disabilities, and people with complex needs or challenging behaviour. The services that are not considered specialised will be commissioned by CCGs, although in practice there will need to be close collaboration between the board and CCGs to ensure that patients receive a seamless service.
Baroness Hollins
My Lords, I am grateful to the Minister for emphasising the Government’s wish to improve outcomes for the group concerned in these amendments. I am pleased that current plans are to define these services through regulations. On behalf of my noble friend Lord Rix, I thank the Minister for their recent meeting at which I understand these issues were discussed in depth. I know my noble friend was very pleased to have that opportunity. I would like to pay tribute to him for his careful and persistent work to improve access to healthcare for people with learning disabilities. I shall look forward to seeing the information strategy in April and seeing just how far the information is going to be able to identify the needs that my noble friend and I are concerned about. I beg leave to withdraw the amendment.
Lord Hunt of Kings Heath
(1A) Such regulations shall”
Lord Hunt of Kings Heath
My Lords, I shall speak also to Amendments 41, 46, 48 and 293.
On a number of occasions, the noble Earl has spoken about the mandate to be issued to the national Commissioning Board. In our debates we have given a great deal of focus to the relationship between the Secretary of State and the national Commissioning Board, and the role of the mandate. When the noble Earl has been pressed to say how the Secretary of State would be able to bring influence to bear in relation to particular issues, he has referred on a number of occasions to the role of the mandate and indeed to standing rules. There is no doubt that the mandate assumes considerable importance. My amendments are seeking to give Parliament a stronger role in scrutiny of the mandate.
I have taken as my reference point the procedure for national policy statements in relation to major infrastructure planning applications. The noble Earl will be aware that the Planning Act 2008 introduced a parliamentary procedure to deal with major infrastructure planning applications. Essentially, it goes back to the issues that have bedevilled infrastructure planning decisions in this country, which mean that very often when there are public inquiries into applications, much of the public inquiry debate has been around the principle of whether a particular infrastructure should be developed in the UK rather than actual local planning matters. The classic for me was the Sizewell B application, where I think there were roughly 300 days of public inquiry, of which only about 10 to 20 were concerned with local issues; the rest were concerned with whether nuclear power should be developed in the UK.
The Planning Act brought in a new procedure where it was accepted that issues to do with nuclear power—or High Speed 2, for instance, if it were not going to go through the hybrid legislation process—would be decided by Ministers because those are national decisions, and the local application would then be decided very much around the impact of an actual planning consent.
What is the connection between this and the mandate? It is the parliamentary scrutiny, because a national policy statement has to be debated in your Lordships’ House in Grand Committee, Members of the House having every opportunity to ask questions, and then brought before your Lordships in the Chamber where it is open for debate. My proposition is that the mandate is of such importance that a similar approach could be taken in your Lordships’ House and in the other place, providing a real process of questioning and debate. Although, ultimately, it is, in my view, a ministerial decision, I argue in Amendment 46 that such a process of parliamentary scrutiny and ministerial consideration followed by an affirmative order to approve the mandate would provide a robust approach that would give much more parliamentary comfort to the nature of the mandate between the Secretary of State and the national Commissioning Board.
I do not believe that the current provisions in the Bill allow for that kind of parliamentary scrutiny and I hope that at the very least the noble Earl might be prepared to take this back to see whether there are ways in which we could beef up parliamentary scrutiny of what all of us acknowledge is probably one of the most important processes between the Minister and the national Commissioning Board. I beg to move.
Baroness Williams of Crosby
My Lords, I shall address Amendments 38, 43 and 49 in this group but, given the lateness of the hour, I can reassure the House that I shall not be lengthy on any of them. My comments will follow fairly closely some of the matters raised by the noble Lord, Lord Hunt, and will therefore fit in well with our brief debate.
Amendment 38 in essence is the suggestion that the Secretary of State should issue regulations at least once a year. In addition, those regulations should be shown within an adequate timeframe of about two months to the Select Committee, presumably before they pass through the affirmative or negative procedure. This issue is quite close to the amendment addressed at the beginning of our proceedings by the noble Lord, Lord Hennessy. Members in the Chamber will remember that the noble Lord raised the issue within the context of our discussions on constitutional matters when he suggested that any regulations should be subjected to scrutiny by the Select Committee before proceeding to either the affirmative or the negative procedure.
Quite simply, the reason for this, which I think we all recognise, especially those of us who served for some time in another place, is that the negative procedure is extremely weak. Unless one or two Members of Parliament are particularly concerned about a matter, the regulations pass through with not much more than a nod from the House of Commons. In the case even of the affirmative procedure, unless one can organise a substantial group of people who are deeply concerned about the regulation, debates are not profound. Little scrutiny is offered and very often the procedure is little more than routine.
I am not so concerned about the first part of Amendment 38. I do not think that one should necessarily hold the Secretary of State to having to produce regulations annually, but I am very interested in the second part, which refers to passing it to the Select Committee for scrutiny, presumably of its merits, before it passes on to the fixed procedures. There is of course a fairly close parallel with the Select Committee on the Merits of Statutory Instruments as distinct from the older Select Committee on the vires of statutory instruments.
This is an interesting idea. I am one of those convinced that it is important to strengthen parliamentary accountability, not only on health but across the whole front. Therefore, Amendment 38 is well worth consideration. I hope that the Government will consider it carefully because it would be a substantial and interesting step forward. It would enable the regulation to be looked at carefully instead of in effect just being passed on the nod.
Amendment 43 is about the mandate, to which the noble Lord, Lord Hunt, has already referred. We on these Benches see the mandate as a first-class way for the Secretary of State to indicate his most important priorities for the health service for the coming year or so. As such, we put considerable weight on it. The issue that I should like simply to underline is that the role of the mandate is so important that I hope that in it the Secretary of State would be able to address the known priorities of the Bill, including such issues as the narrowing of inequalities and the proper provision of care for the elderly and those who are chronically sick. The mandate could be a very important instrument for setting before the House, and more widely the public, the goals that the Secretary of State hopes the health system would be able to prioritise.
Finally, Amendment 49 is also in the names of the noble Lords, Lord Warner and Lord Patel, both of whom are unable to be here as late as this. They have asked me to apologise on their behalf. The noble Lord, Lord Warner, is particularly interested in this amendment, which sets out in considerable detail the need for audited accounts and for the careful comparison of those accounts for the levels of performance and for comparison with one another. Given his substantial experience in the field of accountability for health issues, this deserves careful consideration. It would at least enable us to be closely concerned with differential performance in the health service and allow people to make a good judgment of the quality of the care being given. I therefore hope that the Government will look sympathetically at Amendment 49.
Baroness Jolly
My Lords, in the absence of my noble friend Lady Cumberlege, I shall speak to Amendment 50. The board has a duty towards improvement in the quality of services, in particular the prevention and treatment of illness, and the protection of and improvements to public health. The board must have regard to documents,
“published by the Secretary of State for the purpose of this section”,
and NICE quality standards as appropriate. So far, so good, but what is completely omitted from this process is input in the form of the voice of the public and of patients—that of HealthWatch England. This organisation is best placed to look at how services improve on the ground. Its role is to gather evidence from patients about services and then to offer advice to the board, so the omission seems quite strange. I wonder if my noble friend could confirm that this is actually an accidental omission. We know that the patient is seen to be paramount throughout the Bill, so it seems odd that the patient is missed out of this element. I would also be grateful if he could confirm that HealthWatch England will be adequately resourced and able to use information and advice from local healthwatch.
Lord Beecham
Does the noble Baroness agree that another possible source of information would be the health scrutiny committees of local authorities, which could well consider representations from local healthwatch and, in any case, report on how the service is performing in their area?
Baroness Jolly
Certainly local government will play a key role in all this, so the scrutiny committees would seem to be a sensible place to take information from, which would then work in with their local healthwatch.
Earl Howe
My Lords, let me begin by setting out what we intend for the standing rules. We intend to use the rules to replicate core elements of the current system that need to be maintained in the future. For example, the standing rules will be used to provide the legal basis for certain patient rights as set out in the NHS constitution. Amendment 38, tabled by the noble Lord, Lord Hunt, will do three things. First, it seeks to require the Secretary of State to make standing rules as opposed to enabling him to do so. Secondly, it would require rather than enable him to update the standing rules no less than once a year; and finally, the Secretary of State would be obliged to share the standing rules with the relevant committee of the House of Commons for consideration at least two months before they are laid in Parliament. I hope that I can help the noble Lord here.
It is already our intention to make standing rules and to review them on an annual basis alongside the mandate. Where it is necessary, the Secretary of State would update the standing rules. Imposing a requirement on him to produce regulations regardless of whether an update is necessary will introduce what I believe is a needless administrative and bureaucratic burden on the system, and we surely do not want that. The amendment would also set out a requirement in legislation for the Health Select Committee to examine the proposed standing rules. I hope that I can reassure him that the committee would have the opportunity to examine proposals, and that Ministers in the department would engage constructively with the committee on any inquiry. However, I do not think that it is usual practice for legislation to set expectations as to the subject that Select Committees should examine or what areas committees should focus on. I should also remind the House that any regulations laid in Parliament are also considered by the Merits Committee of your Lordships’ House, as well as the Joint Committee on Statutory Instruments.
I turn now to the remaining issues. I think that it would be helpful to set out what we aim to achieve with the mandate. The mandate will bring with it an unprecedented degree of transparency, scrutiny and accountability to government policy for the NHS. For the first time, the Government’s core objectives for the NHS commissioning system will be subject to full public consultation.
A number of the amendments in this group, both government and from your Lordships, focus on the parliamentary scrutiny of the mandate. Amendments 41 and 46, tabled by the noble Lord, Lord Hunt, would make the mandate subject to the affirmative resolution procedure and require the Secretary of State to lay the mandate in Parliament in draft. I hope that I can reassure your Lordships that we have already built in sufficient parliamentary scrutiny of the mandate to render the amendments unnecessary.
Following the Delegated Powers and Regulatory Reform Committee’s recommendations, the Government have tabled Amendments 45 and 47, to which I now speak, to allow specific parliamentary scrutiny of the “requirements” within the mandate by providing that they can be brought into effect only by regulations subject to the negative resolution procedure.
However, making the mandate as a whole subject to the affirmative procedure would go too far. Parliament will set the parameters that the NHS will operate within, through this Bill and the legislation that will support it. This is a Bill that takes many powers away from Ministers and gives them back to Parliament, but it should be for the elected Government of the day, not for Parliament, to set specific policy objectives within that legislative framework following full consultation.
Of course, parliamentarians will have an interest in the mandate, and will have the opportunity to debate and influence it in the usual ways. As Clause 1 of the Bill makes clear, following our debate last week, the Secretary of State retains his responsibility to Parliament for the health service; and Parliament has the right to hold him to account for the health service, including the setting of the mandate.
Amendment 43, tabled by my noble friend Lady Williams and three of my other Liberal Democrat noble friends would require the Secretary of State to explain how the mandate supported his cross-cutting duties. I think that part of the motivation for the amendment is a concern to ensure that the mandate is not simply about financial issues. I hope that I can reassure my noble friend Lady Williams in particular on this point. It is our firm belief that the mandate should focus on the strategic outcomes and policies that the Government wish the NHS Commissioning Board to achieve. At the heart of this should be objectives for improvement against the NHS outcomes framework. The mandate will also be an opportunity for the Government to set specific objectives about the policies that we have set out in the NHS White Paper and the government response to the NHS Future Forum; for example, about extending patient choice and enabling clinical commissioning groups to flourish.
While the mandate will set the budget for the board and could include objectives relating to efficiency or financial management, it definitely will not be primarily about financial controls. Of course financial controls are essential, but the Bill has separate provisions for these under Clause 23. The mandate will not be a narrow and technical financial document which requires a separate justification of how the Secretary of State has fulfilled his legal duties; rather, it will visibly embody his duties. So I do not believe that an extra reporting requirement in the Bill is necessary.
Amendment 49 would require the board in consultation with the Secretary of State to set standards for the management of commissioners’ and providers’ accounts to enable efficiency comparisons. This comparison would be published annually by the Secretary of State. I understand the concerns which have led to the tabling of the amendment, but it would be an unnecessary and perhaps bureaucratic imposition on NHS providers and commissioners, distracting them from improving outcomes for their patients and the wider QIPP challenge.
It is important to be able to make comparisons of efficiency, but the board and, in turn, CCGs should be given the autonomy to decide whether and how to do this. I happen to know that work is currently proceeding in this area.
Monitor’s role currently includes the oversight of the financial management of foundation trusts, and the Trust Development Authority will do the same for non-FTs, so this information is already available for providers.
My noble friend Lady Jolly referred to HealthWatch England. It is specified in subsection (8) of new Section 13A as someone the Secretary of State must consult in developing the mandate. HealthWatch England will be able to feed in the views of local healthwatch as well.
Amendments 48 and 293, tabled by the noble Lord, Lord Hunt, would require parallel mandates to be set for Monitor and the Care Quality Commission. Again, I hope that I can persuade him that that is not necessary.
Monitor and CQC are independent regulators, with clearly defined statutory functions. Their core role is unchanging and regulatory, rather than about achieving a series of evolving policy objectives. Therefore, there is far less reason for the Government to set them a specific mandate. The fact that there is a statutory mandate in the Bill for the Commissioning Board reflects the different nature of the board’s role.
As with any arm’s-length body, there is a framework agreement between it and the sponsor department, which is used as the basis for monitoring the body’s ongoing performance. That is the approach that the department uses and will be using for all of its arm’s-length bodies, including CQC and Monitor. That will be underpinned by formal reviews of each organisation’s capability, at least every three years.
The department will retain overall stewardship, system leadership and accountability for ensuring that the different national bodies are working as Parliament intended. As I have mentioned on previous occasions, the Secretary of State will have formal powers to intervene in the event of significant failure. I hope that that reassures the noble Lord, and that he will feel able to withdraw his amendment.
Lord Hunt of Kings Heath
My Lords, I thank the noble Earl for a comprehensive response to the interesting amendments that have taken us to the duly appointed hour. He has given quite some assurance about the fact that parliamentary Select Committees will have an opportunity to scrutinise both the mandate and the standing rules, and that is to be welcomed. I urge him even now to reflect on whether the parliamentary scrutiny might not be beefed up somewhat by some reference in the Bill alongside some of these amendments.
The noble Earl has said that the process will be transparent. That is to be welcomed. But in the end, if Ministers are determined to hand off power to the national Commissioning Board, it seems only sensible and right that the mandate in the standing rules under which that should be done should be subject to decent parliamentary scrutiny. I very much hope that the Government will give that further consideration.
This has been a good debate to round off tonight. I am most grateful and beg leave to withdraw the amendment.