Health and Social Care Bill

Monday 27th February 2012 Lords Chamber

Report (3rd Day)

Relevant documents: 18th and 22nd Reports from the Constitution Committee

15:15

Clause 19 : Regulations as to the exercise of functions by the Board or clinical commissioning groups

Amendment 38A

Moved by

[Baroness Masham of Ilton]

38A: Clause 19, page 14, line 9, at end insert—
“( ) The regulations must require the Board to include in terms and conditions prepared by virtue of subsection (5)(a) provision for a requirement to be placed upon any organisation that enters into a commissioning contract to provide healthcare with the Board or with a clinical commissioning group 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 contracted 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, in moving Amendment 38A, I must explain to your Lordships why it is so important. I wish only that the Minister, the noble Earl, Lord Howe, was moving it.

When legislation is before your Lordships it is our duty to try to improve it. For years there has been a serious cover-up and a closing of ranks in many cases when something has gone wrong with patients’ treatment and they or their next of kin have not been kept informed. If there is not openness and honesty, there could be years of frustration and consternation resulting from trying to find the truth through litigation. The only winners are the lawyers.

Last Monday at 8 pm on Radio 4, and today, there was a programme entitled “Doctor—Tell Me the Truth”. The programme explores how patient safety can be improved by doctors admitting to mistakes. In some states in America, medical practitioners must be open about their errors. Instead of increasing litigation, this has lessened it.

I was involved through the Patients Association with some of the next of kin of the patients who tragically died in the Mid Staffordshire NHS Foundation Trust hospital. I congratulate the Government on holding a review into the hospital, where the culture was the very worst and there was a fear to disclose the truth. Surely it is time we put something into legislation to help change this culture.

I was sorry that the amendment which I previously moved—which would have introduced a statutory obligation to provide a duty of candour applying to all providers registered with the Care Quality Commission—did not succeed. However, it was made clear by the Minister that the CQC could not undertake this role. Perhaps it has too much to do satisfactorily and it is just not up to it.

The Minister, the noble Earl, Lord Howe, said:

“I remind the House that the Government’s preferred position is to place a duty of candour in the NHS standard contracts. We have chosen that route because we feel that it has the best chance of working. The view that we have taken, on the basis of clinical advice, is that responsibility for ensuring openness needs to rest as close to the front line as possible, rather than being the responsibility of a remote organisation such as the CQC”.—[Official Report, 13/2/12; col. 591.]

An independent body still seems to me to be the best option as it is transparency and honesty that we need, and front-line medical personnel may still try to cover the mistakes made by members of their profession. I hope not.

Amendment 38A covers what the Government say is the best route to go down. I have had letters imploring me not to give up as so many members of the public, who have been patients or who are their next of kin, have had bad experiences and feel now is the time to change this culture of fear and secrecy. The amendment makes provision for,

“a requirement to be placed upon any organisation that enters into a commissioning contract to provide healthcare with the Board or with a clinical commissioning group 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 contracted healthcare to that patient where the incident has resulted in”—

and the amendment goes on to mention various harms. If the amendment is not quite correct, perhaps the Minister would accept it and correct it for Third Reading. It would be a start to something that must happen if patients and families are to have much-needed trust in the professionals who care for them. I beg to move.

[Lord Walton of Detchant]

My Lords, I added my name to this amendment for one reason and one reason only: in the hope of seeking assurances from the Minister. When I first joined the General Medical Council in 1971, the president was the late Lord Cohen of Birkenhead, who was a wonderful man. He was a fine physician, but he was an autocrat and his views were very traditional and in some respects, I have to say, somewhat backward. He told me, “Never apologise to a patient. The lawyers will get after you”. He told me, as a young man, “Never speak to the press or to the television. They will misquote you always”. Happily, since that time the General Medical Council has progressively changed its view. Now the recommendation made to all medical practitioners is that, if you have made a mistake, if you have committed an error, it is your duty to apologise to that patient sincerely. An apology does not mean an admission of liability; it is simply a sincere apology for a mistake. I hope that is the case in respect of all other healthcare professionals whose activity is regulated by law. I would like an assurance from the Minister that that is the case.

The purpose of this amendment, which has been so well proposed by my noble friend, is to confer on health bodies, whether clinical commissioning groups, independent foundation trusts or other organisations providing medical care, a similar obligation and, indeed, the duty to apologise for errors that have occurred under the auspices of those organisations. I simply ask the Minister whether, in the contracts that these bodies hold with the NHS, such an obligation is a part of the contract. If it is, it may not be necessary to have such an amendment on the face of the Bill. I hope the Minister can give me those assurances.

[Lord Harris of Haringey]

My Lords, I support this amendment because I believe that it is a sincere attempt by the noble Baroness, Lady Masham, to help the Government out. I do not intend to repeat the arguments that we had a few days ago on Report about placing on institutions a rather stronger statutory obligation to inform patients where mistakes had taken place, partly because we have had that debate. During that debate, the Minister repeatedly expressed the view that the objectives of the amendment could be achieved by placing a contractual obligation on organisation to do this. This amendment quite simply requires that that contractual obligation takes place. I am assuming, therefore, that the Minister will accept the amendment, because it does exactly what he said he wanted to do in his previous speech.

The amendment also expresses the concerns raised by a number of your Lordships in Committee and one or two on Report that perhaps placing the duty and obligation directly on organisations and the individuals involved would be inappropriate and that that would provide too rigid a framework. However, as the amendment does what the Government said would solve the problem, I hope that the Minister will indicate that he is happy to accept it in this form.

The reason why I think that it is helpful to the Government is, as may not have escaped the Minister’s attention, a certain amount of criticism of the Department of Health and of this Bill is prevalent at the moment. For example, a letter was published in the Telegraph this morning which said:

“The Coalition Government promised to ensure greater NHS accountability to patients and the public. We believe this aspiration has now been abandoned”.

That was signed by a large number of people active in representing the interests of patients around the country. It is not specifically about this issue; it is about an issue that we will come on to very shortly in terms of HealthWatch. But there is a very widespread concern that, despite all the rhetoric that we have heard from the Government about “no decision about me without me”, that aspiration has been lost in this Bill.

Part of the way of getting patients to have confidence in their health service is through the knowledge that if something goes wrong the fact will be shared with them. The Government said that they did not want a statutory obligation to be placed on individuals or institutions to do that, but they said that they would like contractual arrangements to be put in place. This amendment makes sure that those contractual arrangements are put in place, and I would have thought that the Government would want to accept it so as to demonstrate that even now there is some good faith left around their desire to put patients at the centre of the NHS changes.

[Baroness Finlay of Llandaff]

My Lords, I support this amendment and urge the Government to accept it as it is written. I hope that the Government can see that this is very helpful; it fits with the points made by the Minister in his summing up in response to the previous amendment tabled by my noble friend Lady Masham about there being agreement on the importance of openness and candour in healthcare. The Minister went on to say that,

“the NHS could only call itself a world-class health service if it embraced openness wholeheartedly”.—[Official Report, 13/2/12; col. 590.]

He added that there was agreement that something needed to change.

The beauty of the way in which the amendment is worded is that it distinguishes between major and minor occurrences. It emphasises the true duty of candour to disclose events that have affected a patient either medically or physically and that may have long-term effects. It does not focus in any way on anything trivial and requires the contractual duty of candour to be put into the contracts, which was exactly the content of the Minister’s summing-up speech last time.

[Lord Faulks]

My Lords, I remember well the degree of consensus in your Lordships' House when we debated the statutory duty of candour—namely, that everything should be done to embed in the NHS the culture of openness and to be against any form of cover-ups. However, as I said on that occasion, the world has moved on a little since the days of Lord Cohen—with great respect to the noble Lord, Lord Walton. A number of initiatives have resulted in greater openness by clinicians and a sense of responsibility, which one can find right across the health service. All is not perfect, of course. The duty of candour has been much discussed in academic circles, and the noble Baroness referred to the experience in America where some states—not many—have a duty of candour. But there are very serious arguments that run to the effect that imposing a duty of candour can have adverse effects in that many are thereby encouraged to sue in circumstances where they might not otherwise have sued.

The form of this amendment is certainly good in the sense that it focuses on the serious rather than the trivial. None the less, it does contain the word “incidents”, which is extremely difficult to define. In what circumstances does a clinician, or those employing a clinician, have to go through the processes that the amendment involves? From what the noble Earl said on the last occasion, the Government clearly take the matter of candour extremely seriously. There is a consultation about it and, in due course, there will be reflections of that duty in the contract. Although I am entirely sympathetic to what lies behind this amendment, I am a little concerned that imposing terms, with the inevitable imprecision that this form of amendment carries with it, is not at the moment the answer.

[Baroness Tyler of Enfield]

My Lords, I, too, spoke briefly in the debate last time about the statutory duty of candour. At the end of that debate the Minister gave a number of important reassurances. One was to review the contractual duty in a specified period to see how effectively it was working. The second was to do with further work to explore how this whole issue could be taken forward in the area of primary care—an area which I, and certainly colleagues on these Benches, still feel is extremely important. I would be grateful if the noble Lord, in summing up, could say anything further about how a contractual duty of candour would apply to those in primary care. Also, could he give any further reassurances at this stage about the reasons why he feels that a contractual duty of candour in the way which is set out in this particular amendment would be effective?

[Lord Campbell of Alloway]

I very briefly take the point made about an apology for the mistake. I do this because when I was an advocate I appeared before the BMA for quite a lot of medical professionals. If your client says, “I am terribly sorry for my mistake”, it puts one in a very difficult position; the advocate must show that the mistake had nothing to do with the result. I will not take up time, but say merely, as an erstwhile advocate, watch it.

[Lord Faulks]

Before the noble Lord sits down, could he confirm that, since the Compensation Act 2006, an apology is no longer deemed to be an admission of liability?

[Baroness Hollins]

My Lords, I support the amendment, particularly because it draws attention to the point that often patients experience prolonged psychological harm after an incident, something that is not well understood across the whole of the medical field. Such psychological harm is often overlooked. However, there is plenty of evidence that an honest and prompt apology can do so much to help the person and their family going forward. It is fair to say that delaying a response is very much like denying a response. The timeliness of a response is critical.

[Lord Turnberg]

My Lords, As someone who taught medical students for many years that it is very important to be absolutely open and candid with your patients, and that, if something has gone wrong, to explain it in full to the patients and their relatives—explaining that that is not necessarily an admission of guilt in some way—I am very keen on the sort of sentiment that is being expressed in this amendment. I am particularly keen on the GMC imposing on doctors the duty of being open. I am all behind the sentiments of this amendment. I have some anxiety, though, about how this can be put into law. How can you legislate for someone to be candid? How will it work? How do you know that someone has been candid or not? There is a great deal of subtlety about this candour and about putting it into law as a duty on every occasion. I am slightly apprehensive about the amendment, even though I support everything about the principle.

[Lord Winston]

My Lords, I find it very difficult, as I have said before, to accept or support this kind of amendment, but I strongly believe in candour and I totally support what many noble Lords, including my noble friend Lord Turnberg, have said around the House. However, there are major problems with putting this kind of amendment into legislation, which would make it extremely difficult to be reasonable. There would be real risks of serious psychological harm to quite a lot of patients. One of the last things we want to do is to involve patients in a perceived injustice or perceived negligence which turns out to fail miserably in the courts of law. I have seen that as horribly damaging with patients I had in the past when I was a medical practitioner, which I am of course no longer.

The other issue not adequately dealt with in this amendment is that of time. At what stage is it justified no longer to be candid? Should somebody who, let us say, sees something from that same health authority a year or two later, or three or four, still be candid about what they think may have gone wrong, or where they are not absolutely certain that it has gone wrong? There is a colossal difficulty in trying to enforce this. Far better is the idea of having some kind of code of practice, to which I think my noble friend Lord Turnberg referred, which ought to be acceptable to doctors.

When I was a trainee surgeon, we did innumerable partial gastrectomies. We now know that that operation was really mutilating and totally wrong; it actually resulted in many people losing weight and not being able to hold down a proper diet. Subsequently, of course, peptic ulceration could be treated by a simple antibiotic therapy. Now, at what stage does that treatment become established or a gastrectomy become a negligent operation? These are very difficult things to define, and I urge that we should not write this proposal into law in the way that is proposed.

[Baroness Wheeler]

My Lords, we had a long debate on this very important issue of the duty of candour before the Recess, and I do not intend to take up very much of the House’s time on this amendment by responding to the issues that we covered then, or by repeating our views on why we are concerned that the Government’s current proposal for a contractual duty will not address the need for the huge cultural change in the NHS that has to take place in order to ensure openness and honesty when things go wrong in the care and treatment of patients.

Nevertheless, I hope that the Minister will accept the case for regulations on including the duty of candour in commissioning contracts. We on these Benches emphasise our commitment to trying to help to make the contractual duty work. I therefore place it on record that we welcome the Minister’s reassurance during the previous debate that he will come back to the House on the outcome and actions resulting from the current government consultation on the contractual duty. I also hope that he will be magnanimous in the victory that he had before the Recess in the vote rejecting statutory requirement by standing by his assurances on a future review of the effectiveness of the contractual duty, after an appropriate period, and whether its effectiveness is being held back by the lack of statutory provision. My third hope is that the NHS Commissioning Board will issue clear and strong guidance to assist CCGs in this matter, and I look forward to the Minister’s response.

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)]

My Lords, this has been another very good debate on the duty of candour. As we have discussed previously, the Government’s position is that the NHS contracts are the most appropriate mechanism through which to implement a further requirement for openness. Amendment 38A proposes that the contractual duty of candour should be given a specific reference in primary legislation. I hope that I can satisfy the House on this and that the undertakings I am about to give the noble Baroness from this Dispatch Box will reassure her sufficiently to enable her to withdraw the amendment.

I give an assurance to the House that the Government propose to use the provisions in Clause 19 relating to the standing rules to specify that the contractual duty of candour must be included in the NHS standard contract, developed by the NHS Commissioning Board. If that assurance is accepted, as I hope it will be, a specific reference is not required to ensure that a contractual duty of candour is imposed. The question, therefore, is whether, despite my assurance, it is necessary or appropriate to include a provision in Clause 19. I have given this proposal substantial thought, and I admit that it is one which on the surface has some appeal. I have spent a good deal of time discussing the matter with noble Lords as well as with Professor Sir Bruce Keogh, the NHS Medical Director.

Let me explain where my deliberations have taken me. At present there is a very wide range of issues that we incorporate into the standard contract. These include issues of paramount importance to the quality and safety of healthcare. For example, the contract is used as one of the mechanisms that we are using to drive improvements in prevention of venous thromboembolism, or VTE. It has been estimated that every year 25,000 people in England die from VTE that they have contracted in hospital. We also use the standard contract for driving improvements in cancer treatments and referrals in healthcare-associated infections in issues such as consent and many other areas.

As the Bill stands, it does not contain a list of the requirements which are to be included in the standard contracts, and for good reason. The Bill should not contain unnecessary detail. On top of that—and I think that this is perhaps a more important point—there should be sufficient flexibility for the Secretary of State and the board to consider and draft appropriate terms and conditions and adapt them to changing circumstances.

The question I pose to myself is this: if, through a reference to the duty of candour, we are to start down the road of specifying particular quality and safety contractual requirements in the Bill, then where do we stop? Just including the few issues that I have briefly mentioned, without any others, means that we will almost certainly land up with a cumbersome and unwieldy list. There are many other areas besides those which some might see as having a similarly valid claim to be mentioned. We should not use primary legislation to cherry-pick priorities to the detriment of other equally important areas.

We have further concerns about precisely what the amendment would require the Secretary of State to provide in the standing rules. We are still looking at what the appropriate contractual term should be in the light of the recent consultation that was mentioned. Imposing a duty in the Bill to adopt a specific formulation, as the amendment would have us do, constrains our ability to take proper account of the consultation and the engagement that we have had with stakeholders—it risks forcing us to implement an inappropriate requirement—and from easily improving it in the future, if the evidence supports that.

I was struck by the very powerful speech of my noble friend Lord Faulks during our last debate on this topic, and indeed by his words today, when he challenged the House to consider the difficulties involved in drafting a duty which adequately encapsulates these obligations. The noble Lord, Lord Winston, was very wise in what he said. For example, how would we specify the types of incidents to which any contractual requirement would apply? The contractual duty and provision in the regulations must be neither too wide nor too narrow in order to be effective and proportionate. We need the flexibility to consider this in more detail.

The noble Baroness’s amendment would have us require particular steps to be taken in particular defined circumstances and adopt a particular definition of the incidents to be covered by the duty of candour. I am extremely uncomfortable with that. Apart from anything else, we specifically asked this question in the public consultation, so we would be undermining that process if we were not properly to consider the responses we received. I really think, therefore, that it would be better to let that consultation guide us as to the precise way in which the duty should be framed. It is for those reasons that, after considerable thought, I can tell the noble Baroness that I do not think it would be wise for us to accept Amendment 38A.

The noble Lord, Lord Walton, asked about the duty placed on individual doctors within a trust. Doctors are expected to follow the code of practice laid down by the GMC, as he will know, and failure to do so may lead to action against a doctor by the regulator in the exercise of its statutory powers. I can confirm to the noble Lord that the code is not just words; it is backed up by real regulatory force. Indeed, I have the wording of the code in front of me:

“If a patient under your care has suffered harm or distress, you must act immediately to put matters right, if that is possible. You should offer an apology and explain fully and promptly to the patient what has happened, and the likely short-term and long-term effects”.

There are similar provisions in the Nursing and Midwifery Council code as well.

15:45

My noble friend Lady Tyler asked about the time period for the review of the contractual duty that I promised last time we debated this. My view at present is that about three years from the implementation of the duty would be an appropriate period. We will be setting out in more detail when we propose to conduct that review when we respond to the consultation.

I reiterate on the record the Government’s and my commitment to introduce a contractual duty of candour to require openness and transparency in the NHS. I understand the strength of feeling on the topic; indeed, it is for exactly that reason that I promised in our earlier debate that the Government would undertake a review in future of the effectiveness of the contractual duty of candour, and to include that within a specific analysis of whether its effectiveness was being substantially held back by the lack of a reference in primary legislation. If that review were to highlight that this was indeed happening, the Government would give that fact significant consideration and take it fully into account in the context of any future primary legislation. On top of that, I reiterate the commitment that I have given today that the Government intend to use the “standing rules” regulations to specify that the contractual duty of candour must be included in the NHS standard contract. I hope that I have provided the noble Baroness with cast-iron reassurance upon this topic, and I therefore ask her to withdraw her amendment.

[Baroness Masham of Ilton]

My Lords, I thank all noble Lords who have spoken. I think that because I was thanking the Minister last time, I forgot to thank all those who had spoken then, so I thank them now as well.

This is a complicated Bill, and I do not think it is a very popular one—certainly not outside your Lordships’ House. I worry intensely that while patients were said to have been centred in the Bill, in fact they are getting less and less so. However, we will come on to that later.

I am passionate about patient safety. I thank the Minister for his assurances. We have moved on a little. Things take a long time, but a lot of people now feel that doctors, patients, and all those looking after them should be a team. I hope that this will happen.

I am pleased that the GMC has come out against the gagging clause. It was terrible and extremely confusing for doctors when they were told by managers that they were not allowed to say when something had gone wrong. I am glad. We are moving on, and I hope that this debate has been useful. With that, I beg leave to withdraw the amendment.

Amendment 38A withdrawn.

Amendment 38B

Moved by

[Lord Hunt of Kings Heath]

38B: Clause 19, page 14, line 32, at end insert—
“(8A) The standing rules under subsection (1) shall make provision as to how clinical commissioning groups are required to register, manage and report upon conflicts of interests of both members and employees of a clinical commissioning group, or any individual engaged by a clinical commissioning group to be involved in any part of the process of commissioning NHS services (“the Conflict and Financial Interests Rules”).
(8B) The Secretary of State shall consult upon and then publish a Code of Conduct for members of clinical commissioning groups concerning the registration of pecuniary and non-pecuniary interests by members of a clinical commissioning group, and setting out how clinical commissioning groups shall manage actual or potential conflicts of interests amongst its members, which shall include provisions concerning the provision of services (other than NHS services) to NHS patients.
(8C) The Conflict and Financial Interests Rules shall include the following provisions—
(a) a duty on members of a clinical commissioning group to abide by the terms of the Code of Conduct to be published by the Secretary of State under subsection (8B) hereof;(b) that each clinical commissioning group shall maintain a register of pecuniary and non-pecuniary interests of members of the clinical commissioning group;(c) a requirement that each member of a clinical commissioning group shall register all of his pecuniary and non-pecuniary interests in the Register unless the said interest shall be within a de minimis classification set out in the Regulations, and shall keep the said register up to date;(d) a requirement that the register of interests of each clinical commissioning group shall be published and made available for public inspection;(e) a requirement that, unless approved by the Board, a clinical commissioning group shall not be entitled to enter into any arrangements to commission healthcare or other services with any person where any member of the clinical commissioning group has a financial interest or link to that person of a type set out in Regulations (“a Conflicted Arrangement”);(f) a procedure (“the Exemption Procedure”) under which a clinical commissioning group shall be entitled to request an exemption from the Board so as to permit the clinical commissioning group to enter into any a Conflicted Arrangement;(g) that the Exemption Procedure shall require the clinical commissioning group to publicise the application for the exemption and to permit any objections thereto to be considered by the Board;(h) that the Exemption Procedure shall provide that, after considering the merits of the individual application, the Board shall be entitled to approve the arrangement if but only if the Board is satisfied that the proposal to enter into any such arrangement has been the subject of an open and transparent procurement process, that it provides the best value for money for the clinical commissioning group and that there are appropriate safeguards proposed by the clinical commissioning group to manage any conflict of interest in the management of the said arrangement;(i) that no member of a clinical commissioning group shall be permitted to take any part in any discussion of or decision making process concerning any arrangement or proposed arrangement with a provider of services with whom that person has a registerable interest;(j) a procedure for complaints to be made to the Secretary of State by any person who alleges that a member of a clinical commissioning group has acted in breach of the Code of Conduct or in breach of the Conflict and Financial Interests Regulations;(k) a procedure for the Secretary of State to appoint an adjudicator to investigate and to rule upon any such complaint; and(l) for the adjudicator to be able to impose sanctions on any member of a clinical commissioning group has been found by an adjudicator to have acted in breach of the Code of Conduct or in breach of the Conflict and Financial Interests Rules including—(i) such financial sanctions as the Secretary of State shall consider appropriate;(ii) suspension of such a person from being a member of a clinical commissioning group; (iii) removal of such a person from current membership of a clinical commissioning group;(iv) a bar on such a person being a member of a clinical commissioning group for a period of up to 10 years;(v) the referral to the Board for action to be taken against any individual who is a performer under the National Health Service (Performers List) Regulations 2004; and(vi) the suspension or termination of any contract or arrangement for the provision of NHS services that may exist between the Board or any clinical commissioning group and that person or any partnership, company or other organisation with whom that person shall have a registerable interest.(8D) Where any contract or other arrangement is suspended or terminated by the action of an adjudicator following an adjudication under sub-section (8C)(I), no other person shall be entitled to assert any legal right or make any claim for damages or financial compensation on any other basis whatsoever against the Board or any clinical commissioning group as a result of the said adjudication.”

[Lord Hunt of Kings Heath]

My Lords, we return to one of the most important matters in the Bill: clinical commissioning groups and their effective corporate governance, or lack of it—specifically, the question of how conflicts of interest are to be dealt with. In his letter of 16 February to putative clinical commissioning groups, the Secretary of State spoke enthusiastically of the freedoms that they were to receive. There can be little doubt that they are one of the most important features of this Bill. They are to be given a huge amount of money. They are to be given freedom to commission services. They are to be given freedom to decide when and how competition should be used. Because clinical commissioning groups will exercise such important roles, I would have thought that public interest demands that the principles of good corporate governance should apply as much to them as to any other public body.

In Committee, the noble Lord, Lord Kakkar, drew attention to the seven principles of public life and asked whether they applied to clinical commissioning groups. I asked the noble Earl, Lord Howe, whether independently appointed non-executives would be on the board of clinical commissioning groups. I also asked how conflicts of interest were to be dealt with. He said that the Bill places a duty on the Secretary of State,

“to publish a code of conduct for CCGs, incorporating the Nolan principles on public life”.—[Official Report, 14/11/11; col. 564.]

To my suggestion that each clinical commissioning group board should have on it a majority of non-executives and be independently appointed, he said—disappointingly—that each group must only have at least two lay members and that one must be either the chair or deputy chair of the governing body.

On the conflicts of interest, the noble Earl said that the Bill had three safeguards: statutory requirements on clinical commissioning groups to make arrangements to manage conflicts of interest, governance arrangements, and specific regulations on good practice in the procurement and commissioning of healthcare services. Is that sufficient? I do not think that it is. These groups are unique. In essence they represent groupings of small businesses which have had handed over to them billions of pounds, a proportion of which they can spend on primary care services. Sometimes these are to be provided in the surgeries of GPs who are members of the clinical commissioning group, or perhaps are to be provided by companies in which GPs within a clinical commissioning group may have a financial interest. The potential conflict of interest is so obvious that it surely begs the question as to why the Government are not putting safeguards on this matter in the Bill.

My amendment is a lengthy one, but I hope comprehensive. It sets up a register of pecuniary and non-pecuniary interests. It places an obligation on clinical commissioning groups to register. It prevents any arrangements being entered into between a clinical commissioning group and a party with whom a member has an interest. It provides for an exemption procedure whereby the board could approve the arrangement if it was open and transparent. It prohibits a member of a clinical commissioning group taking part in discussions with any business in which he or she has an interest. It also provides a process under which an adjudicator appointed by the Secretary of State can adjudicate on complaints about members of clinical commissioning groups breaching the code of conduct, which is provided for in my proposed new subsection (8C). The sanctions include removing the individual as a member of the clinical commissioning group and the termination of any contract which has been put in place between the group and anyone with whom the member has a registerable interest.

A clinical commissioning group board will have a majority of GPs sitting on it. They are involved in running businesses which are largely dependent on the NHS for their income. The role of a clinical commissioning group will be to commission services, some of which will be commissioned from those GPs who are members of that group or, as I said earlier, from companies in which some of those GPs may well have an interest. Independent lay members will be in a minority and we have yet to receive assurance that they will be independently appointed. We have not even been assured that the chairman of the clinical commissioning group will be an independent lay member. It will have the weakest corporate governance of any public body in this country.

We know that over the past 20 or 30 years any number of inquiries have shown the problems of poor corporate governance. After all, the Nolan commission was started because of such problems. This will explode in the Government’s face unless they strengthen the corporate governance of clinical commissioning groups. If you combine these weak corporate governance arrangements with the ability of a clinical commissioning group to make decisions that could be to the financial advantage of GPs who are members of that group, you are heading for trouble. We need robust safeguards and they ought to be in the Bill. I beg to move.

[Baroness Barker]

My Lords, noble Lords will recall that in Committee I too highlighted the issue of conflicts of interest. I did so because, like many other noble Lords, I had listened to and read the briefings sent by the professional bodies, many of which raised fears and concerns about conflicts of interest. Like many other noble Lords, I believe it is important not only that members of the public have faith in the integrity of the decisions being made by CCGs but that members of the professions believe in those decision-making processes and feel able to participate in them. They should also have the protection of good governance and good conflict-of-interest policies to enable them to carry out what will be a difficult role.

Before we look at the detail of this, it is important to remind ourselves a little of the context. There are conflicts of interest in the National Health Service now. There always have been, as anyone who has ever sat around the table at a joint finance meeting at which every single person has an interest in the discussion will know. It may not be a direct financial interest; it could be about a post, a project or money. Managing conflicts of interest is something that the NHS and PCTs do now. That is not to say that we should not take the opportunity of the Bill to make the principles according to which the NHS should act more overt. They should be the highest of principles.

It is for that reason that my colleagues and I raised the matter in Committee. We then drafted a set of amendments that are in this group—Amendments 84, 89, 91, 92, 93 and 116. I am very grateful to several noble Lords, including the noble Lord, Lord Newton of Braintree, who looked at those amendments with the seasoned eye of an ex-Health Minister. His response was, “Very good but an awful lot of this needs to be in regulation, not in the Bill”. I took his comments to heart, which is why my colleagues and I withdrew those amendments on Friday and noble Lords now have Amendments 79A, 82A, 86A and 86B before them on the Marshalled List.

It is also important that noble Lords understand one particular point about the interpretation of the Bill. A great deal of anxiety has been expressed by some of the professional bodies about the role of commissioning support organisations. Noble Lords may recall that I raised that in Committee. I have been in discussion with several members of the professions to try to understand the source of that concern. As far as I can understand, there is a view within some of the professional bodies that commissioning support and the commissioning of services are one and the same thing, whereas the Minister was at great pains in Committee to stress that they are two different processes that go side by side.

16:00

Noble Lords may have seen a briefing by Professor Allyson Pollock on her interpretation of Schedule 2. Would the noble Earl, Lord Howe, in his response to these amendments, talk particularly about the role of commissioning support? There is a view outside, which is informed by some of those briefings, that people who are not clinicians will have a responsibility for commissioning clinical services. In Committee he was at pains to stress that that was not the case; that it would be members of CCGs only who had that responsibility and that they would be given support to do that only by CSOs.

I return to the issue of conflicts of interest. They are extremely difficult things to legislate for because they take a number of different forms. On the ground, a conflict of interest can be financial or non-financial—it is a difficult thing to define in legislation. In our amendments, and particularly Amendment 79A, we state that there must be a register of interests of members of a CCG, the governing body, its sub-committees and its employees. Noble Lords might find it helpful to know that, for the purposes of the legislation, “employees” covers people who work as consultants. I do not mean medical consultants, but people who work in a consultancy capacity to the CCG. Under the amendment, they must publish registers of those interests and ensure public access to them; and the registers must be kept up to date, with information being placed on them within 28 days. Why is that important? People’s interests change and these organisations will be in the business of giving out contracts to providers. It is therefore important that if someone has a material interest and that interest changes—particularly around the time of the contract being issued—this is brought to public attention quickly.

Proposed new subsection (4) in our Amendment 79A states that CCGs,

“must make arrangements for managing conflicts and potential conflicts of interest in such a way as to ensure that they do not, and do not appear to, affect the integrity of the group’s decision-making processes”.

It is extremely important that these groups not only set out to uphold the highest standards but that they are seen to uphold them.

[Lord Hunt of Kings Heath]

My Lords, I am grateful to the noble Baroness. Could she clarify what happens in the situation that she has laid out in these amendments if a member of a CCG does not do the right thing? Are there any sanctions in her amendment?

[Baroness Barker]

The noble Lord is quite right and I will come on to that.

These amendments also refer to the board publishing guidance and what that guidance would include. As I understand it, members of CCGs who are in material or consistent breach of a conflict-of-interest policy might be referred to their professional body. Amendment 86A is a regulation-making power. It is under that power that many of the important details could be included. They would, I imagine, include issues such as the ones which the noble Lord has just raised about the sorts of sanctions which CCGs should include in their guidance and policy.

[Lord Hunt of Kings Heath]

My Lords, with respect to the noble Baroness, she has withdrawn some amendments and put in some substitutes, so I think it is fair to ask her these questions. Without sanctions, this is not going to have any teeth. There is a major concern about corporate governance in CCGs. Surely it would be better to put it on the face of the Bill rather than, as it seems to me she is doing, leaving it up to CCGs to do the necessary.

[Baroness Barker]

Not entirely, my Lords. As I was coming on to say, an important piece of work is that the GMC is updating its guidance on how its members should work in the new setup. It is important that members of bodies such as the GMC, the BMA and other professional bodies are involved, should they wish to be, in setting out the detail of what those sanctions should be. We should end up with something that is effective and workable, as well as principled. The noble Lord’s argument does not therefore stand up. Nothing in these amendments would preclude that sort of sanction being put into regulations or guidance.

Our amendments are, admittedly, not as detailed as the amendment of the noble Lord, Lord Hunt, nor do they—as his amendment does—incorporate language from the world of commercial legislation. The terminology of conflicted arrangements and exemption procedures comes from commercial law, and I am not sure that that is appropriate for what we are seeking to do. At the end of this debate we should achieve the objective that all noble Lords are seeking—transparency and accountability around the decision-making processes of CCGs, and the legislation and regulations around them should be sufficiently robust so that not only can members of the public have faith in those procedures but the procedures should be workable. I accept that our previous amendments included provisions that were so draconian that they would not work in practice. We could have ended up in a position whereby the very people who should be making decisions on CCGs would not have been eligible to do so, particularly at the precise moment at which their expertise would be necessary.

Our amendments are not by any means the end of the matter; they are the beginning of a process that should move on further in the discussion on regulations and guidance. That is where much of the detail of this should come to the fore, but the principles that we have set out in these amendments are robust and workable, and I hope that in his reply the Minister will accept them.

[Lord Patel]

My Lords, I support the amendments relating to conflict of interest and I agree that there needs to be something in the Bill. I will give an example to indicate why I believe that more strongly following a seminar that we attended before the Recess. For those noble Lords who were not there, we had a presentation from a GP who told us, first, that he was salaried, and I therefore presume he did not have a standard general medical services contract, and that his salary came from somewhere else—it may well have come from another general practitioner. He said, secondly, that he was involved in commissioning and, thirdly, that the commissioners had found that the provision of some services in his area was not satisfactory or of the quality that they had asked for—particularly, in relation to hand surgery. They therefore set up an independent provider of surgical services, of which the GP was a non-executive director. The conflicts of interest are quite obvious: here is a commissioner who is a salaried doctor, and that raises a question. If the commissioning board is to hold the contracts of primary care providers, will they not include those who have a general medical services contract, or will they include those who are salaried? More and more primary care providers are salaried GPs employed by other practitioners. We therefore also need to clarify who will be asked to be a member of the commissioning group: will it be only those who hold the general medical services contract, or will it be all those who provide primary care services? The conflict of interest here is many-fold, and therefore we need to address how it is to be resolved.

While I was, and still am, very attracted to the amendments of the noble Baroness, Lady Barker, because I had not seen those of the noble Lord, Lord Hunt, the question of sanctions needs to be addressed more clearly. I agree with the noble Lord, Lord Hunt, on the need for this question of sanctions to be clarified so that those who may be involved in conflict know from the very beginning how those sanctions will apply to them.

[Lord Winston]

My Lords, perhaps I may deal very briefly with one area of medicine with which the noble Lord, Lord Patel, and I are particularly familiar. One problem raised is that increasingly general practitioners are doing minor surgical procedures; increasingly in practice, often in groups. I know of one large practice in south-east England, for example, that is now carrying out a procedure called a hysteroscopy, which is an endoscopic or telescopic examination of the inside of the uterus. This is quite a specialised procedure designed to identify cancers of the uterus at an early stage. The problem is that general practitioners may well be able to carry out this procedure somewhat more cheaply than gynaecologists in a practising group. Of course, there is clearly a conflict of interest here, because they may well be in the very practice that is also commissioning this procedure, and a patient might perhaps be wrongly given a particular treatment when a slightly more expensive treatment, done elsewhere, may be more effective and reduce the risk of the cancer.

[Baroness Finlay of Llandaff]

My Lords, this group of amendments and this debate has focused on conflicts of interest. For clinical commissioning groups, conflict of interest will arise where the leaders of the groups have financial interests, but also where private companies which may have separate provider arms competing as a qualified provider are contracted to provide commissioning support. The other area of conflict which has not been addressed is where quality rewards for commissioning are linked to financial performance of clinical commissioning groups. Further, there are cases where local medical committee officers are key officials in a clinical commissioning group.

The clinical commissioning group is meant to represent the constituent practices. Indeed, there have been articles in the press about commissioning support and commissioning support organisations. Many of those have raised alarm among clinicians who have become increasingly concerned by the talk revealed in the press about the profit to be made by commissioning support organisations. There has also been a realisation that profit going to the commissioning support organisations will reduce the amount of money going into the provision of core NHS services at any level—whether in the community or in secondary care and the hospital sector.

Several amendments are tabled here. The amendment in the name of the noble Lord, Lord Hunt, is very comprehensive and deals with an area which the other amendments do not. There is also an amendment, on which my name is the first, regarding conflict of interest. I can see that Amendment 79A is more detailed than the amendment which I have tabled, and therefore goes further and would be better. However, I am concerned that it does not go quite as far as the amendment in the name of the noble Lord, Lord Hunt, and that some of the principles in there need to be incorporated into Amendment 79A if the Government are minded to accept that amendment. We may have to come back to amend the amendment should it be accepted and incorporated.

16:15

My Amendment 102 in this group addresses a quite different aspect of the commissioning process. It aims to ensure that the registered secondary care specialist who is to be included on the governing board of each clinical commissioning group can be someone working within the area that the clinical commissioning group covers, the reason being that a person working in an area will be able to establish integrated care across that area far better than someone who comes from outside. In Teams without Walls—a document on which the Royal College of Physicians led but which was written in conjunction with the Royal College of General Practitioners and the Royal College of Paediatrics and Child Health—it was made very clear that the complementary skills of the different groups need to be integrated. There has been quite a lot of concern at the suggestion that the secondary care specialist should not be employed by a local provider and should therefore come from outside the area or even be a retired person.

That concern arises because there will be nobody in the local community who understands that community, who knows the clinicians across the community and, indeed, who has an interest in the patient services for that community. Furthermore, if it is a rural area, such a clinician may be relatively disadvantaged in having to travel many miles to attend meetings and in not being embedded in the healthcare delivery system. It seems to go counter to a localism agenda to insist on taking somebody from outside the area. Therefore, the amendment is designed to allow a clinical commissioning group to take the best person, whether they are from within or from just outside the area, to drive forward integration and collaborative working. One would hope that a representative from primary care would also be invited on to the trust board within an area so that there was a degree of reciprocity—again, to build bridges rather than to create a division between the primary and secondary care sectors.

Conflicts of interest will have to be declared at every stage, and obviously the secondary care doctor will have no right of veto. The argument that the secondary care doctor from within an area would argue only in favour of their own discipline or trust is fallacious. I have not seen a strong evidence-base for that, given that medical directors and others currently work in an area representing different disciplines. A criterion of the person’s job description, appointment and regular appraisal could be that they are seen to represent all providers within an area so that trust is built up across all the providers with which a clinical commissioning group enters into some form of contract.

We have a group of amendments here covering a wide range of aspects of the structure and functioning of clinical commissioning groups. I hope that we will shortly find that a declaration of interests is included in the Bill, in whatever form, and that the Minister will be amenable to revising the rigid stance taken over insisting that the secondary care representative and nurse come from outside the area.

[Lord Walton of Detchant]

My Lords, this is an exceptionally complex issue and I believe it is absolutely crucial that in some way and in some form the issue of a conflict of interests is covered in the Bill. The membership of clinical commissioning groups will consist very largely of general practitioners, but it is important to remember that GPs are not employed by the National Health Service but are independent contractors. As such, it is therefore inevitable that they will have a pecuniary interest in the activity of the clinical commissioning group. I am aware of a number of general practitioners from large practices who have shares in or part-ownership of care homes for elderly patients. I am also aware of some who have shares in private hospitals and in many other organisations. If we were too rigid about declarations of interest, we could end up excluding virtually every GP from membership of clinical commissioning groups, meaning that CCGs could not really exist. Therefore, the provisions must not be too draconian, but at the same time, it is desperately important that they should protect the public interest and that some mechanism be found to ensure that matters of financial and other public interest are not in any way detrimental to the work of the clinical commissioning groups.

I am therefore very attracted by Amendment 79A, which I believe goes a long way towards covering the major issues concerned with conflicts of interest. The amendment so ably proposed by the noble Lord, Lord Hunt has many attractive features, but it is immensely lengthy and complex. I appreciate entirely the point that he made about sanctions, but to go back for a moment, the Minister misunderstood me when I was talking about the duty of candour. I fully appreciate that doctors working for clinical commissioning groups, foundation trusts, and so on, have the same duty of candour as defined by the regulations of the GMC as any other doctor. I intended to ask the Minister whether the actual clinical commissioning groups and foundation trusts, as corporate bodies—not the individual employees of those organisations—had the same responsibility of a duty of candour in relation to patients.

Here, of course, the same problem arises in relation to the whole issue of conflict of interest. How is it defined? It is necessary to recognise, as the noble Lord, Lord Hunt, said, that there has to be a sanction. But the same sanctions apply to individual doctors and other healthcare professionals working for clinical commissioning groups. If they were seen to breach the rules laid down in such an amendment on conflicts of interest, they could be called to account by their regulatory authority. The GMC would no doubt take a serious view of anyone who breached that duty under conflicts of interest. It is crucial that the Government should put something about conflicts of interest in the Bill based, I hope largely, on Amendment 79A, which I strongly support. That is an excellent basis on which to go ahead, and I shall be fascinated to hear what the Minister has to say.

[Lord Warner]

My Lords, I had not intended to speak for very long on this set of amendments but some issues have cropped up which are worth reflecting on, particularly by those of us who have sat in Richmond House and have had to deal with them. It is easy to assume from listening to the debate that we have a wonderful set of arrangements in place to deal with conflicts of interest. That is very far from the case. The noble Lord, Lord Walton, made the point very well that many doctors already do a range of activities—rightly, appropriately and well within their competence—that potentially involve conflicts of interest. One of the great dangers in this area is that we tie ourselves up in a labyrinth of controls that actually work against innovation in an area where science is driving change rapidly. We want people to use their creativity and to change the way they work. We want them to take on new roles. We should not always assume that in doing that they are just seeking to line their pockets. There is a danger that we might do a very British thing and create a large number of rules that will prevent innovation. We had that debate over research and we are in danger of going down the same track in this area.

The other point raised by the noble Lord, Lord Walton, which is very important, is in relation to the role of professional bodies. We had a case—I will not mention the name—of an eminent businessman doctor who was the chief executive of a large chain of nursing homes. He was taken to the GMC because of something that went wrong in one of the nursing homes for which he had no direct responsibility whatever. Although the governing bodies of the professions have an important role, their role was constructed in relation to the actions of a doctor towards individual patients, not in relation to a doctor who was performing other business and organisational functions. It is very important that we do not rely on professional bodies to deal with what is organisational malfeasance rather than lack of professional integrity in dealing with individual patients.

My noble friend Lord Hunt made a very important point. It is very strange that at this stage we are still arguing the toss around corporate governance of some of the bodies in the Bill, particularly the clinical commissioning groups. That is a bit of an indictment of the Government for not getting some of this material thought through at an earlier stage rather than well into Report stage in the House of Lords after having gone through the Commons. However, we are where we are and I think we should not tie ourselves up in knots and prevent incumbents.

Lastly, a very important point that has come out in a number of speeches today is that two issues are critical. First, it should be clear legally to all people participating in these new sets of arrangements that declarations of interest are essential. Secondly, it should also be clear in the Bill exactly what the consequences are of not declaring those interests and pursuing deliberately a conflict of interest for your own advancement, financially and otherwise. Those are the two issues about which we need to be clear in the Bill and I rather agree with the noble Baroness, Lady Barker, that much of the rest of it should be for regulation, provided that the Bill has sufficiently powerful regulation-making powers.

[Lord Kakkar]

My Lords, I too have my name to one of the amendments in this group and would like to reiterate much of what has been said in this very helpful discussion. There is no doubt that there remains considerable anxiety about potential conflict of interest. If, early after enactment of the Bill, the new structures that come into place with regard specifically to clinical commissioning groups were to be attended by serious conflict of interest failings, very rapidly confidence in these new structures would be eroded. That is of very considerable concern.

In Committee, I proposed an amendment suggesting that the Nolan principles be included in this Bill. The Nolan principles are well accepted in public life and play an important role in the conduct of acute and foundation trusts. They have served those organisations well in providing a framework and drawing the attention of those involved in the discharge and governance of those organisations to their obligations with regard to potential conflicts of interest and their conduct more broadly with regard to execution of public responsibility.

In Committee, the Minister felt that adoption specifically of the Nolan principles was not an appropriate course of action and may have a rather unhelpful limiting effect on more broadly ensuring that conflict was dealt with appropriately. Having listened to debate in your Lordships’ House today, it is very clear that considerable anxiety continues. It is important that something is done to ensure that in having taken this Bill forward the Government well recognise the potential for conflict of interest and provide the specific obligations for those who for the first time are going to be directly involved in commissioning and therefore the spending of large amounts of taxpayers’ money. Those obligations are in many ways different from acting as a private individual and it will help those discharging these new responsibilities to understand the high standards to which they will inevitably be held and ensure that they discharge those responsibilities for the benefit of the general public and patients.

16:30

[Earl Howe]

My Lords, this has been a very good debate indeed and I thank noble Lords for the careful consideration that they have given to how CCGs should best manage conflicts of interest. I have listened carefully to the various points raised and it is clear that this is an area of key concern. I hope that the House will therefore forgive me if I start by setting out the position on this issue before I turn to the detail of the amendments before us.

At the heart of the Bill is an intention to balance autonomy with accountability. We are giving freedom to those best placed to take decisions in the interests of patients to do so, but we will also hold them to account, not only for the outcomes they achieve but also for their managing this responsibility effectively, transparently and with integrity.

CCGs will be the guardians of significant amounts of taxpayers’ money, as the noble Lord, Lord Hunt, rightly pointed out, so it is only right that there are strict requirements in terms of governance, probity and transparency of decision-making. We must balance the benefits of the clinical autonomy of doctors with a robust management of potential or actual conflicts of interest. It is essential to get this right, and that means a proportionate and reasonable approach.

I reinforce the point that the Bill already provides very real safeguards in relation to conflicts of interest. The CCG must make arrangements in its constitution for managing conflicts and ensuring the transparency of its decision-making process. The CCG must have appropriate governance arrangements, including a governing body with lay members and other health professionals. These arrangements will be scrutinised by the NHS Commissioning Board as part of the process of ensuring that a CCG is fit to be established as a commissioner.

Let me be clear that this is not just about declaring conflicts of interests, which of course is vital, but also about putting in effective and appropriate arrangements to manage these conflicts where they arise. There is not, and cannot be, a one-size-fits-all approach to managing conflict, as it depends on the interest itself and where it may become a conflict. However, likely methods may include absenting the person from decisions in that area, or bringing in others—for example, the independent lay members—to oversee the process for decision-making in a particular area. The key factor here is that they cannot avoid the need to manage the conflict and to be clear about how they are going to do so.

The provisions around conflict of interest apply to all aspects of a CCG’s commissioning activity, which means that they would apply to how it worked with a commissioning support organisation. I appreciate that there is apprehension and, in some cases, misunderstanding about the role of commissioning support organisations, so I shall set out the facts about this issue for the benefit of noble Lords today, in particular my noble friend Lady Barker, to whom I was grateful for referencing the brief on this issue provided by Professor Allyson Pollock.

Commissioning support organisations are not intended to act on behalf of a CCG in making decisions. They provide support, which might take the form of analysis of performance or finance data, supporting procurement or the management of a contract, and back-office functions. Let me be clear: at no point can they take decisions for the CCG or assume responsibility for a CCG’s statutory duties. It would be unlawful for a CCG to sub-delegate its commissioning responsibility to another organisation.

I am, however, conscious of the concerns, particularly those raised by my noble friend Lady Barker, about whether members of commissioning support organisations could sit on a CCG governing body. I give noble Lords a commitment today that we will prohibit any representative of a commissioning support organisation sitting on a CCG governing body through our secondary legislation-making powers under new Section 14N.

I should also like to explain some of the other safeguards in the Bill relating to management of conflicts of interest. Under Clause 73, the Secretary of State may make regulations which we intend will impose specific requirements in relation to the management of conflicts of interest. They will also confer on Monitor various powers to investigate the actions of a CCG and take remedial action. Monitor will be required to issue guidance on these regulations.

The NHS Commissioning Board may also provide guidance on conflicts of interest. This renders unnecessary any additional amendment requiring the Secretary of State to issue guidance on conflicts of interest, as Amendments 86 and 93 would do, or to issue a specific code of conduct or financial interest rules, as Amendment 38B requires. I shall return to that point in a moment.

The Bill is also clear on the transparency and accountability of the decision-making process. Schedule 2 provides that the CCG constitution must specify arrangements for securing transparency about the decisions of the CCG and governing body. The NHS Commissioning Board will be able to issue guidance on the publication of minutes and will ensure that the constitution meets these requirements. This meets the intention behind Amendment 92. We cannot accept the amendment because it might not always be appropriate to publish details of all decisions made by a governing body.

Transparency and accountability must not be achieved at the expense of the effectiveness of the commissioner. PCTs are not required to discuss all matters in public now and we should ensure that CCGs are not subject to more onerous requirements. Amendment 91 may well prevent CCG governing bodies discussing potentially commercially sensitive issues relating to contract values or performance without the public being present, which could pose difficulties.

I can fully understand the intention behind Amendment 102, tabled by the noble Baroness, Lady Finlay, to ensure that local knowledge informs the work of the CCG. However, we have always maintained that the presence of health professionals on a CCG governing body is not intended to be a means for the CCG to obtain advice to inform its commissioning decisions. The non-GP members of the governing body are there to provide an independent perspective, informed by their expertise and experience, in the body responsible for ensuring that the CCG adheres to the principles of good governance. They must have no conflict of interest in relation to the clinical commissioning group’s responsibilities. Amendment 102 would mean that a CCG could have only local professionals in the governing body. This would obviously limit the CCG in its choice of governing body members and risks a conflict of interests. I urge the House not to accept that amendment.

GPs in CCGs have to meet the ethical standards set by the General Medical Council in good medical practice. That includes provision to avoid conflicts of interest. Anyone may raise a concern that a doctor has failed to meet the conditions of their registration with the regulator. However, a failure to meet the conditions which Amendment 93 would impose would not necessarily mean that a GP had been in breach of their conditions of registration, and the duty which Amendment 110 would place on the board would be disproportionate. I know that there is a real concern among some noble Lords and that it is felt that this is a necessary sanction, but it is far better to ensure the robustness of the approach that CCGs take and that it is appropriately overseen. It is more appropriate for an independent monitor to police the transactional behaviour of CCGs and to be able to take effective remedial action where it discovers evidence that a CCG has not followed regulations in relation to procurement and the management of conflicts of interest, which is the approach taken in the Bill.

I similarly urge that we do not place in legislation an indiscriminate requirement, as Amendments 38B, 93 and 116 would do, that people with an interest withdraw from the relevant decision-making process of the CCG. Clearly, that is often going to be the most appropriate means to manage a conflict of interest, and that is made clear by the NHS Commissioning Board Authority’s guidance, Towards Establishment, which was published recently. However, it should not lead us to impose on CCGs a blanket ban on individuals being involved in a decision-making process or sitting on the governing body in all circumstances in which they have an interest. It ignores the fine line that can be drawn between situations in which withdrawal is absolutely necessary and those in which it would be more effective for the CCG’s exercise of its commissioning function for the conflict to be managed, carefully and with external oversight, in a different way that maintains the integrity of the CCG.

I listened with great care in particular to the speeches of the noble Lords, Lord Warner and Lord Walton, on this theme. The best example of the second category that I mentioned is where a CCG is commissioning for local community-based alternatives to hospital services and it determines that the most effective and appropriate way to secure these is from all local GP providers within its geographic area. There are already inherent safeguards in the legislation to help manage conflicts in this scenario. The CCG would have to declare its commissioning intentions as part of its annual commissioning plan, on which it would consult the public, and it would engage with health and well-being boards in developing; and that makes the proposal transparent. It enables the health and well-being board and others to challenge the proposals. CCGs could similarly secure additional involvement in the decision-making process—for instance, by involving members of the health and well-being board or, indeed, other CCGs or members of the CCG’s audit committee. There is a choice. We have not identified one single right way of doing this. We think it is important to allow best practice to evolve rather than trying to pin it down in legislation. If all GP members of the CCG had to withdraw from the decision-making, it would be extremely hard for the CCG to actually make a valid decision, as it could not be delegated to the non-GP members of the governing body or a similar arrangement. It is only in certain circumstances that we would expect individuals with a conflict not to withdraw absolutely, but we have to keep this option open in legislation.

For the same reasons, I cannot support the proposals of the noble Lord, Lord Hunt, and the noble Baroness, Lady Thornton, in Amendment 38B, which would either require a CCG not to contract with a provider in which any member of the CCG had an interest, or require them to secure an exemption from this rule from the NHS Commissioning Board. The conflict and financial interests rules, which this amendment references, already require an individual to withdraw from any part of the decision-making process with a provider in which they have an interest. It is hard to see why it would be necessary also to prevent the CCG from contracting with such a provider or undergo a cumbersome—I have to say cumbersome—exemption process. That approach would make the board have to scrutinise individual procurements and generally police the transactional behaviour of CCGs. It would not allow for alternative local arrangements for quality-assuring the openness and transparency of a CCG’s approach. It should not have to be the board only that can ensure the probity of the commissioning decision. As I have suggested, the health and well-being board might provide a suitable external view, as might another CCG.

[Lord Hunt of Kings Heath]

I am grateful to the noble Earl for giving way so freely. I understand what he is saying about the bureaucratic process. However, will he not accept that the reason for that is that the corporate governance processes around the clinical commissioning group are so weak? For instance, why is there not to be a majority of independently appointed non-execs, as there would be on any other public board?

[Earl Howe]

I will come to that point in a moment. I do not agree with the noble Lord that the governance arrangements are weak. As I have said, one of the things that the board will have to do when authorising CCGs is to assure itself that there are fit and proper governance procedures in place.

I turn to the question of sanctions, which has been raised by a number of noble Lords. It is essential that patients and clinicians remain confident that members of clinical commissioning groups will always put their duty to patients before any personal financial interest. It is important that CCGs take all possible steps to avoid conflicts of interest. We foresee that the guidance that Amendment 79A requires the board to produce would set out the need for CCGs to make clear in their conflict of interest policy that any member of a CCG found to have failed to declare an interest may face a number of possible sanctions and individuals may also be referred to their professional body, which is a serious matter. The noble Lord, Lord Walton, was quite right in all that he said. I am very drawn to the provision of Amendment 79A, and I will come on to that more fully in a moment.

16:45

When there is any breach of the provisions in proposed new Section 14NA, the board would have a range of powers to intervene. The GMC is currently updating its advice to doctors about how they will be expected to exercise their professional responsibilities within the new structure of CCGs. The board’s guidance we expect to be consistent with the profession’s own high standards.

Amendment 38B would also give the Secretary of State the role of appointing an adjudicator with a range of sanctions, including suspension or removal of a person from being a member of a CCG for up to 10 years. Such a sanction could of course result in the patients of the GP so removed not having their interests represented in the decision-making of the CCG. That would strike at the heart of the principle of clinical commissioning. There is already in the Bill provision for independent scrutiny of the behaviour of CCGs in relation to procurements by Monitor, as I have mentioned. The Secretary of State’ regulations will give Monitor the power to investigate commissioning behaviour and, if necessary, take a range of remedial actions, including rendering a contract ineffective.

I do not want noble Lords to be in any doubt as to how seriously we take ensuring the integrity of clinical commissioning, or that we have not considered carefully their concerns. So while I cannot support most of the amendments in this group as they stand, I am supportive of elements of some of them. I am persuaded of the necessity to have a register of interests, placing the CCG under a duty to ensure that interests are declared in a timely manner, and that the CCG acts on those declarations. I am therefore persuaded to accept the amendments tabled by my noble friend Lady Barker, Amendments 79A, 82A, 86A and 86B. I see those amendments as absolutely consistent with the guidance towards the establishment, as I mentioned a moment ago. In my judgment, they would provide the best additional safeguards to those in the Bill. The amendments will deliver much of what is proposed by other amendments, in the most effective way, and I hope and trust that they will therefore receive support from across the House.

I add for reassurance that in placing a new duty on the board to issue guidance on conflicts, the board can build towards establishment and set out unequivocally the expectations of CCGs in how they should manage conflicts of interest and hold CCGs to account. I would also expect the guidance to reinforce the existing GMC guidelines, making clear to CCG members their accountability to the board and the GMC. A number of amendments call for new guidance or codes of conduct. I think that allowing the board to issue statutory guidance in that respect will deliver the intentions of those amendments.

As a consequence of my support for the amendments tabled by my noble friend, I do not intend to move the four government amendments in this group, Amendments 83, 85, 88 and 90, because they will be superseded.

I hope that I have said enough to reassure the House that the Government have acknowledged the concerns on these issues around conflicts of interest. We have listened to the concerns and are willing to amend the Bill accordingly.

[Lord Hunt of Kings Heath]

My Lords, I think that that is a very disappointing response. The noble Earl, Lord Howe, said that clinical commissioning groups will balance autonomy with accountability, and he acknowledged that they will be guardians of billions of pounds of taxpayer’s money. He went on to say that there were three safeguards: the constitution, transparency and the governing bodies. However, he still fails to respond to the fundamental gap, which is the lack of proper corporate governance around clinical commissioning groups. Looking at other public sector bodies—NHS trusts, for instance; not foundation trusts, but NHS trusts—how would we feel if the Government came forward with proposals stating that the board of an NHS trust would consist of executive directors and one or two lay members? It is just possible—but it is not certain—that one of those lay members will be the chairman of the trust, or they could, indeed, be the chief executive. That, in essence, is what the Government are proposing for the governance of clinical commissioning groups. A group of GPs will sit round the table. They will have a couple of lay members who presumably will be appointed by the clinical commissioning group, because the Government consistently fail to say whether there will be an independent appointments process. The noble Earl never responds to me on this point. They will be deciding how billions of pounds should be spent. The noble Earl refuses to acknowledge that these GPs are business people who run businesses which depend mainly on contracts—

[Earl Howe]

My Lords, I realise that I did not answer the noble Lord and I apologise to him. It may be helpful for him to know that we intend to work with patient and professional groups and with emerging clinical commissioning groups to determine the best arrangements for appointing members of governing bodies. We will be issuing regulations in due course setting out in more detail the requirements for appointing clinical—that is to say, non-GP—members to the governing body.

The report that we had from the NHS Future Forum stated that it would be unhelpful for clinical commissioning groups’ governing bodies to be representative of every group under the sun. We agreed with that. Requiring a bigger group of professionals on the governing body itself, or expanding it in any way at all, would not really mean that a broader range of interests are involved in designing patient services. It would just lead to governing bodies that are too large and slow to do their job well. However, we think that it is important for clinical commissioning groups to be led clinically. That is the point.

[Lord Hunt of Kings Heath]

My Lords, I am grateful to the noble Earl. However, that ultimately means that a majority of the people on the board of a clinical commissioning group will potentially be able to take advantage of the commissioning decisions of that group. That is why the corporate governance is so concerning. I accept that my amendment might be regarded as rather lengthy. However, I am pushing this forward because I am trying to replace the lack of effective corporate governance.

The noble Earl says that sanctions will be contained in guidance, but I do not think that that is sufficient. The potential for conflicts of interest are so great and the amount of public money involved so considerable that we should have in the Bill a clear commitment to sanctions. I do not agree with the noble Earl that this is something that can be left to professional bodies. My noble friend Lord Warner was absolutely right to mention that case. It shows some of the risks of what essentially was, in that person’s case, a managerial issue being pursued by a regulatory body. I do not think that that is the right way of dealing with GPs who, it was alleged, had pursued actions in breach of whatever guidance was issued.

[Earl Howe]

The noble Lord should not forget what I said about Monitor’s powers to look at improper conduct at the CCG level.

[Lord Hunt of Kings Heath]

My Lords, I am sure that Monitor will play an extremely useful role, but surely it would be much better to give further and clear guarantees that these matters will be dealt with effectively. I believe that we need more provision in the Bill specifically on sanctions. I should like to test the opinion of the House.

16:56

Division 1

Ayes: 186

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Labour: 149
Crossbench: 23
Independent: 4
Bishops: 4
Democratic Unionist Party: 1
Plaid Cymru: 1

Noes: 259

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Conservative: 139
Liberal Democrat: 63
Crossbench: 49
Ulster Unionist Party: 2

17:08

Amendment 38C

Moved by

[Lord Warner]

38C: After Clause 19, insert the following new Clause—
“Integration of services
(1) In discharging any duties under this Act, or any related regulations or guidance, “integration” means the integration of health and social care commissioning, assessment, service provision or payment arrangements with the primary purpose of improving the delivery of integrated care and treatment to individual patients or service users or groups of such individuals.
(2) Annual reports produced in accordance with this Act by the National Commissioning Board; and a clinical commissioning group shall report progress made by that body on improving the delivery of integrated care and treatment in accordance with this definition.
(3) The National Commissioning Board’s annual business plan must explain how it proposes to improve integration of services in accordance with this definition.
(4) In developing tariffs, both the National Commissioning Board and Monitor shall have regard to improving integrated care and treatment in accordance with this definition.”

[Lord Warner]

My Lords, I shall speak also to Amendment 143.

[A noble Lord]

Not before time.

[Lord Warner]

Better late than never, my Lords. This brings us back to the issue of integration that we discussed in Committee. Since those discussions, which themselves followed the report of the Future Forum, we have had two important and relevant reports from the Commons Health Select Committee, one on public expenditure and one on social care. There was also a robust report in January by the King’s Fund and the Nuffield Trust for the Department of Health and the Future Forum on the case for moving forward with greater pace on integrated care. It is clear to me and my fellow signatories to these amendments that it would be a mistake not to use this Bill to provide some stronger requirements and make it more likely that integration of services to benefit patients will actually happen. None of us believes that legislation on its own will deliver integration, but providing a stronger legislative framework is more likely to make it happen. That is the purpose of these amendments.

Let me remind the House what the three reports that I have mentioned actually said. The King’s Fund and the Nuffield Trust said that the Department of Health and the NHS Commissioning Board should,

“develop a consistent and compelling narrative that puts well-co-ordinated care for people with complex needs at the heart of what is required of local NHS and social care organisations”.

The report went on to say that they should set,

“a clear, ambitious and measurable goal linked to the individual’s experiences of integrated care that must be delivered by a defined date”.

In its January report on public expenditure, the all-party Health Select Committee, with a Conservative chair, said on page 32, at paragraph 13, that it,

“found precious little evidence of the urgency which it believes this issue”—

that is, integration—

“demands—on both quality and efficiency grounds”.

The committee called on,

“the Government and local authorities to set out how they intend to translate this aspiration for greater service integration into the reality of patient experience”.

In its further report on 6 February on social care, the Health Select Committee made clear that the key to joined-up services is joint commissioning. It recommended that the Government should place a duty on clinical commissioning groups and local councils to create a single commissioning process. Its main focus is on integrating services for older people, but much of what it says applies to a wider group of people. It also draws attention to the difficulty of defining the boundary between the NHS and local authority services.

This is the context in which I believe that we need to strengthen this Bill while it is still before us. It would be a missed opportunity not to do so. We must tackle this issue of the definition of integration, but make sure that it is not limited to particular groups of patients and service users, and that it is not simply restricted to those who straddle the NHS and social care boundary. Those depending solely on NHS services need improved integration, as I have discovered from some of my family episodes and circumstances. We also need not just integration of commissioning, important though that is and on which I fully support the Select Committee’s recommendation. Organisational integration is not sufficient, as history has shown us. The definition of integration has to make clear that the primary purpose of the organisational and process changes for integration is to bring benefit to patients and service users through the delivery of integrated care and treatment. As the Oxford English Dictionary makes clear, “integration” is:

“The making up or composition of the whole by adding together or combining the separate parts or elements”.

If we are to progress service integration for individuals, we need to put a clear definition of integration and its purpose in this Bill. That is what proposed new subsection (1) in Amendment 38C does, in a way that supports the conclusions of the Health Select Committee. The three other subsections ensure that there is no escape for any of the actors in this drama from taking seriously the issue of service integration. Subsection (2) requires that annual reports provided by the Commissioning Board and clinical commissioning groups, under the terms of this Bill, should report progress on improving the delivery of integrated care and treatment in accordance with the definition in proposed new subsection (1). The NHS Commissioning Board is required by the Bill to produce an annual business plan. Proposed new subsection (3) requires that plan to explain how the board,

“proposes to improve integration of services in accordance with”,

the definition in proposed new subsection (1).

17:15

Proposed new subsection (4) requires the Commissioning Board and Monitor to have regard to integration of services in the setting of tariffs, which should encourage tariffs that move away from hospital episodes of care to ones that support integrated pathways of care over periods of time.

I turn briefly to Amendment 143, which completes the picture by requiring the Secretary of State’s annual report to cover not only the performance of the NHS but its integrated working with adult social care.

I do not claim that these amendments will, on their own, deliver the integrated care that we all want to see, and which the three reports that I have mentioned and the Future Forum are trying to drive. However, they strongly support that drive and put the Bill in a better shape to make greater integration of services more likely. I hope the Minister will see them as a constructive way forward that supports the Government’s policy and that he will be able to accept them. If he wants to go further and produce his own amendments to support the Select Committee’s recommendations on joint commissioning by placing duties on clinical commissioning groups and local councils, I for one would be glad to give him my full support. I suspect that many people across the Benches in this House would follow that. I beg to move.

[Lord Patel]

My Lords, I have put my name to Amendments 38C and 143 and support them very strongly. They cover the issues that we raised in Committee and which need to be addressed.

The Government’s intention in the Bill is clearly stated: they want to see better quality of care and outcomes, particularly for patients with long-term conditions. I spoke at length about this in Committee and will not repeat myself. However, in brief, a patient who suffers from a long-term condition will get better care and outcomes only if that care is individualised and integrated from primary care, through acute care to community care. If we are to do this, we need some guidance in the Bill itself as to who will be responsible, how it will be done, who will give the guidance and how it will be monitored. I do not mean by Monitor, but how whether it is happening will be monitored. It is for this reason, if no other, that I strongly support these amendments. I agree with my friend, the noble Lord, Lord Warner, about hoping that the Minister will be able to accept these amendments or the principles behind them; and, if he cannot accept them, that the Government support them by tabling their own amendments at a later stage.

[Baroness Pitkeathley]

My Lords, I, too, will speak strongly in support of these amendments, to which I have added my name. In spite of my major misgivings about the content of the Bill when it was originally published, I remember being delighted by its title because it had “social care” up there with “health”. Did this mean, I thought to myself, that at long last health and social care were to be given equal status? At long last, was there to be a proper recognition that the patient experience of being ill, disabled or in need of care is an integrated one? The Bill was supposed to be about making the patient experience better—less confusing, and more effective and efficient from the point of view of the patient—so I was hopeful.

In more than 40 years of working at the margins of health and social care, I have seen two experiences constantly repeated. The first is of patients always being surprised, distressed and horrified by the lack of integration between health and social care. Since they cannot put their own needs into two separate boxes, they are surprised that the services seem to be provided in separate boxes. They are further distressed by having constantly to give their details and history to different people, having to undergo unnecessary repeat tests and yet still being left alone or reliant on their families to negotiate between the NHS, social care agencies and local authorities, not to mention voluntary and private sector providers.

The second experience which has been constant in my life is the seeming commitment of all those who work in the system to how important integration is to the delivery of proper patient-centred care. Indeed has anyone in your Lordships’ House or anywhere else ever heard any professional say that there are benefits to care which is not integrated? Yet that is what we continue to deliver and there seems little hope of the Bill in its current form rectifying and ensuring a joined-up approach. Indeed, I fear for the practice manager or the social worker who has to interpret the new diagrams of the system to an elderly and confused patient or client.

My noble friend quoted the Health Select Committee, which said:

“Although the Government has ‘signed up’ to the idea of integration, little action has taken place to date. The Committee does not believe the proposals in the Health and Social Care Bill will simplify the process”.

The committee further said that the reforms in the Bill were built on the hope that GPs, hospitals and local authorities will respond to payments for working together. These amendments are about more than hoping for the best. They make practical proposals, first, about defining integration which, as the Law Commission found, is not easy. It will surely not be difficult to agree, as the Law Commission did, around contributing to or promoting the well-being of the individual. That would cover not only health and social care but housing too. That separation, as your Lordships are well aware, has always been a problem.

The proposals about annual reporting and business planning to check progress are also very practical and taking into account the levels of integration in setting tariffs is also very important. It is of the utmost importance that we take the opportunity given by the Bill to move the reality of integration forward in a way which will make a radical difference. The benefits to the patient, the client and the carer are obvious but there are benefits to the community and society which are similarly significant, since integration clearly delivers more effective and efficient care. There is lots of research evidence about this. For example, Turning Point identified that for every £1 spent on integrating health, housing and social care, £2.65 was saved. This is not only better for patients but provides better value for money. What is not to like in these amendments? I hope the Government will accept them.

[Lord Mawhinney]

My Lords, it would be very courageous for anyone in your Lordships’ House to argue that there was no benefit to the patient in trying to have as integrated a service as possible. I am not that courageous. It is a good place to start. Having said that, I do not believe that these amendments are the answer or that they move forward the argument for integration. I searched through these proposed new clauses and I find no mention of any legal responsibility on the local authority, the social care agencies or anyone else. They are entirely directed to health bodies. That imbalance struck me as being a pretty poor starting point if you are genuinely interested in trying to produce integrated services.

Your Lordships will know that, even before the introduction of the Bill, there were various attempts to integrate services in various parts of the country. I happen to be a reasonably well-informed individual in respect of one of those attempts. It is one thing to say to the PCT, the cluster, or whatever is the latest development in that area that it has responsibilities to integrate with the local authority, just as it will be a different thing to say that a local commissioning group has to integrate with the local authority if some attempt is being made legally to define the role of the health component but there is no commensurate attempt to deal with the legal framework with regard to the providers of social care. I know of one example of attempted integration in this country that is foundering because the health component is seeking to shift its deficit on to the local authority. Sometimes the quality of those who serve in one is so different from the quality of those who serve in the other that no right-minded person who was dealing with his or her own money would invest in a partnership that was as skewed as those that exist up and down the country.

I started where I did because I do not wish to be interpreted as being against useful, appropriate and constructive forms of integrated provision. I have taken a view throughout the Bill that it ought to be for the benefit of the patient. It would be courageous to suggest that some appropriate form of integration would not be of benefit to the patient. However, these skewed and flawed amendments are not helpful and certainly do not beat a path to the future for the benefit of patients.

[Baroness Young of Old Scone]

My Lords, I rise to support Amendment 38C and to disagree violently with the noble Lord, Lord Mawhinney. I think that the importance of integration applies not just between health and social care but also within health services. We have to start somewhere, and the Bill before us gives us the opportunity—now, today—to start with the important new bodies that will come into existence on the health service side of the partnership. It is fundamental and vital that they are properly tasked with responsibility for integration. Let me explain why.

I hope that many noble Lords listened last week to the interesting and powerful “File on 4” programme on the dreadful condition, in terms of lack of integration, of our diabetes services. Diabetes is a long-term condition and those who have it require each year that about 15 essential and different services are clustered around them in an integrated way; otherwise they run a high risk of suffering premature death or horrific and expensive complications. I emphasise the word expensive because those complications can include kidney failure, blindness and amputation, which are hugely expensive for the National Health Service to treat and could, at the current rate of increase in diabetes, financially wreck the NHS. I hope that at least some noble Lords heard that programme because it demonstrated that integration between health and social care and within healthcare is vital for long-term conditions—not just for diabetes but for other long-term conditions as well.

This is a disputed figure, but it is thought that long-term conditions now take up somewhere between 60 and 70 per cent of the NHS budget. If the Bill is about the future provision of healthcare in this country and how healthcare needs to be joined up internally and with social care, it will have to address that 60 or 70 per cent of NHS expenditure that relates to long-term conditions. Therefore, it is pretty important that the new institutions of the NHS Commissioning Board, the clinical commissioning groups and Monitor are clearly now tasked—while we have the opportunity to influence them—with incorporating integration into their annual plans and with reporting annually on how they have got on with fulfilling this obligation and important duty. I do not think it is too much to ask; I think it is pretty important. I hope the Minister will agree.

Monitor will also have a crucial role in the development of tariffs. At the moment we have tariffs which, unless properly constructed, get in the way of integration: they form a barrier to putting together sensible packages of services. In a competitive environment, that will be even more so. It is fundamental that tariffs are constructed in a way that supports the important integration—and I am not going to apologise for repeating this—which if not delivered results in premature deaths and horrific complications. I hope that the Minister will take this point and support the amendment.

17:30

[Baroness Wall of New Barnet]

My Lords, I, too, support the amendment. I want to focus particularly on integration in terms of what is provided by an acute hospital, compared with what is provided in the community. The noble Earl will know how many times I have spoken about how important and welcome it is that—as my noble friend Lady Pitkeathley said—the Bill includes social care and the patient pathway. However, the patient pathway does not and will not happen for the very reasons that this amendment identifies. It does not happen because of the integration described in the patient pathway, all parts of which patients are attached to, and all parts of which the providers of care try to work to. It will not happen unless the commissioners ensure two things. First, the tariff must make it happen. A tariff must be developed which says that this should be done somewhere else and we must say what the tariff measurement will be. Secondly, they must account for it. We know that while very often commissioners—certainly in the clusters that I am involved with in north-central London—try hard to prevent patients from going to hospital and to prevent repeat visits to hospital, in reality it does not work.

I am very supportive of this part of this Bill, and very keen on the integrated elements, not just with the local authorities—as has been said—but also within the health provision itself, because it is not happening now. These amendments address just that. Can we please hear from the Minister that he understands that the only way for people to be treated nearer to home is by addressing what the tariff is and how we measure it, as well as through accountability of both of the Commissioning Board and Monitor to ensure that this happens? Even in well intentioned trusts, it does not happen because there is nothing in place to make it happen.

[Lord Sutherland of Houndwood]

My Lords, I support the amendment for three reasons. First, were it to be implemented, the effectiveness of the care provided would be magnified and significantly improved for every individual involved. Secondly, there would be better value for money. Whether we like it or not, the two professions fight with each other over budget: that is the reality. Unless they are pushed towards talking to each other seriously—which this amendment does—that will continue, and we will have the consequence of expensive hospital care militating against the provision of adequate home care. Thirdly, human beings are individuals. Over time especially, they have a number of ailments that need to be seen together, and they need to be treated as individuals. An individual does not break up into bits, going to one institution for part of his or her care and to a second institution for another part. There is a real difficulty here. Previous research shows very clearly that trying to put a dividing line between health and social care does not work.

We hear statements implying that it is going to be really quite difficult. This is not rocket science. It must be based on two professions coming together. This is being done in Scotland at the moment, and they have found ways to move ahead. I understand that there are pilots going on in England at the moment sponsored by the department, and I look forward with great interest to seeing what comes out of these. However, there is a lacuna in the Bill regarding how health and social care integrate. As long as this is so, the amendment would push things forward significantly.

[Lord Turnberg]

My Lords, we have heard that integrated care means different things to different people. As far these amendments are concerned—including the one to which my name is attached—the focus is on the integration of hospital care, NHS care and social care. Almost since its inception, the biggest problem for the NHS has been the division between health and social services; the division between funding—which of course drives everything—and management.

Acute services have always been the focus of most NHS funding. One might expect me to say, as a former acute care physician, that that is entirely appropriate. However, it has always been clear that this division, with different funding streams, has led to dreadful miscommunication between two sets of staff working under quite different systems, who fail to talk to each other in anything like a timely manner.

The end result is well rehearsed. Patients who would have been much better cared for at home—or in a nursing home if one were available and if someone could have made a proper assessment—finish up in an acute hospital which is poorly designed to provide the sort of care that they really need. On the other side, patients—usually elderly—are admitted to hospital for entirely appropriate reasons, but linger there well after their acute need has been sorted out. Clearly, if we had common funding of health and social services, we could see people employed across this divide. That is what we need: people with a foot in both camps. I take the point made by the noble Lord, Lord Mawhinney, that it takes two to tango—it takes both the heath service and local authorities, and they do not tango terribly well. While we do not have common funding, however, at least we can work towards it. Here we have an opportunity to emphasise the duty that should be placed on the NHS, for one, to ensure integration at this level. This is of such importance for patients that we should emphasise it at the least in this relatively minor way here.

[Lord Newton of Braintree]

My Lords, I support—with some trepidation—what my noble friend Lord Mawhinney has said, and I pick up the point about it taking two to tango. I yield to nobody in my support for integrated services. I heard what the noble Baroness, Lady Young—a person with whom I go back a long way—said about diabetes, and I do not disagree with it. I do not disagree with what the noble Baroness, Lady Pitkeathley—with whom I go back even further I think—said, presumably arising from her experience as part of Age Concern. The question is whether this amendment does it, or whether in fact it contains things which will make it more difficult. As the noble Lord, Lord Turnberg, said, it takes two to tango. As I read it, every responsibility here is laid on health service bodies, not local authority or social service bodies. If we are to go down this sort of path, we need to lay equal obligations on both.

However, the issue goes beyond that. It should be recognised that one of the most difficult or most needy areas in this field is mental health, which I know something about even though I no longer have a direct interest. With mental health there is a need for co-operation not just between the various statutory authorities—indeed, many mental health trusts are partnership trusts with the local social services department and have made significant progress, as was true of the one with which I was involved until January—but with voluntary organisations. Where are they covered in all this? I had a difficult case in a mental health trust that I chaired 10 or 15 years ago. Nobody in any statutory service, whether local authority or health, had known that the patient in question was undergoing anger management courses paid for privately, and that caused problems. Last weekend, I was talking to someone in Braintree who is interested in the Rethink Mental Illness charity and is trying to build up the local Rethink art therapy classes, for which he thinks he has acquired a building. That, too, ought to be integrated with the services provided by the mainstream.

I do not believe that this amendment, however valuable it is and however worthy its objective, will achieve that objective without a great deal more sophistication. Personally I would rather leave it to the Minister and his department to issue guidance and apply pressure in rather different ways to produce the integration that we all want. At any rate, I look forward to what the Minister has to say. He may draw more encouragement than usual from some of my remarks and I might even vote with him if it comes to that.

[Lord Warner]

Before the noble Lord sits down, perhaps I may ask him and his noble friend behind him whether they have seen Amendment 161A, which would introduce a new clause on standards of adult social care.

[Baroness Northover]

My Lords, perhaps I may remind noble Lords that we are at Report stage. According to my note, only the mover of an amendment or the Lord in charge of the Bill can interrupt with short questions.

[Lord Warner]

I am the mover of the amendment and I was interrupting with a short question to the noble Lords, who seem to be unaware of a part of the Bill which addresses their concern. Before I was interrupted, I was going to ask them whether they had seen Amendment 161A, which says that the duty would enable the Secretary of State to address the issue of reducing,

“barriers to the delivery of integrated health and adult social care”,

and give him powers to produce regulations to deal with that. Therefore, we will be coming to an amendment which, if agreed, will enable their concerns to be addressed.

[Lord Newton of Braintree]

Perhaps I may respond to the noble Lord from a sedentary position. I was aware of that but, to be honest, I think that we need a coherent single approach.

[Baroness Armstrong of Hill Top]

My Lords, this debate has been very interesting. I agree with the last comment of the noble Lord, Lord Newton: we need an integrated approach. I support the amendment but I do so with deep frustration. The truth is that the Bill is inadequate and contradictory, and it starts from the wrong place. What everybody wants from the Bill is an answer to the question, “How do we reform the National Health Service now to deal with the starkest view that is facing us in terms of increased numbers of people with long-term conditions?”. The past success of the health service is now keeping many more people alive and many of them will have long-term conditions for much longer. That is the single thing with which the National Health Service is going to have to deal with much more skill and integration than ever before, but the Bill makes it very difficult to do that. The noble Lords, Lord Mawhinney and Lord Newton, have made that point for us, so I shall not go on with it. We need a Bill which understands where the National Health Service needs to go and what we need to do to reform our services so that patients get the very best outcome in the most cost-effective way, given what is and will be going on in our economy for a long time to come. However, this chaotic Bill will not do that.

17:45

[Baroness Jolly]

My Lords, I shall not repeat the many arguments that have been eloquently put this afternoon but it is just worth reflecting, as several noble Lords have already done, that integration is not new. Pooled budgets are not new. Torbay has tried to look at integration as a whole-system approach. My noble friend Lord Newton spoke about mental health integration, which occurs for some conditions in some areas. Therefore, integration is not new. The evidence that it is hugely beneficial is legion. That fact is evidence-based. Not only is integrated working better for people but it makes them better quicker and more effectively. However, integration is not universal. When I read through the Bill, I, like the noble Baroness, Lady Pitkeathley, was delighted to see that there was a duty on both the board and clinical commissioning groups to promote integration. That is good news but in a sense we are trying to use legislation to change culture. That is what it is all about. We have spoken about cultural change, and we have to put together two organisations that are not well used to working together. They jolly well should be but they are not. Therefore, we welcome what is in the Bill, although clearly more needs to be done.

I am quite surprised that the areas highlighted in the amendment would not form part of a regular reporting system, which is what is being called for. We would expect the board to take a lead on the mandate and the business plan. I should have thought that the board, the clinical commissioning groups and the Secretary of State would be expected to report on the status and progress of integration across the whole system. I should be very interested to hear from the Minister how this is expected to happen. Will he indicate how the reporting would function on an annual basis and whether the mandate and annual plan would be used in the way suggested in the amendment?

[Lord Owen]

My Lords, I rise to speak because I am a little troubled. It looks as though the Minister will object to this amendment. Of course, we are speaking in advance of knowing what he is going to do but I should like to give two or three reasons why I very much hope that he accepts the amendment.

First, using the term “social care” in the Bill means that expectations will rise. Those expectations have not been fulfilled and, to be honest, they could not have been. Nevertheless, it was a good idea to try to point to the fact that this was about more than NHS care or healthcare. We all know—it has been said many times in our debates—that there is no way that we can look at the narrow definition of the health service; it has to be broader.

The other powerful argument which I thought the noble Baroness was going to make is that this is a cultural change, and that needs to be re-emphasised at every stage as part of an educative process. Let us take the national Commissioning Board. This is a new body and the person who has been appointed to chair it is an academic lawyer—a person of great distinction. I am not objecting to the fact that it may be somebody with not very long experience of the health service. Nevertheless, a lot of hopes are vested in that Commissioning Board and to draw attention to it in a more declaratory way in this Bill is very important. It needs to know and see in clear terms in the Bill that this is part of its remit. I take great notice of what has been said about the reluctance of local authorities to respond to this. Were we having a debate involving local authority services, I would raise that, too. For a very long time I have believed that in the 1948 Act a great mistake was made in not pooling together local authority health services and welfare and social services in a comprehensive package. As everybody knows, there was a very deep debate inside the then Labour Government between Herbert Morrison and Aneurin Bevan.

There is also another debate about decentralisation and centralisation. That has been with us all these years. In the very early 1960s I wrote a book about a unified health service. When I was a Minister, there was a great deal of animosity within the medical profession at the thought of working closely with local authorities. It is amazing how that has changed. There is now a readiness in the medical profession in particular—nurses have always done it—to work across these things. I shall make no more points, but I hope that the Minister will accept this amendment. With all the reservations that have been put down, nobody should believe that this legislation will have a very big impact on social care anyhow, but pointing it in the right direction at this moment would be helpful.

[Baroness Hollins]

The amendments have particular relevance to mental health and learning disability services. In speaking in this debate, I declare an interest as a past president of the Royal College of Psychiatrists. I shall focus my comments on commissioning integrated care.

I remember that in the early 1980s, when I was newly a consultant, we had jointly commissioned services. They worked effectively and provided a very accessible way of developing integrated services. I shall talk briefly about the work that the Royal College of Psychiatrists has already done to support integrated commissioning since the Bill was first mooted. The joint commissioning panel on mental health was launched in April 2011. It is led by the Royal College of Psychiatrists and the Royal College of General Practitioners. It is a collaboration of 15 other leading organisations, service users and carers with an interest in mental health, learning disabilities and well-being across health and social care. It draws on expertise from across the statutory, voluntary and private sectors.

It has already produced guides on primary mental health care and liaison mental health services, which is relevant to the comments of my noble friend Lady Young about integrated care for people with diabetes. My interest here is integrating mental health care into the diabetes pathway. The panel is working on both commissioning guidance: on what is needed; and on practical commissioning tools—how to do it. The practical how-to-do-it tools have been developed with strategic health authorities, thus providing important support to the emerging and new NHS structures. They will be ready in 2013.

The joint commissioning panel on mental health is an example of an existing strong and practical partnership, which brings together the whole mental health sector with government to develop and implement integrated high-quality care and interventions. Incidentally, it is hard to understand why professional organisations leading this work were excluded from the Prime Minister’s recent summit on implementation, given this real focus on that issue. Mental health can so easily be forgotten along with other complex services when physicians, surgeons and politicians are debating health rather than mental and physical health. I am interested to know the Minister’s views on whether this cultural change needs to be in legislation. Some of the experience gained in jointly commissioning mental health services provides very good learning for services traditionally seen as providing stand-alone health episodes—good learning that could be used to develop integrated services in other areas of healthcare.

[The Earl of Listowel]

In rising briefly in support of the amendments, I pay tribute to the Government for their contribution in this area already. This is a personal view, but in my experience the best professionals will find a way through against all odds and against the system to work together in partnership to improve outcomes. What the Government have been doing with the social work workforce in terms of raising the threshold of entry to social work, the additional support for newly qualified social workers and the review by Professor Eileen Munro on child and family social workers is a welcome part to this. I hear again and again from people on the front line that an obstacle to integration is continual structural change. When disciplines have stability and can grow together they can learn to work in partnership effectively. Finally, I welcome the building of capacity in the social work workforce, which will assist with the question of better integrated working.

[Baroness Howarth of Breckland]

My Lords, I want to speak briefly, not having spoken earlier. In answer to a Question from the noble Lord, Lord Walton, earlier in the day, the Minister talked about his great belief in the integration of services. Indeed, he talked about health and social care services in relation to people with neurological diseases. I have no doubt that the Minister and, I am sure, the Government have a great belief in integration. The problem is that it is in the “too difficult” box. Whenever we hear discussions about how we will make a start on the problem, there are real questions about how, about when, about the costs, about which particular authority, and so on. We had a demonstration earlier of the way in which different parts of the organisation—the health service and the local authority—can be set against each other in terms of the working together that they need to do.

I declare an interest as I am involved in a number of charities that have a health focus—a large number of very good partnerships of health and social care working together. I shall describe one briefly simply because I think it is helpful to have an example. It is a brain injury unit in Suffolk where the health services and a voluntary organisation with social care work in a pioneering way to ensure that people can return to the community instead of being hospitalised or unable to communicate with their families in any way. That kind of work is going on and I know that there are other pilots up and down the country looking at how financial services can be brought together.

I come back to a point that I was making at the beginning, which is that the too-difficult box means that there is a need to find a place to start. I do not know whether the Minister believes that this amendment, with Amendment 161A—it is important to look at them together as they give a balance of health and social care—sees them as the way of making a start. If not, I ask him the very pointed question: when will the Government start? Why is this called the Health and Social Care Bill because, as was said previously, expectations were raised enormously in those who receive social care services? In what way will the Government take the whole plan forward? I know that they have promised a Green Paper, a White Paper and to take things forward, but if we do not have a clear picture, the amendment itself will not help. It alone cannot bring about what people have been discussing, which is the culture change.

Those of us who have been involved in these services for 50 years and more—many who have already spoken can, unfortunately, claim that—have lived with these differences. They have had a profound effect on people’s lives, as the noble Lord, Lord Sutherland, said. We have experienced them personally because we have had families going through the services, and we have seen them professionally with patient clients. The other thing I rather worry about is the medicalisation of everybody in this because people who want social care do not necessarily want medicalised social care; they want medical care when they need it.

I am really asking the Minister, so I can think about whether I support these amendments: what is the alternative to ensure absolutely that the Government move forward in a proper programme that brings integration in health and social care to the benefit of every individual patient who needs that sort of care?

18:00

[Baroness Masham of Ilton]

My Lords, I would like to ask the movers of the amendment a question just for my own concern. Health is free at the point of delivery so there should be no problem with integration between primary and secondary care. However, this is not the case in social care as there is means testing. How does this affect integration?

[Baroness Thornton]

My Lords, I am not going to attempt to answer the noble Baroness’s question. I shall leave that for my noble friend Lord Warner or the noble Lord, Lord Patel. The noble Lord, Lord Patel, and my noble friends Lord Warner, Lady Pitkeathley and Lord Turnberg made a very good job of introducing these amendments, stressing the importance of joint commissioning, the work of the Health Select Committee in the Commons and its recommendations, and indeed the vital nature of tariff reform. This is a modest but very important amendment that strengthens the Bill.

Every time we meet on Report on this Bill we are in a different world. The world we are in today is not the same one we were in 10 days ago. As we speak, the Royal College of Physicians has decided by a majority of 80 per cent to ballot its members about how they feel about the Health and Social Care Bill. By my counting that leaves only two royal colleges which have not consulted their membership so far. We all know what the results of the consultations have been, but still we plough on with this Bill.

The remarks of the noble Lords, Lord Mawhinney and Lord Newton, and the noble Baroness, Lady Jolly, together underline the defects of this Bill. Why are we having a debate about integration at this point in the passage of this Bill? It occurred to me that perhaps those debates should have been had before we had the Bill. However, because you cannot achieve everything does not mean that you should not try to achieve something. That is what these amendments do and that is why we on these Benches are very keen to support them. It seems to me that through all the many definitions of integration that we have discussed in this House, the one that is going to have the most effect on budget and finance is in these amendments here before us today. I hope the Minister will accept these amendments because they will improve this Bill.

[Earl Howe]

My Lords, integration has been a consistent theme throughout our debates on the Bill and the noble Lord, Lord Warner has made a number of highly informed speeches on this topic, as indeed have many in your Lordships’ House. The noble Lord, Lord Warner, made a powerful case for taking action for further integration. There is no disagreement between us on this. It is why the Government have already taken a number of steps to do precisely what he is asking and I name a selection only. We have put duties on commissioners to promote integration. We are creating health and well-being boards, bringing together health and social care commissioners and their representatives—one of the main manifestations of joined-up thinking in this Bill. We are strengthening the duties in relation to pooled budgets. We are placing specific duties on Monitor to support integration and tabling an amendment prior to Report giving Monitor express power to do that. We are working with the Future Forum, the King’s Fund and the Nuffield Trust in a whole range of non-legislative measures. This is not as the noble Baroness, Lady Howarth, put it, something the Government have put into the “too difficult” box. We are determined that we need to tackle this. I hope no one in your Lordships’ House is left in any doubt about our commitment in this area.

There are numerous examples of the non-legislative things we are already doing. We agreed with the Future Forum’s recommendations that the board should produce commissioning guidance for CCGs that focuses on how to meet the needs of different groups of people who may have multiple problems such as the frail elderly. By April 2012 the department will put in place new metrics that bring together existing data on patients’ experiences at the interface between services. We are working with the NHS Institute for Innovation and Improvement to identify and spread examples of good practice in local measurement and improvement of pathways of care. Through the NHS operating framework for 2012-13 we are asking all PCTs to work with their local authority partners to look at how integration can be better achieved. I have a whole string of other examples.

As I have said, the commitment of the Government in this area should not be doubted. I was very pleased to see the King’s Fund and the Nuffield Trust in their report to the Future Forum recognising that,

“integrated care lies at the heart of”

this Bill,

“to put patients first, improve health outcomes and empower health professionals”.

That is exactly right. While there is clearly work to be done to make this a reality, the Bill will, for the first time, create duties for NHS bodies to promote and encourage the commissioning and provision of integrated services. It is a difficult concept to define. While the noble Lord, Lord Warner, is to be congratulated on the attempt he has made in his amendment, my fear is that the amendment will not actually take us very far. The precise term “integration” is used only in headings in the Bill and the concept of integration is applied in a number of different contexts so a fixed definition of this kind may not be appropriate in every case. It may be too narrow in some cases—some noble Lords have alluded to that point. It is also a somewhat circular definition, referring as it does to integration meaning the delivery of integrated care. That serves to illustrate the real difficulties with this approach.

I am not convinced that it is necessary to try to describe what integration means. Integration is a broad concept. It could encompass a range of measures. As the recent King’s Fund and Nuffield Trust report noted,

“integrated care means different things to different people. At its heart, it can be defined as an approach that seeks to improve the quality of care for individual patients, service users and carers by ensuring that services are well co-ordinated around their needs”.

Yes that is right and the duty on the board in new Section 13M is absolutely consistent with that approach.

We were very grateful to the Future Forum for its recent work on integrated care. We welcome its recommendation that the entire health and social care system should share a clear and common understanding of the value of integration as a means of putting patients at the centre of their care. However, it was also clear that rather than being an end in itself, integration is,

“a means to achieving better outcomes for people”.

That is surely right. There must be the scope for integration to be adaptable to the needs of local communities and individual patients. The noble Lord’s definition holds,

“improving the delivery of integrated care and treatment to individual patients”

as the objective in itself when improving outcomes and reducing inequalities should be the ultimate objectives.

Very recently, I was advised of a paper produced by the World Health Organization in 2008, Integrated Health Services - What and Why? It starts off by stating that integrated health services mean different things to different people. It lists a whole variety of interpretations of what integrated healthcare means and says that it is in essence very difficult to boil these things down to a definition that is going to please everybody. It also casts doubt—I do not want to make too much of it—on the empirical base for claiming that integration is the answer in every set of circumstances. In making that point, I do not want to imply that the Government are anything other than fully committed to integration, because we certainly are, but the paper’s conclusion is:

“‘Integration’ is used by different people to mean different things. Combined with the fact that this is an issue which arouses strong feelings, there is clearly much scope for misunderstanding and fruitless polarization”.

For the World Health Organization to come to that conclusion tells a story. In drafting the various duties and powers in relation to integration, we have consciously avoided a fixed definition to allow for a measure of flexibility and innovative thinking. We have focused on the purpose—the “why” rather than the “how”.

I recently met front-line staff when I visited the NHS on the Isle of Wight to look at how they were delivering an efficient, integrated, urgent care service. I made a point of asking them whether they thought that a definition of integration in the Bill would be helpful. I received a resounding no in response. They felt that something like that would stifle their ability to apply fresh thinking and to come up with inventive solutions of their own as to how best to provide integrated care. We are clear that we should not put clinicians, who know the needs of their patients best, in a straitjacket by defining integration in the Bill.

Clearly, it will be important that the board and CCGs are held to account for delivering against these duties. They are already required to set out in their annual reports how they have exercised their functions, including how they have met the various duties placed on them.

Amendment 38C also makes particular reference to the board and Monitor developing tariffs that will support integration. On that point, I reassure the noble Lord that the duties on the board and Monitor to promote integration would apply in relation to their functions in relation to the tariff. The clauses on the tariff allow a high degree of flexibility for the board to adopt different approaches to tariffs, including “bundles” of services or pathways, and we are committed to extending these. They also allow scope for local flexibility in how the rules are applied where necessary. The noble Baroness, Lady Wall, provided considerable insight into what is needed here. Perhaps it would be helpful if I gave an example of a pathway tariff.

In 2012-13, we are introducing a “year of care” tariff for funding cystic fibrosis services, developed with the support of the Cystic Fibrosis Trust. This includes all the care for cystic fibrosis patients for a whole year. The price is broken down into different “bands”, depending on the complexity of the patient. The tariff will cover the care undertaken by specialist centres and local hospitals, but it will be paid only to the specialist centre thereby promoting better joint working between specialist centres and local hospitals. We are confident that the board, with support from Monitor, will continue to develop and increase the scope of bundled service tariffs where it is clear that tariff design of that kind is appropriate and will deliver benefits to the patient.

18:15

Under the proposed system, Monitor and the board will have to agree elements of the tariff with each other at all stages. The methodology would be subject to consultation and capable of independent review to ensure transparency and fairness. In addition, under Clause 119, the board and Monitor are specifically required, in developing standard specifications of services for the purposes of the national tariff, to have regard to whether this could have an adverse impact on the provision of services.

I hope that that provides sufficient reassurance to the noble Lord, Lord Warner, that the emphasis on integration is there, but that he will accept that trying to pin down in words what it should look like may be counterproductive. This is not an argument about the Government’s commitment to integration or what we are doing on the ground to achieve it; it is an argument about a specific mechanism designed to achieve it. I think that it is a mechanism that is ill-advised. I hope that the noble Lord will agree to withdraw his amendment.

[Lord Winston]

I have a short question for the Minister because I feel that it is an important issue. Perhaps I may very briefly tell him about something that I learnt of last week. A friend of mine went to a very famous ENT hospital after a month with a fractured nose—

[Noble Lords]

Order!

[Baroness Northover]

My Lords, the Minister has sat down, so it is for the mover of the amendment to respond.

[Lord Winston]

I am sure that the Minister will want to answer my question because it is not aggressive or political; it is really to find out how this Bill will work. When somebody goes to casualty after a month with a broken nose and complains, “Look, my main problem is the pain in my sinuses which I have had for a long time”, and is told by the doctor when they had already waited six hours, “I’m afraid the sinuses are a different department. You’ll have to make another appointment”, that is a problem with integration. How does the Minister think we might accomplish better integration with this Bill?

[Earl Howe]

It is a very interesting question from the noble Lord. When I visited Oldham a few weeks ago, I saw for myself how they were getting around that problem in the context of musculoskeletal services. Instead of patients being shunted from pillar to post, they had a system whereby the patient could move seamlessly and immediately from one specialist to another. They did not have to be referred; they could ring up the centre and ask to see a particular person. That is the kind of integrated model that we need to see rolled out more generally in other services. I recognise the issue that the noble Lord raises, but it is one that we are seeing inventive solutions arising to address. I hope that the work being done will do that.

[Lord Warner]

My Lords, there have been some extremely powerful speeches of support for this amendment for which I am extremely grateful. I am grateful in particular to my co-signatories and I noted the powerful speeches of the noble Lords, Lord Owen and Lord Sutherland, and the noble Baroness, Lady Young. They have made the case for an amendment of this kind to the Bill.

I was disappointed by the Minister’s response. That was not just because I got only a B- for my definition—I expected to have my homework marked by officials in the Department of Health and was not expecting to get a high score—but because I think that the definition meets the needs that we have. I find it very difficult to see how the Minister can stand up and say, “Well, we’re going hold people to account; we’re going to monitor their performance”, if we do not have a definition against which we are going to monitor their performance.

The definition proposed by the amendment moves us away from a preoccupation with integration as organisation and process change to delivery of services to the individual. I do not see how the Minister can say, “We’re concerned about outcomes for individuals”, if we do not integrate delivery. You are highly unlikely, I would say as a jobbing ex-public sector manager, to get good outcomes if you have not orchestrated the delivery of the services to the individual that meets their needs.

[Earl Howe]

I would not want the noble Lord to believe that I was dismissive of the point that he has just made. I recognise that it is important that we somehow give the meaning of integration a clearer explanation, whether that is through the guidance issued by the board or, indeed, the Explanatory Notes to the Bill. I am just wary of putting something in the Bill. That is all.

[Lord Warner]

I guess I am more of a risk taker than the noble Earl and I believe that we could put a definition of this kind in the Bill. It would cause no confusion—indeed, it would remove it—in the minds of many people working day in, day out in the NHS. As to those who have asked, “What is the purpose of some of the other changes?”, the noble Lord, Lord Owen, powerfully made the point that we need to give strong signals to these new players in the game. We want them to start off knowing that they will be held to account in their annual reports for monitoring their progress on integration. We want that: it is deliberate. We want them to know that Parliament put that in the Bill for a purpose. I am not satisfied with the Government’s response and I beg leave to test the opinion of the House.

18:21

Division 2

Ayes: 206

---

Labour: 158
Crossbench: 36
Independent: 2
Democratic Unionist Party: 1
Ulster Unionist Party: 1
Plaid Cymru: 1

Noes: 227

---

Conservative: 137
Liberal Democrat: 68
Crossbench: 17
Bishops: 2
Ulster Unionist Party: 1

18:33

Clause 20 : Functions of Special Health Authorities

Amendments 39 and 40

Moved by

[Earl Howe]

39: Clause 20, page 15, line 10, at end insert—
“( ) Subsection (1) does not apply to any function of the Secretary of State of making an order or regulations.”

40: Clause 20, page 15, line 22, at end insert—
“(6) In section 273 of that Act (further provision about orders and directions), in subsection (4)(b)—
(a) before paragraph (i) insert—“(zi) section 7 about a function of a person other than the Secretary of State,” and(b) in paragraph (i) after “a function” insert “of the Secretary of State”.”

Amendments 39 and 40 agreed.

Clause 22 : The NHS Commissioning Board: further provision

Amendment 41 not moved.

Amendment 42

Moved by

[Lord Warner]

42: Clause 22, page 16, line 22, after “appropriate” insert—
“( ) the priority and scope for commissioning service redesign and reconfiguration in the light of the best clinical advice available,( ) the priority and scope for transferring resources to adult social services to improve service integration and achieve best value for health services,”

[Lord Warner]

My Lords, so near, yet so far. Amendment 42 is very simple. It requires the Secretary of State to include in his mandate to the national Commissioning Board the requirement to set out two things. First,

“the priority and scope for … service redesign and reconfiguration”,

in the NHS,

“in the light of the best clinical advice available”,

and secondly,

“the priority and scope for transferring resources to adult social services to improve service integration and achieve best value for health services”.

These are two big issues for the NHS and how it meets the Nicholson challenge of £20 billion of savings by 2015 and how it improves service integration. The proposals in this amendment are very much in line with the recommendations of the Health Select Committee in its two recent reports on public expenditure and social care, which were mentioned on the last group of amendments. As the Public Expenditure report said on page 30:

“The Nicholson Challenge can only be achieved through a wide process of service redesign on both a small and large scale”.

It went on to say,

“we are concerned that savings are being made through ‘salami-slicing’ existing processes instead of rethinking and redesigning the way services are delivered”.

Since I put this amendment down, I am pleased to say that the Minister has responded in a most constructive way. On the first part of the amendment, regarding service reconfiguration, he has entered into most constructive discussions on this issue and the related Amendment 217 in my name and the names of the noble Lord, Lord Patel, and the noble Baroness, Lady Williams, regarding a pre-failure regime. The Minister has undertaken to have an alternative to that amendment prepared before Third Reading. I would be glad to hear more today on how that work is progressing.

On the second prong of the amendment, the Minister has had prepared an alternative approach for transferring money from the NHS to adult social care by amending Schedule 4. This gives the Secretary of State power to direct the board to make payments for community services, which, I understand, include adult social care. This is Amendment 148B, in the name of the noble Baroness, Lady Murphy. It would have been in my name as well if I had not been dallying in India when the noble Earl wanted to discuss it with me. I am very supportive of that amendment on the assumption that, as drafted, it is wide enough to cover adult social care, because that term is not mentioned specifically, and on the assumption that there are no vires issues with the Treasury on the matter of using NHS money for social care. Perhaps the Minister could provide some assurances on this when he responds.

These issues are important for the NHS and for patients in the particular financial and demographic challenges that services face. I am pleased with the Government’s constructive response. In the mean time, in order that we may debate these issues, I beg to move Amendment 42.

[Baroness Murphy]

My Lords, I will interject here with regard to my amendment to Schedule 4, tabled as Amendment 148B in the supplementary hymn sheet. First of all, I thank the Minister very much for the discussions that I had with him and the Bill team last week. As a result, I tabled this amendment. Unfortunately, I omitted to let the Whips’ Office know that it was to be discussed with Amendment 42, otherwise they could have been tabled together.

As I understand it, the important thing about this amendment is that it addresses the issues that we have just spent another hour discussing of how in practice you get money flowing from health to social care, and how you promote integration of services through some practical mechanisms on the ground. Over the last 60 years, there has been too much money held in the NHS—I say this as a health service person—when it should have been better transferred in to social care services to support people with long-term conditions. It has been extremely difficult to get mechanisms that work well. The importance of this is that we do not have to have it repeated in the mandate, which was in the amendment tabled by the noble Lord, Lord Warner. I was very supportive of that, but it is much more flexible to have it as the Secretary of State’s direction. It also covers wider organisations than adult social care, although we expect that to be the main route to which the Secretary of State would wish to ask for moneys to be transferred. My amendment is slightly superior in that respect to the amendment proposed by the noble Lord, Lord Warner. However, it does not address the most important issue that the noble Lord brought up in the first part of our amendment—that of the reconfiguration of services and how you can prepare and work towards dealing with issues around failing organisations and services. I know that, as the noble Lord said, the Minister has been looking at that issue and may be able to come back to us with some mechanisms for that—but on this one I wish to speak in support of my Amendment 148B, which addresses the Secretary of State’s direction in Schedule 4.

[Lord Patel]

My Lords, I have added my name under that of the noble Lord, Lord Warner, and I would also have supported Amendment 148B under the name of the noble Baroness, Lady Murphy, if I had not been in India at the same time—not, I hasten to add, with the noble Lord, Lord Warner.

I merely wish to speak about reconfiguring hospital services. It is quite clear that in the long term demographic changes and the shifting burden of disease require a fundamental shift away from acute care in hospitals to supporting people with long-term conditions in the community. The recent financial pressures and shortages among some parts of the workforce and the need to improve quality and safety mean that changes to hospital services in some parts of the country are already a necessity. The Government have argued that service change should be locally led. In Committee, the Minister stated that,

“we should be cautious about any process that would significantly weaken both local commissioner autonomy and public engagement”.—[Official Report, 13/12/11; col. 1271.]

I agree that clinicians and local communities must be fully engaged in the process of service change. However, local involvement and strategic leadership are not mutually exclusive. For example, the reorganisation of the successful stroke services in London proceeded with strong support from clinicians and the public. It is not clear how strategic reconfigurations of specialist services will be led. Again in Committee, the Minister stressed that the NHS Commissioning Board,

“will be able to support clinical commissioning groups by providing support and advising on the possible effects of larger changes”.—[Official Report, 22/11/11; col. 1046.]

A recently released paper outlining the design of the NHS Commissioning Board confirmed that involvement in large-scale reconfigurations will be one of the functions of the four regional sectors that will be established as part of the board. But I am not too sure whether the NHS Commissioning Board has the necessary capacity or experience to do that. The lack of clear responsibility for driving forward strategic reconfigurations of services is the most significant omission from the Bill. We need a clearer explanation about how these reconfigurations will be taken forward under the new arrangements, otherwise the risk is that the NHS will not be equipped to meet one of the bigger challenges, as is necessary to reconfigure some of the acute services.

18:45

[Lord Rea]

Would the Minister look at the experiment mentioned by the noble Baroness, Lady Jolly, in Torbay, where there has been considerable merging of health budgets and social services? That was locally led, but would it not have helped to spread it further with an amendment such as this in place, so that it could be encouraged from the centre?

[Baroness Thornton]

My Lords, I support these amendments, and I do so because I agree with the noble Lord, Lord Patel, that there was a grave omission from the Bill that would allow strategic reconfigurations to take place that are not based on failing institutions. It was certainly not clear to us—and I rest on the authority of my noble friend Lord Warner on this—how, with the abolition of the SHAs from April 2013, strategic reconfiguration of specialist services would take place. Ministers have said, “Oh no—it’s all going to be okay”, but they have not explained how you would reconfigure the stroke services in London, as the noble Lord, Lord Patel, said, after the abolition of the strategic health authority. We support the amendments and hope that the Minister will do so as well.

[Earl Howe]

My Lords, we have had several lively debates on the importance of redesigning services if the NHS is to become more personalised and productive, and the noble Lord, Lord Warner, speaks with great insight and passion on this issue. He has tabled further amendments on this topic, which we will have an opportunity to debate in detail at a later stage.

The Government are clear that, as a basic principle, the reconfiguration of services is a matter for the local NHS and that decisions about service change should be driven by local assessment of need. The reconfiguration of services works best when there is a partnership approach between the NHS, local government and the public. What matters is that strategic decisions are taken at the right level. We believe that our reforms will enable commissioners to make the changes that will deliver real improvements in outcomes for patients and the public. The Bill places clear duties on the Commissioning Board and clinical commissioning groups, which will underpin a locally driven approach to service redesign, clinically based and framed around the needs of patients. That includes duties to promote the NHS constitution and the involvement of patients as well as duties to secure continuous improvement in the quality of services and to reduce inequalities. These duties set important guiding principles against which the commissioning system will develop and oversee service redesign and reconfiguration. In addition, the NHS will continue to assure reconfiguration proposals against the four clear tests set by the Secretary of State, which are that proposals should have support from clinical commissioners; should be based on robust patient and public engagement; should be underpinned by a clear evidence base; and should be consistent with current and prospective plans for patient choice. The Bill and the four tests will ensure that any proposals for service change are based on a thorough assessment of local need, underpinned by clinical insight and developed through dialogue between commissioners, providers, local authorities, patients and the public. Of course, the board will have an important role in providing support and assurance to local commissioners, but we will not be replicating layers of top-down management.

With the clear legal duties set out in the Bill, the four tests and the support and assurance that will be available, there should be no need for the Secretary of State to prescribe through the mandate how the commissioning system should prioritise and determine the design of services. To do so would cut right across the clinically led local commissioning, which is at the heart of the Bill. Nevertheless, I recognise the importance of getting these arrangements right, and between now and Third Reading I commit to working with the noble Lord with a view to finding a formula designed to address the concerns that he has articulated. We are looking at a range of options. I hope to be able to say more about this when we reach his later amendment on the subject. I hope that for now he will find this rather broad assurance sufficiently strong to enable him to withdraw that part of the amendment.

I hope that the noble Lord will be able to withdraw the rest of Amendment 42 as well, because it also raises another issue. It is vital, especially in the current economic climate, for the NHS to provide financial support for adult social services where possible in relation to those services at the interface between health and social care. Here, I pay tribute to the noble Lord, Lord Warner, who has been a tireless advocate of social care at numerous stages of our proceedings, to ensure that this element of the equation—and that part of the Bill’s title—is not overlooked.

The noble Baroness, Lady Murphy, has tabled Amendment 148B with a similar aim in mind. We are all, I think, aware of the impact that such services can have in helping people to live independently in their own homes and in reducing unnecessary hospital admissions—which is, of course, better for the individuals involved and relieves pressures on the NHS. The last spending review included a commitment to provide £648 million in 2011-12, rising to £700 million by 2014-15, for these purposes. Early indications are that this funding has helped to promote integrated working between social care and health commissioners. We want this to continue. I can reassure the noble Lord and the noble Baroness that by virtue of paragraph 130 of Schedule 4 to the Bill the NHS Commissioning Board and CCGs will inherit the powers that primary care trusts currently have under existing legislation to make payments to local authorities towards expenditure on community services.

Generally speaking, our approach in this Bill has been to give NHS commissioners maximum autonomy in how the NHS budget is used. However, I have sympathy for the argument that it is legitimate that the Secretary of State should be able to determine the proportion of NHS funding that is to be transferred to local authority community services in order to secure closer working between the NHS and social services. I am not sure that the mandate is the right vehicle for this. However, I can see very considerable merit in the approach that the noble Baroness has taken with Amendment 148B. This amendment would give the Secretary of State additional powers to direct the board on the minimum amount that it should transfer to local authorities in a given financial year. The Secretary of State would be able to specify in the directions the bodies to which those payments should be made, the amount that should be paid to each body and the functions in respect of which the payments must be made, and to amend these instructions if necessary. It would essentially enable the current arrangements to continue.

The noble Lord, Lord Warner, asked whether the amendment was wide enough to cover adult social care; whether it was within vires; and whether the Treasury is content. The answer to all those questions is yes. Indeed, I am advised that the amendment would enable funding to be transferred to other community services, such as housing, if necessary.

The approach taken is in line with current practice, which is approved by and agreed with the Treasury. Importantly, this would represent only a minimum. The board would retain the power to make additional payments over and above those required by the Secretary of State if it chose. The CCGs would also retain their powers to make such payments. Although I think it makes sense for it to be the NHS Commissioning Board that makes these payments, it would also be vital that there is a dialogue between local authorities and clinical commissioning groups as to how the funding could be best used. Of course, both will be involved, as members of health and well-being boards, in setting the strategic framework for health and social care commissioning through the joint health and well-being strategy. In addition, the existing powers in Section 256 for the Secretary of State to give directions on the conditions that should apply to such payments would apply. This is helpful because it would provide a mechanism for ensuring that the agreement of the health and well-being board is obtained as to how funds are spent.

The noble Lord, Lord Warner, has spoken with great conviction about the Bill’s importance, including the tangible duties to act to ensure that integration moves from being just an aim to being a reality—as, indeed, the Future Forum has emphasised that it must. I think that Amendment 148B meets all the criteria to ensure that that will be the case. I shall therefore be happy to support it if the noble Baroness should decide to move it. I hope that my noble friends will join me in supporting the amendment; I would urge them to do so. Given that commitment, I hope that the noble Lord, Lord Warner, will be prepared to withdraw Amendment 42.

[Lord Warner]

My Lords, I am grateful to the Minister for his explanations and reassurances. I certainly think that Amendment 148B is a better amendment than my provision on social care in Amendment 42. I am very happy also to accept his broad assurances that we will have a discussion and dialogue to see whether we can move forward on, in effect, a version of a pre-failure regime, while recognising the Government’s commitment to local decision-making on redesigning and reconfiguring services. On that basis, I am happy to withdraw the amendment.

Amendment 42 withdrawn.

Amendment 43 not moved.

Amendment 43A

Moved by

[Lord Kakkar]

43A: Clause 22, page 16, line 25, at end insert—
“( ) The mandate shall also require performance monitoring in primary care by the Board.”

[Lord Kakkar]

The amendments in this group all deal with the question of monitoring performance in primary care. The first amendment deals with the question of the Secretary of State providing, as part of the mandate, clear guidance on performance standards for primary care. The second amendment deals with the NHS Commissioning Board paying due attention to these standards and ensuring that data are collected with regard to performance in primary care. The final amendment deals with the role of clinical commissioning groups, with particular reference to assisting the NHS Commissioning Board in discharging those particular responsibilities.

At the very heart of the Bill is an important and much welcomed understanding that, to deal with the demographic challenges and the change in the nature of clinical practice that our society will face in the coming years, there needs to be a move away from managing patients with chronic diseases in the hospital environment and ensuring that they are managed in the community and primary care environment. This, of course, is welcome and is an important recognition of the changing nature of disease that we will face in terms of delivering good clinical care in achieving the best clinical outcomes.

There is no formal mechanism in the Bill as it currently stands to ensure that data on the performance of primary care practitioners are collected on a regular basis; that there is an absolute obligation, as part of the Secretary of State’s mandate, to adopt a clear primary care outcome framework; that that framework sets clear standards which need to be achieved in primary care; and that data on the achievement of those objectives are collected regularly and transparently to enable patients to understand whether their general practitioners are performing to the highest standard.

This is very important because, in hospital practice, there has been an emphasis on the collection of outcome data for some years, such that audit is an absolute obligation, particularly on those who work in craft specialities and undertake procedures that may be attended by poor outcomes. We also know that in acute services—such as those for patients with acute myocardial infarction and stroke managed in the hospital environment—there is an obligation to collect data on those outcomes, which are increasingly available to other clinical colleagues, to patients and the public. This helps in a broader and fuller understanding of the performance of acute care trusts. However, when it comes to performance in general practice, these data are not routinely available.

19:00

As more practice moves to the primary care environment, it will be increasingly important to ensure that when patients are managed for a much broader range of diseases and conditions in that environment, the outcomes achieved by those individual practices are both properly understood and monitored or reported in such a way that if services are commissioned in a primary rather than secondary care environment, those commissioning decisions are taken on the basis of objective outcome data. It is therefore essential that the mandate deals with the question of performance in primary care.

I know that, more broadly, the mandate will deal with the question and the obligation always to strive to improve the quality of care and, implicit in that, to achieve the very best clinical outcomes whatever the care environment. However, as there is now such an emphasis on transferring care out of the hospital and into the primary care environment, we need to be sensitive to what that environment will mean both for a number of practitioners and for their patients.

Unlike the hospital environment, where large numbers of clinicians tend to work together and there is an opportunity for a patient to be reviewed by a number of clinical teams at different stages in the natural history of managing their condition, patients in primary care will often be managed in single-handed or small general practices where they will not have the opportunity to be reviewed by a number of different doctors, including those in training, and where shortcomings in care will often not be understood or recognised by the patients for whom the care is being provided. It is therefore vital that we set high standards in what is expected in primary care and that we ensure that the metrics applied can be measured objectively and that the data are not only collected as a matter of obligation but reported in such a way that other clinicians and patients can understand them.

If the Bill’s purpose is to be fully achieved—to ensure more movement from the secondary and tertiary care sectors into the primary care environment, particularly for the management of chronic diseases—it is essential that these types of data are made available; that the primary care outcomes framework sets specific standards; that there is an obligation to monitoring the achievement of those standards; and to have transparent reporting. It is important for the Government to try to ensure that those objectives are met. One of the safest and surest ways of doing so is to include in the Bill an obligation regarding these functions and obligations. I beg to move.

[Lord Patel]

My Lords, I support the amendment. I spoke at length in Committee on a similar amendment and my noble friend Lord Kakkar has covered quite extensively why we need some kind of primary care outcomes framework which assesses the performance of primary care. Primary care will be involved in prevention, diagnosis, treatment and long-term care of patients. Hitherto what we have had is QOF, which has already been found to be lacking in identifying the quality outcomes that demonstrate improvement in care. For example, in cardiovascular disease, evidence was presented from 1,000 primary care practice interviews and their performances as assessed did not show that there was improvement through QOF. Of course in certain other areas, there might be. The management of hypertension again shows no improvement. In a study carried out of chronic hypertensive patients, there is still a high incidence of complications related to hypertension. So we need other measures and in the absence of a primary care outcomes framework, we do not know how primary care will be performance managed.

[Lord Walton of Detchant]

My Lords, I have put my name to two of these amendments so ably proposed by my noble friend Lord Kakkar. I have been on the medical register now for 67 years. I am a registered medical practitioner and I actually have a licence to practise which allows me to prescribe—not that the opportunities of clinical practice in my present world are very widespread, except on the very rare occasions when I have been called upon to minister to one of your Lordships who may have been taken ill in the precincts of this House. The licence to practise will be subject later this year to a process of revalidation.

If I go back to the days—forgive me again—when I was president of the General Medical Council and served on a number of occasions on its conduct committee’s hearings, it became perfectly clear that some of the doctors referred to the GMC were not actually guilty of serious professional misconduct. However, some of them who came before the conduct committee were in fact practising at a standard which was not adequate in a clinical sense. In other words, there was a question in a number of cases of their clinical competence. In those days the GMC began a process to examine whether, alongside the conduct procedures, we should introduce procedures to be able to identify doctors who were practising at less than an adequate standard of care. In the end, under the noble Lord, Lord Kilpatrick of Kincraig—my successor as president of the GMC—it eventually introduced performance procedures to assess clinical performance. Those performance procedures have continued and have been very effective in identifying and handling appropriately, often with retraining, doctors who were found to be practising at less than an adequate standard of performance.

The Minister may say that when, later this year, doctors will be able to retain their licence to practise subject to a process of full validation of their clinical competence, that may be enough. The fact is that I do not believe it will be, and it is therefore crucial that we have a mechanism in the Bill to deal with this potential issue. After all, over the past 40 or 50 years, there has been a massive improvement in the standard of general medical practice in the UK, following the introduction of compulsory vocational training. Every doctor wishing to be fully capable of being a general practitioner has to undergo, at a minimum, three years’ vocational training. The improvement has been immense, but everyone will recognise that not all practices are of such a uniformly high standard. Some doctors in practices may be less competent than others.

The same may be true—who knows?—of clinical commissioning groups. There is clear evidence that most clinical commissioning groups or consortia of GPs will be providing a high standard of care in the community, but there may be a few that are not up to that standard. It is therefore crucial that we have a mechanism whereby the Secretary of State can be in a position, through amendments such as those proposed by my noble friend Lord Kakkar, to identify those practices and clinical commissioning groups that are not producing clinical care of the adequate and appropriate standard which we all expect and which our communities deserve. For this reason, some kind of monitoring of this sort under the mandate is essential.

[Lord Rea]

My Lords, as a former general practitioner I very much welcome this amendment. As the noble Lord, Lord Walton, has just said, the standard of general practice has certainly gone up enormously since vocational training started. However, a number of my colleagues are not up to scratch. The Royal College of GPs and the BMA would be the first to admit that all in the garden is not lovely. I would ask the proposers of the amendment, and the noble Earl, if he is minded to accept it, how the monitoring system will be set up.

As has been mentioned, there are already two different systems in operation to monitor the standards of clinical practice—in fact three, if we take the GMC competence system. However, as mentioned by the noble Lord, Lord Patel, QOF is not a very effective measure. Its standards are set far too low. We have yet to see whether revalidation will effectively identify weak practice. If this monitoring is going to be set up, would it not be sensible to involve the General Medical Council, the Royal College of GPs and the BMA in consultation in designing the performance monitoring system that will be adopted? It could be a very good idea. It is high time that there was a more effective system. Most GPs would welcome it enormously and only a few would regret it.

[Baroness Finlay of Llandaff]

My Lords, I would like very briefly to speak in support of these amendments and ensure that we do not confound QOF, revalidation and the principle of these amendments. They are three different things. The principle behind the amendment is really important because it will identify the range of practices. There was an interesting paper in The Lancet Oncology this week showing the variation in the number of times patients have attended a GP before diagnosis of some cancers like lung, pancreas and so on, whereas those where there has been much greater publicity, such as breast and melanoma, have been referred much more quickly and there is less variation.

Revalidation is about making sure that people are, in the broadest sense, safe to practise and it is hoped that it will filter out those who are really unsafe across the board. However, that is not just what we are talking about with these amendments. We are talking about trying to improve the spectrum of care, including care by those who will get revalidation and who may well be collecting QOF points, but to whom other clinicians in the area would not necessarily want to sign up as patients. So it is about driving up those lower standards to meet the higher standards that we expect. Those data in the public domain will be really important to help patients decide who they register with. I hope, therefore, that the Government will look favourably on the amendments. The amendments are coming from those of us on these Benches who are medically qualified. I should declare an interest as a fellow of the Royal College of General Practitioners.

19:15

[Lord Hunt of Kings Heath]

My Lords, I would like to echo my noble friend Lord Rea and noble Lords from the Cross Benches on the importance of this group of amendments. At its best, primary care can be brilliant, but at its worst it can be absolutely appalling. The variation in primary care is probably wider than in any other part of the National Health Service. As the changes take place we can see that this may cause many problems in the future.

We are all agreed about the need for an integrated approach and for a smooth patient pathway. Clearly, primary care potentially has a very important role to play. However, it needs to step up to the plate. If acute hospitals are to reduce the scale of their operations, more will be expected of primary care. Yet acute hospitals are open every hour of the day: primary care is not. Indeed, there are often very big issues about how primary care can be accessed out of working hours. The out of hours services are not always as effective as they might be, and there are some practices where patients know that it is very difficult to get attention unless they turn up at the convenience of the doctor, and so they then end up at the accident and emergency department. As I read where the NHS is going, this is no longer going to be acceptable. If money is being taken away from acute care and more money is being spent on primary care, which must be the logical outcome of clinical commissioning groups, unless those clinical commissioning groups can ensure that GPs do what is necessary to ensure that primary care takes up the responsibility, we are going to end in great difficulty, where acute care services will continue to be demanded by patients and money is being spent on primary care but it is not doing the necessary job. Therefore issues around the monitoring and performance management of primary care become very important indeed.

The Government have decided not to place the contracts of GPs within clinical commissioning groups. I understand that because clearly there is another potential conflict of interest. They are to be held at the local offices of the national Commissioning Board. However, there are real questions to be asked about how bureaucrats, as the Government seek to call them—I like to think of them as managers—are going to handle those contracts. What will happen within a particular clinical commissioning group if there is a group of GPs who simply will not do what is required of them to make a contract work with a local hospital? For instance, there may be a risk-share arrangement with a local hospital, where essentially agreement is made on the contract price, but part of it is very much about demand management, where there is a risk share between the clinical commissioning group and the acute trust. That will depend on all the GPs within a clinical commissioning group doing what is necessary, playing their part and contributing to demand management measures. Frankly, there are a lot of GPs who will not have anything to do with that. We know that at the moment. It is happening everywhere, up and down the country, with GPs who do not give a damn about anything to do with demand management. What will happen? Who will be able to intervene in those circumstances? Clinical commissioning groups do not have many levers when it comes to poor performance among general practitioners. I suspect that the national Commissioning Board will not have the expertise either. That is why this group of amendments is so important. We all know that primary care can make a huge contribution to a good NHS in the future, but we have to admit that, of all parts of the NHS, we can probably also find the poorest quality of service as well. That is why we are looking for reassurance from the noble Earl that this new system will be able to deal with those poor performers.

[Earl Howe]

My Lords, I am grateful to the noble Lords, Lord Kakkar and Lord Patel, for their contributions to this debate and, indeed, to other noble Lords who have spoken. We have heard some very powerful and persuasive arguments. I have listened very carefully to them.

Amendments 43A and 43B highlight the concerns that I expect all of us in this Chamber share in relation to the need to ensure high-quality primary care for all patients. The noble Lord, Lord Hunt, made some very telling points in that regard. Of course, there can be no doubt that good primary care contributes to good healthcare outcomes overall. I fully agree that the NHS Commissioning Board should be held to account properly for its performance in commissioning primary care. I do not think, however, that the right way to achieve that is to prescribe that this must be part of the mandate. Our aim is that the mandate should have at its heart the NHS outcomes framework, which covers the range of care that the NHS provides. I make the simple point that good primary care will be essential to improvement against the NHS outcomes framework.

More widely, the department will be keeping under review the performance of the board and the way that it carries out its functions, including its direct commissioning. What matters here are the accountability mechanisms and how those in the system are monitored and held to account. Just as the board will have a commissioning outcomes framework to hold CCGs to account for the quality of their commissioning, it will be important to have robust and transparent information to assess the quality of what the board commissions itself.

We come back to what the Bill already says: it places duties of quality on the Secretary of State, on the board and on CCGs, requiring each of them to exercise functions with a view to securing continuous improvement in the quality of services provided to patients. The Bill also sets out robust arrangements for holding those bodies to account for delivering quality improvement. As noble Lords will be aware, the Bill already requires the board to submit a business plan setting out how it proposes to exercise its functions, and a report setting how it has exercised its functions, to the Secretary of State on an annual basis. In turn, CCGs must also submit their commissioning plans and annual reports to the board. Both the board, in reporting to the Secretary of State, and CCGs, in reporting to the board, will be expected to demonstrate how they have fulfilled their quality improvement duty, including in relation to primary care. Consequently we expect, for example, that both the board and CCGs will wish to monitor the standard of care and services provided by all primary medical services providers in fulfilling their duties.

It is possible that we will need a dedicated objective relating to primary care in the mandate—I am not ruling that out. It would be better, though, not to prescribe that in primary legislation. What matters is that there are clear and effective accountability arrangements, and the Bill as it stands provides flexibility to ensure just that.

The noble Lords, Lord Kakkar and Lord Rea, asked about the QOF. I agree with the noble Baroness, Lady Finlay, that the QOF is a separate issue, but I can say that the whole of the QOF is kept under review in consultation with the profession to ensure that it reflects the best available evidence and supports continuous improvement in the quality of care for patients. Over the coming months we will continue to discuss with the profession and its representatives how to focus the QOF on securing better healthcare outcomes and what that means for existing GP contractual arrangements.

I turn to the final amendment in this group, Amendment 95A. The Bill already ensures that the board has the information that it needs to demonstrate how it has fulfilled its duties. CCGs are required to provide information to the board in the form of the annual commissioning plan and annual report. In addition, the board and CCGs are under a duty to co-operate. In the normal course of business we expect this to involve the sharing of information as necessary but, in the event that a CCG might have failed, be failing or fail to discharge any of its functions, the board’s powers enable it to require any information or documents that it considers necessary from CCGs.

The noble Lord, Lord Hunt, posited the situation that there might be reluctant GPs who did not fulfil their part of the bargain, whatever that was, with the acute sector. There needs to be a way of investigating allegations that actions by GPs in their practices are adversely affecting a clinical commissioning group. Where a general practice is operating in such a way that it is a barrier to a clinical commissioning group meeting its functions, it will be for the commissioning group to work with the members of that general practice to support it to improve and contribute to the work of the commissioning group as a whole. Ultimately, if it is unable to do so, a clinical commissioning group may need to refer such cases to the NHS Commissioning Board, along with the evidence of the failure of the practice and details of any support that the commissioning group has provided to the practice to help it overcome any perceived difficulties.

Among other matters, the board may wish to consider if the practice’s actions are in breach of the practice’s primary medical services contract. Separately, the NHS Commissioning Board will have the power to investigate the suitability of individual GPs under the medical performers list provisions. As the noble Lord will know, this power is currently with primary care trusts.

In a nutshell, therefore, the Bill already imposes a duty on CCGs in respect of the mandate and allows the board to ensure that CCGs fulfil it. Further specific requirements in relation to providing information to the board are therefore unnecessary, so I hope that what I have said reassures the noble Lords, Lord Kakkar and Lord Patel, sufficiently to enable them to withdraw their amendment.

[Lord Kakkar]

My Lords, I thank the Minister for, as always, his thoughtful response and consideration of the amendments. I remain somewhat anxious about whether there is going to be sufficient attention and opportunity to deal with the question of performance in primary care and the management of that performance to ensure that the very best clinical outcomes are achievable for all patients across the country.

I welcome much of what the Minister has said with regard to potential further consideration of how mechanisms other than a specification in the mandate on the question of primary care performance might work. I wonder whether it might be possible for him to enter into further dialogue on this matter so that there can be clarity. It would be unhelpful for the future if a great emphasis were placed—in fact, if there were a momentum—on moving practice from the secondary care environment, where there is a relentless evaluation of clinical outcomes and which has done so much to improve clinical outcomes for our patients because of the attention paid to those matters, into a primary care environment where an objective assessment of outcomes was not always possible and where, as a result, what we all hope will be achieved through the Bill—a health gain for patients and population—might therefore inadvertently be lost. With the opportunity to have a further conversation with the Minister prior to Third Reading, I beg leave to withdraw the amendment.

Amendment 43A withdrawn.

Amendments 43B and 44 not moved.

Amendment 45

Moved by

[Earl Howe]

45: Clause 22, page 17, line 9, at end insert—
“( ) Requirements included in the mandate have effect only if regulations so provide.”

Amendment 45 agreed.

Amendment 46 not moved.

Amendment 47

Moved by

[Earl Howe]

47: Clause 22, page 17, line 21, at end insert—
“( ) Revisions to the mandate which consist of adding, omitting or modifying requirements have effect only if regulations so provide.”

Amendment 47 agreed.

Amendments 48 and 49 not moved.

Consideration on Report adjourned until not before 8.29 pm.