Baroness Wheeler
My Lords, I would have liked to debate this amendment in the light of next week’s debate on the status, powers and functions of HealthWatch England under Clause 180, when we will fully air once again the serious and continuing concerns across the House about the proposed relationship between HealthWatch England and the CQC, and hear from the Minister how the Government intend to address these concerns as they flesh out their proposals for healthwatch, and as the CQC comes under closer scrutiny. However, we support this amendment requiring the Secretary of State to include HealthWatch England in the organisations specified in the Bill that he or she must keep under review. Obviously we do this in the context of the separate independence of HealthWatch and not as a committee of the CQC.
However, it is also important to make it clear that we do not think that the measure in itself, or combined with other government proposals, for example, on the HealthWatch board membership, will be anywhere near enough to provide the independence that HealthWatch England needs if it is to be the robust and trusted patients’ watchdog that is needed—and I emphasise trusted by the public.
The Minister must appreciate that the concerns across the House over the CQC’s relationship are not addressed by referring to the close synergies between the two organisations or to the powers and influence of the CQC rubbing off on HealthWatch. In this context it is difficult not to dwell on the recent developments in the commission and the Department of Health performance and capability review of the commission. I say this as a genuine supporter of the CQC and its work—for example, last year’s excellent special review of stroke services, and the one of residential care—but the department’s major findings that the CQC needs to be more strategic, that accountabilities within the CQC are unclear, as well as the strong concern over the blurring of boundaries between the CQC board and executive team, do not augur well for the future relationship between the CQC and HealthWatch.
Of course, we will come to these matters in detail when we have the full debate on HealthWatch and local healthwatch organisations. I hope that at that stage the Minister will address these ongoing concerns, particularly about the clash of cultures between HealthWatch and the CQC, about public faith and trust in HealthWatch if it is to be formally linked to the CQC, and the lack of confidence in the new arrangements on the part of the overwhelming number of LINks organisations and NALM. As the letter from NALM in the Guardian earlier this week underlined:
“Healthwatch will only be considered the true voice of the public, if it is seen to be independent of those it monitors”.
I look forward to next week’s debate.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, the Secretary of State has a duty to keep under review the effectiveness of the exercise of health service functions by certain national bodies. These bodies are listed at new Clause 247C, inserted by Clause 51 of the Bill.
As it is currently drafted, the Bill requires the Secretary of State to keep the effectiveness of the Care Quality Commission under review in so far as it is exercising functions in relation to the health service. However, it does not make explicit reference to the HealthWatch England committee. Yet, while HealthWatch England will be established as a committee of the Care Quality Commission, it will have its own statutory functions that it must exercise outside of the CQC’s other functions.
This is, therefore, a helpful and welcome amendment from my noble friends Lady Cumberlege and Lady Jolly. It helpfully clarifies the distinction, in terms of the Secretary of State’s accountability, between the exercise of functions by HealthWatch England and that of the CQC.
The amendment would add HealthWatch England to the list of bodies the Secretary of State must keep under review in respect of how effectively it exercises its functions in relation to the health service in England. Importantly, it would emphasise that HealthWatch England itself is responsible for exercising the statutory functions of HealthWatch England.
I have reflected on this and I will be supporting this amendment. I hope that other noble Lords will join me in doing so.
Baroness Cumberlege
My Lords, I think we are on a roll. I am very excited that we have had another amendment accepted. I very much thank my noble friend.
I appreciate some of the other points that have been made in this debate, but I think we will be debating them next week and perhaps we could hold our fire until then. Indeed, we have debated them previously and noble Lords will know that I am in favour of the present proposal in the Bill that HealthWatch England should be a committee of the CQC, and that is why I have chosen those particular words.
I am very grateful to my noble friend. I think this is the first time ever this has happened to me and I feel very pleased about it. Thank you.
“( ) The report must include the Secretary of State’s assessment of the effectiveness of the discharge of the duties under sections 1A and 1B.”
“( ) after paragraph (e) insert—“(ea) paragraph 11 of Schedule A1,(eb) paragraph 14 of Schedule 1A,”.”
Earl Howe
My Lords, in moving Amendment 145, I shall speak also to the other amendments in this group: Amendments 146, 147, 148, 148A, 151, 153, 154, 155, 156, 159, 160, 222 and 223.
The amendments in this group make a number of changes to some of the Bill’s schedules of consequential amendments. These include, for example, consequential amendments to the Charities Act 2011 and the Health and Safety at Work etc. Act 1974, as well as a number of amendments consequential to the abolition of PCTs, SHAs and NHS trusts.
I am happy to explain any of these amendments, if noble Lords wish, but I hope that noble Lords will take it from me that these are minor, technical or consequential amendments. I beg to move.
Earl Howe
My Lords, with the changes to the Secretary of State’s powers under the Bill, it has recently become clear that it would be better to make express provision for the Secretary of State’s powers to provide the support functions referred to in the amendment rather than rely on Section 2 of the NHS Act 2006 and risk any legal doubt. The amendment would maintain the current position under the Act and enable the Secretary of State to continue to carry out the activities concerned. The context of this is that Section 2 of the Act gives the Secretary of State a general power to,
“do anything else which is calculated to facilitate, or is conducive or incidental to, the discharge of”,
his duties in the Act.
The kinds of thing that come under that heading are support facilities and other assistance to the NHS—for example, the department purchases some medicines centrally for the NHS or provides advice to NHS bodies in carrying out procurement activity. It is also involved in arrangements known as NHS shared business services. It provides accounting, payroll and e-procurement services for all types of NHS organisation. There are benefits to the health service in ensuring that the Secretary of State remains able to co-ordinate activity centrally—for example, in certain cases it is likely to be financially beneficial to purchase services centrally.
Perhaps I may make it clear that Amendment 148A does not allow the Secretary of State to commission or provide health services. As noble Lords will be aware, the Bill requires the Secretary of State to exercise his functions to ensure that services are provided but removes the Secretary of State’s specific powers to provide or commission NHS services directly. This amendment does not change that.
“( ) In subsection (9), for “section 224 or 226” substitute “section 225”.”
(b) before paragraph (a) insert—“(za) section 14A(1),”.”
“Health and Safety at Work etc. Act 1974 (c. 37)(1) Section 60 of the Health and Safety at Work etc. Act 1974 (supplementary provision about the Employment Medical Advisory Service) is amended as follows.
(2) In subsection (1) for “each Primary Care Trust and Local Health Board” substitute “the National Health Service Commissioning Board or each clinical commissioning group (in relation to England) and each Local Health Board (in relation to Wales)”.
(3) In subsection (2)—
(a) omit “for one of their”, and(b) for ““each” to “its”” substitute ““the National” to “arranges””.”
“( ) The amendment made by section 20(6) does not affect—
(a) the validity of any direction made by an instrument in writing which continues to have effect by virtue of sub-paragraph (2),(b) any power to vary such a direction otherwise than for the purpose of directing the Special Health Authority concerned to exercise an additional function, or(c) any power to revoke such a direction.”
Baroness Thornton
My Lords, perhaps I may just say that when I was a Minister this was one of the few battles that I had and lost in the department. I shall be very glad if the noble Earl has had the battle and won—congratulations. I also say well done to all those who have been campaigning on this issue, particularly my noble friend Lady Gould.
Baroness Northover
My Lords, I am the lucky one who has drawn the long straw on this issue and I am very grateful to my noble friend Lord Howe for allowing me to have that long—rather than a short—straw. I am especially grateful to my noble friend Lord Fowler for bringing back this important issue. Again, I pay tribute to his enormous commitment in improving HIV services for all and, of course, to the outstanding work he did to protect the public from infection.
As I advised in Committee, the Department of Health has now concluded its review of the current policy, under which some overseas visitors are excluded from free HIV treatment. The review considered many issues, including the public health and economic arguments for providing free treatment. We also noted the recommendation and findings on this in the No Vaccine, no Cure report, published last year by the House of Lords Select Committee on HIV and AIDS in the United Kingdom, chaired by my noble friend Lord Fowler.
Since the debate in Committee we have also taken account of the views of other government departments with an interest in this issue and I am pleased to report that the Government have agreed to support the change that this amendment proposes. The evidence on the public health benefits of HIV treatment is compelling. Research published last year, and subsequently reviewed and endorsed by our own Chief Medical Officer’s expert group, shows that treatment reduces infectivity and onward transmission by up to 96 per cent. Reducing transmission will reduce the risk of new infections in the wider UK population and, as noble Lords have said, reduce the NHS costs associated with treating late diagnosis of HIV. Around half of new HIV diagnoses in the UK are diagnosed late; that is, after HIV treatment is clinically recommended. As the noble Baroness, Lady Masham, said, late diagnosis results in increased mortality and morbidity and more expensive treatment.
As my noble friend Lord Fowler said, it is estimated that there are 91,000 people living with HIV in the UK, of which one-quarter are unaware they are infected, which means they can continue to transmit HIV to others. Without access to treatment upon diagnosis there are no or few incentives for testing. Amending these regulations will remove this barrier. It is also worth noting that the knock-on effect of improved public health protection for HIV is that reduced onward transmission will itself reduce the number of new cases within the overall population. The noble Baroness, Lady Gould, made reference to the importance of all of this. Earlier diagnosis, resulting from the testing of those previously put off by the prospect of charges, will reduce the number of late cases with more complex emergency healthcare needs. Together these benefits should reduce overall NHS costs significantly over the longer term.
Therefore, we agree that where clinically necessary we must provide HIV treatment, free of charge, to all who are present in the country, irrespective of their residency status. In doing so, this actually does no more than to bring HIV treatment in line, as others have said, with that for all other major communicable diseases, such as TB and hepatitis, and for all other sexually transmitted infections for which treatment is free without a qualification period. However, my noble friend’s amendment as drafted proposes to include a residency qualification period of six months for HIV treatment. I understand why he put that provision in. Our view is that such a limitation could compromise our primary public health objective and that therefore there should be no such exclusion. However, I recognise that my noble friend had included this limitation to address wider concerns about attracting others to come here for treatment. We share those concerns.
The NHS is, and must remain, a national not an international health service. While it should also provide for the emergency and humanitarian needs of others, we are clear that in implementing this change we must avoid creating an incentive for people to travel to the UK solely for the purpose of free HIV treatment. In fact, they should not have to; there has been huge progress globally on increasing access to free or subsidised HIV treatment. Some African countries have achieved universal treatment coverage. Average treatment coverage in Africa has increased to almost 50 per cent, with even higher treatment coverage in eastern and southern African. While the different models of healthcare systems in other countries make direct comparisons difficult, research suggests that free HIV treatment is available, regardless of a person’s residency status, in France, Spain, Holland, Italy and Portugal. The noble Lord mentioned the situation in the rest of the United Kingdom.
The Department of Health is already in the process of drafting, with HIV clinicians and others, new clinical guidance to support implementation in a fair and consistent manner. This will limit the extent of immediate access to drugs after a person is diagnosed and allow for continued review of the duration of any drug supplies before another visit is required. So it simply will not be the case that tourists can get off the plane and access immediate long-term supplies of drugs. If clinicians identify a person who is in the country just to receive free treatment, the NHS will not provide it unless there are exceptional circumstances, such as extreme infectiousness or pregnancy. Treatment for any conditions other than HIV itself remains chargeable.
Furthermore, we will continue to monitor any change in new HIV diagnoses in the UK of HIV infections acquired abroad. We will strengthen our current monitoring and collect additional anonymised data on residency status that will help to identify any abuse. In addition, we will maintain existing stringent procedures to check for fraudulent registrations at GUM clinics. It will also remain the case that receiving HIV treatment will not be sufficient to overturn an immigration requirement to leave the country and there are no provisions under the Immigration Rules for a person to travel into the UK in order to access the NHS.
To conclude, I am very grateful for the opportunity to discuss this important issue again and I am very grateful to noble Lords around the House for all their work over a number of years. I pay tribute also to the noble Baroness, Lady Thornton. This is a very sensitive issue and I appreciate the constructive way that people have dealt with it. There is a compelling public health case in support of this amendment which we cannot ignore. However, while safeguarding our overriding responsibility for public health, we are clear that the change this amendment proposes should not be seen as an incentive for travel to the UK for the purposes of obtaining free HIV treatment. We will therefore be introducing strong safeguards in our front-line procedures in clinics to address this.
Having said that, the Government support the change that this amendment proposes but I am asking my noble friend to withdraw it for now, for three reasons. First, on a technical point, the proposed change is to secondary regulations. It is not normal procedure to amend such regulations through a primary Act. Secondly, as I have indicated, the amendment includes a six-month exclusion period that we do not support. Thirdly, the department needs some time to finalise the clinical procedural safeguards and monitoring processes that I have set out.
However, in seeking withdrawal, I offer on behalf of the Government an absolute commitment that the department will introduce a statutory instrument to amend the current exemption, so that the exemption from charges for treatment of sexually transmitted infections will include HIV. The change would be effective from October this year, and we would anticipate laying the amending SI before the Summer Recess to achieve that effective date. As my noble friend Lord Fowler said, this makes economic and human sense. I hope that my noble friend will understand and agree to the process that I have proposed as the most effective way of delivering the mutually desired outcome of his amendment, for which he and others have long campaigned.
Baroness Finlay of Llandaff
My Lords, I also did not put my name on this amendment because there was not enough space for more than four names.
I have a concern that the Health Protection Agency itself may have been a bit like a prophet in its own land and that it was not recognised fully until now, when we see its disappearance, just how important the work is that it has been doing, both nationally and internationally. Apart from already earning money for the UK, its potential to carry on doing so in the emerging large economies in other parts of the world and expanding its scientific input is enormous. It has the role not only of public health but of anticipating what threats may emerge in the future, particularly in the range of toxins that it looks at and studies.
These amendments seem to solve a problem that we have all heard about. We have all been at meetings; we have all met with the relevant people. I really hope that we will not just get told that this cannot happen for a variety of reasons. The amendments seem to be solving a problem that has only been created as a result of these changes. I cannot see that there is anything to lose, except that if the amendments are not accepted we might lose the capacity to earn international research funds in the future.
Baroness Northover
My Lords, noble Lords have raised a number of issues regarding Public Health England, many of which we discussed in Committee. Both then and today, we heard serious points very cogently argued, which we greatly appreciate. We have considered all these issues very carefully. Since Committee stage, the department has published more detail on the new public health system, including its operating model for Public Health England. The views expressed in Committee influenced the tone of those documents, and I hope that I can now reassure noble Lords that our proposals will give the agency the operational independence that it needs to become the leading organisation of its kind in the world.
The first point I want to stress is that Public Health England will function openly and transparently. Its operational freedom will be formalised in a clear and published framework agreement between it and the department. My noble friend’s amendment proposes that the PHE board must have a non-executive chair and a majority of non-executive members. We have considered this at length and understand what the amendment aims to achieve, but we do not agree that this is the best option.
The Public Body Review was clear that Ministers should take more responsibility for arm’s-length bodies. Cabinet Office guidance is also clear that nothing should undermine the direct accountability of an agency chief executive to the relevant Minister. We believe that there are sound and pragmatic reasons underlying that position, which could be put at risk by a governance structure dominated by non-executive representatives.
The public will look to the Secretary of State for leadership and accountability in protecting the nation from threats to health and they will be right to do so. The buck must be seen to stop with him. In the past, public health has too often been pushed to the fringe, which has been recognised by noble Lords. This arrangement brings public health centre stage. Instead of the NHS simply being a treatment service, public health in its widest sense will be central to the new arrangements.
Lord Hunt of Kings Heath
Does the noble Baroness not recall the reason why the Food Standards Agency was set up? The agency was given complete independence because the public had lost confidence in the role of Defra in relation to food safety. On public health issues, surely she can see that when she simply says that it should be a Minister who responds, the risk is that people will lose their faith in the fact that public health advice will not be impartial and independent. The Government are really putting at risk the integrity of the public health advice that is received.
Baroness Northover
I have heard what the noble Lord and other noble Lords have said in that regard. There have been very interesting debates over the role of the Secretary of State in the whole of the NHS. Public health is one part of that. It is interesting to see that in some areas noble Lords would like the Secretary of State to be closer.
Lord Hunt of Kings Heath
Perhaps I may come back on that. Surely, it is very different. In relation to the National Health Service, we have been arguing that because of the need for parliamentary accountability, it is absolutely right that the Secretary of State should have the responsibilities that are now in Clause 1. But here we are talking about critical issues around public health where the need for independence is very important. Having professional advice on issues such as public health is very different from there being direction over the operation of the NHS.
Baroness Northover
As I have outlined, there is independence. It is key to the changes that we hope to put in place in terms of public health that it moves to the centre stage and that the Secretary of State has a much more direct line of sight in terms of promoting public health and the protection of the public. The Secretary of State will lead and have direct accountability for public health, which many people have welcomed.
Inserting an independent chair and board between him and the individual charge for the day-to-day running of Public Health England could blur those clear lines of accountability and undermine the chief executive without enhancing the agency’s flexibility, responsiveness and effectiveness in dealing with threats. This is not to say that the chief executive should not face independent challenge from the board. On the contrary, the board will include at least four independent—
Baroness Northover
This is the Report stage so I hope that the noble Lord has a simple question for clarification.
Lord Warner
My query is a point of fact. The Minister is putting great emphasis on the role of the chief executive. Could she tell the House whether the chief executive has a scientific background which is relevant to public health?
Baroness Northover
Since the chief executive has not been appointed yet, I cannot give the noble Lord an answer. Perhaps I might be able to continue, especially as it is almost 10.30.
As I have said, the board will include at least four independent non-executive members of the highest calibre, bringing experience of public health, local government, the voluntary sector and business. The challenge they provide will be real and impossible to ignore. Public Health England will also have scientific committees set up to provide rigorous and impartial advice. Executive agencies are normally established administratively, without legislation, and that remains our intention in this case. I realise that my noble friend Lady Cumberlege may want to fix Public Health England’s status in legislation to protect it from undue interference. Of course this is a valid objective, but I hope she will accept that the openness with which Public Health England will operate, and the nature of the Secretary of State’s duty to protect health, would deter him from clipping Public Health England’s wings. He would simply be limiting his own ability to fulfil his statutory duties. I also hope that my noble friend will consider whether the model that her amendment suggests is really in the best interests of public health. A significant advantage of the agency option is its flexibility, allowing Public Health England to adapt and stay fit for purpose without amending primary legislation.
The second part of the amendment focuses on research, to which a number of noble Lords have referred. We recognise the value of the research that the Health Protection Agency undertakes now, and the importance of it continuing. The Bill as drafted provides for the Secretary of State to conduct and commission research and Public Health England will exercise those powers. Noble Lords have expressed concern over Public Health England’s ability to secure health protection research funding. We are satisfied that there is no point of principle preventing Public Health England applying for health protection research funding from external national and international partners, including charities and income generation from commercial contracts. I hope that I can reassure the noble Lord, Lord Patel, that Public Health England can also bid for EU funding, subject to Treasury rules. I hope also that I can reassure other noble Lords that there is no reason why these changes should jeopardise the outstanding reputation that the HPA has had in research.
More specifically, I am happy to be able to confirm that funding from the National Institute for Health Research for research into health protection will continue at its current level and that this autumn we will launch a NIHR research call to be awarded to Public Health England and academic institutions in partnership. Publishing public health research will be not only possible under the Bill as drafted but critical, as noble Lords have indicated, in ensuring that the public health community as a whole learns and progresses. It is also worth mentioning that we expect Public Health England’s published data to be subject to the relevant code of practice on official statistics, which imposes strict limits on Ministers’ access to certain information before it is released.
I am afraid that the amendments tabled by the noble Lord, Lord Beecham, while seeking to enhance Public Health England’s independence, would blur the lines of accountability still further. Executive agency status, we believe, provides by far the most appropriate blend of operational independence and clear accountability. When we debated the special health authority model during the Committee stage, I did indeed, as the noble Lord said, refer to its impracticality. Special health authorities are established to exercise functions in relation to the health service in England, whereas Public Health England needs to exercise functions, such as radiological protection functions, in respect of Scotland, Wales and Northern Ireland. I should also point out that the NHS Commissioning Board will not, in the future, be a special health authority.
Lord Beecham
My Lords, I thank the noble Baroness for her reply to my amendment. The noble Baroness, Lady Cumberlege, will no doubt speak in relation to hers. I am afraid that I do not find the response convincing in a number of respects. In the first place, on the status of Public Health England as an executive agency, she did not really deal with the Cabinet Office guidelines, which I remind your Lordships state that an executive agency should be a clearly designated unit responsible for undertaking executive functions of the department that established it as distinct from giving policy advice. If, as I apprehend, it is the intention that Public Health England should give policy advice, it should not be an executive agency. If on the other hand the Government’s position is that it should not give policy advice, it is a significant departure from what we have hitherto understood the role of Public Health England to be and certainly from the current arrangements. That would not be acceptable to this side and, I suspect, to other Members of your Lordships’ House.
In anticipation of the Minister’s reply, I raised the question of income. She referred to the possibility of raising income but did not set out in any detail the proposals which we had anticipated being forthcoming in light of the Government’s previous statement that they would explain clearly how the income-raising capacity of the organisation would be maintained.
Baroness Northover
I thought that I had said clearly that there is no point of principle preventing Public Health England applying for research funding from external national and international partners, including charities, commercial companies, the EU, DH, UK research councils et cetera. There is no reason why this new organisation should not be as eligible as the previous one to apply for that research funding.
Lord Beecham
That evades the question of why the Government said they would be bringing forward proposals in that respect. If it was axiomatic that revenues could be raised in that way, presumably that would have been stated at the outset.
In any event, the further point I anticipated the noble Baroness would raise relates to the devolved Administrations. She referred to the 2006 Act as if that were immutable—which, of course, it is not. If it was thought that the position of the devolved Administrations was in some way a barrier to creating the agency because of the provisions of the 2006 Act, then this legislation could have amended that Act. Again there has been no indication in response to my question about whether this issue has been discussed with the devolved Administrations. As I say, I cannot imagine there would be any disadvantage to them in establishing Public Health England as a special health authority.
I regret that the thrust of my amendment has not adequately been dealt with. In the circumstances, I cannot do more than withdraw my amendment to the noble Baroness’s amendment. I do not know whether she is content with the offer of talks. If I were in her position, I would be asking for a little more than only an offer of talks: I would be asking for some assurance that the Minister will take the matter away and consider it with a view to something happening at Third Reading. Without that assurance I fear that we will get no further forward than we are now—and that is not a satisfactory position for outside organisations such as the Faculty of Public Health, others in the professions or many Members of your Lordships’ House. However, in the circumstances, I beg leave to withdraw Amendment 162A.
Baroness Cumberlege
Perhaps I may address that in one minute’s time.
I appreciate the commitment of my noble friend Lady Northover to this matter. I understand that the Government are anxious to build on public health, as the noble Lord, Lord Patel, said, and that they take this area with all due seriousness.
Baroness Northover
I assure my noble friend that we do indeed take this area very seriously. We are looking forward to the discussions that will happen with the Secretary of State, my noble friend and others.
Baroness Cumberlege
I thank my noble friend for that. I must say I am not reassured. What noble Lords were saying about credibility in the public mind is very important. There is a perception, whether we like it or not, that departments within Government tend to be closed—not secretive perhaps, but not very accessible to the general public. They have an image, and that perception is a reality in the public mind. Although there is an intention that they should be open and transparent, I am not sure the public see it like that.
On the question of trust, it was interesting that the Office for National Statistics at one time lacked a degree of credibility. People did not trust the figures that were coming out and so the Government of the day reconstituted it with the UK Statistics Authority and set it up in very much the way that we are trying to set up Public Health England. There is another model there. The Food Standards Agency, NICE and a lot of the new organisations—indeed the NHS Commissioning Board—are all being set up with non-executives and independent chairs. It seems really strange that here we have one of the most important new ideas coming forward with the establishment of Public Health England, trying to do something totally different.
I have never taken an amendment to Third Reading, nor have I tested the opinion of the House against the wishes of the Government whom I support. However, I have to say that I feel so strongly about this issue. I very much welcome the talks that have been promised but that does not rule out the possibility—I hope it will not become a reality—of taking this to Third Reading. I hope, if we meet the Secretary of State and our House of Lords Ministers as has been promised, that we will come to some accommodation. This is just too important to be left as it is and we need to take it further. I very much want to reach agreement in the future. It would not be a good idea to test the opinion of the House right now, because we would have a very small vote, but I do want to give notice that I feel strongly and will bring it back at Third Reading. However, as we cannot reach an accommodation at this time, I beg leave to withdraw the amendment.