Local Authorities (Public Health Functions and Entry to Premises by Local Healthwatch Representatives) Regulations 2012

Thursday 7th February 2013 Grand Committee

Considered in Grand Committee

15:06

Moved By

[Earl Howe]

That the Grand Committee do report to the House that it has considered the Local Authorities (Public Health Functions and Entry to Premises by Local Healthwatch Representatives) Regulations 2012.

Relevant documents: 15th Report from the Joint Committee on Statutory Instruments

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

My Lords, these regulations make provision for three things: first, for local authorities to take certain steps in the exercise of public health functions; secondly, the making and recovering of charges in respect of certain steps taken by local authorities in the exercise of their public health functions; and, thirdly, a duty on certain providers of health and social care services to allow local Healthwatch organisations or contractors to enter and view their premises. The regulations are affirmative and apply to local authorities in England only.

I start by explaining the mandatory aspects of the regulations. Part 2 sets out certain steps which must be taken by local authorities when exercising their own, or the Secretary of State’s, public health functions. These include the provision of arrangements for weighing and measuring children, health check assessments, sexual health services, a public health advice service for clinical commissioning groups and information and advice in relation to arrangements for protecting the health of the local population.

Although the regulations are primarily concerned with steps to be taken by a local authority in the exercise of its own functions, in some cases the regulations require the local authority to exercise a Secretary of State public health function—for example, arranging contraceptive services as part of local authority sexual health services. Regulation 2 ensures that the authority can exercise the Secretary of State’s ancillary powers to assist the delivery of that function, for example, exercising the power to commission those services from a third-party provider.

Regulation 3 requires local authorities to provide for the weighing and measuring of certain children in their area by reference to the age of the children and the type of school which they attend.

Regulation 4 imposes a duty on local authorities to provide health checks to be offered to eligible persons in their area, the relevant criteria being a person’s age and existing health status. Regulation 5 makes provision for the conduct of the health checks, including the dissemination of information about dementia to older persons.

Regulation 6 requires local authorities to provide open access sexual health services in their area. That general duty does not extend to offering services to persons undergoing sterilisation or vasectomy procedures, or to services for treating or caring for persons infected with human immunodeficiency virus.

Regulation 7 creates a duty on local authorities to provide a public health advice service to any clinical commissioning groups in their area in order to assist CCGs to commission health services. The range of matters which the advice service covers will be kept under review and agreed between the local authorities and the CCGs.

Regulation 8 imposes a duty on local authorities to provide information and advice to responsible bodies and other relevant bodies within their area in order to promote health protection arrangements against any threat to the health of the local population, including infectious disease, environmental hazards and extreme weather events. We expect the local authority director of public health, with Public Health England, to lead the initial response to most public health incidents at the local level. When performing this duty, the local authority will be exercising the Secretary of State’s duty as to protection of public health, as set out in Section 2A of the National Health Service Act 2006.

Noble Lords may find it helpful if I describe the context of these regulations. The Health and Social Care Act 2012 gives upper tier and unitary local authorities a new duty to take appropriate steps to improve the health of their populations and certain other public health functions. In general, the intention is to permit the greatest degree of flexibility to local authorities to shape services to meet local needs. But there will be certain circumstances where a greater degree of uniformity is required—for example, where services must be provided in a universal fashion if they are to be provided at all, or where certain steps are essential to the efficient running of the new public health system.

We have consulted widely on these mandatory functions and set out our conclusions in July 2011 in the document Healthy Lives, Healthy People: Update and Way Forward. We will also issue appropriate guidance to support local authorities in delivering these functions.

Turning to Part 3 of this instrument, Regulation 9 makes provision for a local authority to make and recover charges in respect of certain steps taken in the exercise of its duty as to health improvement. However, there are some circumstances where it is legitimate for local authorities to charge organisations—for example, for providing information and advice to local employers—and the regulations permit charging in such cases. The regulations also permit individuals to be charged for services that do not have the purpose of improving their health. This might include training in public health.

However, I should stress now that this regulation means that no individual can be charged for steps taken to improve their health, nor will local authorities be able to charge organisations or individuals for anything done in the exercise of the mandatory functions under Part 2 of the regulations. We have previously made clear our position on charging for health services: there will be no new charges during the current Parliament. Regulation 9 is entirely consistent with that commitment.

We have prepared guidance for local authorities which makes it clear that anyone who was receiving a health improvement service from the NHS free of charge will continue to receive it free of charge when responsibility for it transfers to local authorities. Conversely, the guidance also makes clear that the effect of the Act and these regulations is not to convert large swathes of existing activity that local authorities may charge for—such as leisure or social care—into health services that must now be provided free of charge.

On the regulations covering entry and viewing by local Healthwatch representatives, Part 4 imposes a duty on certain providers of health and social care services to allow authorised representatives of local Healthwatch or its contractors to enter and view certain premises owned or controlled by them. This gives local Healthwatch the ability to enter premises where health and social care services are being provided in order to observe activities and gather views from people who use those services. This will enable local Healthwatch to feed back evidence about the quality of care provided in a report with recommendations to providers and commissioners about how the quality of that care can be improved.

We are clear that local Healthwatch is not an inspectorate. It does not have the status of a regulator—that is the role of the Care Quality Commission. We need to avoid duplication of roles and confusion among service users or service providers as to the various roles and responsibilities within the system. We are giving local Healthwatch a role that is different from and complementary to that of the regulator. It is there to listen to the voice of patients, service users and residents on how their services can be improved.

15:15

Authorised representatives of a local Healthwatch or its contractor are those who have been authorised in accordance with arrangements made by a local authority or a local Healthwatch organisation. They will have received training for this role and Criminal Records Bureau checks will be done.

It is important to understand that, having entered premises, an authorised representative has a duty not to act so as to compromise the privacy and dignity of service users or their care. This is covered in Regulation 13. Regulation 11 provides that there is no duty on services providers to allow entry if these matters would be compromised by the presence of an authorised representative.

We have extended this role to local Healthwatch contractors in the legislation to permit flexibility where, for example, a local Healthwatch has contracted with people who have been involved in local involvement networks, or LINks, and who have been authorised representatives. This is about being able to build on existing skills available and not necessarily having to start from scratch.

Potentially, local Healthwatch can make announced and unannounced visits. We know of LINks that have made unannounced visits giving as little as an hour’s notice and of others who have been invited to visit care premises. Therefore, within bounds—for example, reasonableness—local Healthwatch has flexibility, but what lies at the heart of this is the ability of a local Healthwatch to go and get people’s views recorded, heard and acted on.

I hope very much that your Lordships are reassured that we recognise the importance of this activity for local Healthwatch for it to be able carry forward the role of LINks effectively. In conclusion, I commend these regulations to the Committee.

[Lord Willis of Knaresborough]

My Lords, I rise in this packed Chamber at this late hour to discuss these regulations. I say that light-heartedly, but the raft of regulations going through the House as a result of the Health and Social Care Act 2012 is incredibly important. The fact that the regulations are being very effectively scrutinised by this House demonstrates the commitment to getting the implementation of the 2012 Act right, so my comments this afternoon on behalf of the Liberal Democrats are meant to be helpful to the Minister. I will do my best.

There is significant support for these regulations, not least because there is significant agreement among the political parties that the direction of travel for local authorities to be at the heart of a renewed emphasis on public health is absolutely right. It always struck me, as a former council leader, as bizarre that I had responsibility for the efficient collection and disposal of refuse but that protecting and promoting the health of the people whom we represented was a peripheral activity. Indeed, when the Government introduced the scrutiny committees, supported by the Labour Party, they emphasised the importance of local politicians taking an interest in health. That engagement—certainly for my local area—was incredibly helpful and supportive. I regard this as the next step. Local authorities should be involved in the scrutiny of health, and most activities from economic generation to housing and education are all part and parcel of improving public health; they are not separate silos.

Before I deal with some of the specific regulations within this SI, I raise an issue which is not in the regulations but which requires a response from the Minister. I refer to public health research, and he will not be surprised that I raise it. In some ways, public health research has gone under the radar—I confess a lack of emphasis myself—yet if we are to improve public health, and local authorities are going to be at the heart of that agenda, it is crucial that research is part of it. Traditionally, local authorities have not funded, nor have they been responsible for research in public health. That resource has come from the primary care trusts and SHAs.

Currently, 187 public health clinical academics with honorary contracts, and 26 academic dentists with honorary NHS contracts are working in England. Of those, 56 clinical academics and four dentist academics are part or wholly funded by PCTs and SHAs. However, that funding—some £15 million—has now been swept up by being transferred to the Commissioning Board, which, as the Minister knows, does not have a mandate to honour the honorary contracts determined by the Follett principles. In fact, public health research is not in the Commissioning Board’s mandate. That responsibility, rightly, lies with Public Health England. Fifteen million pounds is of course a relatively small sum—loose change to the Commissioning Board—but it is the main source of funding for vital public health research which can be commissioned by public health directors in local authorities. If we are serious about local authorities commissioning research—and I think that these regulations are serious about that interface—they must have access to research capacity.

This is an urgent issue, which is why I raise it at the beginning of my remarks. The existing honorary contracts legally run out on 31 March, and continuity over existing research programmes is absolutely crucial unless we are to see the abandonment of key strands of public health research. Will the Minister say what plans he has to resolve this very small but important issue? In particular, will he instruct the Commissioning Board to transfer the £14.7 million of public health funding that it has obtained from PCTs and SHAs to Public Health England as an interim measure until a more secure funding stream can be found for public health research?

Continuing the theme of research, perhaps I may seek clarification on two other matters in the current regulations. This SI gives local authorities powers as directed by the Secretary of State which are in effect transfers of existing powers. They are largely welcomed and give much needed continuity. Therefore, I do not think that there is any argument about the transfer of those powers. However, a person who has one or more of the declared morbidities will be checked on a more regular basis—that is, if you have hypertension, you will be checked annually. However, will the broader health check given to eligible persons be carried out on non-eligible persons on a five-yearly basis or will it be in the sequence of their morbidity? In other words, if you have hypertension and are checked annually, will you have all the other health checks at the same time, will you have to wait for five years to have them, or will you not get those other checks? The regulations do not make that clear. This is important because the health check data obtained via Regulation 5(3) is valuable not only for individual patients but for research groups.

Indeed, with regard to the information obtained under Regulation 5(3), will the data automatically be made available in an anonymised format, with open access for research groups, but allowing for patient opt-out? If so, will it be the responsibility of the Department of Health, the NIHR, the Commissioning Board or Public Health England to prescribe a format for data collection and storage? I make that point because, if the information is collected in different formats, it becomes less valuable in terms of interrogating it for effective research.

Let me move on to Regulation 6, which I am somewhat confused by the thinking behind. While I fully understand why services such as abortion, sterilisation and vasectomy should be moved into the NHS, given their “clinical and surgical nature”, surely the same could be said about specialist STD management and specialist contraception services, which carry significant clinical risks—not to mention a minefield of legal and ethical dimensions. For instance, IUD insertion management can be an incredibly invasive and difficult issue. The decision to ask local authorities to exclude HIV patients from other sexual health services and treatment for other STDs appears to be at odds with offering patients a comprehensive sexual health service. Why are we separating those out? There is confusion over the implication for people who move out of an area to be tested for HIV, for instance—a more likely scenario in places such as London, Manchester and Birmingham, where specialist clinics with the latest technology quite rightly are emerging. Yet there is confusion over where people will be treated if they are tested elsewhere and how that will be cross-charged.

Who will have responsibility for treating an HIV person with another STD? Will patients continue to have the right to access sexual health services, including related treatment and care, wherever they choose in England, regardless of their place of residence? Will there be no loss either in expertise or in the infrastructure needed to commission complex sexual health services, and will those services and pathways of care be fully integrated? I ask that because small authorities may not have the capacity to be able to have that range of services. Will they therefore be able to commission those services elsewhere and send people from one local authority to another? Will the pressures on local authority budgets not simply result in a diminished quality or availability of care?

How do we guarantee that what we are promising in the regulations can be delivered, given the pressure on budgets? For instance, 25% of the budget for public health is likely to be spent on promoting and supporting the treatment of sexually transmitted diseases and sexual health. That represents a huge amount of the budget, and for some authorities, particularly in large, deprived urban areas, the proportion could be even greater. Will there be a seamless integrated pathway of care for people living with HIV? We cannot ask such people to be treated differently to any other group in the population, and that is what these regulations appear to be saying. Perhaps the Minister can give me some comfort on that.

As regards Regulation 8, health protection is at the core of the new arrangements and, as I said earlier, none of us, of any political persuasion, do not very strongly support the direction of travel of the Government. Local authorities are enthusiastic about this role of being responsible for health protection. However, an effective response to an early outbreak or emergency requires clear roles and responsibilities, strong leadership and timely intervention. This regulation does not appear to do any of those things. Indeed, rather than building on the DoH guidance of September 2012 on health protection in local government, in which the Government clearly stated that local authorities would be expected to ensure that partners have effective plans in place and that the director of public health would have a leadership function, these regulations give local authorities no more responsibility than requiring other bodies to draw up plans and requiring the local authorities themselves to issue guidance. There is nothing here to say whether plans will be mandatory or optional. That is hardly encouraging if a major crisis develops with potential or actual loss of life. Would the director of public health have a recourse in law to say, “Not me, guv, I asked them all to issue guidance and they did so and therefore my responsibility is over.”?

15:30

Will the Minister assure me that local authorities, through their directors of public health, will have an active role in protecting health at local level and a statutory responsibility for leadership? Will that role include giving local authorities responsibility for ensuring that all local partners have health protection plans in place and that the local response is co-ordinated effectively? If they are given that mandatory requirement, they will do it. Will he confirm that he will issue guidance to that effect? If the local authority will not be responsible for ensuring that plans are in place or that local responses are co-ordinated, will the Minister explain who will be responsible within those local areas, if it is not the director of public health?

On Regulation 9, I strongly welcome the powers of local authorities to cross-charge for services they offer. I think that that is absolutely right and proper as this will help those authorities which develop specialist services. If one authority in London offers a specialist service for diagnosing sexual health problems and that attracts clients from the rest of London, I think that is a good thing. It is right to have a Rolls Royce service and cross-charging for that seems to me important to sustain a revenue stream.

I am pleased—as I am sure everyone else is—that no service which is currently free will in future be charged for and that no new health service will be charged for either. However, it would be useful for my noble friend to repeat those assurances for the record. The draft regulations state:

“Where a local authority exercises its functions under section 2B of the Act, it may make and recover charges in respect of any of the steps which are prescribed under this regulation”.

I appreciate that Regulation 9(3) clarifies this with regard to future services to improve public health. However, in what circumstances does the Minister envisage that a service to improve public health could be charged for? He mentioned training in his opening remarks. If, for instance, a new contraception service is introduced, would there be a charge for training people to provide that service? Who would pay for that training? Would it be the local authority or the Department of Health? Where would the budget come from? It is conceivable that a new treatment may become available and yet the local authority or, indeed, individuals would have to pay for the staff delivering that treatment to be trained. Will the Minister provide assurances that public health services provided by local authorities will remain subject to the provisions of Section 1(3) of the National Health Service Act 2006 and be free at the point of delivery, and read that into the record? Will he confirm that powers under Section 2B of the Health and Social Care Act 2012 will not be used to impose charges for services that are currently provided free and that individuals will face no further charges for services for improving an individual’s health?

Finally, I come to Part 4 of the regulations, concerning the interface between Healthwatch England and service providers. I am not going to rerun the debates on Healthwatch England, but it is disappointing that we see its role in these regulations only with regard to premises. In other words, Healthwatch can make sure a counselling room is clean and tidy with the necessary flowers and fish tank, but the fact that the person delivering the service may be unqualified, incompetent or even dangerous, or all three, is of less consequence. I exaggerate—not for the first time—but there is nothing in these regulations about the regulation of public health specialists other than medics. The Government made a commitment last January to regulate, by statute, the registration of public health specialists from backgrounds other than medicine and dentistry and acknowledge regulation as a key part of the infrastructure of the new English public health system which starts in April 2013.

We understand, from a letter from Anna Soubry, the Minister for Public Health, that there is, as yet, no planned date for this work, which could take at least two years to complete, and that there are no plans to start until the department’s work on,

“a number of high-priority programmes”,

was completed. The implication is that public health regulation is not a priority, particularly where it concerns individuals other than medics in delivering those services. There is an increasing number of individuals and organisations offering health-related services who are not regulated, trained or accountable, and that is clearly unacceptable. Regulation will provide a crucial mechanism for identifying problems at an early stage and providing opportunities for these to be addressed. The public have a right to be assured that, if things go wrong, there will be accountability, sanctions and procedures to prevent future mistakes. Can the Minister provide reassurance that the statutory regulation of public health specialists from backgrounds other than medicine and dentistry will be in place by the end of 2014, which seems a reasonable timescale? When will work actually commence on the necessary processes for ensuring the implementation of this statutory regulation?

[Lord Collins of Highbury]

I express my thanks to the noble Lord, Lord Willis, for his comprehensive contribution this afternoon. He has covered quite a lot of the questions that I would have asked and there is no point in repeating them. However, I should like to pick up some specific points.

First, in relation to sexual health, like the noble Lord, Lord Willis, we welcome these regulations, particularly the very important principle of the maintenance of open access. HIV has never respected local authority boundaries, nor have other sexually transmitted infections. I have spoken in the Chamber of my concerns about how the new system of commissioning and fragmentation can put at risk regional and sub-regional co-ordination of HIV prevention work. This morning, I visited Positive East, a community facility based in the East End, which does excellent work in a number of boroughs in the east of London. It also participates in outreach and preventive programmes across London and it remains particularly concerned about the future. I appreciate that, while HIV Prevention England is commissioned by Public Health England to run a national HIV programme and local authorities will commission local HIV prevention and testing services, there remains a gap in regional co-ordination. This was highlighted in a health Question in the other place on 15 January, when the Minister assured Members of Parliament that this regional work would continue, but the detail on whether there would be national leadership remains unclear.

What steps will the Government take to encourage co-ordination of sexual health services across boroughs and localities? For example—this was raised by the noble Lord, Lord Willis—25% of HIV prevalence in the UK is in London, which previously had an integrated pan-London programme for HIV prevention. What measures have been put in place, as the noble Lord has already said, to facilitate cross-charging between sexual health clinics for out-of-area residents?

An issue which arises from these regulations is the concern that has been expressed about the pressure on budgets and, certainly, consistency across the country. I am acutely aware that, come the local elections, there will be not so much prioritising of these important issues. This could be a concern. I do not think that sexually transmitted infections have been the highlight of many party manifestos, but they are important issues in public health.

There is no mention in the regulations about the quality of open access health services and the minimum expectation that the Government have of locally commissioned sexual health services. The Minister has repeatedly said that the answer lies in localism—in local circumstances—and that these issues are best addressed locally. However, there is a requirement to ensure that there is proper maintenance of standards on these issues.

Will there be any obligations or duties on local authorities to promote HIV prevention? Currently there are no known incentives on prevention, only on tackling late diagnosis, in the new public health outcome framework.

The other issue which I am particularly concerned about and which I have raised in the House is the question of HIV testing. This is highly fragmented under the new NHS arrangements. I have asked the noble Earl before, and I repeat: how will the Government ensure that HIV testing recommendations from NICE and the British HIV Association are consistently implemented across the country? In some areas of high prevalence it is recommended by NICE that HIV testing should be routinely offered in primary care settings. Will this be implemented? How will this work be funded and provided?

The noble Lord, Lord Willis, also touched on the issue of the treatment of people living with HIV and the treatment of other sexually transmitted infections they may have. I am not sure how that will be covered.

I am also concerned about the question of offering services and treatment through self-management, if you like, for people living with HIV. That is one of the key things I saw at Positive East today. This is not only about the supply of drugs and treatment but about employment advice, general housing conditions and other issues that we have already covered in debates in the Chamber. The funding and support of those activities concerns me. Where is it going to fall? Who is going to take responsibility? Fragmentation is a real worry.

I shall not cover specific local government issues around public health because the noble Lord, Lord Willis, has covered them excellently. However, I wish to pick up on some of the points that the Minister raised in relation to local Healthwatch and its access. We had a major debate on Healthwatch this week, which preceded the Statement on the Francis report on Mid-Staffs. Given the measures outlined in these regulations, will the department review them in the light of the recommendations made by Francis? Issues were raised by Francis which, I suspect, are not adequately covered by the regulations, particularly with regard to access.

15:45

The Minister referred to wanting to have a clear separation of the CQC role from that of Healthwatch. As a patient organisation, particularly in the light of the Francis report, Healthwatch needs to be certain that the CQC is doing its job. It is not a neutral thing. It is not a case of saying, “We’re happy, we don’t need to do that because the CQC is doing it”. Local Healthwatch is not the regulator; it is the voice of the patient. It is the patient who is everywhere and is able to see everything. The idea that we can limit access in the way that is being suggested in these regulations is not altogether clear. Certainly, NALM has raised some of these issues with me. There is an exclusion,

“in respect of any premises, or parts of premises, if the presence of an authorised representative on those premises, or those parts of premises, would compromise … the effective provision of care services”.

What does that mean? What is the role of local Healthwatch? Would the CQC be excluded on the same basis? These are points that NALM has raised with me.

There is another issue about parts of premises that are excluded. We talk about the communal parts of the premises, but there is an exclusion,

“in respect of any premises, or parts of premises, at any time when care services are not being provided on those premises or those parts of premises”.

When premises are closed in order, for example, to renovate or decorate, sometimes it would be highly appropriate for a local Healthwatch to look at the progress of such renovation or at whether it has been done to an appropriate standard, particularly if there have been complaints or issues before.

There is another exclusion,

“if, in the opinion of the services-provider, the authorised representative in seeking to enter and view, or observe the carrying-on of activities on, premises is not acting reasonably and proportionately”.

The Minister mentioned this point but, in the light of the Francis report and what we have heard of Mid Staffs, who is making that judgment about “reasonably and proportionately”? A representative of NALM made the point to me that he was reported by a nursing home manager simply for taking notes as he walked around. That was considered to be not reasonable. I think it is reasonable and proportionate. That concern has been raised by LINk representatives.

LINk representatives have raised other points about areas of premises that might be considered out of bounds. If we are talking about community facilities, then what about kitchens? You go to see the quality of care of social care residents and you are told that you can go into the living or lounge area—and you can see how neat and tidy that is—but you are not permitted to go into the kitchen or other areas where quality really matters. I am not sure about the logic of that.

That covers all the major points. I reiterate that in general terms, as the noble Lord, Lord Willis, has represented it, my party shares the consensus about how important these changes are in terms of public health. We welcome the regulations, but we think that the issues that have been raised with us and that I raised today should be addressed.

[Earl Howe]

My Lords, I am grateful to both noble Lords, my noble friend and the noble Lord, Lord Collins, for their comments and questions, and in particular their overall welcome to these regulations. Quite a number of questions and issues have been raised, and I will endeavour to cover as many as possible now, but if noble Lords will allow I will follow up this debate with a letter on some of the more detailed comments, when I have not got the answers readily to hand.

I was grateful to my noble friend Lord Willis for his constructive opening remarks and for putting these regulations into their fuller context. He is right to flag up the wider dimension that the context of these regulations opens the way to. I begin where he did, on public health research funding. I quite agree about the importance of maintaining that work. Currently, PCTs and strategic health authorities fund public health research from their local spending allocations, in particular paying for public health academic posts, located within academic and research institutions. I can tell him that, in finalising spending plans, officials from the department, from Public Health England and the NHS Commissioning Board are working together to identify and continue this funding for the coming financial year. As soon as I have further news on that front, I will be happy to share it with my noble friend. He can be sure that it is very definitely on everybody’s radar.

My noble friend went on to discuss Regulation 4, which relates to health checks. First, the requirement to offer a health check is to offer the check within five years of a person becoming eligible for it. However, a local authority could, if it wished, offer checks to non- eligible persons, if it considered it appropriate to do so. Local authorities have that freedom; all the regulations do is to lay down the minimum requirements.

Both noble Lords spent some time discussing sexual health services. Improving sexual health is clearly a key part of improving public health and well-being. Our view was, and is, that local authorities are particularly well placed to commission sexual health services, as they will also be commissioning services for other public health issues such as drug and alcohol misuse, weight management and quitting smoking. They are also best placed to make the wider links between sexual health and well-being, such as to education, leisure and family support. Clearly, they will also want to work collaboratively with commissioners of sexual health and HIV services that will remain in the NHS. During our consultation there was strong stakeholder support for local authority commissioning of sexual health services. While it is important to get the arrangements absolutely right—we are clear that there are some issues of detail that we need to resolve—there is broad support out there for the decision that we have taken on this front.

The new commissioning arrangements will allow each organisation—local authorities, clinical commissioning groups and the NHS Commissioning Board—to play to their own strengths and to commission high-quality services for patients. Local authorities will commission most sexual health services: they will be able to make the crucial links between sexual health and other public health services, as I have mentioned. Clinical commissioning groups will commission abortion, sterilisation and vasectomy because these services need to be governed by robust systems of clinical governance, which currently exist in the NHS. HIV treatment will be commissioned by the NHS Commissioning Board, which has specialist expertise in commissioning high-cost, low volume services such as HIV treatment. At a local level, the health and well-being board will bring commissioners together to ensure that there is no fragmentation or gaps in service provision, a concern that the noble Lord, Lord Collins, understandably raised.

As noble Lords will know, these commissioning arrangements were set out in a local government fact sheet on commissioning responsibilities which we published at the end of 2011. However, I emphasise that we have worked, and will continue to work, closely with colleagues in the NHS and local councils to make sure that local authorities and other commissioners experience a smooth transition to their new responsibilities. We intend to conduct a further consultation in 2013 on whether clinical commissioning groups are best placed to commission abortion services in the longer term.

The noble Lord, Lord Collins, mentioned comorbidities, as did my noble friend. A person with comorbidity— let us say HIV and another condition—should clearly receive treatment from the most appropriate source. The two services will often be under the same roof in practice but it is important to ensure that the commissioning of those services is joined up for such patients.

On the issue of charging—both noble Lords asked about this—the first point to emphasise is that an individual who was receiving a health improvement service from the NHS free of charge will continue to receive it free of charge when responsibility for it transfers to local authorities. The kinds of activity that local authorities can charge for are as follows: providing information and advice; providing services or facilities designed to promote healthy living; providing or participating in the provision of training for persons working in, or seeking to work in, the field of health improvement; and making available the services of any person or any facilities—for example, providing staff and facilities to enable a company to conduct public health research.

16:00

Take, for example, a company that wants to offer its staff free help to stop smoking as part of their employment package. A local authority could under its new public health functions decide to provide the company with that service to help individuals to address behaviour that is detrimental to their health. The regulations allow the local authority to recover its costs from the company, but not to make a profit. Without the regulations, the local authority would either have to provide the services to the company free or, more likely, not at all. If the local authority provides a smoking cessation service directly to the public, the regulations will not allow it to charge.

It is worth noting that the regulations specify that a local authority can charge for such activity only where the information, advice or other service or facility has been requested by or agreed with the recipient. A local authority cannot, for example, send unsolicited advice or information to an organisation and then impose a charge.

Local authorities will not be able to charge a person for any service intended to improve that person’s health. If an employer wants to offer its staff a service, then it is open to the local authority to provide that service to the company under its public health duty and to recover its costs, as I have mentioned, but budgets for training staff will, as now, come from a number of sources and local authorities will be able to provide free training if they wish.

My noble friend asked about Section 1(3) of the 2006 Act. Section 1(3) of the Act will apply to local authority public health services and the authority can charge only in the circumstances in Regulation 9 or under existing regulations for prescription and other NHS charges.

He asked about local directors of public health. We expect local authorities and directors of public health to take the leading role in responding to incidents. If the local authority does not believe its advice is being heeded, it will have a duty to escalate the matter to Public Health England and the Secretary of State, who will consider appropriate intervention. There is that backstop arrangement, which should reassure my noble friend and, I hope, the public that there is no question of a service locally being delivered poorly and there being no intervention to put that right.

[Lord Willis of Knaresborough]

Will the Minister state categorically that, in the event of a major public health incident within a local authority area, it will be the director of public health who has the lead responsibility in co-ordinating a response to that event?

[Earl Howe]

We expect that that will be the case but it will depend on the nature of the incident and how big a public health emergency we are dealing with. We might find, for example, that if it is an emergency that covers more than one local authority area, a particular director of public health will take responsibility on behalf of all the local authorities. We would expect Public Health England to be on the scene for any major incident and to advise, but the central point is that there has to be somebody with ultimate responsibility for what goes on on the ground. Clearly, who that person is will depend on how major or minor the incident is and the nature of that incident. It would be open to the director of public health to delegate certain functions but, again, we would expect the director of public health to retain an oversight role to make sure that functions were appropriately performed.

The noble Lord, Lord Collins, referred to the important area of prevention. He expressed concern about local authorities investing in prevention work. I was grateful to him for what he told me about the work currently being done in London on HIV prevention. The mandate to the NHS Commissioning Board does not specifically cover prevention, but local authorities will want to undertake prevention activity because this will improve the health and well-being of their population and reduce costs. Sexual health services are also a preventive activity in their own right—for example, the provision of contraception to prevent unplanned pregnancy and the testing and treatment for STIs to prevent onward transmission.

On HIV, one of the public health outcome indicators is to reduce late HIV diagnosis, and prevention activity can clearly play a crucial role in that. We are aware that in London, in particular, councils will be working together to review arrangements for pan-London HIV prevention work. The noble Lord may well be aware of the work going on to underpin the current pan-London HIV programme. The current programme comes to an end at the end of March and this has been known by all the providers and voluntary sector organisations for some time. Therefore, a needs assessment of pan-London HIV prevention was undertaken in 2011. London Councils and the mayor’s office are absolutely sighted on the need for effective HIV prevention in the capital and urgent discussions are under way about taking this forward from April.

HIV services will continue to be commissioned by the NHS. More generally, local authorities will be able to enter into cross-charging arrangements if they wish. In London, we introduced secondary legislation last year to allow the Greater London Authority to undertake public health activity in partnership with the boroughs, and that was obviously designed to facilitate co-operation across boundaries.

The noble Lord asked how we would ensure that HIV treatment was standardised across the country and whether we were intending to publicise HIV prevention. Local authorities will certainly be able to run awareness and information campaigns, and they will be funded to do so. HIV treatment will, as now, be commissioned by the NHS and be informed by the existing standards and guidance.

My noble friend mentioned the letter from my honourable friend Anna Soubry, which stated that there are no plans to do anything on the regulation of public health specialists at present. He sought reassurance on the regulation of public health specialists being in place by the end of next year. During the debate on the Health and Social Care Bill we made the commitment to regulate non-medical public health consultants after conducting a consultation. That remains the case. However, the process will take 12 to 18 months to complete and so, at this point, I am reluctant to commit to a particular date for implementation. I should be happy to follow up that comment in a letter to my noble friend.

He also raised the issue of the interface between Healthwatch England and services providers. Part 4 refers to the duty on services providers to allow entry to local Healthwatch rather than Healthwatch England. If local Healthwatch representatives observe anything that might be unsafe or poor care of any kind, they can report those matters directly to the Care Quality Commission to investigate. I hope that that addresses an issue also raised by the noble Lord, Lord Collins, because it is clearly very important for local Healthwatch not only to have a hotline to the CQC where necessary but to co-ordinate its work, where relevant, with that of the CQC—exactly as LINks do at the moment.

The noble Lord, Lord Collins, asked me about local Healthwatch in the context of the Francis report, published yesterday. All I can say at this point is that, as the Leader of the House said yesterday, my right honourable friend the Secretary of State will be considering all the recommendations in Robert Francis’s report in detail over the coming weeks. Clearly, we will need to reflect very carefully on the implications of his recommendations and we will be providing an initial response next month.

Finally, the noble Lord, Lord Collins, raised the issue of local Healthwatch being able to enter and view premises and, in doing so, access all areas in those premises—for example, areas being renovated, kitchens and so on. Local Healthwatch representatives will be able to access communal areas but there are restrictions based on the privacy of residents or patients and the need to respect that, and on intruding on the provision of care while it is being delivered. The enter-and-view powers are activities for the purposes of Section 221 and relate to service improvements. These regulations support local Healthwatch’s role in that respect.

On the issue of the reasonableness of local Healthwatch’s enter-and-view activities, the service provider’s view has to be one that is held reasonably; otherwise the provider would be acting unlawfully. Regulation 13 requires local Healthwatch, when on any premises, not to act in a way that would compromise “effective provision of care” or the,

“privacy and dignity of any person”.

These terms bear their ordinary meaning and, in our view, they are clear. They have worked well on the ground so far. They are, of course, based on the 2008 regulations and we are confident that they will serve the new system well.

I am aware that there are several matters of detail that I have not covered but I shall, as promised, look carefully once again in Hansard at all the questions posed by both noble Lords and write accordingly.

Motion agreed.