14:30 - The House divided: - Ayes: 222 / Noes: 291 - Question accordingly negatived.
14:45 - The House divided: - Ayes: 219 / Noes: 293 - Question accordingly negatived.
17:58 - The House divided: - Ayes: 241 / Noes: 288 - Question accordingly negatived.
18:11 - The House divided: - Ayes: 239 / Noes: 297 - Question accordingly negatived.
Jim Shannon
That is the issue, summed up in a couple of sentences. The Minister may look to his civil servants for some direction; he may have it already. If so, that is good news.
The Parliamentary Under-Secretary of State for Health (Dr Daniel Poulter)
May I reiterate what I said many times in my opening remarks, which I hope will be helpful to the hon. Gentleman? Clear safeguards are being put in place to ensure that the data cannot be used for insurance purposes. I give that reassurance again today.
Jim Shannon
Earlier I referred to Macmillan and to Cancer Research UK who, even today, are not convinced. We make these points on behalf of our constituents and the groups that lobby us.
Mr Reed
I absolutely share those concerns. We did not hear anything last night that reassured anybody who understands the Bill. Certainly, Government new clause 34 is not worth the paper that it was hastily written on, and I want to move on to that right now.
Surely it is not too much to expect the democratically elected politician who sits in Cabinet and is responsible for the national health service to be accountable for how the medical data that that service captures is used. Crucially, the Secretary of State for Health is accountable not only to this House but to the people of this country in a way that a quango cannot be and has never been. Such accountability can begin the process of building the trust necessary to ensure the success of projects such as care.data. Without that, QED, the Secretary of State is asking Parliament and the people of this country for permission to remove democratic accountability from how their confidential medical data are used. The implications for the use of patient data in any project are utterly toxic.
I said earlier that it would be tragic if the Government’s failings were to continue to contribute towards the erosion of trust in care.data. Sadly, the Bill provides scope for other regrets. Part 1 seeks to make worthwhile but modest improvements to our care system, falling a long way short of the concept of whole-person care articulated by Labour. The Government new clauses and amendments that we are now discussing, however, and clause 119—the hospital closure clause that we will discuss later—fundamentally disfigure what is without doubt a worthwhile Bill. Perhaps that shows us the two sides of the coalition in the ministerial team. We shall see. None the less, it is a cause for regret.
Trust is at the heart of Government new clause 34. Yesterday, the Minister tried to reassure the House that the new clause would provide the safeguards that people require for the protection of their confidential medical data. He demonstrably failed to do that. Challenged time and again to illustrate how his new clause would facilitate the claims he has made for it, or improve safeguards for patients, he could not do so. Next time, it might be a good idea if the Secretary of State could get the same person to write both the Government amendments and the Government press release, because the amendments and the new clause do not provide what the Government claim they will. Sadly, that erodes trust yet further.
New clause 34 has been made necessary due to the appalling handling of the care.data project by the Government and the resulting erosion of public trust. The truth is that the new clause was hastily tabled again just before the deadline for amendments because the original, botched new clause 14 did not do what the Government said it would. Guess what? New clause 34 does not do what they say it will either. Subsection (3) would amend section 261 of the Health and Social Care Act 2012 to read:
“The Information Centre may disseminate (other than by way of publication), to any such persons and in such form and manner and at such times as it considers appropriate.
But the Information Centre may do so only if it considers that disseminating the information would be for the purposes of—
(a) the provision of health care or adult social care;
(b) the promotion of health.”
Yesterday, the Minister was given numerous opportunities to explain how this provision would prohibit private health insurance companies from gaining access to our data—he could not do so. The new clause provides for entirely elastic definitions that, in practice, will have a limitless application.
What happens when a private health insurance company requests information from the HSCIC on the basis that it was going to conduct specific controlled, randomised assessments of the impact of physical activity on various age groups in order to promote and recommend appropriate physical activity to its policyholders— perhaps with a view to reducing their premiums? That is clearly being used to promote health and well-being, so how would new clause 34 stop it? It would not—under the proposed wording, it would be facilitated. Once such a company has the data, what prevents it from using them for other means? Under our new clause 25, such use would be a clear offence, but sadly the Government have offered no such safeguards.
It is no wonder the public cannot trust Ministers. Just a few weeks ago, in Committee room 9, the Minister assured me and the rest of the Public Bill Committee:
“There are strict controls about the release of potentially identifiable information; for example, that type of information would only ever be released to approved organisations for approved purposes”.––[Official Report, Care Public Bill Committee, 30 January 2014; c. 516.]
Yet these strict controls fail to appear time and again. The only comfort offered to the public is that those issues will be resolved by regulations drafted by Ministers in whom confidence and trust has been lost—that is not good enough. With that in mind, can the Minister explain who signed off the release of data covering 47 million patients that were obtained by the Institute and Faculty of Actuaries? Such issues must be addressed, and it seems likely that when he eventually responds to the Chair of the Health Committee, the Secretary of State will give cause for yet further concern about how patient data are being used.
In responding to the news about that massive data breach, a Department of Health source stated:
“The rules changed last year so this would no longer be allowed. Information like this can only be accessed now if there is a clear benefit to improving health or health systems.”
It is chaos: if the rules have already been changed, the new clause tabled in haste by the Minister is full of superfluous subsections. Why does he need to change the rules again if they have already been changed?
We have a golden opportunity to get this right. The more that patients allow their data to be used, the greater the positive effects of care.data. These issues will not be resolved today and they will not be resolved by any of the Government proposals before us. If we want care.data and schemes like it to work in the future, we need to establish trust. Getting this right will save lives. Accountability is critical when accessing and using the most sensitive personal data, and the whole House can send a message to the people of this country—that we understand their concerns, that we are serious about safeguarding their most private data and that we are determined to continue to improve our health services—by voting for new clause 25 and amendment 29.
Dr Poulter
I thank hon. Members for the many comments and pertinent points made during the debate, both last night and today, and I will do my best to respond to the main issues raised. In particular, I wish briefly to respond to a couple of points raised by the shadow Minister. He talked about rank incompetence, but let us remember that the previous Government wasted £10 billion on an NHS IT project that was not fit for purpose and did not work. So Government Members will take no lessons about information services in the NHS from Labour Members, given that their Government wasted £10 billion, which I would have rather seen spent on front-line patient care. Furthermore, Labour Members repeatedly raise the issue of the lack of safeguards, but they failed to put them in place when they were in government. Only this Government have put in place safeguards, doing so through the 2012 Act, which I outlined clearly in my contribution last night, and through the further reassurances provided by the proposals we are making today.
Liz Kendall (Leicester West) (Lab)
We all want to see better, more integrated care, so why did Ministers not keep a closer eye on the cock-up that has been made with care.data?
Dr Poulter
It was very clear, as NHS England has acknowledged, that the communication exercise put forward was not ideal. That is part of the reason why we are debating the issue today. I hope I have brought further reassurance to hon. Members about the fact that the 2012 Act does put in place robust safeguards, which were not in place under the previous Labour Government. We have put in place the safeguards through that Act and through the Government amendments we have tabled.
Mr Jamie Reed
Does the Minister accept any responsibility for this near disastrous collapse of the care.data scheme, or is it all NHS England’s fault?
Dr Poulter
As the hon. Gentleman will be aware, under the 2012 Act, NHS England has responsibility for much of the operational day-to-day performance of the NHS, and NHS England has accepted responsibility for the fact that it did not communicate some of the information about care.data in the best way. But I hope that by referring the House to the safeguards we have in the 2012 Act and the additional safeguards we are putting in place through our Government amendments, we can reassure hon. Members that data will be used for the benefit of the health and care system, and for the promotion of health.
I wish now to deal with some of the good points raised in the debate and I hope to bring further reassurance to hon. Members. My hon. Friend the Member for Totnes (Dr Wollaston) rightly asked about an issue that came up recently in the Health Committee: whether data would be allowed to be passed on to the Department for Work and Pensions. The overriding purpose of any release to the DWP could not conceivably be the provision of health care or adult social care in England or the promotion of health so, no, that could not happen under the 2012 Act or under the provisions we have introduced today.
My hon. Friend also raised issues relating to the HSCIC and free text. As the hon. Member for Worsley and Eccles South (Barbara Keeley) said, it was outlined in the Health Committee evidence sessions that the use of free text had been examined and had, in effect, been ruled out—I hope that my recollection is correct on that. To give further reassurance, may I say that the HSCIC made it clear that the General Practice Extraction Service that we have in place to support the extraction of the data from those GP systems for care.data has taken great care to ensure that we extract only the coded information in those records, not the free text notes, which patients may well have shared during consultations with their GPs? In addition, a number of explicit conditions were excluded from those extractions, including issues relating to HIV/AIDS; sexually transmitted infections; termination of pregnancy; in vitro fertilisation treatment; complaints; convictions; imprisonment; and abuse by others. Clear safeguards and reassurances have been established on those issues, and I hope that reassures my hon. Friend further.
Dr Wollaston
Will the Minister confirm that there is no way that free text will be uploaded, either now or in the future?
Dr Poulter
As things stand at the moment, free text is not going to be used. That is the reassurance given by the HSCIC; it clearly does not envisage that text being used and it has given reassurances on that. That is reassuring for me and I hope it is reassuring to my hon. Friend. There are those additional safeguards in place, particularly for vulnerable patient groups, to make sure that more personal data about convictions, imprisonment and abuse by others will not be collected by the information centre.
Dr Poulter
I will deal first with the points made by the hon. Member for Worsley and Eccles South and then I will give way. I inferred from the hon. Lady’s remarks that she thought that GPs should be able to opt out for their patients. However, we have made it clear that it is a decision not for GPs to make on behalf of their patients but for the patients themselves. Furthermore, people can, at any time, object or change their mind, and the Health and Social Care Information Centre must respect their wishes and remove their data from records.
Grahame M. Morris
I am grateful to the Minister for giving way. Will he clarify the point raised by the hon. Member for Totnes (Dr Wollaston) in relation to vulnerable patient groups? Does that include patients with very rare conditions who could be identified, even from anonymised data, because they are part of a relatively small group?
Dr Poulter
Of course strict criteria are in place under the 2012 Act about the use of data where a patient could be identified. The Health and Social Care Information Centre cannot randomly release data that would identify patients, except where there are specific public policy reasons for doing so, such as in the event of a flu pandemic or a public emergency. There are strong safeguards in place under that legislation to protect patient data. It would be wrong of the hon. Gentleman—I know he often inadvertently misleads himself in some of his conclusions and goes around in circles in his remarks—to confuse Members and to confuse the House. The legislation is clear. He has been in many debates on the matter over the past few weeks, and strong protections are in place to protect patient confidentiality and to prevent patients from being inappropriately identified.
I do not want to be drawn into individual cases, but the hon. Member for Worsley and Eccles South also raised the issue of the MedRed BT Health Cloud, which will provide public access in the United States to 50 million de-identified patient records from the Health and Social Care Information Centre in the UK. We have clarified the matter. The data referred to are not confidential, but are published anonymous data of the aggregate population—not at patient level. The data are available freely to any member of the public or organisation via data.gov.uk. There is no conspiracy about the data; they are freely available to any one of us in this Chamber or to any member of the public.
It is worth highlighting the powers of the Secretary of State, which the shadow Minister also raised in his comments. Let me reassure the hon. Member for Worsley and Eccles South in respect of the amendment that she has tabled today. Section 245 of the 2012 Act enables the Secretary of State to direct the Health and Social Care Information Centre to establish information systems—to collect data—including systems on how to carry out that collection.
The Secretary of State can also direct the Health and Social Care Information Centre to report on any matter about its functions. If concerns were raised about the issue of free text data, which my hon. Friend the Member for Totnes mentioned, the Secretary of State could pass on directions to the Health and Social Care Information Centre.
Barbara Keeley
The Minister referred to my manuscript amendment on parliamentary oversight of the actions of the HSCIC. I tabled that amendment late because there is a belief that the Secretary of State and the Minister have not been asking the right questions. It has taken the Health Committee and other Members making inquiries to bring out all the issues. We need to keep on doing that, which is why I tabled that important amendment. There was not time to do it in a timely way, but that is why it was done.
Dr Poulter
As a Member of the previous Government, it is a pity that the hon. Lady did not take these issues more seriously at the time. It has been left to the current Government to fix the problem through the 2012 Act and the amendments that we have tabled today. That is not good enough and she knows it. It is also the case that she has not read the 2012 Act properly, because I have just outlined the section 245 powers that the Secretary of State has. That is parliamentary oversight in anyone’s terms.
Finally, let me turn to amendment 29 tabled by the hon. Member for Copeland (Mr Reed). As he has said:
“The importance of such data in medical research, and in the synthesis of new treatments and better care, cannot be overstated. In research terms, more information about how people with certain conditions react to treatments can led to better research being undertaken, which uses resources more efficiently and improves a patient’s quality of life.” ––[Official Report, Care [Lords] Public Bill Committee, 30 January 2014; c. 513.]
I completely agree with that. It is important that we uphold a person’s right to confidentiality while enabling the use of information to improve the current and future health and care of the population, with appropriate safeguards to protect confidentiality.
The Health Service (Control of Patient Information) Regulations 2002 made under section 251 of the National Health Service Act 2006 modify the common law obligations of confidentiality. It allows researchers, public health staff and other medical practitioners to access information where there is no reasonably practicable way of obtaining consent to use such information for the purposes of medical research. That is in the interests of improving patient care or in the public interest.
Amendment 29 requires the Secretary State to give approval for the processing of confidential patient information for research purposes. In January 2011, the Academy of Medical Sciences published a review of the regulation and governance of health research. It criticised the complexity of the arrangements for regulating the use of patient information, saying that they are a significant barrier to research. None of us in this House wishes to put barriers in the way of medical research. The Secretary of State has already delegated the function of the approval of processing confidential patient information for research purposes to the existing Health Research Authority special health authority. The 2002 regulations as amended by this Bill would give the new HRA this function directly.
Under this Bill, the HRA would be responsible for overseeing the ethical review of health and adult social care research. As access to patient information may involve the consideration of ethical issues, it makes sense for the HRA to make decisions on applications for access to confidential patient information for research purposes.
Robust legislative safeguards ensure approval for access to patient information for research purposes is given appropriately by the HRA. These include a condition that the HRA may approve processing of patient information for research purposes only if approval has been given by a research ethics committee, established or recognised by the HRA, and a requirement that the new HRA appoints an independent committee to provide advice on applications to process patient information. This provides continuity for the committee known as the confidentiality advisory group, which I spoke about earlier in my opening remarks.
Dr Poulter
If my hon. Friend will forgive me, I will not give way. I have only two minutes left, and I want to address some of the other points made in the debate.
The HRA was set up to streamline approvals for research. The Academy of Medical Sciences has said that the transfer of responsibility for the research use of confidential patient information to the HRA provides a good opportunity to reduce the complexity in this area of regulation and governance that has in the past led to conflicting interpretations of it by researchers, trusts, patients and other stakeholders. It brings important clarity to the people whom we care about the most—the patients and the users of our health and care services.
Given those reassurances, I hope that the hon. Member for Copeland (Mr Reed) will withdraw his amendment and that Members will feel able to support the Government’s revised clauses in the interests of bringing greater clarity to safeguard patient confidentiality in the use of health and care information.
I am also grateful to my hon. Friend the Member for Totnes and other colleagues for tabling amendments (a) and (b) to new clause 34. It is clear that we share the desire that the huge wealth of data available through the health and care information system must support research to improve health and care. Although I welcome the intention behind amendment (a), which is to clarify that data should generally be disseminated only for purposes that improve health and care, the proposed wording would have the unintended effect of closing down access to data for some wholly legitimate purposes. For example, it might effectively block the Health and Social Care Information Centre from disseminating data that could be used to ensure that a particular health care service change will not have a negative impact on current levels of safety and quality of care or, worse, on the prevention of harm. I am sure that we would all want to avoid such an unintended consequence in the wake of the Francis report and the need to use health and care data properly to expose the rare examples in our NHS and care system of care that does not meet the standards we expect.
I have done my best to address many of the concerns raised in the debate. The care.data programme is a good one that we should all support. This Government, unlike the previous Government, are ensuring that we have proper safeguards in place to protect patient confidentiality.
Question put and agreed to.
New clause 34 accordingly read a Second time, and added to the Bill.
Andy Burnham (Leigh) (Lab)
I rise to speak to my amendment 30. When the coalition came to office, it made a series of grand promises about future changes to hospital services. The coalition agreement proclaimed:
“We will stop the centrally dictated closure of A&E and maternity wards, so that people have better access to local services.”
GPs were to be put in the driving seat and given the power to shape local services. That was then; now we have a Secretary of State who has not just failed to stop centrally dictated closures but wants to legislate to make them much easier. What a difference four years make.
Clause 119 allows a hospital to be closed or downgraded simply because it happens to be near a failing one. It denies local people a meaningful say in those life and death decisions. It creates an entirely new route for hospital reconfiguration—top-down and finance-led. It subverts the established process in the NHS, which requires that any changes to hospitals should first and foremost be about saving lives, rather than saving money. It puts management consultants, not medical consultants or GPs, in the driving seat. By any reckoning, it represents a major change of policy from the one originally set out by the coalition.
Dr Poulter
If the right hon. Gentleman is so concerned about issues of financial failure, why did the Health Act 2009, through which the previous Labour Government introduced the regime, allow trust special administrators to consider only financial failure, not care failure, a fact which we are changing in the Bill?
Andy Burnham
The Minister anticipates me—he has hit the nail on the head. It was a different vehicle. It was a vehicle for financial and administrative reconfiguration, not service reconfiguration. In our view, those important decisions cannot be imposed on people, but should follow an established process. It should begin with local consultation, with local elected members involved in overview and scrutiny having the chance to make challenges, and then it should be referred for independent reconfiguration. That was the previous Government’s established policy, and in my view it is the right way to make changes in the NHS. As I shall explain, that is why I believe that he and his colleagues are spectacularly wrong.
Andy Burnham
I agree with my hon. Friend. That is the point that the Minister revealed in his intervention. The original power was designed for something entirely different. It was designed to deal with financial failure in a trust. It put in place measures to dissolve and rescue that trust through administrative reconfiguration. It was never intended as a vehicle for back-door reconfiguration across a whole health economy. That is where the Government got themselves into trouble. The fact that they cannot see that now, after the court has told them that they went way beyond Parliament’s original intention, reflects badly on their ability to listen.
Andy Burnham
This is where the right hon. Gentleman and I differ. I believe that we need to begin by asking whether there is a clinical case for change and build from there. Clause 119 seeks to turn things around. It starts with the financial case for change and the clinical issues come second. The previous Government established a very clear policy, advised by Sir Ian Carruthers, that the clinical case must be front and centre, and that we must build from there. Clause 119 completely subverts that.
Dr Poulter
The shadow Secretary of State is rewriting history. Under the TSA clause written by the Labour Government, only financial failure could be considered as part of a trust special administrator regime. That is not the case under the changes in the Bill, in which it is about patient care. The Care Quality Commission has a clear role in assuring that patient care. Will he now accept that?
Andy Burnham
The Minister makes my point again. The powers dealt only with financial failure. That is the point. The Government tried to misappropriate those powers and use them as a back-door route to impose reconfiguration on local communities. That is where they got into trouble. That is why the High Court said that they were acting beyond their powers and breaking Parliament’s original intention in the legislation. In his two interventions, he has made my fundamental case, which is that this is the wrong vehicle for making major changes to hospital services.
Andy Burnham
I will make some progress but I will give way to the hon. Gentleman before the end of my speech.
Let me set out more of the background, because the Minister raised it a moment ago. In 2009 I took proposals through the House to create a process that could be used in extremis to deal with a trust that had got into serious financial problems. That was a financial and administrative vehicle, not a vehicle for widespread service change across the health economy. That is why the High Court was quite correct in upholding Parliament’s original intention when it accepted the case of the people of Lewisham against the Secretary of State, and threw out his plan to downgrade a much-loved and successful hospital. At that point, common decency would have suggested that the right response to the reverse in court would have been to listen to the court and bow down gracefully. Instead, it appears for all the world as if in a fit of pique, the Secretary of State is changing the law to get his way because he can. Imagine the outcry if someone caught breaking the law could simply come along and change it to their satisfaction. We would not accept that for burglars, and we should not accept it for politicians.
Dr Poulter
The right hon. Gentleman is being very generous in giving way. He makes the point that, during his time in office, the regime was very limited. In the interests of consistency, I point out that page 6 of his own impact assessment for the TSA regime in May 2009 states:
“NHS Trusts…are not free-floating, commercial organisations …State-owned providers are part of a wider NHS system.”
That directly contradicts what the right hon. Gentleman has just been saying.
Andy Burnham
Is the Minister listening to the debate and to what I am saying? I have explained to him carefully that that was a vehicle for financial and administrative reconfiguration. Yes, a neighbouring trust might have had to come and help with a solution to carry on with the administration and the running of that trust. That is the point, and that is what he has just read out. It was never a vehicle for service change—I do not know how many times I can make that point to the Minister before he actually listens.
Sir Tony Baldry (Banbury) (Con)
I have left instructions for my body to be left to Oxford university medical school, partly because there is quite a lot of it, but also because I hope that, in that way, I can demonstrate that engraved on my heart are the words, “Keep the Horton General”. When the right hon. Member for Leigh (Andy Burnham) was Secretary of State for Health, my local general hospital was threatened with the downgrading of its maternity and children’s services. We went to the health overview and scrutiny committee, which referred matters to the independent reconfiguration panel. As a consequence, we now have consultant-delivered children’s services and a consultant-led maternity service. I, too, am slightly disappointed that the Secretary of State is not here to listen to the debate, because I am concerned about the proposals as someone who has had to contest the downgrading of hospital services.
I have some questions to put briefly to my hon. Friend the Minister. The “Dear colleague” letter circulated to us gives the impression that the powers in the proposals will be used only in exceptional circumstances, when services are clinically unsafe or when a trust is financially insolvent. However, hon. Members know that many trusts will end up with a deficit this year. I need the Minister’s assurance that the measures will be used in truly exceptional circumstances. They have been used only twice so far, in Mid Staffordshire and Lewisham. However, if TSAs are to be used simply if a trust moves into deficit, rather than going into a process of health overview and scrutiny committees and the Independent Reconfiguration Panel, that is a matter of great concern.
Dr Poulter
I hope I can reassure my hon. Friend on that now, before my closing remarks. The right hon. Member for Leigh (Andy Burnham) did his best to conflate routine service reconfiguration, which should be clinically led in the best interests of patients, with those in extremis measures, which have been used only twice in five years. They were used only in circumstances of extreme hospital failure when patients’ lives were at risk. There is a clear distinction. I hope my hon. Friend finds that reassuring.
Sir Tony Baldry
I do find that reassuring, but I have a final question that I hope my hon. Friend will address when he winds up the debate. There has to be a trigger, but what will the trigger be for these extreme circumstances? In other words, what distinguishes a proposal for hospital reconfiguration, in which local people can go to the health overview and scrutiny committee and the Independent Reconfiguration Panel, from a crisis situation, such as occurred in Mid Staffordshire and may have occurred in Lewisham? We all have local hospitals and we all need to be able to explain to our constituents how we might find ourselves in the circumstances of these short-cut situations. We really need Ministers to make it clear to the House that these powers will be used in extremis, and I hope that my hon. Friend will address that point when he winds up.
Heidi Alexander
The experiences in Stafford and in Lewisham have probably been very similar. Multiple public meetings were run in a chaotic and haphazard fashion, and if I had not intervened in this particular meeting in Catford to try to calm the audience down and enable them to ask questions, I am not sure whether it would have been able to proceed.
We have heard about the quality of the consultation in Lewisham. The fact that the online consultation did not include a direct question about the closure of accident and emergency services and maternity services at Lewisham hospital beggars belief. My constituents were asked whether they agreed that acute services should be consolidated on four instead of five sites in south-east London. It is no wonder they came to me asking, “Where is the question about Lewisham A and E?” As my right hon. Friend the Member for Lewisham, Deptford (Dame Joan Ruddock) said, the consultation contained no direct question about the sale of two thirds of the land. There was a question about the sale of land at the hospitals that were placed in administration, but there was no such question about Lewisham hospital. We must be under no illusion that if clause 119 had been on the statute book at the time the administrator made recommendations about Lewisham hospital, its full A and E, its full maternity service and its excellent paediatric unit would now be closing.
Many people have said to me that I am somehow against change in the NHS, but nothing could be further from the truth. We have already heard about the successful changes to stroke care in the capital. They did not come about overnight, or over 45 nights or 75 nights; they came about as a result of clear and calm consultation and communication with residents. They came about as a result of clinicians, not accountants, being in the driving seat. The public rightly care about their NHS and the local health services to which they have access. As I said on Second Reading, that is because people experience the best and the worst moment of their lives in our hospitals. It is right that they have their say in a process that is fit for purpose, but an extended and augmented TSA process, which the Government propose through clause 119, is not the right way to take decisions of such significance and which excite such public interest.
The Government have tried to spin clause 119 as some sort of clarification of existing policy. That is nonsense. It is a direct result of the Lewisham hospital case that was heard in the courts. We know that the previous Government produced guidance that said that the TSA regime should not be used as a back-door approach to reconfiguration. This is a fundamental change in policy. It removes the legal protection that currently exists for successful hospitals located adjacent to failing hospitals that have been placed into administration.
The Government also claim that such a process would be used only in exceptional circumstances, but how do we know how often it will be used in future? I press the Minister to respond to the point made by the shadow Health Secretary about whether he has had any discussions with his officials about other hospital trusts being placed into administration and about applying the unsustainable provider regime elsewhere.
Dr Poulter
Let me place it on the record that, as far as I am aware, there have been no discussions involving either me or my ministerial colleagues about applying the TSA regime elsewhere.
Heidi Alexander
That is useful. I am sure that Members are grateful to hear that from the Minister, but we know that there are many trusts in serious financial difficulties. Given the huge pressures on the NHS at the moment, this regime could be applied in many more places in the future. The truth of the matter is that the TSA regime will be used as a steamroller to force through the closure and downgrading of hospital services with limited public consultation, using a process that is set up in a way that creates public scepticism and mistrust from the word go.
The Government want to change the law to allow them to do elsewhere what the courts told them they could not do in Lewisham. As I have said already, I would not want to inflict that chaos on anyone else. It damages trust not only in NHS leaders who are meant to be leading change but in our democracy.
I wish to say a few words about new clause 16. As I have already said, I will vote for the new clause if the right hon. Member for Sutton and Cheam pushes it to a vote this evening, because it offers a limited improvement on clause 119. None the less, it raises its own set of questions. The new clause leaves clause 119 in the Bill, so it still allows an administrator appointed to a failing hospital trust to make recommendations about services provided at successful neighbouring hospitals, which are not part of the trust to which the administrator has been appointed.
As I understand it, the right hon. Gentleman’s new clause would give power to the commissioners of such services at the affected hospital outside the failing trust to have some sort of veto over whether the recommendations go any further. It suggests that if the commissioners of services at the affected hospital, such as Lewisham, agree with the changes being proposed, full public and patient consultation would kick in, consistent with the normal levels of communication and engagement that are required in full-service reconfigurations. If the local commissioners disagree with the recommendations, they can, if I understand his new clause correctly, call the process to a complete halt. I can see why that has some attractions, because it seems to provide some kind of brake on the all-encompassing powers of an administrator, and for that reason I am content to support it. However, it does not provide an entirely coherent solution to the problem that lies at the heart of clause 119.
Steve Baker
I have listened with quiet astonishment as Opposition Members have suggested that the NHS previously offered meaningful accountability and public control.
In the manner in which the right hon. Member for Leigh (Andy Burnham) spoke to amendment 30, he viciously punched a raw and delicate bruise in Wycombe. As I indicated in my intervention, it was under the last Government that we lost A and E services, maternity services and paediatrics. Years later, all that people want is to have those services back. They want an emergency unit that is capable of accepting whoever turns up. To use the jargon, they want the treatment of undifferentiated emergency patients. The NHS should not be offering constant excuses for why that cannot be provided. God knows, we pay enough in tax and in salaries that people ought to be creative enough to figure out how to offer the treatment of undifferentiated emergency patients at local hospitals like the one in Wycombe. There is a proposal to do so, which I will return to another day,
I have found myself listening to some sort of exposition of a democratic utopia that has never existed. When considering how this has been positioned—the idea that it is about reconfiguration rather than urgent procedures when a trust is in extreme difficulty—will the Minister reassure me that the Government did not establish clinical commissioning groups and health and wellbeing boards, and the rest, just so that they could use this clause and power to override everything else they have put in place?
Dr Poulter
I am happy to give my hon. Friend that reassurance. We believe in locally led commissioning and in listening to patients locally. That is what devising services locally is about. This clause is not to be conflated with normal procedures for designing and arranging local hospital services. I hope that that reassures my hon. Friend and other hon. Members.
Steve Baker
I am extremely grateful to the Minister for that reassurance because in my constituency there is really only one story: the loss of services, and, because of the way the clause has been presented by Labour Members, people are worried about that.
It has been said that these hospitals are categorically different because they exist in a broader health economy, but that is not why they are different. Any business exists as part of a wider economy with dependencies and so on—the hon. Member for Lewisham West and Penge (Jim Dowd) suggested the example of Comet versus Currys. In private enterprise, if the administrator turned up and shut down our competitors when we failed, it would obviously be absurd, but the truth is that both sides of the House have made a positive decision to use the techniques of state socialism to provide health care. That choice has consequences, one of which is this clause.
Dr Poulter
I know that my hon. Friend has campaigned tirelessly for her local trust and I can reassure her that there are no plans for the TSA to have any involvement in the issues that she has mentioned locally. It would be wrong and irresponsible for people to conflate those issues. There are local processes in place and they will continue.
Karen Lumley
One of the big successes is the creation of local commissioners. In my patch, Jonathan Wells has continually stood up for the people of Redditch in this reorganisation. Will the Minister clarify how much involvement the commissioners would have in any administration case?
Forty days is a short time indeed. As I said earlier, I agree with the principle, but I do not think that it has been thought through enough. No one would want an unsafe hospital in their patch, but we all want an NHS that treats our constituents at a local level if possible. The Minister has allayed some of my fears, and I thank him for that, but there is a great deal of concern in my constituency.
Mr Burns
No. I am about to conclude as I know the winding-up speeches have to begin.
In conclusion, this is an important power, and it is there to be used in very exceptional circumstances. It is factually incorrect and it will scare people to accuse any Government of using the power to reconfigure services. It will not be used for that. Reconfiguration will go through the correct processes and be based locally, with the local health economy and local people and with the input of organisations such as the health and wellbeing board. It would be foolish, as I think the previous Government agreed, not to have an emergency fall-back position to secure that. That is why we had the original power under Labour’s legislation, and my right hon. Friend the Secretary of State is continuing that power and fine-tuning it.
Dr Poulter
I thank all my hon. Friends and other hon. Members for their contributions to this important debate. I shall respond to as much of what has been said as I can in the time available.
The House is being asked to consider specific changes the Government are making to the existing trust special administrator regime, which was introduced under the previous Government. I stress at the outset that the TSA regime will not be used routinely, and will only be used when all other processes at a local level to deal with the challenges of hospitals have been exhausted. The usual approach for locally led reconfigurations will remain. TSAs are for rare and extreme cases of failure. This is not a power to be used to reconfigure services routinely—we need to get that right at the outset. This is a system of last resort, and other actions will of course be taken first to address the problems of trusts in difficulty.
Richard Fuller
Let me make the Minister aware of a real and live example: the decision of Bedford and Milton Keynes clinical commissioning groups to look at their hospitals in an ongoing review. Will the Minister provide me with a hand-on-heart, job-on-the-line assurance that these powers will not be used in that review?
Dr Poulter
I can assure my hon. Friend absolutely that these are locally driven reviews of clinical services—driven by local commissioners, clinically led and absolutely nothing to do with the TSA process which we are discussing today. Any scaremongering that is taking place locally is, frankly, outrageous and to the detriment of the hard work that local professionals are doing to design the right health care services.
As I said, the TSA system is one of last resort. It is about ensuring that local solutions are initially found for trusts in difficulty. That may include support from the NHS Trust Development Authority or Monitor, as part of a special measures process, or it may involve more rigorous inspections by the CQC. Other support may include requiring the publication of action plans to tackle quality or financial problems, buddying with other trusts, or making management changes. All other such processes will have had to be exhausted before the TSA process would be necessary.
David Rutley (Macclesfield) (Con)
With 11 areas identified as having challenges to the health economy, will the Minister give reassurances that proper checks and balances are in place so that the TSA powers will be used only in isolated, limited and exceptional circumstances?
Dr Poulter
That is absolutely the case. It is absolutely wrong to conflate the fact—as Opposition Members are trying to do—that from time to time even good hospitals occasionally run deficits with the TSA regime. This is a power of last resort; it is not a power that is routinely used. Local measures are in place to support hospitals to get their finances in order and to ensure that where there are care quality problems, they are addressed promptly to the benefit of patients.
Andy Burnham
The Minister was saying that all other measures should be explored first, in particular co-operation—buddying, he said—between hospitals. If that is the case, why did the Competition Commission step in to prevent sensible collaboration between two hospitals on the south coast, Bournemouth and Poole? How is what he has just said consistent with the Health and Social Care Act 2012, which requires hospitals to compete, not to collaborate?
Dr Poulter
As part of our changes in the wake of the Mid Staffordshire inquiry—changes the right hon. Gentleman would be wise to heed and learn lessons from, if he should be lucky enough ever to be on the Government Benches again—we have made it clear that we need to ensure that where there are care quality failures, hospitals learn to put such problems right much more promptly than they have done in the past. That is why we put in place buddying mechanisms and why we put trusts in special measures, to deal with issues quickly and effectively to ensure that hospital services are put back on track and patients can be properly protected.
Christopher Pincher (Tamworth) (Con)
Does the Minister recognise that the reason why there is concern about clause 119—with due respect to the shadow Secretary of State, I would say it is misplaced concern—is that there is legitimate concern about the way routine reconfiguration mechanisms work? Time after time, consultation does not appear to work on the ground. I have some experience of that in my constituency, where the Burton hospital trust is attempting to reconfigure our services.
Dr Poulter
My hon. Friend makes a good point, which has been made by Government Members throughout this debate. Under the previous Government, in particular, many people felt that things were done to them with their local NHS, rather than done in the best interests of local patients. Importantly, decisions were very rarely made with clinical leadership under the previous Government. Proper patient consultation and patient engagement did not take place. I have a list with me of maternity units downgraded under Labour; it is right to say that individual reconfiguration decisions need to be looked at on their merits, but there was a long and tragic history under the previous Government of the public, patients and local clinicians not being properly engaged in the process. That is why our Government have introduced a better process whereby, as my right hon. Friend the Member for Chelmsford (Mr Burns) pointed out, decisions about local health care services under our 2012 Act are led now by clinicians through the clinical commissioning groups. We now have health and wellbeing boards, which is an important step forward in better joining up and integrating the health and care system that we all believe in, and in ensuring that democratically elected local authorities have more oversight of our health and care system. Those are important steps forward and this Government should be proud of them. They indicate that decisions should be made locally for the benefit of local people, and that is how things routinely happen.
The trust special administrator regime is not used lightly; it is used in extremis, which is why it has been used only twice in the past five years.
Dr Poulter
Let me make a little progress, because I have been generous in giving way.
Let us consider the following:
“The vast majority of trusts perform well, but in the rare instances where that is not the case, there must be transparent processes in place to deal with poor performance.”—[Official Report, 8 June 2009; Vol. 493, c. 544.]
I completely agree with those words—the right hon. Member for Leigh (Andy Burnham) used them when he described the purpose of the regime to this House in 2009. This is Labour’s regime, which it now tries to disown in opposition. The TSA regime is only ever used as the very last resort, and provisions in the Care Bill will introduce, importantly, a new role for the Care Quality Commission for triggering the regime when there has been a serious failure of quality; the emphasis will now be on quality, rather than merely on financial failure.
Clause 119 respects the coalition agreement that routine service changes will be locally led; it is about protecting patients and ensuring we can act rapidly and effectively in their best interests in examples of extreme failure. It may therefore be helpful if I set out some of the changes and improvements we are making to the regime under clause 119.
Steve Brine (Winchester) (Con)
I think I know the answer to this, but the opposite has been said so many times in the past three and a quarter hours that it is worth saying it again. The Minister knows that my local foundation trust is undergoing proposals that will lead to a public consultation on reconfiguration, which is supported on clinical grounds by the commissioners. Whatever view local representatives and others take on that—I am far from sold on this at the moment—will he confirm to me, as he did to my hon. Friend the Member for Bedford (Richard Fuller), that neither he nor his administrators will be on a train to Winchester any time soon?
Dr Poulter
My hon. Friend is absolutely right in what he says. These are decisions, under the legislation that this Government introduced, that are being led by local commissioners and local clinicians engaging with patients; they are nothing to do with the TSA regime we are discussing today, which deals with examples of extreme failure in the NHS.
Dr Poulter
I do need to make some progress, as I have been generous in giving way. If hon. Members will let me make some progress, I may give way again a little later.
Clause 119 was introduced following calls to the Government by key stakeholders representing NHS providers—the Foundation Trust Network and the NHS Confederation. Like us, they recognise the experience of how the regime has operated. They know that issues of financial and clinical sustainability of health services nearly always cross organisational boundaries, and they were clear that the Labour Government’s regime needed amendments to make it effective in the spirit that the right hon. Member for Leigh intended when he created it in 2009. Let me read out again what was said in the impact assessment to the 2009 TSA regime—his regime. It states:
“NHS Trusts…are not free-floating, commercial organisations.”
It also says:
“State-owned providers are part of a wider NHS system.”
We fully agree with that, and that is what we are ensuring we take into account in the TSA regime. That is what clause 119 is about. Clause 119 would extend the remit of a TSA to make recommendations that may apply to—
Dr Poulter
I may give way in a few moments, but I need to make a bit of progress. The clause would extend the remit of a TSA to make recommendations that may apply to services beyond the confines of the trust in administration. The Secretary of State or, in the case of foundation trusts, Monitor, will be able to make decisions based on those wider powers. Where severe and prolonged problems exist, an administrator must be able to recommend a solution in the best interests of local patients. Only then can we resolve the situation in a sensible, holistic way and ensure safe and sustainable patient care. That is what the impact assessment said of the 2009 TSA regime, and something the Government are ensuring that we deliver, even though the previous Government failed to deliver it.
Dr Poulter
I will take the shadow Secretary of State in preference to the hon. Member for Easington (Grahame M. Morris).
Andy Burnham
The Minister is being generous. He has made the argument all afternoon that he is doing what I was doing; he is just using the powers that I created. That is the crux of his argument. If that is the case, why did three judges rule that this Government had broken Parliament’s original intention when they passed those powers?
Dr Poulter
Quite frankly, it was because the right hon. Gentleman’s legislation was not worded effectively enough—[Interruption.]
Madam Deputy Speaker (Mrs Eleanor Laing)
Order. The right hon. Gentleman was listened to with courtesy. The same courtesy must be shown to the Minister.
Dr Poulter
I have repeatedly read out supporting evidence from the previous Government and from the impact assessment that showed that they recognised that the regime had to take into account the wider health economy. It is not my fault or the fault of hon. Members on the Government Benches that Labour’s legislation was not properly drafted, and that it did not do what it intended—
Madam Deputy Speaker
Order. The Minister’s state of health is not a matter to be dealt with from a sedentary position. If he is not giving way, he is not giving way.
Dr Poulter
I must make progress. I want to address the points made by my right hon. Friend the Member for Sutton and Cheam (Paul Burstow). I will not give way until I have made better progress. On the point made by the right hon. Gentleman—and this is important—when he put forward the legislation on the TSA, he envisaged potentially turning it into a hospital closure clause. In 2009, on Second Reading of the Health Bill, he said:
“We believe these measures will provide protection against the possibility of NHS providers continuing indefinitely.”—[Official Report, 8 June 2009; Vol. 493, c. 544.]
That would suggest that the right hon. Gentleman thought that whole organisations might be shut down or closed as a result of the TSA regime. We do not believe that that is the case. We recognise that trusts, when they severely fail, may have to change the services they deliver. We want to protect trusts from the closure that the right hon. Gentleman envisaged in his remarks. His own words indicate that Labour had a hospital closure clause in the TSA regime. The Government, however, are making it clear that this is about service change in the interest of patients when all other avenues have been exhausted, which is a good thing.
Let me turn now to new clause 16, tabled by my right hon. Friend the Member for Sutton and Cheam, my hon. Friend the Member for St Ives (Andrew George) and other hon. Members.
Dr Poulter
I will give way to the former Secretary of State in one moment, but I would like to make some progress. I have been very generous in giving way.
The Government are grateful to Members for raising these important issues, but, regretfully, we cannot accept the amendment. The amendment makes two key changes. First, it gives commissioners of other trusts affected by the recommendations of an administrator at a foundation trust the power to define essential services at those trusts. That would be cumbersome and impractical and draw the focus away from the trust in administration and undermine the need for recommendations affecting other providers to be “necessary and consequential”, which is something that my right hon. Friend the Member for Sutton and Cheam believes in and raised in Committee.
Secondly, protecting essential services gives the administrator their focus for the trust in administration; it is a critical part of the process. Asking commissioners at other trusts to define their essential services would incorrectly indicate an equivalence in the administrator’s role between the failed trust and other successful providers.
Clause 119 recognises the need to give other commissioners a clear role and a proper say. It already extends the existing requirement on an administrator at a foundation trust to obtain the consent for their recommendations from each commissioner of the failing trust, and also from each commissioner of any affected trust. NHS England support must be sought in cases where not all commissioners agree.
Let me be absolutely clear. Under subsections (3), (4) and (6), the commissioners who are asked to agree and draft the final TSA report already include commissioners from affected trusts. It may be hard to spot that in the clause, as it amends existing legislation.
Clause 119 also requires the administrator to consult other affected commissioners. He or she must publish a summary of the consultation responses and take them properly into account when making final recommendations. The Secretary of State or Monitor will need to be satisfied that the administrator has carried out their administration duties properly, including showing proper regard for the statutory guidance.
Commissioners of other affected trusts will therefore have every opportunity to make their views known. However, I would like to thank my right hon. Friend the Member for Sutton and Cheam for bringing the matter to our attention. The Government agree that it is important for other local commissioners to be able to protect their essential services. We will update the guidance to make it clear that the agreement of commissioners to the TSA report should include their agreement that essential services have been protected at other trusts, as well as at the failing trust, so that all local commissioners have an equal say, with NHS England arbitrating in the event of disagreement. Furthermore, I would like to invite my right hon. Friend to chair a committee of MPs and peers to consider the draft guidance and ensure that his concerns are properly addressed before the regime is used.
Bob Stewart
My disquiet stems from the fact that when the TSA was put into South London Healthcare NHS Trust there was no mention that it would go beyond its borders and into Lewisham. I do not think that was very clever. That is what worries me about the Government’s plans.
Dr Poulter
The spirit of the previous Government’s legislation was to look at the wider health economy when a trust is in extremis and has reached the point at which it is failing patients, either because of its financial failure or the direct effect that has on the quality of patient care. There then needs to be a wider look at the whole health economy. I know the Princess Royal university hospital in my hon. Friend’s constituency very well. I also know Lewisham hospital very well, having done some of my medical training there. They cannot be seen in isolation from King’s college hospital, Woolwich, Sidcup and all the other hospitals in the area, because they look after patients in that part of London as part of an integrated health and care service. When a hospital fails in that way, it has to be looked at holistically. It is a power of last resort, to be used when a trust is in extremis, not a routine power, which is why we have the TSA process set up by the previous Government.
Paul Burstow
I am grateful to the Minister for some of the clarifications he has given so far. When he concludes his comments on new clause 16, will he confirm that the review of the guidance that he has invited me to chair will also consider the issue of consultation to ensure that it is genuinely pervious to public opinion and other clinical opinions in the area?
Dr Poulter
I am happy to give my right hon. Friend that assurance. It will be for him to lead the review, and we look forward to the work he does.
New clause 16 would make a second key change: to prevent the Secretary of State or Monitor from making decisions about recommendations affecting other trusts. Instead, local commissioners would have to undertake a further process of consultation and make their own decision. The effect would be to completely undo the changes that clause 119 is seeking to make—
Madam Deputy Speaker (Mrs Eleanor Laing)
Order. If hon. Members across the Chamber wish to have private conversations, they should leave. The Minister is answering some important points and ought to be listened to.
Dr Poulter
It would take outside the administration process and the timetable recommendations that affect other trusts. It could mean that a complete solution for the trust in administration and local patients could not be found. As before, my right hon. Friend the Member for Sutton and Cheam said that examining in isolation a trust that is failing significantly would be like throwing it to the wolves on its own. New clause 16 would render the strict legal timetable for the regime ineffective by significantly delaying resolution. I know that it is not his intention, but the new clause would undo the core purpose of clause 119 and the very aims of the regime, which are to put in place sustainable and safe health care services for patients when a trust has significantly failed.
Paul Burstow
I think I have heard the Minister tell us that there will be an equivalency between commissioners whereby they will all have to agree to changes being led by a trust special administrator, that there will be further examination of the consultation issues, and that we will make sure that the process is used rarely and exceptionally. Given his confirmation of those things, I want him to know that I am satisfied that my concerns are being addressed. On that basis, I do not intend to press my new clause, and I urge colleagues to do likewise.
Dr Poulter
I am very pleased that my right hon. Friend is reassured. I pay tribute to the tremendous work that he has done throughout the passage of the Bill in scrutinising and pushing the Government to ensure that we produce better, and good, legislation. I commend him for the work he has done on that.
It is important to point out that clause 119 makes a number of changes to strengthen patient, public and commissioner involvement in the process. In concluding, I shall draw out its important aspects. First, the clause would extend the public consultation period from six to eight weeks so that the public and others in the wider health economy can give their views and improve the recommendations. It would also give the administrator more time than the previous Labour Government did to produce draft recommendations, extending the period from 45 to 65 working days.
Secondly, the clause would allow a more holistic view to be taken of the wider local health system by allowing an administrator to make wider recommendations, but only as long as those recommendations are necessary for, and consequential on, primary recommendations about the failing trust.
Thirdly, the clause would widen consultation to affected trusts, their staff and commissioners. In addition—I thank my right hon. Friend the Member for Sutton and Cheam for suggesting this—we are providing in amendments 11 and 12 greater public and patient representation in the regime by requiring the administrator to consult local authorities and healthwatch organisations. That will ensure that the voice of local communities is at the front and centre of the administrator’s final recommendations. This important clause makes sure that patients and local commissioners are properly consulted. Indeed, we make sure that Healthwatch is put at the heart of everything that happens. The clause also improves arrangements for the administrator in seeking the support of commissioners affected by their recommendations, as we have discussed. That means that an administrator could develop recommendations that provide a solution for the future of failing trust services, ensuring that all those affected are fully involved. That has to be the right action.
We have heard a lot from Labour Members about the trust special administrator regime. Let us remember that this was their provision and their regime. We are putting in place measures that are true to their intentions when they put this in place, so that a trust is not thrown to the wolves when it meets their circumstances of severe failure. We will make sure that we always act in the best interests of patients. The right hon. Member for Leigh (Andy Burnham) is good at playing politics and good at spin. I am a doctor. I will always do what I believe is in the best interests of patients, and that is exactly what clause 119 will achieve.
Jeremy Lefroy
I beg to ask leave to withdraw the clause.
Clause, by leave, withdrawn.
New Clause 16
Powers of local commissioners in relation to TSA recommendations
‘(1) In section 65DA(1) of the National Health Service Act 2006 (Chapter 5A of Part 2: Objective of trust special administration) omit “objective” and insert “objectives” and omit “is” and insert “are”.
(2) After subsection (1)(a) insert—
“(b) the continued provision of such of the services provided for the purposes of the NHS by any affected trust at such level, as the commissioners of those services determine.”.
(3) After subsection 1(b) omit “(b)” and insert “(c)”.
(4) In subsection (2) of that section after “The commissioners” insert “of the trust in special administration and any affected trust”.
(5) In subsection (4) of that section after “the commissioners” add “of the trust in special administration and any affected trust”.
(6) In subsection (9) of that section after ““commissioners” means the persons to which the trust provides services under this Act” add “and the commissioners of services at any affected trust”.
(7) In section 65F insert—
“(2E) Where the administrator is considering recommending taking action in relation to another NHS foundation trust or an NHS trust which may become an affected trust, the administrator shall engage with the commissioners of services at any such NHS foundation trust or NHS trust in order to enable those commissioners to make decisions pursuant to the matters set out in section 65DA.”.
(8) In section 651(1)—
(a) after “action which the administrator recommends that the Secretary of State” insert “or the commissioners of any affected trust“; and
(b) after “should take in relation to the trust” insert “or any affected trust”.
(9) In section 65K add—
“(3) Where the final report contains recommendations for changes to be made to services provided by an affected trust, the commissioners of services at that affected trust shall make a decision within 20 working days whether they wish to undertake public and patient involvement regarding all or any of the recommendations and, if they are so minded, shall comply with any arrangements for patient and public involvement agreed by those commissioners under this Act before making any final decision concerning the said recommendations.”.
(10) In section 65KA add—
“(7) Where the final report contains recommendations for changes to be made to services provided by an affected trust, the commissioners of those services shall make a decision within 20 working days whether they wish to undertake public and patient involvement regarding all or any of the recommendations and, if they are so minded, shall comply with any arrangements for patient and public involvement agreed by those commissioners under this Act before making any final decision concerning the said recommendations.”.
(11) In section 65KB(1)(d) after “that” insert “to the extent that the report recommends action in relation to the trust in administration”.
(12) In section 65KB(2)(a) after “decision” insert “in relation to any recommendations made the in relation to the trust in administration”.
(13) In section 65O add—
“(4) In this chapter “affected trust” means—
(a) where the trust in question is an NHS trust, another NHS trust, or an NHS foundation trust, which provides goods or services under this Act that would be affected by the action recommended in the draft report; and
(b) where the trust in question is an NHS foundation trust, another NHS foundation trust, or an NHS trust, which provides services under this Act that would be affected by the action recommended in the draft report.
(14) In section 13Q(4) at the end insert “save to the extent required by section 65K(3) or 65KA(7)”.
(15) In section 14Z2(7) at the end insert “save to the extent required by section 65K(3) or 65KA(7)”.
(16) In section 242(6)(b) at the end insert “save to the extent required by section 65K(3) or 65KA(7)”.’. —(Mr Jamie Reed.)
This Clause ensures that all commissioners of services affected by a trust special administrator’s report have the right to define local specified services; clarifies that, save for the trust in administration, local commissioners remain the decision makers for services they commission; and restores public engagement for changes other than for a trust in administration.
Brought up, and read the First time.
Question put, That the clause be read a Second time.
The Secretary of State for Health (Mr Jeremy Hunt)
I beg to move, That the Bill be now read the Third time.
The Bill will bring about the most profound change in the care system for a generation. It provides certainty on care costs that has never been available before; independent and transparent inspections to drive up the quality of care; integration of the health and social care in a way that has been talked about for years but never delivered; and real patient empowerment to put people firmly in the driving seat for their care planning.
The Bill will also implement or help to implement many key recommendations made in the Francis report following the shocking failings at Mid Staffordshire NHS foundation trust. We are also establishing vital new principles for dealing with failure where it occurs, most notably the requirement and ability to deal with unsafe care quickly before lives are lost unnecessarily.
I thank all those who have been involved in considering and scrutinising the Bill, including my predecessor, who was responsible for originating it, together with my right hon. Friend the Member for Sutton and Cheam (Paul Burstow). I particularly wish to thank the Minister of State, Department of Health, my hon. Friend the Member for North Norfolk (Norman Lamb), and the Under-Secretary of State for Health, my hon. Friend the Member for Central Suffolk and North Ipswich (Dr Poulter) for their herculean efforts in Committee and today to ensure that the Bill returns to the other place in the best possible state. There was a well-informed and rich debate on this landmark piece of legislation, for which I thank Members on both sides of the House.
We know that in the next 20 years, 1.4 million more people are likely to need care and support. The Bill prepares our country for that change with the most comprehensive reform of social care legislation in more than 60 years, creating for the first time a single, modern statute for adult care and support that is focused around the person, not the service. Meanwhile the new £3.8 billion merger of health and care services will allow the delivery of seamless, co-ordinated, whole-person care for those in need. In doing so, we will be realising a vision that was talked of for 13 years by the previous Government and actioned in three by this one.
Crucially, these reforms make a reality of the proposals of the Commission on the Funding of Care and Support, chaired by Andrew Dilnot. Many older people and people with disabilities face catastrophic and potentially ruinous bills for their care and support. The Dilnot commission judged quite simply that the current funding system is not fit for purpose. The Government have listened to the commission’s advice, have acted, and are implementing its recommendations. For the first time, a cap on care costs at £72,000 in today’s prices will provide protection to every single person in England. People who have worked hard all their lives need no longer fear that they will lose everything just because they are unlucky enough to develop care needs beyond any reasonable budget.
The difficult decisions the Government have taken on public spending have enabled us to pledge £2 billion per year to fund this cap, from which more than 100,000 people will directly benefit financially. What is more, we are raising the threshold for the means test for help with residential care, so that in 2016-17 alone, up to 35,000 more people will receive support with their care costs. Our universal deferred payment scheme will put an end to people being forced to sell their homes in their lifetime to pay for their care.
People often enter care at a point of crisis, and at a time of great distress. These reforms will create a better, fairer system, enabling people to grow old, safe in the knowledge that they will receive the care they need without facing unlimited costs. Combined with the Government’s wider moves to protect pensions and improve care standards, we are determined to fulfil our vision to make Britain the best country in the world to grow old in.
Sarah Newton
I had the great privilege to serve in Committee, during which the Minister of State, Department of Health, my hon. Friend the hon. Member for North Norfolk (Norman Lamb) expressed support for my view that if the pilots prove successful, we should be able to provide free social care at the end of life to allow more people to die with dignity at home. Would my right hon. Friend commit to that this evening?
Mr Hunt
I thank my hon. Friend for her work in Committee. That is an aspiration that we all share, and some of the results from the pilots are extremely encouraging in terms of the extra care and support we are able to give people. End-of-life care is a priority for everyone, so I share her enthusiasm that we can make progress on that very important area.
Financial security must be combined with confidence in the standard of care received. A year on from the Francis report, we are debating a Bill that will help us to deliver 61 commitments that we made in response to it. We are restoring and strengthening a culture of compassionate care in our health and care system.
Robert Francis’s report said that the public should always be confident that health care assistants have had the training they need to provide safe care. The Bill will allow us to appoint bodies to set the standards for the training of health care assistants and social care support workers. These will be the foundation of the new care certificate, which will provide clear evidence to patients that the person in front of them has the skills, knowledge and behaviours to provide compassionate high-quality care and support.
New fundamental standards will ensure that all patients get the care experience for which the NHS, at its best, is known. In his report, Robert Francis identified a lack of openness extending from the wards of Mid Staffs to the corridors of Whitehall. We want to ensure that patients are given the truth when things go wrong, so the Bill introduces a requirement for a statutory duty of candour which applies to all providers of care registered with the CQC. The Francis inquiry also found that providing false or misleading information allows poor and dangerous care to continue. We want to ensure that organisations are honest in the information they supply under legal obligation, so the Bill introduces a new criminal offence for care providers that supply or publish certain types of false or misleading information.
The care.data programme will alert the NHS to where standards drop and enable it to take prompt action. To succeed, it is vital that the programme gives patients confidence in the way their data are used. For that reason we have today amended the Bill to provide rock-solid assurance that confidential patient information will not be sold for commercial insurance purposes.
Patients also need to have confidence that where there are failings in care they will be dealt with swiftly. At Mid Staffs that took far too long. That is why the Care Bill requires the CQC to appoint three chief inspectors to act as the nation’s whistleblowers-in-chief. Their existence has started to drive up standards even in the short time they have been in their jobs.
Perhaps most fundamentally, the Bill re-establishes the CQC as an independent inspectorate, free from political interference. The Bill will remove nine powers of the Secretary of State to intervene in the CQC to ensure that it can operate without fear or favour. The Bill will also give the CQC the power to instigate a new failure regime and will give Monitor greater powers to intervene in those hospitals that are found to be failing to deliver safe and compassionate care to their patients. For the most seriously challenged NHS providers, there needs to be a clear end point when such interventions have not worked. The Bill makes vital changes to the trust special administration regime, established by the Labour party in 2009, to ensure that an administrator is able to look beyond the boundaries of the trust in administration to find a solution that delivers the best overall outcome for the local population.
Jim Dowd
I realise that the Secretary of State was not in office when the TSA process was started in the South London Healthcare NHS Trust, but he did accept the report of the administrator and, of course, appealed against the High Court decision that found against him. Will he clarify and put on the record that it is the coalition Government’s view, and the view of their constituent parties, that the people of Lewisham should not have an accident and emergency unit; should not have a maternity unit; should not have a paediatric specialty; and that two thirds of the hospital site should be sold off? Those were the recommendations of the TSA, which he wanted to accept.
Mr Hunt
Let me first tell the hon. Gentleman that the TSA did not recommend the closure of the A and E unit at Lewisham hospital, and he knows that perfectly well.
I will say what this Government are determined to ensure does not happen again. Mid Staffs went on for four years before a stop was put to it. Patients’ lives were put at risk and patients died because the problem was not tackled quickly. The point of these changes today is to ensure that, when all NHS resources are devoted to trying to solve a problem and they fail, after a limited period of time it will be possible to take the measures necessary to ensure that patients are safe. I put it to the hon. Gentleman and to all Opposition Members that if they were in power now they would not be making the arguments that they have been making this afternoon, because it is patently ridiculous to say that we will always be able to solve a problem without reference to the wider health economy. They know that: it was in the guidance that they produced for Parliament when they introduced the original TSA recommendations. What Government Members stand for is sorting out these problems quickly and not letting them drag on in a way that is dangerous for patients.
Andrew George
Following the concessions announced by the Under-Secretary in the previous debate, do I understand correctly that if the TSA makes recommendations to a non-failing trust to its detriment and the trust objects to those proposals, NHS England can, through its arbitration process, impose those changes?
Mr Hunt
Let me clarify, but first let me add that we want to listen to the consultation that will be led by my right hon. Friend the Member for Sutton and Cheam and the new Committee that he chairs. We are requiring local clinical commissioning groups and GP groups to come to an agreement on the right way forward in these difficult situations. We need an arbitration system for when agreement is not possible, which this clause allows for. We would like there to be agreement but we cannot allow a situation where, when there is not an agreement, we end up with paralysis and being unable to sort out the problem of a trust that is failing, particularly when it is unsafe and patients’ lives are being put at risk. That is exactly what was happening in the South London Healthcare NHS Trust.
As the Bill leaves the House to return to the other place for the final stages of its passage, we can be justly proud. This is a landmark piece of legislation that will transform the experience of those who rely on the NHS and care systems by giving patients and their carers both legal rights and a much better joined-up service. It will reduce the money wasted on duplication and allow more resources to be directed at the front line. It will remove the uncertainty and worry of unpredictable care costs in later life and will put individuals at the heart of a system built around their needs and not its own priorities.
Most of all it will send a signal loud and clear that when it comes to the challenge of treating an ageing population with dignity, compassion and respect, this House has not shirked its responsibilities but has risen confidently to the challenge.
Andy Burnham
I do not think that the right hon. Gentleman is in a very strong position to talk about Members’ abstaining in votes on amendments. I shall say more about that shortly.
Let me now list three reasons for our argument that the Bill is not what it seems. First, as I have said, it is no answer to the care crisis. It proposes that a cap should be paid for by the restriction of eligibility for care, and the removal of care from some people who are already receiving it. Last week we heard from Age Concern that 800,000 people who had previously received support no longer received it. The problem is that local authorities are being asked to implement the system with no additional resources, and are therefore having to move funding from preventive social care to the administration and funding of the cap and the deferred payment scheme. Rather than taking from one area of social care to give to another, the Government should have put new resources into social care.
The Minister of State, Department of Health (Norman Lamb)
The right hon. Gentleman said a moment ago that the Bill removed care from some people by restricting eligibility criteria. Does he accept that although there is a national eligibility criterion—which is long overdue—any councils that choose to be more generous can do so, just as they can now?
Andy Burnham
If the Minister gave councils budgets that enabled them to be more generous, they might have a chance, but drastic cuts mean that they cannot provide care that is worthy of the name. He will know of the fears of organisations that represent disabled adults of working age. The Royal National Institute of Blind People, for instance, fears that the move to retrench eligibility criteria to cover only substantial and critical needs will remove care from people with moderate needs whose support currently enables them to continue to work.
Andy Burnham
My hon. Friend’s intervention brings me to my second reason for thinking that the Bill is not what it seems. The changes in eligibility for social care expose more people to social care charges than was the case before the present Government came to office, and, as has been demonstrated by my hon. Friend the Member for Leicester West, those charges are increasing above inflation. More people are paying care charges, and paying them at a higher level. The care cap is not what it seems. In fact, as my hon. Friend has consistently argued, it is a care con. The Secretary of State said today that the Bill would give people certainty about what they would pay—
Andy Burnham
The Secretary of State says yes, but I am afraid that it will not. The £72,000 cap is based on a local authority average, not on the actual amount that people will pay for care. So no, the Bill will not give them that certainty. The Secretary of State also said that people would not lose everything to pay for care. Let us take him at his word, and assume that £72,000 is the maximum that a person can pay, and £144,000 is the maximum for a couple. In my constituency, that would indeed mean people losing everything that they had worked for, although it might not mean that in the Secretary of State’s constituency or in other parts of the country. The Secretary of State needs to be honest with people. That is why we are saying that the Bill is not what it seems.
Andy Burnham
I will, but I think that the Minister should take account of that point, because it is quite important.
Norman Lamb
The right hon. Gentleman says that he would like the eligibility criteria to be more generous. Is he now committing himself to funding that?
Andy Burnham
I am not writing a budget at the Dispatch Box this evening. I will stand by our record of giving real-terms increases to local government. I warned at the start of this Parliament that if the effect of the Government’s promise of real-terms increases for the NHS—which have actually never materialised—was a raid on local government, that would be a short-term policy. It would mean more older people ending up in hospital and who then could not be discharged because there was not the care at home. That is exactly what is happening. It is a false economy. That is what we warned them about and they failed to listen.
Andy Burnham
No I will not, as the hon. Gentleman has not been here all afternoon.
The third area is the claims that the Bill will improve regulation. Let me ask a direct question: if this is about improving the quality of services, why remove from the CQC the responsibility to provide oversight of local authority commissioning? Why do that if this Bill is about improving regulation? Why leave local government free to do what they like at a local level—to commission for 15-minute visits or for staff on zero-hours contracts—when we have seen the failures at Winterbourne View and other places? Why remove that important role from the CQC?
Andy Burnham
We have never had a proper answer to that. I hope we are about to get one.
Andy Burnham
The right hon. Gentleman has not answered the question. There was a responsibility on the CQC to provide oversight of local authority commissioning. This Bill removes it. Why does it do that? It is a backward step in my view.
The fourth area is that, in respect of the care data scheme, the Bill fails to provide the assurances the Government tried to herald in the press a few days ago—to borrow the Secretary of State’s words today, a “rock-solid assurance” that data could never be passed to commercial insurance companies. I do not believe it is possible to claim that new clause 34, which has now been added to the Bill, does that. It just has general aims around the promotion of health. That does not stop data being passed to private health insurance companies. Again, I do not think the Bill does what the Secretary of State claims it does.
The fifth area I want to challenge the Government on is the whole question we have just been debating. This goes to the heart of where the coalition began, which was that local people would be in the driving seat and local GPs would be in control. The coalition agreement said the Government would end centrally dictated closures. Well, they have ripped all that up this afternoon by passing clause 119 and keeping it in the Bill. They claimed they were just doing what we left behind. That is not the case, because the High Court told them otherwise. The High Court told them they had gone beyond the powers I had created in 2009. The Secretary of State was unable to answer that. He said everything was our fault—it is never their fault or his fault. Well, how about him listening to the Court? How about him reading the clause that we passed before he tried to close or downgrade Lewisham’s A and E? Would that not have been a good thing to do? He did not do that, however. He tried to plough on and downgrade a successful A and E in the teeth of opposition and he got found out. Yet he comes back here today and just thinks arrogantly he can ram the same powers back through this Parliament.
What we have seen today from the right hon. Member for Sutton and Cheam (Paul Burstow), who positioned himself as though he was going to make a stand for local involvement in the NHS, is the worst kind of collusion and sell-out of our national health service. Just as the Liberal Democrats voted for the Health and Social Care Act, again they have backed tonight the break-up of the NHS. In the last few days the right hon. Gentleman has been asking for all these signatures from all over the country—148,000 people to sign his petition—just so, it seems, that he could get a new job working within the coalition. I am not sure they are going to feel well represented this evening.
Mr Hunt
The shadow Secretary of State is bandying around some big words like “arrogant” so will he now show some humility and recognise that every single one of the 14 hospitals in special measures had warning signs when Labour was in office and Labour failed to sort out those problems?
Andy Burnham
We took action to address care standards in the NHS. The right hon. Gentleman is trying to politicise care failure. The Labour Government inherited the Bristol Royal infirmary scandal from the previous Conservative Government, along with the scandal at Alder Hey and the Shipman murders, but we did not try to politicise those failings. The Secretary of State is trying to politicise such failings today, however.
The Lib Dems have shown again tonight that they simply cannot be trusted to stand up for the national health service. There is only one party in this House that will do that, and that is the Labour party represented on these Benches. The next Labour Government will repeal the Health and Social Care Act and restore the right values to the heart of the NHS. In so doing, we will also repeal clause 119 of this Bill. We will take the powers that the Secretary of State has taken for himself today and hand them back to local people.
We will not get the care that we want until we are able to face up to the care crisis that this country now has. Our argument is that the full integration of health and care is the only way to reshape services around the person. That is the only way to go, and we will give a full green light to NHS organisations to collaborate and integrate, instead of working with the market regime that this Government have introduced. We have had the ludicrous spectacle of the Competition Commission telling two hospitals that wanted to collaborate that they could not do so because it would be anti-competitive. That is the reality of the NHS that this Government have created. That is the nonsense that people are facing on the ground. Only when we repeal the Health and Social Care Act and get rid of the powers that the Secretary of State has taken for himself today will we put the NHS back on the right path, away from the path towards fragmentation and privatisation, and begin to build a 21st-century NHS.