Health and Care Bill

(Limited Text - Ministerial Extracts only)

Committee stage & Lords Hansard - Part 1
Tuesday 11th January 2022 Lords Chamber

[Lord Cormack (Con)]

My Lords, in the absence of the noble and learned Lord, Lord Judge, I take it upon myself to echo the trenchant observations of the noble Baroness, Lady Walmsley. What do the Government think Parliament is? What do they think it is for? Again and again, we have these Bills—skeleton Bills, Christmas tree Bills, call them what you like, but one thing is abundantly plain: Henry VIII is sitting firmly on his throne issuing his diktats.

This is no way for a democratic Government to treat Parliament, especially the elected House. However, if the elected House will not fully protect itself, we have a duty to speak up for it. There are many who, because of the circumstance of their election recently in Parliament, perhaps feel a bit diffident, but we have a duty not to be diffident. We in this House have a duty to say, “This is no way to treat Parliament”, because we are in effect creating executive departments with dictatorial powers. That is inimical to a parliamentary democracy. It is plain wrong. I do not know how often I shall intervene in the debate on this Bill, but what I do know is that I do not like what I see.

I have enormous and genuine respect for my noble friend the Minister. He has already, very rightly, earned himself a reputation in this House as somebody who is anxious to learn about parliamentary customs and practices, and to listen and reflect. I beg him, as I look at him now, to please talk to his colleagues in the other place who have greater power within the department and say to them that there is real concern in this House—I am delighted to see my noble friend Lady Cumberlege nodding at this point—which has within it many medical experts, such as my noble friend Lord Ribeiro, the noble Lord, Lord Winston, who does not seem to be here this afternoon, my noble friend Lord Kakkar and many others who know about medicine and how things should be organised and who do not see it as their prime purpose to help a Secretary of State hang his baubles on the Christmas tree.

We have a chance—we have done it before in other Bills—to try to improve on this skeleton, this Christmas tree, and to put Henry VIII back in his box, which is where he should be put. I hope that as this Bill goes through your Lordships’ House it will be probed, scrutinised and improved.

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Kamall) (Con)]

I start by thanking the noble Baroness, and indeed all noble Lords who have spoken thus far. I will make a general point in response to my noble friend Lord Cormack. I recognise that I am relatively new to this House and that I have much to learn. I hope to learn much, not only from noble Lords who have more experience of the procedures of this House and of holding the Government to account but from many noble Lords from across the House with medical expertise and management expertise in the health and social care sector.

I also thank the noble Baroness, Lady Thornton, for bringing this debate before the Committee. Amendment 1 would mean that we could not commence the change of legal name from the National Commissioning Board to NHS England until after an impact assessment for each of the clauses in Part 1 of the Bill is published, while Amendment 315 would mean that we could not commence Part 1 until after the publication of an impact assessment for each clause’s impact on the risks, costs and benefits to patients.

I hope I can reassure the noble Baroness that my department has published the impact assessments. She acknowledged this and I accept that they were not published in the most timely way. I will endeavour to do my best to make sure that we publish these assessments with as much notice as possible. They are available for noble Lords to review on GOV.UK. I am very happy for the noble Baroness to take credit for the first impact assessment. We will endeavour to do better. We will also commit to publishing further impact assessments for secondary legislation made under the powers contained in the Bill, where those regulations will have significant impact on the health and care system or private businesses, to provide transparency and clarity to the system.

The amendment would also delay the commencement of Part 1 until at least six months after commencement regulations were laid before your Lordships’ House. This would delay the implementation of the key provisions contained in Part 1.

The NHS put forward its recommendations for legislation in 2019. It is preparing, subject to parliamentary passage, to implement the ICB provisions of the Bill from July 2022. We know that ICBs in effect exist in many areas, in whatever form of development, and it is essential that we put these on a statutory footing as soon as possible. The development of ICBs builds on years of development work in local systems to improve partnership working. Delaying the implementation risks a loss of momentum in establishing statutory integrated care boards and the benefits that they are intended to deliver. For these reasons, I ask the noble Baroness to withdraw her amendment.

[Baroness Thornton (Lab)]

I thank the Minister for that very gracious answer and start to our deliberations. I also thank in particular the noble Baroness, Lady Walmsley, and the noble Lord, Lord Cormack. I really was rather hoping that the noble Lord, Lord Cormack, would come in, as this is absolutely what he knows about. He is quite right. I hope that noble Lords who are experts in this will look carefully at the Bill and at the two reports I referred to, because they will need to guide us in our deliberations over the next few weeks.

Let us see what the impact assessment says—whether it works or not—and see whether we need to review certain parts of the Bill with a view to looking at the Constitution Committee’s report, for example, which also was published only yesterday. With that, and with the warning that this is the beginning and not the end of the discussion, I beg leave to withdraw the amendment.

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[The Lord Bishop of London]

My Lords, I declare my background as a former government Chief Nursing Officer and non-executive director of a number of healthcare trusts. I was not going to speak, but I have listened to noble Lords’ comments today and I come down with the noble Baroness, Lady Harding, in saying that we should not stipulate what skills are required of a board too tightly. What is in front of organisations changes over time, so the chair needs to be empowered to change. However, one caveat is that it would be wise to consider having somebody on the board with a background in patients. I speak from experience as a clinical professional: we can too easily forget the patient and to see things through their eyes. Far too often, we see things through the eyes of the clinician, which is not always in the best interest of patients.

[Earl Howe (Con)]

My Lords, I am grateful to all noble Lords who took part in this short debate, and particularly the noble Baronesses, Lady Merron and Lady Walmsley, and the noble Lords, Lord Patel and Lord Howarth, for bringing these important issues before the Committee. As they made clear, these amendments seek to make changes to the membership and composition of the board of NHS England. Amendment 2 also outlines the conditions that should be met for the appointment process.

Like my noble friend Lady Harding, I am in sympathy with the spirit of these amendments. It is imperative that the membership of the board of NHS England is able to represent the diverse needs of patients and the populations they serve, as well as their twin functions of commissioning and holding commissioners and providers to account.

I was very much in sympathy with the principles and sentiments expressed by the noble Lord, Lord Howarth, in speaking to his Amendment 3. Executive members of the board are selected based on their expertise and ability to manage the delivery of NHS England’s functions. It is also important that non-executive members have the right skills and backgrounds to effectively support and challenge, and hold the executive to account.

I hope I can reassure noble Lords on the existing and planned board membership arrangements. We absolutely aim to ensure that the most suitably skilled and experienced candidates are appointed to the fully merged NHS England board. The legal provisions therefore need to be flexible, and I can tell the Committee that they already are. Existing provisions setting out the membership of the NHS England board in the NHS Act 2006 already provide the flexibility required for the fully merged NHS England to lead our more integrated health and care system.

I agree that robust governance arrangements are absolutely necessary to oversee public appointments, particularly to NHS England. Unlike appointments to integrated care boards, the appointments of the chair and non-executive members of NHS England are public appointments made by the Secretary of State. As your Lordships are undoubtedly aware, as public appointments, they are managed in line with the Governance Code on Public Appointments and regulated by the Commissioner for Public Appointments. These appointments are made on merit in a fair, open and transparent manner. In line with the governance code, they require due regard to be given to ensuring that they properly reflect the populations they serve, including a balance of skills, expertise and backgrounds—exactly as sought by this amendment, as I understand it. We are fully committed to the importance and value of both candidate diversity and equality of opportunity.

The commissioner works with government to encourage candidates from a diverse range of backgrounds to consider applying for public appointments. All public appointees are expected to uphold the standards of conduct set out in the Committee on Standards in Public Life’s Seven Principles of Public Life, as included in the Code of Conduct for Board Members of Public Bodies. The code sets out, clearly and openly, the standards expected from those who serve on the boards of UK public bodies and includes a clear process for managing any conflicts of interest.

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[Baroness Walmsley (LD)]

My Lords, I am certainly with the noble Baroness, Lady Finlay, on the issue of outcomes. Like her, I am a member of the All-Party Group on Cancer, and I was right behind our former chairman John Baron’s attempt to get a clear focus on outcomes. I am delighted to see how successful that has been.

My Amendment 8 is very simple. It would prevent the Secretary of State tinkering too often with the mandate. As others have said, the mandate is the primary instrument through which the Secretary of State provides the Government’s direction to the NHS. He is right to do so, since the NHS uses the most enormous amount of our money and is of vital concern to every voter and taxpayer—those whom the Government represent.

However, the NHS is a little like the “QE2” in that it is absolutely enormous and takes quite a while to change direction. Indeed, a great many levers have to be pulled for it to do so. Chief executives, boards and professional staff need time to set new plans, targets and employment policies—to say nothing of moving the money around—to comply, as they must, with changes to these mandatory directions from on high. It is therefore highly undesirable for a Secretary of State to change the mandate too frequently. As the noble Baroness, Lady Thornton, said, even when it happens, adequate notice and reasons must be given.

Other amendments in this group deal with other aspects of the mandate, but I want to be fully assured that, given the difficult tasks we set our NHS, its outline instructions and targets are not unfairly changed too often. I feel justified in having this concern, because the evidence of clauses later in the Bill indicates to me a tendency by the Government to want to meddle where meddling is inappropriate and could have negative effects. I refer, of course, to the Secretary of State’s attempted power grab, which we will discuss later in Committee.

Can the Minister assure me that there is already some effective measure that would prevent the mandate being changed more than once in any financial year, which would make it very difficult for the NHS to comply?

[Earl Howe (Con)]

My Lords, I am glad to be able to respond to these amendments relating, in their several ways, to the NHS England mandate. I will cover each in turn.

I begin with my noble friend Lord Lansley’s Amendment 4. I confess that I am not in the least surprised that he, of all noble Lords, should have reminded us of the key importance of the NHS outcomes framework. Amendment 4 would require the Secretary of State to specify objectives that will help NHS England achieve improvements in the outcomes provided for in the NHS outcomes framework. As he and I remember clearly, the NHS outcomes framework is a set of indicators that provide for national-level accountability for the health outcomes that the NHS delivers. The first version was published in 2010 to inform the first mandate to what was then still known as the NHS Commissioning Board. In essence, it looks at long-term health trends across various domains, including quality of care and patient experience. It is a valuable resource and, as my noble friend knows, remains an important tool for measuring the NHS’s contribution to improving outcomes over the long term.

I quite agree with my noble friend that progress against outcomes is vital. That is why we have included Clause 3 in the Bill. One of the main advantages of a longer-term mandate is that it will allow us to take a longer-term view of progress against outcomes that can be measured meaningfully only across a number of years.

The noble Lord, Lord Patel, asked who will be responsible for improving outcomes. The answer is that NHS England and ICBs have duties in relation to improving the quality of services. I can assure him that we will hold them to account for doing so. Having said that, we are moving now to a system-wide approach. That entails the need to measure shared outcomes across health and the wider social care and public health system. Some of these outcomes are led by the NHS but many are system-wide, so the business of measuring patient and service-user outcomes will inevitably become more sophisticated.

We want to ensure that our system is flexible and able to adapt as those system approaches develop and mature. I hope my noble friend therefore appreciates why we would not want to enshrine the NHS outcomes framework in the mandate in statute, in a way that might limit or compromise our ability to explore broader system approaches as we go forward. However, I seek to reassure him that the NHS outcomes framework will continue to be a vital tool to look at long-term trends in health outcomes and the NHS’s role in supporting health outcomes. That basic role for the NHS outcomes framework will not change.

I fully understand the concern of the noble Baroness, Lady Thornton, in her Amendment 7 that the mandate should not be revised unnecessarily and without good reason. I completely agree with that sentiment; again, it lies behind our desire to look at the mandate over a longer timeframe than has hitherto been possible. My concern is that her amendment goes much further than, I suspect, she intended, because it would prevent the mandate being revised at all in anything other than an urgent or unforeseen situation. That would be unhelpful, because it would wholly prevent planned changes to reflect, for example, evolving strategic priorities, emerging evidence of need or even a planned general election.

The purpose of Clause 3 is to strengthen the role of the mandate by enabling the Government, where appropriate, to set a mandate that can endure, rather than having an annual use-by date. Looking back to our debates on the Health and Social Care Bill in 2011, the noble Baroness will remember that it was always the intention that the Government should set a multiyear mandate, and Parliament agreed. In practice, that intention has been hampered by the inevitability of an annual review of the mandate to a fixed deadline—a deadline that does not neatly align to a number of events and strategic processes, including the Budget, spending reviews and general elections. Clause 3 addresses this. I seek to reassure the noble Baroness that there is no intention to revise mandates unnecessarily at the drop of a hat, as it makes no sense to do so.

I am grateful to the noble Baroness, Lady Walmsley, for highlighting a similar set of issues to those raised by the noble Baroness, Lady Thornton. Her Amendment 8 would prevent the Government revising our mandate for NHS England more than once in the same financial year, for any reason. As I said to the noble Baroness, Lady Thornton, I completely understand her concern that the mandate should not be revised so frequently that NHS England is unable to plan for or deliver government priorities effectively. This is why I reassure her that this will not happen, except in the most exceptional of circumstances. I hope she accepts that reassurance, because it cannot be in the interests of any Government, or of patients and service users, to set a mandate that changes NHS priorities too frequently. I expect any such revisions to be very rare. As I have indicated, though, one can imagine that they may be necessary to respond to unforeseen events, to reflect the result of a general election or to signal future shifts in priorities at a point when the NHS is planning ahead. The Government need the necessary mechanism to deal with these and other similar eventualities.

The noble Baroness will see that Clause 3 already contains an explicit safeguard in respect of reasonableness: NHS England will not be obliged to revisit a business plan that it has already published, should the Government revise the mandate within a year of its issue. The Government will also have a continuing duty to consult NHS England before making any revision. I believe that, in combination, these two safeguards work together to fully answer the point that the noble Baroness made.

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[Baroness Merron (Lab)]

My Lords, I feel that today’s debate on this important group of amendments should carry much weight because, at its core, this is about treating people as whole people and seeing them as physical, mental and social beings. Our welfare on each of those fronts is absolutely key to the others. It is not possible simply to treat one without regard to the others, and it is crucial that we enhance people’s well-being across our whole complexity as human beings.

I am glad to speak to this group of amendments because, as we have heard across all sides of the Committee throughout today’s debate, the reality is that, despite the best efforts encapsulated in the mandate, and many times in policy, we find that competing priorities, an avalanche of guidance and instructions, and events—the pandemic has been referred to several times, of course—mean that mental health services can be, and indeed have been, relatively left behind. As the Centre for Mental Health reports:

“Mental health problems account for 28% of the burden of disease but only 13% of NHS spending.”


In the debate today we have also asked ourselves: where is the accountability? For example, we know that in many clinical commissioning groups the actual spend on mental health was below what it was supposed to be, yet there have been no consequences. We need to address not just the finances but the mechanisms around it and the impact on individuals.

The founding National Health Service Act 1946 rightly spoke of a comprehensive health service that secured the improvement of both physical and mental health, and subsequent Acts, quite rightly, have confirmed this. In operational terms, the Government require NHS England to work for parity of esteem for mental and physical health through this NHS mandate, but we know, and have heard again today, that this requirement falls down when we go to a local level.

One way or another, we will all be familiar with a whole range of stories of people who have not been able to access treatment in a timely manner or who find that they are pushed around a system with very little effect and discharged from care before it is appropriate, with consequences that are all too clear to see. It is difficult to overestimate just how challenging this is, not just for the individuals but for local commissioners, because they face competing pressures in trying to deal with this.

As has been emphasised, this group of amendments is about not just getting on the road to financial parity, important though that is, but changing the culture and the whole means of monitoring and implementation, so that disparities can be addressed—indeed, if possible, so that difficulties can be headed off at the pass. It is a well-worn phrase, but it sometimes seems that mental health is a Cinderella service—the one that can be cut first, to the benefit of the more visible services. Some of the recent statistics show that one in four mental health beds has been cut in the last decade, while just last year 37% of children referred by a professional to mental health services were turned away. That is a shocking statistic that we need to move away from.

I thank noble Lords for promoting these amendments and for their contributions illustrating what they mean and the reason we need them today. The noble Lords, Lord Stevens and Lord Patel, made timely points about the impact of the pandemic. If this is not a moment for focusing more on mental health, I do not know what is. The challenge we have and the difficulty presented by the pandemic is that while there is a focus on cutting waits for operations—and we know that is important—this could be a reason for mental health services to get somewhat lost, when in fact the pandemic reminds us of the importance of mental health and the need for the NHS to meet the needs that there now are.

The amendment by the noble Lord, Lord Stevens, encourages and directs the actions necessary for transparency on expenditure. I recall that they were referred to in the debate as legislative levers, and that is indeed what they can be. For me, they encourage not just accountability and transparency but actual action and change—the change we need to see.

The noble Baroness, Lady Hollins, referred to parity of esteem having to be applied locally, not just at a higher level. That is the only way we will see a difference in mental health services and improve the mental health of people in this country.

The noble Lord, Lord Crisp, made reference to the fact that legislation is trying to catch up with where we are as a society, and the noble Lord, Lord Warner, referring back to the meeting he attended, said that the public are well ahead of the game. I believe that is true. Indeed, as the noble Baroness, Lady Watkins, said, we have to prepare for tomorrow. It is not satisfactory that we stay stuck in today, or indeed in the past.

In my view, these amendments move us on. They bring mental health services into real parity with physical health services, but they also connect mental and physical together. I hope they will find favour from the Minister.

[Lord Kamall (Con)]

I begin by thanking all your Lordships for the wide-ranging debate. I want to say how much more I learn, listening to the contributions in each of these debates, before I stand up to speak. I thank all noble Lords for their contributions. As the noble Baroness, Lady Merron, says, this debate carries some weight for our understanding that social, mental and physical well-being are equally important. We should not seek to suggest that one takes precedence over another. I also thank the noble Lord, Lord Stevens, for kicking off this debate with his encouraging and not critical amendments; I take them in that spirit.

Following on from that, and before I go to some of the specific amendments, I will just reflect on some of the contributions made thus far. I first thank the noble Lord, Lord Howarth, for raising social prescribing. I know we have discussed this a number of times since I became the Minister, with particular contributions from the noble Baroness, Lady Greengross, on the importance of art and music in helping to unlock the mind and touch the soul.

As has been made clear, social prescribing is a key component of the NHS’s universal personalised care, and I know that, crucially, this can work well for those who are socially isolated or whose well-being is impacted by non-medical issues. The NHS has mechanisms to ensure that social prescribing is embedded across England: for example, the primary care network directed at enhanced services specification outlines that all PCNs must provide access to a social prescribing service.

I also thank the noble Lord, Lord Patel, for raising the importance of the mental health of children and for making sure that we do not forget, even within mental health, that many sections of our society can quite easily be forgotten.

I agree with the right reverend Prelate the Bishop of London: we have come a long way. I remember as a child in the 1970s going to visit my uncle who was a psychiatric nurse at Claybury Hospital and looking at the patients, with the innocence of a child, and thinking, “These people don’t look ill to me.” We have come far since then. I remember the Rampton hospital scandal in the late 1970s, where the patients were treated appallingly, almost not as humans, and with a lack of dignity. The fact that today we are discussing the parity of mental with physical health shows how far we have come as a society.

We also spoke about loneliness and isolation. The noble Baroness, Lady Watkins, and I have had conversations about loneliness and some of the civil society projects that, for example, bring together lonely older people with children from broken homes so that both can benefit and learn from each other. I remember a story that I have mentioned in the past: in one of the projects I visited, a rather old man said, “I lost my wife five years ago and I had almost given up on life. The fact that I am now working with children from broken families and am almost being a mentor to them gives me a purpose to live—a reason to get up in the morning. I have no longer given up on life.” There are so many of these civil society projects, and no matter how we legislate, sometimes those local projects get to the nub of the problem in their local communities.

I have to pay attention when not only two former NHS chief executive officers but the former Chief Nursing Officer speak in the debate. The noble Lord, Lord Crisp, talked about the focus on outcomes, not inputs and how it is important to make sure that we are not gaming the system, mentioning mental illness and mental health but not doing anything effective about it.

Autism was mentioned by the noble Lord, Lord Warner, a former Health Minister. We are fully committed to improving access to and provision of health and care services for autistic people and people with a learning disability. I know that we have had at least one debate on the treatment of patients with autism and sometimes the terrible conditions they experience. That just shows how important this is.

I am trying to say that in many ways that the Government are absolutely committed to supporting everyone’s mental health and well-being and to ensuring that the right support is in place for all who need it. I therefore welcome the amendments which look to ensure parity of esteem across physical and mental health. I assure noble Lords that we support the sentiments behind these amendments and take mental health seriously.

Indeed, one of the considerations in weighing up the many arguments for further measures in response to Covid—from those who were asking for lockdown, for example—is that we also had to recognise that there was a mental health impact to lockdown. As a Government, we had to look not only at the societal and economic impacts but the mental health impacts within health considerations.

On the amendments, I will first address those tabled by the noble Baroness, Lady Hollins—I add my voice to those of the many noble Lords who have paid tribute to her work over many years in promoting this issue and ensuring that we take it seriously. I also pay tribute to the noble Baroness, Lady Walmsley, for making sure that we are informed about this. These amendments would explicitly reference both mental and physical health and illness in certain provisions of the Bill. I understand that the intention is to ensure that due attention is given to both “mental and physical health” and “mental and physical illness”. Indeed, you cannot separate mental and physical illness, as the noble Baroness, Lady Jones, said. We have moved way beyond “Pull yourself together, man” or a stiff upper lip attitude. We see how mental health plays a role, for example, in terrorism, with those who are recruited to be terrorists, or in those with eating disorders, or the number of people in prison who suffer from mental health issues. It is important that we fully recognise that.