Health and Care Bill
Thursday 13th January 2022
(2 years, 10 months ago)
Lords ChamberHealth and Care Act 2022 View all Health and Care Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 71-II(b) Amendments for Committee (Supplementary to the Second Marshalled List) - (13 Jan 2022)
Baroness Hayman
“(d) how the decision is likely to contribute to—(i) compliance with the duty imposed by section 1 of the Climate Change Act 2008 (UK net zero emissions target),(ii) adaptation to climate change, and(iii) meeting other environmental goals (such as restoration or enhancement of the natural environment).”Member’s explanatory statement
The purpose of this amendment is to include, as part of NHS England’s duties, a requirement that when making a decision about the exercise of its functions, it must have regard to how any decision is likely to contribute to the UK’s climate change and environmental goals.
Baroness Hayman (CB)
My Lords, in moving Amendment 15 I will speak also to Amendments 43, 101 and 153 in my name. I also support Amendments 201 and 210 in the name of my noble friend Lord Stevens of Birmingham. I am grateful to him, the noble Lord, Lord Prior of Brampton, and the noble Baroness, Lady Young of Old Scone, for adding their names to my amendments. I should declare my interest as co-chair of Peers for the Planet, and my regret that I was not able to be present at Second Reading of the Bill.
I doubt that this debate will mirror the length and enthusiasm of so many participants around the Committee in the outstanding earlier debate. However, I should say that the issues that prompt these amendments are equally serious. The Government spent much of last year in preparation for the COP 26 climate meeting and all year, before and since, they stressed the gravity of the climate crisis that the country and the world face, the importance of making progress internationally and on our own domestic targets, which are statutory, and the importance of taking action across all departments and all sectors of the economy and the country’s activities.
The aim of these amendments is to embed consideration of the UK’s climate change and environmental goals throughout the Bill, in much the same way in which the noble Baroness, Lady Thornton, described how earlier amendments attempted to integrate throughout the Bill the issue of inequalities. I am disturbed, despite the Government’s commitments and despite the experience with other Bills—I look at the noble Earl, Lord Howe, who knows well that we have had similar debates on the Financial Services Bill. Those ended happily, and I hope that we can do the same on this Bill. But it is disturbing that we are still getting legislation through the House as if we were not in the midst of a climate crisis and as if we did not have the most challenging targets on net zero, biodiversity and environmental change.
We turn to the NHS. I suggest to the Committee that the NHS has a vital role to play if the Government are to achieve their key strategic priority of net zero by 2050. The NHS is responsible for approximately 5% of the UK’s carbon emissions and around 40% of all public sector emissions. Recognising that, and with the outstanding leadership of my noble friend Lord Stevens of Birmingham, the NHS has committed to an ambitious net-zero plan. It was the first national health service to make net-zero commitments, and at COP 26 last year 14 other countries followed the NHS’s lead and set net-zero emissions targets for their own health services, illustrating how important domestic action can be on the global stage.
My amendments seek to integrate that overarching NHS plan into the new structures set up in this Bill and to join the dots between high-level policy and the new integrated care boards and care partnerships. They seek to embed climate and environmental considerations into the responsibilities and activities of NHS England, ICBs and ICPs, so that, throughout the NHS, climate action, environmental goals and climate adaptation are taken into account.
I should make clear that contributing to the achievement of net zero is important for the NHS not only in contributing to national targets for reducing the volume of emissions; it is also an important element in improving public and individual health. Rising global temperatures and air pollution, for example, directly contribute to rates of major diseases, including asthma, heart disease and cancer. Again, the link to the earlier debate about inequalities is very clear.
The Government themselves have recognised the link between reducing emissions and improving health, talking in their own net-zero strategy of the
“physical and mental health benefits”
of that strategy. The Climate Change Committee, in its progress report to Parliament last year, spoke of
“significant, tangible improvements to public health”
from reaching net zero. These views were echoed in the report from the Academy of Medical Sciences and the Royal Society, A Healthy Future: Tackling Climate Change Mitigation and Human Health Together, which was published last year. It is in the interests of the health of the country, as well as of the Government achieving their targets, to ensure that the NHS plays its part.
As I said earlier, the NHS itself has recognised the importance of this issue on both those counts and is committed to taking action, but we need to embed that commitment throughout the structures of the service. If my amendments are agreed to, this Bill can contribute by providing strategic direction and a clear policy framework at all levels of the NHS.
Amendment 15 adds to the list of the wider effects that NHS England has a duty to have regard to when making a decision about the exercise of its functions. Having heard the Minister respond to the earlier debate, I know that this will not necessarily be an attractive proposition to him, but I think it is important. If Amendment 15 is agreed, in addition to the matters set out in Clause 5, NHS England would have a duty to have regard to how its decisions are likely to contribute to the UK’s climate change and environmental targets.
Noble Lords will recognise that the wording is broader than simply the achievement of our statutory net-zero commitments, but it may reassure noble Lords, and Ministers in particular, to know that it mirrors the terms of an amendment the Government introduced after a similar debate on the Skills and Post-16 Education Bill. Importantly, the wording includes the “adaptation to climate change” necessary to build resilience within the healthcare sector and protect the health of our current and future populations. This reflects the recognition in the NHS’s own net-zero strategy and adaptation report that climate breakdown may affect the healthcare system with increasingly adverse environmental conditions. It is sobering to note that, over the last 15 years, at least 15 hospitals have experienced major flooding incidents, causing disruption to patient services or hospital support services. Attention to vulnerability in this area needs to be an important focus for NHS England.
Amendment 101 would impose a similar new duty on integrated care boards to contribute to the same three objectives set out in Amendment 15, ensuring that trickle-down of policy objectives through the system.
Amendment 43 also deals with integrated care boards, mandating that their constitutions must provide for a member to be designated—not appointed, I should make clear, but for an appointed member to be designated—as having responsibility for climate change and the environment. This would reflect the NHS’s net-zero plan, which highlights the importance of
“ensuring that every NHS organisation has a board-level net-zero lead”.
This amendment implements that part of the plan in relation to the new framework of ICBs, created in the Bill, and having a board-level lead is an approach which has proved successful in other sectors.
Lord Stevens of Birmingham (CB)
My Lords, it is a great privilege to follow the noble Baroness, Lady Hayman, and support all the amendments in this group in her name. I speak particularly to Amendments 201 and 210 which, as she said, refer specifically to using the purchasing power of the NHS to drive this agenda. Given how brilliantly she has set out the case, I shall be extremely concise.
There are two evidence-based reasons why these amendments are important. The first, as the noble Baroness said, is because the health consequences of the environmental crisis are increasingly clear. The Royal Society and the Academy of Medical Sciences laid all of those out. Whether on heat-related deaths, the disruption to care through climate emergencies, the increased risk of vector-borne infectious diseases, or the fact that up to a third of preventable asthma cases may be linked to the consequences of air pollution, the health case for action is clear. The second evidence-based reason, again as we have just heard, is that unfortunately healthcare itself is not blameless. It is part of the problem as well as part of a solution. By one estimate, if all the health systems in the world were their own country, they would be the fifth-largest greenhouse gas emitter on the planet. Therefore, the NHS must get its act together, given that it contributes 4% to 5% of our country’s emissions.
Those are the two evidence-based reasons. The NHS has stepped up in the way that the noble Baroness has set out. An expert panel led by the brilliant Dr Nick Watts made it the first health service in the world to charter a practical blueprint to net zero, but to do that, we must recognise that only about 28% of the carbon footprint of the NHS arises directly from care being provided. Another 10 percentage points are associated with travel on the part of patients, staff and visitors, but 62% of the carbon footprint arises from the supply chain—the medicines, the devices, the anaesthetic gases, the asthma inhalers, that the NHS uses, which it procures from 80,000-plus suppliers.
I am grateful to the noble Lord, Lord Prior of Brampton, and the noble Baronesses, Lady Young of Old Scone and Lady Hayman, for their support of my Amendments 201 and 210. Their purpose is simply to harness the £150 billion of purchasing power that will flow through either the new NHS payment system or the procurement rules to achieve the two evidence-based rationales that we have been discussing.
Baroness Northover (LD)
My Lords, this is my first foray into this Bill. I have a sense of déjà vu, having deputised for the noble Earl, Lord Howe, on the 2012 Bill. Despite our absolute confidence at the time, it seems that some things need to be tweaked and rectified, though I now find myself on this side and the noble Earl on the other.
From these Benches, I support these amendments. The noble Baroness, Lady Hayman, put it very effectively. Climate change needs to run through to the very foundations of the Bill, as does addressing the health inequalities which were the subject of the previous debate. We have had such a long-standing debate about them over the years.
As the noble Baroness has said, at the moment, the UK is taking the lead internationally on combatting climate change through COP 26 and in the year after. We have been urging the world to take urgent, deep-rooted action if the enormously damaging effects of climate change are to be tackled and reversed. We know that the poorest will be hardest hit and can already see that effect, but no part of the globe will be spared. We can already see this as well.
As the noble Lord, Lord Stevens, said, we also know the effects on human health worldwide. We can see them already in developed countries: we saw the effect of that heat dome in Canada and the deaths that resulted from it. We know that climate change might have played a part in seeding the pandemic from which we have suffered during the last two years. We know all that. We also know that we cannot lead internationally without addressing climate change nationally. I pay tribute to the staff supporting Peers for the Planet, a group of which I am a member, for making sure that we address climate change at every stage, in every Bill.
We are rightly proud of the NHS. It is the major employer in the United Kingdom. The health and social care of our ageing population will play an ever more important role in our lives. It is therefore right that, in the Bill, as in every other area of life, tackling climate change must run as a thread through all we do. The Climate Change Committee makes this clear. It is not something for only Defra or the COP team. It requires fundamental change in everything we do and the scrutiny of every area of life.
The NHS has already made strides forward. Here, I pay tribute to the noble Lord, Lord Stevens, in making sure that that was the case. At COP 26, the NHS made a commitment to net zero. As we have heard, 14 other countries followed the NHS’s lead. More than 50 countries, representing more than a third of global healthcare emissions, have committed to developing sustainable, low-carbon health systems. This is incredibly encouraging. It is also encouraging that, at COP 26, a new international platform was set up—to be hosted in partnership with NHS England and the WHO—to bring together those in the healthcare systems, so that people can learn from each other.
Why does this matter? As the noble Baroness, Lady Hayman, has said, the healthcare sector is responsible for almost 5% of global emissions. Of course, public health is assisted by tackling climate change. Although we pay tribute to what the NHS has managed to do so far—and it is ahead of its requirements under the Climate Change Act—we need to make sure that this is built in and sustained for the future. This is what these amendments are about. Progress is being made, but we need to ensure that it is locked in and does not necessarily depend simply on who is leading these organisations at any particular time.
The noble Baroness, Lady Hayman, has explained how her first amendment affects the overarching structure within NHS England. The other amendments put in place the necessary pragmatic steps to make sure that this is addressed. Thus, we have identified individuals for these particular responsibilities. This is obviously of key importance.
It is fundamental that, in addressing climate change, we do not just see this as hosting a major meeting or siloed in one department—whether Defra or BEIS. I am a member of the Select Committee on the Environment and Climate Change. When our committee asked the different departments to report on what they were doing in advance of COP what came back to us, in many regards, was a kind of surprise that they were relevant to it. They felt that it was something for Defra, for BEIS in particular, or for the COP unit. They did not see it as their responsibility. Some of the responses were superficial in the extreme. That is why it is important to make sure that we mainstream this issue, and this is another opportunity to do so. I strongly support the amendments that the noble Baroness, Lady Hayman, and others have tabled.
Baroness Bennett of Manor Castle (GP)
My Lords, it may not surprise your Lordships’ House that as a Green Peer, I rise to offer my full support to all these amendments. I also declare my involvement with Peers for the Planet.
In introducing this group so comprehensively and, I would say, brilliantly, the noble Baroness, Lady Hayman, said it was just important as the group that we were discussing previously, which addressed inequalities in issues such as smoking and alcohol and their impacts on health. I would actually go further and say that the two groups are intimately related, in that when someone arrives at the NHS needing treatment for an illness or a disease, at a point where their environment and society, often, has failed and has created or amplified that disease, the NHS then has to deal with the problems created by society and that environment. We need a systems-thinking approach to health—not just “Here’s a disease” or “Here’s a limb or an organ with a problem” —that considers the whole person. I say in passing that I regret that I was not able to take part in that earlier group due to my being unable to be here at the start.
I am not going to run through all the amendments, which have been very well covered, but they go all the way from the duty of the NHS to have regard to climate and the environment, right down to the detail of procurement. I particularly commend the noble Lord, Lord Stevens. We would like to see the Government take control of procurement more broadly to improve our society. The Preston model comes to mind here.
I want to address the climate side of this issue, and then I am mostly going to talk about the environmental side, which has not been discussed much yet; I want to add something different rather than repeat. However, I have to highlight the fact that we are talking about 5% of UK climate emissions and 40% of public service emissions.
We really have to think about the interrelationship of environment and health. We know that heatwaves have huge impacts, particularly on the health of older people. They can be a significant cause of death among older people, and as long as the NHS contributes to climate change, there is a disastrous cycle there. Also, some 10% of London hospitals are at risk of river flooding. I have not been able to find figures for the country as a whole, but I am sure that will be true for many other hospitals too.
While preparing for today’s debate, I looked at the Medicines and Medical Devices Act, which we debated last year. It is a little unfortunate that, as I look around the Chamber today, practically no one is present who attended those debates. That Act was a huge missed opportunity. It requires that when the appropriate authorities are approving veterinary medicines, they must have regard to their environmental impacts. I moved an amendment—but lost the vote—that would have applied the same judgment to human medicines. This point applies particularly to antibiotic resistance. I am not going to repeat everything I said in Committee on 26 October, but it is all there. The management of antibiotic resistance is a huge issue that the NHS needs to do a great deal more on, as do all global health systems.
I want to focus on some other aspects of the environmental impacts of the NHS today, particularly in light of the report by the Environmental Audit Committee in the other place on the state of our rivers. The Bloomberg Green newsletter going around the world today has the following headline:
“English Rivers Join Europe’s Most Noxious with Chemical Cocktail”.
That report notes, as have many others, that:
“No river … received a clean bill of health for chemical contamination.”
Baroness Walmsley (LD)
I support these amendments and in particular the words of my noble friend Lady Northover. I too am a member of Peers for the Planet and, as a biologist, I have been devoted to trying to address climate change ever since I knew anything at all about it. I particularly support the noble Baroness, Lady Hayman, in her determination to mainstream the issue. It is not the responsibility of just Defra but every department of government and every single individual in this country.
From my work on the Science and Technology Committee, I was aware of the health service’s 5% contribution to our emissions, but also of what the NHS has already done and pledged to do under the leadership of the noble Lord, Lord Stevens. I confess I was a little surprised when I saw these amendments; I thought, given all that, “Why does the noble Lord think more needs to be done?” The noble Lord, Lord Stevens, knows more than I or any of us do about the health service, so if he thinks more needs to be done, I am with him. We absolutely should support these amendments.
I would like to ask the Minister one particular question. The NHS has a very large portfolio of property and the Prime Minister has promised 40 new hospitals in a certain period of time. Leaving aside the fact that some of the buildings promised are not hospitals and are not new, if we are building new buildings, I would like to be assured that all of them will be zero-carbon. That can be done and there is no excuse not to do it.
Baroness Wheeler (Lab)
My Lords, I congratulate the four noble Lords who have produced this excellent suite of amendments across the Bill to ensure that ICBs procuring or commissioning goods and services on behalf of the NHS are firmly focused on their responsibility for NHS England’s commitment to reaching net zero by 2040. It has been an excellent and informed debate, and one with much enthusiasm to reassure the noble Baroness, Lady Hayman.
We fully support the amendments and have little to add from these Benches following the expert contributions of those proposing the amendments and the other noble Lords who have spoken. I am sorry my noble friend Lady Young, who put her name to the amendments, cannot be here. She was a key member of our team during the recent passage of the Environment Bill, and her expertise and wisdom always guides and reflects our approach. The House is clearly interested in this vital matter, as we saw this week in an important Oral Question on the Prime Minister’s promise for a new, overarching net-zero test for new policies. Assuming the Government fully support the key commitment from NHS England, I hope that, in his response, the Minister will accept the need for the amendments and will not argue that the proposed new clause is unnecessary as NHS England already has a commitment that will percolate down to ICBs.
As we have heard, the power of public sector procurement is a massive issue and there is no bigger part of the public sector than the NHS. The NHS has such an important impact on other environment issues, such as waste, pollution and resource consumption, especially for plastics, paper and water. We should ensure we are on the front foot in using that impact to deliver the net-zero commitment.
The NHS has made a start, but there is much more to do. These amendments would reinforce the importance of action in these areas for the new bodies and processes that the Bill creates. The NHS is a big player and, as noble Lords have stressed, it can play a big role in tackling all of these climate change and environmental challenges. Procurement is a strong lever that the NHS can utilise in key markets, particularly in those areas where it is the sole purchaser. The noble Lord, Lord Stevens, was very eloquent on this issue and I look forward to the Minister’s response in the light of his contribution.
Like other speakers today, my noble friend Lady Young wanted to stress that action so far is only the beginning. In the light of the importance of climate change and other environmental challenges, we strongly support such a duty being in place for all the public and private bodies with significant impacts when future legislation comes through Parliament. We did that when inserting a sustainable development duty into the remit of every possible public body from the late 1990s onwards, but this time it has to be not only enacted but managed, delivered, tracked and reported.
As the Minister, the noble Lord, Lord Callanan, told the House this week, every sector of government needs to do its bit, and we need to hold them to that. These amendments are vital, since every public body will have to take further action this decade if we are to restrain temperature rises to two degrees—far less, 1.5 degrees.
Finally, I too thank Peers for the Planet both for its work and, especially for me, its excellent briefing. As noble Lords have stressed, the NHS has committed to net zero and aims to be the world’s first net-zero national health service. It is responsible for around 5% of the UK’s carbon emissions. That is why the NHS’s role and contribution to net-zero targets should be fully integrated into the Bill. I look forward to the Minister’s response and his detailing of how the NHS is to achieve its ambitions. I hope that he will acknowledge that its commitment must be in the Bill. These amendments present a vital opportunity to enshrine in law a commitment that I think most, if not all, would want to see delivered.
The Parliamentary Under Secretary of State, Department of Health and Social Care (Lord Kamall) (Con)
I thank the noble Lord, Lord Stevens, for the amendments and the noble Baroness, Lady Hayman, for her opening remarks. I also thank the noble Baroness for her suggestion yesterday that it might make my life a lot easier if I just accepted amendments. I understand that advice, having just gone through a two-hour debate on the previous group.
A number of noble Lords referred to how these amendments relate to our previous debate on inequalities. I point out that that is sometimes not quite in the way that we would expect. We might think there is a direct connection, but sometimes the green agenda can be seen to be for those who can afford it—as I explained before, for the white, middle-class, patronising people who tell immigrant working-class communities what to do and push up their costs. Anti-car policies push up costs for those in rural areas, and there are higher fuel costs as we replace gas boilers with potentially more expensive heat pumps. We have to be aware of those issues. In the long term, I am optimistic. I look forward to the day when we have solar power and wind power, with storage capacity, which will reduce costs.
Baroness Northover (LD)
Will the Minister look at this globally and recognise that the poorest are affected the worst? When he talks about those in poverty, he should think globally.
Lord Kamall (Con)
I accept that point, but I also accept that, sometimes, one can be patronised, and I do not accept being patronised as I was in the earlier debate. One day, there will be cheaper fuel, and we can look forward to it, but we have to make sure that the transition along the way is not seen to push up costs for working people, because we all feel passionately about this green agenda.
Baroness Bennett of Manor Castle (GP)
The Minister was talking about the impact of policies on the poor. Does he agree that many of the products—the fabrics, the chemicals—are manufactured in the poorest areas of the world, producing pollution that has disastrous impacts on some of the poorest people?
Lord Kamall (Con)
I was going to come to the noble Baroness’s points, and I am grateful to her for raising these issues directly with me previously.
Turning to the amendments, I thank the noble Baronesses, Lady Hayman and Lady Young of Old Scone, and the noble Lords, Lord Stevens and Lord Prior, for bringing this debate before the Committee. There is no doubt that the NHS has a significant carbon footprint. There is no doubt that a poor environment has direct and immediate consequence for our patients, the public and the NHS. There is no doubt that it has an impact on the health of the nation. As the noble Baroness, Lady Hayman, pointed out, the NHS accounts for around 4% to 5% of UK emissions. If we go further, as the noble Baroness, Lady Bennett, said, that is 40% of public service emissions. Noble Lords are right to highlight the critical role that the NHS has to play in achieving net zero.
To support that work, NHS England—thanks in part to work already started by the noble Lord, Lord Stevens, who I know has had conversations with my right honourable friend the Secretary of State for Health and Social Care—is leading the way through a dedicated programme of work, as many noble Lords acknowledged. This includes ambitious targets for achieving net zero for the NHS carbon footprint by 2045 and for its direct emissions by 2040. This is ahead of the target set by Section 1 of the Climate Change Act 2008; we welcome that ambition and will continue to support the NHS in that.
Lord Mawson (CB)
I thank the Minister. Can I just give an illustration about the local on this issue? I am certainly not an expert on climate change, but I am a practical person who worries a lot about granularity and the gap between a lot of talk I have heard over many years on all sides of this Chamber—with very large amounts of money cited, et cetera—and the realities in this building.
I am trying to buy an electric car at the moment, as a responsible citizen. When I went to have a look at the multi-storey car park below this building—the local—and wondered where I am going to plug it in when it arrives here, I ended up talking to one of the facilities managers, who was a very nice man. I asked him how many plug-in points there were underneath this building—again, the local. He said, “I don’t know, Lord Mawson, but I will look into this”.
He was diligent and came back to me. We started to have a conversation about it, and he began to suggest that I need to carry a cable in my car with a three-pin plug. I pointed out that my office is across St Margaret Street, in Old Palace Yard, on the third floor, so maybe I should run it across there with a carpet over it and up to the third floor to plug it in there. We had this amusing conversation. I said, “Well, go on then, tell me: how many are there in this building, where all this chatter and talk is taking place?” His answer was that there are two. I suggest that the gap between reality and rhetoric is very large indeed. If we are really going to deal with these issues—as we must—we must now become intensely interested in the NHS and in all the systems of government about practicality and the procurement machinery, which I suggest is not working.
I talked to one of the facilities people yesterday about my office, which has a light switch with a notice over the top of it telling you how to use it. It is completely ludicrous. She told me that that system is going to be different to all the systems here in the Palace of Westminster; none of it is joined up.
I think the Minister is right. The clue is in the local, but all our systems and our civil servants must now become interested in practicality and the local if we are really going to get serious about these matters. It is absolutely crucial to get procurement right, because without that, we will never deliver this.
Lord Kamall (Con)
I thank the noble Lord, Lord Mawson, for that intervention, and I completely agree. There are some incredibly inspirational projects going on in our local communities, tackling and addressing the green agenda, and sometimes, top-down, we may feel good about it in this place, but it really affects working people and those who face higher costs and we have to be very careful.
On the specific question of procurement, the NHS is already publicly committed to purchasing only from suppliers which are aligned with its net-zero ambitions by 2030, and last year, NHS England set out its roadmap giving further details to suppliers to 2030. This is supported by a broad range of further action on NHS net zero and we hope that by pushing this through at NHS England level, but also with ICSs, we can see some of that local innovation as local trusts and local care systems and even health and well-being boards respond to those local challenges—others could learn nationally. To respond to the question of the noble Baroness, Lady Walmsley, NHS England will publish the world’s first net-zero healthcare building standard; this will apply to all projects being taken forward through the Government’s new hospital programme, which will see 48 new hospital facilities built across England by 2030.
There is political consensus on green issues. and we should pay tribute to the noble Baroness, Lady Bennett, and the Green Party for making sure, over the years, that the green agenda has been put at the centre of British politics. We find green policies in all the election manifestos of the mainstream parties: that is in no small part due to the noble Baroness’s party and to the noble Baroness herself. So, even while we may disagree on how to achieve some of these things, there is no doubt that we are not going to reverse on our commitment. Whatever Governments are elected in future, all are committed to a carbon net-zero strategy and a cleaner environment. So, I must gently disagree with her that these amendments are necessary.
I would like to have further conversations with the noble Lord, Lord Stevens, given his experience, on why he feels that, despite all the great work that the NHS has been doing, these amendments are still necessary. I would like to have further conversations with him and others, but at this stage, I ask the noble Baroness to withdraw the amendment. Across the political spectrum, we must make sure that we are pushing the NHS to deliver, not only at the national level but at the ICS level and even lower, at the place level that the noble Lord, Lord Mawson, speaks so eloquently about.
Baroness Bennett of Manor Castle (GP)
Before the noble Lord sits down, will he respond to the question, of which I gave him prior notice, about the document?
Lord Kamall (Con)
I apologise to the noble Baroness—I am so sorry, but I am trying to juggle 300 devices. That is a slight exaggeration, if I am honest. We recognise the importance of ensuring that all chemicals in the NHS supply chain are appropriate and properly managed as part of the net-zero strategy. I think the noble Lord, Lord Stevens, even touched upon some of the chemicals that were used and some of the issues he looked at during his time at the NHS when it comes to chemicals. The NHS must also comply fully with the Control of Substances Hazardous to Health Regulations, the CoSHH regulations.
More broadly, although Defra is the lead department for harmful chemicals, the UK Health Security Agency feeds in its expertise in relation to restricting and banning chemicals, and we are grateful to it for that work. The UKHSA is also looking at each of those chemicals, which we hope in future can be replaced by less harmful materials and chemicals. I undertake to write to the noble Baroness in more detail than the short answer I have given her at this stage.
Baroness Hayman (CB)
My Lords, I am extremely grateful to all Members who contributed to this debate, which got slightly more feisty than I expected it to do in some areas. I am sure that the Committee will be grateful if I do not respond on the issue of electric charging points in your Lordships’ House, which has concerned me for four years, but there are one or two important things to be said here. There are two dangers. One danger—I fear the Minister nearly got there—is to suggest that those who are concerned about climate are not concerned about fairness or inequality and do not realise the dangers, on everything from heating to electric vehicles or whatever. However, there is not that layer of people who are concerned only with the climate in theory. Most of us who are active in this area are extremely concerned about a fair transition and the implications of individual policies.
The other false dichotomy is that either you work on the absolutely granular local stuff or you make highfalutin legislation that is not relevant to anyone. We need both. We need to go throughout the system. We are legislators. Legislation matters and words matter. Sometimes legislation matters because Governments and policies change but legislation is there in statute—the words are on the page.
Of course I will seek to withdraw my amendment and of course I will have conversations with the Minister, but it is essential that we tackle this, the most serious of issues facing the world. Covid is the crisis of our time but the climate is the crisis of our age and we absolutely need to address it at all the levels that we can—and there are many. As I say, we are legislators and we can start some of that trickle-down. We have a responsibility to monitor and ensure that we end up with exactly the level of granularity that we need—and that we learn from the local. I am happy to delay conversations with the Minister for a later date. I beg leave to withdraw my amendment.
Baroness Morgan of Cotes
“Duty to consider residents of other parts of UK
For section 13O of the National Health Service Act 2006 substitute—“13O Duty to consider residents of other parts of UK(1) In making a decision about the exercise of its functions, NHS England must have regard to any likely impact of the decision on—(a) the provision of health services to people who reside in Wales, Scotland or Northern Ireland, or(b) services provided in England for the purposes of—(i) the health service in Wales,(ii) the system of health care mentioned in section 2(1)(a) of the Health and Social Care (Reform) Act (Northern Ireland) 2009 (c. 1 (N.I.)), or(iii) the health service established under section 1 of the National Health Service (Scotland) Act 1978. (2) The Secretary of State must publish guidance for NHS England on the discharge of the duty under subsection (1).(3) NHS England must have regard to guidance published under subsection (2).””Member’s explanatory statement
This new Clause places a duty on NHS England to consider the likely impact of their decisions on the residents of Wales, Scotland and Northern Ireland, and to consider the impact of services provided in England on patient care in Wales, Scotland and Northern Ireland.
Baroness Morgan of Cotes (Con)
My Lords, in moving my amendment I will speak also to Amendments 205 and 301. I thank my noble friends Lord Moylan and Lady Fraser of Craigmaddie for their support for these amendments.
It is a pleasure to follow two excellent debates. I suspect—although, as the noble Baroness, Lady Hayman, said, we are never quite sure how feisty the debates on these groups will get—that we may spend an even shorter time on this group to enable the Committee to make progress. These amendments are relatively simple, designed to improve transparency, quality and access to healthcare for residents in all parts of the United Kingdom. I thank Ministers for their engagement so far on the amendments. In particular, Amendments 205 and 301 were tabled in the House of Commons by Robin Millar MP and others.
The NHS is a UK institution. It could not have been developed without the combined economic strength of our United Kingdom and has developed from unifying United Kingdom values—you might even say that the NHS embodies them. It includes a promise that, wherever in the United Kingdom you are from and whatever your situation, you are entitled to the same protection and treatment. That is why the first two amendments, Amendments 17 and 205, are about access by patients to a consistent national standard of healthcare.
The unfortunate reality, of course, is that many UK residents do not have equal access to healthcare. Referral-to-treatment waiting times for England, Scotland and Wales are, respectively, 11 days, 32 or 42 days—depending on whether you are talking about in-patients or out-patients in Scotland—and 21.5 days. These headline figures are concerning enough. However, they obscure even more stark differences when treatments are considered separately.
Baroness Fraser of Craigmaddie (Con)
My Lords, I am very keen to speak to these amendments. This is the first time I have been able to contribute to this Bill, and I apologise for not being here for Second Reading. I was actually talking to Members of the Scottish Parliament about NICE and SIGN guidelines on the day of Second Reading, so I am delighted to have an opportunity to contribute now. I will speak to Amendments 17, 205 and 301. I thank my noble friend Lady Morgan of Cotes for tabling them; I would have added my name to all three if I had got in quick enough.
We all appreciate that health and care are devolved matters. As my noble friend outlined, the Scottish Administration have taken a very different path on health and care over recent years, which perhaps could be characterised as worrying less about long-term funding and pursuing a more centralised approach. The Bill is therefore predominantly and rightly focused on matters relating to England, but a number of clauses addressed by these amendments relate to devolved areas. I note that the Scottish Government and the Cabinet Secretary for Health in Scotland have yet to grant the Bill legislative consent, believing that some clauses do not reflect the devolution agreement. I beg to put that these amendments are slightly different, in that they do not cover a specific area of delivery within devolved nations.
Amendment 17 simply covers how NHS England should consider the impact of any decisions it might make on patient outcomes in the devolved Administrations. Amendment 205 protects the right of access to treatment and services for all citizens throughout the UK. Amendment 301 seems to be simple common sense, in that it ensures the interoperability of data and collection of comparable healthcare statistics across the UK.
I support these amendments on a number of counts. First, the pandemic has highlighted the huge importance of good data, and close collaboration and working, throughout all health and care services in all parts of the UK—whether that is knowledge gathering, information sharing, vaccine development and rollout, or anything else. The pandemic has demonstrated yet again that we are “better together”. In the realm of healthcare, I support any measure that ensures that we do not work in silos and that barriers are not created in the provision of healthcare that prevent seamless co-operation throughout the UK. This will become ever more important as roles change, technology advances and services develop.
We particularly need to ensure a UK approach to data gathering and healthcare statistics, as set out in Amendment 305. The disparities do not just present a barrier to consumers of healthcare—the public: voters, indeed—and their understanding and ability to evaluate standards of care in their area, as my noble friend Lady Morgan just illustrated. The lack of interoperability of data has real and detrimental consequences for health research, patient care, and ensuring and promoting continuous improvement in healthcare. This is before we even consider inconvenience and inefficiency.
My eldest daughter stands in danger of being caught out by the current unsatisfactory situation. As a student at the University of St Andrews, she had her first two Covid vaccinations in Scotland, recorded on the NHS Scotland app under her CHI number, which is the number that NHS Scotland uses to identify patients. By the time it came to her booster and third injection, she was working as a graduate trainee in London. She duly went along in December and queued at a drop-in centre for her booster. However, the two systems do not match, so nowhere can she now show her proof of having three doses of the vaccine—which might lead to some problems if she wants to go to the rugby, a nightclub or somewhere else where she has to show it; or if she wants to travel. The same situation has arisen for many students or others who regularly cross the borders of the United Kingdom for work, study or family reasons. For these reasons, I commend the Minister to look at initiatives such as patient-held records. After all, we should always remember that, importantly, this is the patient’s own data.
Another challenge we faced at the beginning of the pandemic was when consultants across the four nations sought to identify who should be in the shielding categories. Ensuring that the right people with the right conditions were identified and then notified was made far more challenging by the disparity of health data for different populations. It is bad enough that primary care, secondary care and social care data do not speak to each other, but healthcare is far too important to be allowed to become a political football within the UK.
The Prime Minister has put ensuring the viability and security of the union as one of his top priorities. We have heard the excellent recommendations of my noble friend Lord Dunlop, and many times in this Chamber we have been assured that the recommendations will be enacted by Ministers across government departments, so that decisions taken in Westminster and England that affect the devolved nations will be considered proactively, positively and constructively, and we can build mutual respect. This Bill and this moment are an ideal opportunity to put some of these principles into practice. What could be more positive and constructive than legislating for NHS England to ensure that this body considers the impact of its decisions on patient care in Scotland, Wales and Northern Ireland?
Like Amendment 301, where better data will lead to greater transparency, the new clause proposed by Amendment 17, which aims to ensure that the Secretary of State publishes guidance on these matters, also goes some way to ensuring transparency, which is so important in the building of mutual respect. These amendments would ensure that those with different approaches and political views across the UK cannot simply manipulate the delivery of healthcare and sacrifice patient outcomes on the altar of division.
Turning to Amendment 205, at the moment, if a treatment is available to patients in one of our bigger teaching hospitals—say, in London, Glasgow or Edinburgh—should that treatment not be available to anyone in the UK? I refer to my interests in the register, particularly as the chief executive of Cerebral Palsy Scotland. I recall that, when the procedure for children with cerebral palsy, known as selective dorsal rhizotomy, was first performed in the UK, it was available at first only in Bristol. However, NHS boards in Scotland were able to refer suitable patients on an ad hoc basis, with funding following the patient. This saved families having to raise around £80,000 to travel to the United States for the procedure—but it did not just help the families. The practice was able to ensure that good practice and learning were shared. Now, the procedure, pioneered in Bristol, is available in a number of areas across the UK.
Specialist, life-saving cancer services are another example. I think of a recent case where a patient from Glasgow—a good friend of mine—was able to benefit from treatment in Liverpool, which was his only option for treatment in the UK. However, it is not just for rare procedures or difficult cases that this is applicable. I have often seen families of children with cerebral palsy from Belfast, Carlisle or Northumberland who wish to travel to Glasgow or Edinburgh for relatively routine but condition-specific input instead of having to travel to London. At the moment, as I said, these arrangements are made largely on an ad hoc basis rather than being broadly available. This is what Amendment 205 seeks to correct. The NHS is a great British institution. The clue is in the name: it is a national health service. Therefore, should access not apply right across the UK?
I urge the Government to accept these amendments. I cannot see why they would not, as they will not only ensure better co-ordinated healthcare throughout our United Kingdom; they will ensure that patient care for all our citizens, wherever they live, is given due consideration, and they will clearly illustrate the importance that the UK Government place on the well- being of people right across the UK. I look forward to the response from the Minister.
Baroness Finlay of Llandaff (CB)
I am most grateful to the noble Baroness, Lady Morgan, for tabling these amendments and starting this debate, because these three amendments are very different.
I welcome Amendment 17. Of course we should consider the devolved Administrations because of all the cross-border flows. As we have just heard, people move around the UK. We have a lot of patients from Wales—I should declare my interests; I will not list them all in Hansard, but I have various roles in Wales and have done various things with IT in Wales as well—who routinely go into England from across north Wales; and in south and mid-Wales, they go across to Hereford and Shropshire. So I say to the Government, please make sure that you do always consider the impact.
We need patient-based clinical information that flows between different systems in a timely manner. The noble Baroness, Lady Fraser of Craigmaddie, referred to patient-held records. I hate to disappoint, but we did a quite extensive research project on them and found that there were all kinds of problems with them, one of the main ones being that, when the patient turned up in ED, they inevitably did not have their record with them—or they did not want things written in it in case somebody else in the family saw them, and so on and so on.
Lord Lansley (Con)
My Lords, I will intervene briefly, if I may, to support my noble friend in her Amendment 17. I am glad to follow the noble Baroness, Lady Finlay of Llandaff. I will not follow her in discussing the financial settlements between NHS England and NHS Wales; there is a lot to that. But I confess that I rather share her view that it would be a stretch too far for us to seek to legislate in this Bill for matters that are the subject of devolved powers for the parliaments in Wales and Scotland, even though the issues are very interesting and the points that were made, not least by my noble friend Lady Fraser, were perfectly sensible and rational objectives.
I will confine myself to Amendment 17 and say there are good reasons why my noble friend and the Government might adopt it. It seeks to amend what is presently Section 13O of the National Health Service Act. The differences are important. First, if one looks at Section 13O as it stands, it requires the board—NHS England for these purposes—to
“have regard to the likely impact of those decisions on the provision of health services to persons who reside in an area of Wales or Scotland that is close to the border with England.”
It is perfectly reasonable that it should do that, but that is not, as the debate has illustrated, the extent of the issue.
Speaking entirely personally, my late father-in-law was resident in Anglesey. He needed cancer services, so—perfectly sensibly—he went to Clatterbridge in the Wirral. My noble friend Lord Hunt is of course a former Secretary of State for Wales. He will be very familiar with the way in which services between north Wales and Cheshire, which he formerly represented, were provided. That is one straightforward example.
A number of noble Lords will recall the debate when I was Secretary of State about paediatric congenital heart services. In north Wales, they were provided in Liverpool, if I remember correctly. In south Wales, they were provided in Bristol. Those are one or two aspects of a necessary relationship for specialised services between different parts of the United Kingdom. At the border, there is a relationship in day-to-day healthcare services. There is an arrangement for that, and we do not need to interfere with it in this legislation. Shropshire CCG presently runs it on behalf of NHS England.
NHS England and NHS Wales have a statement of values and principles which, as far as I could see on looking it up, was last renewed in 2018. I think it is due for renewal. Basically, it relates to about 21,000 patients from England who are registered with Welsh GPs. About 15,000 patients resident in Wales are registered with English GPs. There is a transfer and a netting off of costs between them of about £6 million, and arrangements exist for referrals between the two countries. So we do not need to interfere with any of that, but the legislation needs to cover in particular this first point: that we are concerned not only with those who live in the areas bordering England and Wales; we are concerned with people in England and in Wales more generally, as well as with people elsewhere in Scotland and Northern Ireland.
The second point is that the present drafting excludes Northern Ireland. Clearly, there should be a role for NHS England. It should be prepared to consider its functions in relation to the provision of services—obviously where required and requested—by the Administration in Northern Ireland.
Finally, the drafting of Amendment 17 rather sensibly says not only that one should consider the impact on people living in Wales, Scotland and Northern Ireland but that one should think about the provision and delivery of additional services for people living in those areas. Amendment 17 makes this clear in 1(b):
“(b) services provided in England for the purposes of”
the health services in Wales, Northern Ireland and Scotland. In so far as any of those Administrations were to make a request or, under the concordat that exists, to look for support for services, that is something that NHS England would have the necessary legislative cover to support.
I appreciate drafting, if I may say so, and even at this stage my noble friend has drafted a very good amendment which I am rather hopeful that my noble friend on the Front Bench will also commend.
Baroness Bennett of Manor Castle (GP)
My Lords, in very clearly introducing these amendments, the noble Baroness, Lady Morgan, said that this group might not get feisty. I hope that we can manage to be very civil and calm in tone. None the less, there is a degree of disagreement—to which I am going to contribute.
In concluding her remarks, the noble Baroness said that this is a UK institution, embodying UK values. That seems to deny the reality of devolution. It is entirely possible that at least one of these countries could be an entirely separate nation very soon. That is the practical reality.
Once again, I was struck by the similarity with the climate change debate we had earlier. Sometimes people say, “Well, the scientists will tell us what to do about climate change”. Of course, this cannot be true, because how you get to 1.5 degrees involves a huge number of political choices around the allocation of resources. Similarly with health, many different routes and choices are involved in the effort to produce as healthy as society as we can. Whose health are you talking about? These are all political choices.
The noble Baroness, Lady Fraser, said that this was about data, not delivery. Of course, we know that very often what is delivered is what is measured, and if you choose to measure different things, maybe that is because you are seeking to deliver different things.
Like other speakers, I do not have any particular problem with Amendment 17, but I do with Amendment 205 and, in particular, Amendment 301, which says:
“The Secretary of State may … specify binding data interoperability”
and
“Scottish Ministers, Welsh Ministers and Northern Ireland Ministers must arrange for the information”.
I do not speak for the Scottish Government—albeit that they have some Green elements—but I would be surprised if they accepted that kind of wording. I do not wish to redraft on my feet but, if the Minister were looking to redraft, I suspect that something like a direction to the Secretary of State to “work with the Scottish, Welsh and Northern Ireland Ministers to agree” would definitely be preferable.
However, I agree with the noble Baroness, Lady Finlay, who gave us some very detailed and informed comment, that the best way to achieve this is by institutions at an operational level working together to find ways to link things up. If we take the example given by the noble Baroness, Lady Fraser, about her daughter’s situation, we can all be very annoyed that that apparently rather simple situation has not been sorted out. But I do not think drafting law in your Lordships’ Chamber is the way to sort that problem out. That needs to be at a very different level, and it needs to be sorted out as soon as possible.
Baroness Walmsley (LD)
My Lords, I support Amendment 17 from the noble Baroness, Lady Morgan. There are of course different waiting-list lengths in the different Administrations, but I take the point made by the noble Baroness, Lady Finlay, about fair funding. She makes a very good point about Wales.
I too have had experiences like those of the daughter of the noble Baroness, Lady Fraser, over my Covid vaccination status, because I live in Wales and the NHS app in Wales did not seem to speak to the other one. But, as the noble Baroness, Lady Bennett, said, that is something that needs sorting out at a different level.
As I said, I live very near the border in Wales, so I am acutely aware from personal experience that the nature, quality and resources of healthcare in England affect the people of the devolved Administrations. I accept what the noble Lord, Lord Lansley, said: it is not just about people near the border—Anglesey is not at all near the border—but in day-to-day working it affects people near the border very frequently.
These are of course devolved matters, but in their practical, day-to-day operation the borders are what people call “leaky”—in other words, people travel both ways for work, school, shopping, leisure and indeed health services. So, particularly in the border areas, it makes a lot of sense to do what the noble Baroness, Lady Finlay, said happens all the time: for GPs to be able to refer patients for a particular service to or from the devolved nations. That is why anything that affects the provision and quality of services in England also affects Welsh and Scottish people in particular. I suspect it is slightly less the case for people in Northern Ireland, although waiting lists there are particularly concerning.
So this is particularly important in relation to the location of specialist hubs, because the border areas of both Wales and Scotland are very rural and the distances and transport difficulties to their own hospitals can be long and difficult—even more so if the patients have to cross the border. We need to ensure that anything done in the Bill makes cross-referral able to continue as easily as it does at the moment.
What discussions have taken place with the devolved Administrations about the Bill? Are there any aspects of it that are still waiting for the agreement of the Governments of Wales, Scotland or Northern Ireland?
Baroness Thornton (Lab)
My Lords, I am very grateful to the noble Baroness, Lady Walmsley, because she has helped me to clarify my thinking about this group of amendments. Basically, they have good intentions and they make good points about the things that need to happen, but I am not absolutely certain they need to be in the Bill. I am also particularly grateful to the noble Baroness, Lady Finlay, for her very well-informed contribution about what actually goes on. There are of course problems in relationships between the devolved nations and NHS England, some of which are down to not being very well organised, some of which are down to arrogance on the part of the bigger ones, and some of which are down to the funding not actually being available—and some of them might be politically motivated too.
Amendment 17 opens some new thinking on the subject of integration, and accepts that devolution has given us different systems for care in Wales, Northern Ireland and Scotland, but seeks to ensure that what is done in one part of the UK—that is, England—does not adversely impact on other parts. The intention to bring collaboration between the nations is, of course, commendable.
I note that Amendment 205 places some requirements such that
“Welsh Ministers, Scottish Ministers and a Northern Ireland department must make regulations providing that the choices available to patients in England by virtue of regulations under section 6E(1A) or (1B) of the National Health Service Act 2006 (inserted by section 69 of this Act) are available to patients for whom they have responsibility.”
Again, we can understand the need for consistency, but I am unclear about how that will play out against the devolved nature of healthcare—so I think the case will have to be made out for that and, indeed, why that would be included in the legislation.
In a similar fashion, Amendment 301 looks to establish interoperability around the use of data across the whole UK. Again, that is a wholly worthwhile intention, and one that I would hope that the various authorities could collectively work on and agree. Once more, what the role is for primary legislation to address this point is not entirely clear, and I welcome the discussion. I look forward to hearing what the Minister has to say.
Earl Howe (Con)
My Lords, I begin by thanking my noble friend Lady Morgan for raising these important matters both via this Committee and by engaging—as I understand she has recently—with my honourable friend the Minister of State for Health. I am also grateful to all other noble Lords who have spoken so powerfully and knowledgably on these issues.
There is no escaping one overarching reality in this policy area, to which the noble Baroness, Lady Thornton, has just alluded. As a Government of the whole United Kingdom, Ministers are responsible for all people of the UK; that is a given. However, while the core principles of the NHS are shared across all parts of the United Kingdom, it is the devolved Governments in Scotland, Wales and Northern Ireland who are responsible for developing their own health policies. Health is largely a devolved matter in the UK, and the commissioning and provision of health services for people in Scotland, Wales or Northern Ireland will continue to be a matter for the devolved Governments.
It will not surprise my noble friend to know that the UK Government continue to respect existing devolution settlements, so our aim is close collaboration with the devolved Administrations to deliver the best outcomes for the people across the four nations. This means that, while we are sympathetic to the spirit of these amendments, I am afraid that we cannot accept them.
I shall address the detailed issues. On Amendment 17, I agree with my noble friend that there is more we can do to align our healthcare for the good of patients across the United Kingdom. We are already exploring several projects to support the NHS to work more closely across the UK, and this includes refreshing the current memoranda of understanding between all four Governments and working with the Office for National Statistics to establish a number of UK-wide datasets. Steps like that will improve transparency and collaboration for the good of all patients across the UK. We do not believe that these steps require primary legislation, but we will keep that question under review. We will also continue to work with NHS England to ensure that a number of groups that it currently hosts, such as the rare diseases advisory group, and their specialised commissioning processes, also meet the relevant needs of the devolved Administrations.
Turning to Amendment 205, we know that choice of healthcare is an important right for patients across the UK. The NHS Constitution for England, for example, enshrines the patient’s right to informed choice. We will be preserving the important right for patients in England to choose their first elective outpatient appointment, GP and GP practice through regulations made under powers provided by the Bill. NHS England works closely with the devolved Governments, including on commissioning and ensuring access to specialised services. Requests for patients to have treatment in other nations are generally to secure continuity of care, to provide care close to patients’ support mechanisms, or because of specialist expertise.
The health services in Scotland, Wales, and Northern Ireland already have the power to contract with any NHS provider in England. As my noble friend Lord Lansley rightly pointed out, they already have in place arrangements for commissioning specialised services from English providers, including cross-border agreements, referral schemes and service-level agreements. Taking further steps, as suggested in this amendment, would place a significant burden on a smaller number of providers, particularly those along borders, with consequences for the smooth running of those health systems. From a legal perspective, such a change would be a significant impingement on a devolved competence and would require the consent of the devolved legislatures. Of course, patients matter most, but such a change would also be unlikely to greatly benefit them, since they are already served by existing arrangements.
Amendment 301 deals with data interoperability. The UK Government are committed to working with officials across the devolved Administrations to explore the benefits that healthcare data can provide while working collaboratively to respect the devolved nature of this work. As in other areas, we are looking at ways to improve collaboration on data matters and address issues with data sharing. There are commitments within the data strategy for health and social care to work across central government and the devolved Administrations to improve appropriate data linkage, thus supporting people’s health care outcomes. This builds on the work of units such as the Joint Biosecurity Centre, and the newly established UK Health Security Agency.
That work will help us to collaborate to solve public health issues, improve disease surveillance and overcome any behavioural or structural obstacles to appropriate data sharing across our respective health and social care systems. In addition, we are speaking to the Office for National Statistics about collecting data on performance and outcomes across the UK. We are pursuing this with it, working in concert with the devolved Administrations. The ONS has assured us that it does not need additional powers to gather such data.
The problems encountered by the daughter of my noble friend Lady Fraser in proving her vaccination status are being actively addressed on both sides of the border. I must concede that the problems are not fully resolved yet, but understand that a Covid status pass from Wales, Scotland or Northern Ireland will be recognised in England and vice versa.
Lord Bradley (Lab)
My Lords, I am sorry to interrupt, but I have been meaning to ask this question for a while. Will that also apply to students who currently study abroad and had their first vaccinations abroad, and who then come back to work in their home country? Will that be connected to the NHS app as well?
Earl Howe (Con)
Rather than give a wrong answer to the Committee, I had better take advice on that and write to the noble Lord, if he will allow it.
I say to the noble Baroness, Lady Walmsley, that if we look at this area in general, we are clear that we must and will continue to work closely with the devolved Administrations to ensure a fully interoperable, UK-wide approach to healthcare, including in relation to the provisions in this Bill.
It is worth adding that the devolved Administrations already have powers in legislation under Section 255 of the Health and Social Care Act 2012 to request NHS Digital to collect and analyse data, so they have that ability if they wish to exercise it. I am very grateful for my noble friend’s interest in this important area. I assure her that we will continue to keep listening to ways in which we can make the NHS work for all four nations of our union. It is vital that we do so and implicit in the collaborative processes we are engaged in. However, for the reasons I have set out, I ask my noble friend to understand why I am unable to accept this amendment.
Baroness Morgan of Cotes (Con)
I thank my noble friend very much for his response. Although this has been a short debate, it has been a very good one. It has certainly been very helpful in noble Lords on all sides sharing their experiences and thoughts. It has raised some important issues and some comments on drafting. I am grateful to noble Lords for them. It has also enabled your Lordships to share some practical experiences, not least about the NHS Covid app. It sounds as if it is moving towards a resolution.
I was slightly amused that some of those who said that these issues do not need to be addressed in the Bill are often those who say that other issues need to be addressed in primary legislation so, when we are talking about consistency, we all need to think about that.
I am very grateful to my noble friend for saying that he agrees that more needs to be done and is being done to align healthcare across the United Kingdom and for stressing the importance of collaboration. I will, of course, withdraw this amendment, but the amendments in this group raise important issues and I hope that discussions can continue. As the noble Baroness, Lady Walmsley, I think, said, this is about practical, positive treatment and outcomes for patients, which is what we all want to see regardless of where they live.
Baroness Thornton
“(5) Assistance or support provided under this section to a person or organisation which is not an NHS body or representative of an NHS body, may only be provided after consultation with the relevant integrated care board and integrated care partnership.”Member’s explanatory statement
This provides that the relevant ICB and ICP must be consulted before assistance is provided to bodies other than NHS bodies. It aims to ensure a transparent process where private providers are provided with assistance.
Baroness Thornton (Lab)
My Lords, I will address the amendments in what is now group 4, commencing with Amendment 18 in my name, which address the various ways in which the board of an ICB should be constituted. I thank the noble Lords who have supported the amendments in my name and will speak also to Amendments 28 and 37.
Amendment 18 covers who should be on the board and, crucially, who should not. These amendments are about the governance of ICBs. They are going to be very powerful bodies—they are already operating in a shadow way, as it were—which will allocate hundreds of millions of pounds of public funds on our behalf. The question is about who should have a seat at the table where the decisions are taken. We should perhaps begin with who should not be on an ICB. There appears to be agreement that private sector interests should not be permitted, so I see no point in repeating the debates that took place in the Commons because that principle has already been settled. However, as ever, the devil is in the detail of how that translates into legislation and the ICB constitutions. It is my belief that what is in the Bill so far is not strong enough.
The objective is that private providers cannot have any part in decisions about how NHS resources are allocated or how contracts are placed. In my other amendments, I have extended the scope of this to ban GPs with APMS contracts, as they are definitely private sector interests. How someone from a social enterprise or the voluntary sector might be regarded is an issue to address sensibly, and I very much welcome that the Minister has said on several occasions that he believes that a margin of flexibility will be needed to make that happen. We all know that there is a single example of someone from Virgin Care being on a non-statutory non-decision-making ICS, one out of the 42 ICBs and one person on a body with 20-odd other members. That is still one too many. It is the principle that matters.
Private providers are bound essentially and legally to be addressing shareholder value, which is absolutely right and as it should be for their particular business interests, but they are not the values that underpin the NHS, which is absolutely not about striving for profit and shareholder value in any way. That is not to say that the NHS at every level should not strive for value for taxpayers’ money and effectiveness, but the best service for patients and communities is surely the underpinning objective of our NHS and it should be that for ICBs. Nor is it saying that the NHS should not be commissioning or working with a variety of providers, but we need to safeguard those values and the social value that underpin the NHS.
In the Commons this has been debated and Ministers are on the record about their intention not to have private providers represented. Sadly, some of us are still sceptical. This is particularly so when one looks at the easing of the 2012 commissioning and procurement regime. I await with interest the Minister’s reply on this matter. In making appointments to ICBs we are clear that there should be some kind of test so that if someone has something in their background which a reasonable person might think makes them unreasonably favourable or disposed to the use of private providers within the NHS, then they have no role on an ICB. I suspect that one might have to see, when the Bill finally takes effect as an Act, that those tests might be brought to bear on some of the ICS/ICB chairs and non-executive directors who may fail it.
The ICBs have similar duties to the CCGs they replace, at least on paper, but the board of an ICB will be very different from the CCG GPs and sometimes, it has to be said, the rather ad hoc arrangements that existed there. ICBs will be much closer to the unitary board model of trusts, FTs and the PCTs of recent memory. We agree with the intention of more effective commissioning of health services in the new era of co-operation and collaboration and with better integration with related services, so there should be a new kind of board made up of fewer NHS insiders and more who may have a wider perspective and fit better into the new model and the aspirations of the Bill.
We have had what feels like a dozen different ways of making commissioning work, and I have been directly involved in some. My observation is that as soon as they look like they are starting to work, they get reorganised. The trouble has always been the split between commissioners and providers, which some may say is essentially bogus. Both bits are still core NHS, and the big trusts have massive influence because they are massive. There is no democratic accountability, and the big providers had all the clout, not the commissioners. The NHS commissioning operation is often in splendid isolation from the rest of the public services, disconnected even from social care, to say nothing of where primary and community care and public health come in. This Bill aspires to be different, so we need to look at how it is served differently by the ICBs.
There has been some pretence that this will all change under the Bill, just as there has been for previous ones on commissioning. ICBs are given flexibilities and can build place-based sublevels, but the reality is that, as they are constructed at the moment, they are the same old NHS cartels. They have all the freedom they are allowed, but they may ultimately be powerless. The public will have as much idea about what ICBs do as they did about CCGs, and we all remember the marches to save our PCTs in the distant past. Just to make this clear, vested interests get a place in the ICB as of right but the public, patients and staff are not given that honour and responsibility. That is what part of these amendments does. Amendment 37, in my name and that of others, sets out our view about which voices are most important, and it breaks the mould of NHS appointing.
I divert briefly to say that elsewhere we will discuss more about how those appointments are made. Our view is that some independent appointments commission ought to make a comeback. I took great encouragement from the comments of the noble Earl, Lord Howe, on Tuesday, which helped in this regard. But there is still far too much control from the top and far too little say from the bottom on all the appointments that will be made under the Bill. Amendment 37 at least offers a way to have some diversity and possibility to challenge the interests that dominate the NHS.
Surely nobody who looks at what the amendments suggest would argue that these interests do not have a right to some voice. The public, patients, staff, social care, public health, mental health—which of these can be safely ignored and which has no part to play? We know the Minister in the Commons gave a minimalist defence in the interests of the new mantra of flexibility. He rightly said that boards should be of a manageable size and that ICBs should have some flexibility—as much as NHS England would allow—to add others to the board, beyond the minimum. The NHS actually has to do what it is told and, unless a more stringent requirement is put in the legislation, it will do what it has always been allowed to do. If we really want a better care system and some change to make organisational upheaval worthwhile, let us have a go at doing something different, with a wider group of voices to be heard and take decisions.
Our Amendment 37 deals with appointing key non-executive board members to represent interests, but within a unitary board. On Tuesday, colleagues pointed out that all board members share collective responsibility, which is a tried and tested model, but we need a discussion about this. I can see from the amendments in this group that other noble Lords have views—my noble friend Lord Bradley and the noble Baroness, Lady Finlay, for example—but our amendments and others in the group, if we discuss them together, would make for a better balanced board, which does not necessarily have to be a larger board. I hope the Minister will consider these submissions carefully. I beg to move.
The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)
My Lords, the noble Baroness, Lady Masham of Ilton, is taking part remotely. I invite the noble Baroness to speak.
Baroness Masham of Ilton (CB) [V]
My Lords, I want to support the proposed new paragraph (h) in Amendment 37, which says,
“at least one member appointed to represent the voice of patients and carers in the integrated care board’s area.”
The patient’s voice should be heard throughout the Bill. What is the National Health Service for if not patients? Patients should be involved in planning, ensuring that patients’ and carers’ views continue to be represented. Their experience should be collected. They, with their carers, are the people who know what good, safe care is and what poor results are. I hope the patient’s voice will be involved. I am pleased that many Members already stated this in amendments last Tuesday. I hope the Government agree, and I look forward to hearing from the Minister.
Lord Bradley (Lab)
My Lords, I speak to my Amendment 38 and declare my health interests in the register, particularly as a trustee of the Centre for Mental Health and an honorary fellow of the Royal College of Speech and Language Therapists.
This amendment is short and simple. As its explanatory statement makes clear, it merely adds to the list of requirements for membership of an integrated care board that must be included in the ICB constitution. I believe it is essential to have a representative of mental health trusts for each ICB area, and therefore on the ICB, as it is the key strategic body for, among other things, healthcare commissioning, planning priorities and resource allocation for a local area.
Baroness Hollins (CB)
My Lords, it is a pleasure to follow the noble Lord, Lord Bradley, and I support those amendments with respect to mental health. My Amendments 27 and 39 would provide for the addition of an expert in learning disability and autism on each integrated care board and ensure that the learning disability and autism lead was a person with knowledge and understanding of what good health and support look like for people with a learning disability and for autistic people.
As a starting point, this proposal has already been pledged by the Government in both the NHS long-term plan and the autism strategy, the latter stating:
“We also expect that all Integrated Care Boards, which will be established by the proposed Health and Care Bill, will focus on autism and learning disabilities at the highest level, for example by having a named executive lead for autism and learning disability.”
The reason for the Government’s firm commitment is that people with a learning disability and autistic people are among those who stand to benefit most from the integrated approach that the Bill seeks to implement. These are people whose needs frequently span health and social care systems. They are one of the largest recipient groups in terms of cost of health and social care provision and therefore a cohort with one of the greatest stakes in the effective integration of these two systems.
People with a learning disability experience huge health inequalities—very relevant to discussion on the first group of amendments today. On average, the life expectancy of men and women with a learning disability is 14 and 18 years shorter than for the general population respectively. Thirty-eight per cent of people with a learning disability die from an avoidable cause as against only 9% in the comparison population. These inequalities have been hugely exacerbated during the pandemic, with death rates of up to six times higher than among the general population, according to Public Health England. People with Down’s syndrome were identified as being at as high a risk as the over-80s. Yet they have had inappropriate DNACPRs put on their hospital records without their consent and had catastrophic reductions in care and support during the past two years, which will take years to recover from. There has been much greater reliance on family carers, who are too often dismissed as difficult by poorly trained health and social care decision-makers.
It is not learning disability and autism that are the cause; it is the situation that they are in as a result of ineffective plans and ineffective responses to their needs. Learning disability and autism, as well as foetal alcohol spectrum disorder—a much underdiagnosed and poorly understood condition but related to the groups I am speaking about—are lifelong states of being, but they are unequal states of being. Having a learning disability or being an autistic person is not like having cancer. People with learning disabilities and autistic people also get cancer; they also have a much higher prevalence of mental health problems.
The work I am overseeing for the Department of Health and Social Care places the major responsibility for inappropriate and lengthy detentions in long-term segregation under the Mental Health Act at the door of commissioners. It is a commissioning failure in the main. Some commissioners have relied on the availability of crisis admissions rather than collaborating to develop essential community services, including housing and skill support, social prescribing of meaningful activities and other innovative wellness approaches.
This is an urgent appeal to the Government to clearly signal a requirement for competent and accountable commissioning for people with a learning disability and autistic people. There is a lot of money being wasted at the moment through very poor commissioning. Please can we get it right this time?
Baroness Bakewell (Lab)
My Lords, before I address my Amendment 28, giving my support to my noble friend Lady Thornton, I wish to endorse the other amendments that are calling for representatives of particular groups—we just heard mention of two. I particularly endorse all those, especially as I am taking rather an oblique approach to this debate, which is not reflected in the other amendments.
Last year, there was a report in America that, increasingly, hospitals there were closing. The report said that hospitals were seen as businesses; a fifth of hospitals in America are run for profit, and globally, private equity investment in healthcare has tripled since 2015. In 2019, some $60 billion were spent on acquisitions. Globally, that includes—indeed, targets—us and the NHS. Where does that affect us? Increasing inroads are being made into the National Health Service by Centene and its subsidiary Operose, which now own 70 surgeries around this country. From Leeds to Luton, from Doncaster to Newport Pagnell, from Nottingham to Southend and many more, Centene now owns and runs for profit surgeries formerly owned and run by NHS doctors. It is now the biggest single provider of GP surgeries in this country. It has further designs on the existing fabric of the NHS, seeking to have its representatives sitting on the boards of CCGs, making decisions about the deployment of NHS funding. This is a direction of travel that needs to be monitored and checked. Safeguards must be written into the Bill against this takeover.
Why does it matter, just as long as patients have good and free treatment at the point of need? What is the reputation of Centene in America? It is not good. Indeed, it is regularly embroiled in lawsuits from either patients or shareholders, and the sums are not small. In June last year, Centene had to pay a fine of $88 million to the state of Ohio for overcharging on its Medicare department. This is one of many. Since 2000, there have been 174 recorded penalties for contract-related offences against Centene and its subsidiaries. That enterprise is now active in this country and targeting our NHS. It is not a fit company to be part of our health service. I therefore ask the Minister for safeguards to be written into the Bill against such people being represented on our boards. When I raised this at Second Reading, the Minister replied that there was no chance of us selling the NHS. We do not need to: they are buying us.
Lord Davies of Brixton (Lab)
My Lords, I will not detain the Committee in speaking to my Amendment 30. In truth, I am speaking in favour of my noble friend Lady Thornton’s Amendment 29. I could claim that my amendment has the virtue of being shorter but perhaps brevity is not always a virtue. Amendment 29 also makes the important point that it is the sub-committees and committees of the ICBs that will be crucial. The substantive point is that the Government have to accept that the amendment agreed in the Commons is totally inadequate. It depends on matters of judgment. We want a clear specification of who is appropriate to be a member of those bodies.
Baroness Bennett of Manor Castle (GP)
My Lords, it is my pleasure to support all the amendments in this group, so ably introduced by the noble Baroness, Lady Thornton. I thank her for tabling this amendment and Amendment 28, to which I was pleased to attach my name.
I agree with pretty well everything that has been said but want particularly to highlight the contribution of the noble Baroness, Lady Hollins. As she was talking, I was thinking about testimony that I heard earlier this week at the All-Party Parliamentary Group for Art, Craft and Design in Education. A teacher was saying that if their educational provision caters to the most vulnerable and disadvantaged pupil in their school, that means that it is catering the best for everyone. It might be thought that having a representative for the interests of those with autism and learning difficulties will affect the care that they receive but it would actually greatly improve the care that everyone would receive. That is not often adequately understood.
As the noble Baroness, Lady Thornton, said in her introduction, there are really two sub-groups here. Going from consideration of Amendment 18 to Amendment 30, we are essentially talking about, as the noble Baroness, Lady Bakewell, was saying, the need to avoid corporate capture of our NHS, although the corporate sector has already won many battles and taken over a great deal of the NHS. If the need for profit is the way in which things are being run, care must suffer. Care is the second priority and that is an unavoidable fact. When one considers privatisation—I have later amendments that will address the care sector in particular—we see where this has been allowed to extend to extremes, whereby the private equity sector has taken over our care system at enormous cost to the quality of care for public and private pockets. The system is in a state of near-continual collapse. We have to make sure that ICBs do not go down the route that our care sector has already gone down.
I am thinking about this matter for Report. There is also a further issue whereby although these amendments address people’s current employment and roles, we also need to think about the revolving door situation, about which, I see from social media, the public are increasingly concerned. We see people flipping between the private and public sectors and taking the interests, direction of travel and thinking of one to the other—and not for positive purposes.
I am aware of the hour but I am looking at the second sub-group of amendments, Amendments 37 to 41, and at who should be there. The issue relates to my comments on the previous group. We cannot just say, in terms of managing the NHS, “Just leave it to the doctors and the experts. They know about care.” Of course they do in terms of running services but in making choices and allocations and in ensuring that the ICB meets the needs of its community, it is the community that knows what the needs are and should tell the medical people what needs to be delivered, and the shape of that delivery. The technical details will come down to the medical people.
It is therefore crucial that we do not see the ICBs as technocratic places for people with MBAs and doctors but that we should include trade unionists, patients and carers. Carers are particularly important because our current system does so poorly in meeting their needs and supporting them. We need bodies that truly serve to represent the community.
Lord Hunt of Wirral (Con)
My Lords, in declaring my interests as set out in the register, I want to press my noble friend the Minister on conflicts of interest.
Paragraph 8 of Schedule 2 to the Bill provides that local NHS trusts and GPs are to appoint members of the integrated care board. Organisations that provide the bulk of NHS services will therefore be co-opted into the work of commissioning. It is currently the work of commissioners to hold providers to account, objectively determining whether they are best placed to provide a service and assessing their performance. The new integrated care boards must continue to perform that role.
Clause 14 introduces into the 2006 Act new Section 14Z30, subsection (4) of which provides, rightly:
“Each integrated care board must make arrangements for managing conflicts and potential conflicts of interest in such a way as to ensure that they do not, and do not appear to, affect the integrity of the board’s decision-making processes.”
Reference has already been made to amendments that seek to exclude individuals involved with independent healthcare provision from joining the ICBs. Does my noble friend the Minister agree that the membership of provider appointees on integrated care boards may at least risk creating a perception of a conflict of interest between the roles of those individuals on the board and any roles they may hold with provider organisations? How can the benefit of provider input into the work of an ICB be reconciled with the task of objectively assessing both the suitability and performance of providers? I believe that greater clarity from the very outset on the extent of the role that provider appointees will be expected to play will surely assist ICBs in developing robust governance arrangements, which would then enjoy public confidence.
Baroness Meacher (CB)
My Lords, I support Amendment 37. In so doing, I add my strong support to the comments of the noble Baronesses, Lady Bakewell and Lady Bennett.
Of course, the ICBs will be central to ensuring adequate funding and support, not only for the powerful acute health trusts and primary care but for the services that are historically underfunded. It is for these services that this amendment is particularly important. Before discussing these specific gaps in the Government’s vision for the new system, I want to stress that I am very concerned that we should not lose vital clinical leadership along with patient representation, which were the hallmarks of the CCG system. Of course, we want worker and carer representation but, in my experience, top medics are actually rather good at deciding how money should be allocated across services.
In my view, the absence of a public health representative from the shortlist of necessary ICB members in the Bill is an extraordinary oversight. This amendment seeks to put that right. ICSs are already in the process of developing their draft constitutions, which, while dependent on the final content of the Bill, provide a clear indication of their intent regarding clinical membership. It is particularly concerning that several ICSs have failed to include any role on their ICB for public health experts in their draft constitutions, with some failing to make any reference to public health at all. As the BMA points out in its briefing, this poses a significant risk to the role and prominence of public health within the work of those ICBs.
In relation to the importance of public health representation on ICBs, noble Lords should be aware of the impact of this on the vexed issue of drug addiction. Police services up and down the country are recognising that criminalisation and imprisonment are entirely counterproductive in this field. These responses only limit the young person’s education and employment options and tie them into a life of drugs and crime, with appalling consequences for them but also for their communities. Police services are increasingly adopting diversion to treatment as a preferable response when an individual is found in possession of drugs, but drug treatment services have been cut over the past 10 years. ICBs will need to tackle this situation as a matter of urgency if the police are to be able to stem the tide of county lines and other highly damaging consequences of our counterproductive and, in my view, idiotic drug policies and failure to treat addiction as a mental health problem, which, of course, it is. These urgent issues will not be confronted unless public health is strongly represented on ICBs and other boards and committees in the new structure.
Another cri de coeur is for mental health, as others have said. Having chaired a mental health trust for many years, I am acutely conscious of the impact of bed shortages on very sick people and their families and of the very high threshold for child mental health services. There is no doubt that if we do not treat children with mental health problems, we will have adults with these kinds of problems throughout their lives. The country cannot afford to continue neglecting this important field. I support the other amendments in this group. The NHS has major long-term workforce shortages and other problems. If they are to be addressed adequately, the staff need representation, along with patients and carers.
I end with a plea to ensure, through membership of ICBs, ICSs and ICPs, that clinical leadership is retained within the NHS. On ICBs, this must include at least two primary care members, at least one clinical representative of secondary care, acute care and mental health and at least one qualified and registered public health consultant. I hope the Minister will tell the Committee whether he agrees with this approach to ICB membership.
Lord Patel (CB)
My Lord, I rise very briefly to support Amendment 37 in the name of the noble Baroness, Lady Thornton, to which I have added my name. She and the noble Baroness, Lady Meacher, have identified in detail why this is a key amendment that identifies the core representation that is required for ICB boards to function satisfactorily and develop strategies for population health in their area, and I strongly support it.
Baroness Tyler of Enfield (LD)
My Lords, I shall speak very briefly to Amendment 38 in the name of the noble Lord, Lord Bradley. I have huge sympathy with the intention behind this amendment. Everything that we have talked about so far on mental health has pointed to the fact that unless there is a strong mental health voice on ICBs, the whole issue of mental health funding and the priority it has will not get as strong a voice as it should. I recognise that some argue that we should not overspecify the membership of new bodies but should allow each integrated care system the flexibility to develop based on its own set of local relationships, and I do not overlook that point. However, my natural sympathy is that it is only too possible for mental health concerns to be ignored when decisions are made about resource allocation and prioritisation without a strong mental health voice around the table.
However, I think I may have a way through this. We need to look back to the discussions we had on Tuesday about the overriding importance of mental health being explicitly mentioned in the triple aims. If such an aim were in place, I think we would be hard pushed to form an ICS or an ICB without mental health representation and we might be able to argue that it is not necessary, in those circumstances, to have it in the Bill. However, if that aim is not explicit, then the argument put forward by the noble Lord, Lord Bradley, is very strong indeed.
The Lord Bishop of London
My Lords, I rose on the first day of this Committee to speak to the membership of NHS boards. I rise today for a similar reason: I think it is very difficult to stipulate the membership of boards, just as the noble Baroness has said. However, as I said with NHS boards, I say with ICB boards that I think the voice of the patient is central. Along with my role as the Government’s Chief Nursing Officer, I was director of patient experience while I was in the Department of Health. As a nurse at that time, I believed I had a patient focus. However, I learned that my default was always as a professional and that the patient needs a voice and empowerment. While I recognise the clinical voice and would always want it on the NHS board and the ICB board, it does not replace the voice of the patient and the carer.
Baroness Pitkeathley (Lab)
My Lords, like the noble Baronesses who have spoken before me, I recognise the difficulty of being too specific about board membership, but I think that paragraph (h) in Amendment 37 in the name of my noble friend, to which the noble Lord, Lord Patel, has added his name, is wide enough to enable patients and carers to be represented. Indeed, given the Government’s commitment to the voice of patients and carers, I find it difficult to understand how they could not accept such an amendment. I know the Minister is extremely committed to that patient and carer voice.
I want to extend that a bit to making sure that we do not forget the vital contribution that charities and community organisations make to health and social care services through their well-documented ability to be innovative and flexible. Your Lordships know that in the course of the pandemic, they immediately operated better delivery mechanisms than the statutory sector was able to because they were able to be flexible. One million volunteers were recruited, and many people had experiences similar to mine, with people saying that it was only through the services of voluntary organisations and charities that they had any kind of support at all, particularly during the first few weeks of the pandemic.
When the Public Services Committee of your Lordships’ House did its inquiry into how public services had reacted to the pandemic, time and again we received examples of where charities were ignored by public service providers. Even if they were consulted at a later stage in planning, it was not to take account of their experience and skills but to assume they would co-operate in whatever role was doled out to them. That is not the way to make the best use of the untold amount of good will, experience and skill that exists in charities, especially in the areas of health and social care. This is a waste of scarce resources and must be recognised in the new structures as they are set out. There are many examples of where these partnerships work well, recognising the different skills on offer, and of where charities are treated as partners, but they must be involved in planning at the earliest stages and be supported financially if appropriate. They will always give a good return on resources.
The other area where charities make a significant contribution is in representing the patient and carer voice. Voluntary sector organisations are often the services that have most contact, especially with vulnerable people. Your Lordships will have endless examples of that. Much is made of how important the voice of the user, patient and carer is when planning or delivering the services. Co-production, co-design and the other buzzwords we hear all the time absolutely depend on being in touch with users and patients. Almost inevitably, the easiest way to access users and patients is through local or national charities which make users their focus, both in the planning of services and the governance of the organisation.
Proper involvement of users, patients and carers often throws up surprises, even pleasant ones, about money. If you really take the views of users and patients, you will often find that what they want from health and social care services is not what is being provided. They will often ask for less provision than we expect, so long as it actually meets their needs, not the needs estimated by the providers. This is a valuable fact when resources are short. It is one more important reason to forge partnerships with the voluntary sector when the memberships of ICBs and ICSs are being set up. Organisations in their areas should be considered as partners which have a great deal to contribute and will do so willingly and productively.
Baroness Finlay of Llandaff (CB)
I have two amendments in this group, so I will try to address them very briefly because of time. I am most grateful to the noble Baroness, Lady Thornton, for the way that she introduced this and would like to return very briefly to the issue of public/private potential conflict when public money is being spent, because there is an issue of probity around that. Having shared corporate accountability for the delivery, functions and duties of the ICS could be in conflict with the legal duties of company directors, as has already been pointed out, and therefore creates problems.
I know that the Government recognised this in the other place, but their amendment seems to fall short in two respects. It leaves to the appointed chair of the board the decision on whether a person with interests in private healthcare is incorporated into an ICB. The difficulty is that it provides a condition that their interests in private healthcare could undermine the independence of the health service, but it is very unclear how that will actually be measured. I can see that it would be a fantastic area for legal argument that a precedent had been set in one area that was being worked against by the chair of another ICB. I think this needs to be clarified, because they will be dispensing public money and there are examples already where different decisions have been taken. I will not go into those now because of time.
I turn briefly to the reasons behind the amendments I have put down and declare that I am president of the Chartered Society of Physiotherapy. I am most grateful to the noble Lord, Lord Bradley, for co-signing my amendments. There is a role in recognising that the allied healthcare professionals are the third-largest part of the workforce—the workforce is not just doctors and nurses—and are critical to the long-term plan for the NHS. They work across the health and social care boundary and out into the community. They are integral—physiotherapists in particular—to primary care, and speech and language therapists are essential for children and young people, particularly those with communication difficulties, and that of course includes those with autism and learning difficulties.
I also recognise, though, the problem that you cannot have everybody listed on a board and everybody wants their own so-called representation on it. It will be important that the terms of reference and the metrics by which the function of the board is measured and compared are very clearly laid out, to make sure that there is appropriate consultation at all times with those who are on the receiving end of healthcare, and that people such as allied healthcare professionals are appropriately involved in decisions for the patient groups on which they can have a major impact. Quite often they have a much more major impact than medicine or nursing will do in terms of a patient’s long-term quality of life, and rehabilitation in particular.
So I hope that the Government have listened to this debate and in particular will heed the important warning from the noble Baroness, Lady Thornton, in opening this debate and in the content of the amendments that she has tabled.
Lord Mawson (CB)
My Lords, I spoke on Tuesday about the structure that my colleague Paul Brickell, a Labour councillor in Newham at the time, and I, wrote for the then Government Minister Hazel Blears for the new company that would deliver the Olympic legacy in east London. I also described some of the key people who were invited to be directors of this company, with a clear vision and narrative, focused on delivery.
In east London live people from every nation on earth. Indeed, we did some research and we thought Greenland was not represented—but then we found a family in Newham that was from Greenland. Clearly, we could not have a representative from every nation on the Olympic Park Legacy Company, the OPLC—it was not possible.
At that time the noble Baroness, Lady Ford, was chosen as a Labour Peer by a Labour Prime Minister to be the chairman of the board. She was a very experienced player in the regeneration world from Scotland, not east London. I think that at the time she was a little embarrassed that I, an east Londoner, was not chairing it, given all the early work we had done on helping the east London Olympics happen. But I was not a Labour Party member and therefore could not carry the then Government with me, while she could. I was not concerned about this. My colleagues and I in east London were concerned about whether she had the knowledge and skill that could add real value to this important project and the public sector organisation that had been created. She was excellent and had an objectivity I could not possibly have.
We needed both things on the board: deep, local, practical experience and objectivity. I was asked to chair the Regeneration and Community Partnerships Committee, I think because she thought I knew quite a lot about these local issues and delivery, was trusted by local people and had a track record of delivering in place and in local neighbourhoods. Because my colleagues and I had delivered real projects with the local population, we did not know one thing about the place and neighbourhood: we knew, in depth, many things. It was all about finding the right experienced people, not those who said they represented something or somebody. The mayors of Newham and Hackney were there because they were impressive Labour leaders in east London who were turning around troubled local authorities.
I was asked to join the OPLC board as a person with deep, long-term roots in both a place—east London—and a neighbourhood, Bromley-by-Bow. I could speak and reflect back to the board not one thing—say, the environment—but also health: we were responsible for 43,000 patients. I had also been a Mental Health Act manager for quite some years locally. I think the noble Baroness chose me because I had deep and wide experience of the people, place and local neighbourhoods, and because of the practical work we had done in east London over quite some time—three decades, actually. It was about practical experience of place and neighbourhood and delivery. It was not about a person who thought he or she was representing one group or another, or a particular topic.
Experienced people bring many things to the board with them. I worry about the disabled person on a board who thinks they can talk only about disability issues—this is very condescending—or the young person who can talk only about young people’s issues. They can talk and have views on everything; it is about finding the right-quality person. However, they must have in-depth knowledge of what is actually going on locally and a deep understanding of the practical issues surrounding delivery. This is absolutely crucial.
There is a wider problem with some representatives on committees and structures, because they represent other agendas and they have mixed loyalties. They cannot focus on the task of the board because they have mixed loyalties elsewhere. They do not therefore prioritise the needs of the organisation they are sitting on. There is a lack of clarity about this, and I suspect we will all have experienced this on boards we have sat on. We need to get very clear about these democracy and delivery issues—what I call “the two Ds”. I have listened to a lack of clarity around these issues from successive Governments in recent years. We must get this clear if the new NHS structure is to really deliver the transformation we all now want to see and to deal with the health inequalities we rightly all discussed this morning.
Baroness Harding of Winscombe (Con)
My Lords, I too spoke on Tuesday about my concerns about listing the specific membership for the NHS England board. I have similar concerns to those that the right reverend Prelate and the noble Lord, Lord Mawson, have just set out. However, there is a slight difference with this issue, in that the core purpose of an integrated care board is to integrate. So I recognise the very real concerns that noble Lords across the Committee have mentioned about the importance of being able to hear the voices of all the different elements of our health and care system, to hear patients’ needs loud and clear and to make it a board that genuinely works, as the noble Lord, Lord Mawson, has just set out.
Baroness Walmsley (LD)
My Lords, like the noble Baroness, Lady Thornton, I shall start with those who I think should not be on the board before I turn to those who I think should. To a great extent I support the noble Baroness’s Amendment 29, but with a small caveat that, if she wished to press it, might require a bit of redrafting. I will explain.
Additional provider medical services are very useful in many areas to fill gaps in primary care capacity. They may provide additional services from which other NHS primary care services have opted out, such as out-of-hours services or enhanced services beyond the capacity of local NHS GPs to deliver. In some areas they have taken over primary care services where NHS GP practices have become too small to be viable or all the partners have retired.
Some APMS services are commercial businesses with a responsibility to their shareholders to make a profit, and I do not think these should be on the board. However, some APMS contracts go to NHS entities, and I would not want to exclude those. Of course, we must remember that for many years GP practices have also been small businesses, sort of, operating within the umbrella and ethos of the NHS. They too need to clear their costs or they will close down.
That is all well and good. However, if the Government are serious that they want to exclude private sector interests from ICBs, they must surely agree to include in that ban non-NHS entities that hold APMS contracts. A failure to accept the amendment of the noble Baroness, Lady Thornton, must surely make us a little suspicious about the Government’s claim that their amendment inserted in another place would successfully exclude private interests from the board.
Amendment 29 would extend the range of those involved in commercial enterprises from being members of the board of an ICS beyond those that we have just discussed in relation to the noble Baroness’s Amendment 28. Amendment 29 would specifically exclude NHS GP practices and voluntary or not-for-profit organisations from the ban. There are many types of organisations that would be included in the ban, although they could be heard on the board of the integrated care partnerships. Those include: pharmaceutical companies; providers of medical devices, equipment or premises; people who own care homes; and many other essential services without which our NHS could not survive. However, their importance should not entitle them to influence the constitution, strategy or commissioning principles of the board of the ICS. They are important providers that will be appropriately involved in planning at other levels, but they should not be able to steer fundamental decisions without the suspicion that they might have a commercial interest in such decisions. Indeed, the ban proposed in the amendment would protect such companies from such a suspicion, so perhaps it would be welcomed by them.
Turning to those who should be on the board, I will not repeat what the noble Baroness, Lady Hollins, said in introducing her amendments, because she has done it extremely well, particularly emphasising the impact of integrated services on people with learning difficulties and people with autism and how they could benefit from better integrated services if we got it right. So, I support her amendments.
I turn to Amendment 37, to which I have added my name to those of the noble Baroness, Lady Thornton, and the noble Lord, Lord Patel, for the following reasons. According to the Explanatory Notes, each ICB and its partner local authorities will be required to establish an integrated care partnership, bringing together health, social care and public health. The constitution of the ICB as it stands in the Bill specifies that the board must include only a minimum of three types of people who the Government clearly believe are essential to the effective operation of the board. They are someone from NHS health trusts or foundation trusts, someone from primary care, and someone from one of the local authorities in the area. If it is okay to prescribe these members, would it not also be wise to prescribe a few other key people with appropriate knowledge in order to achieve the ICB’s objectives of bringing together health, social care and public health? This amendment therefore suggests five other nominees—not 15, bearing in mind the Government’s wish to keep the ICB to a manageable size. But given the powers of the board, I would think it essential to have people nominated from mental health, public health, social care, health trade unions, patients and carers to bring their knowledge to strategic decisions.
If the board is to comply with the ambition of parity of esteem for physical and mental health—which we talked about two days ago—it will be important to have someone with the knowledge of how mental health services are working, as my noble friend Lady Tyler emphasised. Public health is a very particular discipline, the importance of which has been amply shown during the pandemic, which also has a vital role to play if we are to improve the health of local people and level up inequalities. Social care provision should never be separate from or subsidiary to health, as it is intrinsic to the functioning of health services in every area, so it is inconceivable that any ICB should ever be without someone from that sector.
The NHS is a people business, which is why those who deliver the services and the patients who are on the receiving end should have a voice at the top. Similarly, those thousands of unpaid carers, without whom vulnerable people would use up more of the NHS’s scarce resources than they currently do, should be represented at the very top of these new organisations. Their contribution to the efficient use of the board’s financial resources is crucial.
If the objective is to encourage more integration and collaboration, how could it be right not to have these additional five or six groups of people helping to make the strategic decisions? If that is not the case, as has been said by other noble Lords, the board could be dominated by the large acute hospitals and primary care, and the integration objective of the Government, which I endorse, would fail. I look forward to the Minister’s reply.
Lord Kamall (Con)
My Lords, this has been an excellent and wide-ranging debate, and I really am grateful to all noble Lords who tabled amendments today.
With your Lordships’ leave, I turn first to Amendment 18 in the name of the noble Baroness, Lady Thornton. This amendment would mean that the relevant ICB and ICP would need to be consulted before NHS England is able to provide support and assistance to bodies other than NHS bodies. The NHS has, under successive Governments of all political colours—indeed, since its foundation in 1948—commissioned care from various sectors to help it be more responsive to patients’ needs, and particularly to help deliver the commitments set out in the NHS constitution.
The vast majority of NHS care has been—and will rightly continue to be—provided by taxpayer-funded public sector organisations. But experience before and during the pandemic has demonstrated how important it is for NHS England to have the power, as the Trust Development Authority currently does, to provide support and assistance to any providers of services on behalf of the NHS. This will ensure that independent providers can, if necessary, be commissioned to provide important additional capacity where needed.
Baroness Thornton (Lab)
I really rather hoped the Minister would not go into whether or not I was suggesting that we should or should not be using private services. This is about who commissions services; this is not about who provides services. In my opening remarks, I said that a variety of providers is exactly what we have and will continue to have.
Lord Kamall (Con)
I thank the noble Baroness for that clarification.
The amendment seeks to exclude individuals whose GP practices hold an alternative provider of medical services, or APMS, contract from being a member of an integrated care board. While APMS contracts may not be appropriate for all GPs, they offer the ICBs, as commissioners, greater flexibility than other general practice contract types. As the noble Baroness, Lady Walmsley, acknowledged, the APMS framework allows commissioners to contract specific primary medical care services to meet local needs. APMS contractors include some private and third sector social enterprises and GP partnerships, which provide outreach health services for homeless people, asylum seekers and others. It is quite clear that none of this diminishes the commitment to ensure that care is provided free at the point of use, paid for by taxpayers.
All contract holders providing NHS core primary medical services are subject to the same requirements, regulations and standards, regardless of the type of contract. The Care Quality Commission, as the independent regulator, ensures that all contracts meet these standards.
Some GP partnerships concurrently hold a general medical services contract for core medical provision, as well as an APMS contract. Some individual GPs provide services for a range of practices. The concern is that this amendment would exclude GPs working for one or multiple practices which operate under APMS contracts from being members of the ICB.
NHS England’s draft guidance states that nominated members of an ICB will be full members of the unitary board, bringing knowledge and a perspective from their sectors, but not acting as delegates of those sectors.
This amendment would prevent some individuals being on integrated care boards, based on what type of NHS GP contract their practice holds. This could limit the ability of primary medical service providers to appoint an ICB member who understands the health requirements of the local population. This could reduce the diversity of GPs who could be appointed, based on their contract type. If we think of the unintended consequences, this may inadvertently exclude representatives with much-needed expertise in serving specific local populations and addressing their health needs.
Earlier, we talked about tackling inequalities. I feel very strongly that there are sometimes unintended consequences, where people think that they know better what is best for their communities. It would be unfortunate to exclude APMS contracts, or anyone who had an APMS contract and who had the expertise needed for those communities that are not receiving an adequate service, or for poor, immigrant communities. This could go against the goal that we all want to see of tackling inequalities.
I now turn to Amendments 29 and 30. I am grateful to the noble Baroness, Lady Merron, and the noble Lord, Lord Davies, for bringing this issue before the Committee. I understand the interest in the role of independent providers in the integrated care boards. I also understand the concern across the Committee to ensure that independent providers, including companies seeking to produce health and care products, should not be appointed to the board of ICBs. We agree. Integrated care boards will be NHS bodies whose board membership consists of a minimum of individuals nominated by NHS providers, GP services and local authorities whose areas coincide with that of the ICB.
Although, as has been acknowledged, service provision by the independent and voluntary sectors has been an important and valuable feature of the system under successive Governments, it has never been the intention for independent providers as corporate entities to sit on integrated care boards, nor for an individual appointed to be there as a representative of an individual provider, in any capacity. People must therefore be assured that the work of ICBs will be driven by health outcomes, not profit. However, we recognise that this is a matter of concern to many noble Lords, as well as to the other place. We have been keen to put this beyond doubt, which is why we brought forward the amendment on this very point at Report stage in the other place. This amendment makes clear that no one may be appointed to an ICB who would undermine the independence of the NHS as a result of their interests in the private healthcare sector, social enterprise or elsewhere, including the public sector.
Baroness Walmsley (LD)
I apologise for interrupting the Minister, but I want to ask him a question going back to Amendment 28 and the APMS contracts. If we were to bring forward an amendment that made it very clear that we had no objection to NHS entities or not-for-profit organisations with APMS contracts being on the ICB, would he take a more friendly approach? It would just eliminate those that take profit out of the NHS.
Lord Kamall (Con)
I thank the noble Baroness for that suggestion and for trying to narrow the gap that there clearly is. If an amendment were put forward, we would look at it very carefully and consider the unintended consequences from the way it is drafted. We will consider it but, as I am sure the noble Baroness appreciates, I can make no promises at this stage.
I turn to the point made by my noble friend Lord Hunt of Wirral about how provider input in the work of an ICB will be reconciled with assessing both the suitability and performance of providers. As my noble friend correctly noted, each ICB must make arrangements on managing the conflict of interest and potential conflicts of interest, such that they do not and do not appear to affect the integrity of the board’s decision-making processes. Furthermore, each appointee to the ICB is expected to act in the interests of the ICB. They are not delegates of their organisations, but are there to contribute their experience and expertise for the effective running of the ICB—a point made most eloquently by the noble Lord, Lord Mawson, my noble friend Lady Harding and the right reverend Prelate the Bishop of London. It is important that this is about expertise, not the trust or organisation that they are taken from, or their skills and knowledge, as the noble Lord, Lord Mawson, said.
We are also keen to allow ICBs to develop their own governance arrangements, which best take their local circumstances into account. We want to give them the flexibility to learn and develop as their best practice evolves, so that other ICBs could learn from that best practice where there are concerns.
To support ICBs, NHS England is working with them to issue guidance and to develop and make clear our expectations of ICB leaders—expectations that have been reflected in the discussions and fantastic contributions from many noble Lords. For these reasons, I regret that the Government cannot accept these amendments at this stage. However, I hope I have given noble Lords such reassurance that they feel able to withdraw their amendments.
Turning to the membership of integrated care boards, I will begin with Amendments 27, 37, 38, 39, 40 and 41. I am grateful to all noble Lords who have brought forward these amendments today. I understand the interest from all sides in this membership. Schedule 2 sets out the minimum membership of the integrated care board; it will need to include members nominated by NHS trusts and NHS foundation trusts, by persons who provide primary medical services and by local authorities of areas that coincide with or include the whole or any part of the ICB’s area.
I take the point of the noble Lord, Lord Bradley, about mental health. I am sure he recalls the debate on Tuesday, when noble Lords felt very strongly about this. I have offered to meet many noble Lords from across the Committee who indicated that they want to see this parity with mental health, which they do not believe is implicit at the moment, even if we believe that “health” refers to physical and mental health. Indeed, it refers to spiritual health in many ways. But we understand that we have to close that gap and I will make sure that the noble Lord, Lord Bradley, is invited to those meetings.
It is important for us that we are not overprescriptive, which is especially true of any membership requirement. Any extension beyond the proposed statutory minimum will risk undermining local flexibility to design a board, as my noble friends Lord Mawson and Lady Harding and others have said, in the most suitable way for each area’s unique needs, drawing on the best expertise, but not where they are from. It may also make the boards less nimble and less able to make important decisions rapidly if we overprescribe.
It is important to remind the Committee—I apologise if noble Lords do not appreciate the repetition—that we set a floor and not a ceiling. The ICB can appoint board members if it wishes. Local areas can, by agreement, go beyond the legislative minimum requirements. They will want to ensure they appoint individuals with the experience and expertise to address the needs and fulfil the functions. Areas are already doing this. For example, in south-east London the ICB is proposing to include three provider members—acute, community and mental health—and six place members, one for each borough. This approach is exactly how we want ICBs to use the flexibility available to them.
If, in time, some of the concerns expressed today by noble Lords become clear—such as issues being skated over, ignored or elbowed out by others with louder voices—we may need to add further requirements that relate to ICB membership, and there are regulation-making powers in place in Schedule 2 to allow the Secretary of State to do so. Furthermore, NHS England has the power to issue statutory guidance to ICBs. It could, for example, use this to recommend that each ICB should consider appointing a learning disability and autism senior responsible officer, as I know the noble Baroness, Lady Hollins, has asked for and has spoken about most eloquently many times, most recently in a debate a few weeks ago.
Taken together, our approach reflects our view and, I reiterate, the view of the NHS that we should not attempt to overlegislate for the composition of ICBs and instead let them evolve as effective local entities to reflect local need. Let us get the right balance between the top-down and bottom-up approach, and make sure that they are relevant to their local areas. I am afraid that these amendments are seen to take a different approach, by adding more people to the minimum requirements for the ICB, making them larger but not necessarily better. They also add additional complexity by introducing a significant number of members who are responsible for activity outside the NHS. We think these would be better represented on the integrated care partnerships, which have a broader remit. I come back to the point that it is about expertise, not which trust.
I will consider the comments made by noble Lords very carefully if some of the concerns have not been met, and will have future conversations, between this stage and the next, if they feel that we have not addressed their concerns completely. I regret that the Government cannot accept these amendments. I hope that I have given your Lordships some, if not complete, reassurance and that noble Lords will feel able at this stage to withdraw and not press their amendments.
Baroness Thornton (Lab)
My Lords, I thank the Minister for his detailed response. I was disappointed with the first remarks he made because he resorted to the mantra that the Government tend to go to when the question of private sector interests in delivering healthcare is raised by this side of the House. That is a shame, because the questions that we have raised are legitimate. In fact, his friends in the Commons accepted the conflicts of interest that could arise from private sector interests being represented on ICBs. We were seeking to make sure that that is watertight and there is no way of it changing. That is a legitimate question to ask.
I thank the noble Lord, Lord Patel, and the noble Baronesses, Lady Walmsley and Lady Meacher, for supporting Amendment 37, which is the key amendment in this group as to who may or may not be members of the board.
The noble Baroness, Lady Hollins, made a powerful case for the interests of people with learning disabilities and autism being represented. We know that where health systems make the health of people with learning disabilities a central priority, the whole health system benefits from it. That has happened in some places—for example, in Manchester—and it demonstrates how we improve the whole system. It is an important point.
My noble friend Lady Bakewell made the point about Centene and Operose, and that is partly why I put forward my amendment on APMS. The Minister may recall that we raised this matter in Questions a few weeks ago, when I asked him to write to me about what system had been used to give that contract to Centene, or Operose, in Camden, the area where I live. Having served on the CCG in Camden, I was aware of the importance of who runs primary care and of who the GPs in our surgeries are. Having right and proper people and organisations running our primary care was one of the criteria that you would use as a commissioner when you were looking at who was running, and who might wish to run, primary care and GP surgeries. I was involved in that process. As I learn about the history and background of this organisation now running primary care and GP surgeries in the UK, I do not think they are right and proper people to be doing that.
If this amendment does not serve the purpose of stopping that happening, I ask the Minister and the Bill team to reflect on what we might need to do to ensure that those from the private sector, social enterprises and charities whom we commission to run parts of our health service are right and proper people to do so. The remarks made in that regard by the noble Lord, Lord Hunt, were very interesting and useful, as they often are.
The noble Baroness, Lady Meacher, made the point about public health. That is the theme running through this Bill: the need for public health to be represented. She was also absolutely correct to bring us back to the idea that clinical leadership is very important. Of course it is. The right reverend Prelate the Bishop of London asked some pertinent questions.
My noble friend Lady Pitkeathley raised the issue of social enterprises, which is close to my heart. I am the honorary secretary of the All-Party Group for Social Enterprise, which I helped to found 20-odd years ago. The APPG has just completed an inquiry, chaired by the noble Earl, Lord Devon, about the impact of Covid on social enterprises, which absolutely illustrates the points made by my noble friend and which I will share with the Minister when it is available.
The noble Baroness, Lady Finlay, made relevant points about Allied Healthcare. I think that the noble Baroness, Lady Walmsley, and I agree that the problem with APMS is that there is a lack of clarity and it is a bit of a loophole, and we need to look at it again. This may not be the Bill to do it in, but it might be.
With those remarks, and hopeful that the issue of who the members of the ICBs will be will run through our discussions for the next few weeks, I beg leave to withdraw the amendment.