Health and Care Bill

(Limited Text - Ministerial Extracts only)

Lords Hansard - Part 1 & Committee stage
Tuesday 18th January 2022 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, I am sorry to intervene at this stage but I cannot let the opportunity pass to say, in my view, how important it is that children be particularly referred to and their circumstances be properly taken into account. We have very powerful legislation on the care of children, but the same is not true with health, and it is extremely important that that be kept in view. Apart from anything else, special staff and treatments are required for children, and I therefore strongly support this amendment. I am sorry that I was not able to do so at a more appropriate time, but I arrived a little later than I would have liked.

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

My Lords, I begin by thanking all the noble Lords who have tabled these amendments for debate, and noble Lords from across the House for their eloquent contributions. As the noble Baroness, Lady Wheeler, rightly said, it is important that, as the fifth-largest economy in the world, we treat all our citizens equally and give them the respect and access to services they deserve. As she also said, the strength of feeling across the House on the importance of this issue is clear, and this was amplified most eloquently by my noble and learned friend Lord Mackay of Clashfern.

With your Lordships’ agreement, I will look at some of these amendments from a different perspective. Each amendment touches on a different aspect of providing health and care for children. Before I turn to matters of detail, let me say that we believe that the Health and Care Bill’s proposals represent a huge opportunity to support and improve service planning and provision and ensure that they better meet the needs of infants, children and young people.

With your Lordships’ permission, I will start by addressing Amendment 20, which was spoken to so eloquently by the noble Baroness, Lady Meacher, the noble Lord, Lord Scriven, and my noble friend Lord Polak. It would clarify and prioritise how the Better Care Fund could be used to integrate services for children. I remind the Committee that the relevant legislation does not prevent the use of the Better Care Fund for the integration of children’s services. The disabled facilities grant within the BCF is already used to fund housing adaptation for individuals aged under 18 with disabilities. Some areas also extend the scope of their BCF-funded initiatives to include integrated services for children and young people.

However, we can go further. The Government believe that integrated care partnerships and integrated care boards represent a huge opportunity for partnership working. The Bill explicitly requires integrated care partnerships to consider whether needs could be met more effectively under Section 75 of the NHS Act 2006, which provides for arrangements to be made between NHS bodies and local authorities. The Government are also working on bespoke guidance on the measures that statutory bodies should take to ensure that they will deliver for babies, children and young people.

Turning to Amendment 51, I particularly welcomed the contribution of the noble Lord, Lord Hunt of Kings Heath, on vulnerable children. The amendment would require ICBs to share and collect information from partners when arranging for the provision of services for pregnant women, women who are breastfeeding and young children. I sympathise with the amendment, and in fact, I would go further: one of my three big priorities in my departmental portfolio, as the Minister for Technology, Innovation and Life Sciences, is to push digitalisation and sharing data. As all noble Lords have rightly said, that is not just for children’s services but right across the sector. We hear stories almost every day of something that could have been prevented, had data been shared more appropriately.

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[Earl Howe (Con)]

My Lords, I am most grateful to the noble Baroness, Lady Barker, for bringing Amendment 20A before the Committee today, and to the noble Baronesses, Lady Walmsley and Lady Thornton, for their very wise insights. I do not think there can be anyone in Committee who does not agree that delivering high-quality reproductive healthcare is critical for the health service.

This is definitely a priority area in the Government’s work on the women’s health strategy for England. Proof of that, I hope, is that on 23 December 2021 we published Our Vision for the Women’s Health Strategy for England. The vision is informed by analysis of the call for evidence, which ran for 14 weeks from March to June 2021.

On reproductive health specifically, the vision sets out our ambition that

“women can access services that meet their reproductive health needs … and women’s experiences of services and reproductive health outcomes are improved”.

As a bit of further background, we were clear that the strategy should be evidence-based, so the vision is in fact underpinned by the analysis of what we heard through the nearly 100,000 responses to the call for evidence. We owe it to women and girls across England to get it right, and when we publish our full strategy later this year we will set out our ambitions in more detail and will follow that up with full delivery plans where appropriate.

Joined-up national policy and clinical leadership are essential to the delivery of women’s reproductive health services. I can assure the Committee that this is also recognised as a priority by NHS England and NHS Improvement. We continue to work closely with NHS England and NHS Improvement on the development of the women’s health strategy for England. We will also be working closely with NHS England and NHS Improvement on the Government’s forthcoming sexual and reproductive health strategy to ensure that, together, the women’s health and sexual and reproductive health strategies take a holistic and comprehensive approach to improving women’s reproductive health. The sexual and reproductive health strategy will consider how we can strengthen leadership and accountability in relation to reproductive health, as well as how we improve access to contraception.

Self-evidently, NHS England regards these as major areas of work. We do not, however, think it appropriate in the Bill to require NHS England to appoint an additional national clinical director specifically for reproductive health. The first reason is because, within the current NHS England and NHS Improvement, the role of national clinical director for maternity and women’s health already exists. This position is responsible for clinical advice and leadership on obstetrics and gynaecology matters, which are of course important areas of women’s reproductive health. The post is currently held by Dr Matthew Jolly. The national clinical director works alongside the national speciality advisers for gynaecology and four other national speciality advisers, covering broader aspects of obstetrics and public health. Creating an additional post of national clinical director for reproductive health is likely to be counterproductive, in that it may lead to duplication or less clarity over responsibilities and clinical leadership.

Secondly, as a point of principle, we should try to resist the urge to specify the clinical directors that NHS England should appoint. If we make a habit of doing that, it strips it of its operational autonomy. It is better to allow it to determine the directors it needs, based on the challenges it faces.

The noble Baroness, Lady Barker, rightly pointed out the disparities that exist between different groups of women in this country. I can only express my agreement with the points that she made on that subject. It is essential that we recognise that women are not a homogenous group. The different characteristics that make up each woman’s identity can lead to multiple, sometimes overlapping barriers to accessing healthcare and can contribute to disparities in health outcomes.

When we launched the call for evidence that I mentioned, we said that we wanted to better understand where there are disparities between men and women and between different groups of women. As set out in the vision, a key priority running through this work is to ensure that all women have equitable access to and experience of services and that disparities in outcomes are reduced.

In addition, NHS England and NHS Improvement regularly review their clinical leadership, including national clinical director and national specialty advisor roles, to ensure alignment with strategic priorities for the NHS and patients, as set out through the NHS Long Term Plan, and to support areas in which NHS England and NHS Improvement are taking forward major programmes of work or areas identified as priorities for improvement. In other words, this is not a static landscape. I hope that the noble Baroness will be reassured by this and so will be able to withdraw her amendment.

[Baroness Barker (LD)]

My Lords, I thank noble Lords who have contributed to this debate. I realise that time is at a premium, but it was useful to air these issues. I thank the Minister for his full response, although it was not entirely unexpected.

I do not doubt that NHS England has a number of clinical directors, but the stats speak for themselves: 45% of pregnancies are either unplanned or ambivalent and abortion rates are at their highest level. Whatever we have at the moment is not working. The call for this director came from the Faculty of Sexual and Reproductive Healthcare and RCOG; they are people who know this subject in great detail.

I know that across the NHS there are different initiatives trying to bring a greater understanding of gender in medicine. For example, for NHS England I know that the Government are working with the Royal College of Physicians to try to bring about a greater understanding of gender in medicine in the form of training for medical students. But this area of medicine is one in which information, and particularly digital transformation, is already having a significant impact and could have an even greater impact on outcomes. That in itself is a challenge to practitioners, and NHS practitioners are not always the best at dealing with that sort of challenge to their existing practice. Therefore, there is perhaps a case for refreshing the clinical leadership of NHS England in this respect.

If the stats do not improve, we will definitely have to look at this before too long. I listened to what the Minister said about the two strategies that are coming out and I will look at them with a keen eye. In the meantime, I beg leave to withdraw this amendment.

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[Baroness Thornton (Lab)]

My Lords, I will speak to the amendments to Clause 14, which is a very important clause. There is absolutely no doubt about that, and the Minister can be in no doubt that that is exactly how we see it. It was touch and go whether we would have a clause stand part debate on this, and I am not sure that we were right not to do so, because this debate, particularly my noble friend Lord Hunt’s comments, has highlighted some serious problems.

My noble friend Lady Pitkeathley is quite right that the arrangements that we are seeking to put into statute, which have grown up over the last few years to allow areas to collaborate, were the right thing to do. In my area of the world, I have no doubt that it was important that the boroughs collaborated together, particularly in their relationship with and commissioning of services from the very big providers.

The question in Clause 14 is: what is going on with the arrangements that the Government are putting into statute? I am very pleased to follow the noble Baroness, Lady Walmsley, and to speak to Amendments 23 and 44 in my name. Amendment 23 addresses the vexed issue of boundaries for an ICB. In this Bill we are dealing with geography, whereas the 2012 Act dealt with GP lists. The area of an ICB is defined in terms of tier 1 local authorities.

Concerns have been expressed, because the NHS is often a bit clueless and sometimes very defensive about local government, its boundaries and its powers. Maybe the Minister will tell me I am wrong, but I suspect that one of the reasons why elected members have been precluded from the boards is that the NHS does not feel comfortable with the direct democratic accountability at that level. That is a great shame. I think it is wrong; accountability is extremely important.

How can we have an integrated service when social care is provided by local government, which is democratically accountable, and we want to integrate that with the NHS at a local level in an area to provide the best service that we can for that population and those patients? The almost offensive way of constructing a board that does not allow elected representatives is not acceptable.

My quite modest amendment seeks to change that situation for the future. There were exchanges in the Commons about this, and there have been meetings with disgruntled authorities that seem to have ended without agreement. We may need to take a step back and learn some of the lessons, perhaps from Scotland and Wales where more logical boundaries have been applied for their health boards.

We may learn a bit more about plans for integrated commissioning at this level when we get the promised but overdue White Paper on integration. It is possible that it will set up a third set of geographies, and who knows how that will line up? This seems to be the wrong way around. Our amendments at least elevate the need to consult with local authorities over boundaries to start off with. That is perhaps a pious hope, but we can agree that any future changes can be made only if the local authorities agree.

Amendment 159 arises out of lengthy discussions elsewhere. In the twin-striker model for ICS, we have the ICBs and the ICPs. We know almost nothing about ICPs; all that is said is that it is part of the “flexibility” and so should be valued. Referring back to my previous remarks, I just hope that local authorities will be genuinely involved in the ongoing discussions about ICPs, how they are set up and their governance. What we do know is that the ICPs will own the analysis of needs and the strategy that follows from that. What, therefore, is the role of local health and well-being boards?

There are echoes of 2012 here, as, during the consideration of the 2012 Bill, amendments were advanced on the same issue. In the 2012 version, it was the health and well-being boards that did the strategy and the CCGs that did the commissioning, at least of health. Nobody ever properly addressed how social care would be commissioned in any integrated way in a wider strategy. It was proposed in 2012 that the health and well-being boards had to approve the plans of the CCGs, and that was the glue that would hold the whole thing together. We know that that has not worked. It has sometimes worked on paper, but it is not the thing that has driven the work of the CCGs.

The answer so far for 2022 is that everyone will play nicely and it will all be resolved. I do not think that can possibly be the case when there is such a serious imbalance. Our Amendment 159 acknowledges that there just might be a dispute over whether some decision or plan of an ICB was genuinely aligned to the strategy that it was supposed to be following, so a process for resolution is needed.

I am not sure whether Amendment 44 sits easily in this group, but it is a matter on which assurance is needed. When foundation trusts came into being, they were rather bravely given the power to set their own terms and conditions for staff. One of them might have tried it, and it was not a great success. In general, despite whatever powers exist, almost every part of the NHS follows the Agenda for Change, the collective agreement that took 10 years to agree but which has stood the tests of time.

Now, as with CCGs, we have the power of ICBs to set their own terms and conditions. They are probably unlikely to do so, as it takes an enormous amount of work and the risks that it brings are probably not worth the effort. Without doubt, some staff are worried that they just might be the ones picked on for special treatment. The Minister will no doubt say that the ICBs need the flexibility, but surely, given the pandemic and everything else that faces the NHS, it would be much better to give staff certainty and confidence they will be treated properly.

We agree with the sentiments of Amendments 22 and 24, which try to ensure that agreement on ICB constitutions will be done promptly. We agree with the sentiments of Amendment 53, which echoes a previous amendment about the need to drive improvement. In my noble friend’s Amendment 45, he asks a legitimate question, which I think the Minister will need to answer.

[Lord Kamall (Con)]

Once again, I thank all noble Lords for bringing this debate before the Committee today. There have been a wide range of views on the establishment of the ICSs and on what is currently going on in the NHS.

I will start with Amendments 22 and 24 from the noble Baroness, Lady Walmsley, which were supported very strongly by the noble Lord, Lord Hunt of King’s Heath, and on the ICBs’ establishment. I am grateful to the noble Baroness, Lady Walmsley, for bringing the amendments, and I understand her concerns about ensuring that ICBs are established in a timely way. We agree. We have had an interesting debate here. A number of people have said that it is really important, given that ICSs have already been established, that you put it on a statutory footing, but we are also being asked how they dare to go ahead and do this, because the legislation is not there yet.

In recognition of the fact that ICSs have been set up in some areas and are being established, we are trying to get the right balance. That is why work is under way to prepare existing organisations, including CCGs, for the transition once the Bill comes into force.

The noble Lord, Lord Hunt of Kings Heath, rightly asked whether NHS England is pre-empting Parliament. He raises an important point but I assure him that the powers necessary for establishing each ICB and publishing any statutory guidance cannot be made until the Bill has been enacted and the relevant provisions commenced. However, to ensure that ICBs are ready to begin work, NHS England is producing a range of draft guidance, including a model constitution, so that system partners can start work on preparations—but this does not have the power of statutory guidance. The guidance and the model constitution are based on the proposed requirements—

[Lord Hunt of Kings Heath (Lab)]

My Lords, I accept that but how can NHS England give guidance to say that no local authority councillor can be on the ICB? That is not for NHS England to say, and how can it do it prior to the Bill going through Parliament? It is for Parliament to decide these matters, not a quango.

[Lord Kamall (Con)]

I apologise to the noble Lord because I was coming to answer that point, but maybe in too long-winded a way. One issue that was clearly raised, and very strongly felt in the contributions from more than one noble Lord, was about banning councillors from sitting on boards. There is nothing in the Bill that expressly bans this. We recognise the points raised in this debate and will raise them directly with NHS England. It is not statutory guidance.

[Lord Hunt of Kings Heath (Lab)]

I am sorry but this is a very important point. They have made the appointments and are not going to start again, which of course they should, because this is an absolutely hopeless position. No one from NHS England has ever had the guts to come here to explain why they are making this decision, and who will believe it? The chair of the ICB is appointed by NHS England. They know that NHS England does not want local authority councillors on the boards. Who are they going to take notice of? They are going to take notice of NHS England. The Minister has to tell NHS England to stop sending out this ludicrous guidance and telling the NHS that the new arrangements will start from 1 July. It cannot possibly do so if we go through what is contained in Clause 14.

I sympathise with the noble Baroness, Lady Walmsley, but the fact is that we must have a three-month consultation process on the proposals. This is the problem we are in: none of this stands up because Parliament is being treated with absolute contempt by NHS England.

[Lord Kamall (Con)]

I hear the strength of feeling from the noble Lord. I will take this back to the department and discuss it with my right honourable friend the Secretary of State. I hope noble Lords are reassured by that. I may not get the perfect answer, but I will try. I understand the strength of feeling on this issue; no one can fail to do so. Let us put it this way: it was not subtle but direct. It is really important that, as the Minister here, I take this back and reflect the feeling of the House in my conversations with the Secretary of State, and his subsequent conversations with NHS England. I will take that back and look at the consultation process and the CCGs consulting all the relevant local authorities.

I understand the point made strongly by the noble Lord, Lord Scriven, that we have to be careful about prescribing in a top-down way how to work locally. I have always been a strong believer in localism and making sure that powers go down to a local level rather than being taken away. Let me again assure the noble Lords, Lord Scriven and Lord Hunt, and other noble Lords that I will take this back, because clearly there is concern. I had not appreciated the strength of that concern. At Second Reading the noble Lords, Lord Stevens and Lord Adebowale, said, “We are already doing this. It makes sense to go ahead and put it on a statutory footing”. But I have now heard the other side of the argument, and it suggests that I should go back and have a stronger conversation with, in effect, my boss—my right honourable friend the Secretary of State. I hope that gives some reassurance.

On Amendment 44, in the name of the noble Baroness, Lady Thornton, I assure your Lordships that we intend to provide as much stability of employment as possible while ICBs develop their new roles and functions. I hope that noble Lords are aware that there is already an existing commitment that staff transferring into ICBs will transfer across on their current terms and conditions in line with the NHS Terms and Conditions of Service Handbook. NHS pension rights will also be preserved. As a result, staff transferring into ICBs will not see any change to their existing conditions.

However, the Government are concerned about forcing ICBs to adopt conditions and practices that the ICBs do not believe work best for new staff. We believe that it is important to give ICBs flexibilities relating to staff terms and conditions; they are there for a reason. For example, when it is difficult to recruit and staff are going elsewhere, this would include allowing ICBs the flexibility to diverge from collectively agreed pay scales in order to attract staff from elsewhere or with unusual or valuable skills, or to reflect local circumstances. It will also give ICBs the flexibility to support joint working and bring in staff currently working in local authorities or foundation trusts, for example, supporting integration and the joint working approach that the Bill hopes to encourage.

I also note that ICBs having the independence and flexibility to choose whether to adopt collectively agreed pay conditions and pensions for new staff is not unique, as the noble Baroness, Lady Thornton, acknowledged. NHS foundation trusts, which are already free to exercise their discretion in adopting such conditions, overwhelmingly choose to honour and apply such terms to their staff unless there are good reasons to diverge.

On the proposals for very senior managers, existing procedures are in place to ensure that the most senior staff within the NHS are appointed with fair and equitable salaries. Proposals to pay very senior staff more than £150,000 must be similar to those for other equivalent roles or be subject to ministerial oversight.

The Government are in the process of finalising the procedures that will apply for ICBs. The specifics may differ but the effect and intention will be the same: to afford ICBs agency in setting pay at competitive rates so that we can continue to attract the most senior and experienced leaders, while putting adequate checks and balances in place to ensure appropriate use of taxpayers’ money and keep senior public sector salaries at an appropriate level. The Government believe that this amendment, which also asks for ICPs to approve annual salaries in excess of £161,000, is unnecessary. I am happy to have further conversations.

I now turn to the amendments on how the ICBs will function once established, starting with that in the name of the noble Lord, Lord Davies of Brixton, which relates to the question of treatment outside the ICB area. The new clause in question provides that NHS England must publish rules for determining the people for whom integrated care boards have responsibility. Importantly, this clause ensures that everyone in England is covered by an ICB.

We intend that the rules set by NHS England should replicate the current system for CCGs as closely as possible. This means that the ICB will be responsible for everyone who is provided with NHS primary medical services in the area—for example, anyone registered with a GP. It will also be responsible for those who are usually a resident in England and live in their area if they are not provided with NHS primary medical services in the area of another ICB.

It is important to remember that no one will be denied healthcare on the basis of where they live. We want to ensure that, under the new model, bodies that arrange NHS services—decision-making bodies—are required to protect, promote and facilitate the right of patients to make choices with respect to services or treatment. This means allowing patients to choose to be treated outside their ICB area. Choice is a long-standing right in the NHS and has been working well for some time. The Bill continues to protect and promote it. However, I am afraid that we have concerns about this amendment, as it places a requirement on providers rather than commissioners. It would not be reasonable to expect providers to provide services regardless of whether they were funded by an ICB to do so, and it is important that ICBs should be able to make decisions about with whom they contract and where they prioritise their resources.

On Amendment 53, in the name of the noble Baroness, Lady Walmsley, I hope I can assure the Committee that the Government are committed to ensuring continuous improvement in the quality of services provided to the public. As your Lordships will be aware, there is already a wider range of duties in relation to the continuous improvement of services. Clause 20 imposes on ICBs a duty as to the improvement in quality of services. Furthermore, the ICB must set out how it proposes to discharge that duty at the start of each year in its joint forward plan and explain how it discharged the duty at the end of each year in its annual report. I hope this goes some way to meeting the noble Baroness’s concerns.

Clause 16, which this amendment seeks to alter, recreates for ICBs the commissioning duties and powers currently conferred on CCGs in the NHS Act 2006. It ensures that ICBs have a legal duty to commission healthcare services for their population groups. It also recreates Section 3A of the 2006 Act, which provides the commissioning body with an additional power to commission supplementary healthcare services in addition to the services they are already required to commission. This power enables ICBs to arrange for the provision of discretionary services that may be appropriate to secure improvements in the health of the people for whom it is responsible—or improvements in the prevention, diagnosis and treatment of illness in those persons—so it is important that the clause remains as it is currently drafted.

The Bill will ensure that the existing local commissioning duties conferred by the NHS Act 2006 will transfer over to ICBs. This is set out in proposed new Section 3, which is also to be inserted by Clause 16 on page 13. I hope that the noble Baroness, Lady Walmsley, will be reassured that it rightly uses “must” rather than “may” when referring to the arranging of services. I can therefore assure the Committee that ICBs will continue to commission the services previously delivered by CCGs. That will ensure that service delivery for patients is not impacted.

Amendment 159 in the name of the noble Baroness, Lady Wheeler, touches on the important relationship between ICBs and ICPs. I remember that, when we had an earlier consultation, the Bill team had a diagram about how ICBs and ICPs would work together; It might be helpful if I ask for that to be sent to noble Lords so that all of us can have more informed conversations about the intentions of the amendments and the issues that noble Lords want to raise. I will make sure that that is done.

This amendment would add a requirement for the Secretary of State to make regulations to establish a dispute resolution procedure if an ICB fails to have regard to an assessment of needs, an integrated care strategy or a joint local health and well-being strategy in respect of the ICB’s area. The Bill was introduced to ensure that existing collaboration and partnership, working across the NHS, local authorities and other partners, is built on and strengthened; I recognise the concerns raised by the noble Lord, Lord Scriven.

We intend for these assessments and strategies to be a central part of the decision-making process of ICBs and local authorities. That is why we are extending an existing duty on ICBs and local authorities to have regard to relevant local assessments and strategies. The ICB and local authorities will be directly involved in the production of these strategies and assessments through their involvement with both the ICP and health and well-being boards at place—that is, at a more geographical level. As a result, they have a clear interest in the smooth working of the ICP.

More widely, there are several mechanisms to ensure that ICBs and local authorities will have regard and not intentionally disregard the assessments and strategies being developed at place in their areas. First, health and well-being boards have the right to be consulted.

[Lord Lansley (Con)]

I just had a flashback moment. I remember being asked, or volunteering, a decade ago to produce a chart of the various organisations under the 2012 Act. I think that the King’s Fund did a rather good job of doing it back then; perhaps it might do it again, although it will find that it is more complicated this time.

The noble Baroness, Lady Thornton, asked a perfectly reasonable question that might simplify the process. If health and well-being boards do the same job as integrated care partnerships, in large measure, why cannot integrated care partnerships and health and well-being boards be the same organisation?

[Lord Kamall (Con)]

I remember hearing in an earlier discussion on the Bill that nothing prevents that where they coincide. My noble friend and I have had conversations about health and well-being boards and where they sit. Given that, and given my noble friend’s experience of this issue, perhaps we could have a further conversation on this matter before the next stage to clarify some of the issues that he rightly raised in previous conversations.

At this moment, we believe there are mechanisms to ensure that ICBs and local authorities have regard to and do not disregard the assessments of the health and well-being boards. As my noble friend points out, that is for further conversations.

As noble Lords know, NHS England must also consult each health and well-being board on how the ICB has implemented its joint health and well-being strategies, so there is another level of reassurance there. The ICB must also include in its annual report a review of the steps it has taken to implement any relevant joint local health and well-being strategy and must consult the health and well-being board when undertaking that review. NHS England has formal powers of intervention if an ICB is not complying with its duty in any regard. That is sufficient to ensure that ICBs will have regard to both ICP and health and well-being board plans, but I understand the concerns raised.