Health and Care Bill
Monday 7th March 2022
(2 years, 9 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 114-III(a) Amendment for Report (Supplementary to the Third Marshalled List) - (4 Mar 2022)
16:06 - Division on Amendment 113 - Ayes: 205 / Noes: 155 - Amendment 113 agreed.
16:49 - Division on Amendment 116 - Ayes: 207 / Noes: 169 - Amendment 116 agreed.
17:28 - Division on Amendment 124 - Ayes: 210 / Noes: 169 - Amendment 124 agreed.
18:49 - Division on Amendment 141 - Ayes: 198 / Noes: 158 - Amendment 141 agreed.
19:04 - Division on Amendment 144A - Ayes: 187 / Noes: 143 - Amendment 144A agreed.
Baroness Pitkeathley
“Carers and safe discharge from hospital
(1) This section applies where—(a) a person (“the patient”) is a qualifying hospital patient at a hospital, and(b) the responsible NHS body considers that it is unlikely to be safe to discharge the patient from hospital unless care provided by one or more carers is available to the patient.(2) It is the duty of the responsible NHS body to—(a) consult the patient about their preferences regarding their care following discharge from hospital, and(b) take reasonable steps to identify and consult any carer or potential carer of the patient about to be discharged.(3) The NHS body must consult any carer or potential carer identified under subsection (2) to ascertain—(a) whether the carer is able, and is likely to continue to be able, to provide care for the patient needing care, and(b) whether the carer is willing, and is likely to continue to be willing, to do so.(4) Having consulted the carer, the NHS body must cooperate with the local authority in relation to their duties under the Care Act 2014, the Health and Care Act 2006 and the Children Act 1989.(5) For the purposes of this section—(a) a “qualifying hospital patient” means a person being accommodated at—(i) a health service hospital, or(ii) an independent hospital in pursuance of arrangements made by an NHS body,who is receiving (or who has received or is expected to receive) care.(b) a “carer” means any person, including any child under the age of 18, who provides or intends to provide care in respect of a patient to whom the NHS may provide services, but a person is not to be regarded as a carer if they provide or intend to provide care under or by virtue of a contract, or as voluntary work.”Member’s explanatory statement
This provision retains the principle and duty on a hospital, whether it be an NHS hospital or an independent hospital, to ensure that a patient must be safe to discharge from hospital and mirrors carers’ rights which were established in the Community Care (Delayed Discharges, etc) Act 2003.
Baroness Pitkeathley (Lab)
My Lords, Amendment 113 focuses on carers and safe discharge for hospital patients. The amendment defines the patient and the carer and is focused on safeguarding the rights of unpaid carers when the person they care for is discharged from hospital. I am grateful for the support of the noble Lord, Lord Young of Cookham, who is sadly unable to be in his place because he is isolating, the noble Baronesses, Lady Meacher and Lady Hollins, and all the other Peers who have expressed it. My thanks go also to Professor Luke Clements, professor of law and social justice at the University of Leeds, for his wise advice on the drafting of this amendment. I am also grateful to the Minister and his officials for the time and effort they have put in to meeting Peers and Carers UK—I declare an interest as its vice-president.
I continue to be amazed at what I am going to say next because, as it stands, the Bill revokes the Community Care (Delayed Discharges etc.) Act 2003, which includes a requirement to consult carers prior to discharge. Thus, for the first time, the rights of unpaid carers will be removed without being replaced by additional or improved rights. Many people, me included, have been fighting to get rights for carers recognised for over 30 years. We first achieved rights through Private Members’ Bills over several Parliaments and under Governments of all colours. No one could have been more delighted than I when these were later enshrined in government legislation such as the delayed discharges Act and the Care Act, but here there is no question of enhancing carers’ rights.
On the contrary, the Government’s own impact assessment of the Bill recognises that carers may be asked to take on additional hours of care, which could mean they have to reduce their hours of work or give up paid work entirely. It states that while the Government anticipate that in some cases
“carers may choose to … There is an expectation that unpaid carers might need to allocate more time to care for patients who are discharged from hospital earlier.”
I should point out that “may choose to” is a late addition to the impact statement. Originally, it said simply “There is an expectation that” carers may allocate more time, with no reference to choice at all.
Perhaps this may remind some of your Lordships that the Secretary of State for Health has said that families must be the first port of call for caring responsibilities. I always found that puzzling, since families always are the first port of call. Whatever reforms we make, the bulk of health and social care will continue to be provided by the so-called informal army of family, friends and neighbours. The contribution they make to the economy is now estimated at £193 billion annually—almost the cost of the NHS itself.
The point of hospital discharge is often the most vulnerable time for patients and carers. Carers UK research shows that more than half of carers were not involved in decisions about discharge, two-thirds were not listened to about their willingness or ability to provide care, and 60% received insufficient support to protect the health either of themselves or of the person being discharged. Anyone who speaks to a carer will hear horror stories about hospital discharge. I am reminded of Norman, a man in his late 70s and a carer for his wife who has multiple disabilities—Norman spoke to a group of your Lordships by Zoom recently. His wife went into hospital for a procedure, which was a relief to him as he himself had been diagnosed with cancer and was having chemotherapy. While he was actually hooked up receiving the chemo, he received a call from the hospital saying that they were discharging his wife. He received no prior notice that she was ready to be discharged. “Okay,” said Norman, “but could you just wait till I get home to receive her?” “No,” was the reply, “she is already in the ambulance on her way home.” Norman’s response was not, “Well, please take her back again,” as I suspect many of us would have been tempted to say, but to ask the oncologist whether the drip that he was on could be speeded up so that he could get home quickly. As it was, he arrived home to find his wife had been left in a bed, frightened and alone. Many of your Lordships will have heard similar stories.
This amendment would place a duty on the NHS to ensure that carers are consulted and to check that they are willing and able to care, as well as ensuring that the patient is fit to be discharged—I emphasise not just medically fit but fit to be at home—and putting the right support in place. It would avoid the experience of another carer, who said, “We knew she was on her way home only when she was on hospital transport. We had to drop everything and rush around to try to get a commode just so she could go to the toilet when she got home.”
The Government suggest that rights in primary legislation will be replaced by statutory guidance. I have been assured of this by the Minister and officials, and I know they are sincere in the belief that this will be more than adequate. But guidance, however strongly worded, is not the same as having concrete rights in legislation that can be quoted and used. I cannot express how disappointed I and all who work with carers are that the Government are for the first time rowing back on the rights of carers, for which we have fought so hard.
With the leave of the House and at his request, I shall quote some of what the noble Lord, Lord Young of Cookham, would have said had he been able to be present. As your Lordships know, he is especially concerned about young carers. He says—
Baroness Penn (Con)
My Lords, while I have a lot of sympathy with my noble friend Lord Young wanting to contribute to the debate, in order to do so, he needs to be in it.
Baroness Pitkeathley (Lab)
I apologise to your Lordships. I will just say that the noble Lord said it was a “backward step” to leave only guidance.
This is not only morally wrong but very short-sighted. If a discharge is unsatisfactory, the inevitable consequence is readmission—and think how much that costs. The Government believe that the new discharge to assess procedures will deal with discharge problems, but carers report that discharge to assess takes place as the discharge itself is happening, with no chance to order suitable devices, equipment or changes to the home, let alone to consult the carer. I must point out that two earlier versions of the discharge to assess guidance did not even mention carers and did so only after pressure from Carers UK.
I am sorry to say that the Government and the NHS have form on ignoring carers. They were not mentioned in the health and care White Paper, which set out the foundations for the Bill and only marginally in the integration White Paper, yet I have never heard any Minister say anything other than that carers are essential, that they must be valued and respected and that we owe them a debt of gratitude. Similarly, I have always heard Ministers and officials agree that carers must be supported to combine paid work with caring to help them financially now and to avoid future poverty, yet here we are with a Bill which states baldly that carers must allocate more time, requiring a reduction in work hours and associated financial costs. I asked the Minister at Second Reading and I ask him again: does he expect carers to go on benefits in order to provide care?
Carers and patients need this amendment badly, and I hope the Minister understands that. I have no doubt of his good intention, but I fear for the plight of carers and patients if he does not accept the amendment, which is essential if we are to ensure that all carers, including young carers, are not overlooked in the hospital discharge process but retain concrete rights and recognition in primary legislation. I beg to move.
The Deputy Speaker (Baroness Fookes) (Con)
The noble Baroness, Lady Brinton, is taking part remotely, and I invite her to speak.
Baroness Brinton (LD) [V]
My Lords, I declare my interest as a vice-president of the Local Government Association. I will speak very briefly from the Liberal Democrat Benches to offer our support for both the amendments in this group.
The amendment tabled by the noble Baroness, Lady Pitkeathley, Amendment 113, says that unpaid carers, including those under 18, must be properly consulted by the NHS to ensure that they are able to provide the care needed to keep patients safe. In Committee—and, more recently, at the excellent and moving round table with family carers organised by Carers UK, about which the noble Baroness, Lady Pitkeathley, just spoke—we heard evidence of hospitals discharging patients before assessments had been completed and before carers had even been told. The burden that this places on carers is totally unacceptable and unsafe. Worse still—and unsurprisingly—the home arrangements too often break down when family and unpaid carers are not a full part of the consultation process. We support the noble Baroness, Lady Pitkeathley, in this vital amendment.
The second amendment, Amendment 144, to which I have added my name, was tabled by the noble Baroness, Lady Wheeler. The amendment ensures that there are always proper social care needs assessments to ensure that both the family and unpaid carers are consulted, along with the relevant local authority; and that ICBs must have an agreement in place with the relevant parties to ensure that vulnerable people are not discharged without the right support. Some carers are themselves vulnerable people, and we need to make sure that all protections are in place for them too.
Equally importantly, it ensures reporting by the relevant authorities back to the ICB so that it can monitor discharge effectiveness. It says—as a bit of stick to go with the other carrot parts—that the ICB must pay for any
“additional costs borne by a local authority in caring for a patient whilst carrying out social care needs assessments”,
in the event that the patient has been discharged before this was completed.
There are 1.4 million unpaid carers who save the state just under £3 billion a year—and they need more than guidance. Both of these amendments will ensure that the patient and their unpaid carer are assessed and supported properly, and that the key stakeholders—the NHS, the relevant local authority and the ICB—must work together to make this happen.
Baroness Meacher (CB)
My Lords, I rise to support Amendment 113. I applaud the noble Baroness, Lady Pitkeathley, both on this amendment and on the years and years of commitment she has given to the support of carers.
It is extraordinary what this Government are prepared to do in this Bill. In revoking the Community Care (Delayed Discharges etc.) Act 2003, they are abolishing the “safe to discharge” test, which requires processes to have been followed to ensure that appropriate and adequate care is, or will be, in place for a patient’s discharge from hospital. The Government are proposing that carers’ rights in primary legislation should be put in statutory guidance instead.
As a member of the Delegated Powers and Regulatory Reform Committee, I am very conscious that, under this Government, secondary or delegated legislation is used more and more to concentrate power in the hands of Ministers rather than in Parliament. The only possible reason for the Government to remove carers’ rights from the Bill, and to put them into secondary legislation, is to weaken those rights. Can the Minister give any reassurance on that point? It is a very important question.
A number of us recently met with a group of so-called adult carers—teenagers and adults—and also with a group of young carers. Both of those experiences were humbling from my point of view. I will mention a couple of points that came up. One teenager rather casually mentioned that she had begun being a carer at the age of three. This is unbelievable, is it not? I forgot to ask her what she actually had to do at the age of three; it is difficult to imagine. But, whatever she had to do, the idea that she somehow had a sense of responsibility at that age is truly alarming.
The other memorable moment was when a teenager was asked, “What is the most difficult thing for you, or the biggest problem that you have as a carer?” I thought she would say that she did not have any time to play with her friends or that she had to do all sorts of boring and horrible jobs that her friends do not. But no, she did not say any of that; what she actually said was, “The biggest problem I have is that the hospital staff won’t tell me how much medication my mum needs. They say they’ve got to talk to my mum, but that’s impossible.” The selflessness implied in that is just completely extraordinary—and of course there were lots of other incredible points.
If these young carers are not consulted before their dependent relative is discharged from hospital, they may be at school or in the middle of a hockey match—it is just unimaginable that this requirement should be in any way weakened. I ask the Minister to take extreme care on this issue when going back and considering the Bill; only then can we be sure that patients are not just medically fit to be discharged from hospital, as the noble Baroness, Lady Pitkeathley, said, but are safe to be discharged—that is, carers or others are there to look after them.
BASW rightly points out that revoking a local authority’s Care Act duty to integrate care and support provision with health provision at the time of the key decision about where a person should be discharged to from hospital undermines the model of integration between social and health care staff—surely the absolute opposite of the whole objective of the Bill. I understand that discharge to assess is probably reasonable for medium and long-term care planning. However, an assess to discharge approach is even more important and should be done in hospital, from the date of admission to hospital. Where is that commitment in the Bill? I look forward to the Minister’s response.
Baroness Hollins (CB)
My Lords, I am very pleased to support the noble Baroness’s amendment, and my thanks go to Carers UK for its briefing. I declare an interest as a family parent carer of an adult disabled man.
Earlier in Report, community rehabilitation was debated, and Amendment 113 complements this by acknowledging the vital role that carers play in supporting people’s discharge from hospital and promoting a community-based model of care. In Committee, I promoted an amendment that sought to define carers within the Bill, as they are mentioned in three clauses. This amendment incorporates that approach, to ensure that parent and young carers are not overlooked. I cannot stress sufficiently strongly how important rights in primary legislation are for carers, who often have all the responsibility for caring but very few of the rights. They are often experts in how people like to be treated, and they can be experts in a condition that professionals may have little detailed knowledge of.
Carers UK heard from carers directly about their experiences of being shut out of the system as part of the discharge to assess process. For new carers, it was often described as bewildering; promises to contact them just did not materialise. Carers UK research found that carers were not consulted and were not given information and advice or the support that they needed to care safely and well for the person who had been discharged. For several of these people, this involved admission to longer-term intensive support or, sadly, readmission back into hospital again. The amendment would have provided the checks and balances needed to ensure that this did not happen.
Carer experience surveys are also important, and they found that carers’ experiences of accessing health and care services for themselves have either plateaued or deteriorated in the recent past. Carers are twice as likely to have ill health as a result of caring; too often, they are overlooked in policy and practice in relation to health services. This is particularly true for parents of disabled children and for young carers. The work that they do has invaluable medical and economic benefit, often at the expense of their own well-being. I therefore urge the Minister to accept the amendment.
Baroness Tyler of Enfield (LD)
My Lords, I strongly support the two amendments in this group.
In Committee, I spoke on hospital discharge, focusing particularly on carers who are working. As the noble Baroness, Lady Pitkeathley, said, until very recently the impact assessment talked about an expectation that carers would have to provide more care. It said:
“There is an expectation that unpaid carers might need to allocate more time to care for patients who are discharged from hospital earlier. For some, this may result in a … reduction in work hours and associated financial costs.”
While Ministers have talked of carers being able to choose whether or not they give up work to care, we have heard that many have not been given a choice, been consulted or been given the right information to care safely and well. We know that, on occasions, carers do make an informed choice to take on more care, which is great, but we have heard far more stories where the system is working against carers. Indeed, the research from Carers UK shows that two-thirds did not feel listened to about their willingness and ability to care by healthcare professionals.
I am particularly concerned about carers who are trying to juggle working and caring. They may be willing to take on and provide more care, but they are juggling work as well. The impact assessment makes an assumption that, when carers give up work, it will be a short-term thing because the care provided will not be significant. Yet the stories we have heard from carers show that, too often, that is not the case because patients with significant needs are discharged into the community without sufficient support.
To conclude, this is not a minor issue. It affects millions of people, and it particularly affects women. There have been 2.8 million more carers juggling work and care during the pandemic, and many have had to give up work. We also need to remind ourselves that women are more likely to be reducing their working hours to juggle work and care, and they are a group that is already often under-pensioned.
Baroness Walmsley (LD)
My Lords, we on these Benches, as has been said, support both amendments in this group. I just ask the Minister one question. We have heard about people who might have to give up work or reduce their hours in order to care. I do not know if the Minister has ever tried to apply for benefits, but it takes a while, and it certainly takes a while for the benefits to turn up in somebody’s bank account. Given that situation, will the Minister talk to the relevant department to see if a fast-track process could be put in place for people in that position?
Baroness Wheeler (Lab)
My Lords, I fully endorse my noble friend Lady Pitkeathley’s excellent speech and the other contributions on Amendment 113. The amendment focuses on three fundamental issues for unpaid carers: being fully consulted and involved before their loved one is discharged from hospital; having a proper assessment both of their own needs and of those who they care for; and clinging on to the few concrete rights they have under the health and care and family legislation that refers to and defines carers, including parent and young carers, and the right of all carers to have a carers’ assessment.
I also thank the noble Baroness, Lady Brinton, for adding her name to my Amendment 144 and for her usual forensic analysis of how the discharge to assess approach is working and its impact on both carers and their loved ones being discharged from hospital. I spoke on this amendment in Committee, but the noble Baroness has underlined the key points and I will not therefore press my amendment today. We can instead concentrate on showing strong support from across the House for carers and for Amendment 113.
Speakers made this support very clear in Committee. At the very least, we could have hoped that this would lead to a commitment from the Government to reinstate the carers’ rights that the Bill deletes and to ensure that carers are consulted before the partner, husband, relative or friend they care for is discharged from hospital, as per their current entitlement under the 2003 delayed discharges Act. Instead, there have been no reassurances or movement in these crucial areas, despite some helpful meetings with the Minister. As my noble friend Lady Pitkeathley points out, we are once again having to defend existing carers’ rights rather than working to enhance them to recognise the worth of carers and reflect the vital role that they play.
If the Minister was hoping that his recent letter and the accompanying updated draft guidance on discharge to assess would address the deep concern and frustration felt by carers, then he knows today that this has not worked. The promise of statutory guidance, and of carers being able to undertake judicial review if it is breached, is not the same as legal rights. In reality, how many carers would be able to go down the judicial review route? The Government just do not seem to understand how deeply ignored, undervalued and unrecognised carers feel.
We should remember, on discharge to assess, that the evidence from key stakeholders to the Commons committee dealing with the Bill clearly showed a very mixed experience of how the approach was working. In some areas, the perennial and disruptive issues around delayed transfers have eased and it is working relatively well, whereas in others, there were calls for much tougher safeguards or for the process to be ended altogether. The Government need to recognise that the system is in its early days but that, as we have heard, the horror discharge stories are happening now—and all too often, as we see from the briefings from Carers UK.
In his response, the Minister needs to reassure the House about the action that the Government are taking now to ensure that hospitals involve and consult carers about arrangements before discharge of patients. I hope that he will also accept Amendment 113 and fully recognise that carers’ existing rights must be reinstated in the Bill.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Kamall) (Con)
My Lords, I thank all noble Lords who have spoken and particularly thank the noble Baroness, Lady Pitkeathley, for her continuing championing of carers.
Discharging people as soon as they are clinically ready is increasingly recognised as the most effective way to support better outcomes. The evidence shows that the “discharge to assess” approach reduces time spent in a hospital bed and supports people to remain independent at home wherever possible. Although the hospital discharge clause does not mandate discharge to assess, the Government are supportive of local areas that choose to implement this best practice model. We believe that carrying out long-term needs assessments at a point of optimum recovery leads to a more accurate evaluation of people’s abilities and needs and more appropriate care packages. Many people discharged from hospital require longer than two weeks to recover. Requiring social care needs assessments to be completed within two weeks of discharge would not necessarily be in the patient’s best interests.
I understand that noble Lords are concerned about safe discharge from hospital and safeguards for patients and carers. However, relevant NHS bodies are expected to ensure that patients’ health needs are met safely in hospital and in the community. Local authorities also have duties to assess patients’ and carers’ needs and, where relevant, ensure that appropriate support is put in place for them. In addition, the CQC monitors, inspects and regulates services to make sure that they meet the fundamental standards of quality and safety, which are set out in legislation.
The Government do not believe that these amendments are in the best interests of either carers or patients. They would create new burdens on NHS bodies and local authorities, and Amendment 144 would create new penalties for local authorities for failing to carry out assessments within a specified timeframe. In doing so, the amendments would undermine the entire purpose of Clause 80 and hinder the ambition, shared across the health system and by Members of this House, to ensure that people are discharged in a safe and timely manner. The creation of significant bureaucracy between local authorities and the NHS risks damaging relationships and would go against the spirit of integrated working that this Bill seeks to support. We agree, however, that accountability and transparency are key to ensuring that local systems deliver high-quality and safe discharge services, which is why we welcome the fact that NHS England now publishes hospital discharge data.
Additionally, a duty on NHS bodies and local authorities to co-operate with one another is already set out in Section 82 of the NHS Act 2006. To specify how this duty will apply to hospital discharge, we are co-producing guidance with organisations including Carers UK, the Carers Trust and Barnardo’s. This will set a clear expectation that, where appropriate, unpaid carers should be consulted during the discharge process. As noble Lords have acknowledged, this guidance will be statutory; NHS bodies and local authorities will therefore be required to have regard to it or risk claims for judicial review potentially being brought against them. We agree that, where we can do more to “think carer” across the NHS, we should. With this in mind, we can commit that we will consult with the public, staff and carers on including a stronger reference to the role and regard of unpaid carers in the NHS constitution, for which a review will be launched this year.
I am also mindful of the specific concerns that have been expressed in relation to young carers. As well as using the guidance to include a much broader definition of carers than that set out in Schedule 3 to the Care Act, I can inform the House that the new Explanatory Notes for the Bill provide clarity that young carers and parent carers are included within the everyday definition.
In response to a number of noble Lords’ questions, I repeat what I said earlier: our new guidance includes a broader definition of carers than Schedule 3 to the Care Act, which applied only to adult carers of patients requiring a long-term needs assessment before discharge. Adult carers’ rights to an assessment of their own needs, under Section 10 of the Care Act, and young carers’ rights, including those as part of the Children Act, remain unchanged under the proposed hospital discharge arrangements.
We believe that statutory guidance is more appropriate here. At the moment, current guidance is not statutory; this will be statutory. Where a young carer is identified, or staff have concerns, the local authority should be notified. Local authorities must then carry out a needs assessment if it appears that the young carer needs support. We are not imposing new duties on local authorities; the existing legislative duties placed on local authorities to assess and meet patients’ and carers’ eligible needs remain unchanged.
I recognise the good intentions behind Amendments 113 and 144, but we believe they would have the effect of undermining the ability of local areas to adopt best practice for hospital discharge. I am not confident when I say this, but I hope that, having heard what I have said, noble Lords may feel able not to press their amendments when reached.
Baroness Pitkeathley (Lab)
My Lords, I thank all noble Lords who have spoken and the Minister for his responses, particularly about consultation and about broader definitions and identification of carers. I was a little puzzled when he mentioned transparency, since the latest updated version of the impact assessment says:
“The level of support required as well as the associated impact on work hours and salary would vary significantly case-by-case and the impact on unpaid carers is difficult to assess. We are therefore unable to quantify the impact on unpaid carers at this stage.”
I am very concerned that, if we cannot quantify the impact on carers, we cannot really do anything to support them.
The problem with guidance, good practice guidance or statutory guidance, is that we have been here before. I have seen other bits of guidance—the identification of carers by GPs, breaks for carers—I have seen those bits of guidance fall away when another priority takes over. Therefore, I am very concerned that we need to have the rights of carers enshrined in primary legislation, and I wish to test the opinion of the House.
Lord Howarth of Newport
“Creative health
(1) Within six months of the passing of this Act the Secretary of State must establish a review to consider and report on social prescribing and other creative health interventions, including—(a) the existing provision, quality and effectiveness of social prescribing and other creative health interventions,(b) the evidence base and research requirements,(c) the benefits in terms of preventing ill health and aiding recovery,(d) the impact on health inequalities, social value and communities,(e) barriers to innovation,(f) sustainability,(g) means to integrate creative health with other approaches to health care and social care, and(h) the potential to extend and improve creative health provision, including—(ii) the costs and benefits of doing so, and(iii) the resources and actions needed to realise this potential.(2) The Secretary of State must appoint as Chair and members of the reviewing committee individuals who appear to the Secretary of State likely to have an informed and independent view of the relevant issues. (3) The review must consult—(a) creative health practitioners,(b) people with lived experience of social prescribing and other creative health interventions,(c) charities working in the field of creative health,(d) the National Academy for Social Prescribing,(e) the Office for Health Improvement and Disparities,(f) Integrated Care Partnerships,(g) Royal Colleges,(h) NHS Providers,(i) the NHS Confederation,(j) Health Education England,(k) the Local Government Association,(l) social care providers,(m) Research Councils,(n) Academic Health Science Networks, and(o) others that the Chair of the review considers appropriate.(4) The review must make recommendations to the Secretary of State on the topics described in subsection (1).(5) The report of the review must be published within 18 months of the passing of this Act.(6) Within three months of receiving the report the Secretary of State must lay before Parliament a statement specifying how he or she intends to implement the recommendations of the review, including timescales and budget.”
Lord Howarth of Newport (Lab) [V]
My Lords, I will speak to only Amendment 114, the proposed new clause on creative health. While I fully support Amendment 184ZB in the name of the noble Baroness, Lady Greengross, in view of the pressures of time today, I will not add to what I said on that subject in Committee. I am grateful to the noble Lords who have added their names to my amendment.
The term “creative health” denotes a range of non-clinical approaches to healthcare. These include working with cultural, natural and other community assets to effect a radical improvement of people’s experience at any stage in the life course. People receive expert support to engage creatively with, for example, the arts, crafts, museums, heritage and the natural world. There is a body of powerful evidence for the benefits of creative health, set out for example in the 2017 Creative Health report of the APPG on Arts, Health and Wellbeing and the World Health Organization Europe’s scoping review of 2019. Tapping into their own and others’ creativity has significant benefits for people in relation to a range of mental and physical health conditions, mitigating for example the distressing impacts of loneliness, anxiety, depression and dementia, as well as addictive behaviours and obesity. Health and well-being in social care settings also benefit significantly from creative health interventions. I detailed some of these benefits in speeches in Committee.
In the NHS long-term plan, the Government have already recognised social prescribing, and the National Academy for Social Prescribing has been established and made encouraging progress. With the establishment of the integrated care systems through the Bill, it is time now to examine a wider, systemic application of creative health approaches. In the new clause, I propose that the Secretary of State commissions a thorough review of the potential to integrate creative health fully within the new structures and the modern orthodoxies of health and social care.
I am sure Ministers will recognise the ways creative health can support them in their agendas. We know that creative health can help significantly with some of the most pressing, intractable and expensive problems in long-term health, including mental illness and obesity. It can reduce demand pressures on GPs, hospitals and pharmacological budgets. When adopted to support people working in the NHS and social care, it reduces staff turnover and losses. At very little cost it can support the prevention agenda, enabling people to have the confidence to take responsibility for their own health, and building resilience against ill health. Striking results are in evidence from creative health programmes in deprived communities such as Blyth and Grimsby. In such communities, through building confidence, energy, co-production, relatedness and social capital, creative health can prepare the ground to reduce health inequalities and improve productivity, serving the place-making and levelling-up agendas. So much more can be achieved if we develop creative health across the country.
These are the reasons why I believe it would be appropriate for the Government to set up the review described in the proposed new clause. If the Minister tells us today at the Dispatch Box that they will do so, we shall not need to legislate. I beg to move.
Lord Crisp (CB)
My Lords, I have added my name to the amendment from the noble Lord, Lord Howarth. He has made very powerful arguments, and I will add only three quick points.
First, I congratulate the noble Lord on the way he has championed creative health throughout the Bill, not just on this amendment, as well as the health impact of creative activity and beginning to move this into the mainstream.
Secondly, I have talked to a number of GPs about this, and they talked to me about the benefits they have observed: for example, of singing for respiratory health, of dancing for exercise and of gardening for contact with nature. Most involve some social engagement and all give meaning and purpose to life. For all these things there is some evidence base to show their impact on health. However, as the noble Lord, Lord Winston, said in Committee, we do not yet have decent evidence of the impact of specific creative health activities or of when and where they are most appropriately used. That is why it is very useful that the review specifically sets out to understand how and when specific creative activities impact on health and searches for the evidence and research requirements that will make this whole new approach as vital as it can be.
My third point is very simple. Throughout this whole process, it has been evident that we are reaching for new understandings of health from those that we perhaps had 10 or 20 years ago and certainly in the last century: an understanding that we need to pay great attention to healthcare and health services, an understanding that we need to pay a great deal of attention to prevention—by which I mean tackling the causes of ill-health—but also an understanding that we need to pay attention to the causes of health and the creation of health. That is another reason why this is such an important amendment. I hope the Government will look on it favourably.
Baroness Greengross (CB)
My Lords, I will speak very briefly to these two amendments: 114 and 184ZB. The amendment of the noble Lord, Lord Howarth, would require the Secretary of State to review and commission a report on social prescribing and other creative health interventions which have already been outlined. My Amendment 184ZB follows on from the discussion in Committee, when the Government agreed to include social prescribing as part of the overall dementia plan, and I am very pleased about that.
In the Committee debate, the noble Lord, Lord Watson, cited a study that cast some doubt on the merits of social prescribing. Briefly, I refer the House to the research conducted by the Global Brain Health Institute, which showed that lifestyle interventions, including art and music, can reduce dementia risk by up to one-third—that is a huge proportion. We have real-life studies such as that of Chris Norris, a 67 year-old man who was diagnosed, aged 58, with frontotemporal dementia in December 2012. Musical interventions have slowed the advance of his dementia. There are plenty of other real-life examples of this which I would be very happy to share with any Member of the House or, indeed, the Government.
The Government have already made commitments in this area, so I will not take up any more of the House’s time. However, I ask the Government to give serious consideration to Amendment 114 moved by the noble Lord, Lord Howarth, as this could make a huge difference to many people’s lives.
The Lord Bishop of Durham
My Lords, I rise to speak to Amendment 114 in the absence of my right reverend friend the Bishop of London, who is having to self-isolate due to having tested positive for Covid—which seems to be a bit of a theme of the first two amendments.
Members of the House will know that my noble friend is very involved, and was very involved in Committee, in speaking about health inequalities. Today, we want to share and highlight the strength of social prescribing and especially the role of faith organisations in helping to deliver this. There is evidence from the All-Party Parliamentary Group on Arts, Health and Wellbeing and the National Academy for Social Prescribing. But everyone who sits on these Benches would be able to tell you stories of where faith communities and local charities aid and assist with health improvements through activities which happen through them. Through cultural, creative, art, nature—all sorts of—interventions, people find health relief and are moved forward in improving their health.
My right reverend friend the Bishop of London herself runs a health inequalities action group, which she shares with six different faith leaders, healthcare workers and people with lived experience of health inequalities. They all highlight the role of faith organisations as legitimate community assets in delivering social prescription. An example is Art is Freedom, an art exhibition which features the work of survivors of modern slavery, curated by the crisis charity Hestia, which works closely with the Salvation Army. Not very far away from here, in Hackney, some churches run an intervention called Psalms & Stretches—a meditative form of gentle exercise which uses breathing, stretching and strengthening.
There is growing knowledge among multifaith groups—of all faiths—and volunteer organisations of informally doing work to reduce health and social inequalities, so our ask is simply that local communities are included in the solutions towards personal and community health. Civil society and all the people and groups that make it up are doing work that is worth learning from, and we need to consult them, as is mentioned in subsection (3) of the new clause proposed by the amendment. Alongside the professionals, they have insights to offer, so I hope that the Minister will consider the amendment and join us in creatively tackling health inequalities and improving population health through social prescribing.
Baroness Whitaker (Lab)
My Lords, I warmly but very briefly support these proposed innovations in fortifying and enhancing health, not least in their application to the treatment of dementia. Will the Minister consider the work of Arts 4 Dementia, whose aim is empowerment through artistic stimulation, and which promotes social prescribing of arts and well-being activity at the onset of dementia, including through its seminal report, A.R.T.S. for Brain Health?
Baroness Bennett of Manor Castle (GP)
My Lords, I rise briefly to offer support from the Green group for both these amendments. In Committee, I spoke extensively on the issues around creative health, and I will not repeat any of that. I just note that, looking at the Government’s response, I get no sense that they have got the point that this is not an additional “nice to have”—something that is done after you have done the medical stuff—this has to be a core part of allowing people to get well again, and keeping people well.
On Amendment 184ZB, it is interesting that the Covid pandemic has seen a really large increase in private medical provision, such as testing on our high streets, et cetera. Now that they are there, those businesses will be looking out for different procedures to keep them going, and it is really important that we have full transparency about the advice that people are getting at those kinds of places.
Baroness Finlay of Llandaff (CB)
My Lords, I say very briefly that I hope the Government will look favourably on this amendment from the noble Lord, Lord Howarth, and others. I hope that they will build into a review an assessment of the cost efficacy because as well as all the positive aspects that we have heard about, we must remember that, if you can decrease medication prescribing, you will decrease not only costs but adverse side-effects, which also have a cost. All these initiatives tackle the problem of loneliness, isolation and not having contact with other people—people who may be able to empathise with the way that you feel about your condition when you are undertaking a common activity with them. That can become particularly important for the psychological well-being of patients as well as their physical improvement.
Baroness Merron (Lab)
My Lords, I congratulate my noble friend Lord Howarth on bringing this subject before your Lordships’ House again. I am grateful to noble Lords from all sides of the House for providing their support for embedding the conditions and opportunities for art, creativity and culture in improving public health. These amendments provide something of a focus for action and I hope will be regarded seriously as such.
We know that the practices relating to creative health can be very effective and good value for money. Some 20% to 30% of all visits to the doctor are for non-medical reasons; for example, social isolation or loneliness. Therefore, the potential that we have in the United Kingdom is huge. Indeed, evaluation of the Arts on Prescription scheme suggested an average return of £2.30 for every £1 spent.
These amendments support the idea that art-based approaches can help people to stay well, recover more quickly, manage long-term conditions and experience a better quality of life. I hope that the Minister will be able to take these amendments on board.
Lord Winston (Lab)
My Lords, if I may, I will introduce a slightly discordant note, seeing as my name has been mentioned. I did not intend to speak, but I do think we need to be a little cautious about all this. I congratulate deeply the noble Baroness, Lady Greengross, on her remarkable work in this area, and nobody would doubt for a moment that everybody here is speaking in very good faith and for the best of purposes.
However, as medical practitioners, we must say that the placebo effect is very powerful and can cure people or improve their health in all sorts of ways and with all kinds of activities, not only dementia. Feeling well is not a simple matter. One concern is that we might spend much more money than we expect on these activities, without coming to the gist of why and whether they work, rather than something that substitutes for them.
I remind the House of one thing. For many decades, the health service supported homeopathy. Homeopathy—like cures like—has been widely used across the world and many people have great faith in it. There is actually no evidence at all that it has any genuine medical or chemical benefit; it is probably essentially a placebo effect. I am not suggesting for a moment that we should not look at exercise, music and all the other things, but I implore the Government; if we do this on the health service, there is a duty to ensure that research is done as well, because we must have a health service that looks at evidence-based medicine. That is fundamentally important.
Baroness Penn (Con)
My Lords, I thank the noble Lord, Lord Howarth, for initiating this debate, and for the work he has done on this issue.
A common theme runs through the comments of noble Lords. The noble Lord, Lord Winston, at the end, talked about evidence and evaluation informing government policy. I hope that we can all agree on that. With regard to Amendment 114, as part of the Government’s plans to roll out social prescribing across the NHS in England, a large evaluation has been commissioned by NHS England and NHS Improvement, through the National Institute for Health Research, which will evaluate many of the points raised. It will seek to find out how social prescribing services operate, how well they work, who does and does not use them, whether they are of benefit to people and a good use of NHS resources, and how cost effective the interventions are. The research will benefit patients by identifying how link worker services can be developed further. It will also study how to help people access social prescribing services and use them effectively, and how to ensure that everyone has access to them, no matter where they live or who they are. Importantly, it will also evaluate the economic sustainability and capacity of social prescribing services.
Furthermore, as part of the cross-government project to prevent and tackle mental ill-health through green social prescribing, another large evaluation has been commissioned to assess models, processes, outcomes and value-for-money of green social prescribing, to inform the scale-up of green social prescribing across England. We are already embedding social prescribing in current non-statutory integrated care systems. In September 2021, NHS England and NHS Improvement published the ICS Implementation Guidance on Partnerships with the Voluntary, Community and Social Enterprise Sector, which outlines the importance of the voluntary, community and social enterprise sector as a key strategic partner in ICSs and provides guidance on how sector partnerships should be embedded in how the ICS operates. This will apply to ICBs in the future, following the successful passage of the Bill. It also describes the importance of embedding social prescribing services, which provide the bridge between health and community by connecting people to local activities and services for practical and emotional support.
Turning to Amendment 184BZ, as of December 2021, there were 1,803 additional social prescribing link full-time equivalent workers in place, and more than 826,000 referrals to social prescribing through NHS primary care. This will make us well placed to reach the target set out in the NHS Long Term Plan of 900,000 referrals by 2023-24 well ahead of time—and this is in addition to other social prescribing schemes across the NHS, local authorities and the voluntary, community and social enterprise sector. Furthermore, NHS England, the National Academy for Social Prescribing and the department worked closely with Music for Dementia to facilitate a series of webinars on creative health and on the publication of guidance for social prescribing link workers and for social workers on music prescriptions for those with dementia.
We will also set out a new dementia strategy later this year. We are working with stakeholders, including people living with dementia, and their carers, and we will be looking at how we can improve the lived experience of dementia. This will include a focus on promoting personalised and integrated approaches to health and care. For some individuals this may include the use of music and arts-based interventions.
The Government are already putting substantial resources into social prescribing. I therefore hope that the noble Lord will feel able to withdraw his amendment.
Lord Howarth of Newport (Lab) [V]
My Lords, I am most grateful to noble Lords from all parts of the House who have supported this proposed new clause, whether they have spoken today or, in the interests of enabling the House to make progress with other important business, refrained from speaking.
I invite my noble friend Lord Winston to study the research and evidence that is already available. The proposed review would, of course, consult with the research councils, a number of which are also engaged in this field of research, commissioning important work.
I say to the Minister that of course I am glad the National Institute for Health Research is already considering social prescribing, but I point out that creative health goes beyond that and embraces a range of other important and proven approaches. Of course, the review would look at a whole range of other issues as well. Her particular focus on social prescribing, important as it is, neglects to address the full range of relevant considerations.
That being so, I am sorry that Ministers have not seen fit to take the lead in establishing the review proposed in the new clause. They are missing an opportunity to act in the interests of the health and well-being of our society. That being so, the National Centre for Creative Health, which I chair, will look for resources to enable us to lead the review ourselves. We will still, of course, want to engage with government and NHS England. I hope they will see value in that. In due course, we will make recommendations as to how to develop creative health approaches on a national scale, and we will seek to resume dialogue with Ministers. I beg leave to withdraw the amendment.
Lord Hunt of Kings Heath
“(3A) Regulations under this section may not transfer a function as defined in Part 9 of the Health and Social Care Act 2012.”Member’s explanatory statement
Part 9, Chapter 2 of the Health and Social Care Act 2012 lays out the safe haven for patient data across health and social care, required for national statistics, for commissioning, regulatory and research purposes, and for patient care. The amendment seeks to keep these statutory protections in place and ensure that NHS England do not take on this responsibility because of a potential conflict of interest in their role.
Lord Hunt of Kings Heath (Lab)
My Lords, we debated this amendment on patient security of data last week. I wish to test the opinion of the House.
Lord Etherton
Member’s explanatory statement
This amendment, and other amendments in the name of Lord Etherton to Part 4, will remove the provisions concerning the Health Services Safety Investigations Body.
Lord Etherton (CB)
The amendments in this group that are in my name would remove Part 4 in Schedules 13 to 15 of the Bill, all relating to HSSIB. I am very grateful to the Minister and the Bill team for their engagement with me and other Members of the House on these amendments. An alternative, narrower amendment—Amendment 124 in the name of the noble Lord, Lord Hunt of Kings Heath—would simply remove the permission of HSSIB to disclose protected material to coroners.
The basis for these amendments can be stated in four words: it will not work. The safe space within which HSSIB is intended to operate cannot work because, under the provisions of the Bill, HSSIB responds to specific incidents which have, or may have, implications for the safety of patients. Those same incidents may be the subject of an inquest, and senior coroners are entitled under Schedule 14 to require the disclosure by HSSIB of protected material if it is relevant to the investigation being undertaken by the coroner. Once the coroner has that material, he or she is in practice bound to disclose it at the inquest, and the High Court will inevitably order such disclosure if it is relevant to one or more of the questions that the inquest is required by statute to resolve—in particular, in the present context, if it is relevant to deciding how the deceased died. That is because, in the words of a leading Court of Appeal case, the duty of the coroner is
“to ensure that the relevant facts are fully, fairly and fearlessly investigated”
and
“are exposed to public scrutiny”.
Article 2 of the European Convention on Human rights does not add materially to the intensity of that investigatory duty of coroners which already exists under our domestic law. The materiality of Article 2 is only that it imposes the obligation not merely to decide by what means the deceased came to his or her death but in what circumstances.
I am very sceptical that coroners need protected material from HSSIB since they have managed perfectly well without any such right of access to similar material held by the PHSO since the PHSO was established under its founding statutes of 1967 and 1993. Be that as it may, my focus today is on what the senior coroner must do when in receipt of protected material from HSSIB. In short, the material must be disclosed by the coroner.
Although an inquest is in legal terms an inquisitorial process, the ascertainment of the relevant facts is often, as many members of the House will know, highly contentious. Those who have been designated interested persons by the coroner, who include a wide range of family members, may cross-examine witnesses either in person or by representatives. It is inconceivable that a coroner could keep secret from interested persons protected material obtained by the coroner from HSSIB which is relevant to the matters that have to be decided by the inquest. This may have very serious implications for those who have given evidence to HSSIB which is deployed in the inquest, including the possibility of a conclusion of unlawful killing by gross negligence manslaughter.
No medical practitioner could possibly feel confident that, in giving evidence to HSSIB, it is being given in a safe space in view of the need for public disclosure of such evidence by coroners if it comes into their hands and is relevant to the inquest. I beg to move.
Lord Hunt of Kings Heath (Lab)
My Lords, I have put my name to the amendments tabled by the noble and learned Lord and have tabled amendments of my own. As the noble and learned Lord said, his amendments simply take out the HSSIB provisions from the Bill, whereas mine take out the reference to senior coroners.
I think we are all united in supporting the concept of HSSIB improving safety in the health service. A stand-alone Bill in 2019 had a Second Reading in which we were beginning to get to grips with some of the issues around the construct of HSSIB and, particularly, the safe spaces concept. This is very important in the health service because of the traditional reluctance of staff to come forward with information about where things have gone wrong because experience has shown that whistleblowers have often been treated very poorly indeed.
I fully support the concept of HSSIB and safe spaces and believe that if it is implemented properly it will lead to improved safety. However, as the noble and learned Lord has so eloquently pointed out, the problem is that the inclusion in the Bill of the coroner’s ability to access this information would render the whole safe space concept unworkable. Staff will simply not trust it if these provisions are left in the Bill.
We are faced with two options. One is to take out the whole of the HSSIB provisions. Ideally, I would support that because it would benefit from a stand-alone Bill, where we could give it the scrutiny it clearly deserves. On the other hand, our job here is to be constructive as a revising Chamber. On that basis, we would be much safer removing the coroner elements and giving the Government a little more time to discuss this further before the Bill goes on to Third Reading and back to the other place.
I think there are ways through. I have been attracted, for instance, to one solution put forward by the noble Baroness, Lady Brinton, in relation to a memorandum of understanding between the noble Earl’s department and the MoJ. We need to discuss that; in order to do so now, I believe we should remove the coroner provisions from the Bill.
Lord Patel (CB)
My Lords, I apologise for rising because I know we need to move on but before I speak to this amendment perhaps I may take the opportunity, as I was not here on the first day of Report, to thank the Ministers for listening—and taking action after doing so on many aspects. I thank them all for that. I also thank all those who sent me good wishes. It helped, and I did not realise I had so many friends.
I shall not speak at length on this group. I have my name on both sets of amendments. The reason I supported removing the whole clause was that there are a lot of issues arising, not just the invasion of the safe space. However, I agree with the noble Lord, Lord Hunt of Kings Heath, that it gives the Government another chance if it is confined to removing the coroner provisions. I agree with what has been said: the medical profession particularly, but even other health professionals, will find it difficult if the safe space of what they say confidentially can be invaded, so I support that proposal.
Baroness Walmsley (LD)
My Lords, I well recall hearing Jeremy Hunt announce that we would have this organisation and thinking at the time how important it would be in turning the NHS into a learning organisation, in the interests of patient safety. I would prefer not to take the whole clause out but to amend it.
The predecessor non-statutory organisation’s chief inspector has written to us, pointing out that when his organisation was set up it was made clear that full statutory independence, along with the fully enclosed prohibition on disclosure, would be essential to its success. I am concerned that if this power to disclose information to coroners is left in then this organisation, which we all so much support, will be set up to fail. That would be a very bad thing for patients and the whole NHS.
Quite honestly, the number of cases that the HSSIB is going to investigate—only 30—is highly unlikely to cut across anything that the coroner wants to do. In fact, the Joint Committee which scrutinised the previous Bill in 2018, which got only as far as Second Reading, concluded that the safe space would in no way impede the ability of coroners, regulators, the PHSO or the police in undertaking their own investigations or speaking to witnesses. That is not what we heard in the meetings which the Ministers have been kind enough to set up on Zoom, or from the Ministry of Justice. They obviously disagreed with the Joint Committee that scrutinised this carefully.
I hope the Minister is not going to rely on paragraph 6(7) of Schedule 14 because, as it stands, the so-called protections in that part of the Bill are completely unknowable. How can the High Court know whether a disclosure to the coroner will deter future witnesses from giving full disclosure? It simply cannot know that but there is a big danger. Nor can it know whether it will have an
“impact on securing the improvement of the safety”
of the health service. This is an empty protection and I hope the Government will not rely on it when arguing against the amendment of the noble Lord, Lord Hunt.
Baroness Merron (Lab)
My Lords, I am grateful to the noble and learned Lord, Lord Etherton, for so forensically and carefully introducing this group of amendments. The debate on the subject today, as on previous occasions, has been both rich and constructive. I hope it will lead to improving this clause; as we have heard, there are multiple issues in respect of its drafting. The main issue and debate today focused on coroners having access to protected information which has been shared in confidence under safe space conditions. Therefore, I will make my brief remarks in respect of Amendment 124, tabled in the name of my noble friend Lord Hunt and supported by the noble Baroness, Lady Walmsley, and the noble Lord, Lord Patel. We are all pleased to see the noble Lord, Lord Patel, back in his place.
It cannot be right, on the one hand, for someone to be compelled to give information and to do so on the understanding that they act within a safe space and would be committing an offence if they did not give information, yet, on the other hand, to enable that very information to be made publicly available. It is not the purpose or duty of HSSIB to act as a branch of the coroner. The coroner has multiple other avenues of access to information and powers of investigation. It does not need the access to this protected material simply because of the convenience of the existence of HSSIB. Therefore, I hope the Minister will understand this point and take it on board. If not, and if noble Lords are so minded to test the opinion of your Lordships’ House, these Benches will support the relevant amendment.
Earl Howe (Con)
My Lords, every day, the vast majority of NHS patients receive safe, effective and world-class care. Sometimes, though—and very sadly—errors occur which lead to harm. This is what the HSSIB will help us to address. The HSSIB will be an independent arms-length patient safety investigation body, with a statutory safe space and powers to discharge its investigative functions effectively across the NHS and the independent sector. This body will be one of the first of its kind in the world. Its independence will give the public full confidence that it will arrive at impartial conclusions and recommendations. The aim will be to drive improvements by learning and not blaming.
The provisions in the Bill were developed after considerable thought and scrutiny. We have had extensive stakeholder engagement, including an expert advisory group. The clauses, broadly in their current form, were scrutinised by a specific Joint Committee comprising Members of both the House of Commons and the House of Lords in December 2018. We accepted many of the Joint Committee’s recommendations—for example, to include independently funded healthcare within scope and to exclude local maternity investigations. The HSSIB had widespread support across both this House—when it was introduced in a previous Session and again during earlier debates—and the other place. I know that many noble Lords here today, having heard some of them, are enthusiastic about the prospect of a fully independent investigation body. I very firmly believe that we need to continue with the same enthusiasm and see this new body through to fruition. We should not delay this important work by rejecting this part of the Bill.
I honestly think that removing Part 4 would be a backward step. It would be greeted with dismay by those patient safety campaigners who have argued so eloquently for the creation of this body. The current investigation branch does not have the necessary independence or the range of powers to truly drive change as a world-class investigation body. This is what we are trying to address by creating a new body with all the tools it needs to thrive. By the way, those noble Lords who think that removing Part 4 and keeping things as they are will prevent access to information by coroners are wrong: coroners currently have such access, but without our proposed restrictions. Key to the HSSIB’s function is the creation of a statutory safe space, whereby non-compliance with those safe space protections can result in criminal sanctions.
I turn to the issue of access to safe space, which I recognise has caused concerns. We firmly believe that the only way to bring about a cultural shift in the NHS, so that people feel confident to share information and concerns are addressed promptly, is that there be a robust safe space. The current investigation branch does not have a statutory safe space. The Bill would create one, with tight restrictions. There are very limited circumstances when protected material can be disclosed—for example, if the HSSIB discovered information which demonstrated there was a serious and continuing risk to the safety of a patient or to the public—but this disclosure would occur only to the extent necessary to address those risks.
I know that direct access to protected material for senior coroners, as raised in Amendments 124 and 125, is an area of concern, but coroners have a unique role. A coroner’s investigation is an independent judicial process that aims to provide bereaved families with the truth regarding the death of their loved one—who has died, where, when and how—and enable society to learn from any mistakes that may have caused or contributed to a death. When a death occurs, and when that death requires coronial investigation for the sake of families and of the public, that work should not be hampered. It is an important principle that we should trust our judiciary. I am confident that coroners will take seriously their responsibilities to safeguard any safe space material that they may see. They are used to doing this; they already routinely handle sensitive, confidential material.
It is most unlikely that senior coroners will need to access safe space information on a frequent basis. Of the 57 national investigations conducted by the current investigation branch, 10 were investigated by the local coroner. However, only one gave rise to a request from a coroner for material held by the current investigation branch. Having said that, even though we expect requests for protected material will be rare, the principle of coroners having access when they need it is an important one.
Baroness Walmsley (LD)
In the case the noble Earl has just mentioned, could not the coroner have obtained the information by another means?
Earl Howe (Con)
My Lords, I am afraid I do not know the answer to that. I can, of course, find out and let the noble Baroness know, if those details are available.
I know there have been concerns that inquests can seem to be adversarial, and that protected material passed on to the coroner could be used in them. Inquests are, by definition, designed to be inquisitorial; statute prohibits inquests from determining criminal and civil liability, and interested persons are prevented by the inquest rules from making submissions on the facts. Coroners seek to obtain the objective truth—how and not why someone has died. I submit that not allowing coroners to see relevant safe space material could prevent justice being done and seriously undermine public confidence in the coronial system.
I turn to the important issue of funding, raised by Amendment 123, although I do not know that noble Lords have spoken to that. The noble Lord is shaking his head so, to save time, I will not cover that point.
Finally, let me just say that an independent HSSIB is an excellent concept that has wide support. In my submission, it would be a terrible pity if noble Lords rejected it because of doubts about how well it would work. I believe that it will give patient safety a valuable boost and hope that the House will support it.
Lord Etherton (CB)
I am extremely grateful to the Members of the House who have spoken, and to the Minister for his reply.
The Minister appears to accept that, if it is necessary to ask HSSIB for its material to reach a proper verdict or conclusion on the cause of death at an inquest, the material ought to be supplied and be made known to the families so that they have the benefit of what I described as the legal test: a full, fair and fearless investigation of the facts, in public. That is the problem.
Although the Minister referred to the extensive past consideration of safe spaces, I have not yet heard from any Minister, not even in the long letter we were helpfully sent on 3 March by the noble Lord, Lord Kamall, an explanation of how the safe space would operate in a coronial setting—in practice, that is, not in theory. As I said, I have not heard any explanation of how the information obtained by the coroner, which can be obtained only if it is relevant to the inquest, can be kept secret from the participants in the inquest. It cannot be; it is simply not possible. That is the fundamental problem with this particular provision relating to disclosure to coroners.
Having said all that, I heard what the noble Lord, Lord Hunt, had to say. In view of what he and others said, I beg leave to withdraw my amendment.
Lord Hunt of Kings Heath
Member’s explanatory statement
This amendment would remove the provision allowing coroners to require the disclosure of protected material.
Lord Hunt of Kings Heath (Lab)
My Lords, I would like to test the opinion of the House.
Lord Hunt of Kings Heath
Member’s explanatory statement
This amendment, along with another amendment to Schedule 14, would remove the provision allowing coroners to require the disclosure of protected material.
The Deputy Speaker (Baroness Fookes) (Con)
On Amendment 125A, I think there may be a number of amendments in a similar vein.
Amendment 125A
Lord Etherton
Lord Etherton (CB)
I am so sorry, Deputy Speaker, but I asked for my amendment to be dealt with by way of just removing the whole of Part 4, but I was told by the Public Bill Office that every single clause had to be mentioned. The Public Bill Office was unable to explain why that was, other than that was how it had always been.
The Deputy Speaker (Baroness Fookes) (Con)
If it is down on the Marshalled List, it has to be dealt with. May I assume that the noble Lord is seeking not to move Amendments 125A to 125M?
Lord Kamall
“(a) omit the “and” at the end of sub-paragraph (iv);”Member’s explanatory statement
This amendment is consequential on paragraph 5 of Schedule 16 to the Bill, which adds a new sub-paragraph (vi) to section 19A(6)(h) of the Criminal Procedure (Scotland) Act 1995.
Lord Sharkey
“(3) In section 1, omit “an EEA state or Switzerland” and insert “a relevant state or territory”.(4) In subsection 2(1)(b) omit “an EEA state or Switzerland” and insert “a relevant state or territory”.(5) In subsection 2(2) after (i) insert—“(j) make provision to make payment (otherwise than under a healthcare agreement) in respect of healthcare provided in a relevant country or territory, but only when the Secretary of State considers that exceptional circumstances justify the payment and has laid before Parliament the reasons for such consideration and the details of the payments;”.(5) Omit subsection 2(7).(6) After section 2 insert—“(2ZA) Regulations under section 2 may—(a) confer functions on a relevant public authority or a Scottish or Welsh health board (including discretions);(b) provide for the delegation of functions to a relevant public authority or a Scottish or Welsh health board.(2ZB) The Secretary of State may give directions to a person about the exercise of any functions exercisable by the person under regulations made by virtue of section 1 (and may vary or revoke any such directions).””
Lord Sharkey (LD)
I shall speak to all the amendments in this group. I am very grateful to the noble Baronesses, Lady Brinton and Lady Thornton, for their support. All the amendments in this group address Clause 151. The purpose of this clause is to enable the Secretary of State to implement reciprocal healthcare agreements with countries other than the EEA states and Switzerland, where we already have such agreements. These agreements were provided for by the Healthcare (European Economic Area and Switzerland Arrangements) Act 2019. This Act was the subject of intense debate as it passed through this House. Noble Lords approved the inclusion in the Act of explicit constraints on the powers of the Secretary of State to make such agreements. This ensured that wider and different purposes, such as privatisation, could not be included. I make it clear at this point that we strongly support the intention to extend the geographical range of reciprocal healthcare agreements.
The Deputy Speaker (Baroness Fookes) (Con)
The noble Baroness, Lady Brinton, is taking part remotely. I invite the noble Baroness to speak.
Baroness Brinton (LD) [V]
My Lords, I echo the thanks of my noble friend Lord Sharkey to the Ministers and their officials for the very helpful discussions that we have had with them on reciprocal healthcare agreements. I also thank my noble friend for his persistence in leading on those discussions between Committee and Report on the two points of difference between us—the definition of reciprocal healthcare, with our concerns about the ability to create a privatisation of parts of healthcare, and that an SI under a negative resolution is not strong enough for Parliament to scrutinise properly. My noble friend’s amendments are, as he said, very specifically aimed at removing these concerns, and I look forward to the Minister’s response.
I also particularly thank Ministers for understanding that the House was deeply unhappy with the original proposals for regulations via a negative resolution. I hope to hear that Ministers will now agree to the affirmative resolution proposed in the amendment of my noble friend Lord Sharkey. Scrutiny by Parliament needs to be timely, and Parliament needs to be allowed to effectively challenge proposals about which it has concerns.
Baroness Thornton (Lab)
My Lords, it is a great pleasure to speak about reciprocal healthcare, which is not how I felt several years when we dealt with this exact issue in your Lordships’ House, as many noble Lords might remember. It was with some trepidation that I and these Benches looked at this part of the Bill, because we were so concerned and had to do so much work to protect our NHS in the passage of the 2019 Act.
I am very grateful to the Minister and the Bill team for engaging with us so thoroughly to take on the board our concerns, which needed to be built into this part of the Bill. I say particularly how impressed I am by the noble Lord, Lord Sharkey, and how grateful I am to him for his understanding and persistence—and his ability to read long, complex documents, understand them and then translate them so that other people can understand them too. That is a great talent.
From these Benches, with the idea that the affirmative resolution will be agreed, we are very happy indeed.
Baroness Penn (Con)
My Lords, I too thank noble Lords for their helpful engagement on this matter over the last few weeks and for bringing forward the debate on this issue today. It is important that the results of those discussions are on the record, so I hope that noble Lords will forgive the length of my response.
I am pleased that we agree on the overarching benefits of having reciprocal healthcare arrangements with countries across the world, which would provide support to UK residents when travelling abroad and can be particularly valuable to those with long-term health conditions. Such arrangements can also support enhanced healthcare co-operation with our international partners. It is for these reasons that the Government have negotiated new arrangements with the EU and Switzerland and now wish to refresh arrangements with countries outside Europe and with our overseas territories and Crown dependencies. This policy is fundamentally aimed at assisting UK residents to access healthcare abroad.
Turning to the amendments tabled by the noble Lord, Lord Sharkey, I start by making some assurances to him and to the House over the policy intentions of the international healthcare arrangement clause in the Bill. To be clear, this legislation is not about the negotiation of international healthcare agreements. Those agreements are negotiated using prerogative powers. This clause and the 2019 Act that it amends simply ensure that the Government have the powers to implement international healthcare agreements. Healthcare agreements contain substantive provisions, such as eligibility criteria and which treatments will be covered. New Section 2(1) gives us the power to implement those healthcare agreements; for example, by putting in place administrative arrangements and conferring functions on public bodies to deliver our reciprocal healthcare commitments. We could, for example, set out which public body will administer the global health insurance cards. It is anticipated that any regulations made under new Section 2(1) will be materially the same as the current Healthcare (European Economic Area and Switzerland Arrangements) (EU Exit) Regulations 2019 No. 1293.
The department has been undertaking careful analysis of how to take forward international healthcare agreements, balancing the benefits for citizens when abroad with the Secretary of State’s duties in the NHS Act 2006, which apply when exercising functions in relation to health services, for example, the duty to continue the promotion in England of a comprehensive health service. Our analysis to date shows that there are clear benefits to be derived from state-to-state reimbursement models, but that these will generally work only with countries with public healthcare systems.
I recognise the noble Lord’s concerns about the breadth of the powers, and I reassure him that Clause 151 narrows the powers under the Healthcare (European Economic Area and Switzerland Arrangements) Act 2019 to better reflect what is necessary now that the UK has left the EU and has reciprocal healthcare arrangements in place through the trade and co-operation agreement. It does this by revoking existing powers in Section 1 of the 2019 Act, which currently enable the Secretary of State to pay for unilateral healthcare policies in the EEA and Switzerland; enabling payments to be made for treatment outside the scope of a healthcare agreement only if exceptional circumstances justify the payment; allowing the payment power to be exercised only if authorised by regulations. and limiting the Secretary of State’s ability to make regulations in areas of devolved competence.
Our approach follows concerns raised by noble Lords in the original Bill debates in 2019 about the breadth of the unilateral payment and regulation-making power. Under the current Sections 1 and 2, the wide powers given to the Secretary of State to fund healthcare in the EEA and Switzerland were intended to cover various EU exit options and ensure that UK nationals were not left in a cliff-edge situation in the EEA and Switzerland in the event of a no-deal scenario. There was limited additional scrutiny for the payment power in the original 2019 Act due to the circumstances at that time. We consider that this power is no longer appropriate or necessary now that the trade and co-operation agreement is in place.
Amendment 126A would limit the exceptional payments power so that it is exercisable only after the Secretary of State has set out reasons for, and details of, any payments made before Parliament. However, I do not believe that this would work in practice. The policy intention is that the exceptional payments power will be used in circumstances where an individual falls marginally outside of the scope of a healthcare agreement. We have, for example, used discretionary payment powers under the 2019 Act to provide crisis mental health support to a minor in the EU who was not covered under the European health insurance card scheme due to the structure of the member state’s healthcare system. These circumstances are often where an individual has a very serious and urgent medical need, and it remains essential that the Government are able to move quickly to support that person and ensure their welfare. An amendment where this power is exercisable only after the reasons and details of payments have been laid before Parliament could severely hamper our ability to act quickly—something that I am sure is not the intention. Furthermore, the Government are already obliged under Section 6 of the 2019 Act to lay before Parliament an annual report outlining the payments made pursuant to the Act. This ensures that there is transparency and will continue to apply following amendments made by this Bill.
I confirm that the amended definition of a “healthcare agreement” in this Bill is materially the same as the current 2019 Act definition. Both cover commitments between the UK and a country, territory or international organisation for healthcare provided outside the UK in whatever form. Making reference to “other commitment” is a drafting change to make it clearer that the regulation-making power can be used to implement non-legally binding arrangements, such as memoranda of understanding. This ensures that implementation of reciprocal healthcare arrangements made with close partners, such as the overseas territories and Crown dependencies, are in scope of the 2019 Act, as they do not have the authority to become parties to treaties in their own right. They can, therefore, enter only into non-legally binding arrangements.
Amendment 184ZC would make regulations subject to the affirmative resolution procedure. With thanks to the noble Lord, Lord Sharkey, for his constructive engagement, the Government are content to accept this amendment and, as the noble Lord is aware, may amend it further to ensure that the drafting is optimal for our shared objective.
The purpose of the 2019 Act and the provisions that we have put forward in Clause 151 is not to implement trade deals. The Government have categorically stated in their manifesto that the NHS is off the table when we are negotiating agreements with our international partners. To be clear, it is important to state that reciprocal healthcare agreements that we agree with other countries do not relate to the commissioning and provision of services for the NHS. The policy intention in that reciprocal healthcare should cover publicly available healthcare.
This legislation narrows the scope of the powers compared with the 2019 Act and is tailored to negotiate more comprehensive healthcare agreements with our closest partners, as well as provide support to our citizens when they need it most. For that reason, I ask the noble Lord to withdraw this amendment and not move Amendments 126B to 126G. I confirm the Government’s support for Amendment 184ZC.
Lord Sharkey (LD)
My Lords, I am very grateful to the Minister for the comprehensive way she addressed the various anxieties about Clause 151. I am reassured by her clear statement that the purpose of the 2019 Act, as amended in this Bill, is not to implement trade deals, and by her equally clear statement that reciprocal healthcare agreements do not relate to the commissioning and provision of services for the NHS. I heard the Minister say that Clause 151 actually narrows the power given under the 2019 Act and explained how this was so. I am grateful for that explanation too. I am even more grateful that all the regulations produced by Clause 151 will now made under the affirmative procedure. On that note, I beg leave to withdraw the amendment.
Baroness Wheeler
Member’s explanatory statement
This amendment is linked with the amendment in the name of Baroness Wheeler to leave out Clause 155.
Baroness Wheeler (Lab)
My Lords, I will also speak to my Amendment 141, which would delete Clause 155. I am very grateful to the noble Baronesses, Lady Campbell and Lady Brinton, and to the noble Lords, Lord Warner and Lord Lansley, for their combined support of these amendments. Sadly, the noble Baroness, Lady Bull, and the noble Lord, Lord Lansley, cannot be here, but the noble Baroness, Lady Campbell, and the noble Lord, Lord Warner, will speak to my amendments. I understand that they will move Amendments 143 and 144A.
In the Care Act 2014, we have a carefully crafted, step-by-step, cross-party agreement implementing the key recommendations of the 2011 Dilnot commission on the cap-and-floor model of social care funding, which went through the full parliamentary processes in both Houses. It built a consensus for implementing and funding the introduction of the care cap in 2016, and enshrining the key Dilnot principles of fairness and equity across all those needing social care. However, as we know, this agreement was never implemented following two separate postponements and a final cancellation in 2019.
Instead, the short Clause 155 we have before us on the Government’s proposals is a last-minute, hastily scraped together, ill-thought-through mishmash of subsections added to an essentially NHS Bill after its Commons Committee had finished, which was then bombarded through that House without any time for close scrutiny and debate. Our own Committee session on this clause started late in the evening at 10.30 pm and lasted not much more than an hour, so we fared little better on such a major and fundamental issue that will impact hundreds and thousands of lives. Moreover, the Minister, despite his offer on the record in Committee to talk to noble Lords about their questions and concerns, has been given no authority to discuss or agree any possible changes to the clause, which is so clearly ill thought through—contrast this with the fruitful discussions that have been held on a number of other important issues in the Bill.
My Amendments 127 and 141 to delete Clause 155 would ask the Commons to think again about how it implements the care cap. It presents a key opportunity for fundamental reconsideration of the Government’s proposals. There has now been time for greater analysis and scrutiny of the proposals and their impact by key stakeholders and expert think tanks, such as the Nuffield Trust and the King’s Fund, both of which have called for the clause to be removed. Its deletion would restore the full provisions on the cap under the Care Act 2014. It would mean that there would be reconsideration of how the cap should be implemented, not whether it would be implemented. Amendment 144A would reinforce this.
Labour strongly supported the 2014 negotiated care cap, its charging package and the costs involved. This has always been in the context of the care cap as part of a much wider social care reform that is needed to address the current crisis and build long-term sustainability and growth, which the Government have yet to address. We know that the Government’s proposals for the cap were discounted by Dilnot in 2011 as unfair, because they will result in people with low levels of wealth spending the largest proportion of their income on their care. The cap at £86,000 is set too high to benefit the majority of people who need to be protected, and the bombshell of abandoning the key safeguarding Dilnot principle enabling local authority care costs to count and accrue towards the cap means that poorer people will be exposed to the same care costs as the very wealthiest in society.
Despite the pledge that nobody should have to sell their homes, the fact is that someone with assets of £100,000 will lose almost everything, whereas someone with assets worth £1 million and over will keep almost everything. This is clearly shown in the extensive modelling by stakeholders such as Age UK, Mencap, the Alzheimer’s Society and the think tanks. That was detailed during our Committee debate, particularly the impact across some of the most deprived areas in the country. The Government’s own figures show that more than one in five older people will not see the benefit of the cap at all, and poorer care users are much more likely to die before they reach the cap than someone who is better off with the same care needs. Only 19% of people with dementia will reach the cap.
Moreover, Amendment 143, which will now be spoken to by the noble Baroness, Lady Campbell, and the principle of which we strongly support, reinforces the key point that a fair cap and charging system has to provide essential support to older adults and working age disabled adults, many of whom have lifelong conditions, including those with learning difficulties and who have to draw on social care support for their daily needs and support. The Dilnot proposals recognise this by seeking to ensure that adults entering the care system under the age of 40 or who were under 40 when they first entered it would have their care capped at zero.
I commend Amendment 144A from the noble Lord, Lord Lansley, to which I added my name. This fully complements the deletion of Clause 155 in restoring the current charging provisions in the Care Act. It would add a new clause to require the Secretary of State to make regulations under the Care Act to ensure that all its provisions on the care cap—Sections 15 and 16—come into force before 1 April 2023. This would mean that there would be no delays to the implementation of the care cap based on the relevant sections of the Care Act. It also means that the uprating of the care cap value from the level fixed in 2014 could take place—the concern of Amendment 182.
What is crystal clear is that the Minister’s repeated claim—or rather, as he described it in Committee, his “hope”—that
“no one will lose out when compared to the current system”—[Official Report, 31/1/22; col. 751.]
or face “unpredictable care costs” just is not borne out by the evidence proving otherwise, which is stacking up every day. Increasing the complexity of local authority charging arrangements on personal budgets, as the government amendments to the Care Act seek to do, makes an already hugely complex and system-heavy admin and technical system even worse. How many care users will be able to understand what is happening? I was particularly interested in the comment by the noble Lord, Lord Lansley, in Committee that a number of the issues that the government amendments sought to rectify or amend were never introduced in 2014 anyway.
How much more straightforward to use the sections of the Act developed for implementation than to try to patch up the provisions and hang them on a different Bill. We support the ambitions of self-funders to pay the same rate for care as local authorities pay for the people they fund, but there is absolutely no evidence of any government intention to provide cash-starved councils with the huge costs involved in this, and bearing in mind the massive underfunding of social care over the past decade.
Clause 155 must be deleted so that the key Dilnot principles of fairness and equity across all those needing social care can be reinstated. Deletion of the clause would mean that implementation of the care cap could proceed but under the provisions of the fully scrutinised Act designed to implement it: the Care Act. Under Amendment 144A, all provisions relating to the cap would be implemented by 1 April 2023.
At the appropriate time, I shall withdraw Amendment 127 and then move Amendment 141 in its place and seek to test the opinion of the House. I understand that the government amendments to Clause 155, which come before Amendment 141, will be agreed on the nod and will then fall if Amendment 141 is carried. I beg to move.
The Deputy Speaker (Baroness Garden of Frognal) (LD)
My Lords, the noble Baroness, Lady Brinton, is taking part remotely. I invite the noble Baroness to speak.
Baroness Brinton (LD) [V]
My Lords, I thank the noble Baroness, Lady Wheeler, for introducing so comprehensively this group of amendments on care costs. Given the lateness of hour in Committee, the House needed to hear the detail of this.
Her Amendments 127 and 141, which I have signed and which we will support if she calls a Division, would remove the cap on care costs which was announced and introduced by the Government in the Commons. It was not widely consulted on, and is a deeply unfair element of the Government’s proposals for the new social care payments arrangements. Far from fixing the ongoing crisis in social care “once and for all”, which the Prime Minister said from the steps of No. 10 Downing Street in 2019 he would do, these divisive plans will not stop people needing to sell their homes to pay for care and are a breach of the Government’s promise in that election. It is very important that the Commons have the time to discuss the consequences of the detail of removing that cap now that the announcement has been better understood, especially by the professionals, including the think tanks, who are very concerned about it.
We also support the noble Baroness, Lady Campbell of Surbiton, who will speak to Amendment 143 in the name of the noble Baroness, Lady Bull, which would ensure a zero amount for personal care charges for those under 40. It is absolutely against the spirit of Dilnot and a deep injustice to those under 40 with personal care needs that they are treated the same as those whose working years are behind them. It is a huge injustice that we have an NHS that is free at the point of use and yet younger people with learning disabilities and life-limiting health conditions are charged for essential care. There are also a number of deep, practical contradictions in this arrangement that make it particularly shocking, including a survey that found that charges made by cash-strapped local authorities—made because they could charge them—had forced people to stop the care they needed or made them face difficult choices for financial reasons, with the results showing an increased reliance on family members and high levels of deteriorating mental health, including suicidal thoughts.
Amendment 144A from the noble Lord, Lord Lansley, and as outlined by the noble Baroness, Lady Wheeler, supports the principles behind both Amendments 127 and 141, which would remove Clause 155. It proposes that all provisions on the care cap are brought into force by 1 April 2023 by regulation under the Care Act, resulting in no delay to its implementation. We support that too.
The Deputy Speaker (Baroness Garden of Frognal) (LD)
My Lords, the noble Baroness, Lady Campbell of Surbiton, is also taking part remotely. I invite the noble Baroness to speak.
Baroness Campbell of Surbiton (CB) [V]
My Lords, I support Amendments 127 and 141 in the name of the noble Baroness, Lady Wheeler; Amendment 143 in the name of my noble friend Lady Bull; and Amendments 144A and 182. Sadly, my noble friend Lady Bull is unwell, so I will speak to Amendment 143 and do my best to encapsulate her reasons, as well as mine, for returning to it on Report. I shall not move it later when it is called.
Unfortunately, at this hour, my voice is fading because I have had to use it a great deal today, so I shall use my speech facilitator, as allowed by the House, more than I would usually.
Lord Warner (CB)
My Lords, I rise to speak to Amendments 141, 143 and 144A—to all of which I have added my name. In the unavoidable absence of the noble Lord, Lord Lansley, through Covid, I shall be moving Amendment 144A with his agreement. I also declare my interest as one of the three members of the Dilnot commission and, unsurprisingly, I shall be supporting the findings of the commission’s report in speaking to these amendments.
The coalition Government passed the Care Act 2014 to enable the Dilnot cap to be implemented but, since then, there has been no action to do this until now, with Clause 155 of this Bill. Unfortunately, that clause has major unfairnesses and shortcomings, as has been pointed out by all three speakers—the noble Baronesses, Lady Wheeler, Lady Brinton and Lady Campbell—so I am not going to repeat what they have said. This is a deficient clause, and no reasonable person would see it as a fair and reasonable implementation of the Dilnot proposals on the cap. As far as I am concerned, Clause 155 is an unsatisfactory attempt at implementing that commission’s report and should be deleted from the Bill.
I turn to Amendment 144A in the name of the noble Lord, Lord Lansley. The purpose of this amendment is very simple: to require the Government to bring Sections 15 and 16 of the Care Act 2014 into force by April 2023. That is the time when one might expect the Government to bring the cap into force if Clause 155 remained in the Bill, so I do not think we are doing anything very adventurous by putting that date in the amendment. However, the removal of Clause 155 without any replacement would create uncertainty as to whether Sections 15 and 16 of the Care Act would be activated. If, as I and the noble Lord, Lord Lansley, hope, Clause 155 is deleted, Amendment 144A would ensure that the cap was brought into force by April 2023, but also on the basis that the cap was calculated to include the costs of all eligible needs met by the responsible local authority. In short, Amendment 144A would ensure a date for the Dilnot report on fairer care funding to finally start being implemented.
I acknowledge that if the noble Lord, Lord Lansley, were here to move this amendment, he might be more trusting than I am and willing to accept assurances from the Minister that Sections 15 and 16 would be activated by April 2023. I am afraid that someone who wrote and contributed to a report over a decade ago—which has been subject to prevarication ever since then—is rather less trusting, and I think it is absolutely essential, if we want to implement the Dilnot recommendations, that we should not offer that comfort of assurances to the Minister.
I turn briefly to Amendment 143, spoken to so well by the noble Baroness, Lady Campbell, in the absence of the noble Baroness, Lady Bull—another Covid casualty. The Government have made—if I may put it this way—a total hash of the Dilnot recommendations on page 24 of our report. These made it absolutely clear that anyone born with an eligible care need—or who developed an eligible care need before the age of 40—should have a zero cap. We set out the evidence and the arguments for this recommendation extremely clearly. The Government have chosen to ignore our clarity and have muddled up—for charging purposes—the income and capital circumstances of two very different groups of people: older adults and disabled working-age adults. As the noble Baroness, Lady Campbell, has shown, this is very unfair to working-age disabled people. I suggest to the Minister that the Government need to remember the title of our report was Fairer Care Funding—that is what it said on the tin, and that is what we expected to be implemented. The extra cost of sticking to our recommendations on working-age disabled people is—at the most—about the cost of 10,000 people by about 2030. That, if I may put it crudely, would be about the cost of a few rather dodgy PPE contracts.
These three amendments—141, 143 and 144A—work together well as a package. They remove dubious government amendments; they restore the Dilnot proposals for younger disabled people at a modest cost; and they start the implementation of the Dilnot cap in April 2023 on the basis that we recommended.
Lord Lipsey (Lab)
My Lords, it gives me great pleasure to follow the noble Lord who sat on the Dilnot committee. I think it was a first-class report, which, at the time, I was prepared to endorse as the least bad solution to the social care problem. But I have changed my mind since then. Why? Because the facts have changed. I set out some of those facts when I spoke in Committee, and they include the large rise in house prices that makes many people much more able to pay for care for themselves at the moment. The facts have changed again in the last couple of weeks because of this disgusting war that has broken out in Ukraine. As a consequence, we are going to have to spend more on defence, as the Germans have already recognised. Therefore, public budgets are going to have to be squeezed in other areas. I regret those squeezes, but it is President Putin’s fault, not ours.
Baroness Altmann (Con)
My Lords, I rise briefly to support Amendment 141, which I would have added my name to had my noble friend Lord Lansley not done so himself. As he is not here, from these Benches I add my support for the deletion of Clause 155. As an adviser to the Dilnot commission at the time—around 2011—I believe it runs directly counter to the aims of the cap, which had such strong cross-party support. I am sorry to say to my noble friend that I struggle to understand the Government’s concept of fairness in this regard when Clause 155 imposes much greater losses of wealth on the least well off and forces longer waits on them while those with significantly more assets lose only a small proportion of their wealth before state funding starts.
I support Amendment 141. I hope my noble friend will either be able to accept it or that the other place will have a chance to consider this unfair change, which was added at the last moment without giving Members there an opportunity to do so.
Baroness Greengross (CB)
My Lords, I am in favour of deleting Clause 155, as proposed by the noble Baronesses, Lady Wheeler, Lady Brinton and Lady Campbell. I will also speak to my Amendment 182, which would lower the social care cap to £51,000 from 2023. I will not be putting my Amendment 182 to a Division but I feel that it is important to bring it back on Report as this would be the level of the cap recommended by the 2011 Dilnot report, then adjusted for care cost inflation. I understand that the Government’s cap of £86,000 is based on the increase in property values since the Dilnot report was published—can the Minister please confirm that? If so, was this for properties throughout the country and does it factor in that, while property values in London have increased significantly over the last decade, in many parts of the country they simply have not? Can the Minister please explain how the Government came up with that figure?
Clause 155 is a break with what is currently in the Care Act, which would mean that means-tested support does not count for an individual’s progress towards the social care cost cap. According to analysis from the Institute for Fiscal Studies, with Clause 155, someone with that care need who has an annual income of £16,000 and assets of £100,000 would take almost six and a half years to reach the cap, whereas without Clause 155 the cap would be reached after three to four years. I declare my interest as set out in the register as co-chair of the All-Party Parliamentary Group on Dementia. For many people with long-lasting forms of dementia who require many years of care, Clause 155 will disadvantage them considerably.
I will be voting to delete Clause 155 and for the Government to return to the sound and sensible recommendations from the 2011 Dilnot report, with numbers adjusted for inflation, and implement them.
Baroness Walmsley (LD)
My Lords, these Benches support Amendments 141, 143 and 144A. I congratulate all who have spoken and laid out the very important issues that we are talking about in this group. I will add one more point, which is that the fairly small savings that the Government might make under these measures, unless they are amended, would be paid for by the most vulnerable people. That is unworthy of a Government who say that their ambition is to level up across the country.
Lord Kamall (Con)
I thank all noble Lords who have spoken in this debate and I am sorry I was unable to engage as much on this issue as I was on others. I will speak first to government Amendments 128 to 140 and 187. We believe that these amendments are crucial to make the adult social care charging reforms work as intended. If they do not stand as part of the Bill, it will lead to unfairness between those whose needs are met by a local authority and those who self-fund their care. The intention of these amendments is to correct this.
Without these amendments, some costs which individuals have incurred will not meter towards the cap when they should do so. Currently, individuals eligible for funded support who have not had a timely needs assessment may incur costs in getting their needs met in the interim. This applies whatever system of charging we come up with. The costs incurred during periods of delay currently do not count towards the cap, and my amendments fix this. We came across this issue when we were looking back at previous Bills and unintended consequences.
I have also tabled an amendment to clarify the circumstances in which an independent personal budget must be provided by a local authority and what information those documents must include. We want these to be forward-looking documents, personal to the care user. To support this and to simplify the metering process, we are also removing the link between these documents and what meters.
Finally, as set out in the recent impact assessment, our charging reform implementation plan includes a small number of trailblazer local authorities that will implement charging reform earlier than others. I have tabled Amendment 187 to allow these trailblazer local authorities to begin implementing the reforms before others. For these reasons, I ask that noble Lords support my amendments.
On the other amendments, a number of noble Lords have asked questions and I will try to answer them. We believe that the £86,000 level set for the cap balances people’s personal responsibility for planning for their later years with a need to put in place a system to ensure that nobody faces unpredictable costs. Removing Clause 155 or simply omitting Clause 155(2) would have the effect of removing the ability to meter towards the cap by individual contribution only. Instead, progress towards the cap would be based on both individual and local authority contributions to care costs. This policy is unfair. However, it is also considered unaffordable.
Removing these clauses would increase the cost of the overall reforms by about £900 million per year, if you keep all other parameters the same—although. of course, other noble Lords have asked for other amendments, so those parameters would not necessarily be the same. This would require raising the cap, reducing means-tested support or expecting people to make contributions towards their daily living costs that are unaffordable from most people’s income. None of these is preferable to the approach that the Government are proposing to take.
We argue that the Government’s reform package is affordable and deliverable. We have indeed seen many reports over the years, and I understand that the noble Lord, Lord Warner, was on the Dilnot commission, but we have to ask ourselves why these were not implemented. Although we may see many merits in a number of a different systems, and we all have our own biases or views on what the system should—
Lord Warner (CB)
May I give the Minister the answer to why they were not implemented? Successive Conservative Chancellors declined to implement them.
Lord Kamall (Con)
The noble Lord may say that, but I have been advised that they were considered unaffordable.
On Amendment 142, I thank the noble Lord, Lord Lipsey, for his engagement with me on his very interesting idea. I agree with him; I regret the fact that the private sector has not come forward sufficiently to offer products. I agree that that could have solved a number of problems, but I should clarify that the taper rate is not linked to income, as suggested. It is what people are considered to be able to afford to pay towards the costs of their care, based on their capital.
The amendment would make the means-testing regime significantly more generous than in the Government’s proposal, and I can see why that is attractive. However, once again, to answer the questions from many noble Lords, that would be considered to make charging reform unaffordable. We would be unable to afford to invest in wider improvements in the social care system that we are all keen to see. The Government’s plans balance providing protection and predictability when it comes to care costs with how much additional burden should be placed on the taxpayer. We believe that our reform is responsible, deliverable and affordable. I repeat that although it may not be optimal, our proposal is better than the existing system, where there is no cap.
Amendment 143 suggests a zero cap, which would equate to free personal care for those identified as having eligible care needs before the age of 40. We considered this issue carefully and, as acknowledged by the noble Baroness, Lady Campbell of Surbiton, we looked at this system and engaged with her, but, as she rightly said, the issue was the cliff edge. One may disagree about the cliff edge, and there are other cliff edges, but we felt that one of this magnitude was unfair. We also believe that younger adults will benefit from the announced charging reforms. From April 2022, the social care allowances will be uprated in line with inflation to allow everyone to keep more of their income.
The noble Baroness, Lady Campbell, asked about data on the under-65s. We need to improve the data that we hold on under-65s who are drawing on care and support so that we better understand their needs and how reforms impact them. The Minister for Care and the Minister for Disabled People this week met a large number of organisations representing working-age disabled adults to discuss this and other issues. This group will continue to meet as our reform programme progresses. I hope that that offers some reassurance to the noble Baroness.
Amendment 144A would require the full rollout of the government reforms to be commenced before 1 April 2023. One of the reasons we looked at October is that we recognise that implementing reforms of this magnitude —noble Lords will have heard me say previously that we have grasped the nettle—requires a significant lead-in time to enable local authorities to prepare. We have invested £3.6 billion in preparation for these reforms, and we cannot do it overnight. In addition, we want to have the flexibility to work with some of those trailblazer authorities to make sure that we really get the best of the discovery process to ensure that it works and that we can spot any unintended consequences.
We do not believe that there is sufficient time for local authorities to prepare for full national rollout by April 2023. It is vital that we take the time to work with the sector and local authorities on the process of implementation if we are going to get this right. To enable a successful rollout, we want to see how the trailblazers will work before we go for the full national rollout by 2023. Trialling and engagement with the sector would have to happen anyway, whether Clause 155 stood or not. As I have said, if Clause 155 does not stand, we would not be able to afford to implement charging reform.
Baroness Wheeler (Lab)
My Lords, I thank the Minister for his response, and all noble Lords who have spoken. Between them, the supporters of my amendment seeking to delete Clause 155 have all mounted the overwhelming case for its deletion, so in view of the time I will say just a few words.
The Government insist they have a social care strategy; they do not. They have the cap, hastily tacked on to an NHS Bill—a Bill that does not deal with integration across health and social care—and two subsequent White Papers on integration which set out how social care should look in the future, but with no plan, road map, timescale or massive funding injection out of the health and care levy to show how we will get there.
On the question of why Dilnot was not implemented, I absolutely endorse what the noble Lord, Lord Warner, said. As somebody who was around when the Care Act was carried, I remember that £6 billion was allocated to implement it, so I often wonder what happened to that.
The Minister still has not provided convincing evidence that nobody will be worse off under the Government’s proposals. I asked him in Committee to explain his comments that 90,000 people would be better off under the new eligibility criteria, and have since asked the Bill team, but I have still not received a response to my request to show how this figure was arrived at and, importantly, how it breaks down between older people and younger, working-age disabled adults.
The deletion of Clause 155 would enable the care cap to be reintroduced under the Care Act, under the Dilnot principles of fairness and equity across all those needing care. As I said earlier, I will withdraw Amendment 127; I will move Amendment 141 in its place, on which I wish to test the opinion of the House.
Lord Kamall
“(a) in relation to eligible needs met by a local authority, to any amount the local authority charged the adult under section 14(1)(a) or 48(5) for meeting those needs;(b) in relation to eligible needs met by a person other than a local authority, to what the cost of meeting those eligible needs would have been to the local authority that was the responsible local authority when the needs were met.”Member’s explanatory statement
This amendment de-couples the costs that accrue towards the care cap from the costs specified in the budgets and simplifies the drafting for determining those costs that accrue.
Member’s explanatory statement
This amendment means that, where there is a delay in carrying out a needs assessment or a delay in preparing a budget, costs incurred by an adult after the local authority was required to carry out a needs assessment will accrue towards the care cap.
Member’s explanatory statement
This amendment clarifies that a local authority is only required to prepare an independent personal budget when there has been an eligibility determination.
“(b) the adult has at any time either—(i) asked a local authority that was, at that time, the responsible local authority, to prepare an independent personal budget, or(ii) had needs met by a local authority as mentioned in section 24(1).”Member’s explanatory statement
This amendment means that the responsible local authority will automatically be required to prepare an independent personal budget where an adult with eligible needs has a personal budget and then no longer has any needs met by a local authority.
“(a) the current cost to the local authority of meeting those needs,(b) how much of that cost the adult will be required to pay under section 14(1)(a), and(c) the balance, if any, of the cost referred to in paragraph (a).”Member’s explanatory statement
This amendment means that the personal budget will specify the cost the local authority is incurring in meeting needs, the cost the local authority is charging the adult under section 14(1)(a) for meeting those needs and the balance of the two costs.
“(a) the current cost to the local authority of meeting those eligible needs,(b) how much of that cost the adult will be required to pay under section 14(1)(a), and”Member’s explanatory statement
This amendment means that the personal budget will specify the cost the local authority is incurring in meeting eligible needs and the cost the local authority is charging the adult under section 14(1)(a) for meeting those eligible needs.
Member’s explanatory statement
This amendment clarifies that the personal budget is only required to specify costs in respect of eligible needs which are not being met by any local authority, if a local authority is meeting some of the adult’s needs.
“(a) what the current cost would be to the responsible local authority of meeting those eligible needs, and”Member’s explanatory statement
This amendment means that, in relation to eligible needs that are not being met by a local authority, the personal budget must specify what it would currently cost the responsible local authority to meet those needs.
Member’s explanatory statement
This amendment leaves out language that is no longer needed in light of the amendment to page 125, lines 13 to 18 and the amendment to page 125, lines 21 to 24 that both appear in the Minister’s name.
Member’s explanatory statement
This amendment means that, in relation to eligible needs that are not being met by a local authority, the independent personal budget must specify what it would currently cost the responsible local authority to meet those needs.
Member’s explanatory statement
This amendment clarifies that the independent personal budget does not need to specify costs in respect of eligible needs which are not being met by any local authority if a local authority is meeting some of the adult’s needs (those costs will be in the adult’s personal budget).
Member’s explanatory statement
This amendment leaves out language that is no longer needed in light of the amendment to page 125, line 41 that appears in the Minister’s name.
“(7) In section 31 (adults with capacity to request direct payments), in subsection (1), for paragraph (a) substitute—“(a) a personal budget for an adult specifies an amount under section 26(1)(c) in respect of any needs, and”.(8) In section 32 (adults without capacity to request direct payments), in subsection (1), for paragraph (a) substitute—“(a) a personal budget for an adult specifies an amount under section 26(1)(c) in respect of any needs, and”.”Member’s explanatory statement
This amendment is consequential on the amendment to page 125, lines 13 to 18 that appears in the Minister’s name.
Baroness Wheeler
Member’s explanatory statement
This amendment would remove Clause 155 (Cap on care costs for charging purposes) from the Bill.
The Deputy Speaker (Baroness Henig) (Lab)
My Lords, the noble Baroness, Lady Campbell of Surbiton, may be moving the next amendment on behalf of the noble Baroness, Lady Bull. The noble Baroness, Lady Campbell, is taking part remotely and I invite her to say whether she wishes to move the amendment.
Amendment 143
Baroness Bull
“Social care cap for younger adults
In section 15 of the Care Act 2014 (cap on care costs), after subsection (4) insert—“(4A) The Secretary of State must ensure that regulations made under subsection (4) specify a zero amount for adults—(a) who are under the age of 40 when they first receive care and support to meet their eligible needs, or(b) who have eligible needs which first required care and support before they reached the age of 40.’’”Member’s explanatory statement
This new Clause would ensure that adults entering the care system under the age of 40, or who were under 40 when they first entered it, would have their care costs capped at zero, in line with the Dilnot report recommendation.
Baroness Campbell of Surbiton (CB) [V]
Although I do not accept the Government’s arguments with respect to the effect that these proposals will have on younger disabled people, and do not accept the cliff edge reason either, I will not be taking this to a vote. I hope we have learned something here tonight.
Lord Warner
“Commencement of sections 15 and 16 of the Care Act 2014
The Secretary of State must make regulations under section 127(1) of the Care Act 2014 (commencement) to ensure that all provisions under sections 15 and 16 of that Act have come into force before 1 April 2023.”
Lord Hunt of Kings Heath
“Complaints about care services
(1) The Care Quality Commission (CQC) must establish procedures for investigating complaints of conduct which breaches, or potentially breaches, the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (“the regulations”).(2) In establishing the procedures, CQC must take into account, by regular surveys, the views of—(a) appropriate representative bodies,(b) those representing users and their families, and(c) such other persons or groups of persons as it considers appropriate.(3) Nothing in this section affects the requirement for registered persons to comply with regulation 16 of the regulations.(4) Complaints under this section include those made to CQC about regulated care services by users, their relatives or advocates, staff, or other relevant persons. (5) A user of a service, their relative or advocate may make a complaint directly to CQC.(6) CQC may, after due consideration, redirect a complaint to the registered person where it is satisfied that the conduct complained of does not constitute a breach of the regulations.(7) CQC must—(a) regularly publish a written report which includes examples of breaches of the regulations, and(b) provide guidance to registered persons and others to illustrate how such complaints can be resolved to the satisfaction of service users, their relatives or advocates, staff or another relevant person.(8) CQC must regularly review the procedures that it has established under this section.(9) Procedures established under this section must be made available by the registered person to any person who receives services, or to their relative or advocate.(10) CQC must publish information about procedures established under this section and take appropriate steps to make the procedures available to any person or group who may require such information.”Member’s explanatory statement
The amendment requires the Care Quality Commission to establish procedures for investigating complaints of conduct which breaches, or potentially breaches, the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014.
Lord Hunt of Kings Heath (Lab)
My Lords, there is a series of amendments in this group. My amendment does not really relate to the others in the group, but it is about an important issue.
In Committee, I raised the problem that a number of members of the public and the Relatives & Residents Association have brought to my attention: in a minority of care homes, if residents or relatives complain, the homes take retaliatory action in the form of making visits even more restrictive than they currently are and, in some cases, even evict, or threaten to evict, the person on whose behalf the complaint has been made. As I said, this is in a minority of homes— over the past few years I have been impressed by how many homes have continued to provide high-quality care in very difficult circumstances. None the less, this is an important issue.
In 2019, the Relatives & Residents Association was coming across at least one case a week of such intimidatory behaviour. We discussed this in Committee. The Minister said that she did not really think that the department had received much evidence of this, that in any case residents and their relatives and friends should complain to the home in the first instance, and that the Care Quality Commission would also pick up concerns.
This is a very confusing picture. If you go to the CQC’s website, you will see that it states:
“we do not settle individual complaints ourselves, but we still want you to tell us about your experiences of care.”
To most people, that is pretty confusing. If you are worried that a home is going to be intimidatory in its response to legitimate complaints raised, you are hardly likely to have confidence in its complaints system.
Up until about 2008, the CQC did take individual complaints but, due to a funding cut, it stopped doing so, even though, in Scotland, the equivalent body investigates specific complaints, and the predecessors of CQC investigated complaints. We know that there is huge pressure in care homes. We also know that some care homes are continuing extremely restrictive practices around relatives and friends being able to visit. This has become quite a serious problem in which, while they may not be in total lockdown, they come near to it, clearly more for the convenience of the home than for a public health reason. My amendment simply asks the CQC to go back to receiving and dealing with individual complaints in these cases. I hope that the Minister will perhaps be sympathetic to this. I beg to move.
The Deputy Speaker (Baroness Henig) (Lab)
My Lords, the noble Baroness, Lady Brinton, is taking part remotely; I invite her to speak.
Baroness Brinton (LD) [V]
My Lords, the noble Lord, Lord Hunt, introduced his Amendment 144B on complaints about care services very well. He is absolutely right: this is a muddle. Are people to go to the CQC or to a particular home when they wish to make a complaint? Any complaints system where the person making the complaint feels in a less strong position than the organisation to which they are complaining, or indeed—sometimes they might even put this strongly—which is wielding power over them is a complaints system that will not work. I hope that the Minister will understand this, and will respond and ensure, first, that there is a clear and understood system, and, secondly, that if some funding needs to be restored to the CQC to take us back to where we were, that will happen.
I want to speak particularly to two of the issues covered in this wide-ranging group of amendments: the licensing of cosmetic procedures and medical practitioners’ financial and non-pecuniary interests. I also have sympathy for the other two, on registration of social workers and hospital rehabilitation accommodation.
The amendments laid by the Minister, beginning with 153A, on the licensing of cosmetic procedures by local authorities and, indeed, Amendment 169 in the name of the noble Baroness, Lady Finlay, on cosmetic procedures, which I have signed, set out models for registration for those who work using devices that breach the skin and who are not covered by medical registration or, currently, by any effective regulation. I know that considerable discussions have taken place between Committee and Report, and it is welcome that the Government have felt that they can now lay their own amendments, signed by the noble Baroness, Lady Merron, and the noble Lord, Lord Lansley. I look forward to hearing the comments of the noble Baroness, Lady Finlay, on those amendments.
Amendment 184ZBB in the name of the noble Baroness, Lady Cumberlege, which I have signed, brings us back to the debate on medical practitioners’ financial and non-pecuniary interests. Our debate in Committee highlighted the problem that the financial and non-pecuniary interests arrangements do not match those that many others in the public sector have to make, where the registration body holds the information. The GMC has said once again that it does not particularly like the style of this amendment and would prefer the records to be held directly by the employer. However, I believe the argument that the registration body, which also has the power to take action, should be the place where these are kept.
I hope that, regardless of whether a vote is called, the Minister will take this away and look at it in more detail. We need an open, transparent and clear system of registration of financial and non-pecuniary interests.
The Deputy Speaker (Baroness Henig) (Lab)
My Lords, the noble Baroness, Lady Masham of Ilton, is taking part remotely; I invite her to speak.
Baroness Masham of Ilton (CB) [V]
My Lords, I will speak to Amendments 169 and 181. I have my name down for Amendment 169 on the licencing of cosmetic procedures. During the passage of this Bill, I have had my eyes opened to just how enormous this industry is and how a great many people are putting themselves at huge risk. I have heard of some disturbing cases in which procedures with collagen have gone wrong. At a conference about plastic surgery and cosmetic procedures, one-third of the attendees were from the plastic surgery field and two-thirds from cosmetic procedures, which shows how popular this is becoming.
All Members of your Lordships’ House taking part in these amendments share the desire that these procedures should be registered and safe. I am very pleased that the noble Lord, Lord Kamall, has accepted that this matter needs addressing and making safe. I thank him and his team for the hard work that they must have gone through in producing these amendments.
Amendment 181 is a very practical and important amendment, which I could not resist supporting and speaking to. It would reduce bed-blocking—a most unfortunate problem for a busy hospital that needs all its acute beds for ill patients, and frustrating for patients who still need rehabilitation but not in acute beds. These patients cannot go home because their accommodation is not suitable for their needs; for example, they might have to use a wheelchair and they need time to get organised. One of the problems is the time that it takes to get necessary adaptations completed. Housing authorities and social services need to work together with health authorities. If suitable rehabilitation accommodation is available, it can also be used for patients who need specialised treatment that is a long distance from their home. St James’s hospital in Leeds has a hotel for such patients, and incorporated into the hospital is a Marks & Spencer food shop; this is a very valuable service. I hope that the Minister will agree that these provisions should be available throughout the country.
Baroness Finlay of Llandaff (CB)
My Lords, I am most grateful to the Government for tabling Amendments 153A and 157A; I will not be moving my related Amendment 169. I should declare that I am married to an academic dermatologist, and that I am vice-president of the Chartered Institute for Environmental Health.
I am very grateful to the officials with whom I have had many discussions over the issue of cosmetic procedures. These government amendments are a welcome step in the right direction, by ensuring that individuals who carry out cosmetic procedures such as Botox fillers, threads under the skin and so on will have to meet consistent safety standards. Anything that breaches the barrier function of the skin—going through the live layer of cells of the epidermis—can cause inflammation, introduce infection and cause scarring and other reactions. The government amendments are most welcome because they are broad-reaching and tackle the real problem of people doing things to other people with no proper training and in premises that are not even properly inspected and licensed.
Perhaps I could just ask the Government two questions on this. First, when we had discussions we were considering the use of the term “energy-based device” to cover all the different modalities that can be used to get different types of radiation, whether as heat or whatever, through that layer—the barrier of the epidermis. That phrase would have captured such things in future regulations. Can the Minister assure me that subsection (2)(e) of the proposed new clause will also cover forms of energy not in the wording of the amendment, such as radio frequency and ultrasound devices, which are currently in use on the high street for cosmetic skin-tightening purposes? The idea is, of course, that they produce a small amount of scarring and tighten the skin, but if that goes wrong then you have a problem.
Secondly, can the Government confirm that, in order to obtain a licence, practitioners will be required to meet the agreed standards for training and education and that, in order to maintain their licence, they will be required to undergo appraisal and report adverse events so that such events can be collated and appropriately followed up on?
Baroness Cumberlege (Con)
My Lords, I thank the noble Baronesses, Lady Brinton and Lady Finlay, for supporting Amendment 184ZA, which I have tabled. I think the noble Baroness, Lady Neuberger, is going to speak—yes, she is—and I look forward to that. I very much hope that other noble Lords will want to support this amendment, too. They would be in very good company with the royal colleges and the remarkable past editor of the British Medical Journal, Professor Fiona Godlee, who has done a lot on this subject. We have also had contact with a host of doctors and some very rewarding conversations with them. Many feel it would actually be to their benefit to make this all transparent and accessible to the public.
I pay tribute to Simon Whale and Professor Sir Cyril Chantler, who have done sterling work on this amendment. I know that Sir Cyril is known to many in this House because he has so many qualities: of leadership, clinical management and research, and in lots of other fields. This is my one opportunity to pay tribute to him through the Bill.
I also thank my noble friend the Minister and his officials. They have given their precious time, working very hard with me and my colleagues throughout the Bill’s passage. I mention particularly the government amendments concerning the declaration of industry payments to doctors and others that my noble friend introduced in Committee, and which I thoroughly welcomed.
Turning to the amendment before us, I am delighted to say that together we have fashioned a form of words which reaches, I hope, common ground. Together with my team, we have constantly amended many amendments in discussing with officials what they thought was particularly important and what we thought was important. I think we have reached a happy place. My noble friend the Minister and his officials deserve praise and thanks for their tireless efforts and, unreservedly, I give those to them now.
In Committee, we debated an amendment on establishing a register of doctors’ interests. My noble friend made the point that this information should be collected locally by those who employ doctors, rather than nationally by the GMC. I understand what the noble Baroness, Lady Finlay, said about it making sense to have the GMC involved, but in the end we agreed that this information should be collected locally. The problem is that these declarations are often out of date or incomplete, and in some cases the information is not collected at all, so it is very difficult for patients and the public to find out where that information is—and now they will have to go to the employer of the doctor. Sometimes it is hard for them even to find out if it exists, so I understand the logic that has just been proposed by the noble Baroness, Lady Finlay, that the GMC should be the body that collects this information. However, we have had very strong pushback on this. So, in the end, we have agreed with my noble friend that this information should be collected locally and made available to patients and the public.
Amendment 184ZBB simply puts into law what should be happening already. It would require any organisation that employs, contracts with or commissions a medical practitioner to provide medical services, or provides practice rights—we put that in because we wanted to cover the private sector as well—to obtain from that doctor a declaration of his or her financial and nonpecuniary interests. This, as I have said, can be done locally and it will be done through the annual appraisal that trusts have to carry out with employees. I think the missing piece in this puzzle is the doctors’ regulator. This amendment requires the GMC to take reasonable steps to assure itself that doctors are providing this information locally: that is very important. Following discussions with the Minister’s officials, the amendment now also requires the CQC to assure itself that employers are collecting the information and publishing it. We think this is sensible and I am pleased that we are all agreed.
I hope this puts all of us—my noble friend, the GMC and those of us who have tabled this amendment and support it—on the same page. However, I would be very concerned if none of this was laid down in legislation. These requirements and responsibilities are clearly spelled out in law at present, and we see from the research that this leads to very patchy compliance. This is not acceptable to any of us. So, finally, this amendment is simple and clear and is aligned with the position of the Government and the GMC. It requires employers and doctors merely to do what they should already be doing, but are not in all cases. It places a light but important duty on the GMC and the CQC to assure themselves that doctors and employers are indeed doing what they should. This is in the interests of doctors. Indeed, Professor Carl Heneghan, in oral evidence to our review First Do No Harm, stated:
“I think it’s important that if I’m treating you, you know who’s paying me.”
We owe it to patients and the wider public to improve transparency and to ensure that nothing undermines trust in our medical professionals. I hope my noble friend the Minister will agree that this amendment does achieve this in a way that he can support and that it fulfils all our aims.
Baroness Neuberger (CB)
My Lords, I support the noble Baroness, Lady Cumberlege, in what she has just said, as well as my noble friend Lady Finlay and the noble Baroness, Lady Brinton. I pay tribute to the noble Baroness, Lady Cumberlege, for the extraordinary work she did on First Do No Harm, which led—gradually—to this amendment. I too pay tribute to Cyril Chantler, who I first knew when serving on the General Medical Council with him. I declare an interest as chair of University College London Hospitals NHS Foundation Trust and of Whittington Health NHS Trust. I am, as I just said, a former member of the General Medical Council, and I am somewhat surprised, I must say, that it has said yet again, including this afternoon by email, that it does not really support this.
Baroness Merron (Lab)
My Lords, this group of amendments concerns the licensing of non-surgical cosmetic procedures and other important considerations, such as hospital rehabilitation accommodation and the doctors’ register of interests. They all relate to the interests of patients.
I shall address particularly the issue of cosmetic procedures and I start by thanking the Minister and his Bill team for giving so much support, showing such interest and bringing this into being today. I know we all welcome it; it is much appreciated. I am glad to have taken part in the meetings and to have tabled an amendment in Committee relating to cosmetic regulation. The amendments before us today have been very much welcomed by medical associations, because we all know that lack of regulation has been a ballooning problem. For example, the Save Face organisation received more than 2,000 complaints of botched procedures in 2020 alone and the true number, as we know, is likely to be higher.
The other point to make is that this is a fast-moving industry and I am glad that these amendments will be able to keep pace with an ever-changing landscape. We have seen a significant rise in recent years in the number and type of non-surgical aesthetic procedures performed in the UK. Practitioners, both medically and non-medically trained, are performing procedures without even being able to evidence appropriate training and the required standards of oversight and supervision of procedures that can be described only as high- risk. When they go wrong—and we have all heard the stories of intense and lasting damage from untrained practitioners carrying out procedures in unlicensed premises—we all know that it will then fall to the NHS to pick up the pieces. This, today, is a meaningful step in protecting more people from rogue operators.
I close by thanking noble Lords for their contributions not only to this debate but to shaping the legislation. Once again, I thank the Minister and his team for all their efforts. I hope we will come to see a much safer set of non-surgical cosmetic procedures than we have at present.
Lord Mawson (CB)
My Lords, just before the Minister stands, I rise to support Amendment 184ZA in the name of the noble Baroness, Lady Cumberlege.
Over the last 28 years, it has been my privilege to work with a fantastic team of GPs in the East End of London who are now responsible for 43,000 patients. I know what great GPs and doctors are like. If I am honest, however, I have also had to deal with a number of dodgy doctors, which is a very difficult matter to deal with. One doctor undertook female circumcision in his practice, unbeknown to the health authority for quite a period of time. He ended up marrying his practice manager and, some years later, he murdered her. Another practice, when I dug under the carpet, had bought a cheap fridge from B&Q and, over a period of three years, kept 10,000 injections at the wrong temperature and injected 10,000 patients with dead, illegal injections. Another doctor, as we learned when we took over his list, had countless ghost patients. As a result, I started to discover what ghost patients are. It took our team two years to sort out the realities of who were and were not real patients.
For the sake of GPs and patients, we need to protect them in the way the noble Baroness is suggesting. Doctors are flawed human beings like the rest of us, and we need to protect them from themselves and from us. It is really important that these things are taken seriously. This amendment puts its finger on a very important matter.
Baroness Wyld (Con)
My Lords, this morning, I told my three daughters that they needed to be more assertive at school, but I have completely failed to intervene tonight. I will be very quick in paying tribute to the noble Baroness, Lady Merron, and my noble friend Lord Lansley, who is not here tonight, and in thanking the Government for the amendments on cosmetic interventions. I sponsored the Botulinum Toxin and Cosmetic Fillers (Children) Bill in this House, which assisted with the regulation of non-surgical interventions for children. At the time, we said that this was only the start and that there was a lot more to do. We acknowledged that others had done a lot of spade work, and I pay tribute to all those who have done yet more spade work. I want to put on record my appreciation to the Government for listening and reacting.
Baroness Greengross (CB)
I will be very brief because this is a slightly different subject. I shall speak to Amendment 181, which places a duty on the Secretary of State to ensure that each hospital has sufficient accommodation for patients who are rehabilitating and no longer require a hospital bed but still have needs. Further, as part of this duty, the Secretary of State must ensure that any spare land owned by the NHS is considered for this use.
In Scandinavia, patient accommodation of this nature has been part of the state health system since the late 1980s. Having patients stay in these facilities, which are designed to cater for people still needing some medical care, has delivered considerable savings to the public health system. The savings from these facilities is significant. In the previous group, much of our discussion—as always—was about the cost of our health and care system to the taxpayer, and to those who need care. This amendment, as well as delivering better rehabilitation and care for someone recovering from being in hospital, also delivers a significant saving. As I pointed out in Committee, NHS trusts are currently spending money putting up patients in hotels, with rooms costing as much as £275 a night. One London hospital has spent over £1 million on hotel rooms in the last three years. The cost of someone staying in a hospital bed for longer than they need is even greater than that. This is something that I would very much like to take up further with the Government.
Over the last few years, I have been working with a chartered architect who has identified various sites where this could happen throughout England. One is not terribly far from here. This is a real opportunity and I hope the Government will take it to include this as part of the Bill.
Lord Kamall (Con)
My Lords, I start by thanking noble Lords who have spoken in this debate. In the end, this turned out to be an eclectic mix of amendments. Given that, I hope I can get the right balance between giving noble Lords comprehensive enough responses, while bearing in mind the more basic need of a dinner break for some noble Lords who have been in this debate today. I will be as brief and as comprehensive as I can be.
I turn first to Amendment 144B. We should be clear that the CQC is not intended to be an investigative body for an individual seeking redress. Other statutory bodies already exist to investigate individual cases and complaints, including the NHS complaints system. If complainants remain unsatisfied, they can raise their complaint with the independent Parliamentary and Health Service Ombudsman. Where the risk is serious or life-threatening, the CQC can act on a single concern and take regulatory action. Similarly, complaints about adult social care services should be made first to providers. They can also be made to the local authority, if the local authority is commissioning the care. Thereafter, complaints can be made to the Local Government and Social Care Ombudsman. Providers must investigate all complaints thoroughly and take necessary action where failures have been identified. The CQC monitors health and social care providers’ complaints processes and can compel providers to provide a summary of complaints received and their responses. Failure to do so within 28 days is considered a breach of the regulation and could lead to prosecution of the provider.
On Amendment 147A, I hope to assure the noble Lord that work is already in place for a framework for assuring the quality of people working in social care. Registered managers are already assessed by the CQC, to confirm their fitness to be registered. Nurses are regulated by the Nursing and Midwifery Council and social workers by Social Work England. Any person delivering personal care must have a DBS check. If, in the future, it was decided that adult social care workers in England should be subject to statutory regulation, the power to do so already exists in Section 60 of the Health Act 1999.
I turn now to the amendments in my name. I start by thanking the noble Baroness, Lady Merron, for raising this issue with the House, and thank all those noble Lords, including the noble Baroness, Lady Finlay, who have raised concerns about the need for regulation of this ever-evolving industry. As I hope noble Lords will now acknowledge, the Government are committed to improving the safety of non-surgical cosmetic procedures by establishing a licensing system. This will support the introduction of consistent standards that individuals carrying out such cosmetic procedures will have to meet, as well as hygiene and safety standards for premises. The definitions in the amendment are intended to cover the broad range of cosmetic procedures which, if improperly performed, have the potential to cause serious injury and harm. The subsequent regulations will set out in detail the treatments to be covered by the licensing system, and the detailed conditions and training requirements individuals would have to meet. The purpose of this amendment is not to ban procedures or stifle innovation, but rather to ensure that consumers who choose to undergo a cosmetic procedure can be confident that the treatment they receive is safe and of a high standard. The Government will work with stakeholders, including noble Lords, to put in place a licensing regime that works for both consumers and providers, protecting those who choose to receive cosmetic procedures without placing unnecessary restrictions on legitimate businesses.
The noble Baroness, Lady Finlay, asked me a number of questions, so I will try to answer them. I begin with radiofrequency. Given the broad range of skin-tightening procedures, proposed new subsection (2)(e) provides scope to encompass a variety of treatments which involve a wide range of application techniques, including radiofrequency and ultrasound devices. The aim of the licensing scheme is to protect the public from the risk of harm. To achieve this, the regulations will specify the standards of training required. The proposed new clause will also allow regulations to make provisions about the duration, renewal, variation, suspension or revocation of licences.
The range of non-surgical cosmetic procedures available to consumers is vast. Therefore, drawing up the regulations will require detailed consultation with a range of stakeholders. This will include a number of partners, such as the cosmetics industry and local authorities. We will try to do this as quickly as possible, while ensuring that the list is as comprehensive as possible. We will try to get that balance. For these reasons, I hope I can ask noble Lords to support these amendments and I ask the noble Baroness to consider not moving her amendment.
Lord Hunt of Kings Heath (Lab)
My Lords, I am grateful to the Minister, who summarised a variety of amendments, none of which seemed to have much connection at all to each other. I should have declared my interest as a member of the GMC board but, of course, under the rules of the House, I am not allowed to comment on anything to do with the GMC.
On my Amendment 144B, all I would say is that the Minister is absolutely right that the CQC is not there to investigate complaints. The fact is that, if you are a relative of a resident and you are concerned about quality so you complain, you are then threatened that you will not be able to visit if you carry on doing it. You cannot go to the CQC, effectively, the ombudsman is far too remote and long-distance, and the provider does not have a satisfactory complaints system. That is the problem. We still have to find a solution. Having said that, I beg leave to withdraw my amendment.