Health and Social Care Bill

Baroness Cumberlege Excerpts

Wednesday 29th February 2012 Lords Chamber

[Baroness Williams of Crosby]

Let us hope so. I simply wanted to suggest that there is nothing about the status of illegal immigrants in this amendment. Of course I share the view, which is accepted, that people who need treatment—and later we will discuss the amendment on HIV—should have access to emergency care, for example. That has always been true. However, this amendment relates precisely to clinical commissioning groups and therefore attempts to set their responsibility in terms of normal residency in the United Kingdom—not nationality, but residency. That seems appropriate.

Amendment 94 tries to do its very best to ensure that this is an absolutely total requirement. Together, Amendments 75 and 94 relate responsibilities not just to the clinical commissioning groups but, crucially, to the national Commissioning Board itself. Ultimately, it will be for the national Commissioning Board to ensure that anybody who is “resident in England” will be covered by all the services available to a clinical commissioning group. The crucial point of principle is that we are not talking here, as we might in some other countries, about emergency care only as a last resort. We are talking about all the services that clinical commissioning groups provide, and we are indicating that that should cover all residents of England. So this is an important group of amendments.

I will not move on to talk about some of the other amendments in this group, which concern themselves with the structure of governing bodies or CCGs. I am sure that the noble Lord, Lord Hunt, or the noble Baroness, Lady Thornton, will address those issues. In some ways they are slightly different; it is rather surprising that they are in the same group, because they address very different issues.

Because time is always shorter than we need for discussions on the Bill, I will not say a great deal more about this. I think that the whole House will agree that it is right and appropriate that there should be an ultimate duty on the board to ensure that every clinical commissioning group makes available the services that it provides to those who are members of it for everyone who is resident in the area, and that the board ensures that that happens across the whole of the nation. I beg to move.

[Baroness Cumberlege]

My Lords, my two amendments have also been grouped with this one. In our debate on 13 December, I explained why I felt so strongly that the evidence from patients gained by the work of local healthwatch and HealthWatch England should inform local commissioning. I have since had two very helpful meetings with my noble friends Lord Howe and Lady Northover about local healthwatch and its role. I think that we are moving in the right direction, although there seem to be some outstanding concerns.

Among my serious concerns, and the reason why I brought this amendment back, is that I feel we are not making commissioning robust enough. The process must be founded on evidence. Local healthwatch offers independent local evidence gathered through the unique statutory function of enter and view. This is evidence straight from the experience of patients lying in wards or sitting in mental health units, as well as those who can fill in surveys. Surveys are useful but do not necessarily reflect the views of the most vulnerable, people who may not be able to fill them in due to frailty, language difficulties or other reasons.

The amendment also relates to the experience from HealthWatch England. If the local healthwatch has not done work on a particular provider but those in other areas have, that intelligence will be available to a CCG commissioner who is considering giving the contract to a new provider. It has been pointed out to me that Clause 182(6) already requires CCGs to have regard to those reports and recommendations, and that is very valuable. However, this means only that if local healthwatch produces relevant reports and recommendations, the CCG will have to have regard to them.

It could be that those reports and recommendations arrive at the wrong point in the commissioning cycle or do not arrive at all. Then the CCG will not have an opportunity to have due regard to them. They will be commissioning from providers without evidence from patients of their actual experience, which can come only from local healthwatch, with its responsibilities to enter and view. The amendment was laid to ensure that that could not happen. It was redrafted in response to my noble friend Lady Northover’s characterisation in Committee that if local healthwatch had an obligation to feed in such evidence, it would be too burdensome for a small organisation composed of volunteers. I am now suggesting that the responsibility should be with the CCG to take evidence from local healthwatch. It would be helpful if my noble friend could give assurances that CCGs will be guided to seek out from their local healthwatch evidence of the patient experience to inform their commissioning to the standard set out in new Clause 14Q.

We know that local healthwatch will have a seat on health and well-being boards, and that will ensure that the knowledge that local healthwatch has will influence commissioning. Again, I welcome the membership of a lay member. This will have an input into the strategic role of those boards, but how can it give them a say in commissioning when the health and well-being board does not actually commission health services? The board’s function is to explore opportunities to integrate services, and this is not the same as deciding whether the outcome of a good patient experience with provider A is better than with provider B. These decisions rest with the CCG under Clauses 140 to 145.

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[Lord Harris of Haringey]

My Lords, the intervention we have just heard raises a particular point about the position of illegal immigrants. There is a problem here. The number of people who are not here legally varies in different areas. There are concentrations in particular areas where the impact on local health services will be disproportionately high. A simple assumption that this could be lost in the wash does not work. That issue needs to be addressed.

This is a pot-pourri of amendments. Amendment 75 raises an extremely important point, which I hope that we can include in the Bill in some form. The very important Amendment 96, in the name of the noble Baroness, Lady Finlay, raises a completely different set of points.

I want to pick up on Amendments 95 and 111 in the name of the noble Baroness, Lady Cumberlege, and, in particular, the points she made about why she introduced the amendments in this form on the basis of conversations that she had with the government Front Bench and, in particular, the noble Baroness, Lady Northover. She had been led to believe that this would be too burdensome a task for local healthwatch organisations and that they would be too small to carry out the functions that she talked about.

[Baroness Cumberlege]

That was not in a private conversation; it came out in Committee and was open to everyone who attended that sitting.

[Lord Harris of Haringey]

That does not alter the point I was about to make, which is that, on the basis of those remarks, it is important to recognise in the Bill that that is the expectation on local healthwatch organisations. That reflects the growing concern of people outside that, despite the Government’s best intentions for how healthwatch will be organised, those organisations will not be anything like as effective as your Lordships would hope. We hear, for example, that there is widespread concern that the Government will remove the statutory nature of local healthwatch organisations—we will no doubt come to that in due course. We are told that the Government are indifferent to the consequence of not ring-fencing their finances. The concerns expressed by the noble Baroness, Lady Northover, in Committee, that those organisations may be too small and unable to cope with some of these loads are real. Therefore, it is all the more important not only that we provide a framework which enables healthwatch organisations to be effective but that we make clear in the rest of the legislation the importance of giving a clear statutory role to healthwatch organisations—in particular, in the vital role of commissioning local services.

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[Baroness Cumberlege]

My Lords, I have added my name to Amendments 121 to 125, 128 and 152. Noble Lords will be grateful to learn that I am only going to speak to two of those amendments. I want to reinforce the views that are being expressed, and I too pay tribute to the noble Lord, Lord Patel, on the way he has introduced all these amendments in such a comprehensive fashion—but not the government amendments, of course—and other noble Lords who have spoken. I am interested in the situation of the status and accountability of directors of public health. They are going to be very important people. They have access to elected members and senior officers in a new way in terms of recent history. I shall go into that history a little later in my remarks.

Their responsibility is to consult and advise the members and senior officers directly on a range of issues from emergency preparedness to concerns around access to local health services and many other activities, some of which have been mentioned. Acting as the lead officer for health in a local authority and being the champion of health across the whole of an authority’s business is very responsible work, along with the day-to-day management of the ring-fenced public health budget, which is going to be delegated to them by the chief executive. They are also statutory members of the health and well-being boards. It is their direct accountability to the chief executive of the local authority and head of the paid Civil Service that I am concerned about.

This is a good measure to be putting forward. I have read the new Public Health England’s Operating Model published by the Department of Health, particularly the fact-sheet covering the role of the director of public health. It states that,

“we would expect there to be direct accountability between the Director of Public Health and the local authority Chief Executive for the exercise of the local authority’s public health responsibilities and that they will have direct access to elected members”.

So far, so good, but I am not sure that that is actually happening. On this occasion I should like to declare an interest, as I often do, as the executive director of Cumberlege Connections, which is a training organisation. Recently we have been working in an area with a shadow CCG. I had a lot of correspondence after the workshop we ran, particularly from the director of public health. He said:

“It is apparent to me that, especially with organisational development plans in … Council, as in other councils, it is intended to reduce the number of ‘senior’ directors at the top table … in many such instances the director of public health will not be a member of the most senior management team nor report to the chief executive, but report to another director. This is not necessarily the likely model everywhere”.

Here he mentions another authority, and says that,

“the City Council chief executive is currently proposing that the DPH report directly to him and should be part of the most senior management team. It thus seems likely that there will be different models in different local authorities”.

We of course accept that in terms of localism, but there should be some basic principles that all local authorities adhere to, which I believe is the Government’s intention. He goes on to say:

“It is also apparent that a number of medically qualified consultants and directors of public health consider that the likely change of status in becoming a local government officer and being made to leave the NHS … is not what they want”.

I can think of at least three directors of public health who have already quit their jobs to return to general practice, to take up a medical director post in the PCT cluster—that seems to be a rather short-term career move, but there we go—or to take very early retirement. The Government need to put out some very strong messages about this and we need a monitoring system to ensure that their intentions are being carried out.

A point has been made about the termination of employment of directors of public health. In Committee, we discussed quite fully the position that used to be the medical officer of health—it certainly existed in my council when I was a local councillor. They would be a person of huge character and have great clout within the council and the whole geographical area. One of the reasons for their being able to be so robust and to say how they really saw the health situation within a geographical area was that the only person who could terminate their employment was the Secretary of State for Health—in those days, he was called the Minister for Health. That was a very good safeguard. I know that the Government are keen to involve the Secretary of State, but I would like to know to what degree, and that it is not just consultation via e-mail or a piece of paper but something that is real and is going to make a difference.

Let us suppose that in an area where childhood obesity is presenting a real problem a fast-food company wants to build a restaurant in close proximity to a school. That could clearly conflict with the director of public health’s work to reduce childhood obesity. Local authorities, which will have some strong local interests, will be tempted to influence, with local councillors, situations that may go against the professional view of the director of public health. I hope that my noble friend Lady Northover will be able to give me some comfort on these issues.

[Lord Rea]

My Lords, I apologise to the noble Lord, Lord Patel, for not being here when he spoke to his amendment and for wanting to ask the Minister a question that may already have been covered in the debate. It is on the relationship of directors of public health, who are going to be situated in local authorities, with the clinical commissioning groups, which are going to cover very much the same area—although we still do not know exactly what it is going to be. At the moment, directors of public health work closely with primary care trusts. I imagine they will be largely the same people who move to local authorities.

However, many of the activities of PCTs concern directors of public health. I am not sure that we have yet agreed on whether the local authority director of public health will have a seat on the board of the clinical commissioning groups in the same area. We still do not know whether they are going to be precisely contiguous and/or whether there will be several CCGs in one authority boundary. I would be grateful if the Minister could clarify the relationship between local authority directors of public health and the local CCGs.

Health and Social Care Bill

Baroness Cumberlege Excerpts

Wednesday 29th February 2012 Lords Chamber

Moved by

[Baroness Cumberlege]

141: Clause 51, page 83, line 26, at end insert “and its Healthwatch England committee”

[Baroness Cumberlege]

My Lords, this is a very simple and non-controversial amendment. Under Clause 51, the Secretary of State has a duty to keep under review the effectiveness of key bodies in the NHS. This is a crucial part of the Secretary of State’s responsibilities in ensuring that he or she can exercise ministerial accountability for the health service. As this is a new body, through the Secretary of State, we will want to ensure that it is to carry out its functions effectively. Healthwatch England has to undertake certain tasks—for example, making annual reports to be laid before Parliament. Other reports will be at its discretion. These activities will be easy to monitor, but it will be much more difficult to assess the quality and the appropriateness of the advice and information or other assistance it chooses to give.

In her letter to noble Lords on 21 December, my noble friend Lady Northover told us that she did not expect Healthwatch England to give the CQC, the NHS Commissioning Board or other bodies an easy ride. She went on to state:

“We fully expect HealthWatch England to raise what at times may be awkward, difficult questions with respect to health … and to be able to do this publicly”.

It is the Government's intention to create not a patsy organisation but one that will be a champion of health and, on occasions, a difficult and awkward companion, focused on improving the quality of care in both health and social services. If it does not, it will not fully represent the voice of patients and service users.

The Care Quality Commission is one body listed in the clause. As the Bill stands, HealthWatch England will be a committee of the CQC. However, as we have discussed in many debates on the Bill—and I believe that more are to come when we come to debate the amendment of the noble Lord, Lord Patel—there will be a need for it to remain operationally independent of the Care Quality Commission. Therefore, I suggest that a review of the Care Quality Commission may not be an appropriate way of fully scrutinising the role of HealthWatch England, and that such scrutiny should be included in its own right in the clause.

That is why I tabled an amendment to add HealthWatch England to the list of bodies that the Secretary of State must keep under review. It would make it clear that HealthWatch England is independently accountable for how effectively it goes about its work, and cannot be overshadowed by—or hide behind—the review of the role of the CQC. I hope that my noble friend will look kindly on this simple and not very earth-shattering amendment. I beg to move.

[Lord Harris of Haringey]

My Lords, I seek clarification on the amendment. I am sure that the noble Baroness, Lady Cumberlege, means well, but I note that the formulation she used was,

“and its Healthwatch England committee”.

I am sure that it would have been possible to draft the amendment so that it referred simply to HealthWatch England, which would have avoided raising the question that we will come to at a later stage of whether HealthWatch England should be part of the CQC or any other august structure of the NHS. It is an important technical point; I hope that the amendment does not pre-empt any later discussions.

The motivation that the noble Baroness ascribed to the amendment—to demonstrate that HealthWatch England is independently accountable—is extremely important. It is entirely proper that HealthWatch England should be seen to be accountable to the Secretary of State. Certainly it should not exercise that accountability through another body, particularly one which it might on occasions wish to criticise, or about which it might want to raise important concerns or say that it has not done what it might have. Therefore, to demonstrate that HealthWatch England is independently accountable is an important objective. My concern is that the amendment may solidify something that at the moment comes later in the Bill, but which I trust will not remain there by the time we have finished Report: namely, the requirement that HealthWatch England is simply a committee of the CQC.

There is also a question about how accountability will work with respect to the Secretary of State. I suspect that the quotation from the noble Baroness, Lady Northover, to which the noble Baroness, Lady Cumberlege, so approvingly referred, about how difficult and painful would be some of the discussions with HealthWatch England, will sometimes apply also to the Secretary of State. When I was for a number of years director of the Association of Community Health Councils, I collected personal denunciations that I had received from successive Secretaries of State. They came from both parties: indeed, the most vehement denunciation was from a Secretary of State from my own party, who perhaps expected more from me than the criticisms that I had raised.

The point is that this will not be an easy relationship. Even the accountability that is envisaged by the reference to “keeping under review” will, I suspect, lead to tensions. However, I do not believe that one can have a body of this nature that is not accountable in some way to the Secretary of State. I simply look forward to the maturity of future Secretaries of State, of whatever party, who will recognise that a body such as HealthWatch England, and local healthwatch organisations, are intended sometimes to be irritants.

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)]

My Lords, the Secretary of State has a duty to keep under review the effectiveness of the exercise of health service functions by certain national bodies. These bodies are listed at new Clause 247C, inserted by Clause 51 of the Bill.

As it is currently drafted, the Bill requires the Secretary of State to keep the effectiveness of the Care Quality Commission under review in so far as it is exercising functions in relation to the health service. However, it does not make explicit reference to the HealthWatch England committee. Yet, while HealthWatch England will be established as a committee of the Care Quality Commission, it will have its own statutory functions that it must exercise outside of the CQC’s other functions.

This is, therefore, a helpful and welcome amendment from my noble friends Lady Cumberlege and Lady Jolly. It helpfully clarifies the distinction, in terms of the Secretary of State’s accountability, between the exercise of functions by HealthWatch England and that of the CQC.

The amendment would add HealthWatch England to the list of bodies the Secretary of State must keep under review in respect of how effectively it exercises its functions in relation to the health service in England. Importantly, it would emphasise that HealthWatch England itself is responsible for exercising the statutory functions of HealthWatch England.

I have reflected on this and I will be supporting this amendment. I hope that other noble Lords will join me in doing so.

[Baroness Cumberlege]

My Lords, I think we are on a roll. I am very excited that we have had another amendment accepted. I very much thank my noble friend.

I appreciate some of the other points that have been made in this debate, but I think we will be debating them next week and perhaps we could hold our fire until then. Indeed, we have debated them previously and noble Lords will know that I am in favour of the present proposal in the Bill that HealthWatch England should be a committee of the CQC, and that is why I have chosen those particular words.

I am very grateful to my noble friend. I think this is the first time ever this has happened to me and I feel very pleased about it. Thank you.

Amendment 141 agreed.

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Moved by

[Baroness Cumberlege]

162: After Clause 59, insert the following new Clause—
“Public Health England
(1) Public Health England shall be an executive agency engaged in the exercise of public health functions accountable to the Secretary of State.
(2) Public Health England shall have a board chaired by an independent chair.
(3) The board shall have a majority of independent non-executive directors appointed by the Secretary of State.
(4) Any appointment of the independent chair or independent non-executive directors of Public Health England shall be made by the Secretary of State after consultation with the Faculty of Public Health and such other bodies as the Secretary of State considers appropriate.
(5) Public Health England shall be able to—
(a) undertake independent research;(b) bid for funding for research from research councils, charities and national and international funding agencies;(c) publish research findings;(d) tender for contracts, including research for work related to the functions of The Agency.”

[Baroness Cumberlege]

My Lords, this amendment refers to the setting up of an executive agency, Public Health England. I thank noble Lords who have put their names to this new clause. I sense that there is a spirit of generosity on the Front Bench tonight and I hope that it will not evaporate before we conclude this debate.

Nowhere in the Bill is Public Health England mentioned. The information comes to us not through the Bill or its schedules but through the White Paper Healthy Lives, Healthy People. It therefore has no legitimacy in primary legislation but we know that it is the intention of the Government. We are told that Public Health England will have a mission across the whole of public health: protecting the public from health threats; improving the healthy life expectancy and well-being of the population; and improving the health of the poorest, fastest. Public Health England is to be an advisory service with a civil servant as the chief executive—there is no mention of a board, just the chief executive. I find this extraordinary. As the noble Lord, Lord Warner, mentioned in Committee, this model flies in the face of the UK’s corporate governance code, which states:

“There should be a clear division of responsibilities at the head of the company between the running of the board and the executive responsibility for the running of the company’s business”.

If that is important for the corporate world, how much more important is it for safeguarding and improving the nation’s health?

What is being proposed has no division between the board and the executive, because there is no board. How strange. No, not strange—not right and not good enough. The role of the board is essentially to challenge the executive, to ask awkward questions, to be independent and to provide oversight, leadership and vision. This poor executive is an orphan; he or she is operating without a parent. In the model proposed, Public Health England is in the cosy embrace of the department, with a civil servant directly accountable to the Secretary of State. It is a model that produces a fire blanket to extinguish any spark of innovation or risk-taking.

Despite recent revelations I am a huge admirer of the Civil Service, but I think that your Lordships will agree that the people who enter it are not the world’s greatest entrepreneurs or risk-takers. If they were, we would be in trouble; that is not their role. That is recognised in the department’s operating model and endorsed by my noble friend Lady Northover in her letter to us dated 21 December, where we learn that there are to be three non-executive members—note, non-executive—not directors. Theirs is not to direct, unlike the new Commissioning Board, or indeed NICE or other government agencies, but to provide independent advice and support. Support is comforting and advice can be ignored; neither element has clout. However, these members are to be trusted, since one will chair the agency’s audit and risk committee.

I suggest to my noble friend that here is an opportunity to make the non-executive members directors and to appoint one as the independent chairman of the agency board. I hope that my noble friend will consider this and meet us, along with other Ministers, in order to discuss this further—there is an opportunity before Third Reading—so that we can see what progress we can make.

The essence of public health contains the basic principle of social justice. It is to ensure that people have access to the essentials for a healthy and satisfying life. To achieve that often involves conflict with Government. As the Secretary of State states in his foreword to the White Paper, we need,

“a radical shift in the way we tackle public health challenges. We have to be bold because so many of the lifestyle-driven health problems we see today are already at alarming levels. Britain is … the most obese nation in Europe. We have among the worst rates of sexually transmitted infections recorded, a relatively large population of problem drug users and rising levels of harm from alcohol”,

and he goes on. Nobody can challenge the Secretary State’s ambition or commitment to public health; it is quite remarkable. He goes on to say:

“The dilemma for government is this: it is simply not possible to promote healthier lifestyles through Whitehall diktat and nannying about the way people should live”.

He is 100 per cent right. That is why we need an independent board that can give unpopular messages straight to the public—a board that can check the veracity of research, unfettered by political pressures. It is a matter of trust—the public’s trust that they are not being manipulated by politicians of any colour; the trust of would-be research funders that their funds are safeguarded by an independent organisation; and trust that Public Health England has the well-being and safety of the public at heart.

BSE demonstrated the importance of scientific advice being seen to be impartial and free from political influence. The episode had a lasting impact on public trust. Independent experts and the medical professions are far more likely to be trusted, and their advice acted on, than any Government. A recent Ipsos MORI poll found that 93 per cent of the public felt that it was important to have an independent organisation providing advice on protecting people from new diseases and environmental hazards, and helping health services to prepare for and respond to emergencies. That is an incredibly high level of trust, especially when it is compared to trust in politicians. Only 14 per cent of the public think politicians tell the truth and I am sorry to say that only 17 per cent trust government Ministers. Our present Ministers on the Front Bench are excluded from this.

I am very grateful to noble Lords who have put their names to the amendment, which seeks to ensure that Public Health England, as an executive agency, is accountable to the Secretary of State. It will have a board with an independent chair and non-executive directors appointed by the Secretary of State after consultation with the Faculty of Public Health and such other bodies as he considers appropriate. It will undertake independent research and will be able to bid for funding from research councils, charities and national and international funding agencies. It will publish its findings and tender for contracts, including research contracts, for its related functions.

In Committee, the noble Lords, Lord Turnberg and Lord Patel, among others, expressed concern at the abolition of the Health Protection Agency. It is a much admired, non-departmental public body, which is soon to be abolished. The noble Lords expressed deep concern about the future funding of Public Health England and its ability to finance and carry out world-class research.

In her letter, my noble friend Lady Northover states that,

“the funding rules of intergovernmental organisations such as the European Union may limit the capacity of an Executive Agency to apply directly to them for research funds”.

The position is not clear and the Government are in the process of clarifying it. I ask my noble friend: has the situation been clarified? This is critical, as the HPA currently derives more than half its annual operating costs from external sources. It cannot attract and retain world-class researchers without the necessary resources and taxpayers will not be forgiving if more is demanded of them to fill the void. Therefore, I urge my noble friends and the Secretary of State to agree to the proposed new clause.

The Secretary of State has suggested to me that the Chief Medical Officer should chair the board but that is not a solution. The CMO already has two important jobs—those of being CMO and chairing the NIHR. Nor does that solve the problem of independence. Therefore, I hope my noble friends will reconsider and put forward an acceptable proposition for noble Lords to consider. I beg to move.

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Amendment 162B (to Amendment 162) not moved.

[Baroness Cumberlege]

My Lords, I thank all noble Lords who have taken part in the debate. I have not detected any demurring or a feeling that this was not a useful proposition to put forward; it is extremely important in the nation’s health and should be pursued further.

I thank the noble Lord, Lord Beecham, for his suggestion of a special health authority. I can understand why that is quite appealing but, on the other hand, I am pragmatic. He said that he wanted to take my amendment a step further; I fear that that would be a step too far. I was trying to build on the concession that we had already been given of having three non-executive members. It is a compromise but I believe that politics is about the art of the possible and I thought this suggestion might appeal to the Government.

I thank the noble Lords, Lord Patel, Lord Warner and Lord Turnberg, and the noble Baronesses, Lady Masham, Lady Jolly and Lady Finlay, for staying until this late hour.

[Lord Hunt of Kings Heath]

My Lords, I declare an interest as president of the Royal Society of Public Health, which I should have done in my earlier intervention. Can the noble Baroness—briefly but taking a little time—say whether she thinks from what she has heard from the Minister that she can now bring this issue back on Third Reading? I was not absolutely sure what the implications of the offer of talks meant in terms of our being able to debate it on Third Reading. I hope she takes it as an acceptance that the matter could come back on Third Reading.

[Baroness Cumberlege]

Perhaps I may address that in one minute’s time.

I appreciate the commitment of my noble friend Lady Northover to this matter. I understand that the Government are anxious to build on public health, as the noble Lord, Lord Patel, said, and that they take this area with all due seriousness.

[Baroness Northover]

I assure my noble friend that we do indeed take this area very seriously. We are looking forward to the discussions that will happen with the Secretary of State, my noble friend and others.

[Baroness Cumberlege]

I thank my noble friend for that. I must say I am not reassured. What noble Lords were saying about credibility in the public mind is very important. There is a perception, whether we like it or not, that departments within Government tend to be closed—not secretive perhaps, but not very accessible to the general public. They have an image, and that perception is a reality in the public mind. Although there is an intention that they should be open and transparent, I am not sure the public see it like that.

On the question of trust, it was interesting that the Office for National Statistics at one time lacked a degree of credibility. People did not trust the figures that were coming out and so the Government of the day reconstituted it with the UK Statistics Authority and set it up in very much the way that we are trying to set up Public Health England. There is another model there. The Food Standards Agency, NICE and a lot of the new organisations—indeed the NHS Commissioning Board—are all being set up with non-executives and independent chairs. It seems really strange that here we have one of the most important new ideas coming forward with the establishment of Public Health England, trying to do something totally different.

I have never taken an amendment to Third Reading, nor have I tested the opinion of the House against the wishes of the Government whom I support. However, I have to say that I feel so strongly about this issue. I very much welcome the talks that have been promised but that does not rule out the possibility—I hope it will not become a reality—of taking this to Third Reading. I hope, if we meet the Secretary of State and our House of Lords Ministers as has been promised, that we will come to some accommodation. This is just too important to be left as it is and we need to take it further. I very much want to reach agreement in the future. It would not be a good idea to test the opinion of the House right now, because we would have a very small vote, but I do want to give notice that I feel strongly and will bring it back at Third Reading. However, as we cannot reach an accommodation at this time, I beg leave to withdraw the amendment.

Amendment 162 withdrawn.

Health and Social Care Bill

Baroness Cumberlege Excerpts

Monday 27th February 2012 Lords Chamber

[Lord Marks of Henley-on-Thames]

My Lords, the reasons for Amendments 49A and 94A have been briefly—as she explained—and eloquently expressed by my noble friend Lady Williams of Crosby. One of the fundamental principles which the Government have assured us runs right through this Bill is that the NHS, as reformed by this legislation, will be committed to putting patients first. That is a critical matter for most of us in this House and the public at large. Why do I believe that this principle needs stating in the Bill? It is because the Bill introduces an entirely new structure for commissioning services, with commissioning by clinical commissioning groups within a framework established by the board to requirements and objectives set by the Secretary of State. However well understood here, this proposed structure is widely mistrusted outside this place.

I believe that a legislative statement that the commissioning process will put patients first is very important, both because it will enshrine in law this fundamental principle and because it will give the public an assurance that this is indeed the aim and purpose of the new commissioning process. My noble friend the Minister was kind enough to write to me in relation to this amendment to say that while he completely agrees that we must always put patients first, the Bill already provides for that and that there are “technical reasons” why our amendments should not be accepted.

The Minister is entirely right to point to the commitment to the comprehensive health service in the Bill and to the duties of the board and the clinical commissioning groups, now enshrined in the Bill, to promote the NHS constitution. I agree that those are powerful provisions. The NHS constitution is an important and extremely valuable document. It does indeed contain a commitment to putting patients first. At the back of the document in the expression of NHS values it says:

“Working together for patients. We put patients first in everything we do, by reaching out to staff, patients, carers, families, communities, and professionals outside the NHS. We put the needs of patients and communities before organisational boundaries”.

No one could fail to regard that expression of values as admirable, but it covers the whole sweep of NHS functions and is very general. The provisions that we seek by way of these two amendments are specific to the commissioning process. They will impose a binding obligation on the board and the CCGs of which they will at all times be aware. Moreover, our amendments are directed particularly at responding to what is probably the principal concern that members of the public have about these reforms: that the new commissioning process may lead to the marketisation of the NHS and that patients’ interests may be lost in that process. I do not believe that, but I do believe that these amendments would help make it crystal clear that this concern is unfounded.

The other problem we face is this: all the evidence, even that emanating from within the NHS, suggests that there is widespread unawareness of the very existence of the NHS constitution, let alone of the detail of its provisions. At the very least, therefore, given the emphasis that we are putting on the NHS constitution, it is crucial for the Government to make it quite clear that a great deal is expected of the board and of CCGs in the exercise of their respective duties under the Bill to promote awareness of the NHS constitution. In addition, the department should commit itself to an even wider, more effective campaign to publicise both the existence and the content of that constitution.

As to my noble friend’s second point, I regret that I do not understand the technical reasons which are said to require the rejection of these amendments. It is perfectly true that the NHS will always have to face resource constraints which may necessarily determine many, even most, commissioning decisions, but our amendments accept entirely that the paramountcy of patients is always subject to resource constraints. The board or a CCG must, so far as resources allow, exercise its functions on the basis that the interests of patients are paramount. Nor do our amendments, either expressly or impliedly, reduce the ability of commissioning groups or the board to prioritise the treatment of particular groups of patients where they think appropriate. They simply make the interests of patients in general paramount or, to use my noble friend the Minister’s phrase, make sure that commissioners put patients first.

The use of that word “paramount” in these amendments was modelled on the Children Act 1989 and the principle which runs like a golden thread through that legislation that the interests of children are paramount. That legislation has been widely applauded for embodying that principle, which firmly governs its interpretation and its implementation. It is precisely because it is embodied in the legislation itself that that Act is so well respected.

I still hope that my noble friend the Minister might reconsider whether he is not prepared to accept in this Bill the expression of the principle which he has so often expressed: that, throughout the commissioning process, the interests of patients must be paramount.

[Baroness Cumberlege]

My Lords, my Amendment 142 has been grouped with this amendment. I have brought it forward because I am anxious that when we talk about “patient and public involvement” we should be clear as to exactly what we mean by it. I am grateful to my noble friend Lady Jolly, who has also put her name to the amendment.

I am also anxious that we embed what I will call PPI for shortness—patient and public involvement throughout healthcare in all its forms. I say so in the knowledge that few people understand what this means. However, no one understands it better than my noble friend Lord Howe. He was a doughty fighter for community health councils, those much beloved organisations that knew how to campaign and influence the delivery of services. The culprit sits before me on the opposition Benches.

When I was chair of the Brighton Health Authority I had a huge respect for my CHC. Indeed, we even commissioned it to carry out surveys within the NHS. The effect was electric: no punches were pulled and the pressure on us was irresistible. It really knew what was being delivered, where the glitches were and where services were inadequate and needed improving, and it was not shy in making our shortcomings very public indeed. The CHCs had power and could refer proposed changes in services directly to the Secretary of State. The subsequent inheritors of their responsibilities—patients’ forums and LINks—have been systematically neutralised to ensure that they do not have the power to be really effective; that they are not inconvenient bedfellows; and that, despite the undoubted commitment of individuals, they can be largely ignored.

At last we have an opportunity to put matters right and to show that we have genuine credentials in making patient and public involvement a force for good, ensuring that patients and the public are the heart of their NHS. I was encouraged when in one of our earlier debates my noble friend, in answering an amendment, mentioned that the Secretary of State required four tests for the reconfiguration of services, one of which was robust PPI.

I had an interesting letter from my noble friend dated 2 February which again showed his clear commitment to effective PPI. However, the Bill does not seem to match up to that commitment. Different wording is used for PPI in different parts of the Bill—a court of law would surely assume different intentions—and the wording is weak in places. There are three types of involvement. The first is shared decision-making with individual patients on their care, to which the remainder of these amendments relate. The second is the HealthWatch England and local healthwatch structures through which patients and the public feed in their views—the way in which people start a conversation with the NHS. The third is PPI by the service in its decision-making—the way in which the service starts a conversation with local people and the subject of this amendment.

No business would attempt to plan its products or its services without doing market research. If it did, it would fail. We expect the same for the NHS. However, PPI is more important than just market research: it imports the values that we as a society expect from the NHS, making sure that it thinks as we think. PPI must be in the DNA of the service so that those who plan and run it feel as if they are planning and running it for their own families and looking after their own mothers in that hospital bed.

The PPI requirement was introduced in the Health and Social Care Act 2001 in response to the Bristol Royal Infirmary public inquiry. At Bristol, between 1991 and 1995,

“one-third of all the children who underwent open-heart surgery received less than adequate care”,

and up to 35 children under one died as a result. As Bristol concluded,

“vulnerable children were not a priority, either in Bristol or throughout the NHS”.

What an indictment. These are catastrophic failures and we must not forget them. Sadly, evidence shows that we have not yet succeeded in making the NHS as a whole think as we think. We need look no further than Mid Staffordshire.

Health and Social Care Bill

Baroness Cumberlege Excerpts

Monday 19th December 2011 Lords Chamber

[Baroness Donaghy]

My Lords, I support the amendments of the noble Baroness, Lady Finlay of Llandaff, which refer to allied health professionals, and I want to widen them to include the whole health team. We have been talking about structures, consultation, rights of representation, and roles and responsibility in the new structures, but we need to ensure that the service is delivered to the patients by the health team. Nowhere does the Bill appear to acknowledge the importance of the majority of staff in the health and care services: the invisible majority. I know from working in universities for 33 years that there are academics and students, and then all the rest who are often referred to in the negative as non-teaching staff. In the health service, there are doctors, sometimes nurses, and patients, while the rest are rarely referred to as people: they are back office or integrated services. I want to place on record the importance of the health team: the cleaners, caterers, maintenance staff, technicians, receptionists, secretaries, administrators, finance staff, and those involved with transport, as well the allied health professionals mentioned by the noble Baroness, Lady Finlay.

When I was a non-executive director of a foundation trust, we had to deal with the issue of staff who were employed by PFI projects. It is not my intention to discuss the rights and wrongs of PFI, but to illustrate the huge efforts required to ensure that the PFI staff felt part of the health team, even though the foundation trust had no direct management responsibility. The same applies to contracted-out staff generally. Some, though not all, of the problems of hygiene in hospitals and failure to feed vulnerable patients were caused by the separation of these contracted-out staff from the health team. If transport is not co-ordinated, a patient can be in a ward for an extra day. An efficient receptionist can make the difference between an efficient department and a failing department. Those are only two examples. There has been a deafening silence about the health team, and I am seeking a statement of support for all the staff in the health service and an acknowledgement that the future of the service, whatever that is after this unnecessary Bill, will depend on the health team being able to work together in an integrated way.

[Baroness Cumberlege]

My Lords, I address my remarks to Amendment 330ZAB and others that concern the composition of the health and well-being boards, and I would like to say a word in general about the boards.

To me, they are a spark of inspiration. In the next grouping we will have some specific amendments from noble Lords concerning integration, and we have heard a bit about it already today. I have been conscious that throughout the Committee debates the virtues of integration have often been referred to by my noble friend Lord Howe, and part of the integration he has cited is that very valuable tool, the health and well-being board, bringing together social services, health, and importantly, local healthwatch.

The Bill is gratifyingly lean in its suggested membership of the board: just six essential members. However, in Clause 191(2)(g) it gives flexibility in allowing the board to appoint:

“(g) such other persons, or representatives of such other persons, as the local authority thinks appropriate”.

However, in the same clause, 191(9), it must consult with the members of the board. That seems absolutely right and proper. The success of these boards will be in their balance. That is very important, and what we cannot afford is a single constituency trying to pack the board with its own colleagues. The board itself can put a brake on that, and keep the balance right.

The board itself can appoint additional members, and I can see that being invaluable if the board has chosen a subject which it wishes to target, such as obesity, as mentioned by my noble friend Lady Jolly. Poor housing was also mentioned, as well as alcohol, sexual health, prisons, probation, or children. There is nothing to stop the board giving the individual a short tenure, if the board so wishes. However, if we concede to all these additional, very persuasive arguments that are being put for adding more and more members—I had a quick count of all the amendments on the Marshalled List—we would have statutory boards in the order of 24 members. That is a nightmare for quick decision-making.

I chaired a joint finance committee years and years ago, when we were trying to do the same thing, and we had a board of that size. It became a talking shop. No one would take the decisions that were really necessary. With great respect to local government, where I spent 20 years, we do not want another committee of the council. These boards have to be different.

I said I thought the concept was a spark of inspiration, but I can see this spark extinguished very quickly if we end up with big, unwieldy, cumbersome talking shops. The health and well-being boards should be composed of the great innovators; people with unusual and challenging ideas; people who are prepared to think the unthinkable; imaginative people, fleet of foot, trying new ideas, and abandoning them if they do not work out. Above all, they should be the risk takers.

We know that innovation seldom comes from large, cumbersome committees. It very often comes from young people sparking off ideas. These are people who are probably quite difficult to work with. The Steve Jobs, the Bill Gates, the James Dysons of this world, determined to get their ideas from the drawing board into our homes, changing our lives for the better. They are the people who are not afraid of disruptive innovation.

The NHS thirsts for innovation, but it cannot face the disruption. One of the examples of successful disruptive innovation that I came across is Hairdressers for Health. In a very impoverished area south of Manchester, where you heard the crunch of broken glass under your feet when you walked, where graffiti was everywhere, where the school was protected by razor wire, the hairdressing salon was one oasis of peace and sanity. A junior director of public health, who was very anxious to increase the uptake of cervical screening, recruited the hairdressers to ask their clients—people will know that hairdressers always refer to their customers as clients—whether they had had a cervical screen and, if not, to give them the reason why they ought to go and have one. The hairdressers were given a book of difficult questions that they could answer and a phone number if they got stuck. The results were really impressive. When I asked the women why they went for cervical screening, they would say, “Tracy does my hair. She does it beautifully and I really trust Tracy”.

There are a million reasons why you should not go down that road. If you had a big, cumbersome committee, I can just hear the remarks, “The hairdressers aren’t up to it. The hairdressers really won’t have the information. The clients won’t believe the hairdressers”. No, here was a courageous young director of public health, not working through a huge board, thinking really laterally and doing something terrific. That is what we want from these health and well-being boards. We do not want large committees full of worthies shirking innovation because it is just too risky. Of course, there are always a million reasons why you should not do something. What started as an inspiration is quickly reduced to the boring status quo because that is safe. It takes an awful long time to get back to the boring, safe status quo.

When people decide for themselves, they are more likely to be successful. I applaud the flexibility of the Bill. I see merit in every case that is being put today. The case is being put extremely persuasively, but I urge your Lordships to resist the temptation to tie the hands and stamp on the autonomy of the new boards. We need them to be a success. I am working at the moment with some that are in shadow form. The good will that is in those boards is terrific. We should be enhancing and cherishing that and not directing exactly how they should work. If we do that, I regret that we will simply have just another committee of the council.

[Baroness Benjamin]

My Lords, childhood lasts a lifetime. Whatever happens to people during childhood, they will take with them long into adulthood. Sadly, many children’s early lives are broken by the relentless mental and physical suffering that they go through daily. Even children who suffer from lesser known conditions such as sickle cell, which is not widely recognised by teachers or schools, are made to feel inadequate and lose their confidence. We need to put in place a holistic provision of care for those children, for their voices to be heard and for them to know that society cares about their well-being. That will give them hope for the future.

As we have heard from noble Lords across the House, we need joined-up policies for everyone to work together. I hope that my noble friend the Minister will show compassion and understanding when he considers these amendments, which I believe put children first and show that we are a nation that cares about our children, our future.

--- Later in debate ---

[Lord Beecham]

That is exactly right. They do not have a vote in the council, which determines a budget of several hundred million pounds and deals with huge issues of social care and public health. They are paid officers. That is a distinct, separate role. On this, the noble Lord, Lord Mawhinney, and I are entirely at one.

There are ways in which the current positions can be improved. I hope that the Minister may be able to give an indication today that there is some scope for change. However, there may be issues that we need to address on Report if what is basically a good plan cannot be further improved today.

[Baroness Cumberlege]

I do not really accept the noble Lord’s criticism of my thinking. Of course I understand that these health and well-being boards are essentially planning boards. I will read very carefully what he has said in Hansard, but I am sure he accepts that you cannot do the planning if you are totally ignorant of the implementation of what you are planning. Clearly, finance and other things come into this. The health and well-being boards that I have spoken to say that what is really important to the success of the board is the equality of members on it. If he is saying that only local government councillors have a vote, I think that people who also hold budgets—the clinical commissioning group people and the health people—would be very upset if decisions were made involving their finances without them having an opportunity to put their case in a vote, if it comes to that. Again, the boards that I have been speaking to and working with have said that they would always try very hard to avoid a vote.

When I came into the health service from local government, I found the whole culture very different. I enjoyed working as an equal partner with those who were advising me, such as the district or county medical officer and others. We really should leave this to the health and well-being boards to decide how they want to run their business. Why do we always think we know best? Every health and well-being board will be totally different, representing different areas of the country and all sorts of different interests. For once, let us have a light touch and trust the people who are going to be doing this business.

[Lord Beecham]

I think we need to set out a minimum requirement. That is all I am seeking to do. I am not seeking to circumscribe.

[Baroness Cumberlege]

It is in the Bill.

[Lord Beecham]

The minimum requirement in the Bill is the wrong requirement. That is the point for some of us, at any rate.

Health and Social Care Bill

Baroness Cumberlege Excerpts

Thursday 15th December 2011 Lords Chamber

[Baroness Pitkeathley]

My Lords, my contribution in support of the amendments is simple and brief: it is to ask that the Minister ensures that we learn the lessons of history and do not repeat the mistakes of the past when it comes to patient involvement. As we know, there is a huge evidence base about the benefits of patient involvement in health outcomes, and I am sure that the mantra of “No decision about me without me” is something that all noble Lords will accept.

While successive Governments have been committed to patient and public involvement, the history of it has not been a happy one. Some of us can go right back to 1974 when CHCs were first set up. Like my noble friend Lord Harris, I believe that this Government are committed to putting patients at the heart of the NHS, but let us look at why the previous attempts to do so have not been successful. In summary, I suggest that the reasons are these: the efforts have not been sufficiently well funded; they have not been seen as sufficiently independent and therefore have had conflicts of interest; they have not had enough status; and there has not been seen to be enough communication between national and local bits of the set-up.

I leave aside the current problems of the CQC, although I agree with noble Lords who have spoken about that, but the very idea of making the new body a sub-committee of anything seems to me to ensure that we are in fact going straight down the route where we have made so many mistakes before. I remind the Committee that those who do not learn from history are doomed to repeat it.

[Baroness Cumberlege]

My Lords, the noble Lord, Lord Harris, is right that we have already had this debate much earlier in the progress of the Bill, when we discussed the relationship between the Care Quality Commission and HealthWatch England. The debate took place on 22 November and I spoke in cols. 977-79, and your Lordships will be very grateful to hear that I am not going to go through it again.

There are just one or two things that I want to say. The amendments that I tabled at that time were very similar to some of those that have been tabled today. However, I want to make it plain that I am not, in principle, in favour of making Healthwatch England totally independent. I think there are enormous advantages in having a very close relationship with the Care Quality Commission. As I have said, I am not going to go into the reasons why at this time.

The first amendment that I have tabled provides:

“The majority of the members of the Healthwatch England committee shall not be members of the Commission”.

I think that is very important, in order to give them opportunities to criticise the CQC. The second amendment provides:

“The provision that must be made by virtue of sub-paragraph (1A) includes provision as to—

(a) the majority membership of Healthwatch England committee being elected from representatives of Local Healthwatch organisations, and

(b) the manner in which those representatives are elected, the term which they must serve and the role that they must fulfil”.

That has been very well argued again this afternoon.

Both the independence and the influence of Healthwatch England can be secured, providing that the right sequence of accountability is in place. I see this as follows: Healthwatch England must have a majority membership made of elected people from local healthwatches, and it must be accountable for the way it influences the CQC by local healthwatches across the country. The CQC must be accountable for the way in which it responds to HealthWatch England, and local healthwatches must be protected from interference and bias from local authorities. I will say more about that in the next group.

I want to take up the very good points about history made by the noble Baroness, Lady Pitkeathley. The question of whether Healthwatch England should be a stand-alone organisation is actually answered in history. Fourteen years ago, the then Association of Community Health Councils for England and Wales published Hungry in Hospital?. This highlighted the failure to feed elderly patients in hospital separately. Just a few weeks ago, exactly the same problem was highlighted in the dignity and nutrition programme report from the CQC. We know it is still a problem but have failed as a nation to sort it out. I wonder if ACHCEW had been part of the regulator, whether the CHCs could have ensured that the matter was addressed by the regulator and then monitored whether it was or not. Simply making an organisation stand-alone does not give it influence; indeed, it can distract it into supporting its own infrastructure, leaving less capacity for getting on with the job. Its functions, membership and accountability are what make it independent, and not, necessarily, its stand-alone status.

[Baroness Emerton]

My Lords, my name is not under any of the amendments, but I want to say briefly how much I support what has been said by the noble Lords, Lord Warner and Lord Harris, and the noble Baroness, Lady Pitkeathley.

Following on from the noble Baroness, Lady Cumberlege, I think that, while Healthwatch will have some opportunity to look at the CQC, it will usually look at the negative side. However, I thought HealthWatch was going to be a body that might be able to influence future policy. Certainly, when I had the experience of sitting on a CHC board, it was able to contribute to the future policy of a new development. I feel we are looking very much at the negative, rather than the positive and the contribution that can be made by members of HealthWatch, possibly to future national policies.

Thinking back to the changes that took place in mental health and learning disabilities, I think that it would have been very valuable to have had the contribution of the HealthWatch group of people. We did not have it at that stage. Somehow we need to weave into this the positive side of policy-making and strategy that HealthWatch can often contribute in a very positive way. While HealthWatch will have a contribution to make in looking at the negative side—which usually means the critical side in relation to the CQC—I do not think that that should be its sole role. I hope the Government will take that away and perhaps feed it in.

--- Later in debate ---

[Lord Warner]

I am not talking about flagging up; I am talking about a campaign. A campaign means that you take action, using the media, to put serious pressure on the Government in relation to their record in running the NHS for elderly people. I am not saying that that should happen; I am trying to understand what power this body would have as a sub-committee of the regulator, which is the point that we are discussing.

[Baroness Cumberlege]

Does the noble Lord, Lord Warner, agree that much depends on the membership of this body and whether it is independent? I am not sure why people call it a sub-committee. In the Bill it is called a committee. I have chaired the top board in organisations and I know that you get very close to some of those committees—you listen to them. If an organisation is totally independent and it goes left field, making a whole lot of noise, you just dismiss it and say, “Oh, they’re always making problems”. The opportunities are far greater if part and parcel of what it does is informing you of what is going on. I honestly think that you will listen much more carefully to people whom you meet in the corridor, in the chambers or wherever the debates are going on.

I take the point made by the noble Baroness, Lady Emerton. The Care Quality Commission does not always say that everything is dreadful. The Healthcare Commission used to say, “This bit’s good; this bit needs addressing”. I can see that this committee—not sub-committee—of the Care Quality Commission will serve a very useful purpose. It could put enormous pressure on the Care Quality Commission really to understand what is going on and it would not just be an irritant that is offside.

[Baroness Northover]

I thank my noble friend Lady Cumberlege for that and I agree with her very much. We all wish, and have all sought, to drive up quality in the NHS. That is so often difficult to achieve but this is one of the means by which we hope to make that happen. No doubt some people will be made to feel uncomfortable by what the committee reports and says, and I hope that that will be the case.

--- Later in debate ---

[Baroness Cumberlege]

My Lords, perhaps the noble Lord, Lord Whitty, ought to speak next, because I suspect that his amendments relate to what the noble Lord, Lord Low, was saying, and it may be that the synergy would be better that way.

[Lord Whitty]

My Lords, I thank the noble Baroness very much. In this case, logic trumps chivalry.

I have four amendments in this group, all of which relate to the independence of the local healthwatch—some of them in some slightly indirect ways. We spent some time at an earlier stage, and again today, talking about the independence of Healthwatch England from the regulator. I did not intervene today, but it is evident that the Government are not persuaded that we need to unravel them. I am afraid we are going to have to return to that at a later stage, because I am certainly not convinced by the Government’s arguments. However, I think that even the Government must recognise that a body representing patients, users and consumers of health and social care services has to be independent from the provider.

The problem with some of these clauses is that the local healthwatch organisation, as the noble Lord, Lord Low, has said, is not clearly independent from the local authority in all respects. We are not yet clear how independent of the local authority it will be in its membership and how that membership is appointed. Schedule 15, which comes in with Clause 179, is pretty general as to who the members would be. As the noble Lord, Lord Low, said, we have to await regulations before we see that. Meanwhile, there are other reasons why one is a bit suspicious that the local healthwatch organisations would come too much under the sway of the local authority, which is going to be the provider of many of the services to which they relate.

There may be other ways of doing this, but these amendments are attempting to make clear the independence of the local healthwatch body by establishing that it sets its own priorities and manner of operating, subject only to any guidance given by Healthwatch England; that is, it would not be subject to any guidance, restriction or direction from the local authority. There are then a number of clauses which are pretty complicated in themselves, but appear to treat the local healthwatch as if it were an excrescence of the local authority.

For example, I want to delete the bulk, or the purport, of Clause 181, which appears to treat local healthwatch organisations as if they came through the local authority rather than being independent bodies. Some of the requirements may well apply to healthwatch locally, but they should not be implemented and enforced via the local authority in any sense. The noble Lord, Lord Low, has already referred to some of the problems about freedom of information, but some of the other provisions could well raise difficulties if the local authority was the one ensuring that the local healthwatch met those provisions.

Independence of consumer organisations across the economy is important, and I will return to that on Report. Local bodies, in particular, need to be independent. They are the bodies to which individual patients and users will relate, and if they believe that the local healthwatch is in any way associated with, dominated by, or accountable to the actual providers of the bodies that provide the services, its credibility will be diminished. I would therefore hope that the Government took note of these concerns and made it more explicit in the final version of this Bill that local healthwatch organisations were independent of the local authority and made their own decisions, with their own priorities and manner of operation. I do not think that we can leave all that to regulation; it has to be more explicit in the Bill. This is one way of doing it, although the Government may well come up with better ways of doing it, but I think that we need to ensure that we reach that stage before we finish with this Bill.

[Baroness Cumberlege]

My Lords, I have a number of amendments in this grouping concerning local healthwatch. As has already been said this afternoon, local healthwatch is the source of intelligence from the people who are actually using the services. This intelligence is gathered through their enter and view monitoring visits to both health and social care services—we should not forget that it is social care as well—and through their local involvement work.

However, neither commissioners nor overview and scrutiny committees have the same binding arrangements to enter and view health and social care facilities. Local healthwatch has the opportunity to interview people at the time they are actually using the service. The local healthwatch has the independent messenger status with local people that neither commissioners nor overview and scrutiny committees have. Local healthwatch has the right to enter and view, to talk and listen, to the most vulnerable of all people, those with dementia or other mental illness, those lying on trolleys in A&E, or on mental health in-patient wards. “No decision about me without me” can be tried and tested when most fresh in the minds of patients and users. It is only here that the reality of the services that results from the theory of commissioning is to be found. To fail to take due account of this perspective in commissioning services is commissioning wearing a blindfold. The purpose of Amendment 318E is to ensure that commissioning is evidence based.

New Sections 14Z and 14Z11(2) require clinical commissioning groups to involve and consult on their commissioning plans. We know that this is a somewhat bureaucratic exercise, and it is often simply for the cognoscenti. Although these clauses are to be welcomed, they do not go far enough—hence the insertion of my new clause. Frail elderly patients lying in hospital wards who are not being fed will not be responding to consultations any more than will patients who have been sectioned under the Mental Health Act. The local healthwatch must talk to those patients and its findings must be an indispensable component of the evidence on which commissioning is based.

New subsection (3A), inserted by Clause 180(6), also requires commissioners and others to have regard to reports and recommendations from local healthwatch. This replicates the current arrangements for reports and recommendations from LINks, which has failed to bring the patient experience into the heart of commissioning. Compared to the status given to the views of health and well-being boards on commissioning plans—the strategic beginnings of commissioning—this is weak. What is needed is equal attention to the evidence on the outcomes of that commissioning, which local healthwatch is uniquely well placed to provide.

My new clause requires local healthwatch to hold the clinical commissioning group to account for incorporating the evidence that the local healthwatch has produced at the very start of the commissioning period. It should then heavily influence the commissioning plan for that period in taking the reality and applying it to commissioning theory. Binding the patient experience into commissioning is a much more specific requirement than merely “having regard to” local healthwatch reports and recommendations. The conjoint benefit of this new clause is that it increases the accountability of local healthwatch for producing robust evidence of the patients’ experience. Providers must also satisfy the local healthwatch if they are to secure further contracts.

[Lord Mawhinney]

My Lords, I think that my noble friend said that providers must satisfy the local healthwatch before they can proceed with their commissioning. Is this another barrier to the commissioning process, or does she anticipate a collaborative conversation? I am not clear on whether this is another hurdle in the commissioning process or a lesser effect. It would be helpful, at least to me, if she would expand a little on that thought.

[Baroness Cumberlege]

My Lords, there is no intention that this should be a further hurdle, but if commissioners are going to commission services that are really relevant to local people then they need to take account of what the local healthwatch is saying. This is a huge resource that could improve services enormously and make contracts much more relevant than some of them have been in the past. I hope that that answers my noble friend.

I shall take three quick examples to illustrate my point. The first is a patient in an older persons ward who leant forward confidentially to the CHC visitor, saying, “They don’t feed them in here, you know. They just put the food at the end of the bed, then they take it away again. Please don’t tell them it was me who told you”. The second one is the mental health in-patient in a unit with an outside garden, who explained that he could not go out even though the summer was really hot. There were not enough staff to accompany the patients outside so he “had to stay in all the time”—his words. What quality of life is that? The third is from another patient in an older persons ward who expressed concern about a patient whose hearing aid battery was flat: “They could just have gone to the audiology department to get another battery, but they wouldn’t”. The staff just spoke more loudly to the profoundly deaf patient, increasing his distress and isolation.

To some people these examples may seem quite trivial, but to the people concerned they are not—they are very important. I took those three examples because the first is over 10 years old, yet we know from the CQC’s recent dignity and nutrition inspection programme, and from the evidence from Mid Staffordshire, that patients are still not always adequately fed in hospital. That makes the point of the amendment perhaps more powerfully than anything else. What we are doing now is not working; it is not effective, and does not bring about the radical changes that are necessary. We have to do things differently, and the suggested new clause gives us the opportunity to do just that. I feel strongly about this issue and I hope that the Minister will give it serious consideration. Otherwise, I may have to bring it back at Report.

Health and Social Care Bill

Baroness Cumberlege Excerpts

Tuesday 13th December 2011 Lords Chamber

The need for equity between the private sector providers and the NHS is pressing. There needs to be a mechanism in place to ensure that any qualified provider, irrespective of the sector, is held to account using the same standards in regards to professional guidelines, education and training, research and the NHS outcomes framework. Amendment 278BA seeks to address this issue and foster debate among noble Lords. I very much hope that the Minister will address some of these points in his response.

[Baroness Cumberlege]

My Lords, I have listened very carefully to the debate. I think that it has been one of the best that we have had. I pay tribute to those who have taken part, and especially to the Opposition, for introducing it so fully.

I, too, have been connected with the health service since 1948. Like the father of my noble friend Lord Owen, my father was a GP. This resonates with what the noble Lord was saying about paying for services. My brother is a consultant and I work daily with the NHS—rather, I wish that it was daily. I run my own business, and, sadly, it is not quite daily. However, I want to declare that I run Cumberlege Connections, and that we do not provide any patient services to the NHS. We provide training for doctors, nurses and those working in the service.

Reading the evidence that has come forward from the King’s Fund, from the Nuffield Trust and from other bodies, nearly all of them have said that the NHS needs to improve. Looking at the research, I think that is absolutely true. We have to look forward: the NHS is facing enormous challenges. Our population is changing; it is getting more diverse, as well as growing older. The NHS needs to innovate and adapt to meet the new expectations of patients.

I have had treatment over the past two years in hospitals and have been very interested in how care was given. However, patients have had to sit in out-patient departments, queuing as my mother used to queue just after the war, when there was rationing. Sir Muir Gray, a very respected member of the medical profession, has said that the out-patient department is a relic of the 19th century. So we have to change. I think of banking—perhaps that is not a very good example at the moment. However, at one time we used to have to queue to get our money at a counter. Then the banks introduced a hole in the wall. I remember Barclays saying, “Our customers are much too important to have to go to the impersonal ‘hole in the wall’; we are going to give them personal service at the counter”. No—the public wanted cash quickly, and they went to the hole in the wall. Now we can do our banking in our sitting rooms. The world is changing so fast, and the NHS cannot be stuck in aspic. We really must move on.

I am, therefore, very interested in the debate and the question of choice. One of your Lordships said the NHS was not a shopping spree, or something like that. However, there is a huge amount of competition within the NHS. Would-be doctors compete for medical schools, for a start. Actual doctors compete for the very best jobs in the NHS. NHS hospitals compete with private practice for consultants’ time and compete with non-healthcare employers to retain nurses. GPs have been partly competing for NHS patients since 1948; so have hospitals since 1991. Companies compete to provide the NHS with new medicines and diagnostics. NHS researchers compete for grants. The NHS competes with schools, prisons and the Armed Forces for public funding. So competition in the NHS is both long-standing and inevitable. It involves not a yes/no ideological choice, but pragmatic and nuanced judgments about how, not whether, to make use of it. Competition gives NHS patients choice. The phrase, “I want a good local hospital” is a familiar refrain, just like the desire for good local schools and shops. Yet the very fact of choice and its implicit challenge, as we have seen in the previous Government’s introduction of independent sector treatment centres, actually shakes up the NHS providers. It is the grit in the oyster that helps to create a better service with higher standards.

Looking at choice and Protecting and Promoting Patients’ Interests, which has been produced by the Department of Health on the role of sector regulation, it was interesting that 81 per cent of respondents wanted more choice in where they are treated; 79 per cent wanted more choice in how they are treated; 75 per cent wanted a choice of hospital consultant in charge of their care; and 75 per cent of respondents wanted a choice of which hospital consultant is in charge of their children’s care. Women and older people, in particular, want to see more patient choice in the NHS. Nine out of 10 people over the age of 55 want to have a greater say in how and where they are treated. So we know that people want more choice, and that choice can go beyond the NHS and into the independent sector; we have got good examples of where that is happening successfully.

It is important that we go with the Government on expanding the opportunities for people to choose the care that they want and where they want it, but we know that if it is going to work well we need a robust economic regulator. That is absolutely essential. That regulator needs to support plurality of provision for NHS patients. In the Bill, we see that Monitor will ensure that tendering to provide services to NHS patients is not unfairly rigged—that is really important; that cost does not take precedence over quality, as has already been said; that the tariff is set independently of politicians in Whitehall, and we do want a very independent regulator; that essential NHS services of patients are protected; and that patient choice is unrestricted without destabilising the NHS. That is what we should be aiming for.

I am grateful to my noble friend for clarifying some of these issues in his opening speech. We have seen problems. We have seen spot-purchasing; that has got to go. We have seen cherry-picking; that has got to go. We have seen a race to the bottom on price; that has got to go.

There is huge merit in the Bill. I see the creation of an independent sector regulator as one of the great benefits in the Bill, which will facilitate the development of a forward-looking NHS that can undertake efficient investment and support sustainable growth. It is right that the Government should set the framework—that is what we are proposing in the Bill—and it is right that the Government should retain oversight of Monitor as it does of other sector regulators.

I had a very interesting conversation with the regulator for the railways. It is interesting how she is managing that business. Many of us will know Anna Walker, who used to be the chief executive of the Healthcare Commission, and have seen her go from one regulator into another, and how she is managing that. There are some good parallels that we can learn from. Looking at telecoms, there was no intention that BT should remain a monopoly, or that it should go. It is still with us, but it gave other people choice, working through a good regulator.

I am very much in favour of what has been proposed. It moves the health service into this century, because a lot of it is still in the last. It will offer patients and the public a far better service than we have now.

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[Baroness Thornton]

My Lords, this has been an absolutely brilliant debate and very helpful to everybody in the Committee; I hope that that includes the Government. I start where the Minister left off about intentions—it is not the Government’s intention to introduce competition red in tooth and claw. However, the Minister must by now have realised that that is not what people understand by what is actually in the Bill and how it might be applied. That is the dilemma that faces the Committee and the Government. We on these Benches will certainly take up the offer that the noble Earl made in his opening statement, which was extremely useful, of discussing how to improve and change this part of the Bill. We would like to be part of that process. There is definitely work to be done on that.

I will briefly sum up our position on this debate. I have a series of questions for the Minister and I am very happy for him to write to me about them. We are not convinced as yet by the idea that having a quango as an economic regulator is the only way to bring a clear and comprehensive legal framework into the Bill. The purpose of Monitor in the Bill is to develop competition, which is why we have the Bill. We believe, and this debate shows us, that the contents of this part of the Bill in fact open the door and invite in the issues that were raised, for instance, by the noble Lord, Lord Clement-Jones. If competition is not at the heart of the Bill, why do we need all that detail? The noble Lord, Lord Clement-Jones, made a very helpful intervention and a useful analysis. I, for one, will be rereading his speech about EU competition law.

I ask that the noble Lord, Lord Clement-Jones, and his colleagues look at our Amendment 262A, which would add a third subsection to Clause 59(1). The proposed paragraph (c) says the provision of health services should be,

“based on the principles of universality and social solidarity”.

We were not making a particularly left-wing statement with that. We were actually lifting it out of European law, which our advice tells us is one of the ways in which you keep at bay the procurement processes of European law. I strongly ask the noble Lord, Lord Clement-Jones, to look at that; I would be interested to hear his comments.

One part of the debate that I have been disturbed about was that raised by the noble Lord, Lord Owen. He also has a freedom of information request in for information that would help to inform the discussions of this House. We know that we have had our debates about the lack of access to the risk register to help us in our deliberations. Indeed, my honourable friends in another place asked if they could also have access to the legal opinions that the department had got on this part of the Bill, and were refused access to that, too. We have all had to find our lawyers to advise us about competition law. We are now all a lot better informed than we were several months ago. The noble Lord, Lord Owen, was right when he said there is no consensus about this; indeed he was right when he said that parts of this Bill are feared and hated. The Minister needs to understand that there is a lot of fear out there, about this part of the Bill in particular. The noble Lord was expressing very grave concerns.

The noble Lord, Lord Newton, made a threat to the Government about patient safety and quality being the order of the day and said that he will be returning to this on Report. He will probably have more effect than the rest of us put together in his interjection on this matter. We will be behind him if he does so, which may not do his reputation any good at all.

The noble Baroness, Lady Meacher, made a very thoughtful speech, her most important point being that we already have the tools to make the system work. There is no need to put in an economic regulator and the competition regime that this Bill suggests, because the tools are already there. That is very important.

I say to my noble friend Lord Whitty that there is absolutely nothing wrong with a bit of slash and burn to make the point about this part of the Bill. In effect my noble friend was at one with the noble Lord, Lord Clement-Jones.

The message from the noble Baroness, Lady Cumberlege, is that the NHS needs to improve. Yes, we would all agree with that and every health system in the world needs to change and improve. I would, however, refer the noble Baroness to my speech, which embraced change, embraced development and even embraced the use of managed competition. Where we part company is that the way to improve the NHS is not to treat it as a utility or a supermarket; we do not think the evidence is there to prove that. In fact, there is a lot of evidence to suggest that we should be very wary of the introduction of market forces as a way to improve our health service.

My noble friend Lady Armstrong made the important point that we agree with the Minister that there is a case for the use of competition in its place. The challenge before us is how we ensure that this Bill delivers that without threatening the whole fabric of our health service.

[Baroness Cumberlege]

Is the noble Baroness aware of Gaynor et al and the work they have done? I quote again from Protecting and Promoting Patients’ Interests: the Role of Sector Regulation, a research study in 2010:

“We find that the effect of competition is to save lives without raising costs. Patients discharged from hospitals located in markets where competition was more feasible were less likely to die, had shorter length of stay and were treated at the same cost”.

[Baroness Thornton]

All I would say in answer to the noble Baroness is that there is no known health service in the world that shows competition improves health outcomes. I challenge the noble Baroness to send me the information that shows that is the case.

[Baroness Cumberlege]

The noble Baroness should look at this document and at the research which is stated in it.

[Baroness Thornton]

We are talking about the whole system, not a small part of it. We can share our intelligence outside the Chamber; the noble Baroness makes a good point but there is no evidence that says this is the way to improve our national health system.

Health and Social Care Bill

Baroness Cumberlege Excerpts

Wednesday 7th December 2011 Lords Chamber

[Lord Warner]

My Lords, in moving Amendment 240, I shall also speak to Amendment 242 in this group in my name and that of the noble Lord, Lord Patel.

Amendment 240 inserts the words “cost and” before “effectiveness” regarding the exercise of functions by various bodies that the Secretary of State must keep under review. The NHS faces an unprecedentedly long period of having to survive on short financial rations. This is now likely to extend at least two years after the 2015 election, if we are to believe the Chancellor’s utterances last week on the public finances and deficit reduction. The NHS has never delivered in any one year of its history the productivity and cost-saving requirements set by the £20 billion Nicholson challenge, which is to be produced at least four years on the trot. Most informed commentators expect a financial crisis of some kind in the NHS in the next few years, so the reality is that the Health Secretary will have to keep under close review the expenditure and costs of all the bodies listed in Clause 49. The Government should face up to this reality, in my view, as the Chancellor seems to want us to, by adding the words in Amendment 240 to the Bill.

Amendment 242 is another part of that reality checking of the NHS in the Bill. On earlier amendments I raised my concern about keeping in check the overheads and management costs of the national Commissioning Board and clinical commissioning groups, and was duly told that these were not necessary. I acknowledged then that my amendments were probably not framed as they should be. However, I am returning to this issue with Amendment 242, which requires the Secretary of State to report annually to Parliament the administrative costs of the bodies listed in Clause 49, together with the percentage of the NHS budget they represent and their percentage increase over the previous year. If the Secretary of State is doing his or her job properly, they should have this information available to them and be monitoring it closely, especially in the financial climate the NHS faces over the coming years.

We know from history how, left to their own devices, bureaucracies can expand their remits and resource consumption. Ministers never like to own up to this happening on their watch. To improve the prospects of keeping Ministers and, if I may put it this way, these big NHS beasts on the financial straight and narrow, it would be extremely helpful if the Bill required the reporting of administrative costs and their movement over time to Parliament once a year. I hope the Minister can be constructive about accepting such an amendment as it in no way challenges the Government’s reforms. I beg to move.

[Baroness Cumberlege]

My Lords, I have two amendments in this grouping and, lest I be drummed out of the Brownies, I would like to explain that there is a typo in the Marshalled List. It should read not “detailed merits” but “detailed remits”. As noble Lords will appreciate, there is a great difference, and I do not need any persuasion as to the merits of this Bill.

The purpose of my two amendments is to be probing; I am really just seeking clarification. The Future Forum was very widely welcomed by most people, but it further complicated the new proposals in the Bill regarding how we are to organise and manage the NHS. After years of being dictated to and micromanaged, there is a real risk of paralysis, and this at a time when commissioners need to reach decisions and be truly radical.

As I understand the proposed structure, the national Commissioning Board and clinical commissioning groups will be supported by clinical networks, clinical senates, commissioning support organisations and health and well-being boards, which will work in partnership with them. In addition, we have a new public health system, which we debated last Monday, with the creation of Public Health England and the establishment of HealthWatch England and Local HealthWatch to try to improve patient and public involvement. This has the potential to cause confusion and duplication if the Government are not clear about the accountabilities, roles and responsibilities of these different organisations. I would like to take a very serious example: it is still unclear who will take the lead on the commissioning of specialist doctors and nurses responsible for safeguarding children within the NHS.

At a national level, the movement from a single department of state to a more dispersed range of organisations, including the national Commissioning Board, Public Health England, HealthWatch England, Monitor and the Care Quality Commission, could have a similar effect. The danger is that the NHS could find itself in paralysis at just the moment that it needs to make key decisions that are crucial for the sustainability of parts of the service. In particular, some of the important decisions on potential service reconfigurations are urgent if the NHS is to meet the Nicholson challenge and at the same time fulfil its commitment to high quality and safe services to patients.

It is still unclear to me, and I know that it is to some others, how the respective responsibilities and accountabilities of commissioners, providers and regulators for quality are intended to work together. We also need to ensure that additional complexity does not result in an increased administrative burden or financial cost, as the noble Lord, Lord Warner, has said, falling on healthcare organisations. I think that my noble friend gave an undertaking on that on Monday but further clarification would be welcome.

Because of these concerns about the complexity of the new structure, I am asking the Minister if he could look seriously at this issue; go beyond the organograms and design detailed remits and powers for all those in the system to minimise confusion, gaps and duplication; and be as clear as possible at the outset as the reforms are implemented, while at the same time keep under review and address any confusion, gaps and duplication between the components in the system. Change is always a challenge. The more we can reduce muddle and confusion from the outset, the more successful these reforms will be.

[Lord Hunt of Kings Heath]

My Lords, I have a number of amendments in this group which concern the duty of the Secretary of State to keep health service functions under review. This is an important provision. I note that on what will probably be the last day in Committee, we have Amendment 354, which relates to a requirement on the Secretary of State to publish a report which can then be debated by Parliament. Although it is not grouped with this amendment, it is highly relevant to it.

It would be helpful to know from the Minister just how these matters are going to be monitored and how adjustments can be made in the light of experience. As my noble friend Lord Warner suggested, although we are not going to be allowed to see the risk register—I am very doubtful that we will see it before the Bill has passed through your Lordships' House—we know that considerable risks will come with these changes. The noble Baroness, Lady Cumberlege, spelled out some of the key issues that we face. The last thing that the health service needs is a massive reorganisation. Clearly, there are risks and it is right that there should be a regular review by the Secretary of State.

It is also right that the Secretary of State, when reviewing the operation of the changes, reviews all parts of it. I am extremely puzzled by Clause 49 concerning the duty to keep under review. The Bill sets out the bodies to be reviewed. They are the NHS Commissioning Board, Monitor, the Care Quality Commission, the National Institute for Health and Clinical Excellence, the Health and Social Care Information Centre and special health authorities. There is no mention of the plethora of bodies that will exist in the new system. There is no mention of clinical senates, the local field forces of the NHS Commissioning Board or health and well-being boards. Quite remarkably, there is nothing about clinical commissioning groups. Perhaps the noble Earl could tell me why the effectiveness of the CCGs is not to be kept under review?

Perhaps I have misread the Bill and this will be done in some other way. But I find it remarkable that this Bill is built around GPs and clinical commissioning groups, which are untried and untested, yet they are not to be kept under review. Looking at the architecture of this Bill, one begins to see very tight control of most of the health service but when it comes to clinical commissioning groups, issues of corporate governance, conflicts of interest or any of the other matters, it is incredibly light touch. It is as if we are to believe that, somehow, this part of the reforms is believed by the Secretary of State to be so remarkably able to carry out its duties that very little monitoring, performance management or review is to be undertaken. I would be grateful to know why clinical commissioning groups in particular have been left out of this list.

Amendment 243A concerns the annual report. In Clause 50 we see a requirement on the Secretary of State to publish an annual report on the performance of the whole service in England, which must be laid before Parliament. That, of course, is welcome. But my amendment asks that the report should include a statement on progress towards reducing relevant inequalities, on integration of services, on waiting time performance, and on health outcome performance. No doubt the noble Earl will argue that it is a list, and that the Secretary of State’s annual report is bound to cover these matters.

However, we are in new territory when it comes to specifying matters in the Bill. We are told that the Secretary of State is stepping back from involvement in the National Health Service, and that we should not worry about that, because there will be a mandate, and a constitution. All will be well. Those of us with some experience in these matters are rather doubtful as to whether that is sufficient in terms of accountability. In that context, it is right for Parliament to set out some details which we would expect the Secretary of State to report annually. Of course, there may well be other matters which one would wish the Secretary of State to report on, but my four areas cover some of the main points.

Amendment 245B relates to the intervention orders under the 2006 Act. I would be grateful if the noble Earl would confirm whether those intervention orders apply to the NHS Commissioning Board and clinical commissioning groups. If they do not, perhaps he could explain why not?

Amendment 245C deals with liabilities and the Secretary of State’s responsibility in relation to NHS organisations. Again, could the Minister confirm whether this duty applies to the NHS Commissioning Board and to clinical commissioning groups?

Amendment 245ZA relates to the general power of the Secretary of State. In page 289, line 30, the Government seek to dissipate the general power of the Secretary of State, as is currently set out in Section 2 of the 2006 Act. I realise that this takes us back to the crucial debate we had on day 1 about the powers and duties of the Secretary of State. The Explanatory Note which relates to this says that the reason for changing the wording is because there is no longer a duty on the Secretary of State to provide services. Given that those matters have been, in a sense, put to one side, is this part of the package that is being looked at, because it does relate to the general powers of the Secretary of State?

My noble friend Lord Warner made some very apposite points which I certainly support, and I was very interested in the remarks of the noble Baroness, Lady Cumberlege. I had been agonising about her amendments, and she has very helpfully clarified a point for all of us. She has really put her finger on it. I am disappointed that she did not take part in our debate at our last sitting ,when we discussed the complexity of the new arrangements.

We were promised a streamlined approach. What we have got instead is a highly complex set of arrangements. The NHS Confederation has expressed its concern about their complexity. I therefore like the amendment of the noble Baroness, Lady Cumberlege, that asks the Government to try to clarify for us who on earth is responsible for what in the new system.

When it comes to the key issues of the reconfiguration of specialist services and of funding, someone out there is going to have to hold the reins. Some agency or body is going to have to sort the problems out. It ain’t going to be the clinical commissioning groups. They are too small and they will not be able to do it, so someone else will have to. Is it going to be the clinical senates, or are we going to have to rely on the local government health and well-being boards, or will it actually be the local offices of the NHS Commissioning Board? I know that it will be the local offices of the NHS Commissioning Board. If that is so, we come back to the fact that that is patently going to be where the power is, and surely they ought to be made accountable. That is why I had an amendment down on our last day in Committee to turn them into statutory bodies. I detected a modicum of sympathy around the Committee, but not much more than that. However, the noble Baroness, Lady Cumberlege, as a distinguished former regional health authority chairman, knows that when we had the RHAs it was they that, in the end, had to intervene and sort problems out. There needs to be some sort of agency to do that in the future, and I think we should be told.

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[Lord Turnberg]

My Lords, there is little doubt that one of the key elements in the delivery of a system of care which improves on what we have now—and we certainly need to improve the current position—is the need to integrate care between the NHS and social care. It is in that light that I have found the Nuffield Trust report, Towards Integrated Care in Trafford, which I am sure that many noble Lords have read, so helpful. A number of things of value come out of the report. First, it needs local buy-in, the involvement of clinicians, managers, patients, local authorities and the public. It also needs good data-sharing, good leadership and time. It does not happen overnight. It took them two years, despite having all the enthusiasm and conditions in the area, for it to get off the ground.

Of course, all that needs the will of those who are paying for the services—the commissioners—if they are to pay for integrated care across the divide, which has proved so difficult. All those local changes depend on funding. If we believe that improvements in this area are critical—and I am sure we do—surely it should find a stronger place in the Bill, in particular in the Secretary of State’s annual report. Amendment 244 states that we should insert the words,

“and its integrated working with adult social care services”,

in the report. That seems to me entirely appropriate and I hope that the noble Earl will consider that as a useful amendment to take forward.

[Baroness Cumberlege]

I just ask the supporters of the two amendments a question—the noble Lord, Lord Warner, may be the appropriate one, having been a director of social services. The amendment talks about breaking down the barriers. We are all at one with that. I was very interested in what the noble Baroness, Lady Pitkeathley, said about the Dilnot report; the noble Lord, Lord Warner, was a distinguished member of that committee, of course. Having listened to the amendment’s promoter, I thought it was very persuasive and one could see a real future there.

One of the blocks that has not been addressed in this debate is the difference in accountability in terms of the democratically elected councillors who are responsible for social care. I wonder whether the Lord, Lord Warner, had thought about ways to try to harness that to get that integration. To try to bring together two very different accountabilities is a real challenge.

[Lord Warner]

I shall briefly respond to that. We should never forget that the lion's share of the money that goes on state-funded adult social care comes from central government and is passed through local authorities to be spent on that group through the commissioning of various domiciliary, residential and even nursing home care. Although what I have crafted is a duty on the Secretary of State, a lot of this comes back to where the balance is struck between the NHS and adult social care in terms of priority and funding in Richmond House. They are all under the same departmental expenditure limit at department level.

The sense I had as a Minister was that it is a bit like the Army: you have to put a musician in the canteen. A former director of social services is kept well away from social care in Richmond House. I saw a reluctance in the NHS culture in Richmond House—which, thankfully, has changed with the arrival of David Behan —to fight for social care at the time of expenditure reviews. That is a real and serious issue. The big guns of the acute sector are alive and well in Richmond House when the expenditure review comes around. My noble friend Lord Hunt is nodding—I think enthusiastically, given his current job as chairman of a foundation trust. This is a real issue. We need a bit more balance in the statutory duty on the Secretary of State in order to align the money going into social care vis-à-vis the NHS.

There is a perfectly good point to be made at the local level. You want to see priority being given to adult social care at the local level, and you want to see openness on the part of local government—which, if I am honest, has not always been there—in working across the boundaries with people in primary care and in the NHS. That is absolutely an issue. However, if in local government you have only enough money to deal with people with substantial or critical needs, then your ability to help people with moderate needs and stop them getting worse will be restricted by the amount of resources available. It will then be extremely difficult to work across that boundary. We know that many local authorities have reprioritised their services, taking money away from other services and putting it into adult social care, but a very clear finding from the Dilnot commission was that the adult social care pot is simply not big enough. It is no good for us to keep uttering that there is a need for integration if there is not enough money at the local level for adult social care to work across the boundaries.

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[Baroness Masham of Ilton]

My Lords, I, too, would like to support what has been said about the HPA. It is so well thought of across the world, and infections spread across the world. Infections are getting much more complicated, with drug resistance, and we need the HPA more than ever. I ask the Minister one question: whatever happens to it, will it have an independent chairman?

[Baroness Cumberlege]

My Lords, I speak to Amendment 260, in the name of the noble Lord, Lord Patel. It is probably not the time to go around memory lane, but I want to draw on some experiences that I have had. I was the hapless Minister responsible for the Health Education Authority. Some people may remember the Health Education Authority. It was largely independent and its funding came through the department. I should not speak ill of the dead, but it really was a nightmare. One of my lasting memories of my modest ministerial career was when we had a Starred Question in this House, asking why government money and very scarce resources should be spent on a leaflet, produced by the Health Education Authority, entitled, I think, 69 Ways for Better Sex. It was the first that I or the department had ever heard of it. Perhaps one of the interesting things was the number of noble Lords who said they could not take part in the debate unless they had seen a copy of the leaflet.

The HEA went completely off the rails. It was only when we were reading or listening to the media that we found out what it was up to. In the end, it not only alienated the Department of Health and the Government, it alienated local health authorities, with their responsibilities for public health. It was they in the end who asked us to close it down. Well, we did. Listening to the current proposal for Public Health England to be an agency, I think that is a good idea, although I know it is very unpopular with the Faculty of Public Health and others. An executive agency, although not totally independent, will operate with a degree of autonomy from Ministers on a day-to-day basis. While not as independent perhaps as a health authority, it will be recognisable as an entity and have its own identity.

The only model that we have got in health of an executive agency is the MHRA. Its chairman, noble Lords will know, is Professor Sir Alasdair Breckenridge, who has been the chair since its inception. Sir Alasdair is a very strong individual and somebody people really respect highly. In the vernacular, he is the sort of person you do not mess with because you know you will not win; you do not even try because he is somebody with enormous integrity and presence, and runs a very good organisation. It seems a good idea to look at the MHRA model and see how it is organised. Sir Alasdair tells me that there are eight non-executives on the agency board, who form the majority and are the board. They have a very good chief executive who is a civil servant but the non-executives are not. They are drawn from right across the country with different experiences and, again, they are people of huge distinction who are very much respected.

Here is an example or model that actually works. It has been tried and tested, and is a model we could certainly adapt for Public Health England. However, I suggest to my noble friend that the important thing is to keep the public health constituency with us on this. It is important that it has a real involvement in choosing the chairman of this new agency. If it is involved, that will go someway to ensuring the agency will be a success. It should also be involved in the recruitment and appointment of the non-executive members. We have a highly credible organisation here that could be a very good model for Public Health England and I hope my noble friend will consider those points about the appointment of the chairman and the non-executives, and the formation of that board.

[Lord Warner]

I was the Minister responsible for the MHRA and very much share the noble Baroness’s views on this. There are some slight differences, one of which is that a lot of the funding for the MHRA, in effect, comes from the pharmaceutical industry, in terms of licence fees. However, I was well aware of the MHRA experience, and my own experience of it, in trying to craft Amendment 257ZA, which does bear some resemblance to that. I certainly would not argue with the idea that the number of non-executives under my amendment should be larger than three—it does say “at least three”. I will certainly go along with her that some outside expertise, in quite substantial numbers among the non-executives, is an extremely good model.

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[Baroness Northover]

It is proposed that the chief executive, who will be appointed in an open competition, will chair the board. Does that answer the noble Lord’s question? No.

[Baroness Cumberlege]

My Lords, that is great opportunity lost. If we are going to have an executive agency on the lines of the MHRA, that organisation has an independent chairman, not a civil servant. What we really want is an independent chairman. The majority on the NHS Commissioning Board are non-executives. I am very grateful to the Government for going some way, but a little stride further would be very welcome.

[Lord Patel]

I agree with the noble Baroness, Lady Cumberlege. Why does the Minister not think that there needs to be an independent chair?

Health and Social Care Bill

Baroness Cumberlege Excerpts

Monday 28th November 2011 Lords Chamber

[Baroness Cumberlege]

My Lords, I have tabled three amendments in this grouping: Amendments 110C, 131A and 190C. I am grateful to the noble Lord, Lord Patel, for supporting the amendments because they concern maternity services, and I do not think I could have anyone more distinguished than the past president of the Royal College of Obstetricians and Gynaecologists, although of course the noble Lord is also involved in many other things, not least this Bill. These are probing amendments, the first of which seeks a commitment from my noble friend the Minister that the Government, through commissioning at the national and the local level, will give women and their partners real and informed choice in maternity services. The second amendment would ensure that there is less variation in the quality of services provided, and the third concerns maternity networks, including independent midwives.

The variation in maternity services across the country is quite startling. Sometimes the poor performance is a reflection of a lack of resources or priorities, but one of the reasons for this is that maternity services have been overwhelmed by the rising number of births, including more complex cases. This is partly due to the increase in the number of older women giving birth. Last year the number of women giving birth aged over 40 was the highest since 1948, the post-war period, and we can surmise about that. In the past 10 years in England, the number of births overall has risen by 22 per cent, which means that more than 10,000 extra babies are born every month. There has been a modest increase in midwives, and we should be grateful for that, but they are being run ragged by this record-breaking baby boom.

The Bill seeks to ensure that the quality of NHS services will improve by using new and increasingly much more sophisticated commissioning systems. If this key objective is to be realised, it will require commissioning of a very high quality. Pathfinder clinical commissioning groups are beginning to get a grip and to understand the health needs of their local populations, but inevitably others will lag behind and we will see variations in commissioning. One of the ways to address this is through a NICE quality standard, as already discussed by the noble Lord, Lord Butler, and my noble friend Lord Newton. But as the noble Lord, Lord Walton, said, even when these standards are produced, advice from NICE is not always adhered to, and I understand that the queue for these quality standards to be produced is very long, with maternity services some way down the line.

On quality, proposed new Clause 13E(1) states that the NHS Commissioning Board should improve the quality of services in three areas: prevention, diagnosis and the treatment of illness. On prevention, however powerful the board is, it is going to find it a real task to prevent wanted pregnancies—even Solomon in all his glory failed to do that, and he knew quite a bit about babies. On diagnosis, I do not think there is much problem in diagnosing pregnancy, as it is usually pretty obvious to those concerned. On the treatment of illness, certainly most women who are pregnant are not ill; on the contrary, many take enormous care of themselves and are extremely fit and so will not need treatment for illness.

Looking at those three criteria in that subsection, I think that they do not fit with maternity services. Therefore, we have a lacuna, which I am trying to fill with my first amendment. I suggest that the Commissioning Board keep a watchful eye on the situation in England and use a means—possibly a specification or some other mechanism—which would act as a guide to enable commissioners to buy services from NHS trusts at a set quality, until NICE has produced its quality standards.

My second amendment concerns choice. I apologise because I think it has been positioned rather wrongly in the Bill, but it is another probing amendment.

“Pregnancy is a long and very special journey for a woman. It is a journey of dramatic physical, psychological and social change; of becoming a mother, of redefining family relationships and taking on the long-term responsibility for caring and cherishing a new-born child. Generations of women have travelled the same route, but each journey is unique”.

I wrote that in the foreword for Changing Childbirth, which was a government policy document that I produced many years ago. It is because each journey is unique that women and their partners should have as much choice as possible, because we know choice is empowering. Giving birth can be wonderful, but it is also very traumatic and the start to a new life can have long-term consequences for the baby as it enters childhood and later adult life.

New Clause 13I, places a duty on the board to enable patients to make choices in the services they receive. Pregnant women and their partners have four main choices when considering where to give birth: at home, in a free-standing midwifery unit, in a midwife-led unit situated alongside a hospital or in a hospital led by a team of obstetricians. This is the theory, but it does not actually work in practice. Delivered with Care, a national survey of women’s experiences of maternity care in 2010, undertaken by two very respected researchers in the field, found:

“Many women (80 %) were not aware of the four possible options for … birth”.

Therefore, how can potential parents choose when they are not even aware of the options? Why do health workers, especially GPs, seeing a woman at the first booking, not tell them what is available? The majority only tell them where to go, and that is hospital.

In a joint statement the Royal College of Obstetricians and Gynaecologists and the Royal College of Midwives, in their introduction to a paper on home births state:

“The rate of home births within the UK remains low at approximately 2%, but it is believed that if women had true choice the rate would be around 8-10%”.

It is part of government policy to give choice, including birth at home, to every pregnant woman. In Somerset 11.4 per cent of births are at home, whereas in Wansbeck the figure is just 0.1 per cent. Of course there may be a range of factors affecting this—I suspect housing and other conditions also play a part—but this discrepancy is so great that I am sure it is partly due to the fact that mothers were not even told what was available. I would like to ask the Minister how he sees the NHS Commissioning Board addressing its duty in new Clause 13I as to patient choice in maternity services. I appreciate this is quite a minority sport so the Minister may like to write to me on this issue.

My third amendment concerns maternity networks. Neonatal and cancer networks, where they work well, have proved to be highly effective. It is a model that those in maternity services wish to adopt. They believe that effective, inclusive and supported maternity networks have the potential to ensure that all women, within the network locality, are able to access the full range of services from pre-conception to early years. The networks would be able to promote choice within these services and work with all providers to ensure that women are offered and are able to exercise informed choice. The existing networks have received funding for their infrastructure, which has enabled them to be effective. Will my noble friend consider a similar commitment from the Government to support the development and sustainability of maternity provider networks and ensure that they are properly resourced?

Part of the network should be the care offered by independent midwives, who give a highly specialised and personalised service, accompanying the family through this wonderful but often stressful time in their lives. There are around 130 independent midwives in the country, but there are about 800 who would choose to work in this way if they could get professional indemnity insurance. Currently that is not the case because of market failure to provide for it.

The EU Council of Ministers has issued a directive on patients’ rights on cross-border healthcare that requires member states to ensure that systems of professional liability insurance are in place for treatment provided on their territory. The Government ratified this directive on 28 February this year, which means that all midwives in independent practice in the UK will need to be able to access this insurance from September 2013 in order to be registered with their regulatory body, the NMC. Without registration, they will not be able to practise midwifery legally; independent midwifery will disappear, unless a solution to the insurance conundrum is found. Can we really afford to let this happen when the maternity services are in such desperate need of experienced, skilled midwives?

The clock is ticking and the issue is urgent. I ask my noble friend, who is well aware of this difficult issue—we have met in the past to discuss it—to tell me when the Government are planning to publish their proposals and when independent midwives and other non-NHS bodies will be able to take up the NHS clinical indemnity arrangements planned for by the Government.

[Lord Mawson]

My Lords, I rise to support Amendment 131A proposed by the noble Baroness, Lady Cumberlege. My wife and I have three children and have experienced some choice as to whether they were born at home or in hospital. I must admit that this was not a matter to which my wife and I had given a great deal of thought when we had our first child 31 years ago. Then we naively assumed that having a child in hospital was fine and the normal practice. The doctor would look after us. However, the truth is that it was far from normal for a young married couple. We discovered later that everything that was done seemed to be focused not on the well-being of the patient—my wife and child; some would say the customers—but on the interests and timetable of the consultant. Medication was given that was not really needed to ensure that the child was born to fit some preordained hospital schedule, a timetable that I think had more to do with the consultant’s golfing schedule, I discovered later, than the interests of the mother and child. The experience left some scars.

Our second child was born at home in Tower Hamlets, under a new home birth scheme that was quite radical at the time and which was set up by Dr Wendy Savage. I must say that this experience was completely different. We all felt so much more relaxed and in charge of events, as best you can be on such occasions. It all happened rather quickly and in a relaxed atmosphere and was an experience of great joy for us all. The effects of this experience on mother and child, with a competent midwife present, were quite different. I must say that even I felt quite competent in making the tea. The first experience in hospital had all been about a culture of illness at the most important moment of parents’ lives; the latter was about health and well-being.

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[Lord Warner]

My Lords, can I ask the noble Earl a couple of questions, on which I would be grateful if he could write to me and to any other noble Lords who are interested? I found two of his answers a bit unconvincing. The first was on Amendment 144, tabled by the noble Lord, Lord Patel. I would really like to know how the Minister will ensure that the board will disseminate this information on patient safety and put it in the public arena to a wide group of people. At the moment, as the Bill is, it is left totally to the discretion of the board as to how it will behave. Secondly, I did not find the Minister’s answer on rare diseases and mandatory guidance very convincing. I would really like to know what discussions have taken place with those such as the Royal College of General Practitioners and clinical commissioning groups, about their appetite for making local decisions on these very rarefied diseases without the kind of mandatory guidance that the noble Lord, Lord Patel, spoke about. I do not expect an answer now but I would like some more written guidance on that.

[Baroness Cumberlege]

My Lords, I was heartened by a lot of what my noble friend said about maternity services, but it seems that the variations will be reduced through NICE quality standards. I understand that NICE has a very long queue of services to be considered for quality standards and I wonder whether my noble friend and the Government have any influence over which services have priority to have their standards set early and which will have to wait. As maternity involves a tremendous number of women who are giving birth, it is really important to get it in the front of the queue, as far as possible.

[Baroness Barker]

My Lords, can my noble friend tell me where in the legislation it is made clear, if a CCG were to have a conflict—that is, a disagreement—with the commissioning support organisation, where and how that conflict would be resolved?

Health and Social Care Bill

Baroness Cumberlege Excerpts

Tuesday 22nd November 2011 Lords Chamber

[Baroness Masham of Ilton]

My Lords, I spoke on this subject at Second Reading, and I want to go back in history for a few minutes. I remember that when the community health councils were closed down, the noble Earl, Lord Howe, and I felt strongly that the health forums which were put in their place should be independent. If a local healthwatch organisation is linked too closely to its local authority, it will be difficult for it to be able to speak out if it finds that both health and social care facilities are not up to scratch. What happens if they disagree with the CQC? Patients often need help, so an independent body would be much better to help them with their problems. It is vital that HealthWatch is adequately funded to do a useful job, otherwise it will fail. Perhaps I may give an example concerning a rural area. What happens if there are not adequate funds for the payment of members’ travel expenses? That has been found with the local LINks. I hope that the Minister will give this serious consideration.

[Baroness Cumberlege]

My Lords, I have listened to the debate, and some powerful arguments have been put forward for an independent HealthWatch England. However, I am not sure that that is the right answer. The noble Lord, Lord Harris, said that he feels that the Bill is setting up the new arrangements, and of course he is right. However, when one is setting up new arrangements, it is a good idea to look at what has happened in the past. Looking back to the confederation of CHCs, one sees that it never actually made an impact. I think that that was probably because the initiative for setting up that body came from the CHCs themselves, and so the confederation had no formal legitimacy, no clout and few resources.

[Lord Harris of Haringey]

I would not disagree with the point about the resources, but the initiative to set up the association—not a confederation—came from the noble Lord, Lord Owen, who was Minister of Health. He announced, in what he assumed would be a very positive fashion, that he wanted to see a national Association of Community Health Councils. However, as he had not spoken to community health councils first, they felt considerable dismay about the setting-up of a national association at the behest of a Minister. The resolution to support the creation of the association was carried—I cannot remember the precise figures—by something like only 107 to 93. I am afraid that the noble Baroness’s argument is flawed.

[Baroness Cumberlege]

My Lords, I am very grateful to the noble Lord, Lord Harris, for his history lesson. Perhaps I should not go on to the Commission for Patient and Public Involvement in Health. Perhaps he remembers that organisation, which never quite worked. I think that it did its best, but it failed to influence the Labour Government of the time. Perhaps it was a bit too strident. Maybe it was not canny enough. Maybe it did not build the relationships that are so critical when one is negotiating a change, especially with a big beast like a Government. Of course, the Labour Government closed that one down very hurriedly.

The proposal in the Bill is that HealthWatch England should be a committee of the CQC, as has already been said. There are advantages in that, provided that there are some safeguards in the way that it works. My three amendments seek to achieve those safeguards.

There are advantages in being at the top table, knowing what is going on, and building the necessary relationships to influence policy and practice. The CQC will, of course, have the resources to collect and analyse data on a national scale. Provided that it shares that data generously—and it must do so—it will enable HealthWatch England not to have to build its own infrastructure in order to operate effectively. That will also enable HealthWatch England to have a strategic role in shaping the new NHS. It is very important that it should not just be a sounding board for local issues, but should have a strategic vision as well. The CQC will of course learn of the issues that need addressing through the real experiences of patients, through HealthWatch England, which will be at the table.

We have to understand what both organisations bring to the party. The CQC is the regulator. Its duty is governed by the statutory standards for healthcare and it has the indicators to measure them, as set out in the Health and Social Care Act 2008. HealthWatch England brings something different: the priorities, the experiences and the views of patients and the public, through local healthwatch organisations. Played right, this combination could be very powerful. It could deliver the accountability that reflects both the priorities of government, derived from the democratic process, which I think of as the theory, and the actual experience of those who depend on health and social services during what may be the most vulnerable time in their lives, which is the reality.

If this combined perspective, to be embedded in regulation, is to work well, it is essential that HealthWatch cannot be dictated to or steered by the CQC. It must speak with a clear, strong, independent voice. This requires two things: first, the appropriate balance of membership within HealthWatch England; and, secondly, the appropriate status for its advice within the functions of the CQC. The status of HealthWatch England as a committee of the CQC may be quite pleasing in its value for money and its legislative simplicity, but it does not guarantee that clear, strong and independent voice. This is the voice of the victims who have been so badly let down by the NHS. It is the voice that has been chronicled so meticulously in the first Francis report on the mid-Staffordshire scandal, the Bristol inquiry, and other reports.

Therefore, my first amendment, Amendment 307A, ensures that the majority of the members of HealthWatch England are not also members of the CQC. This avoids the advice of HealthWatch England being biased through corporate responsibility with the CQC. My second amendment, Amendment 308A, ensures that the majority of the membership of HealthWatch England is elected from the members of local healthwatch organisations. This permits the introduction through regulation of provisions to ensure that elections cover local healthwatch organisations from across the country, and that representatives are elected through due process for an appropriate term and with appropriate accountability. We know that this works very well. We have seen regional elections to national bodies in the voluntary sector and even outside it, from student unions, to national professional associations, to the National Association of Citizens Advice Bureaux. The National Association of LINks Members recently conducted elections from its regions which were overseen externally and the process proved to be satisfactory.

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[Baroness Masham of Ilton]

My Lords, I want to ask the noble Baroness, Lady Cumberlege, about her safeguarding amendments, which are very interesting. Would she not also put down a safeguarding amendment about the funds? Jobs will not be able to be done unless funds are safeguarded.

[Baroness Cumberlege]

I will think about that. Having dealt with the Treasury in the past, I know how difficult it is to get anything ring-fenced. However, the noble Baroness’s suggestion is very interesting and I will take it on board.

We have examples of other consumer groups being very effective within their parent organisation. I think in particular of NICE, which has done a lot to get views on its work from the general public. The Council for Healthcare Regulatory Excellence has also done that.

[Lord Harris of Haringey]

I am sorry to intervene again on the noble Baroness, Lady Cumberlege. It is probably because we know each other too well that I feel able to interrupt at regular intervals. The examples she has just cited are examples of bodies that are there specifically to advise the organisation concerned. The consumer panels that NICE set up are about advising NICE about particular issues in terms of clinical effectiveness and what patients in that area are concerned about. They are not representing patients more generally and they are certainly not representing patients in terms of the statutory obligations of NICE and where there might be a disagreement about what NICE is doing. They are there to inform. That is the distinction.

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[Baroness Williams of Crosby]

My Lords, it would be very helpful if the Minister could say something about the proposals with regard to the accounts and financial statements made by CCGs, which will obviously depend a great deal on the guidance from the board.

I am concerned that a number of clinical commissioning groups without any great knowledge of how to deal with audit and financial problems will emerge. You could quite quickly see a commissioning group getting into difficulties, not because it was not performing well but because it had very little awareness of requirements relating to information on its conduct in relation to assets and finances that was needed to establish its standing as a proper clinical commissioning group. I am concerned because there is already some evidence of clinical commissioning groups seeming rather unclear about the accounting standards that they have to live by. It is important that the board makes very clear indeed what its expectations are and that it involves, as the amendment would require, the National Audit Office, which will become—and in some ways is already—a fundamental arbiter on the quality and standards of accounting practices.

I hope that the Government will consider the amendment carefully and that the Minister will let us know what the Government’s intentions are with regard to setting out the standards that they expect from clinical commissioning groups and that the board should lay down. The Bill is currently uncommunicative on the subject.

The whole process of procuring the pharmaceutical and other products that a commissioning group will need is always problematic. It is crucial that what is required is clearly set out, and that there is an indication under which we can compare one clinical commissioning group with another.

[Baroness Cumberlege]

My Lords, I should like to probe the amendment a little further because I think that it has a lot of merit, especially when one considers the PFI arrangements that have so destroyed the financial situation within the NHS.

I should like to ask the noble Lord, Lord Warner, about the accountability of the body. As I understand it, it is to be independent. I presume that he means independent in its membership as well as the way in which it works. I wonder where that accountability lies, whether there is a relationship with the business plan of the Commissioning Board and how the noble Lord sees the body working. Will the panel run for years and years, or will it exist just to set the standards at the beginning? Perhaps we could have a fuller picture.

[Lord Warner]

My Lords, I am seeking to set up something that would function in the early years of the national Commissioning Board. It would be independent in the sense that I did not want it to be dominated by NHS finance people. I want it to be a broader group of people than just those who have worked in the NHS. There is a tendency on the part of the NHS to think of itself as unique, special and different from other businesses, whereas it is a business which needs some business systems in it.

I am not someone who wants to keep bodies going in perpetuity. I am certainly open to negotiation on how long this one exists. I feel more strongly about the National Audit Office keeping an eye on this area. The national Commissioning Board needs some outside help to get this started, particularly in asset management, which is a long neglected area in the NHS, as I think the noble Baroness knows.

Some of the problems with PFI which she mentioned arise from the fact that the NHS has not had a track record of looking after its assets. It does not see them in the terms that a more commercial organisation would do. Many of the things that have gone wrong with PFI are not to do with there being anything inherently wrong with it, because it delivered a lot more hospitals more quickly and effectively than previous public procurement systems. What went wrong was the hubris in the NHS in many parts of the country about its ability to build a Taj Mahal district general hospital with some very dodgy income/revenue flows spread over time, most of the contracts being for 30 years. If one looks at the quality of some of the financial management in the NHS, it is not surprising that it could not do a very good job, even with some outside help, of getting a realistic idea of the revenue that it was likely to generate over 25 to 30 years to fund those projects.

Health and Social Care Bill

Baroness Cumberlege Excerpts

Tuesday 22nd November 2011 Lords Chamber

[Lord Warner]

I never thought that I would be outflanked on the Stalinist wing of the Labour Party by any Member of your Lordships’ House, but clearly I have that all wrong. I would be happy to strengthen these proposals because I rather share my noble friend’s view that I may be being a little wimpish here, but I was deferring to the elected politicians on this, probably unwisely. I am producing this rather wimpish proposal, but somewhere along the way we certainly have to have a trigger that is independent of the political process. We need some outside facilitation of change with the local people and we have to restrict, to some extent, the ability of elected Ministers to totally undo or avoid taking decisions in this area, possibly as much as my noble friend is saying.

[Baroness Cumberlege]

Those words are so warm to my heart, I cannot tell the noble Lord how much. One of the things that really concerns me is delay. I am worried that if we get this outside group it will delay matters, because some of this is very urgent at the moment. What is the relationship between this and the independent review panel—I am not sure what it is called—which deals with hospitals at the moment?

[Earl Howe]

It is the Independent Reconfiguration Panel.

[Baroness Cumberlege]

I am indebted to my noble friend for that. Does the Independent Reconfiguration Panel play a part in this? Is it something different? Do we have to go through that as well, in which case it will take even longer?

[Lord Warner]

Something equivalent to the Independent Reconfiguration Panel was used earlier in the system. It was put in to bat with the local area by Monitor when it saw trouble coming down the railway track in the form of failure. I envisage that a standing group of people would be approved to work in this area, which Monitor would be able to assemble very quickly. My amendment proposes that a timescale is set for this panel to work with local people and to come back with a solution to the problem, but I think that more people than are currently approved for the reconfiguration panel will be needed because of the points made by my noble friend. In many parts of the country we are likely to have to intervene quite quickly because we have spent a lot of time over the past 10 or 20 years putting off decisions about some of these places. A lot of these places will come to Ministers, the national Commissioning Board and Monitor over the next few years, so we will need quite a few different panels.