Health and Social Care Bill

Baroness Finlay of Llandaff Excerpts

Tuesday 25th October 2011 Lords Chamber

[Baroness Finlay of Llandaff]

My Lords, it has been said that if you do not know where you have come from, you do not know where you are going. It is important for us to remember what we are talking about: a nationalised healthcare provision that arose originally because there were people who could access no healthcare. We have a situation in this country that is the envy of the world: if you are seriously ill, by and large you will get treated well and, most of the time, to standards of international excellence irrespective of who you are, your financial means, your social standing or anything. That does not apply in other parts of the world.

Those of us who have spent any time in the US will have seen what happens to some people who are not covered. I will never forget a young black man I saw with a terrible cardiac condition. All the money had run out and he was dying in a hospital because there was no further treatment. I was a medical student then and it made me resolve never to practise privately, which I never have, and to do all I could to further the principles of the NHS.

I suggest that there is much merit in considering a preamble, as the noble Lord, Lord Mawhinney, has just outlined. This brief debate has shown that the wording of this preamble is not right—I am sure that the noble Baroness, Lady Thornton, will not be moving it today—but that there would be merit in taking it away and coming back to it at a later stage. Perhaps I am wrong and she intends to move it; I did not have that discussion with her beforehand. However, I suggest that there is much here to commend.

We have a country that is very worried about its NHS, which is much beloved because it is the universal insurance policy that everyone needs if things go terribly wrong and they lose their health. The NHS Constitution was universally welcomed because it set out simple principles. There is much merit in enshrining that at the front of the Bill partly because, as it is written now, it concurs with the NHS and the direction of travel, accepting lots of change, that we want to see. There is anxiety that this could be amended in future.

We have had scandals about bad patient care. We have heard about bad staff attitudes, things not being done properly and personal interest overriding the interests of the patient population. There is much to be said for looking at putting in the Bill the vocational role of patient care and the duty to the health of the nation for those who are well to prevent ill health where we can, maximise the potential of those who are ill and restore them as much as possible to quality living. In the delivery of that, everyone, wherever they are coming from, whether they are a state sector employee or a private commercial venture, should adhere to the Nolan principles. That very essence of how we care for each other in our society sets the moral tone for the whole of our society. The Nolan principles are, if you like, the minimum that we should require across the board.

There is the question of transparency and openness. Questions have already been raised during this debate about potential conflicts of interest for those commissioning who may also be providing. There is a need for transparency about financial transactions and other personal career interests that might be there—about family members working in different parts of the service, about where people’s thinking might be biased and distorted, and about where there may be a wish to cover up one thing or another for different motives but where transparency would serve the greater good better. Linked to that, of course, is openness.

There is much merit in stating up-front on the Bill where we want to go. Where the NHS has come from, starting before its foundation and then as it evolved, has served us better than the alternatives. We want to drive up care and we want to change. Much can be changed and made more efficient. Nobody is advocating fossilising the services we have, but the principles about what we are trying to do need to be in the Bill.

[Lord Mackay of Clashfern]

My Lords, in 1946, the then Government promoted the National Health Service. They did so in the National Health Service Act 1946. Section 1 of that Act states:

“It shall be the duty of the Minister of Health (hereafter in this Act referred to as ‘the Minister’) to promote the establishment in England and Wales of a comprehensive health service designed to secure improvement in the physical and mental health of the people of England and Wales and the prevention, diagnosis and treatment of illness, and for that purpose to provide or secure the effective provision of services in accordance with the following provisions of this Act”.

Section 1(2) states:

“The services so provided shall be free of charge, except where any provision of this Act expressly provides for the making and recovery of charges”.

These are plain, clear, concise words which completely incorporate the fundamental principles of the National Health Service, as they have done since 1946. What is more, these provisions are enforceable at law, as the decision quoted by the Constitution Committee shows. They are enforceable in law, clearly, easily, without difficulty.

The previous Labour Administration had many skilled Ministers in the Department of Health to my certain knowledge and I pay my warmest tribute to them. One of them was the noble Lord, Lord Darzi, and during his watch in this House the National Health Service constitution was promoted. As some of my noble friends have said, that was agreed by all parties. The noble Lord, on behalf of the Government, declined to put that in a statute. I questioned that, because if we are dealing with the constitution of the service, one would think that it should go into the statute that is the fundamental part of setting up the service.

The Act of Parliament incorporated a duty such as referred to in the first part of this amendment, to have regard to the constitution. Everyone in the health service had to have regard to the constitution. The Government declined to put that into legislation. When I asked the noble Lord, Lord Darzi, why that was, he explained that he did not wish the constitution of the NHS to become a plaything for lawyers.

Noble Lords will understand that that reason was not particularly attractive to me. On the other hand, the sense of what he was saying certainly was, and I accept that it was wise and is still wise. The obligation to have regard to the constitution is fundamental and remains. However, I do not believe that it is possible for us to provide a simpler, clearer and more effective preamble to the National Health Service Act at any time than that which was thought of by the founding fathers of the National Health Service in 1946.

I should point out that this is not strictly a preamble at all; it is a first clause in the Bill. However appropriate some of these sentiments may have been for a resolution at a party conference, they are not suitable for an Act of Parliament, in my respectful submission, because the provisions in an Act of Parliament should be enforceable. When we have such a clear constitution of the NHS and such a fine example in what was provided by the founding fathers, which is enforceable, I respectfully suggest that it is unwise to muddy the waters now. I embrace all the sentiments expressed in this draft amendment and hope that we will have them in mind as we go through our later deliberations. All the sentiments are very acceptable, with the exception of the one about the market, which I find a little difficult. However, I will not elaborate on that now.

I am extremely grateful to the noble Baroness, Lady Thornton, and the noble Lords, Lord Hennessy and Lord Owen, for discussing this matter with me yesterday. I greatly profited from that discussion. It took me back to the beginning of 1946 when I was a second-year student at university. I remember that one of the difficulties envisaged in the founding of the health service was the fact that family doctors—GPs—did not wish to be employed by the Government. Therefore, the constitution provided that the Secretary of State had to provide the service—he did that from time to time at the beginning in hospitals and so on—or secure the provision of the service. “Secure the provision” was, of course, the one operative for GPs. That has served us well. As far as I am concerned, the proposed constitution, however one appreciates the principles that it expresses, is neither as clear or precise nor as readily enforceable as what we have. I respectfully suggest to the noble Baroness that she might wish to consider that aspect.

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[Lord Patel]

My Lords, my name is added to this amendment along with that of the noble Lord, Lord Walton of Detchant. He has alluded to the need to include this amendment in the Bill. I consider that not only do we need it but that it is not strong enough. We may have to consider making it stronger. I say this because it is important to indicate on the face of the Bill that the Secretary of State has the responsibility to promote and secure a high-level of education in the whole of the workforce that delivers healthcare. I use the example of medical education and training but that applies equally to the training of nurses and other health professionals who are also regulated.

The current system of medical education and training—a model that is copied by many other countries and is widely respected—has evolved over many years. It is not something that was planned overnight and then executed. It has delivered well trained doctors who have improved healthcare. The system is complex and its essential relationships with different organisations and responsibilities are well documented. Only about 18 months ago, legislation was introduced which further changed the regulatory mechanisms for the training of doctors and nurses by making the General Medical Council the sole regulator of doctors’ training from entry to medical school to the day they retire, including postgraduate training, continuing professional development and revalidation. If we tinker with this, we run the risk of fragmenting it and making it inconsistent.

As my noble friend has already mentioned, under the GMC we have postgraduate deans, the royal colleges, the deaneries, undergraduate deaneries and the local hospitals where doctors are trained. These work together in a complex relationship to deliver high-quality medical education and training. The Department of Health has issued a consultation document, Liberating the NHS: Developing the Healthcare Workforce. Some of its proposals have caused a great deal of concern. If those proposals are implemented we run the risk of damaging what has been built up over many years. Adopting a localised approach to education, training and workforce planning to meet the short-term needs of employers will destroy the national training for a national workforce that has been developed over a long time.

There are many other concerns; for instance, the lack of clarity over the role of Health Education England. How will it hold education providers and commissioners to account? There are serious concerns about the continuing role of postgraduate deans, a very important group of people in the delivery and quality assurance of medical education and training. Uncertainties about the role of postgraduate deans are already leading to concerns about managing the recruitment of doctors into training in 2012. There is a lack of information about what part local skills networks will play and about the risk of serious damage occurring to workforce planning, and a lack of clarity about their governance and accountability. The training of doctors also includes training in research methodologies, as the noble Lord, Lord Walton, mentioned. Development of academic doctors is crucial. We already have a problem with recruitment to academic medicine. Therefore, training in research methodologies, postgraduate research and higher degrees in research is crucial. None of these is included in the Bill. They are not included because, we are told, there will be a second Bill. It might even be called the social care and health Bill as opposed to the Health and Social Care Bill. However, we are waiting for the responses from Future Forum, which is considering this. Then we will have the Government’s response, despite the fact that they have indicated that all the proposals in Liberating the NHS: Developing the Healthcare Workforce will need to be implemented by April 2012—the time is rather short. Perhaps the Minister will indicate when we are likely to see this Bill related to education and training. If there is not a satisfactory answer, we may have to consider putting a framework for medical education and training in this Bill.

[Baroness Finlay of Llandaff]

My Lords, I have two amendments in this group, but noble Lords who have looked at them will have noticed that they are almost identical. One of them has inverted commas in it. At this point, I ask the Committee to discount Amendment 8B because the inverted commas do not mean a great deal. However, I would like to take a moment out to pay tribute to those in the Public Bill Office, where this drafting error occurred, and I know exactly why. They have had unending patience, have been infinitely polite to everybody who has gone up there and have provided impartial advice when under enormous pressure. So if this is the only mistake they have made with my amendments, they have done amazingly well.

I would now like to quote from the report from Future Forum by Steve Field. In it he pointed out:

“The professional development of all staff providing NHS funded services is critical to the delivery of safe, high-quality care but is not being taken seriously enough”.

I am glad to see that the Government have also decided to put down an amendment providing that we should state on the face of this Bill the importance of education and training.

Amendment 8A is almost exactly the same as Amendment 6 except that it adds the words, “a nationally co-ordinated system”. The reason is that currently, the standards are set by deaneries, the royal colleges, the universities and the regulators. At the other end from the high-profile degrees and specialist competencies from the royal colleges, there are qualifications such as the NVQs, which have been used for training healthcare assistants. There has recently been much debate about the standard of healthcare assistants, but I think there is a foundation there that could be built on to raise standards across the board. However, it needs to be nationally co-ordinated rather than have lots of odd little bits of training in one particular area, because otherwise when staff transfer, the organisation of management of another area believes that they are adequately trained, when actually there is no national benchmark for that competency. That is why I put in the words “nationally co-ordinated”.

I turn to the amendment put down by the Government. I hope that the Minister will explain how those deaneries and those national co-ordinating bodies that set standards will link in. Will the national Commissioning Board and the clinical commissioning groups have to consider education and training in everything that they do? If they do, the deaneries will have a national planning function in conjunction with the royal colleges and specialist societies which set specific competency standards. I also wonder whether this government amendment, which talks about the health service in England, takes consideration of the NHS in Wales and Northern Ireland. If it does, how would that happen and, if it does not, what arrangements have been made with the devolved Administrations?

I should also ask whether the Secretary of State has a comprehensive duty. Will the national Commissioning Board and clinical commissioning groups have a duty to include education and training when deciding contracts and making commissioning decisions? If they do not do build in education and training right across the piece, will an appeal go to the Secretary of State?

In proposed new subsection (1) of the Government’s amendment, there is mention of,

“provision of services as part of the health service”.

Given the nature of the health service as we see it developing, am I right to understand that that would include all private providers, all voluntary sector providers and all public health and health protection arrangements? Am I right that any provider which does not then provide education and training would need to prove why they were exempt from providing it, if they have a contract for a specific service?

We heard earlier about the independent treatment centres and the sense that they had milked off some healthcare services but had not undertaken training and education. We hear now about specialist trainees in some of the disciplines. Orthopaedics is a clear example whereby a lot of shoulder and knee surgery is not being done in their training environment, so the trainees are not adequately exposed to the range of operations. Indeed, an orthopaedic surgeon contacted me about how she was crowded out in theatre by trainees desperate to watch her carry out a shoulder operation simply because they had not seen that operation done—whereas previously they had broader experience.

If the clinical care of patients is contracted out to private sector or voluntary sector providers, the clinical experience associated with providing that care, if it is high quality, will provide a fantastic education and training opportunity. If we are truly developing a healthcare workforce that will be comprehensive for the needs of the nation, it does not matter who owns the building or the service where that patient is being treated. If that is really high quality, there is much to be learnt. In all the years when I have asked patients if they minded students, postgraduates or whoever being present, there have been only two occasions when patients have said that they would prefer them not to be there—and they were for very understandable reasons. Everyone understands the need to educate and train, and the majority of patients understand that if the person looking after them is also teaching they are being held to account by the group that they are teaching.

Those are some of my questions to the Minister when he comes to speak to his amendment. I ask the noble Baroness, Lady Thornton, and the noble Lord, Lord Hunt of Kings Heath, whether they see the use of the word “comprehensive” as a duty on the national Commissioning Board and clinical commissioning groups, and whether, when they talk about delivering NHS services, they are intending that private providers and public health are included.

My final point is: whichever of these amendments is agreed—and I have a sneaking suspicion that mine will not be top of the polls; but that is the way it tumbles—the different providers, whoever they are, need to contribute to the cost of education and training. I suggest that when determining a tariff, those who do not contribute to education and training on a particular part that they are providing should not receive the full tariff because they will be ducking out of part of the ongoing responsibility to secure the nation’s health.

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[Lord Ribeiro]

My Lords, I thank the noble Lords, Lord Walton of Detchant and Lord Patel, for introducing this amendment. It highlights not only the importance of education and training in advance of the report that we will receive later in the autumn from the Future Forum group, but the fact that the Government have responded with an amendment of their own. That identifies the importance of bringing it on to the face of the Bill, so much so that it is right at the very beginning of Part 1. It is one of six duties that the Secretary of State now has to perform. That is very important.

It is quite understandable in a Chamber such as this one, full of doctors, that we tend to overemphasise the importance of medical education. As the noble Lord, Lord Turnberg, rightly said, nursing will be discussed later. However, it is not just about nursing. My wife is a physiotherapist—there are physiotherapists, radiographers and other healthcare workers as well. That is why the Government’s amendment talks about education and training without qualifying exactly which areas we are discussing. It is important that we bear that in mind.

The noble Baroness, Lady Finlay, I think, referred earlier to the independent sector treatment centres and the lack of training in that area. I must declare an interest as a past president of the Royal College of Surgeons. I had countless negotiations with the Department of Health to put into place a requirement for independent sector treatment centres to be able to train. The big issue was that all the surgeons and the ISTCs were overseas doctors. No UK doctors were allowed to train. We asked for a way in which we could introduce NHS consultants into what was effectively spare elective capacity. I fundamentally believe that we must separate emergency and elective surgery to produce the best-quality care for patients.

As a consultant, I would regularly do an out-patients’ clinic at Basildon hospital on Mondays. If I was also on call, as I sometimes was, I could be told that there was a patient in the emergency department who needed urgent treatment. That would ruin my out-patients’ clinic because I would have to go to theatre and sort out that patient. Our last assessment showed that 64 per cent of the general surgeons in Great Britain and Ireland have a responsibility to be on call while they are doing elective work. If you have that degree of commitment to doing two things, you cannot provide the best possible care for your patients. If NHS consultants could structure their work so that it was possible to work in a centre which was perhaps in the hospital—there are a few hospitals, including one in Nottingham, with elective centres within the hospital—or perhaps outside, they would be able to take their registrar and SHO to the independent sector and they would be able learn how to carry out the surgery.

[Baroness Finlay of Llandaff]

Perhaps I may ask for clarification from the noble Lord. I am not sure whether he is advocating that the duty in the government amendment should or should not be on every provider, whichever sector it is in. I tried to make it clear that I felt that the duty to provide education should be on everyone who provides patient services. I was hoping that the Minister would clarify that that was what was in the Government’s mind, so that history—what had happened before—could not be replicated.

[Lord Ribeiro]

I accept that point, although it might be difficult to implement when you consider the third sector and the voluntary sector, which may not be in a position to undertake education and training. That is a point to bear in mind.

[Baroness Finlay of Llandaff]

Forgive me but, as someone who works hugely in the voluntary sector and is a patron of many of the healthcare providers, perhaps I may point out that they carry out a great deal of education. An example is Marie Curie running NVQ courses for care assistants across the whole country. They are trying to drive up the standard of care given by people who are absolutely not at the medical end but whose care is critical to the quality of service that patients receive.

[Lord Ribeiro]

The noble Baroness makes her case but there is a wide spectrum of medical provision, and the question is whether this could be applied to every single provider. I am not clear about that but perhaps the Minister will be able to address it.

Returning to the question of training, I believe that through the Bill there is an opportunity, perhaps when the contracts for some of the independent sector treatment centres are up for renewal, to give some serious thought to whether these centres could provide the extra capacity that the NHS desperately needs if it is to go forward with the functional separation of emergency and elective care. I am of course talking about surgery and I recognise that that is a special case. None the less, we come from a history of one type of surgical provision to the situation in this Bill. If we are talking about quality as the indicator of the outcomes that we are looking for, it may well be possible to achieve this by utilising the ISTCs for NHS consultants. I shall give way if the noble Lord wishes to speak.

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[Baroness Finlay of Llandaff]

My Lords, perhaps I may briefly intervene to try better to clarify my concerns. I am not asking that small providers should have to account for all the education they provide. Let me give a specific example. If you have a hospice home care team, it is very appropriate that they should take nurses under training on placement. They can go out with the specialist nurses and learn about provision in the community. It will not cost the hospice anything, but the hospice management might feel that having students around is difficult because of regulatory functions and so on. All I am saying is this: if the management says that it will not take on students to learn about its excellent clinical service, it must justify why it is closing that educational door.

Similarly, if a group of physiotherapy providers dealing with back pain has an NHS contract, it would seem appropriate that it should take on physiotherapy students in order that they can observe and learn ways of managing back pain, which is what the group is primarily dealing with. Those students will get very good training. If the group says, “We do not want to take students”, then I suggest that it would be appropriate to point out in the contractual process that it needs to justify why it is refusing to provide education. Also, perhaps that group should not receive the full tariff because other providers will want to share their expertise for the greater good.

[Lord Alderdice]

My Lords, as I say, I understand the sentiments that the noble Baroness is trying to convey, but one has to be careful about generalising from one’s own experience, which might not necessarily fit everywhere. For example, a noble Lord said earlier that in a lifetime of clinical work, only a couple of patients had ever said that they did not want a trainee sitting in. I am afraid that psychiatry and the psychological services are a wholly different ball game. Whenever we were setting up for trainees, we had to warn them in advance that one in every three patients would not allow them to sit in on an assessment because of its personal nature. When you are living in a smallish community, as mine is, where people know people who know people, these things are much more of an issue.

It you make demands of some of the NGOs and smaller community services—demands that may be completely appropriate in a larger setting such as hospice care—that is quite a different thing. I accept absolutely what the noble Baroness is saying, but please let us not make a rule for everybody which may detract from some provision that is entirely appropriate.

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[The Earl of Listowel]

I thank the noble Lord. I can see the difference and I thank him for that helpful correction.

[Baroness Finlay of Llandaff]

Before the Minister resumes his speech—I am sorry to do this, but I would like clarification. From what he has said, I understood that under this amendment the Secretary of State will not have a comprehensive duty, so that if Health Education England finds that the National Commissioning Board and the clinical commissioning groups are not making provision for education within the commissioning process that they set in place, the appeal would not go to the Secretary of State. I am not sure who the educational providers would appeal to if Health Education England found that it could not function because the commissioning process was not allowing for education.

[Earl Howe]

Perhaps I may just clarify some of this. The wording of the government amendment could not be clearer:

“The Secretary of State must exercise the functions … so as to secure that there is an effective system for the planning and delivery of education and training”.

That means that he is ultimately accountable. Of course, he will be answering questions in front of the Select Committee or Parliament: that is a given in relation to education and training, as it is for anything else. The role of Ministers in Parliament will not change. Ministers will still answer letters, Written Questions and so on. Whatever system we put in place, the government amendment makes the Secretary of State’s ultimate accountability and responsibility for ensuring an effective system absolutely clear. However, many of the questions that have been asked—I was very grateful to the noble Earl, Lord Listowel, for what he said—are about how the system will work, and that is a matter on which we are still listening to stakeholders.