Health and Social Care Bill

Baroness Finlay of Llandaff Excerpts

Monday 28th November 2011 Lords Chamber

[Baroness Williams of Crosby]

My Lords, the Department of Health will be aware that with a freedom of information request there are always considerable burdens on those who argue that the information should not be conceded. Has the Minister given any thought to the possibility of a limited redaction of the report rather than not making it available at all, or alternatively whether there are parts of it that he feels could be made available so that the House can consider more deeply the issues that are coming up? I share the view of the noble Lord, Lord Campbell-Savours, that on the issue of how Parliament handles the legislation and the implications for the transition, certain things from the register might be useful, although I recognise that some extreme cases might be picked up by the tabloids and be changed into sensational reporting. Could the Minister possibly consider that qualification more seriously than we have been able to do so far?

[Baroness Finlay of Llandaff]

My Lords, I would be grateful if the Minister could let us know whether the department considered the BMA resolution in council at the end of last week to now oppose the Bill and campaign against it, when the BMA was coming to its decision to appeal against the release of the information. If not, will it be considered in the next steps the Government take, given that it signals a major loss of confidence in the Bill by the BMA?

[Lord Stoddart of Swindon]

How long is it likely to take for the appeal and the decision? If the decision disallows the appeal, will the Government accept that?

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Amendment 110ZA refers to specialist nurses, who of course do a marvellous job. I owe them some personal gratitude, although I will not enlarge on that to noble Lords. The specialist nurses who are threatened are those in the community, who work across the community-NHS divide. They include specialist diabetes nurses, stoma care nurses, psychiatric nurses and a range of others. They do a fantastic job but, unfortunately, they are threatened. I hope we can see our way to making them unthreatened by ensuring that their joint funding, which comes partly from the local authority and partly from the NHS, is encouraged by the board and takes place. Will the noble Earl try to ensure that the board can promote this idea?

[Baroness Finlay of Llandaff]

My Lords, I have put my name to several of the amendments in this group—namely, Amendments 112, 113, 115, 186, 187 and 189—all of which are aimed at reducing inequalities. The noble Baroness, Lady Williams, has spoken about this. I will not repeat her arguments, other than simply to say that my reason for adding my name to these amendments was that it struck me that the words “act with a view to reducing inequalities” were not strong enough. Unless commissioning must have regard to the need to reduce inequalities, we will not improve the health of the nation.

Perhaps I may make a comment on Amendment 109A, which is a probing amendment and refers to NICE. I just want to place on record other areas of standard-establishment, such as the National Prescribing Centre and the audits and independent service reviews that are undertaken by the medical royal colleges. These are available and can be very informative. The service accreditation standards that they have produced are aimed at driving the equality improvement agenda and draw to the attention of the Commissioning Board and clinical commissioning groups the role of audits and the information that they can receive from audits, which are intended to drive up equality and reduce inequalities in service provision.

I also have in my name Amendment 299C, which seems to be almost an orphan amendment in this group but is there. It relates to private work. My reason for tabling it is that for a long time there has been confusion over what is private and what is NHS. The Bill also highlights a complexity about what is private and what is third-sector provision. Until now, third-sector services outside the NHS have generally tended to be lumped together in regulation. We will be facing different models in the non-NHS sector ranging from for-profit, through not-for-profit, to the voluntary sector as we know it today. One of the difficulties is making sure that patients are not recruited into the private practice of an individual who sees them during an NHS consultation. The fine balance between information-giving and recruiting should be clarified in guidance. Patients may ask what the waiting time is and whether they could have their intervention, investigation or whatever done more quickly if they went privately. I am concerned that the way the information is given may skew the patient’s perception of it and the patient can then feel they actually ought to go privately. This may be for the profit of that individual practitioner but not necessarily make a great deal of difference to the clinical outcome of the patient.

It is, therefore, a very difficult and fine line, but unless we begin to address it now, we will run into the same problems as we have had, for example, with top-up payments, where we had a lot of debates leading to the establishment of the Cancer Drugs Fund across the UK. We will be facing the same situation, but more so, with many other drugs that come along for non-cancer diseases. The new biologics are very powerful drugs which can be extremely effective but are extremely expensive. I am concerned that a commissioning group might decide that one of these new biologic drugs, even though it goes through all the benchmarking standards required, is something they are just not going to pay for locally. Private sector provision will, therefore, be driving patients who cannot afford to access these treatments, who are not privately insured, and whose quality of life is so severely undermined by their illness—because it is only for severe disease that these drugs are indicated—that they will not be able to work or earn without accessing them. They could therefore find themselves in a double bind.

My amendment is, of course, a probing amendment and I would not intend it to be anything more. If the Minister does not want to respond to these points today, I would nevertheless urge him at least to consider them in the guidance produced for the Commissioning Board and providers on the interface between the public and private sectors.

[Lord Newton of Braintree]

As this is Committee stage, I hope my noble friends will forgive me if I play Oliver Twist and seek a small second bite. I promise to be brief and make only three points. The first picks up on maternity and the remarks of the noble Lord, Lord Mawson, about consultants versus patients, if I may put it that way. I remember, in the far-off days when I used to sign 18th birthday cards to prospective or actual constituents, noticing a remarkable bunching. If you checked back 18 years you would find a correlation with Fridays and particularly the period in the run-up to a bank holiday. Secondly, nobody else has followed up the amendment of the noble Baroness, Lady Royall, about specialist nurses. I have an interest to declare here as—there are probably other things as well—president of the Braintree Parkinson’s Disease Society and the Braintree Multiple Sclerosis Society. The importance of specialist nurses in some of these areas is both extremely great and underestimated. I hope that we will therefore not lose sight of the point made by the noble Baroness, Lady Royall, in her amendment, supported by the noble Baroness, Lady Thornton.

Thirdly, to assure the noble Lord, Lord Walton—who I thought was at one stage going to accuse me of being a wimp for not pressing this to a vote—I do not rule out returning to the matter on Report, unless the Minister is really nice to me.

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The inclusion of the word “involve” necessitates an active role for the patient in the commissioning processes. Different patient groups will require different levels of consultation involving different clinical and social networks in order for them to be considered to be actively participating. The board and clinical commissioning groups will be responsible for ensuring that the procedures are in place to make this happen. By explicitly stating in the Bill the requirement to arrange for patients to be involved, the necessary assurance will be provided. My Amendment 128 therefore requires the board to publish in its annual report a paragraph on what advice it received and what it did with it. I beg to move.

[Baroness Finlay of Llandaff]

My Lords, I have put my name to several amendments in this group, some of which are in my name only. Initially, I will speak to Amendments 125A, 125B, 195A and 195B. These are designed to ensure that the Commissioning Board considers the potentially destabilising effect of new providers choosing to deliver only simple or profitable services, and the effect on existing providers who provide a wider range of services. Clause 101 includes provision for providers,

“to set transparent eligibility and selection criteria",

in relation to treating NHS patients. This is intended to ensure that risk selection does not take place on the part of providers, whereby they accept for treatment only less complex cases or patients, with a view to maximising profit. The Bill also instructs Monitor and the board to take account of the different types of patients treated by providers, and the range of services offered. The amendments suggest that this must also be considered in the national tariff, when that is used, because in looking at tariff adjustments, the Bill does not adequately safeguard against the potentially destabilising effect on existing providers, where other providers choose to deliver only simple or profitable services.

This could increase the relative burden on those providers who deliver a wide range of services, including ones that are more complex and less profitable; also when they provide support at a tertiary rather than a secondary care level, they are providing support into other secondary care services. The amendments would ensure that when the board and clinical commissioning groups discharge their duties in relation to patient choice, they have regard to the effect on the stability of the local health economy and the providers within it; and that they provide this wide range for their patients.

I have made inquiries about what is already happening around the country and I am grateful to the British Association of Dermatologists for giving me some information. It has reported to me that private providers already appear to have been awarded contracts without the appropriate range of specialist staff in situ when starting a service; and private providers appear to be contracted to deliver services that are not necessarily integrated with the existing local secondary care services. They are also decommissioning in isolation without looking at the impact on other local specialist services. For a subject such as dermatology, that becomes really important, because it has a small but important role when extremely complex conditions are looked after by other secondary care providers, and where sometimes the skin holds a light to the true diagnosis.

The association has also drawn to my attention the problem in which some providers set up outpatient clinics which have no educational component. By doing that, they are setting up clinics which are unsuitable for secondary care training, both to doctors in training and nurses who want to train to become specialist nurses. This is a field in which a rising number of specialist nurses have an increasingly important role. The amendments are also designed to make sure that choice is appropriate and that the Commissioning Board does not have to prioritise patient choice over efficiency and effectiveness; quality of services; or over its duties to reduce inequalities and promote integration. These are important duties in the Bill, which many of us have welcomed. I hope that the priority for those is paramount, because they will affect the population at large and reduce inequalities.

Regarding Amendments 175A and 175B, I want to outline briefly why it would be important to be able to appoint a secondary care clinician from within a clinical commissioning group area, rather than being restricted either to somebody from outside the area or somebody who is retired. As we have already debated, there is a great need to promote integration. The report Teams Without Walls, to which I have already referred, stressed the importance of this integration with clinical leadership across primary and secondary care. The Government’s commitment, in response to the Future Forum’s report, that clinical commissioning boards would include at least one specialist doctor and a nurse was welcomed. I hope there will be some reciprocity by having a general practitioner representation on the board at foundation NHS trust board level, at a governance level, to facilitate such integration.

I was concerned that the Secretary of State for Health stated that a hospital doctor on the Commissioning Board should either be from outside the area or be retired. I was particularly concerned about the latter, because there did not seem to be any statement about how recently that person should have retired. People rapidly become out of date with what is going on in an area. For those doctors who work in a fairly large geographical area, it would mean that the secondary care doctor may have to travel a great distance, and perhaps be represented on the clinical commissioning group of an area where the secondary care services are pretty well unknown to him. In saying that, I draw on my own experience of being previously on a health board simply adjacent to the one in which I worked. There were many times when I felt I could contribute much more at a local level, across different services, because of having an in-depth knowledge, than having to explore the various ramifications of secondary care services in the area of the health board on which I sat before I was able to contribute fully to the debate within the board itself.

I also believe that it would help to drive up standards if somebody came from within the board. In saying that, it is important that we learn lessons from problems that have arisen. No one wants to prejudge what the Francis inquiry will recommend but the transcript of the oral evidence that doctors gave to the inquiry appears to indicate that the doctors and the hospital were isolated; that they did not have good networks with other local doctors who worked in different environments; and that when they complained about standards of care they did not report their concerns outside the trust’s structures. That suggests a degree of geographical isolation. There would be merit in reconsidering the stipulation and the restriction that the doctor must be drawn from outside the area.

I do not believe that appointing a clinician from within the clinical commissioning group area results in an unmanageable conflict of interest. First, the role of the secondary care doctor is to offer expertise to inform commissioning decision-making, not to represent one hospital or one specialty. Secondly, GPs will have the same degree of conflict of interest. Therefore, I suggest that the safeguards against this affecting their decision-making need to apply to other healthcare professionals—whoever they are—who sit on the clinical commissioning boards. That also applies to the nurse who sits on the board.

Since the secondary care doctor would not represent any one provider or specialty, there would be no conflict. The model of having a single representative across specialties is not new and exists within the current system—for example, with medical directors in trusts. Other clinical advice will come from clinical networks and senates, and there will be a degree of co-terminosity in the advice received by the clinical commissioning group. That might allow a degree of consistency, which would support some of the difficult decisions that the group will have to make, particularly about issues such as decommissioning services. Therefore, the secondary care doctor will not be able to overrule or push a personal agenda. They will be bound to governing board decisions in the usual way and should have no right of veto. I hope that the Government will reconsider the position of the person on the clinical commissioning group.

For the involvement of patients, it is important to differentiate between public involvement and the involvement of each individual patient in the management of their care and treatment. Amendments 194 and 195 seem important if the mantra and important principle of “no decision about me without me” is to be made real. That phrase is one of the most important things that this Government have put in place. It is certainly a phrase that I have often used in making presentations about various aspects of healthcare delivery.

The importance of involving patients is made clear when you look at the 17 million patients with long-term conditions, many of whom provide more than 80 per cent of their care themselves or with the help of their relatives. If patients understand what is going on with their illness and how to manage their condition, their demands on the health service will decrease. The Health Foundation is developing ways of embedding techniques for supporting people to manage their care and treatment through its Co-creating Health programme. This has already been shown to have excellent outcomes by empowering individual patients to take a degree of control over their own illness and condition. Therefore, I hope that the amendments in my name will be considered by the Government in revising some of the apparently restrictive aspects of the Bill.

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[Lord Patel]

My Lords, I support the amendments tabled by the noble Lord, Lord Warner, to which I have added my name.

First, I will speak very briefly about innovation and procurement. I also contributed to the report by the Science and Technology Committee on procurement. The public sector could learn a lot from the private sector about using procurement to drive innovation. Perhaps the Minister can comment on this. The NHS is a huge organisation that uses about £20 billion-worth of procurement a year and if that was done in a co-ordinated way, it could drive an immense amount of innovation within the NHS.

My second point is about how to drive innovation into clinical care. There are lots of examples I could give, but I will give one from my own specialty. It took us 20 years to take the learning from research into the kind of treatment to be given to the mother in premature labour that would considerably reduce the incidence of respiratory distress syndrome, which causes a lot of harm and death in neonates, and embed that into practice. There are lots of examples of such innovations not being embedded into the NHS and we need to look at ways of doing that faster.

My third point is how to use tariffs to drive innovation. If I as a provider will not be given a higher tariff if I drive innovation or innovate a different way of providing the service, and all that will happen is that the tariff for procuring my services as a provider will be less the following year, there is less incentive for me to use innovation in clinical care to improve patient care and also to make it cheaper.

The fourth issue is about an innovation fund, which I support. Together with the Wellcome Trust, the Government have an innovation challenge fund that asks for tenders in particular areas of innovation. The one I know about is in reducing infection rates. Innovation funds of this kind will drive further innovation; for example, in the United States Medicaid and Medicare have a joint innovation fund to drive improvements in healthcare. So I support that amendment.

[Baroness Finlay of Llandaff]

My Lords, I rise to speak briefly to Amendment 129ZA, which is really a probing amendment. I hope that the Minister will be able to explain what these “prizes” are that are referred to in the Bill. The Explanatory Notes do not really help. They talk about the Bill providing for,

“the NHS Commissioning Board to make payments as prizes in order to promote innovation in the provision of health services”,

and that:

“Innovation will originate primarily from the actions of commissioners and providers but it is intended that the NHS Commissioning Board will take a lead role in promoting it”.

The changes should bring about continuous improvement and innovation often happens outside the main NHS. Indeed, in my own discipline, end-of-life care, the innovations have happened by and large in the third sector, particularly in care in the last 48 hours of life. In some ways, this is where these organisations, the different hospices and those working with them, have felt freed up to pilot different ways of doing things which have subsequently been adopted within the NHS.

There is a huge need for more health services research and for good, qualitative methodology. My only anxiety about the word “prizes” being in the Bill is not that I do not want innovation to happen—I desperately want innovation to improve services for patients—but that I want to make sure that innovations are also properly evaluated; that they are piloted, evaluated and audited in the long term. It is terribly easy for people to have great flashes of inspiration and great ideas but they might not necessarily roll out appropriately across all aspects of the health service. Many of us have seen innovations that seem to be excellent in one setting but when they are rolled out without adequate support and training, mistakes are made and problems arise.

I had the privilege of chairing the commission into medical generalism, and our report noted the shortfall in both funding in primary care and in researching ways of delivering primary care to common conditions. We welcomed the National School of Primary Care Research and the recognition that more funding was needed, but we urged the MRC and other funders to create a dedicated funding stream for clinical research in primary care as it is difficult to secure funding. I hope the Minister will explain what these “prizes” are and say that they will in no way detract from the much needed research funding to really evaluate innovations and innovative ideas, particularly in primary care.