Health and Care Bill

Baroness Finlay of Llandaff Excerpts

Lords Hansard - Part 2 & Committee stage
Monday 31st January 2022 Lords Chamber

[Baroness Finlay of Llandaff (CB)]

My Lords, I am most grateful to the Minister for introducing these amendments as he did and for giving us the assurance that John Baron, who had worked so hard on all of these issues around cancer care and cancer outcomes, has been fully consulted and is fully supportive of them. I was heartened to hear his stress on early diagnosis. All too often at the moment, patients are diagnosed in emergency departments when presenting late because their condition, for whatever reason, has been missed. We certainly need more early diagnostic tests to be available.

I am also grateful to the noble Lord, Lord Moylan, for speaking about a cancer which, in my experience in palliative medicine, is often within our domain. Indeed, I hope that the Minister might be able to find a way of supporting my colleague Professor Katherine Sleeman at King’s, who wants to establish a What Works centre, for a remarkably small amount of money, in order to roll out best practice in the way that the noble Lord, Lord Moylan, recommended. I do not expect the Minister to answer that now—perhaps we can discuss it later—but there certainly is a need to roll out best practice widely, not only from the cancer centres but out into the cancer units and beyond those to the general NHS.

Up until now we have had too much of an emphasis on process. This switch in emphasis to outcomes is most welcome; I expect everyone to strongly support these amendments.

[Lord Aberdare (CB)]

My Lords, I too am pleased to speak in support of the amendment addressing pancreatic cancer tabled by the noble Lord, Lord Moylan, to which I have added my name. I am grateful to the noble Lord for sharing a draft of his speech with me so that I have no need to test your Lordships’ patience by repeating facts and arguments that he and, indeed, the noble Baronesses, Lady Morgan and Lady Finlay, have already stated so tellingly.

I shall just emphasise a couple of points. I imagine that most, if not all, of your Lordships either know or know of someone who has died of this horrific cancer. Few survive more than a few months, unless they are lucky enough to be among the small number—I think it is about two in five people—whose cancer is diagnosed early enough to be operable. I find it quite shocking that the UK still lags so far behind other countries; as we heard, it is 29th out of 33 countries for its five-year pancreatic cancer survival rates. Research spending on pancreatic cancer is scarcely a quarter of that on leukaemia, for example, and supports correspondingly few researchers and projects. Hopefully, the noble Baroness’s friend may get some more of that.

There is a sort of vicious circle: because pancreatic cancer is so deadly, few patients are fit enough for long enough to take part in clinical trials, and few researchers are attracted to specialise in a condition that is widely regarded as a death sentence. The noble Lord’s amendment would build on the welcome audit of pancreatic cancer that he mentioned, seeking to ensure that its findings are regularly published, that they contribute to better information about pancreatic cancer and lead to specific action to address the issues identified—hopefully, the action may happen first and the audit later—while at the same time seeking to increase provision of PERT through national guidance and regular reporting.

Like the noble Lord, I wanted to mention that there are similar issues with other rare and aggressive cancers in this part of the body, such as bile duct cancer, and these too are often diagnosed too late for successful treatment. Even when surgery is available, the prognosis may be poor. Ideally, there should surely be an integrated approach to expedite diagnosis and treatment for all these cancers, and better information to help GPs and other healthcare workers to recognise their symptoms.

I very much hope that the Minister can give some reassurance on how the system being created by this Bill, including the revised NHS mandate on cancer outcome targets, will help to address the challenges of pancreatic and related cancers with some urgency, so that we can at last start to narrow the gap with other countries in treating them. I also very much support the government amendments that broaden the range of factors covered by cancer outcome objectives.

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[Lord Sharkey (LD)]

My Lords, as the noble Baroness, Lady Brinton, said, I have given notice of my intention to oppose the Motion that Clause 136 stand part. This clause is yet another example of the Government’s abuse of delegated legislation and the avoidance of any meaningful parliamentary scrutiny. It is also a clear and obvious breach of an important constitutional convention.

Clause 136 amends the Healthcare (European Economic Area and Switzerland Arrangements) Act 2019, which started off life as the Healthcare (International Arrangements) Bill, as we just heard. It would enable the Government to implement healthcare agreements with countries outside the European Economic Area and Switzerland. The exercise of the powers in this clause is through regulations subject only to the negative procedure. The department points to the 2019 Act as for seeking these powers, despite what we just heard from the noble Baroness, Lady Brinton.

During the passage of the then Bill in 2018-19, the Government justified or tried to justify taking the relevant powers as the need for speed and flexibility in the extraordinary circumstances of the EU withdrawal process. Parliament did not accept the provisions in the original Bill that the powers should be geographically and temporarily unlimited. After interventions by Parliament, the powers ended up being confined to the EEA and Switzerland and being sunsetted.

The department may be correct to state that the Secretary of State currently lacks the necessary powers to implement reciprocal healthcare agreements with countries outside the European Economic Area and Switzerland. However, this does not mean that there is currently no way to implement such agreements. They could and should be implemented by primary legislation. This would be in keeping with a long-standing constitutional convention that, outside the exceptional case of making provision for EU law, international legal agreements that make changes to UK law are given domestic force by an Act of Parliament. This ensures proper parliamentary scrutiny.

Our committees have pointed out breaches of this convention to the Government on several recent occasions. The last occasion was the proceedings of what was originally the Healthcare (International Arrangements) Bill, as I have just mentioned. Before that, the DPRRC commented on the breaches of this convention in the Professional Qualifications Bill in May 2021 and the Private International Law (Implementation of Agreements) Bill in March 2020. The Constitution Committee commented on the same Bill in its May 2020 report and concluded that:

“It is inappropriate for a whole category of international agreements to be made purely by delegated legislation.”


This is exactly what the Government are proposing in Clause 136.

The department does not address why such international healthcare agreements could not be implemented by primary legislation. We could try to remedy this abuse of delegated powers and breach of convention, as we did with the 2019 Act, by limiting their application and by sunsetting provisions. But, without a clearer understanding—or indeed any understanding—of exactly what agreements the department intends to use these powers for, it is not really possible to limit the power as we did then. The powers could also be sunsetted, as per that Act, but it is clear this would be inappropriate, given there is no longer a pressing time constraint on their use, unlike the then imminent departure from the EU. A better solution would be for the Government to abide by the constitutional convention and bring forward the appropriate primary legislation. That is the only way in which to enable any meaningful parliamentary scrutiny of these important reciprocal arrangements.

I look forward to the Minister’s explanation of why it is necessary to bypass Parliament and breach the constitutional convention in the manner proposed. I understand why it may be convenient, but cannot see why it is necessary or proper. We will certainly return to this issue as the Bill progresses.

[Baroness Finlay of Llandaff (CB)]

My Lords, I am most grateful to the noble Lord, Lord Sharkey, for that completely comprehensive overview of the problem with this clause. I simply have some questions relating to it. We have devolved powers in the devolved nations of the United Kingdom and, to my understanding, this clause does not oblige the Government to have undertaken a comprehensive consultation with them before entering into such an agreement. It does not seem to require legislative competence before such legislation is proposed, and that legislation certainly would not come before this Parliament anyway.

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Moved by

[Baroness Finlay of Llandaff]

236: After Clause 140, insert the following new Clause—
“Registration of tertiary prevention activities in respect of provision of social care
In section 9 of the Health and Social Care Act 2008, in subsection (3) at the end insert “or any form of reablement and rehabilitation provided under section 2 of the Care Act 2014 to reduce the need for care and support”.”Member’s explanatory statement
This new Clause would bring reablement and rehabilitation provided under Section 2 of the Care Act 2014 to reduce the need for care and support into the purview of the Care Quality Commission.

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[Baroness Finlay of Llandaff (CB)]

My Lords, this group of amendments is concerned with rehabilitation services. Very briefly, because the hour is very late, I will set out why it matters so much.

People in hospital, as the Minister said previously, lose muscle mass at an alarming rate when they are confined to bed. They risk thrombosis, lose their ability to balance, their confidence and their social contacts, and can become lonelier, isolated from friends and family, and depressed as they see themselves able to do less and less. They then become terrified of going home and often feel quite dumped when they get home because there is a sudden cliff edge from being supported in an environment to feeling like there is no one there. That same cliff edge also happens for patients when they leave intensive care units and go from the very intensive care down to a general ward—so we have huge steps in our system at the moment.

Assessment in hospital, as has often happened, does not often make any sense, because people know their own home. So assessing whether someone can make a cup of tea in a hospital kitchen may bear no relationship at all to their own kettle, their own kitchen, the floor, where they keep things, and so on. They need to be in their own home to be assessed. In their own home, there are often trip hazards, if they are not detected, and if people are not supported to navigate around their own home and furniture, they will have a fall and end up back in hospital very quickly. They need seven-day support at home, because they need to have people whom they can contact.

The problem is that, at the moment, recovery and maintenance of personal independence, although central to the Government’s long-term ambition for social care services, just do not seem to be integrated. In the document, People at the Heart of Care, there is a reference on 68 occasions to the importance of the role of adult care services in maintaining independence for people at home in the community, but there is no mention of local authority rehabilitation services at all.

Rehabilitation services in the community are not subject to regular monitoring and inspection. There are no consequences for poor or absent provision beyond individual complaints, which is why this amendment proposes that they should be brought into the purview of the Care Quality Commission. In the other place, the Minister Edward Argar stated his belief that services were already covered by the existing legislation. But that is not the everyday experience in operation. For example, if we look at vision rehabilitation services, in an audit undertaken by the RNIB, half of the lead counsellors for rehabilitation had no idea that vision rehabilitation was in their remit.

I shall move on rapidly to Amendment 241, because these amendments are all linked. I should have said at the outset that these have been proposed and supported also by the Chartered Society of Physiotherapy, of which I am president. In this amendment, in large part, professions involved in local authority rehabilitation are regulated bodies with recognition in health, such as OTs, physios and speech and language therapists. But there are other people in local authorities involved in providing rehabilitation who are currently completely unregulated and unregistered, so the Rehabilitation Workers Professional Network is currently seeking registration with the Professional Standards Authority in order to take this group of staff on to a list of statutorily regulated social care staff.

Amendment 306, also in this group, would bring local authority reablement and rehabilitation activities, defined by care and support statutory guidance as tertiary prevention, into regulation and enable the Secretary of State to require information on how the service is operated. Anecdotally, there is wide, unwarranted variation in both the quality and breadth of service offered across England. There is no centralised reporting of performance. Bringing these services explicitly into regulation would enable NICE to develop guidelines and quality statements that could be used to inform the quality of provision of services, which, as I have already said, could then be properly inspected. We might then get nearer to having a level playing field.

I also have my name to the amendment of the noble Baroness, Lady Greengross, which is about hospital accommodation, and I will speak to it briefly. At the moment, we have a severe shortage of beds. We know that patients come out of ICU to general wards, and there are patients who cannot then be discharged to home. Often, they are in that twilight where they are really not well enough to go home. They need more rehabilitation, they need more support, but the hospital is deeming them fit to discharge because of the incoming pressure on their beds.

If we had some more step-down beds, we could provide care in much more imaginative ways, such as happens in some parts of Europe, where, for example, family members are expected to come in and help with some of the basic care—feeding, personal hygiene and so on—of their own relative, as they all get used to rehabilitating together, so that that person can go home with that family member understanding how to care for them and what to do, and therefore being able to support them better in the community and pick up early warning signs.

We need to learn from the military rehabilitation units and the new NHS national rehabilitation centre that is being built near Loughborough, because there is evidence that if you can move people through the system more appropriately and get them back home, they recover better and quicker and do not risk that deterioration I referred to at the beginning. A community rehabilitation plan would improve co-ordination, integration of rehabilitation units and community rehabilitation. I beg to move.

[Baroness Walmsley (LD)]

My Lords, numerous reports from Select Committees of your Lordships’ House have recommended that the NHS and care system do things differently in order to use resources efficiently while providing better care and independence for patients. It is well known that most of us cost the NHS more as we get older, particularly if we have multiple morbidities. This is why the Government launched the Ageing Society Grand Challenge—to achieve five additional years of healthy life by 2035. So your Lordships’ Science and Technology Committee looked into this and published a report on 15 January last year. Sadly, we had to conclude that the Government are not on track to achieve this.

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[Baroness Chisholm of Owlpen (Con)]

I thank noble Lords for explaining these amendments. On Amendments 236 and 306, it is right that social care services be appropriately and effectively regulated, and this includes rehabilitation and reablement. However, I do not believe these amendments are necessary to achieve that outcome.

The definition of “social care” in the existing Section 9 of the Health and Social Care Act 2008 is already sufficiently broad to cover reablement and rehabilitation services provided under Section 2 of the Care Act 2014. Most rehabilitation and reablement services are already within the scope of the CQC’s regulated activities, so most of those services are CQC registered.

It follows that these services are also in scope of the provision in Clause 85 that enables the Secretary of State to require information from CQC-registered providers of adult social care services. If there are concerns about the scope of CQC regulatory activities in relation to these particular services, I would encourage the noble Baroness to write to my noble friend the Minister, so that it can be ascertained whether changes to secondary legislation are needed.

On Amendment 241, the scope of Section 60 currently covers healthcare professionals across the UK, and social care workers in England only. Social care is a devolved matter and falls within the competence of the devolved legislatures for Scotland, Wales and Northern Ireland. Section 60 defines

“social care workers in England”

through a list of descriptions. Staff who work to provide reablement and rehabilitation services in the course of care work are covered by the existing descriptors and could therefore be brought into regulation through secondary legislation. In addition to those carrying out this role in the social care field, there are also a number of healthcare professionals who provide reablement and rehabilitation services, such as occupational therapists and physiotherapists, who also fall within the scope of section 60.

Finally, turning to Amendment 289, the Government recognise that rehabilitation is a critical element of the health and care system, supporting patients with a wide range of conditions. A number of initiatives are already under way to support future discharge routes in a way that is sustainable and cost-effective and that provides choice for patients to return to their community. These will be pursued locally by the NHS in ways that best fit their local clinical requirements.

I think it was the noble Baroness, Lady Finlay, who asked why NICE could not give guidance. NICE has already given guidance on rehabilitation after critical illness in adults. It was published in 2009 and reviewed in 2018.

NHS England and NHS Improvement lead a programme to identify optimum bed-to-home models of care for rehabilitation services, supporting discharge to assess policy implementation. The programme will estimate the right capacity for out-of-hospital rehabilitation care, supporting systems through a range of guidance, frameworks and tools. Furthermore, we have already asked NHS organisations to review their estate and identify opportunities to utilise or dispose of surplus assets to ensure that the estate remains efficient and cost-effective.

The NHS also, for transparency, publishes quarterly statistics on surplus land. Integrated care boards will be able to develop estate strategies which identify the efficient use of the estate. As part of that, these plans will be able to identify a number of NHS priorities that could be delivered through the use of surplus land. It should be for local organisations, not the Secretary of State, to decide how to utilise surplus land to meet the needs of their local populations, and therefore we do not think this amendment takes the correct approach in this regard.

I thank noble Lords for their contributions to this debate and hope that I have given them enough assurance at this late hour to allow them not to press their amendments.

[Baroness Finlay of Llandaff (CB)]

I am most grateful to the Minister for that response and I am particularly grateful to all those who contributed to this debate at this late hour. The noble Baroness, Lady Merron, had it completely right when she said that this was about a continuum of care. The problem is that, if people do not get timely care at the outset and on the way through their journey, things just accumulate.

I certainly will go back and look at the NICE guidance; I had understood that it did not go far enough or cover things effectively, but I am most grateful to the Minister for drawing my attention to that. Certainly we should be looking at how the regulation of those involved in rehabilitation in the community can be extended. Of course, the advantage of regulation is that you also have a lever for training and education, to address the very specific needs of different groups. My noble friend Lady Grey-Thompson spoke of the disabled group, which includes those with physical disabilities, learning difficulties and different areas of handicap. They need to be looked after by people who have been trained and who understand what their specific needs are. That cannot be just a generic service.

I am also glad to hear that there will be the ability to look at the beds and the estate overall and that people are beginning to think about that again. With all those assurances, I beg leave to withdraw the amendment.

Amendment 236 withdrawn.