Health and Social Care Bill
Baroness Finlay of Llandaff Excerpts(12 years, 2 months ago)
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Lord Kakkar
My Lords, my noble friend Lady Emerton moves a very important amendment that comes to the very heart of this Bill. The purpose of this Health and Social Care Bill is to ensure ultimately that quality is driven throughout the healthcare system and that standards are driven to the very highest levels. It seems counterintuitive that such an important group of healthcare professionals as healthcare support workers is not subject to any mandatory training or mandatory continuing professional development or, indeed, any form of statutory regulation. I suspect that many of our fellow citizens would find that a very peculiar situation, which they would not automatically recognise, when going into the hospital environment.
I would like to ask the Minister two questions, specifically with regard to proposals for ensuring strong voluntary registration of this particular group and members of other disciplines who are responsible for the provision of healthcare. The first relates to the role that the Secretary of State might play with regard to standing rules and providing guidance to commissioning groups on the action they should take and the requirements they should make of qualified providers. Will it be the case that commissioners will be in a position to demand of a qualified provider that all of their healthcare staff, be it doctors, nurses, or other healthcare professionals, are members of some form of registered regulatory scheme, be it a regulatory scheme for certain healthcare professionals or voluntary schemes for others? Will it therefore be possible for clinical commissioning groups in the future to refuse to commission from a potential qualified provider if that provider was unable to demonstrate that all the staff it employed were registered appropriately?
My second concern relates to a plurality of registers for a single discipline of healthcare worker. That seems counterintuitive: surely, if there is going to be a voluntary register for healthcare support workers, there should be a single register, not multiple ones, because multiple registers would provide less confidence to the general public. The general public should know that there is a single regulatory body and that that body has responsibilities with regard to setting certain standards, with regard to ensuring that there is appropriate training and with regard to the possibility of receiving complaints and disbarring individuals from working in that professional area.
Baroness Finlay of Llandaff
My Lords, I agree with those noble Lords who have said that this is a critical amendment. I do not understand how more than one register will ensure a uniform standard across the whole of the NHS. There is a real problem at the moment with healthcare assistants being used as substitutes, rather than having “delegated” tasks, as in the wording of this amendment.
I am concerned about relying overly on the employers themselves. We have seen in the nursing home sector that this has failed. Where there has been substandard care, nursing homes have not got rid of those staff about whom they have had questions and those who have been commissioning services from those areas have not been able even to close down nursing homes because they often have not known where else they could move the residents of that area. In the mainstream hospital sector, it is down to an individual nurse to decide what she delegates to a healthcare assistant. The beauty of having a statutory register is that there will be clear expectations of what healthcare assistants can and cannot do and the level to which they should be trained, with clarity of roles and values, which I believe will also increase their own self esteem, and their own sense of occasional involvement in their role in clinical care. It has been suggested that it would be in the interests of unions to have such a statutory register. I fear that there has even been confusion in the minds of some people between the role of a trade union and the role of a regulatory body. It will be very important that a register is completely separate to any type of union activity. When the Minister comes to answer, I would be grateful if he could explain how the standards to be set by a voluntary registration process will be overseen and monitored, and what levers the Government would have to improve and extend the criteria required by a voluntary register of those who are registered on it, in order to increase standards.
Baroness Pitkeathley
It is a great pleasure to follow the noble Baroness, Lady Howarth, who I deservedly call my noble friend. I very much hope that the Minister will give her the assurances that she seeks. With regard to my noble friend’s amendments on the General Social Care Council, I take the view that we are where we are, however much I wished that different decisions had been taken. Noble Lords will appreciate that, as the first chair of the General Social Care Council, I would say that, wouldn’t I?
However, I take this opportunity to pay tribute to the councils and staff of both the General Social Care Council and the Health Professions Council for the professional and mature way that they have approached the difficult situations in which they found themselves. Their behaviour has been an example to us all and particularly, as far as concerns the GSCC, the fact that high staff morale has been maintained throughout this process is nothing short of a miracle and a great tribute to its leadership.
I agree with other Lords who have called the social work profession fragile. It needs to be promoted and defended if we are to maintain and extend the recruitment that the noble Baroness, Lady Howarth, has reminded us is so important for those people who do the difficult work in our society—which is rarely recognised until the tabloid press attacks it. I must draw your Lordships’ attention to the College of Social Work, which has just been established, which will have the promotion and defence of this fragile profession as part of its remit. It has had a difficult start, as is well known, but I believe that it has the potential to promote and support the profession to which we are all so indebted.
Baroness Finlay of Llandaff
My Lords, I have my name to two amendments in this group. They do not affect social work and therefore I have waited to intervene until the debate on social work had been completed.
I want to discuss two groups: clinical perfusion scientists and clinical physiologists. The clinical perfusion scientists are responsible for the single most invasive tool used in surgery today and are routinely responsible for the administration of potentially fatal controlled drugs. The numbers are small—there are only 350 clinical perfusionists—and they operate in a regulatory vacuum; they are the only non-regulated members of the cardiac surgical team. Yet their management routinely involves significant life-threatening risks to patients daily. Because they are not a regulated profession, in July 2009 the Department of Health produced a good practice guide to clinical perfusion in response to the Gritten report of 2005. It states that the Government fully recognise the need for clinical perfusionists to be regulated by statute and it draws attention to the fact that the document is an interim measure until they are subject to statutory regulation. Indeed, the document states that this has implications in law for their role in working with medicines.
Since the Gritten report in 2005, about a quarter of a million cardiac patients have had their hearts stopped for surgery by perfusionists, who use highly toxic substances and blood products. They feel that they need statutory regulation so that they can be supplementary prescribers, as there is a questionable legality at the moment around drug administration. They are in a unique position. It is this supplementary prescriber role that causes them much concern, because they would like to be assured that what they are doing falls fully within the Medicines Act. I hope that when the Minister responds he will be able to explain quite clearly precisely how, if they are not subject to a statutory register, everything they do complies fully with the Medicines Act.
As for assessing the risk and the need for a profession to be registered, the review of the Professions Supplementary to Medicines Act was debated in another place in 1999. The key test stated in that review is,
“whether there is the potential for harm arising either from invasive procedures or application of unsupervised judgement made by the professional which can substantially impact on patient/client health or welfare”.
In response to that test and in relation to clinical perfusionists, the right honourable Andrew Lansley, said:
“It seems to me that perfusionists entirely match that criterion”.
It seems odd, having had that debate and that being on the record, that clinical perfusionists are still trying desperately to argue that they should be subject to statutory regulation and feel that they are failing to achieve that.
The other group that I want to discuss is clinical physiologists. I suggest again that they fall within that criterion. They are a very skilled group of people who are often alone with patients, including children, in situations in which they are responsible for conducting sometimes complex investigations and interacting closely with whoever is the patient in front of them. For the past 10 years, they have had a voluntary register, which they feel is flawed and demonstrates the need for statutory regulation. As a group they will not gain either in status or financially by having a statutory register. They want it because they are concerned about patient safety. Their view is that there is currently no incentive to register; they are in short supply anyway and can get another job without too much difficulty.
As a group, they sent me an individual case study, which I found quite worrying. I will try to summarise for the House briefly, because this is Report. They cited a clinical physiologist who had been working unsupervised in a room alone with children and working one to one with them. Following a holiday to Amsterdam, he was found to be in possession of child pornography, prosecuted and placed on the sex offenders register. Among his papers, the police found that he was a clinical physiologist and alerted the appropriate group. They alerted the employers but discovered that even though he lost the job he was in, he was rapidly re-employed in another hospital, which they also alerted. They followed it up to find that he had changed his name and, under another name, again had sought employment. They are very concerned that this is one they know about but that there may be others they do not know about. The group does not see how its voluntary registration system gives patients and the public the protection that they ought to have.
Earl Howe
I very much agree with my noble friend that we want to see a breaking down of silos, if I can put it that way, and a mutual respect and dependence appearing at commissioning level. I am not aware of any examples of clinical physiologists or perfusionists being involved in the commissioning of care. On the face of it, that seems unlikely, although not impossible; I would not rule it out. I take my noble friend’s point about our general wish to see a raising of quality not only in commissioning but also in the provision of care. It is a point well made.
Baroness Finlay of Llandaff
The Minister has spoken about assured voluntary registration being available now. He has said that the Government will monitor it and, if gaps are revealed, would then reconsider statutory registration. It strikes me, first, that we need to know what the criteria are that would trigger moving from an assured voluntary register to a statutory register and, secondly, that these professional groups are in a Catch-22 situation. They have been seeking statutory regulation to drive up and maintain high standards of clinical care. They have been doing all that they can to maintain high standards of clinical care. If they carry on being able to maintain those high standards, gaps will not be revealed. The only way that gaps might be revealed is, in fact, if they drop their standards. It seems like a Catch-22 situation, but I think that I have probably misheard the Minister.
Earl Howe
We are talking about controlling risk. The noble Baroness is right that the Government will retain an open mind about statutory regulation. I hope that that is clear. We have not closed the door to that by any means. However, clinical physiologists, for example, say that risks are apparent to them which some clinical physiologists pose to patients. We have never seen evidence of those risks. In the past, when the Health Professions Council made recommendations about regulation, it has not considered risks. However, we agree with the previous Administration that the extension of regulation should be based on risk. That is the key point. If it is shown that, notwithstanding everybody’s best efforts, assured voluntary registration has not been sufficient to protect patients then, of course, any responsible Government would wish to see a strengthening of the measures around registration.
I revert now to social workers, as I hope that I have covered the points raised. We can most effectively bring improvements to the regulation of social workers in England by transferring their regulation to the Health Professions Council. To answer the noble Lord, Lord Hunt, it may well be that the GSCC could have delivered improvements in the way that social workers are regulated. However, reforming the GSCC’s procedures to ensure that they were fit for purpose would have taken time and, I can tell the noble Lord, would have required very considerable resources. The cost involved, among other considerations, would have been prohibitive.
The Health Professions Council is an established and effective regulator. The proposed transfer of functions to it would bring a number of benefits to the regulation of social workers in England, and I have outlined those. The name “Health and Care Professions Council” was decided upon with reference to the views of the Social Work Regulation Oversight Group, of which both the chair of the Social Work Reform Board and the chief executive of the GSCC are members. As part of the process of renaming the Health Professions Council, the name “Health and Social Care Professions Council” was considered. However, following research commissioned by the Health Professions Council, it was decided that the name “Health and Care Professions Council” most effectively reflected the new remit of the council in a way that was clear to the public, registrants and employers, while maintaining name recognition for service users, employers and registrants. However, to ensure even further clarity for the public, the Health Professions Council’s new name will be supported by a strapline: “Regulating health, psychological and social work professionals”, so it is not as though “social work” has been omitted entirely from the heading of this organisation.
Health and Social Care Bill
Baroness Finlay of Llandaff Excerpts(12 years, 2 months ago)
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Lord Warner
My Lords, I support my noble friend’s amendment. As a Minister, I, too, had responsibility for the NPSA and I was responsible when we introduced the reporting system. It is easy to forget how difficult it was to secure agreement across the NHS to that reporting system. There was a great deal of nervousness about it and it has certainly taken time to build up the confidence, across the country, that ensures that most service providers are now engaged with reporting these incidents. If we put that reporting system under a powerful body that is responsible for commissioning, there is a real danger about maintaining the support for the level of reporting that we have achieved. There is a risk that, without a few more safeguards in the arrangements, we may see a dropping off in the reporting of those incidents. Providers will be nervous about how commissioners will interpret the reporting of those incidents. That is the nub of the issue. I think we have a real problem about how we can carry on building on the good work done by the NPSA on that reporting system and ensuring that we continue to give confidence to the NHS to report these incidents in the service of the greater good. I am interested to hear what the Minister has to say about protecting the gains that we have made so far in this area.
Baroness Finlay of Llandaff
My Lords, I speak in support of what has been said by the noble Lord, Lord Warner. There is real anxiety that people will be frightened to admit to and report errors, if they feel that that could threaten, in any way, the contracting of the service that they are working in. Who in the new system will be responsible for rolling out training that has come from the cataloguing and analysis of problems, and how will the lessons learnt in devolved nations be fed into the system for the UK as a whole. Indeed, how will lessons learnt in England be fed out to the devolved nations?
Lord Patel
My Lords, I speak as somebody who has been involved with the National Patient Safety Agency for longer than the noble Lord, Lord Warner, as a Minister, or the noble Lord, Lord Hunt, as its chairman, as I chaired it for four years. What is important is that the National Patient Safety Agency, as it is currently, has been unable to be effective. It has not been effective because it is not mandatory to adopt, implement or use the learning produced from the reports it receives from all healthcare providers on systems failures that may cause harm to patients. I hope that the Minister will reassure us that whatever the new arrangements are, the learning produced from systems failures will be implemented, or will be expected to be implemented.
I do not know whether the Commissioning Board is the ideal place for it—I understand that it is taking over the group that looked after the analysis of the reports. Therefore, it will be its task to disseminate all the learning that comes from it. The actual collection of information or data will be outsourced on a contractual basis to Imperial College. Perhaps the Minister will comment on that. The important issues are that the information on systems failure is collected and that the lessons learnt are available to all those who commission and provide healthcare. They must be implemented.
Health and Social Care Bill
Baroness Finlay of Llandaff Excerpts(12 years, 2 months ago)
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Lord Marks of Henley-on-Thames
My Lords, I believe that I have answered the question. I accept that it is important. We believe that the provisions that are now to be in the Bill, given the government amendments and an assurance that I hope to receive from the Government, will cover the position.
I was explaining that, when we tabled Amendment 220B, we believed that there should also be an individual arrangement for agreement with Monitor so that all considerations could be balanced when considering any substantial increase in private income. However, in discussions, the Government agreed to respond to amendments that Liberal Democrat Peers tabled in Committee on the involvement of governors. Those amendments that the Government now pursue—Amendments 220BZA and 220BZB—represent that response. They ensure that any increase of more than 5 per cent would have to be approved by the governors voting, as I say, by a majority. The governors have to be satisfied that the plans put forward by the foundation trusts for attracting private income would not interfere with the treatment or welfare of NHS patients. I suggest that that scheme represents a devolved, local scheme that is consonant with the structures in the Bill and the desire to keep local decision-making at a local level.
There may still be concern that the governors of individual foundation trusts will primarily have in mind the concerns of their own foundation trusts. However, under amendments that have been agreed, Monitor is now to have continuing powers of supervision and intervention over foundation trusts. If we are assured that in every case where the governors approve a proposal for an increase in private income in excess of 5 per cent Monitor will consider whether the interests of NHS patients as a whole are to be safeguarded, and if it is not so satisfied it would intervene, I suggest that that assurance will meet that concern. We will not move Amendment 220B but we seek that assurance from my noble friend the Minister.
Baroness Finlay of Llandaff
My Lords, I have an amendment in this group. I recognise that it is badly worded and simplistic and I shall not be moving it. However, I would like to address other amendments in this group which are far better worded than mine. The adversarial debate that we have had has been unconstructive in view of the importance of the amendments we are discussing. Amendment 220C has the great advantage of involving all stakeholders. Some people will be affected when the balance of provision within a foundation trust changes. I am concerned about the amendment to which the noble Lord, Lord Marks, has just spoken because, as he admitted, the concerns of the foundation trust governors may be paramount as it is in their interests to look after their foundation trust and therefore the interests of others will be secondary in their minds. However, it is important to know what the local health and well-being board thinks about a proposed change, and that the clinical commissioning groups are involved and consulted on what could effectively be a change of provision.
I make it clear that I am not opposed to foundation trusts having private patient business. Indeed, I can see that it would be beneficial to all patients if we were to revert to the position that applied 30 years ago when these bodies were completely integrated. If highly specialised consultants provide outpatient and inpatient services to private patients on one set of premises in an area, they are on hand when things go wrong or an opinion is needed on a patient who has come in as an NHS patient. By driving some private provision outside that hospital campus, those consultants may be unavailable when they are needed because they are on premises down the road or they are on the end of a phone and cannot run down the corridor, see the patient and plan what is to happen strategically with the rest of the team and then monitor it.
An issue that has been resolved is the situation where a UK patient receives private treatment but something goes wrong and they need to go into intensive care, a renal unit or some other unit provided by the NHS. That previous episode of care has finished, they are now in a new episode of severe critical care and they go in as an NHS patient. That integration is therefore solved. But I hope that the Government will look kindly on Amendment 220C, despite some of the tone of the debate, because it ensures that all stakeholders are involved in the discussion. The change in provision is therefore planned and can happen smoothly and that decision is not taken on business grounds alone but can be for the benefit of the whole population that is being served.
Baroness Finlay of Llandaff
My Lords, we have, I hope, threaded education and training through the Bill and established it as a core principle for all providers.
In support of the comments by the noble Lord, Lord Turnberg, it is essential to place on record that the vast majority of specialist training for all those specialties in secondary care occurs in those places that will have foundation trust status, if they do not have it already. That future investment in the specialist workforce to provide services is essential and there is merit in restating the importance of it.
Baroness Wall of New Barnet
My Lords, I also support the amendment. Adding to what the noble Baroness, Lady Finlay, has said, the House may be aware that trusts are now committed to quality accounts, certainly for clinical staff, and an integral part of those quality accounts is education and training. I would like to see it being widened beyond the clinical staff, because there are lots of staff in a hospital who need that constant education and training, to make sure that patient care overall is as good as we would all want it to be.
Lord Kakkar
My Lords, I support the amendment moved by the noble Lord, Lord Phillips of Sudbury, to which I have added my name. I refer to Good Medical Practice, the document produced by the General Medical Council, which sets out the principles and values on which good medical practice is founded. Indeed, it is the document to which we as clinicians are obliged to practise. In so doing, I remind noble Lords of my own entry in the register of interests as a consultant surgeon at University College London Hospital NHS Foundation Trust, an institution that has a private healthcare facility that might avail itself of any change in the cap on private income.
In paragraph 9, Good Medical Practice makes important reference to decisions about access to medical care. It states very clearly that, as a clinician,
“you must give priority to the investigation and treatment of patients on the basis of clinical need, when such decisions are within your power. If inadequate resources, policies or systems prevent you from doing this, and patient safety is or may be seriously compromised, you must follow the guidance”,
elsewhere when raising your concerns. I support the amendment because it provides an important opportunity to place on hospital managements and healthcare systems in the National Health Service the same obligation that currently rests on clinicians: their absolute obligation to provide and take decisions about access to treatment on the basis of clinical need and priority.
It is not entirely clear that hospital managements have that same obligation. In promoting this amendment, one hopes that that obligation will be placed on hospital managements in such a way that in future, when there may be greater opportunity for income from outside the funding of the National Health Service—private income—into NHS institutions, no opportunity arises for pressure to be applied to clinicians. For instance, when there is limited access to operating lists or scanning facilities, and where two patients—one an NHS patient and the other a private patient—need to avail themselves of those facilities, the decision might be taken by the hospital management that preference be given to the private patient because it could provide further income for the NHS institution. When accessing facilities that are essential for clinical care, the same principle must always apply: the clinician uses their clinical judgment to determine on the basis of clinical need alone, rather than any other financial consideration for the institution, that the patient with the greatest clinical need at that particular moment is able to avail themselves of the necessary facilities. I hope that Her Majesty’s Government are able to ensure that that principle is enshrined or at least properly and effectively known so that there may be no misunderstanding in this matter in future.
Baroness Finlay of Llandaff
My Lords, I also have my name down on this amendment. I follow the same theme as my noble friend Lord Kakkar, who has just spoken. Good Medical Practice states:
“You must be honest and open in any … arrangements with patients”.
We have already discussed a duty of candour in relation to errors. There is also a requirement to give patients accurate information, as the noble Lord, Lord Phillips of Sudbury, has already said. Giving a patient information about what is available to them can entail informing them, for example, that other drugs are available but not currently funded by the NHS, or that clinical trials are available that they may wish to consider going into. You must answer the question, “Would I get treated quicker?”, honestly and with factual, correct information.
Of course, as has already been said, such stringent criteria do not apply to hospital managements. It would easy for them to see that there is something to be gained by increasing the private patient provision. I hope that this amendment encapsulates within it, in much more sophisticated wording, the spirit that I tried to capture in Amendment 220, which I withdrew. That spirit was to state that the provision should not be to the detriment of NHS patients. That is a fundamental principle that should go right the way through. I know that my wording was inadequate.
Earl Howe
My Lords, before I address the amendments in the name of my noble friend, I would like to come back to some of the comments made by the noble Baroness, Lady Finlay. She mentioned one of the most pernicious myths about the Bill. The paper that she quotes is not just factually inaccurate on a large scale but is also, frankly, scaremongering. As she herself knows, the Bill does not extend current arrangements for charging; indeed, the Government have committed to introducing no new charges for healthcare during this Parliament. I felt that I had to make that abundantly clear. I know that the noble Baroness realises that that is the case but it is important for the world out there to understand what the Bill does and does not do.
I agree completely with the sentiments behind the amendment that my noble friend has tabled. Patients’ access to essential clinical care and treatment should be on the basis of clinical need, not their ability to pay. That has been a fundamental principle of the NHS since its inception, and we fully support that. I understand that there is some concern that private healthcare by NHS providers might represent a better deal for patients in need of essential treatment. However, I hope that I can convince my noble friend and other noble Lords that there are already adequate safeguards in place, because that is what I firmly believe.
First, I shall cover the issue from the perspective of clinicians—I shall move on to hospital management in a moment. Ethically and professionally, clinicians are required to treat all their patients to the same standard and should not discriminate in any way. It would be wrong to suggest that the vast majority who provide an excellent standard of care would not do so, and I am sure that my noble friend would never suggest that. The General Medical Council’s Good Medical Practice states that the overriding duties for doctors include making the care of patients a doctor’s first concern and never discriminating unfairly against patients or colleagues. The Government also have in place a robust system of regulation on the quality of services. The Bill strengthens that system and makes it more accountable.
Secondly, Good Medical Practice ensures equality of access. It requires all doctors to treat their patients on the basis of clinical priority and to the same standard. Therefore, if a doctor did not treat a patient on the basis of clinical priority or was treating a private patient to a better clinical service, they could be in breach of the principles set out by the GMC and could be putting their registration at risk. In addition, the terms and conditions of service in NHS consultants’ contracts make it clear they are responsible for ensuring that their private work,
“does not result in detriment of NHS patients or services”.
That principle was reiterated in the department’s guidance on NHS patients who wish to pay for additional private care alongside their NHS treatment, which was published by the previous Government following a review by Professor Sir Mike Richards in 2008. The guidance makes it very clear that patients who choose to pay for additional private treatment,
“should not be put at any advantage or disadvantage in relation to the NHS care they receive. They are entitled to NHS services on exactly the same basis of clinical need as any other patient”.
The NHS consultant contract also binds them into adhering to the principles set out in a code of conduct for private practice. These are recommended standards of practice for NHS consultants published by the department. This says that,
“the provision of services for private patients should not prejudice the interests of NHS patients or disrupt NHS services”,
and that,
“with the exception of emergency care, agreed NHS commitments should take precedence over private work”.
It is important to note the point about NHS commitments taking precedence over private work. I strongly believe that professional regulation through the General Medical Council combined with guidance from the Department of Health is the best way to ensure equality of access for patients. It allows regulators to respond to changing circumstances and practice without departing form the central principle involved.
Putting the amendment into statute would risk endless arguments about what is and is not essential care and treatment. Perversely, it could prevent a foundation trust giving preferential treatment to its NHS patients because of the amendment’s reference to equality. The primary purpose of a foundation trust is to provide NHS services. A foundation trust may want to prioritise NHS patients where there is equal clinical need. The amendment might well prevent that; at the very least, it would create legal ambiguity and confusion.
Some noble Lords have voiced concerns that a foundation trust might pressurise its consultants into prioritising private healthcare ahead of its NHS patients. There are safeguards to prevent that as well. First, foundation trusts have a public service ethos; they are governed by the public and by NHS staff. They have a principal legal purpose to treat NHS patients. Secondly, the NHS Commissioning Board and clinical commissioning groups would be responsible for ensuring that NHS patients continued to be offered prompt and high-quality care. With regard to managers, my noble friend will wish to know that we have already commissioned the Council for Healthcare Regulatory Excellence to produce standards of conduct and competence for senior NHS leaders, and these are currently the subject of public consultation.
I remind noble Lords of the points that we debated earlier. If there appeared to be a trend or a significant increase in the level of a trust’s private income, not only would that be picked up by the governors but it would be seen by Monitor, which will have extensive powers to direct foundation trusts through the licence. Foundation trusts will also be required to explain in their annual reports what the impact will be of their non-NHS income on NHS services. One might say that there is going to be no hiding place in this regard.
The noble Lord, Lord Campbell-Savours, asked earlier about GPs channelling patients to NHS private patient units. GPs’ responsibility is to ensure the best care for their patients. They would have nothing to gain from trying to collude with foundation trust managers and commissions to increase a foundation trust’s private income. More to the point, they would risk being reported to the GMC for not serving their patients’ interests. If the noble Lord’s point is that clinical commissioning groups may try to do this, then it would clearly be unethical and would give grounds for the commissioning board to intervene. I hope that that provides the noble Lord with reassurance on that point.
I make a further point to my noble friend around any possible incentive that trust management might have to channel patients into a private wing, a concern raised by the noble Lord, Lord Kakkar. The Bill will establish a transparent and legally enforceable pricing system that will reward foundation trusts for treating NHS patients. In other words, money will genuinely follow the patient, and foundation trusts will be paid a fair price for treating complex cases. The current system has not always achieved these simple aims. An independent report into the current system published last month makes this clear; I have placed a copy of that report in the Library of the House for noble Lords who are interested. As the report makes clear, although foundation trusts should have been paid for every NHS patient treated, this has not always been happening. There have been unacceptable levels of cross-subsidy that have meant that the prices payable for complex cases have sometimes been woefully inadequate. One important facet of the reassurance that I can give my noble friend is that the pricing system proposed under the Bill will address those problems and ensure that foundation trust managers have the right incentives and rewards for prioritising NHS patients.
For some—although not, I think, for my noble friend—the amendment has been prompted by fears around the consequences of the private patient income cap for foundation trusts being removed; again, the noble Lord, Lord Campbell-Savours, voiced that fear. I suggest to him that those fears are misplaced. It is not, to my mind, a valid argument to suggest that removing the cap, a restriction that does not apply to NHS trusts, would lead to foundation trusts ignoring NHS patients as their prime concern and responsibility. Foundation trusts are the only NHS organisations which have never been subject to a cap on the amount of private income that they can earn. However, some foundation trusts can and do earn high levels of private patient income. There are also some NHS trusts which earn private incomes well in excess of many foundation trusts. There is no evidence that these NHS providers have ignored NHS patients as their main responsibility. The NHS constitution guarantees fair access to NHS treatment. The Government are putting in place a quality improvement framework that will improve outcomes for patients. Therefore, there is no scope for NHS patients to be harmed by private provision. Indeed, I say again that the extra income that the NHS would earn through the lifting of the private patient income cap would help to provide better quality care for all in the future.
I hope that my noble friend will accept that he and I are on the same page—on the same side—on this question. The difference between us lies in how to tackle it. As the noble Lord, Lord Warner, was right to remind us, privately funded and NHS healthcare have always co-existed in NHS hospitals. Governments of all parties have preferred to use professional regulation rather than statute to ensure equality of treatment. I am sure that that is right. It is unnecessary and, I think, a mistake to use primary legislation to establish the same principles. Of course, over the length of time for which the NHS has been in existence, professional regulation has, on the whole, been an effective safeguard of equality of access. On that basis, I hope that my noble friend will feel genuinely reassured and able to withdraw his amendment.
Baroness Finlay of Llandaff
Before the Minister sits down, I seek clarification. It is extremely reassuring to hear about the code of conduct that will be coming through for managers. I seek reassurance that the code of conduct will cover managers at every level. While there is clarity over consultants, consultants’ contracts and the GMC guidance which we have discussed at length, there are many others in the healthcare team who are not managerially answerable to the consultants. They are managerially answerable in other streams. There needs to be consistency across all those aspects of management. That includes other professional managers such as nurse managers, allied healthcare professional managers and so on, not just those who are caught, perhaps, by the council guidance because they are managers coming from a non-healthcare background. We were seeking that consistency of conduct with the amendment. I hope that the Minister can give me reassurance.
Baroness Finlay of Llandaff
My Lords, I added my name to these amendments because I agree with all the comments that the noble Baroness has just made. Children and young people are stakeholders in health. They are also the future of our nation. They may be dependent at the moment while they are children and young people, but they are the leaders of the future. They have specific needs and their own views about the way that they are treated. If they are not listened to and considered in the way that services are planned, they will continue to feel that they are not valued as much as they should be by healthcare itself and that healthcare is not really placing their needs at its heart in provision.
In the Royal College of Paediatrics and Child Health handbook called My Right to the Highest Standard of Health, Professor Terence Stephenson wrote,
“we cannot afford to continue as we are. The health of our children is at stake and we need to address real issues, with real change that brings about real positive impact on the health outcomes for children and young people”.
Children and young people must no longer be treated as passive recipients of services. It is by feeling valued that their well-being will be increased. Particularly in prevention in healthcare, the engagement of young people is critical to ensure that health improvement policies and the whole public health agenda are taken up by the very group of people who will get the most benefit from them and will be most harmed if public health measures fail—that is, those who are in adolescence and about to transition into early adulthood.
Until now, unfortunately, as has already been said, some LINks have not seen fit for their remit to include children. Through these amendments, I seek reassurance from the Minister that healthwatch will be provided with the resources, knowledge and capacity to involve children and young people effectively and will therefore be able to represent their needs and interests on a local and national level. It cannot be viewed as a tokenistic voice.
I shall cite an unfortunate example that the RCPCH has brought to my attention. A large teaching hospital trust was preparing an application for foundation trust status. As part of the process it was asked to show evidence of patient and public participation, including the involvement of children and young people. In response to this, the trust asked for some young people who were in-patients to receive a patient satisfaction questionnaire. A number of young people completed the questionnaire as requested, but the results were not used during the foundation trust application as the opinions voiced by the young people were at odds with the views of the management team. That is a clear example of tokenistic consultation but then doing nothing about the answers that are received.
Children are able to contribute in a very generous way to the shaping of healthcare services because they will comment quite openly, not only on what they need and what would make their journey through health better but on the experience of others that they encounter on the way. Children and young people with chronic conditions will form close friendships and bonds with other patients in their cohort, whom they will meet regularly when they attend different treatment sessions, and will be concerned about the welfare of those other children. In the days when I was working in paediatrics, I recall vividly how children in the leukaemic unit would ask about the welfare of other children. They would want to know what had happened to a child who had died and to talk about where that child had gone. One little boy commented on another, “At least now he’ll be able to do what he always wanted to do. He’ll be playing football, but it’ll be in heaven”.
Children know what they need, where they want to go and how they want to be involved and consulted. The whole tenor of our health services can be greatly improved by actively seeking out their views and acting on them, however difficult and uncomfortable those views might be.
Baroness Masham of Ilton
My Lords, I also have my name to the two amendments in this group. Children need protection and the support that my noble friend Lady Finlay has just talked about. So much more should be done for children, but the big problem is that they fall under so many different departments which are far too isolated. I am thinking now of the young people who are at risk from drugs and alcohol. I went to a presentation last week where there were photographs up of young children who had died from a combination of drugs and alcohol. So much should be done.
I hope that the Minister will answer my question from the previous debate about children and the risks that they face, taking Baby P as an example. Again, many departments came in and he fell through the net: health, the police, child protection and local authorities. They should be working together for children. We really need to protect them.
Baroness Finlay of Llandaff
Before the noble Baroness sits down, does she recognise that the legal status of children differs from that of adults? That is why they do not fall into the same category as many other vulnerable groups. Children do not reach the age of majority until they are 18, although they can consent to some things at 16. Therefore, they are always dependent on a responsible adult to speak for them or to open the door for them, as it were. They cannot form a group in the way that others in the population can to speak up for their rights and what they need. Will the noble Baroness reassure us that the Government recognise that the legal status of children differs from that of adults, and that if these amendments are not to be accepted, careful consideration will be given as to how that can be made explicit in the Bill before it completes its passage?
Baroness Northover
The noble Baroness made a poignant case for why children need to be listened to. I hope I can reassure her that HealthWatch England and local healthwatch have a responsibility to hear the voices of everyone, whatever their age. I accept what she says about the legal status of children. However, as she made very obvious, that does not mean to say that we cannot hear their voices and take very seriously their perception of how they can best be treated.
Lord Shipley
My Lords, I rise to speak to Amendments 238AA, 238AB, 238BZA and 238BA and to declare my interest as a member of Newcastle City Council.
These amendments relate to the membership of health and well-being boards. As currently proposed, the boards will have at least one councillor of the relevant local authority—so it could be one councillor, or it could be more. The choice will be with the council. However, several other people who have membership will be officers or unelected co-optees. This means that the board as currently proposed is effectively a board of directors, not a council committee which—unlike all other council committees—is made up of those who are publicly elected. Yet the board as proposed is legally a council committee; and because it is legally a council committee, only councillors can vote—officers must advise. For officers to vote, specific regulations will have to be put in place, and of course they can be. However, I hope that the Minister is willing to think further about this. Councillors, being elected, have both a democratic mandate—unlike officers—and a perception of service provision which comes from a geographical perspective as well as a service perspective. At times that can be very valuable, particularly in a geographically large council area.
To have just one councillor—which is what the Bill permits—would be a mistake. It would mean a council committee, the health and well-being board, would be dominated by officers and co-optees. It would also mean that only one political group was in membership of the board, which in my view would be deeply unwise.
Given the board’s terms of reference, I do not argue that councillors have to be in majority. However, I do argue that councillors are important; that geographical differences in a council area should be acknowledged; and that more than one political group should be fully represented on a board. Amendment 238AA solves this problem. It defines the minimum number of councillors as three. That would give the board greater breadth and enable political proportionality to be effective. Amendment 238AB states that where a council is a county council and part of a two-tier system of local government, there should be a district council representative as well as county representatives because district councils have statutory duties in relation to health and well-being. Having one district councillor appointed in this way as a representative of several district councils is normal procedure for those councils when duties span the two tiers. The other two amendments are simply enabling amendments assuming that Amendments 238AA and 238AB are agreed.
In Committee there was a discussion about councillor membership—how many there should be, whether they should be in a majority and whether they should have powers over the budgets of other health organisations not managed by the council. There was no conclusion to that debate, but I have thought long and hard about it. I have concluded that the amendments in my name and those of the noble Lord, Lord Bichard, and the noble Baronesses, Lady Eaton and Lady Henig, which reflect all parts of this Chamber, give a solution to this problem and would enable us to balance professional knowledge with the necessary democratic accountability.
I do not propose to press this to a vote, but I hope that the Minister will be willing to engage in discussion on it. What is being proposed from all parts of the House is a solution to a problem that needs to be resolved. It will prevent difficulties arising further down the line should a council decide to have only one councillor as a member of the board.
Baroness Finlay of Llandaff
My Lords, I shall speak briefly to Amendment 238A, which is in the name of my noble friend Lord Ramsbotham. I rather hope that the Government will take on board its spirit, if not its actual wording. The reason is that in creating a joint strategic needs assessment, there will be a requirement for those involved to begin to work in a completely new way. Human nature is such that people tend to repeat the patterns of things they have done before. In addition, they do not know what they do not know. When they feel insecure, they are less—not more—likely to consult, because it is quite threatening to have to consult and go beyond the boundaries of what you thought you knew and discover all the things that you did not know.
The beauty of the amendment is that it creates an obligation to,
“consult relevant health professionals and any other”
person, without specifying who they are. It leaves it very broad but it pushes forward the boundaries. We have already discussed the problem of children. The difficulty, if people do not consult widely, is that if children miss out at a developmental stage and one aspect of their development—for example, motor development, speech and language development or emotional development—does not occur, they never catch up. It is missed out for good; they always lag behind.
It is really important to make sure that the provisions are there right the way through the trajectory from birth onwards to make sure that the needs of children as they develop are met, that deficits are identified early and that interventions take place immediately.
Lord Beecham
My Lords, I will speak to my Amendment 238H, as well as amendments moved by other noble Lords. I am pleased to confirm that the Opposition entirely support the amendments moved by the noble Lord, Lord Ramsbotham, the noble Baroness, Lady Massey, and the noble Lord, Lord Shipley. Once again, I am pleased to say that Newcastle is united on the issue of the composition of health and well-being boards.
The only amendment about which I have not so much a reservation as a question is that to be moved by the Minister, Amendment 239, which refers to the possibility of a local authority giving permission to the health and well-being board to carry out,
“other functions of the authority”.
I wonder whether the Government have borne in mind the fact that there is now a general power of competence for local government, and whether it is the intention of this amendment to embrace not only the statutory functions of local government as things that may be delegated to the health and well-being boards but anything that the local authority is empowered to do. Given that there is now a general power of competence, that would be a very wide remit indeed. It is not necessarily a wrong line to take but it would be interesting to know whether the Government have considered that potential implication, and if they have not—and I would not blame the Minister if he had other, more pressing things on his mind—perhaps he might come back to us at Third Reading or before.
I particularly welcome the amendments moved by the noble Lord, Lord Ramsbotham, because they raise the issue of children’s services and health, which has to a significant extent been overtaken in this Bill by other considerations around traditional health services and adult care. I very much welcome those points.
In relation to the amendments moved by the noble Lord, Lord Shipley, I join him in thinking that it would be very helpful for the Government to send a signal as to the representation of elected members— not merely one, who could be regarded as a token, but a significant number. I would have gone perhaps slightly higher than three, but three would be a working basis.
In Committee, the Minister said that it is up to councils to decide the composition of these boards. That is true, but I think a signal would be welcome in that respect. I am particularly glad to join the noble Lord, Lord Shipley, in returning to a theme which I am afraid I have sounded more than once in debates over this Bill about the necessity for district authorities to be represented. It is a very important point in relation to the shire county areas.
Health and Social Care Bill
Baroness Finlay of Llandaff Excerpts(12 years, 2 months ago)
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Baroness Finlay of Llandaff
My Lords, I have Amendment 165 in this group. It is designed to prevent anti-collaborative behaviour in the provision of healthcare services for the purposes of the NHS. Promoting collaboration and integration must be at least as powerful, if not more so, than preventing anti-competitive behaviour. We are well aware that no two patients are the same and, to date, all too often professional boundaries—whoever is the person providing the care—have created barriers. Those are very evident between primary and secondary care and can prevent a seamless patient experience.
This is not an amendment to prevent different providers coming together. Its aim is to ensure that whoever those providers are, whether they are NHS, whether they are from the voluntary sector or whether they are from social care, they must collaborate for the benefit of each individual patient. Therefore, the ways in which they will need to be able to collaborate will vary depending on the patients they are dealing with. Good care should treat the patient and their experience in the context of their life, social support relationships, cultural experience, gender and a range of other factors, and the services should support people to live productive, independent lives in their own homes for as long as possible. Patients, including older patients, must have access to specialist services, including in-patient, acute care when appropriate. Again, that will require collaboration between homecare services, in-patient services and step-down services to rehabilitate people in their homes. There will be a wide range of providers of all those services.
Population health needs and inequalities must be considered at the planning stage. Even doing that will require close collaboration between those doing the assessments. The tariff should reflect the complexity of clinical care and should encourage integration and collaboration between providers. The danger exists at the moment of a tariff structure that does not reflect clinical complexity but overcompensates for simple conditions and for those where there is a discrete episode of care, and does not recognise ongoing complexity. The tariff must work toward commissioning across the whole patient pathway. Information and data gathered around patients and clinical services should also reflect that. I hope that the amendment will make sure that the need for collaboration occurs at every level across providers, because at the end of the day Monitor will have the responsibility for licensing all providers.
The other reason for the amendment is that there will be times when competition and collaboration might appear not to be one and the same, and may indeed look to be in conflict. My concern is that unless there is a requirement for collaborative behaviour, it will be all too easy for the justification for commissioning to be based more on competition than on collaboration. In the balance of doubt, patients need to know that there is collaboration between their providers. There have been examples in social care and in the delivery of healthcare in care homes where integration could certainly have improved, for example, the unacceptable level of medication errors. Collaboration is going on among a variety of agents and stakeholders to develop practical solutions and an integrated approach to medication safety in care homes. Public health, too, requires the three arms of health improvement, health protection and healthcare delivery to work together, and will be very dependent on collaboration with other aspects of the NHS.
Perhaps I might take this opportunity briefly to correct a piece of information that I gave to the House in our previous debate and which turned out to be a little out of date—for which I apologise. It related to troops coming back from our theatres of war, where the provision of prosthetics has improved. This is an example of good collaboration between all agencies, which has been underpinned by the military covenant that the Government supported and instigated in legislation. The result has been an improvement in the care of those who are extremely vulnerable.
I hope that the House, and the Minister in particular, will see that there is a need to make sure that collaboration is driven forward between all providers, wherever they are and wherever they come from, so that the NHS and its principles can be underpinned for the benefit of patient outcomes.
Baroness Cumberlege
My Lords, I, too, tabled an amendment in this group. Before I speak to it, I will say that I very much support what the noble Baroness, Lady Finlay, said. I was interested in an article in the BMJ that she, too, may have seen. It was a report by Nigel Hawkes on how competition works in healthcare and how it can stimulate the provision of better services. He went on to say:
“The report dismisses claims that competition makes integrated care impossible or that the opening of tendering a service to ‘any qualified provider’ amounts to privatisation of the NHS”,
and that,
“evidence suggests that competition with regulated prices”—
which is what we are proposing—
“can produce higher quality care at the same cost—and without leading to increasing inequity in access to care. Our message is that competition can help the NHS, but proceed with care”.
It is “proceed with care” that many of us want. Although I support the idea of competition, the National Health Service is not a free-for-all but a regulated market.
I think we need competition. Looking at the summary scores of the seven nations surveyed on health system performance, which have often been mentioned in earlier debates in this House, we do very well compared with other developed countries, but when it comes to patient-centred care, we come last—seventh. That is really why competition is necessary: to make the health service much more sensitive to the needs of patients.
I appreciate that noble Lords must label me the greatest bore on earth, but I am going to continue to bore because I am going to relate Monitor to the duties for patient and public involvement. This amendment introduces the same definition and scope of involvement for Monitor as Amendment 142, which I moved earlier on Report, on duties for NHS commissioners, including public and private providers.
On 16 February, I received a letter from my noble friend Lord Howe on patient and public involvement, and since then I have had some useful meetings with him. The context of this amendment is that patient and public involvement must be robust as we are moving towards a stronger, more plural market, which I support. Patient and public involvement is an even more indispensable component in a market where the consumer role is split between commissioners, who hold the money, and patients who consume the service. PPI must bridge this gap for the market to work well, as patient choice will never apply to some NHS services.
Given its pivotal role in the reformed NHS, it is vital that Monitor has a PPI duty that is consistent with that of the providers it is regulating. The Bristol Royal Infirmary public inquiry 11 years ago led to the statutory PPI duty and its report specifically mentioned regulators in the list of bodies that should have this duty, so Clause 61(7) is very welcome. However I do not feel that the wording of Clause 61 goes far enough to achieve the Bristol recommendation that regulators,
“must involve the public in their decision-making processes, as they affect the provision of healthcare by the NHS”.
On the broader PPI duty, my noble friend helpfully clarified at our meeting that statutory guidance will be used to describe what is reasonable in terms of PPI and that there will be consultation on its content. The intention, as I understand it, is that the guidance will require PPI in monitoring the impact of planning decisions or proposals to require the views of patient representatives and their carers. Perhaps my noble friend will confirm this. We also discussed the role of the NHS Commissioning Board in making sure that clinical commissioning groups enforce the model contract clauses on PPI against private providers. This is important as they do not have the statutory PPI duty that NHS providers have.
I think it is the Government’s intention to create a level playing field for patients and the public to influence private providers who are under contract to the NHS in the same way that they can influence NHS providers. Can my noble friend assure me that that is the case? That would be very helpful, particularly as providers may challenge statutory guidance as burdensome under the duty of autonomy in Clause 4 as amended.
Earl Howe
My Lords, it is a concern that I understand. The destabilisation of the NHS will naturally be a concern to all commissioners, which is why they can protect that situation through the contract. They could insist through the contract that a provider provided the full range of services rather than a select few. I simply say to the noble Baroness that we are alive to that concern and I have no doubt that commissioners will be as time goes on.
On the amendment tabled by the noble Lord, Lord Warner, he will be disappointed to hear that I am not drawn to going any further than the Bill does, much as I understand that his idea is well-intentioned. I say that because of Monitor’s overarching duty to protect patients’ interests and prevent anti-competitive behaviour that would harm those interests. This amended duty reflects what the Future Forum recommended and it is right that we stick with that. I can, however, offer the noble Lord, Lord Warner, some reassurance. First, in carrying out its duty to address anti-competitive behaviour, Monitor will necessarily have to identify it. Secondly, Monitor would have the power under Chapter 2 of Part 3 to conduct market studies and to refer potential barriers to new entrants for further investigation by the competition authorities where necessary. I hope that that is of some comfort also to the noble Lord, Lord Adebowale.
We had a most constructive debate in Committee about the Secretary of State’s accountability for securing a comprehensive health service in England and his role in holding Monitor to account for its duties. I thank my noble friend Lady Williams for proposing an amendment which adds much to the Bill in this area. Clause 61 already requires Monitor to carry out its functions in a manner consistent with the Secretary of State’s performance of his duty to promote a comprehensive health service. My noble friend’s amendment would strengthen these provisions and thereby improve the Bill on a key issue. This would help to ensure that the Secretary of State can discharge effectively his responsibility for the health service in England and that Monitor carries out its functions to that end. I support my noble friend’s amendment.
Clause 64 specifies the range of matters that Monitor would be obliged to have regard to in carrying out its duties. In Committee, the noble Baroness, Lady Murphy, and my noble friend Lady Williams raised some concerns about that list. I agreed to reflect on these concerns and have tabled Amendments 168 to 171, which would rationalise the list and make it clear that maintaining patient safety would be the paramount consideration. I hope that the noble Baroness and my noble friend will be content with that rationalisation.
On the amendment tabled by noble friend Lady Cumberlege, the Bill ensures that patient and public involvement is embedded at every level of the healthcare system. However, unlike the NHS Commissioning Board and clinical commissioning groups, Monitor would not be responsible for securing NHS services to meet patients’ needs. It is a regulator, with economic and more technical functions. Clause 61 reflects this and gives Monitor the responsibility for determining arrangements for patient and public involvement as appropriate to its functions. So I am afraid that I do not regard my noble friend’s amendment as appropriate. She asked what could be done if Monitor did not involve patients in the right way. Well, the Secretary of State would hold Monitor to account as to how it discharged its functions. Monitor would have to report to the Secretary of State on how it was discharging its duty on patient and public involvement as part of its annual report. The Secretary of State could also request a specific report on how Monitor discharged this function and intervene where there had been a significant failure in meeting this duty. The Bill provides for HealthWatch to send advice to Monitor as it seems appropriate. Monitor would then be required to respond to this advice in writing. I hope that my noble friend will take comfort from those points.
I stress once again that the purpose of Part 3 is to strengthen sector regulation in healthcare to protect and promote patients’ interests. The current system is inadequate, fragmented and duplicative. It fails to protect the interests of all patients. Part 3 recognises that the NHS is not and never has been a single institution. The reality of the NHS is a comprehensive health service that has always been delivered by a diverse range of providers.
Part 3 would address gaps in the current system by extending equivalent safeguards to protect patients’ interests irrespective of who provides their NHS services. It would also make sector regulation in the NHS more effective in driving improvements and enabling integration during an absolutely crucial period of economic challenge.
I am very happy to support the amendments of my noble friend Lady Williams, which would improve the Bill, but I urge, following the reassurances and explanation that I have been able to give, other noble Lords not to press their amendments.
Baroness Finlay of Llandaff
Before the Minister sits down, will he answer a straightforward question in relation to my amendment? Given that the Bill at page 88 states,
“functions with a view to preventing anti-competitive behaviour”,
and my amendment, which is not being accepted, states,
“functions with a view to preventing anti-collaborative behaviour”,
will the Minister confirm that that means that competition is trumping collaboration?
Baroness Finlay of Llandaff
What instances are there of when collaboration has not resulted in improved patient outcomes? I have not been able to find any.
Earl Howe
Nor have I, which is why I listed earlier some prime examples of collaboration. Clinical networks are a prime example of collaborative behaviour which is clearly in the interests of patients. The noble Baroness is asking me to think of examples in my head of collaborative behaviour in the NHS that does not advantage patients. I cannot think of any, which is why it would be hard for Monitor to find fault with collaboration where it has clearly been designed to improve patient care.
“( ) Monitor must exercise its functions with a view to preventing anti-collaborative behaviour in the provision of health care services for the purposes of the NHS.”
Baroness Finlay of Llandaff
In summing up after the previous debate, the Minister spoke about the service currently being fragmented and duplicative, and I would agree that it is. I am glad that the Government’s intention is to have a service where healthcare providers collaborate more than they do at the moment. I accept that there will be a range of providers, and I support having a wide range of providers to provide a spectrum of services. However, I do not understand—and have not understood from the answers—why anti-collaborative behaviour should not be up there as a general duty for Monitor with anti-competitive behaviour. Because of that, and because of all the discussion that we have had over integration and collaboration, I feel that it is a duty that I have to those who wish to collaborate in the NHS to test the opinion of the House, so that there is equal status between anti-competitive and anti-collaborative behaviour in the event of there being a conflict between the two.
Earl Howe
I hoped that I had already made it clear to the noble Baroness that collaborative behaviour when it is in the interests of the patients—and I distinguish that from collusive behaviour, which is almost certainly not in the interests of patients—will be regarded by Monitor as trumping the need for competition to be deployed in services. I am not sure that I understand what the noble Baroness’s problem is in this area; she should be reassured by that.
Baroness Finlay of Llandaff
I am grateful to the Minister for trying to clarify these matters, but my concern relates to anti-competitive and anti-collaborative being of at least equal status. I would prefer anti-collaborative to be on the face of the Bill. Is the Minister prepared to have a discussion with me after this debate to see whether we could insert some other wording to prevent both anti-collaborative and anti-competitive behaviour? In that way, even when a provider states that it intends to collaborate and that is put down clearly, if it is demonstrated as time goes on that the provider is not fulfilling that, Monitor will have the leverage to say that it was in open competition but the provider has not fulfilled the requirement to collaborate.
Earl Howe
I am of course willing to hold discussions with the noble Baroness, but I remind her that we have explicitly provided for Monitor to use its licensing powers to support integration and co-operation when that is in the interests of patients. We were fully aware of that issue when drafting the Bill. Later amendments, which we will debate today, will strengthen the ability of Monitor even further.
Baroness Finlay of Llandaff
I recognise that they will strengthen Monitor further and that they will come later, but my disappointment is that they are not in the core general duties that will override the way in which Monitor functions. They will come later on and in detail, and I can see that in the amendments that the Government have tabled. But my concern persists, and I wish to test the opinion of the House.
“( ) Regulations may provide for Monitor to make the granting of a licence conditional upon performance in relation to matters set out as in section 64.”
Baroness Finlay of Llandaff
My Lords, some of the amendments in this group are in my name and that of the noble Lord, Lord Northbourne, who is unable to be in the House today because of ill health. They relate to the transition of care between different sectors and build around the principle of integrated working.
The problem that arises is that the responsibility for care of children will sit with different groups. There is a need to make sure that, when children make the transition from being the responsibility of social services to being the responsibility of the local authority and, in adult care, of the clinical commissioning groups, there is adequate provision for how that handover occurs. A clear date for it should be set and it should make explicit the duties for each party involved in handing on information. Without that, there is a concern that as these young people—many of whom will have mixed mental, physical and social care needs—transition across, information about those needs may not adequately pass from one agency to another. There is a concern that they may fall into a gap and that the responsibility at the time of transition will not be clear. We are also concerned that, without a clear, fixed date for the transition with a default time set in legislation, it will be easy for a young person’s care to drop out of sight, particularly if they are not supported by people well able to advocate on their behalf.
Also in this group is Amendment 174A, which concerns the general duties of Monitor and is in the name of the noble Baroness, Lady Young of Old Scone. She has asked me to speak to this amendment, which again emphasises the importance of integration of services. Her concern is about diabetes but goes far wider than that. Where there is a multiplicity of providers, how they work together will depend on how Monitor specifies service in the national tariff. Since patients with complex conditions require input from many different providers, there is a concern that, without a real emphasis in the Bill on provision being integrated, they may end up being told that their care is not the responsibility of one person or another. These amendments, which have been grouped together, seek clarity on the seamless provision of care. The principle behind them is to address those gaps that we have identified in that seamless provision of care.
I return to the amendments in my name and that of the noble Lord, Lord Northbourne. We are well aware that it can be very difficult to differentiate between the social and mental health needs of young people. For that reason, we feel that it is important that transition is clarified. I beg to move.
Lord Beecham
My Lords, we certainly support these amendments. I am particularly pleased by the reference in Amendment 171A to the transfer of information between child and adult social care authorities, which picks up a point that was raised in an earlier debate. These are sensible amendments, although there is an error in Amendment 238G, which refers to health and welfare boards, instead of health and well-being boards. On that not untypically pedantic note, I support the amendments and trust that the Minister will give them a favourable response.
Baroness Finlay of Llandaff
I am most grateful to the noble Baroness for the assurances that she has given. I am particularly grateful to her for focusing on the integration with educational needs as well as social care needs and physical and mental health needs, with a single point of assessment. I beg leave to withdraw the amendment.
Lord Warner
My Lords, I, too, support this amendment. Since the noble Earl was so beastly to me over social care, I hope he will actually support this amendment.
Baroness Finlay of Llandaff
My Lords, the government amendments are indeed welcome because they reflect concerns that have been expressed. I am sure that all those who expressed those concerns are grateful.
The amendments in my name in this group relate to education and training. I know that we have somewhat threaded education and training through the Bill at all stages. Amendment 192 relates to considering education and training when setting licence conditions, and I put “education and training” because in addition to education, staff training at every level is essential.
I hope that the Government will support the view that no organisation should be fit to provide services if it does not ensure that its staff are being kept up to date and if it is not providing an environment from which people can learn. This does not mean that they all have to be recognised educational providers.
Amendment 196 in this group relates to indemnity. This amendment has been tabled again because, despite the response that we were given in Committee, concerns continue over indemnity for patients. Should a patient develop a problem subsequent to a provider going out of business, they should be covered by indemnity. It is interesting that we have the Legal Aid, Sentencing and Punishment of Offenders Bill in parallel with this Bill. We have concerns over legal aid for medical negligence. I have attached my name to amendments to that Bill concerning legal aid for the victims of clinical negligence.
I hope that the Government will see that there is a need to have indemnity within services, whoever the licensed provider is. There should be a read across to the protection of patients in the event of something going wrong or being done wrong that has harmed them, particularly if they have been harmed in such a way as to incur ongoing costs for healthcare and social care as a result of the problem that arose with the provider, whether it be a voluntary sector provider or a private provider.
Lord Clement-Jones
My Lords, I thank my noble friend Lord Howe for putting forward these amendments, particularly Amendment 193, to which I have added my name. In Committee, we were concerned that the powers of Monitor did not reflect the general spirit of the way in which the Future Forum report talked about the mixture of competition and integration. Although the objectives of Monitor at the beginning of Part 3 were changed to reflect the Future Forum report, some of the back end of Part 3 was not changed to reflect that. These significant amendments, particularly Amendment 193, rebalance the Bill and makes sure that it genuinely reflects the intentions of Future Forum. I am very grateful to my noble friend for putting down these amendments.
Baroness Finlay of Llandaff
I am grateful to the Minister for his reply on indemnity. Would the risk pool apply to the provider rather than be linked to the individual patient? If there is an acute problem, some hospices will accept referrals directly from patients and their families rather than waiting for a GP necessarily to refer them. Those patients are all being treated in the voluntary sector; they are not paying; they are all being treated the same; and they have been under NHS providers for other parts of their treatment. The Minister may not be able to answer my question now, but I flag up such a situation as a potential that will need to be covered off in providing. However, I am sure that what he has said tonight will be warmly welcomed by the voluntary sector, which provides an important and, in many places, essential clinical service—which, I venture to suggest, hospices do par excellence. Their ability to meet patient and family need at great speed has allowed them to be recognised as being so important.
Earl Howe
My Lords, I understand the noble Baroness’s question. It might be best if I wrote to her because the circumstances that she posits are such as to make it important that I do not get it wrong if I give her an answer now. As she knows, the broad answer to her question is that our aim is for all NHS-funded care to be covered. She has raised a particular set of circumstances on which I shall have to take advice, if she will allow.
Health and Social Care Bill
Baroness Finlay of Llandaff Excerpts(12 years, 2 months ago)
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Baroness Finlay of Llandaff
My Lords, I also have an amendment in this group. For the convenience of the House, I have left it there because it concerns the clinical commissioning group’s function. On 27 February, the Minister rejected the amendment that I had tabled, which provided that the Commissioning Board must ascertain that clinical commissioning groups commission for less common conditions and that they collaborate.
Today is Rare Disease Day and my amendment specifically addresses rare diseases. In responding to me on 27 February, the Minister cited sources of advice that are available to patients, healthcare professionals and carers, specifically NHS Choices and NHS Evidence. I have been to their websites to find out how they inform commissioning for some of these rarer diseases. They are very helpful websites and they are a resource, but they are enormously complex. Trying to read across from one condition to another to put together a cohesive package for commissioning is very difficult. I am concerned that replicating this in lots of small clinical commissioning groups all around the country will be, in effect, a duplication of effort.
For some of these conditions there is no NICE guidance at all as yet. NICE does a fantastic job by producing the guidance that it does but it is not there for everything. The European Union’s recommendation of an action in the field of rare diseases has been published. The Minister informed us that there will shortly be a consultation on the Government’s response to that.
What are these conditions? They range across 5,000 to 8,000 different diseases, which occur at an incidence of less than five cases per 10,000 of the population. However, most of these people suffer from diseases that are so rare that they affect less than one person in 100,000 of the population.
The European Union recommends that member states should have plans and strategies in this field and adequate definition, codification and inventories of these diseases and research into them. It also recommends that member states should establish centres of expertise with a European reference network, gather expertise and empower patient organisations. These objectives are compatible with the amendments in the name of the noble Baroness, Lady Cumberlege. The European guidance also states that these services should be sustainable. However, given that the prevalence of these diseases is so low, it would not be cost-effective routinely to commission services in populations of fewer than 250,000.
These amendments are supported by more than 98 patient organisations, 70 of which are members of the Neurological Alliance. There is concern about the application of the appropriateness test to clinical commissioning groups. The biggest area in this context often relates to rehabilitation and aftercare and comprises people with severe anorexia and those who are rehabilitating after a severe head injury or major trauma or stroke and quadriplegia. An increasing number of survivors are coming back from our theatres of war who would previously have died of their injuries. They require complex rehabilitation. Sadly, there are already instances where some of these soldiers are not able to obtain the prosthetic support that they require and are having to raise funds themselves to obtain their prostheses, and some are going to the United States for this provision.
Some people may think that stroke is a common occurrence and therefore does not come into this category. However, some types of stroke are complex and occur infrequently in the population. Stroke comprises a very broad spectrum of diseases. Some of the rehabilitation and services required fall to local authorities to provide. There is concern about the extent to which the appropriateness test will be applied and where discretion will lie as regards these conditions. As I said, the clinical commissioning groups cover relatively small population areas and therefore it is not cost-effective for them to commission services for less common conditions. I am concerned that they will have no duty to collaborate with other clinical commissioning groups in commissioning services. One hopes that they will but there does not seem to be a requirement that they should. If commissioners lack adequate guidance on best practice in commissioning comprehensive and equitable services, they risk commissioning services which do not provide value for money and do not meet the needs of people with these less common conditions. The National Audit Office report on services for people with neurological conditions showed that there is a great need for improvement in service provision for this population, with significant variation in access to services and variation in quality in different areas. Even where there are localised examples of good practice, sometimes leadership is lacking on the outcomes analysis so these bodies are not able to disseminate their good practice for wider implementation.
The Bill certainly provides opportunities for collaboration between clinical commissioning groups, but not encouragement or incentives to do so, and these groups are left to determine when to co-operate. This amendment would provide an important indicator for clinical commissioning groups and would bridge the strategic gap between the commissioning that will be done centrally by the Commissioning Board and that which will be done at a local level. I give a very simple example of a neurology service involving someone with motor neurone disease who requires non-invasive ventilation. That service should be provided in patients’ homes or somewhere nearby. If it is not provided to a high standard, patients have a much higher chance of ending up as emergency admissions—in fact, this is almost inevitable—and the cost of that provision is three times that of providing adequate NIV services. It therefore becomes very cost-effective to ensure that there is appropriate commissioning for this group across the piece. The risk is that the disparity in service provision and outcomes will widen. I stress that the difficulty comes because these patients sit in the spectrum between what will be commissioned centrally by the Commissioning Board, what will fall to the clinical commissioning groups and, when patients get into long-term care and rehabilitation and being sustained at home, what will fall to the local authority—and that has not been made clear.
I will listen very carefully to the Minister’s response because this matter is so important that we may need to test the opinion of the House. I am hoping that I will get satisfactory answers from him and that these discrepancies will be clarified. If not, I ask him, if he is unable to provide adequate answers, to consider these issues at Third Reading.
Lord Newton of Braintree
My Lords, perhaps I may briefly intervene, although not in any way to differ from my noble friend Lady Williams of Crosby; I am much too diffident to dare to do that. In fact, I want to raise a few nitpicking points that occur to someone who has had a bit of ministerial experience over a fairly long period. They occur in relation to several of these amendments. First, it is far from clear, in light of the exchange with my noble friend Lord Mawhinney, just what “resident” means in this context. Someone needs to answer that clearly before we go down the path of the amendment. Secondly, on a related matter, does the proposal mean—whatever “resident” means—that people would be entitled to free NHS services, regardless of their status? Under existing law, a lot of people living in this country are liable to be charged for NHS services. That is not clear in some of these amendments.
In particular, it is not clear whether illegal immigrants are liable to be charged. I do not know the answer to that, and I probably ought to. If, however, they are liable, it is another factor to be taken into account when looking at what all this means. If we really mean that clinical commissioning groups must provide services—and I shall come back in a moment to the term “provide”, which also occurs in another of the amendments—to everyone resident in their area, how are the CCGs to establish that? Illegal immigrants, along with a number of other people, go to great lengths to stay beyond the radar. They will not be on the electoral register. They will not be registered with doctors. They will be trying to make sure that no one knows they are there. Do CCGs have to set up an immigrant police investigation team to find out who is resident in their area? These may sound like nitpicking points but they would be real issues if an amendment along these lines were passed, even though I am sympathetic to the aim. Parliamentary draftsmen would need to do some work.
What does “provided by” mean? Clinical commissioning groups will not provide many services; they are essentially commissioning groups. Do we mean “any services commissioned by” commissioning groups, many of which will involve secondary services—certainly—tertiary hospitals, and a whole range of other people? The amendment and several others in the group, however worthy their purpose, require a lot of careful drafting before we can accept them as amendments to an actual piece of legislation. My noble friend may care to comment on that.
Lastly, this rather curious group also includes the amendments of my noble friend Lady Cumberlege relating to HealthWatch England. I cannot see any problem with them. I support her entirely. It seems to be a no-brainer that if we are to set up a healthwatch system, people should have to take account of what their local healthwatches have to say.
Baroness Finlay of Llandaff
Can the noble Lord clarify whether the guidance will also cover the commissioning of services that are currently going to fall within the responsibility of a local authority, at the interface between health and social care, for the long-term maintenance of patients with very severe disability?
I accept the Minister’s comments on this amendment and the onus on clinical commissioning groups, and those made by my noble friend Lady Murphy, that the commissioning board may be the central focal point, as was outlined in the amendment that was not accepted, Amendment 63A. However, my second question is whether the Minister would be prepared to meet me to see whether there is a need for a review of the wording to clarify completely that there are no gaps for these patients, who may be large in number but very disparate and heterogeneous, with a very broad range of views. In that event, perhaps we could return to the matter at the last point, at Third Reading.
There are two distinct questions there on which I would appreciate clarification.
Earl Howe
On the first question from the noble Baroness, we fully anticipate that NICE will provide quality standards and guidance on services commissioned by CCGs and local authorities jointly. Typically, those are the kinds of service that the noble Baroness has spoken of, some of them in relation to less common and more complex conditions. Therefore, the commissioning guidance would reflect the NICE advice, and I hope that I can reassure her on that point.
Of course, I am willing to meet the noble Baroness between now and Third Reading, although I am not necessarily giving her the green light to bring this amendment back at Third Reading. I have explained that the Bill adequately covers the points of concern. Furthermore, I think that the amendment is flawed. We can achieve what she seeks through provisions already in the Bill and those that are not in the Bill that I have described.
Lord Williamson of Horton
My Lords, the amendment deals with the distressing and serious problem of addiction to certain prescription drugs and, as is specified in the text, the problem of withdrawal from those drugs, because when such efforts are made, on many occasions they unfortunately fail and result in other difficulties for the patient in question.
Without going into detail about what may happen to the amendment, I hope that the Minister will be able to confirm that there should be an appropriate priority for the services available to treat that distressing problem. I do not press the point more than that, but it would be useful if we could have that sort of assurance from the Dispatch Box. In particular, whether the Minister agrees with this or not, some of us believe that in the past the issue has been allowed to fall into the shadows. That is what has happened in practice. It has been neglected and people have suffered in consequence. Perhaps we are improving but we could improve more, and I hope that the Minister will give an encouraging reply about the appropriate priority that ought to be given to the problem.
Baroness Finlay of Llandaff
My Lords, this is a clear example of an iatrogenic condition, very often originating in primary care. When patients have presented with insomnia, instead of being taken through the more complex and time-consuming aspects of sleep hygiene and possibly talking therapies to discover the cause of their insomnia, a prescription has been given all too quickly and readily. If we are looking at responsibility falling back to clinicians in primary care, it seems inordinately sensible that the clinical commissioning group should consider its responsibility to provide support to patients who end up with an iatrogenic problem.
I can see that the Government may feel that this is a very specific amendment targeted at a very specific area, but the guidance that needs to go out to clinical commissioning groups on their responsibility for the behaviour of all those prescribing on their patch may well deal with some of the principles behind this amendment and ensure that the necessary services are provided to patients who, completely inadvertently, fall foul of taking the drugs that they were prescribed and as they were told to take them.
Baroness Hollins
My Lords, I pay tribute to the work of my noble friend Lord Sandwich, who has done so much to raise awareness of the often unmet needs of people whose addiction originated in a legal prescription. There is some progress in training doctors—for example, in undergraduate medical education with a new national curriculum on substance misuse. This guidance provides learning objectives on rational prescribing and iatrogenic addiction. The fact that such a curriculum is only just being introduced shows the need for the attention of clinical commissioning groups to be brought to this issue.
There seems to be a special responsibility on the National Health Service to provide better care for people affected by medical prescribing practice, and I hope that the Minister will be able to suggest how such a responsibility could be emphasised in the Bill.
Lord Turnberg
My Lords, my name is attached to Amendments 121, 122 and 126. I will not repeat the wise and reasonable words of the noble Lord, Lord Patel, who presented the case for these amendments very well. As an honorary fellow of the faculty, I am privy to all its innumerable e-mails and newsletters which set out many of its concerns—and it has many, as I am sure the noble Baroness is aware. These amendments will go a little way to assuage some of those difficulties and they fit very well with the Government’s intentions.
The publication of the Department of Health’s document, Public Health in Local Government, on the role of the director of public health sets out well the intentions of the Government. They may not be strong enough but they are certainly entirely appropriate. Amendments 121 and 122 go some way to putting in the Bill the emphasis that the Government intend from their own document. I hope that the noble Baroness will see fit to accept these amendments.
Amendment 126 deals with the tricky business of disease outbreaks and the role of the director of public health. Again, the noble Lord, Lord Patel, emphasised with examples the sort of problems that can arise in a situation where responsibility for public health is with local authorities but is also with the health service. I am a former chairman of the Public Health Laboratory Service, which dealt with outbreaks of infections around the country and had a very strong co-ordinating role. For example, leaving aside the two examples mentioned by the noble Lord, Lord Patel, if you have an outbreak of food poisoning in two separate parts of the country, you do not know whether they are connected unless you are able to do the special tests—the special serology—that is done centrally and in a co-ordinated way between directors of public health.
What is unclear—Amendment 126 goes some way to help this—is that, in emphasising the need for the director of public health to work closely with Public Health England, the documents that have been produced are a little silent on the relationship that the directors of public health will have with Public Health England. That is a key interrelationship that has to be fostered. It should be much clearer. Perhaps this amendment does not do it far enough but at least it leads us in that direction.
Two other areas are not talked about in the document. There is a rather weak statement about the role of the local authority in ensuring continuing professional development and training and education. We have covered training and education in other amendments and the Government have been very helpful in that regard. Here we have a slightly different situation with the local authorities being responsible for the contracts for directors of public health and their staff. There is a role in education and training for them. How that will be achieved is not entirely clear; nor is it entirely clear how the local authorities will be encouraged to ensure that the directors of public health can undertake research, which is an important element.
The documents that the Government have produced make great play of words such as “innovation”, “leading the field” and “keeping ahead”. We cannot do that without research, so it is important that research comes in here somewhere. I hope that the Government will listen to this.
Baroness Finlay of Llandaff
My Lords, my name is attached to Amendments 121 and 126. I will not repeat the arguments that have already been laid out so clearly by my noble friend Lord Patel. However, as regards Amendment 126, in an emergency clear lines of communication are absolutely essential and must be worked out. Indeed, they must be tested before the event.
We do not need to think only about infections. We need to think about toxins, accidental or deliberate releases of all kinds of chemical substances, and all kinds of contamination that can be a threat to public health. When an emergency arises, the problem is that it is too late to work out those clear paths of communication and access to essential resources. Provision has to be made in national planning.
Baroness Jolly
My Lords, I support Amendments 124, 128 and 152, which are all on issues on which I spoke in Committee. They refer to guidance and I welcome the commitment of the Government to supply guidance to local authorities in these areas. Clearly, we have councils already setting up their shadow health and well-being boards. Local public health directors are already moving into place in the local authorities. In some cases, they are already there because they were a joint appointment with PCTs.
Given that Amendment 124 states:
“A local authority must have regard to any guidance given by the Secretary of State in relation to its director of public health”,
organisations which are setting up need to be clear about what is expected. Early guidance would be very welcome on the roles and responsibilities of the DPH in the new world. Is my noble friend able to give any indication when this guidance might be available?
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Baroness Gould of Potternewton
My Lords, I had a long speech prepared but I have decided to reject it on the grounds that what we will hear tonight will be sound common sense. At the end of my speech on Second Reading I said that we would expect sound common sense, and all the indications are that this will happen. I sincerely hope that that is the case. I am going to make a very short contribution tonight—possibly the shortest I have ever made in your Lordships’ House —and make two specific comments. I have argued and campaigned for this change for many years and, as I say, I hope that I will be able to say thank you.
Not only is this a health issue that will protect the public and bring HIV treatment in line with other infectious diseases—it will save valuable NHS resources in the long term. Principally, however, it is absolutely wrong to discriminate against any section of the community, as has been happening since this rule was first brought in in 2004. There is no question but that universal access, which this regulation will introduce, will be very important in ultimately reducing the cost to the NHS and in making it easier to have early diagnosis, thereby reducing onward transmission and guaranteeing hospital treatment if that is required. No deterrent should be put in the way of reducing transmission and treatment. I hope that that will now cease.
I hope, finally, that the concept of HIV tourism has been accepted as the myth that I have always believed it to be. I hope I am right in saying that I can genuinely thank the Government for a change to this rule. I dread the thought that the Minister is going to stand up and say the wrong thing now—I hope that that is not the case. I also want to thank those HIV organisations that, along with me and others, have campaigned for this change for many years. It has been a long and hard battle trying to persuade people that what we are asking for is, in many ways, not a big issue, although it is for those who are affected by it. Again, I can only say thank you, given that we are perhaps going to get regulations that will change that.
Baroness Finlay of Llandaff
My Lords, I did have a speech prepared in support of this amendment, based on the Welsh experience. However, after being woken by the “Today” programme telling me about a debate that we had not had—or that I thought I might have perhaps slept through—and announcing how the Government had responded in a way that I could not recall, I decided simply to bin my speech and live in hope. That is how we all are at the moment. We await the Government’s response to the amendments.
Baroness Thornton
My Lords, perhaps I may just say that when I was a Minister this was one of the few battles that I had and lost in the department. I shall be very glad if the noble Earl has had the battle and won—congratulations. I also say well done to all those who have been campaigning on this issue, particularly my noble friend Lady Gould.
Lord Turnberg
My Lords, I am afraid that my name is not attached to the amendment moved by the noble Baroness, Lady Cumberlege. I was not quick enough to get in the queue of people who wanted to get their names on this, but I have been banging on a little about the disappearance of the HPA and the need for an independent body just as is described in this amendment—and even better in the other amendments seeking a special health authority. I suppose we are not likely to get that this evening but we may be able to get somewhere with Amendment 162.
What I find very difficult to understand is why the Secretary of State would want to take this on. Having chaired the PHLS and then the HPA and now Public Health England, which is an even bigger body with even more responsibilities and a whole host of practical activities—scientific, laboratory, epidemiological—why would a government department want to take that on? Is it that it did not trust the HPA? Is it to save money? Did the HPA in some way fail? What is the rationale for the Secretary of State to want to take it inside the department and lose that level of independence, that ability to look outside and that facility to take advice from independent chairmen and members of the board?
If the department wants this job done—and I do not doubt that it wants this job done very well indeed—it cannot expect to do it as well within the department as an agency that was directly responsible and directly answerable to the Secretary of State but had that degree of independence that would give confidence to the public and the profession that it was doing a good job. I find it difficult to imagine why that cannot be done, and I do not understand the reasons why not.
Baroness Finlay of Llandaff
My Lords, I also did not put my name on this amendment because there was not enough space for more than four names.
I have a concern that the Health Protection Agency itself may have been a bit like a prophet in its own land and that it was not recognised fully until now, when we see its disappearance, just how important the work is that it has been doing, both nationally and internationally. Apart from already earning money for the UK, its potential to carry on doing so in the emerging large economies in other parts of the world and expanding its scientific input is enormous. It has the role not only of public health but of anticipating what threats may emerge in the future, particularly in the range of toxins that it looks at and studies.
These amendments seem to solve a problem that we have all heard about. We have all been at meetings; we have all met with the relevant people. I really hope that we will not just get told that this cannot happen for a variety of reasons. The amendments seem to be solving a problem that has only been created as a result of these changes. I cannot see that there is anything to lose, except that if the amendments are not accepted we might lose the capacity to earn international research funds in the future.
Baroness Northover
My Lords, noble Lords have raised a number of issues regarding Public Health England, many of which we discussed in Committee. Both then and today, we heard serious points very cogently argued, which we greatly appreciate. We have considered all these issues very carefully. Since Committee stage, the department has published more detail on the new public health system, including its operating model for Public Health England. The views expressed in Committee influenced the tone of those documents, and I hope that I can now reassure noble Lords that our proposals will give the agency the operational independence that it needs to become the leading organisation of its kind in the world.
The first point I want to stress is that Public Health England will function openly and transparently. Its operational freedom will be formalised in a clear and published framework agreement between it and the department. My noble friend’s amendment proposes that the PHE board must have a non-executive chair and a majority of non-executive members. We have considered this at length and understand what the amendment aims to achieve, but we do not agree that this is the best option.
The Public Body Review was clear that Ministers should take more responsibility for arm’s-length bodies. Cabinet Office guidance is also clear that nothing should undermine the direct accountability of an agency chief executive to the relevant Minister. We believe that there are sound and pragmatic reasons underlying that position, which could be put at risk by a governance structure dominated by non-executive representatives.
The public will look to the Secretary of State for leadership and accountability in protecting the nation from threats to health and they will be right to do so. The buck must be seen to stop with him. In the past, public health has too often been pushed to the fringe, which has been recognised by noble Lords. This arrangement brings public health centre stage. Instead of the NHS simply being a treatment service, public health in its widest sense will be central to the new arrangements.
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Lord Harris of Haringey
My Lords, I support this amendment because I believe that it is a sincere attempt by the noble Baroness, Lady Masham, to help the Government out. I do not intend to repeat the arguments that we had a few days ago on Report about placing on institutions a rather stronger statutory obligation to inform patients where mistakes had taken place, partly because we have had that debate. During that debate, the Minister repeatedly expressed the view that the objectives of the amendment could be achieved by placing a contractual obligation on organisation to do this. This amendment quite simply requires that that contractual obligation takes place. I am assuming, therefore, that the Minister will accept the amendment, because it does exactly what he said he wanted to do in his previous speech.
The amendment also expresses the concerns raised by a number of your Lordships in Committee and one or two on Report that perhaps placing the duty and obligation directly on organisations and the individuals involved would be inappropriate and that that would provide too rigid a framework. However, as the amendment does what the Government said would solve the problem, I hope that the Minister will indicate that he is happy to accept it in this form.
The reason why I think that it is helpful to the Government is, as may not have escaped the Minister’s attention, a certain amount of criticism of the Department of Health and of this Bill is prevalent at the moment. For example, a letter was published in the Telegraph this morning which said:
“The Coalition Government promised to ensure greater NHS accountability to patients and the public. We believe this aspiration has now been abandoned”.
That was signed by a large number of people active in representing the interests of patients around the country. It is not specifically about this issue; it is about an issue that we will come on to very shortly in terms of HealthWatch. But there is a very widespread concern that, despite all the rhetoric that we have heard from the Government about “no decision about me without me”, that aspiration has been lost in this Bill.
Part of the way of getting patients to have confidence in their health service is through the knowledge that if something goes wrong the fact will be shared with them. The Government said that they did not want a statutory obligation to be placed on individuals or institutions to do that, but they said that they would like contractual arrangements to be put in place. This amendment makes sure that those contractual arrangements are put in place, and I would have thought that the Government would want to accept it so as to demonstrate that even now there is some good faith left around their desire to put patients at the centre of the NHS changes.
Baroness Finlay of Llandaff
My Lords, I support this amendment and urge the Government to accept it as it is written. I hope that the Government can see that this is very helpful; it fits with the points made by the Minister in his summing up in response to the previous amendment tabled by my noble friend Lady Masham about there being agreement on the importance of openness and candour in healthcare. The Minister went on to say that,
“the NHS could only call itself a world-class health service if it embraced openness wholeheartedly”.—[Official Report, 13/2/12; col. 590.]
He added that there was agreement that something needed to change.
The beauty of the way in which the amendment is worded is that it distinguishes between major and minor occurrences. It emphasises the true duty of candour to disclose events that have affected a patient either medically or physically and that may have long-term effects. It does not focus in any way on anything trivial and requires the contractual duty of candour to be put into the contracts, which was exactly the content of the Minister’s summing-up speech last time.
Lord Faulks
My Lords, I remember well the degree of consensus in your Lordships' House when we debated the statutory duty of candour—namely, that everything should be done to embed in the NHS the culture of openness and to be against any form of cover-ups. However, as I said on that occasion, the world has moved on a little since the days of Lord Cohen—with great respect to the noble Lord, Lord Walton. A number of initiatives have resulted in greater openness by clinicians and a sense of responsibility, which one can find right across the health service. All is not perfect, of course. The duty of candour has been much discussed in academic circles, and the noble Baroness referred to the experience in America where some states—not many—have a duty of candour. But there are very serious arguments that run to the effect that imposing a duty of candour can have adverse effects in that many are thereby encouraged to sue in circumstances where they might not otherwise have sued.
The form of this amendment is certainly good in the sense that it focuses on the serious rather than the trivial. None the less, it does contain the word “incidents”, which is extremely difficult to define. In what circumstances does a clinician, or those employing a clinician, have to go through the processes that the amendment involves? From what the noble Earl said on the last occasion, the Government clearly take the matter of candour extremely seriously. There is a consultation about it and, in due course, there will be reflections of that duty in the contract. Although I am entirely sympathetic to what lies behind this amendment, I am a little concerned that imposing terms, with the inevitable imprecision that this form of amendment carries with it, is not at the moment the answer.
Lord Winston
My Lords, perhaps I may deal very briefly with one area of medicine with which the noble Lord, Lord Patel, and I are particularly familiar. One problem raised is that increasingly general practitioners are doing minor surgical procedures; increasingly in practice, often in groups. I know of one large practice in south-east England, for example, that is now carrying out a procedure called a hysteroscopy, which is an endoscopic or telescopic examination of the inside of the uterus. This is quite a specialised procedure designed to identify cancers of the uterus at an early stage. The problem is that general practitioners may well be able to carry out this procedure somewhat more cheaply than gynaecologists in a practising group. Of course, there is clearly a conflict of interest here, because they may well be in the very practice that is also commissioning this procedure, and a patient might perhaps be wrongly given a particular treatment when a slightly more expensive treatment, done elsewhere, may be more effective and reduce the risk of the cancer.
Baroness Finlay of Llandaff
My Lords, this group of amendments and this debate has focused on conflicts of interest. For clinical commissioning groups, conflict of interest will arise where the leaders of the groups have financial interests, but also where private companies which may have separate provider arms competing as a qualified provider are contracted to provide commissioning support. The other area of conflict which has not been addressed is where quality rewards for commissioning are linked to financial performance of clinical commissioning groups. Further, there are cases where local medical committee officers are key officials in a clinical commissioning group.
The clinical commissioning group is meant to represent the constituent practices. Indeed, there have been articles in the press about commissioning support and commissioning support organisations. Many of those have raised alarm among clinicians who have become increasingly concerned by the talk revealed in the press about the profit to be made by commissioning support organisations. There has also been a realisation that profit going to the commissioning support organisations will reduce the amount of money going into the provision of core NHS services at any level—whether in the community or in secondary care and the hospital sector.
Several amendments are tabled here. The amendment in the name of the noble Lord, Lord Hunt, is very comprehensive and deals with an area which the other amendments do not. There is also an amendment, on which my name is the first, regarding conflict of interest. I can see that Amendment 79A is more detailed than the amendment which I have tabled, and therefore goes further and would be better. However, I am concerned that it does not go quite as far as the amendment in the name of the noble Lord, Lord Hunt, and that some of the principles in there need to be incorporated into Amendment 79A if the Government are minded to accept that amendment. We may have to come back to amend the amendment should it be accepted and incorporated.
Lord Rea
My Lords, as a former general practitioner I very much welcome this amendment. As the noble Lord, Lord Walton, has just said, the standard of general practice has certainly gone up enormously since vocational training started. However, a number of my colleagues are not up to scratch. The Royal College of GPs and the BMA would be the first to admit that all in the garden is not lovely. I would ask the proposers of the amendment, and the noble Earl, if he is minded to accept it, how the monitoring system will be set up.
As has been mentioned, there are already two different systems in operation to monitor the standards of clinical practice—in fact three, if we take the GMC competence system. However, as mentioned by the noble Lord, Lord Patel, QOF is not a very effective measure. Its standards are set far too low. We have yet to see whether revalidation will effectively identify weak practice. If this monitoring is going to be set up, would it not be sensible to involve the General Medical Council, the Royal College of GPs and the BMA in consultation in designing the performance monitoring system that will be adopted? It could be a very good idea. It is high time that there was a more effective system. Most GPs would welcome it enormously and only a few would regret it.
Baroness Finlay of Llandaff
My Lords, I would like very briefly to speak in support of these amendments and ensure that we do not confound QOF, revalidation and the principle of these amendments. They are three different things. The principle behind the amendment is really important because it will identify the range of practices. There was an interesting paper in The Lancet Oncology this week showing the variation in the number of times patients have attended a GP before diagnosis of some cancers like lung, pancreas and so on, whereas those where there has been much greater publicity, such as breast and melanoma, have been referred much more quickly and there is less variation.
Revalidation is about making sure that people are, in the broadest sense, safe to practise and it is hoped that it will filter out those who are really unsafe across the board. However, that is not just what we are talking about with these amendments. We are talking about trying to improve the spectrum of care, including care by those who will get revalidation and who may well be collecting QOF points, but to whom other clinicians in the area would not necessarily want to sign up as patients. So it is about driving up those lower standards to meet the higher standards that we expect. Those data in the public domain will be really important to help patients decide who they register with. I hope, therefore, that the Government will look favourably on the amendments. The amendments are coming from those of us on these Benches who are medically qualified. I should declare an interest as a fellow of the Royal College of General Practitioners.
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“( ) In discharging its duty under subsection (1), in relation to specialised services, the Board must exercise its functions in accordance with current NICE guidance.”
Baroness Finlay of Llandaff
My Lords, we come to another group of amendments that relate to the Commissioning Board. These are three separate amendments but they are grouped together because they all relate to the functioning of the board.
The first, Amendment 50A, aims to embed quality and good practice in services while eliminating unacceptable variations in standards of specialist services by ensuring that the NHS Commissioning Board conducts its functions in accordance with NICE guidance. Unfortunately, we know that NICE guidance is not being observed as widely as one would hope. The amendment has been particularly strongly supported by the Neurological Alliance and a lot of other groups representing patients with less common conditions, which feel that their services are not necessarily as good as they should be.
I shall give some examples from neurology. If epilepsy is suspected, the NICE guidance currently says that these patients should be assessed by a specialist, but 49 per cent of acute trusts have none. The guidance says that they should be seen urgently within two weeks but 90 per cent of patients are not seen within that timeframe. It says that they should have access to an epilepsy nurse but 60 per cent of acute trusts do not have one. With regard to multiple sclerosis, a relatively common condition across the country, 56 per cent of the 89 MS centres are multidisciplinary; the remainder are not. One-third of Parkinson’s patients are waiting longer for diagnosis than the NICE guidance suggests that they should.
Unfortunately, some pathfinder commissioning groups have vocalised that they do not see a need for specialist services and indeed that they are not following NICE guidance. That is why the amendment is worded as it is, with the phrase,
“in relation to specialised services”.
It may seem as if that is superfluous to the wording already in the Bill, but I have worded it in that way to bring a focus on to specialised services.
NICE is an independent way of establishing the evidence for best practice, and its appraisals are widely recognised around the world as being of a high standard and setting high standards. It also provides a basis on which services can be accredited. There are clinical guidelines and services can be audited so that they can be assessed on the standard that they are providing. That allows quality outcomes and patient outcomes to be measured.
Amendment 63A relates to commissioning for conditions that are less common. This amendment in particular has very wide support. Quite apart from neurological disease, there are patients with haematological diseases such as sickle cell or haemophilia, conditions that are affecting children and young people into early adulthood. These patients need to be able to access services rapidly, wherever they are living. These services become part of the general haematological services available where they are, but they have to be provided to a high standard. In the past we had a tragedy with patients with haemophilia, and we see the problem of patients with sickle cell who are not appropriately treated and as a result have much more damage than they might otherwise have. There is also a risk of the inappropriate prescription of analgesics at the wrong time and at the wrong dose, which can result in long-term dependency without establishing good pain control, whereas during the acute crisis patients have terrible pain and need adequate treatment. Sadly, some of these young people have been labelled as being addicted because the severity of their pain has not been recognised.
Baroness Finlay of Llandaff
I am most grateful to the Minister and to everyone who has spoken in this debate. There has been widespread support around the House for this group of amendments. The Minister’s comments on NICE were reassuring and very helpful. We will be returning to less common conditions in relation to clinical commissioning groups, but I feel that we have teased out the very difficult dilemma of the duties that sit with the Commissioning Board versus those that sit with the local clinical commissioning group and how that division and integration work.
Again, in terms of emergency care, the Minister has made very many helpful comments. However, I do have some concerns that I would like to consult on. It would be really helpful if he would meet me and some people from emergency medicine. The College of Emergency Medicine has been trying very hard to work with the Government to make sure that this Bill actually does enhance and does not damage inadvertently the improvements in emergency care that it has been driving across the country very fast over recent years. A meeting would be most helpful. Pending such a meeting, I will withdraw the amendment for the moment, but we may need to come back to some of this at Third Reading, so I would like to reserve that. I beg leave to withdraw the amendment.
“( ) The National Commissioning Board must have regard to advice from a range of healthcare practitioners from across the patient pathway, including local clinical specialists and allied health professionals.”
Baroness Finlay of Llandaff
My Lords, this is another group of amendments that relate to the process of commissioning. Their aim is to ensure that commissioners have regard to all the expert advice needed to make informed decisions about commissioning services for patients, particularly complex services that operate across the care pathway. Amendment 65, which is primarily in the name of my noble friend Lord Patel, further aims to ensure that safety information is shared with everybody who needs to know about it.
The groups of particular concern to be consulted go beyond medicine and nursing; the wording in the amendment is “local clinical specialists”. They will be linked to their own specialist group and specialist society and will be expected to be completely up to date with advances in their field, enabling the most modern, up-to-date and cost-effective care to be brought down to a local level. They also address allied health professionals.
We have spoken remarkably little about the contribution of allied health professionals in our debates so far, and they have not featured on the face of the Bill. Physiotherapists form the largest group of allied health professionals. I declare an interest as president of the Chartered Society of Physiotherapy. As a group, they are very used to representing other allied health professionals; and, as a group , allied health professionals are very used to understanding the role and contribution of each other, such as occupational therapists, speech and language therapists and so on, groups that are small in number but have a very important contribution to make. One of the reasons that they become so important in these new processes of a care pathway is that, if we are expecting more patients to be looked after in the community, we have to do a great deal to increase the independence of individuals.
The physiotherapists and occupational therapists are par excellence the people who will maintain or re-establish mobility and be able to discharge patients from hospital. I know from my own clinical practice that all too often we are waiting for the physio or the OT to provide the essential input that makes the difference between a patient remaining an in-patient or being able to get home, particularly where they have mobility problems. Physiotherapists also have a role in mental health and can be very important in establishing mental health improvements as well as just physical health. It is with that background that they have been featured in these amendments as a group of allied health professionals, because, sadly, many doctors and nurses do not really understand the major and very cost-effective contribution that these healthcare professionals can make. I beg to move.
Lord Patel
My Lords, I shall speak to two amendments in my name, Amendments 65 and 66. They are very simple. They regard the information on the safety of services provided by the health service. I particularly want to address the issue about patient safety.
Amendment 65 refers to the information provided. The Bill says that the Commissioning Board will provide information to those whom it “considers appropriate”. I do not know why the Commissioning Board must decide who it considers appropriate; my amendment merely lists all the organisations providing healthcare to whom the information must be provided. Patient safety incidents occur mainly because of systems failure. I can give many examples, from wrong-side surgery to wrong infusions, wrong medicines reconciliation and wrong injections in the wrong side—such as a spinal injection when a particular material must not be injected spinally. Because it is a system failure, if such a patient safety incident occurs in one hospital, it is likely to occur in another. So the information must be provided to all healthcare providers and those who train doctors and nurses. I do not understand why it must be that the board must make information collected on patient safety incidents available only to those whom it “considers appropriate”.
My next amendment has to do with subsection (3), which says:
“The Board may impose charges, calculated on such basis as it considers appropriate, in respect of information made available by it under subsection (2)”.
Why must it charge? If it charges, we do not get the gains from the lessons learnt from patient safety incidents.
The two amendments are quite simple. I do not understand why it is not clearer.
Baroness Finlay of Llandaff
My Lords, I am grateful to the Minister for having listened so carefully to the amendments and for having addressed and recognised the real concerns that are behind the way that they were written and drafted. I rather hoped that he was going to say that the spirit of the amendments would be taken forward in guidance for commissioning as it is written, and I pose that as a very brief question to him before completing my comments.
Baroness Finlay of Llandaff
I thank the Minister very much. I beg leave to withdraw the amendment.
Health and Social Care Bill
Baroness Finlay of Llandaff Excerpts(12 years, 2 months ago)
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Lord Patel
My Lords, here we go again. I wish to speak to today’s first group of amendments—Amendments 13, 16, 62 and 106—but, before doing so, I thank all noble Lords who have put their names to the amendments. Many noble Lords wanted to put down their names to Amendments 13 and 16 in particular but were unable to do so. However, I thank them all for supporting these amendments.
Perhaps I may start in reverse order. Amendment 106 would impose a duty on clinical commissioning groups in respect of training and education. This matter was debated on the first day on Report and the Government produced Amendment 104 to the same effect. Similarly, Amendment 62 puts a duty on the NHS Commissioning Board in relation to training and education. As the Government have brought forward Amendment 61 to achieve exactly that, I shall no longer speak to Amendments 62 and 106. I can now move on to the proper business, as the House has quietened down.
I apologise that Amendment 16 is badly worded and has some rather deliberate mistakes. Much of it was debated in the context of a second group of amendments moved on the first day of Report last week, and I shall not labour those points.
There are three key issues that we might explore further in relation to this amendment. The first is the establishment of Health Education England as a special health authority. I have no doubt that the Minister will be able to reassure us about the timing of that. Secondly, there is the issue of funding the education and training of the healthcare workforce. That budget will be held by Health Education England. The role of the respective regulators, professional organisations, universities, higher education institutions and so on has already been discussed. The Minister accepted that they have an important role to play, but it is important to establish that the postgraduate deans will continue to perform their current role. The third key issue is the role and authority of the local education training boards. They will not be controlled by employers, and employers will not have a right in statute to chair local education training boards.
Those are the key issues on Amendment 16. I can now turn to my key amendment, and I emphasise the word key—Amendment 13. This amendment tries to encompass all the issues that we discussed in Committee and last week on Report. As noble Lords may remember, I tabled some amendments on education and training and the Minister was sympathetic to several of them. They alluded to the responsibility of all those who provide health services or care or who make any provision for health services to pay regard to education and training. I have tried in this amendment to bring all those amendments together in a simplified way. I now have an admission to make. At an earlier stage I tried a slightly different amendment on the Minister—Amendment 12—which I then withdrew. However, I hope that he finds it acceptable now as I think that it encompasses the matter in a much simpler form.
What is this amendment about? It states:
“Any arrangements made with a person under this Act for the provision of services as part of that health service must include arrangements for securing that the person co-operates with the Secretary of State in the discharge of the duty under subsection (1) (or, where a Special Health Authority is discharging that duty by virtue of a direction under section 7, with the Special Health Authority”.
The purpose of the amendment is to ensure that any person providing services as part of the health service has a duty to co-operate with the Secretary of State in the discharge of the duty in new Section 1E of the National Health Service Act 2006 to exercise his functions so as to secure an effective education and training system, or with any special health authority which is discharging that duty. The amendment would achieve that by requiring commissioners of health services to include a duty of this kind in their commissioning contracts. The amendment applies to all persons commissioned to provide services as part of the health service, including NHS services commissioned by the board and public health services commissioned by the Secretary of State or local authorities. This is consistent with the powers of the Secretary of State that we discussed previously.
The amendment seeks to ensure that all providers of services commissioned as part of the health service, including NHS and public health providers as well as private alternative providers, have a duty to co-operate with the Secretary of State in the discharge of his duty to ensure an effective system for education and training. The duty will apply equally to Health Education England when it is created as a special health authority with responsibility for health education and training. Perhaps the noble Earl will confirm that that is likely to happen by June 2012. It would also require commissioners to include a duty for providers to co-operate on education and training when they issue commissioning contracts.
Since we last discussed the issue, the Government have set out their intention for the new education and training system. I welcome that. I am pleased to see that there will be a national system for education and training, and that Health Education England will be established as a special health authority. However, it is important that we secure a future for education and training through the Bill—hence my amendment—and that the necessary connections are made with other national bodies and with local service commissioners and providers. It is important that all providers of NHS-funded services participate in the planning, commissioning and provision of education and training. They are responsible for delivering front-line NHS services and therefore have a key role to play in supporting local education and training boards—and I mean supporting, not controlling. One previous issue of concern was how the budgets would be used.
It is also important that local employers should provide the highest-quality clinical placements. These placements are an essential element of the education and training process for doctors, dentists, nurses and other healthcare professionals. They give them hands-on experience of their profession or specialty through the delivery of health services in the NHS. It is important, if we are to continue to develop high-quality clinicians and health professionals, that these placements are continued. In the past, there was a tendency when budgets were tight to cut the placements. That is why I make this comment.
My amendment covers all these issues and therefore makes the Bill stronger. It is in the true spirit of revising the legislation that I move it. I was told last week that I misread the signals given by the noble Earl when I pressed my amendment. In order that I do not do so again, I ask him, if he is not minded to accept Amendment 13—although I sincerely hope that he will be, because it makes the Bill clearer—to give me clear signals that he is prepared to talk about this and bring it back at Third Reading if necessary. However, I sincerely hope that we will not go that far and that he will be persuaded to accept the amendment. I beg to move.
Baroness Finlay of Llandaff
My Lords, my name is on two amendments in this group. However, in large part they were covered by the government amendments that we accepted on the previous day of Report. Amendment 13 is particularly important. In our last debate on education and training, we spoke about the need to thread education and training as an infrastructure like scaffolding through the Bill. Carrying on with another analogy, Amendment 13 acts like a superglue that holds all the bits together. We need to make sure that education and training run through every provider, whoever they are. We cannot have some people saying, “Fine, we will have a contract and use staff who have been trained by the NHS but we will not have any obligation toward education and training”. It is within NHS services that the vast bulk of training occurs, although valuable experience can be obtained elsewhere.
The other question the Government need to ask themselves if they are thinking about turning this amendment down, but I hope they are not, is whether they can honestly say that there is anywhere that is fit to provide a service but is not fit to share its knowledge and skills with those who are in training in any part of the discipline. This is not only about specialist education and training but about increasing the knowledge base and skills at every level throughout the system.
Baroness Williams of Crosby
My Lords, we have had an extraordinarily well argued debate and I do not want to involve myself for more than a minute or two because it would waste the time of the House. Perhaps I may pursue for a moment, in the hope that my noble friend Lord Howe will respond, to the point made by the noble Lord, Lord Walton of Detchant, earlier in the debate. When teams of people are involved, as they clearly often are in the case of major surgery or other major treatment systems, the team has to be persuaded with regard to the duty of candour. Very often, it is not the most senior members of such teams, such as the consultants, or the most junior members of such teams who know best about what has gone wrong. It is often true of nurses. It can even be true of assistant care workers, as we learnt all too severely from the case of Southern Cross and the cases in Bristol.
I simply want to ask whether we should not couple whatever we decide on this amendment with a complete refusal to accept gagging orders on junior staff when inquiries are made of those who are senior to them, whether they are private companies or senior figures in the National Health Service. It was encouraging to hear the noble Lord, Lord Walton of Detchant, say that there is a long way to go. Unfortunately, gagging orders are very common in the health area, and they are something that must be addressed if we are serious about getting to the bottom of things that go wrong in medical treatment.
Baroness Finlay of Llandaff
My Lords, I considered long and hard whether to add my name to this amendment. The gagging orders to which the noble Baroness, Lady Williams, has just referred run completely counter to openness and candour, and there has to be candour. I hope that the Government will take away from this debate the fact that, first, something has to be done to stop people being gagged; and secondly, whether it is in guidance or on the face of the Bill, there must be a way to ensure that there is candour throughout the whole system and that it applies to everyone. The implication that general practitioners, dentists and so on are not on an equal footing with other organisations is invidious.
Patients need to know what has happened. I admire my noble friend Lady Masham for persevering with her research into this issue and presenting it to us today. The tension arises between an individual, a doctor registered with the GMC, on whom there is a duty of candour as an individual to be open and honest with patients if things go wrong—indeed, in the relevant paragraph in Good Medical Practice 2012, the word “must” appears, which means what it says, as opposed to “should”, which is advisory—and organisations. When things go wrong, there is often a series of errors that become compounded, along with other events that may seem insignificant. For example, a patient’s notes were not available on one occasion when they were seen so the wrong investigation was ordered, and things went on from there. Another difficulty is that it is sometimes the patient’s own behaviour which contributes to the cascade. It can be difficult to confront a patient who is already distressed with the fact that the way in which they have behaved—perhaps by discharging themselves or by going off to some alternative practitioner—has contributed to the way in which things have gone wrong. Another simple example is, if you do not know that a patient is taking a certain medication, it can be very difficult to predict an interaction with a prescribed medication.
I should declare my interests, which I did not do earlier in our debates—I hope that the House will forgive me—as a fellow of the Royal College of Physicians, a fellow of the Royal College of General Practitioners, a member of the British Medical Association and a practising clinician. I will always remember as a medical student meeting a general practitioner who took me for a walk in a small village on a Welsh hillside. He took me to the churchyard and said, “I want to walk you around the churchyard”. I asked him why, and he replied, “Because I want to introduce you to my errors”. He had been working in the village for many years. Sadly, as a junior doctor I was in a hospital where there was a catastrophic medical error. What that taught me more than anything is that you have to be open from the first moment you realise that an error has been made. Anything other than openness fails.
To reinforce the remarks made by the noble Lord, Lord Newton, and the noble Baroness, Lady Pitkeathley, whenever I have had to tell patients that something has gone wrong, however minor it may be, I have been astounded at how grateful both they and their families have been for the fact that I have told them. They are also grateful when we institute intensive monitoring procedures, which can mean that patients are woken every hour through the night, and express relief touched with a sense of humour when such intensive monitoring is no longer required. Time and time again when things have gone wrong, there is an overwhelming sense that whatever it was should not happen to anyone else, along with the realism of knowing that you cannot put the clock back, and that medicine is about not absolutes but all shades of grey.
The difficulty with having this clause in the Bill is the potential for unintended consequences. That is why I hesitated about adding my name to it. I hope the Minister will take the matter forward, because this has been a very powerful debate, and put something in guidance. In 2009, the CMO recommended a duty of candour. We really must make it a reality if the implication of “nothing about me without me” is to be honoured. We need to be open, honest and realistic with our patients.
Baroness Hussein-Ece
My Lords, I, too, had no intention to speak on this amendment, having spoken on and supported the proposal for a duty of candour in Committee. Patients and public quite rightly have higher expectations of the services they receive from the NHS, both for themselves and their families. They are also better informed, and they expect NHS clinicians, carers and nursing staff to respond to that. This is not just about graveyards, as mentioned in the rather alarming story recounted to us by the noble Baroness, Lady Finlay, but also about care. Patients might not have received the quality of care that they expected. I have had experience of that with my late father. When he was terminally ill, the standard of nursing care was so poor and so distressing that the onus was on me, on behalf of my family, to take it up with the chief executive or whomever I could find and say that things were just not good enough. Even as someone who had worked in the health service and spent time as a chief officer for a community health council representing patients, I still found it hard to know who was the right person to take a complaint to. It was not a serious complaint—about medication, for example—it was just about the standard of care. In fact, the consultant on the ward asked me to take up the matter because he was so concerned and could not do anything about it himself.
What worries a lot of trusts, and I came across it in my career in the NHS, is that an apology might somehow be taken as an admission of guilt. They were therefore reluctant just to give a straightforward apology. In my case, I had to complain about a particular member of the nursing staff, with the case continuing after the death of my father and disciplinary action being taken against the individual concerned, but I still did not receive an apology. Even after my complaint was upheld, there was no apology. There was no sense of, “Yes, we realise things went wrong”; rather, it was, “Yes, this person did something wrong and she is going to be dealt with”. There was no apology, no statement of how things would change and how the culture in that particular ward in terms of caring for older patients would improve. A basic apology should be the very least thing that could happen, without there necessarily being an admission of liability or of guilt. At the human level, an apology should be made to somebody who has suffered, or to their family.
People also want a simple explanation. They do not want an incomprehensible letter about treatment; they want a step-by-step, basic explanation of what should have happened but did not—just to give someone some background. This should be done very quickly. Trusts should also offer a face-to-face meeting, which not all of them do, particularly early on. It may already be offered further down the track.
Those two or three simple measures should be put in place and become the norm. We have heard in this very interesting debate that there are variations, and there probably always will be, but we should expect a minimum standard when things go wrong or when services are perhaps not what they should be.
Health and Social Care Bill
Baroness Finlay of Llandaff Excerpts(12 years, 2 months ago)
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Baroness Finlay of Llandaff
Will the Minister clarify what the sanctions are when there is a failure to co-operate? Examples of failure to co-operate are emerging already. While there is an outline duty in the Bill, what are the sanctions when that is not happening?
Baroness Northover
Local authorities have a statutory responsibility for public health. If the noble Baroness looks at the outcomes framework, she will see where different authorities have different responsibilities. In order to discharge those responsibilities, those authorities will have to work together, otherwise they will not be able to deliver those outcomes.
In response to Amendment 25, we entirely share the view that we must make use of the best scientific and other evidence available. However, we do not think that an amendment to the Bill is necessary to do this. If the Secretary of State is to carry out his duty effectively, he must necessarily obtain and use such advice.
I heard how the noble Lord, Lord Beecham, read out the amendment. It is clear that evidence must be sought without it being skewed in any way by any special interests. However, the way in which the amendment is drafted implies that the Secretary of State might not be able to consult legitimate professional organisations or stakeholder groups that may have relevant expertise and experience. I made that point in Committee. We agree, clearly, that the inappropriate influence of special interests would not be right, but that is not quite how the amendment is drafted.
The Government’s Chief Medical Officer will continue to provide independent advice to the Secretary of State on the population’s health. She will be supported in this role by a public health advisory forum that will bring together expert professionals and leading partners to assist her in providing advice and challenge on public health policy and implementation. I hope the noble Lord will be reassured about that. The use of evidence underpins all this and there is no intention whatever that it should be skewed in any way. I trust that that reassures noble Lords and that they will not press their amendments.
Lord Beecham
I would be loath to give a definitive answer, not even having the advantage of officials in the Box to support me on this matter. However, I would have thought that infectious diseases are more appropriately a matter for the director of public health at local level. Presumably, at national level the Chief Medical Officer would have overall responsibility. However, the noble Baroness is right to imply that there is a connection with other functions and services where environmental health could contribute. I suppose that overcrowding would be an example of that. I take it that that is what she is referring to in this context. It is precisely in that sort of area that environmental health officers and others would have a statutory responsibility. There is no direct relationship potentially between, for example, a chief environmental health officer and infectious disease, but it would be sensible to have somebody with responsibility and oversight of environmental health issues of the kind that we are discussing working alongside the Chief Medical Officer. Water quality could in certain circumstances be another example of these issues. That discipline should be at the table, as it were, in a sufficiently authoritative way to contribute to dealing with issues of that kind and, we hope, preventing them.
Baroness Finlay of Llandaff
My Lords, the question asked by my noble friend Lady Masham illustrates why we need to have a chief environmental health officer for England, as well as having that input in Wales, because by and large elements in the wider environment are determinants of health and play a much greater role in that regard than we recognise. Indeed, if the Marmot review and its aspirations are to have any effect on the health of the nation, we need to address environmental health much more closely.
I declare an interest in the specific areas of carbon monoxide poisoning and the problems contributing to that arising from the environment in which people live, and the link between the roads infrastructure and its air pollution and asthma and the underdevelopment of the lungs of children who live near major road junctions. The interplay between health and the environment in which people live is crucial. Health services on their own will not achieve improvements in health, particularly those outlined in the Marmot review. I hope that the Government will not tell us that the amendment is unnecessary, despite the initial typographical error in the reference to an “Evironmental Health Officer” rather than an environmental health officer. I fear that we will hear that the amendment is deemed to be unnecessary and that the relevant advice can be sought elsewhere. However, there is good evidence from other places that strong leadership from somebody who has a particular role in an area can bring about change and build the bridges to which I referred in the previous group of amendments.
Lord Harris of Haringey
I support the amendment. The significance of the chief environmental health officer’s role would stem from his or her being the national head of the profession. The enormous amount of work that local chief environmental health officers do will be familiar to anyone who has been involved in local government. Their work stretches from food standards in local restaurants right through to housing conditions, as the noble Baroness, Lady Finlay, said. It is important that there is a clear mechanism by which the issues that are being highlighted and the points that need to be followed through by government action are fed up to the national level of government. If the Government resist this amendment, I would be interested to hear precisely what mechanisms they see as being available to local environmental health officers and local health and well-being boards to pass through the sorts of issues that can be tackled only at national level.