Health: Influenza Vaccination
Baroness Finlay of Llandaff Excerpts(12 years, 10 months ago)
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Earl Howe
My Lords, in general it is incumbent on employers, whether in the public or the independent sector, to ensure that their staff are protected appropriately. If my noble friend’s question alludes to the fact that independent providers may be offering services to the NHS, then I agree that there is a duty there, and we will see, as we already see, that that provision is taken account of in the contracts that commissioners take out with independent providers.
Baroness Finlay of Llandaff
With reference to the contracts and the contracting guidance, is the department considering that immunisation against infection, such as influenza, should be considered as an infection control measure in areas where patients are immunocompromised, such as those who are having chemotherapy or who are on other immunosuppressant drugs? They are at particular risk of high mortality as well as morbidity should they pick up an infection.
Health and Social Care Bill
Baroness Finlay of Llandaff Excerpts(12 years, 11 months ago)
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Earl Howe
My Lords, I shall speak also to the other government amendments in this group, Amendments 348BA, 348BB, 348BC, 348BD, 348BE and 348BF.
The first of these amendments enables the Information Centre to charge the Commissioning Board where the board has directed it to collect information. The next four amendments are drafting amendments to improve and clarify the drafting in Part 9 of the Bill. Government Amendment 348BE is a consequential amendment to ensure that the CQC can continue to be able to require information from the Information Centre to support the CQC’s regulatory functions. Government Amendment 348BF removes a consequential provision from Schedule 20 following a request from the Welsh Assembly Government. I hope that that brief explanation will be enough to persuade noble Lords that these amendments should be accepted and I beg to move.
Baroness Finlay of Llandaff
My Lords, I have Amendment 348C in this group, which relates to the National Information Governance Board being disbanded and a national information governance committee being formed and being part of the CQC. There is concern over the way that that will happen.
The National Information Governance Board currently advises the Secretary of State on access to confidential patient information without patient consent when it is for medical purposes, under the Health Service (Control of Patient Information) Regulations. These are made under Section 251 of the National Health Service Act 2006 and give rise to applications from researchers for access to confidential patient information. The Patient Information Advisory Group, or PIAG, was established and later became the Ethics and Confidentiality Committee of the National Information Governance Board. This provides advice when people who are not the doctors or professionals involved in the care of a patient wish to access information from medical records that are potentially identifiable without the knowledge or consent of those people. It is permitted legally through the exercise of discretionary powers of the Secretary of State. The Ethics and Confidentiality Committee of the National Information Governance Board has an advisory function. It is not a regulator and has no powers to stop disclosure. It helps disclosers of information to know the risks and whether to seek statutory protection. If they are given that protection, they are protected from liability under the common law duty of confidentiality.
Clause 274 abolishes the National Information Governance Board but also omits Sections 250A to 250D of the 2006 Act. In those sections, one of the functions established for the National Information Governance Board is to advise the Secretary of State on particular matters relating to the processing of patient information by any person. This advisory function will not transfer to the Care Quality Commission under Clause 274(3). The Care Quality Commission might be regarded as not being the ideal home for the governance board for reasons concerning its own expertise and current performance.
Baroness Finlay of Llandaff
My Lords, I am grateful to the Committee for allowing this question of whether Clause 285 should stand part of the Bill to be taken today. Previous commitments from the Minister have outlined that the Secretary of State’s annual report is an important mechanism through which he will account for the system, and the Bill sets out extensive powers of intervention in the case of failure, which are essential if Ministers are able to retain ultimate accountability for the health service. However, the Secretary of State’s duty of keeping performance under review applies only to national arm’s-length bodies, although we are also debating—and will be, I am sure, on Report—how it might also refer to the clinical commissioning groups.
The aim of this debate is to explore what will happen if Monitor and the CQC do not co-operate. I am simply seeking some clarification from the Minister in response to certain questions. The Bill sets out a formal duty of co-operation between these two bodies—but what practical actions will be taken if this does not happen? On 7 December, the noble Earl, Lord Howe, stated at the Dispatch Box that the Secretary of State would be able to write formally and publicly to organisations if the duty to co-operate is being breached. How will the Secretary of State monitor how effectively Monitor and the CQC are working together? Will they report on how well they have worked together and where they seek to improve their working relationships in the future? What will trigger the Secretary of State to intervene? Can the Secretary of State take responsibility for any services that have been responsible for triggering a dispute?
The Minister also stated that:
“If the breach is significant, sustained and having a detrimental effect on the NHS, the Secretary of State will have a further ability to lay an order specifying that the organisation should take certain actions only with the approval of another specified body, other than the Secretary of State himself”.—[Official Report, 7/12/11; col. 747.]
Will the Government please give a definition of the meaning of,
“significant, sustained and having a detrimental effect on the NHS”,
and explain what this will mean in practice? In subsection (7) there is mention of arbitration, but who will the arbitrator be in the event of a dispute? Is that the Secretary of State?
There may be examples of work between CQC and Monitor that may not be considered significant breaches of their duty to co-operate but may not be best practice in integrated working. This is a particular risk for complex work such as setting the tariff, especially for care pathways for complex conditions that take into account multiple providers. How will the Government ensure that these two bodies do not meet just bare minimum standards but continue to improve the quality of their integrated working, innovate to find new ways of co-operating and share good practice throughout their organisations, so that integrated working is strategically built in at their every level?
There is a particular concern about the effect on long-term conditions if Monitor and the CQC do not work seamlessly together. We have had debates already about the importance of care being integrated to treat patients with long-term conditions. The Secretary of State must be proactive in ensuring that both Monitor and the CQC themselves work proactively to facilitate such integrated working. I would be grateful for some further elaboration on how this will be achieved. I hope that the Minister will be able to assure the Committee that Monitor and the CQC will be required to report to the Secretary of State on how they have collaborated, including an evaluation of how they have co-operated, and that they will be given goals by the Department of Health on how to improve continuously in such working.
When considering potential failure that is recognised by one party but not the other, who will have the power to intervene? This becomes particularly important as Monitor has powers to intervene in failure but not, as I understand it, at the point when an organisation is at risk of working in a way that may result in failure—in other words, in a pre-failure state. At that point, Monitor does not have powers to intervene. I would be grateful if the Minister were able to answer at least some of my questions today. I realise that I have posed a lot of questions, and that some may come better in writing later.
Baroness Williams of Crosby
My Lords, I follow the noble Baroness, Lady Finlay, and very much share her questions—not least about who will be the arbiter in a situation where co-operation cannot be reached between two of the major bodies involved in responsibilities for the health service. I would add just a couple of things. I very much apologise to the Committee for the fact that, when Amendments 350 and 351 were reached—we were already going through at a rattling pace—I was out of the Chamber so did not move those two amendments. I will not refer back to them or move them now; it would obviously be inappropriate to do so. However, I stress the concern that I have about Clause 285.
The trouble is that there is a very long and elaborate procedure under which, if co-operation fails between the board and Monitor, they have then to exchange views with one another and tell each other what their opinions are, and so forth. They and the Secretary of State then have to make statements of their opinions. This seems most unfortunate, because co-operation and integration are at the very heart of what all of us have been saying in Committee are absolutely crucial elements in the attempt to deal with the problems that confront the NHS, and the health service more generally, at the moment. Therefore, to have a procedure which is as elaborate and which has as many stages in it as this one—with, in many ways, the chances to fuel rather than heal any difference between them—seems not to be a sensible clause at all.
Our amendments simply suggested that it would be much better, at a certain point when we were in what the noble Baroness, Lady Finlay, described as the pre-failure period, to allow the Secretary of State to come into the picture. This goes back to what the noble Lord, Lord Mawhinney, was talking about earlier. We are not talking about an immediate intervention. We understand the need to try to get agreement and to decentralise decision-making but in the end, if they cannot agree on how to co-operate and resolve that, either there has to be an arbiter whose voice is such that he or she carries real authority or, since we do not know who that arbiter is, in our view the proper arbiter is indeed the Secretary of State, responsible as he is to Parliament and to the public. Therefore I strongly support the noble Baroness, Lady Finlay. I am very grateful for what she has said. I hope we can hear from the Minister who will be the arbiter, and whether there might be a more rapid and effective way of dealing with a failure of co-operation. I put on record that I think this is absolutely crucial to what this is all about. We need to be able to deal with it reasonably urgently and quickly.
Baroness Finlay of Llandaff
My Lords, I really am not trying to prevent Christmas starting for Members of this Committee. I feel as though most of today’s amendments have concerned me. These are probing amendments, which relate to NHS capital assets. They are designed to explore what happens to the current offices and clinical premises of an NHS body at the time of transition and afterwards. If these premises are occupied by a clinical commissioning group or a company that is advising a clinical commissioning group on its commissioning, who will become the owner of the property?
This is important because GPs are themselves independent contractors, not NHS employees. For many—not all but a significant number—the premises from which they work are owned by their practice. They, not the NHS, jointly own them, even though the building will usually have been subject to a range of capital improvement schemes from the NHS over many years. Such schemes allow a GP to purchase a practice and invest in it over the years. The capital gained then forms a significant additional pension pot for that GP.
My question for the Government concerns whether the deeds of the property will be transferred to the general practitioners of the clinical commissioning group. Will they be able to sell it for profit that would then be their personal profit? Will the profit revert to the NHS and, if so, to which pot? If property is transferred, will the new owner be liable to put capital gained into the capital part of the commissioning pot to develop service premises and equipment for the health service itself, rather than be able to take whatever capital gain there is on that property? I beg to move.
Baroness Thornton
My Lords, I just wish to add two questions of my own to the list that the noble Baroness asked. Has the Department of Health now resolved the issues around future asset ownership in respect of PCT and SHA estates? Within that, does that include LIFT schemes and PFI?
Earl Howe
My Lords, I hope I can answer the question of the noble Baroness very quickly. Clinical commissioning groups will be statutory bodies. They will be legally and operationally separate from GP practices. As such, if a clinical commissioning group occupies property that is under the ownership of that group, it will be under statutory ownership. It will not be open to GPs to sell such property at a cut price, or at any other price, to GP practices to enable such practices to pocket the profits. What the noble Baroness outlined sounded to me very much like embezzlement from the state. It will be no more possible for what she envisages to happen than for a primary care trust to sell a property and have its officers pocket the proceeds. I am a little mystified by the scenario that she has painted.
Baroness Finlay of Llandaff
May I make it clear that I am not suggesting that general practitioners will embezzle funds from the NHS? I am just concerned about who will hold the deeds of such property at the time of transfer. Once the ownership is transferred, the disposal of those assets rests with the new owner. We have seen foundation trusts that have, in rationalising their services, quite rightly sold off sometimes large pieces of estate that have been very valuable and become housing land and so on. That money has then gone back into NHS services. I wanted clarification that the same thing would occur.
Earl Howe
I suspect that the example the noble Lord has in mind involved GP practice premises rather than property owned by an NHS body such as a primary care trust. I suggest that the two cases are rather different. However, I take the noble Lord’s point that integration of services at a delivery level can often be very advantageous to patient communities. Some of the most successful examples that I have seen are of practices where many facilities are available on site for the patient. We are seeing more and more of these being created around the country. We should encourage that.
Baroness Finlay of Llandaff
I am most grateful to the Minister for that response. This has been a short but very useful debate. I have an anxiety that we may need to refer back to it in the future, although I hope that I am proved wrong. On that note, I beg leave to withdraw the amendment.
Health and Social Care Bill
Baroness Finlay of Llandaff Excerpts(12 years, 11 months ago)
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Baroness Finlay of Llandaff
My Lords, I speak to the amendment to which I have added my name in relation to children, but also speak to a raft of other amendments related to allied healthcare professions. Last week we had a debate about the need for the voice of children in the Bill to be strengthened. On reflecting on this and the debate that we had over other vulnerable groups, it struck me quite forcefully that children are the only group who do not have an independent voice en masse. In all other vulnerable groups, there will be a spectrum of people, some of whom can be outspoken and some who can be advocates for others, even among groups such as those with dementia, the very elderly and those who have come here to this country as asylum seekers. However, children under the age of 16 are completely dependent for consent and for other issues on those who have a legal parental role to act on their behalf and to consider their best interests.
We discussed last week the fragmented society in which some children are now brought up, and the difficulties that individual children face. We also discussed the need for health and social care services to reflect the needs of children. I urge the Minister, in looking at these amendments and those we debated before, to consider very carefully where our society will be heading if we do not strengthen the voice of children on the face of the Bill.
Amendment 330A, to which the noble Lord, Lord Low, has put his name and, I believe, will be speaking, will try to secure a change so that this Bill parallels the change in the Education Act.
I will now address my remarks to the need for representation and consultation of allied healthcare professionals, and in so doing declare my interest as president of the Chartered Society of Physiotherapy. Physiotherapists are the largest part of the allied health professions’ workforce. The Bill needs to state that allied health professions as a group are consulted, because there is, sadly, great ignorance in medicine and nursing as to the full range of professional services that allied healthcare professionals can contribute. They contribute right across the range; innovative models of service provision now being developed are able to free up medical and nursing time and decrease the number of interventions needed, particularly on aspects such as orthopaedic surgery, where physiotherapists are running clinics and are able to intervene and completely obviate the need for some patients to progress to surgery.
Allied health professionals by and large, and physiotherapists in particular, are focused on re-enablement; on keeping people healthy; working with the parts of them that are healthy and helping them cope with the parts that are not; on preventing absence from work and avoiding unnecessary hospital admissions and unnecessary interventions. We are already hearing of delayed discharges from hospital. The Health Service Journal of 27 October this year had a piece on this. Patients are having to wait for care packages, including physiotherapy services, that could enable them to be cared for in their own homes. Without the allied healthcare professional voice being involved at senior-level commissioning, acute services will not be joined up in the community, and that leads to fragmented care for patients and poorer health outcomes. Care in the community setting is viewed as key to the Government’s efficiency savings in relation to hospital admissions. Allied healthcare professionals enable patients to take control of their own care and resume living in their own homes, empowering them and easing the burden on front-line services. There are a whole group of amendments in my name which list allied healthcare professionals. I hope that the Government will look favourably on these.
Baroness Greengross
My Lords, my Amendment 332A follows well from the previous two speakers. It would ensure that integrated working in health and social care delivery—particularly the latter, which we know from many noble Lords who have spoken, including the noble Lord, Lord Warner, is often very much the junior partner in these discussions—is given an explicit place on the face of the Bill, rather than simply being relegated to regulations and guidelines. In his report on Fairer Care Funding, Andrew Dilnot commented that when someone has a care or support need, they do not really know which part of the range of state funding is going to provide the services that they need. This particularly applies to people with multiple needs and co-morbidities, which is often the majority. We know that there are many different services delivered at national and local level—for example, the NHS, the adult social care system, social security benefits, public health services and housing services. They can all be critical in meeting people’s needs. The problem is that all these elements overlap and interact, sometimes positively but sometimes rather negatively. Dilnot noted forcefully that when services that are shaped around people work well together, outcomes are better; when they do not, people experience very disjointed services and their experiences are poor.
We need a care system that is more consistent, with less variability, and one in which people feel that services are working for them, not against them. In this context, I welcome the Department of Health’s commitment to breaking down the barriers between health and social care to improve the outcomes and experience of users. Having a National Health Service that is free at the point of need, but a shared-responsibility system of social care, means that difficult decisions will continue to be made if this carries on. For example, in response to the Nicholson challenge, how will clinical commissioning groups ensure that the focus stays on the patient and on integration of services and not on contracting and other arrangements? Do we know what type of support managers need to make integrated services a reality? How can staff be encouraged to work collaboratively? Through this process, how can the correct values and ethos concerning the dignity and respect of patients, which we all believe in, be developed and maintained within and across organisations? There are many examples of where the consequences of having different care streams can seem extremely unfair to people. But when streams have been integrated or a more co-ordinated approach is taken, there is evidence of improved outcomes, high-quality services and better value for money, as well as the fostering of innovation. In my view, the powers proposed in Clause 192 for the health and well-being boards to support integrated working should be extended to encourage explicit joint commissioning.
In support for innovation in Part 5, greater regard should be given to the role that service and technology solutions, for example, can have in breaking down traditional boundaries and in encouraging better integration of health and social care services. All generations, including older people, are having their lives transformed by the dramatic changes that we daily witness in communications technology, yet in the UK the adoption of telehealth into health and social care, particularly in prevention and intervention, has sometimes been much slower than in many countries in the industrialised world. In other parts of the world, we have clear evidence of the key role that these systems play in the prevention of ill health, in self-management, in the provision of improved outcomes and in dependence for service users and efficiency savings for the taxpayer. As part of the overall redesign of care, this represents a vital element in the shift towards more preventive care, reducing the imbalance between hospital and primary care spend and making better use of scarce clinical resources. Better integration should facilitate such innovations and would go a long way to making health and social care more self-directed and giving a boost to the personalisation agenda. Integration deserves to be more than a footnote in this Bill. It could be the cornerstone of better quality, value for money and patient-centred care.
Earl Howe
I hope the noble Baroness will have sensed from my remarks that we want to avoid being overprescriptive. On the other hand, we are clear about what best practice looks like, and in framing JSNAs and the health and well-being strategies we have provided for statutory guidance which can set out what best practice looks like.
I think that that is the appropriate balance, rather than putting “must” in the Bill all the time. Local authorities are autonomous bodies and we must hesitate before directing them too closely. I very much agreed with the points made by my noble friend Lady Cumberlege on this. It is not, of course, that we regard these as unimportant; it is a question of how much we mandate and how much we leave to local discretion.
Baroness Finlay of Llandaff
My Lords, I will build slightly on that because I have my name on the same amendments. I understand the Minister’s response regarding the need not to be over-prescriptive, and not to have boards that are burdensome and cannot take decisions easily. He has referred to guidance. It would be very helpful if he could assure us that the contents of this debate and the trends and themes that have come through will inform that guidance, and that the health and well-being boards will be asked to particularly consider and consult with the broad range of professionals and prisoners, and the particular needs of children—which I emphasise. This will ensure that their strategy is broad and really meets the needs, so that there is not, inadvertently, a small board taking narrow decisions.
Earl Howe
My Lords, I can assure the noble Baroness that the substance of this debate will most certainly be fed in. We will be revising the statutory guidance on the joint strategic needs assessment in due course to reflect the changing system. As a result of the Future Forums recommendations, we will also be issuing statutory guidance on the joint health and well-being strategy. There is therefore plenty of scope to build in the very salient and important points that noble Lords have raised.
“Health Service Ombudsman for England and Health Service Ombudsman for Wales
All patients receiving care from an organisation that receives any funding from the NHS shall have the right of complaint to the relevant health service ombudsman.”
Baroness Finlay of Llandaff
My Lords, this Bill in vast part concerns England only. This amendment concerns both England and Wales. I have tabled it to try to clarify an area in the role of the ombudsman which is currently not clear. Having spoken to the ombudsman in Wales at length about this, and discussed it with the ombudsman in England, with the emergence of any qualified provider and a range of licensed providers in this system, it seems that there is a need to clarify the role of the ombudsman, to make sure that patients have a final port of call when the complaints system has failed them.
I will quote from the Complaints and Litigation report of the House of Commons Health Committee from the previous Session. It states:
“Many people see the role of the Ombudsman as a general appeals process for the complaints system, but the remit under the Health Service Commissioners Act is much narrower than that. The Committee is of the view that a complainant whose complaint is rejected by the service provider should be able to seek independent review. The legal and operational framework of the Ombudsman’s office should be reviewed to make it effective for this wider purpose”.
The Health Service Commissioners Act 1993 set out the principle that the ombudsman should be able to investigate an issue if the provider was providing services,
“under arrangements with health service bodies or family health service providers”.
The Public Services Ombudsman for Wales was established in 2005, and also has a responsibility for cross-border work. Last year, however, there was an investigation into a children’s hospice in Wales which revealed the ombudsman’s difficulty when investigating an organisation that provides services for and on behalf of, and receives funding for providing services to, patients in an area but which does not fall under the NHS jurisdiction in any way, and simply has a contractual service-level agreement. The report from the ombudsman in Wales states:
“The Ombudsman does not have jurisdiction for the hospice and was unable to investigate Mr & Mrs A’s concerns about the hospice’s actions”.
It goes on to say:
“The Ombudsman commented on his lack of jurisdiction for the hospice, and that there was no other independent body able to investigate Mr & Mrs A’s concerns about the hospice. This is profoundly unsatisfactory. The Ombudsman asked the Welsh Assembly Government to consider what action it could take to bring the hospice into his jurisdiction”.
Hospices are just one area of provision. They are well known, and it is very unusual for there to be complaints in hospices. However, they do occur, and it seems that those using the services of any independent provider in such a way should have the same right of redress as if they were in an NHS facility. The purpose of the amendment is to simply clarify that wherever a patient is being treated, if the NHS has any interest whatever—if this patient is being treated as part of an NHS provision —it should come under the remit of the ombudsman to investigate should the ombudsman feel it is warranted.
I looked back through the report of the Health Service Ombudsman for England and noted that there were 325 complaints last year that did not fall into the remit because they were for privately funded healthcare. This amendment does not ask that the ombudsman’s report should necessarily cover privately funded healthcare. In all honesty, however, if somebody is receiving healthcare, however it is funded, and if that is part of our licensed, inspected and regulated system in this country, where it goes seriously wrong and those bringing a complaint feel it has not been handled satisfactorily, my own view is that we have a national duty to be able to investigate. In doing so, we may find that our inspection processes have failed and that our regulatory processes are not functioning as they should.
That is the background to what might seem a very simple amendment. I really hope the Government will look kindly on it, because having discussed it and its wording in detail with the ombudsman in Wales, I know that it is certainly supported there. I also know that it is not opposed by the ombudsman in England.
Baroness Williams of Crosby
My Lords, the combination of the noble Baroness, Lady Finlay, and the noble Lords, Lord Walton of Detchant and Lord Wigley, is a pretty powerful triad by any standards. I express my support for what the noble Baroness said. We have seen some remarkable work done by the ombudsman for England—who I think is retiring from her post—particularly in respect of the care of elderly people. It has been very important in giving the public a sense that they have access to the highest levels when they have a complaint.
My only concern about this amendment is that it is very important indeed that as far as possible complaints are dealt with by health and well-being boards locally, because very often local knowledge is crucial in understanding why something has gone badly wrong. I always think it is significant that the ombudsman for England has been most effective when she has written reports that cover an area. When it comes to a personal complaint, very often it is the local level which is the appropriate one to deal with it. More than that, very much part of the education and understanding that a health and well-being board can bring to the whole issue of patient responses and patient care in the NHS is that people should at least see the local level as the first point of complaint. Having said that, it is obviously important that there is a final, as it were, court of appeal —I do not mean that in a legal sense of the word —and that is what the ombudsman ought to be. Clearly he or she should be independent of any particular interest in the health service, and I agree with the noble Baroness, Lady Finlay, that it should apply across the board to all providers whether private, voluntary or within the NHS structure.
With those few words, I support the amendment and think it is an important one. However, I emphasise that the starting point should always be, wherever possible, at the local level, and that the ombudsman should be seen as the last and final resort.
Baroness Northover
My Lords, the amendment links to an important point of principle which we wholeheartedly support: that any patient or person who receives NHS-funded treatment or care, whether the treatment or care was provided by an NHS or private provider, should have recourse to the Health Service Ombudsman, should their complaint not be resolved through the NHS complaints arrangements at a local level. I assure my noble friend Lady Williams that that is the first stage.
I reassure noble Lords that these types of situation are already provided for in law. I wish to address directly what the noble Baroness, Lady Finlay, has raised, which is the situation in Wales. The Public Services Ombudsman for Wales recently called for his office to be given more power to independently investigate hospices. This follows complaints from the family of a teenage girl who died of leukaemia, about the way their concerns over her care were handled. The ombudsman pointed out that he had no power to investigate the family’s complaints against the hospice, although it received public funds, as it did not fall into the same category as a hospital or a council-run service.
In response to a report published by the Public Services Ombudsman for Wales in 2011, we understand the Welsh Government are looking into extending the ombudsman’s remit, to enable him to investigate complaints about hospices and hospice services, as well as extending the existing complaints advocacy arrangements to cover complaints about hospices.
I therefore hope that the noble Baroness will be reassured by what I have been able to say, in that regard.
Baroness Finlay of Llandaff
I seek a little clarification. If I have understood right, the noble Baroness said that any provider is covered by the Health Service Ombudsman in England, and any cross-border provision would also be covered by the Public Services Ombudsman for Wales, irrespective of who that provider is. Therefore, the only change needed in primary legislation is to the remit of the Public Services Ombudsman for Wales, to make sure that the remit for non-NHS providers is extended within Wales; but that otherwise all patients, wherever they are in England, wherever they have come from and irrespective of the provider, have recourse to the NHS ombudsman. I suppose the same should apply to Scotland as well, though there is not the same cross-border flow.
Baroness Northover
To clarify, I say that all care paid for by the NHS in England is covered—that is the crucial thing. My noble friend Lady Williams also mentioned other care that might be covered. Whoever provides the care, the crucial thing is who pays for the care. Even if there is a private provider or a voluntary provider as well as an NHS provider, if the NHS is funding that care it comes under the ombudsman’s responsibility.
Baroness Finlay of Llandaff
I do not want to detain the House much further, but I think this is something we need to discuss, and probably away from the Floor of the House. One of the issues about hospices is that their care is not fully funded by the NHS: it is only partly funded. Some providers receive grants to provide care because they are mostly charitably funded, partly NHS-subsidised and helped—but it is not that the NHS is paying for that complete package of care. That is where the confusion and the difficulty lie. It would be helpful if we could unpick this later and see whether we need to return on Report with a very small amendment, so that we can make quite sure that the system is watertight for all patients.
Baroness Northover
I am very happy to take up the noble Baroness’s suggestion that we discuss this further. I hope she will be reassured by what I can say about Wales. However, if there is a company, for example, that is providing care partly within the NHS funding, the ombudsman would not cover the rest of what they are doing. It could lead to confusion if that were the case. I mean the NHS-funded part of care. However, I am very happy that we should discuss this concern further. I hope that on that basis the noble Baroness will be willing to withdraw her amendment.
Baroness Finlay of Llandaff
I am grateful to the Minister for that reply. On the basis of that and of further discussions, I beg leave to withdraw the amendment.
Lord Clement-Jones
My Lords, the amendment has been tabled with the support and assistance of the Royal Pharmaceutical Society and has been designed as a new clause that amends the Medicines Act 1968. It is also designed to increase patient safety by removing barriers to a learning culture across the prescription dispensing process, and to remove the injustice that pharmacists alone, among healthcare professionals, face through criminalisation. Single dispensing errors should be treated in a proportionate way that retains the ability to prosecute those who have been negligent or who have committed a deliberate act but that does not penalise pharmacists who wish to declare a dispensing error in the interests of patient safety.
The role of pharmacy continues to be vital to communities throughout England. Pharmacists are at the forefront of providing advice to patients in an increasingly high-pressure environment. In 2010 nearly 927 million prescription items were dispensed in England. This is a 4.6 per cent rise on 2009 and a 67.9 per cent rise on 2000. Despite this, the error rate of dispensing remains minuscule.
What is the background to the current state of the law? Sections 58, 64 and 85 were inserted into the Medicines Act 1968 to regulate the quality of medicinal products being manufactured in pharmacies across the country. There were concerns that the production of these items, primarily creams and solutions that could be prepared to suit to individual needs of patients, required a legal standard of purity. Nowadays, the practice of creating preparations in community pharmacies is practically non-existent. However, these sections of the Medicines Act have been used in a way that they were not originally intended for: to prosecute a pharmacist who makes a single error while dispensing a medicinal product. The law as it stands makes a single error an automatic criminal offence that is punishable by up to two years in prison.
Why should we support this amendment? Currently, pharmacists are expected to declare dispensing errors in the knowledge that they will face prosecution if they do not do so. Clearly, any person who is either wilfully negligent or deliberately acts in a way to harm a person must face prosecution under criminal laws. This amendment would allow that to continue but would also enable a proportionate response for those who make an error. Minor errors should be learnt of and dealt with through improved practice rather than through discouraging healthcare professionals from feeling able to report errors. Decriminalising dispensing errors will be beneficial to patients and the pharmacy profession through the creation of a culture of learning.
The current system goes against the spirit of openness in which pharmacists and other healthcare professionals should be allowed to work, so as to enhance patient safety. This amendment, or something similar, is the right way in which to tackle this important issue. The passage of the current Bill presents an opportunity to tackle this, and one that should not be missed. I beg to move.
Baroness Finlay of Llandaff
My Lords, I support the amendment. It raises a very important issue, namely what happens when an error occurs. At the moment, there is an enormous disincentive for the pharmacist to do what one would say is the right thing, which is immediately to contact the patient, or their family, carer or nursing home, to try to put an immediate stop to the further use of that medication and to do all they can to correct the error. In the law as it is written at the moment there is an in-built incentive to a pharmacist to attempt a cover-up, to weigh up whether the error is a major or minor one or one which they might just get away with, or perhaps even to make a phone call that fudges the issue and tries to cover up the fact that they have made a dispensing error, and to reclaim the medication in another way.
In addition to the importance of a spirit of openness, there is an actual safety issue here. We know from looking at medicine and nursing that when you make it easier for people to admit immediately that they have made an error and to do all they can to correct that error, they are much more likely to handle things in an open and honest way and to learn from it. Certainly I say to all my junior staff, “I know that you will make mistakes. The only thing that I will hold against you for the whole of your career is if you do not immediately notify whoever is the consultant covering you at the time. Mistakes will happen, but you must let people know immediately and take every step to correct them”. I do not see why we should be treating pharmacists in law in a way that works against that type of principle and which is inappropriately punitive.
Baroness Pitkeathley
My Lords, I, too, support this amendment. I remind the Committee of my role as chair of the Council for Healthcare Regulatory Excellence, which has an oversight role with the General Pharmaceutical Council. We believe that single dispensing errors should be treated in a proportionate way that still prosecutes those who have been negligent or have committed a deliberate act but does not penalise pharmacists who want to declare a dispensing error in the interests of patient safety—and I very much agree with the noble Baroness, Lady Finlay, that this is about patient safety.
In the interests of patient safety and public protection, we of course expect the regulator to be able to co-operate with other agencies if it is aware of a pattern of repeated single-dispensing errors that might reflect wilful and deliberate acts with the intention of harming patients. In those circumstances, there would of course still be recourse to criminal prosecution. With these exceptions, I very much support this amendment.
Health and Social Care Bill
Baroness Finlay of Llandaff Excerpts(12 years, 11 months ago)
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Baroness Finlay of Llandaff
My Lords, I have amendments in this group to which I shall speak briefly. The noble Baroness, Lady Williams, introduced her amendments clearly and concisely. Some figures from the latest Health Service Journal underpin the reason why these amendments are so important. It has reported that foundation trusts are planning to cut at least 30,500 staff over the coming two years and that at least five acute foundation trusts have forecast a wage-bill cut of 10 per cent or more over the coming two years. According to the Health Service Journal’s analysis, patients in the poorest areas are 63 per cent more likely to find it difficult to see a GP than are patients in the richest locations, and 53 per cent more likely to attend accident and emergency.
I put those figures into the debate now because they demonstrate the pressure there will be on trusts. Changing to foundation trust status will put additional pressure on them. Amendment 304C in my name is a probing amendment. I tabled it to seek reassurance from the Government that the timetable for repealing NHS trust legislation will not revert to the originally proposed date—1 April 2014. I hope that the deadline will be extended to April 2020. I was going to say more but I await the Minister’s reply.
Lord Mawhinney
My Lords, I should like briefly to comment on the amendments proposed by my noble friend Lady Williams of Crosby. In one respect, I was sorry that she spoke so briefly because I should have liked to have heard more of her reasoning for Amendment 296. I am not at all clear about what the advantage is to either the Commissioning Board or the hospital if one serves on the board of the other. Is it because that is the only conduit of information? Frankly, I do not think that anyone believes that. If that is actually the argument then the whole NHS is in a much greater state of peril than any of us thought was the case until now. I honestly do not see the importance of or justification for the amendment. It may be a probing amendment, but it would have been helpful if the noble Baroness had given us a bit more of the thinking behind it. As of this moment, pending her winding up, I am not at all convinced that the amendment is either important or necessary.
However, I turn to the noble Baroness’s Amendments 300 to 303, which are also in the name of our noble friend Lord Marks of Henley-on-Thames, who I am sorry to hear is unwell. I very much support what she said about those amendments, even though—to use the word of the noble Baroness, Lady Finlay—she explained them concisely. They take us back to one of the main issues of this legislation: where is the Secretary of State in this brave new world? The Minister knows that a number of us think that the Government are thus far underplaying the role of the Secretary of State.
As my noble friend Lady Williams of Crosby was speaking, I thought of the condition of a number of foundation hospitals that have been the product of a PFI system. That was triggered in my mind by her comment that if there was a coming together of hospitals, or if some element of service was not provided, it may be of a sufficient scale for the Secretary of State to want to take a significant interest. The truth, to the best of my probing, is that a number of hospitals out there—the products of PFI—are in very difficult and probably, without help, unsustainable positions.
I know that the Minister understands that and that it is a matter of concern to the department, so I do not make any comment prejudging the outcome, but my noble friend brought the Secretary of State into this precisely because there could be serious, significant or catastrophic effects on the provision of healthcare in the hospital sector which, by definition, would include the importance of ministerial—that is, Secretary of State—involvement and consideration.
I welcome Amendments 300 to 303, but I say to my noble friend Lady Williams of Crosby and the Minister that I think they are part of the bigger picture of where the Secretary of State will be when the Bill finally reaches the statute book. The Minister has kindly and, I think, genuinely agreed to reconsider all those issues and bring them back for our consideration at Report. Subject to him saying the same about the issues raised by our noble friend Lady Williams, I hope that she in turn, hearing his response, will not feel it necessary to push the amendments to a vote today, although that might become an issue, depending on where we are at, on Report.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, this has been an extremely valuable short debate on Part 4. I hope it will be helpful if I explain briefly why I feel that the provisions of this part of the Bill are so important.
They are very much part of our overall vision of modernisation and improvement to meet the needs of changing circumstances: changes in demands, in resources and in innovation. They are about ensuring that foundation trusts are accountable, transparent and autonomous in the way they operate so that they can innovate and provide high-quality and responsive patient care.
Part 4 of the Bill will reform the legal basis of foundation trusts to bring them in line with the new system of sector regulation. Protecting patients’ interests will be at the heart of the system and we will strengthen the governance of foundation trusts to ensure that this happens. We are also taking steps to ensure that all trusts become foundation trusts as soon as they are able. This will mean that all patients can benefit from services provided by organisations that put them first and provide high-quality, accessible care. It will also mean that all NHS providers would be able to take their own decisions on organisational change, such as mergers, acquisitions and separations, based on what is best for patients.
To ensure the best use of taxpayers’ money and the continued delivery of high- quality services, we will make the financing system more transparent and rules-based. Foundation trusts will be required by Monitor to report separately within their accounts their NHS and private-funded income and expenditure, increasing transparency about whether private patient activities are making a profit or a loss. We intend that foundation trusts should decide matters such as which partners they will invite to appoint their governors and how best to equip their governors with the skills they need for their role. Foundation trusts should develop their own good practice to ensure that their governors have the training they need and build up close working relationships with the board of directors so that governors have the information they need to hold the directors to account on behalf of the members whom they represent: the public, staff and patients.
I understand the intention of my noble friend Lady Williams in proposing that the NHS Commissioning Board should appoint a governor to each foundation trust, but I agree with my noble friend Lord Mawhinney because I believe that the right kind of close partnership working between foundation trusts and their commissioners can be achieved in a whole lot of ways and that trusts should be able to develop this relationship in the way that best works for them. To mandate an arrangement such as the one that my noble friend proposes would not be the right way to do it. I also quite agree that it is important for the provision of integrated services that foundation trusts should work closely with their partners in local authorities and other healthcare sectors. However, again, foundation trusts should be free to set up the most effective ways of doing this, including executive and professional collaboration. Similarly, we would not want to prescribe governor attendance at all parts of the directors’ board meetings. It is for foundation trusts themselves to decide how to deal most effectively with discussions and decisions on sensitive and confidential matters so that the trust’s interests are best served.
I also feel strongly that it would not be appropriate for the Secretary of State to become involved in the approval of mergers and separations of foundation trusts. Foundation trusts are themselves best placed to decide what will work well for their patients and staff, and to involve the Secretary of State would be to add an extra layer of bureaucracy for no good purpose, in our view.
The amendments tabled by the noble Baroness, Lady Thornton, seek to preserve the current position where foundation trusts can be subject to terms of authorisation applied by Monitor and, if they fail to meet their principal purpose, they can be de-authorised and returned to central control. The obvious point to make about this idea is that it would be incompatible with our proposal to repeal NHS trust legislation once the foundation trust programme has been delivered. The more deep-seated objection is that these amendments would depend on an infrastructure which we propose to replace with a comprehensive new regulatory system. There would be no obvious body to manage the performance of reverted NHS trusts, including measures for dealing with providers at risk of becoming unsustainable. We have looked at this from a different angle. Our proposed system would shift the emphasis from maintaining the existence of an unsustainable provider, often at great cost to the taxpayer, to ensuring continuity of essential services to local populations. That is surely what matters. It is surely right for the system to be geared towards continuity of service provision.
A further amendment by the noble Baroness, Lady Finlay, proposes that abolition of NHS trust legislation and repeal of Monitor’s authorisation powers should not happen before 2020. We are taking a stronger, more testing and more transparent approach than before to managing the foundation trust pipeline, and we expect the vast majority of NHS trusts to become foundation trusts by 2014. This would give patients a clinically and financially sustainable NHS provider system, by definition, because otherwise the trust would not have been authorised as a foundation trust. I am afraid that the noble Baroness’s amendment would not support the change in momentum and mindset that is now evident within the NHS. I very much agreed with the cogent points raised on that topic by the noble Baroness, Lady Murphy.
The noble Baroness, Lady Finlay, quoted the HSJ saying that some foundation trusts plan to make major reductions in staffing. I have not read my HSJ this week yet but I think that foundation trusts themselves are best placed to make decisions about how to provide services efficiently and effectively, which includes ensuring that they have the right levels of staff. What matters are those services. It is always regrettable if front-line staff posts are reduced, but if the service can be maintained in as good a way or better, that is surely what should matter in the end.
Baroness Finlay of Llandaff
I apologise to the House, having regained my voice. The point I wanted to make was that there is a tension sometimes between changes of administration and management and the pressure to try to maintain the quality of patient service. We have already seen a situation where it went too fast and in the wrong direction without sufficient regard to quality. The Minister has often given us reassurances that quality of patient care lies at the heart of what the Government are trying to do. I just want to have reassurance that there would not be undue pressure. While there is always a need, if you are bringing about change, to have some pressure because organisations have an inherent resistance to change, rather than unduly pressurising an organisation that was not in a fit state to cope with that change, going a little more slowly might allow it to cope better.
Earl Howe
I understand that point. That is why we have built additional flexibility into the system. Although we have target dates for each of the NHS trusts that we plan to move to foundation trust status, we understand that nothing can be fixed in stone. There is some latitude here but at the same time it is important to have target dates; otherwise the momentum that the noble Baroness, Lady Murphy, referred to will be lost and that would be very regrettable.
That brings me to the point made by the noble Lord, Lord Warner, that there appears to be a rush to mergers. We agree with the Public Accounts Committee and the noble Lord himself that mergers are only one way of creating more sustainable providers and services. Mergers must be assessed robustly to ensure that they really will deliver the promised benefits. The Co-operation and Competition Panel does that but at present it can only make recommendations. The NHS Trust Development Authority, which we propose to establish, will play an important complementary role in avoiding what one might call silly mergers. The key has to be local ownership and accountability, not oversight by the department. I was interested to see the amendment tabled by the noble Lord, Lord Warner, about the gathering of management accounting data. I am personally a strong advocate for effective financial and management controls. I am sure we all want to see the NHS become more efficient. The problem with the amendment as drafted is that the system it proposes looks a bit clunky and bureaucratic. It goes against the grain to impose an extra layer of accounting and reporting requirements from the centre and it would clearly cut across the responsibilities of the foundation trusts’ governors and directors.
It is right for me to emphasise by way of concluding remarks that these reforms have been developed in discussion with, and informed by, the Foundation Trust Network, the Foundation Trust Governors’ Association, Monitor and individual foundation trusts. They are built on the experience of what foundation trusts know will work. I hope that in itself is a reassuring statement. I have not addressed the point by the noble Baroness, Lady Thornton, about the PAC report, which I am happy to do once she has intervened.
Baroness Williams of Crosby
I have listened closely to the noble Baroness. I should perhaps add that within these Benches we discussed, and at one stage talked to Monitor about, the possibility of an individual cap for hospitals outside London. I completely take the noble Baroness’s point that in places such as Newcastle the figure for private patients is less than 2 per cent—even though the hospital there is renowned. One can think of many similar examples. We would therefore be perfectly open to reaching an agreement under which Monitor was responsible for there being lower caps in different parts of the country. The proposal that the number of patients from the NHS should be greater than the number from the private sector is an overall statement of principle that virtually every hospital can easily meet. We hope that it might, among other things, disincline our friends from the competition area from deciding that foundation trusts were undertakings and not private agencies.
Baroness Finlay of Llandaff
My Lords, this has been an interesting short debate because the whole business of the cap has imposed wide variations on trusts. Where trusts cannot have any private activity, there has been an unintended consequence if some staff, particularly consultants, undertake private work. They have carried out that work offsite and not been available if there has been an emergency onsite, and travel times also have worked against patient care.
I can therefore completely understand why these amendments are before us and why the Government wish to act as has been outlined. Perhaps in his closing remarks the Minister can provide us with an assurance that any guidance—it is not necessary to include this in the Bill—will ensure that trusts do not inadvertently double-pay staff. The point of splitting private and NHS treatment was precisely to ensure that staff do not carry out private work in their NHS time and receive double pay, and that the accounts are clear. There are advantages to staff doing private work on NHS premises and to a flexible interpretation whereby, when there is a medical emergency, staff can run down the corridor. Private patients completely understand when someone has to be called away because there is a life-threatening emergency. They are happy to wait until the staff return. That system operates at the hospital in which I work. Although I do not do any private work, some of the oncologists have clinics in the evenings.
There is a need for clarity and I hope that some reassurance will be given that in removing the cap there will be good husbandry of public money.
Baroness Noakes
More than 20 years ago, I was director of finance of the NHS, on secondment from my firm, as some of my noble friends will recall. One of my areas of responsibility was something we called the income-generation initiative. It was sponsored wholly by the Department of Health which was to encourage NHS hospitals to maximise their assets and to generate income for the purposes of the NHS. The origins of the private patient income lie with the Department of Health wanting to ensure that the NHS maximised the returns from its assets and took opportunities to generate income solely for the NHS. Those of us who were involved in developing that initiative would regard all these discussions as a mark of success of the initiative, as it has generated so much income that other questions are now asked.
I never supported any kind of cap, because the circumstances of individual foundation trusts vary so significantly that any cap would never be effective. The way in which income can be structured to flow into a trust can markedly change the impact of the cap. By structuring your relationships with partnership organisations, for example, you can massively change whether a cap bites or does not.
I support the amendments in the name of my noble friend, because perhaps it now needs stating that you should concentrate largely on the NHS—although, as I said, those of us who started this find it a rather surprising conclusion—and I support transparency. If I ever had one concern about the income-generation initiative, it was that costing was never particularly well understood in the NHS, and, therefore, neither was the net result from the activity nor how that activity was used. It is important to have transparency. I hope that other noble Lords will not encourage the Government to keep any limits which constrain the NHS from maximising its assets for the purposes of the NHS.
Baroness Masham of Ilton
My Lords, I support these very important amendments. One only has to remember the tragedy of Baby P and all those vulnerable children who sometimes fall between the police, the social services and the health departments.
Baroness Finlay of Llandaff
I put my name to these amendments, which are incredibly important. I hope that the Government’s response will be that they are listening and prepared to change this. It is worth noting that the Government’s response to Professor Sir Ian Kennedy’s report said:
“In the past, the NHS was not always set up to put the needs of patients and the public first. Too often patients were expected to fit around services rather than services around patients. Nowhere was this more the case than for children, young people and their families … If we are to meet the needs of children, young people, families and carers, it is vital that we listen to them in designing services, gather information on their experiences and priorities, provide them with the accessible information that they need to make choices about their care, and involve them in decision making”.
That is the Government’s own response to the report.
I also draw attention to the report from the ombudsman in Wales. I know we are going to debate ombudsmen later but I will make this one point. The ombudsman upheld a complaint that Health Inspection Wales,
“failed to seek the child’s perspective on her care”.
The Royal College of Paediatrics and Child Health is very concerned that “no decision about me without me” must extend to children and should involve both children and young people. Without that we will have poorer service planning and, as a result of that, poorer health outcomes. A voice for children and young people needs to be incorporated in the decision-making process of the NHS Commissioning Board, health and well-being boards and clinical commissioning groups, and a safe conduit for this involvement may be HealthWatch and local healthwatch.
I want to briefly draw the House’s attention to the fact that we have many young carers so it is not only children as patients that we need to consider. In the 2001 census it was found that there were 175,000 young carers and no one is disputing that those numbers have gone up significantly since then. A third of those are caring for somebody with mental health problems and the average age of young carers is 12 years old. Reading their comments, society clearly does not understand the pressures that they are under. There is evidence that when they get to school late, the school does not understand. When they try to accompany their parent to out-patient or even in-patient appointments, they are not listened to even though they have been providing all the care. The facilities where their relative is looked after are not appropriate for them to stay overnight. I remind the Committee that when a young parent is dying, the children will want to stay at the bedside. They may want to sleep in the same room. They do not want to be taken away. They may want to have a break; they may want to go out; they may want to watch a video. If we are really going to invest in quality of care and health outcomes for the next generation, and meet the Marmot review’s requirement for health inequalities not to be widened but narrowed, we must address the needs of this group in our population who provide a lot of care, who are incredibly important and who will be the citizens of the future, but to whom the system does not currently give a voice. To expect adults to be a voice for them is completely unrealistic, because, when they are a young carer, there is no other adult there apart from the person whom they are caring for.
I hope that these amendments will not be dismissed with a whole lot of reasons as to why they cannot be put into practice. If we are really committed to changing healthcare services for the population, we should listen to the voice of children and young people.
Baroness Thornton
My noble friend Lady Massey is, as usual, correct about these matters. I am always happy to take my lead from her. All my experience of working with NCH and lots of children’s organisations over the years, and, more recently, of talking to YoungMinds, leads me to think that this is a matter that the Government need to take into consideration.
Baroness Finlay of Llandaff
If we come back later with an amendment which specifies people of all ages—I accept what she said about the elderly also not having an adequate voice at times to meet their needs—will the noble Baroness consider it? This is one occasion when the legislation can give a lead and set a moral code. I also seek an assurance that there will be specific mention of children in the official guidance that goes with the Bill so that they are incorporated at every stage and do not remain left out, as they have been until now.
Baroness Northover
I hear what the noble Baroness says. It is interesting that she said “people of all ages”. The purpose of healthwatch and the NHS is to help and try to assist people of all ages, whether they are patients, their families and so on. We need to make it more person-centred—we all agree that that is what we are seeking to do—and I hear what she says in regard to the regulations.
Health and Social Care Bill
Baroness Finlay of Llandaff Excerpts(12 years, 11 months ago)
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Baroness Finlay of Llandaff
My Lords, I have amendments in this group and in light of the previous debate I do not want to repeat anything, except that the Minister stressed the importance of driving up quality and these amendments relate to what should be incorporated in a licence that Monitor gives a provider. Amendment 282ZB is replaced by Amendment 282ZC, which is about being a good employer. If you are going to drive up quality you have to make sure that your staff have education and training and understand research. However, it goes right the way through from every provider at every level, right up to specialist training. It is important that the education and training needs of those who are in the higher professional training bands are also accounted for. Monitor will have to work closely with Health Education England to provide an oversight of the numbers of education and training places available.
The background to this amendment is very compatible with Amendment 278BA tabled in the name of the noble Lord, Lord Ribeiro, who is not in his place but has already spoken to it. The amendment should not have any great implications on the levy and I note that the Government are already committed to undertaking extensive work to establish an appropriate NHS training levy. I suggest, however, that supervision and training of all staff at all levels is essential and I hope the Minister can confirm that licensing will go further than simply, as it states on the face of the Bill at the moment, having regard to education and training.
In Clause 93, Monitor is required to publish draft standards conditions for the licence requirement and Amendment 285ZA, in my name and that of my noble friend Lady Hollins, requires somebody to state what primary medical services are to do. If Monitor is not to do it, I respectfully ask the Minister who is. What is to be their availability? How will they work with pre- and post-hospital care? A reappraisal and revalidation will look at clinical standards but there are real difficulties if more goes out into the community. Who is going to see patients with complex conditions at home, how are the deficits in out-of-hours care to be driven up and who is responsible for what? It also requires a duty of collaboration, because if you do less in the hospital sector you need to increase your collaboration, not decrease it.
We have already debated the importance of staff being involved at local and national level to work for the benefit of the wider NHS. As background to this amendment, may I give a short example of why integration between primary and secondary care and social care is absolutely essential? Take a child who the nursery, perhaps, reports is behaving oddly. The general practitioner refers the child to paediatrics, they consult their developmental colleagues—speech and language therapists and psychologists—and an overall conclusion is that this child is neglected but also has some pathology, such as glue ear and delayed speech. The child comes from a home in which there are no books and no one is talking to him or her. For the GP and all other services to link there must be integrating care; that is why it is stressed in the context of this amendment.
The last amendment in this group in my name is Amendment 287AA, which relates to indemnity. Currently foundation trusts carry vicarious liability for clinical care provided by their staff and therefore need to cover claims arising from this work. The trust can seek a source of indemnity from providers other than the NHS Litigation Authority but does not have to and does not have to publish whether or not it does.
The Medical Defence Union has already questioned the indemnity of any qualified provider with the Department of Health and had a response outlining that the NHS standard contract requires providers to have indemnity with a specific requirement set by local commissioners. The levels would vary according to the circumstances of different providers. But that response misses the point. I am not suggesting that the Bill should set the level of indemnity, but we should ensure that all providers of care to NHS patients have indemnity in place so that patients do not go uncompensated. The indemnity should be adequate and appropriate and this cannot be done under separate rules or regulations. The concern is that if a contractor goes out of business for whatever reason and does not have appropriate ongoing indemnity, there will be no course of redress for patients who have been harmed by that individual contractor.
There is a real prospect that patients who are severely or negligently damaged by an individual who does not carry adequate indemnity would then be completely unable to gain compensation because the way that the Bill is written does not require there to be adequate indemnity for the service provided. The long-term nature of clinical indemnity claims means that the level of indemnity must be adequate to provide compensation, sometimes many years into the future when a claim is settled or because sometimes the harm done does not emerge for some years. An indemnity, therefore, has to be in place when a provider is no longer in existence.
I will not elaborate any further on this because it is a discussion I would be interested in having with the Minister outside the Chamber and I am aware that we are time-restricted for this group of amendments, but I hope that the Minister will be able to consider the importance of indemnity for those providers that contracts are placed with and even for those they may sub-contract to.
Health and Social Care Bill
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The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, licence conditions will be the mechanism through which Monitor will be able to prevent potentially anti-competitive behaviour and enable service integration, where this is what commissioners want. Monitor would also use licence conditions to collect the information it would need to set prices, and to help identify at an early stage—at an early stage—if a provider was at risk of financial distress. If that was the case, it could work with the provider to address potential problems, as well as supporting commissioners to ensure continuity of services. I completely understand the concerns in that area.
First, I think that I need to make clear that all providers of NHS healthcare services will be subject to the requirement to hold a licence. This includes providers of primary medical services, which is the question posed in Amendment 279A. Furthermore, where a provider is providing services that carry a requirement to be registered with the Care Quality Commission, that registration will be a prerequisite to being granted a licence by Monitor. We all want to see close operational links between Monitor and the CQC. The Bill emphasises this by placing duties of co-operation on both organisations, not just in matters such as information sharing, but also in the development of the joint application mechanism for providers seeking registration from both bodies.
We are also clear that regulation must be proportionate, and impose the minimum of additional burdens on those being regulated, while still safeguarding the interests of patients and the public. To that end, the Bill makes provision for the Secretary of State to make regulations establishing an exemptions regime, so that licensing can be targeted towards those parts of the health service where there is the greatest need for regulation. While we are clear that there must be an exemptions regime, we also recognise the importance of making sure that we get the scope of it right. To that end, we are already committed to consulting fully next year on our proposals for the exemptions regulations. Noble Lords may also be aware that the Delegated Powers and Regulatory Reform Committee of your Lordships’ House has recommended that the first set of exemption regulations should be subject to the affirmative resolution procedure. We agree, and both Houses will have the opportunity to debate them before they come into force.
The Bill provides for Monitor to attach conditions to licences. While the Bill sets a framework for the scope of those conditions in Clauses 95 to 97, we are clear that it will be for Monitor itself to develop the detail as the sector regulator. The intention is that the conditions will support Monitor in exercising its functions and that Monitor will be best placed to know how they should be framed to achieve that. Therefore, including large numbers of mandatory conditions on the face of the Bill, as some noble Lords have suggested in certain amendments—for example, Amendments 283, 285ZA and 287A—would undermine the Monitor’s independence, which we do not think is desirable if it is to be a robust and vigorous sector regulator.
Nevertheless, I would like to reassure the Committee that there will be proper oversight of Monitor’s proposals for conditions. My right honourable friend the Secretary of State will have the power to veto the first set of licence conditions. We are clear that Monitor must be able to operate freely and autonomously within the legislative framework established by the Bill. We have built in reasonable checks and balances through requirements for key products, such as the licensing criteria and conditions, to be subject to approval by the Secretary of State. Although I understand entirely the reasoning behind amendments tabled by noble Lords which would increase the level of the Secretary of State’s involvement in provider regulation—for example, Amendments 281A, 282A and 282B—regrettably, I feel that these go a step too far in limiting Monitor’s independence.
The noble Baroness, Lady Thornton, asked me quite a number of questions to which I feel I should write in response. In particular, however, she asked whether Monitor will have the role of resolving disputes and whether all disputes would go to court. The answer to both of those questions is no. The NHS standard contract already provides for contractual disputes to be resolved through arbitration and this will not change. Licence holders have to agree special conditions or modifications to conditions. If the provider disagrees and Monitor then wants to proceed, it must refer the matter to the Competition Commission for consideration.
My noble friend Lord Clement-Jones spoke to Amendment 281A. I want just to comment briefly on that. The amendment would increase the minimum length of notice period during which representations could be made following publication of a notice of proposed exemptions. I am grateful to my noble friend for that. The Bill is clear that the notice period should be not less than 28 days. It could therefore be much more than that, and our expectation in most cases is that it will be. But there will be times when the Secretary of State needs to act quickly, so being locked into a notice period of not less than 90 days could be detrimental to a particular provider or group of providers.
My noble friend Lady Williams spoke to two amendments, Amendments 287EA and 287EB, where the purpose is to ensure that licence conditions on providers of NHS services restrict the income they can earn from private patients and the number of private patients they treat, as well as that funds provided for NHS care are not used to subsidise private treatment offered by foundation trusts, with various conditions attached. I understand my noble friend’s concern about this. However, the amendments would be impractical, and in particular for licence holders who are not NHS bodies they would be highly undesirable. Foundation trusts’ principal purpose—we will come to this in a later group of amendments, when we discuss the private patient income cap—is to provide goods and services for the NHS in England. It means that they must earn most of their income, over 50 per cent, from NHS services. We are tabling a government amendment to make it clear that the majority of every foundation trust’s income will continue to be from NHS service provision. Foundation trusts must comply with their principal purpose or they will be breaking the law. They could be at risk of successful legal challenge if they fail to meet their principal purpose. We are tabling a second government amendment to require foundation trusts to show in their annual reports how income earned from private activities has impacted on the provision of NHS services. Using NHS income to subsidise private patient work would lead to foundation trusts breaching the NHS constitution. The Government also gave a commitment that foundation trusts will have to produce separate accounts for their NHS and private-funded work.
Finally, I want to mention briefly the amendments that will fall to me to move in relation to licensing: Amendments 280A, 281B, 284A to 284C, 285A, 286B, 287C and 287D, and 288A to 288F. These are without exception minor tidying-up amendments to improve the drafting or clarify meaning, and I hope that the Committee will accept them when they are moved. I hope, too, that the Committee feels reassured by my explanation of how we envisage licensing to operate and that the noble Baroness will be able to withdraw her amendment.
Baroness Finlay of Llandaff
My Lords, can the Minister provide clarification on the questions I asked? First, who is going to define what is expected of primary care services in terms of how they are integrated? If that does not form part of their licensing, who will define the minimum standard across the country? Secondly, in Amendment 282ZC I set out that:
“A criterion for a person or organisation to be granted a licence must be that that person or organisation demonstrates a commitment to education, training and research”.
I would be grateful if the Minister could explain the situation when someone may well be good enough to provide clinical services but shows absolutely no commitment to any aspect of education and training, even for the development of their own staff, or to any of the research developments that might be happening in their field. I would include in this physiotherapy and occupational therapy assistance, such as people putting appliances into homes and those providing supportive care-assistance services in health, but not the secondary and tertiary-care specialised services which are covered very adequately by all the criteria from the royal colleges. It is about the minimum standard.
My third question relates to indemnity: do the Government feel that it is acceptable for a provider to be licensed without having to demonstrate that it has adequate indemnity?
Baroness Murphy
My Lords, I wanted to come in on this matter of anti-competitive practices and the role of Monitor in it. I apologise to the Committee if some of these matters have already been covered, but I was unable to be here this morning. However, this seems like an opportunity to speak, as we are discussing Monitor’s role in anti-competitive practice.
I am concerned that we have not yet talked about the quite serious anti-competitive practice that exists in the NHS today, and how damaging it is. As we know, the independent co-operation and competition panel has highlighted a range of tactics that are very common at the moment in the NHS and which go seriously against patients’ interests. We have not sufficiently considered these when we are looking at competition. We tend to think of competition in relation to the independent sector versus the NHS in approaching the provision of services, but in fact it is this anti-competitive practice within the NHS which is so damaging. An example of this is the protection of certain local services against providers for elective operations, and so on.
I can think of an example in my own backyard, at Barts and The London—and this is a very real case. For years and years Barts used the mainstream orthopaedic services to provide local podiatry services, at a very high cost and very anti-competitively against the local community services, which had very skilled podiatrists who were able to do foot operations very cheaply and simply with a much smaller waiting list. Those sorts of anti-competitive practices are rife throughout the NHS, and are against patients’ best interests. It is utterly crucial that this role to reduce as much anti-competitive practice as possible should be watched by Monitor, but we want it to be co-ordinated with its role on integration—there is absolutely no reason why the two things cannot go side by side.
I am sure that we will come on to mergers and acquisitions, but the recent protection of patients and the public—for example, against the merger of two mental health trusts, Norfolk and Waveney, and Suffolk—seems to me to be extremely good judgment about what is likely to be in patients’ best interests. We should remember these matters of anti-competitive practice that are, as I say, rife in the NHS, and we really need to do quite a lot to stamp them out. I hope that the role of Monitor in working on these practices in patients’ best interests will be strongly supported.
Baroness Finlay of Llandaff
My Lords, the noble Lord, Lord Warner, was most helpful in setting out the criteria with which one would want to look at competition, and emphasising the importance of competition. But there is another area of competition, which is the one that really drives up quality of care: the inherent competitiveness of different clinicians and different clinical services, their desire to have better clinical outcomes than others, and the pressure that they will put on themselves within their own team to achieve better clinical outcomes.
I apologise to the House if I contributed in any way to the confusion over the numbering of the amendments as they have arisen. I would like to address the ones that come after Amendment 266, which will be Amendments 268B and 267C. Amendment 267C was tabled because of the large number of patients with complex clinical conditions.
It is very easy, when we are thinking about tariffs and services, to look almost at discrete nuggets of care, diagnosis and so on. Indeed, Monitor has a requirement in the Bill to seek appropriate advice to effectively discharge its functions in,
“the prevention, diagnosis or treatment of illness, or … the protection or improvement of public health”.
The amendment related to the management of a wide range of complex conditions has been tabled because in complex conditions many situations overlap and cannot be discretely targeted together, nor can they necessarily be unpacked one from another because of their impact on each other. That requires integration of clinical services.
Baroness Northover
The noble Baroness might be aware that Amendment 267C has leapfrogged from the group with Amendment 264 to the group after this. She may wish to address that amendment when we come to that group.
Baroness Finlay of Llandaff
I thank the noble Baroness. I am most grateful. That message had not reached me, although I may be a little deaf. I shall simply confine my remarks to the amendment in this group about Monitor reporting annually to the Secretary of State on how it discharges its duty to promote integration. I do not think that the comments that I made previously are annulled. They are relevant because, unless we have integrated services—however much they may be seen to be in competition with each other over different aspects—and attempt to have a seamless provision of care, at the end of the day it will be the patients who fall through the gaps.
Earlier today, we heard a lot about Monitor being light touch, not having a series of minimum criteria and being able to use its discretion in how it grants licences of all sorts. But I have a concern that there has to be a means by which the way in which Monitor functions is transparent and available to public scrutiny. That is why I have suggested that an annual report to the Secretary of State would allow such scrutiny to occur, particularly as regards promoting integration.
Lord Beecham
My Lords, in the first instance, I shall speak to Amendments 267ZDA and 269 in the names of my noble friend Lady Thornton and myself. Amendment 267ZDA refers to the need for integration. Indeed, there are a series of amendments on integration, with which I will try to deal as a group. Amendment 267ZDA gives an interpretation of integration which would,
“mean that health-related and social care services are provided in such a manner that individuals will experience services … as being independent of organisational barriers”—
which I suppose is the very definition of integration—and which offers patients,
“the most appropriate involvement in their care choices … which reduce … the need for separate assessments; and … which result in a care plan for the individual which covers all aspects of their care”.
Surely that aspiration would be shared by the Committee and widely within both the health and social care professions. It would seem to make sense to incorporate it in the Bill. However, Amendment 269 simply makes clear that it is unnecessary for a provision in the Bill to repeat a definition of anti-competitive behaviour since that already exists in existing legislation, although that is not a hugely important point.
In relation to other amendments in terms of integration, we certainly support Amendment 268B, which would provide the duty for Monitor to report annually as to how it has promoted integration. Amendment 274B seeks a requirement to publish a statement if conflicts between its functions arise which are likely to have a significant impact on integration of services. Amendments 278 and 278B impose requirements on the national Commissioning Board and clinical commissioning groups to extend the right of patients to make choices in respect of the integration of healthcare and to ensure the integration of services where that is in the public interest. Again, the aim is to drive the integration agenda. Then, as an overarching provision, Monitor would have under Amendment 278C the power to investigate whether the Commissioning Board and clinical commissioning groups are complying with those requirements. All of these seem to be perfectly sensible amendments to provide the right structure and one which Monitor could effectively supervise.
Still on the integration agenda, there are later amendments—Amendments 286A, 287 and 287B—which impact on integration. Amendment 286A allows a modification of Monitor’s powers to encourage integration, if that is in the interest of patients, as it usually will be, presumably. The amendments provide for modifications to licence conditions—again in the interest of integrated healthcare—to ensure that standing conditions of licences include requirements relating to or encouraging the integration of healthcare services. All that makes a sensible package to drive an important part of the underlying concept of the Bill and the too-long-deferred integration of services.
The other amendments in this group essentially relate to the issues of collaboration or competition. Here, it is slightly unfortunate that the noble Baroness, Lady Finlay—I am sorry, the noble Baroness, Lady Hollins—did not move Amendment 265ZA, which stresses that Monitor must exercise its functions with a view to promoting collaboration and preventing competitive behaviour. I think that is the other side of the coin that the noble Baroness, Lady Murphy, put on the table previously when she was complaining, perhaps rightly, about anti-competitive practices within the NHS. A more positive way of looking at that agenda is to say that NHS bodies should collaborate on the provision of services, rather than take a negative stance. That is, I suppose, a necessary fallback position, but the prime objective must be to ensure collaboration within and across health service provision and—having regard to what has just been indicated in relation to integration—with social services as well. That is probably the right approach.
Other amendments in this group relating to competition raise some other issues. For example, under Amendment 265C, there is a suggestion that Monitor’s duty to prevent anti-competitive behaviour should be qualified by requiring it to aim to improve the quality of services and outcomes and the efficacy of provision and reduce inequalities. These are listed separately; I take it that all of them—rather than any alternative—are intended to be part of Monitor’s duty. If the Minister were minded to accept the thrust of that argument, he would do so in that sense.
Again, there is the provision under Amendment 266, tabled by my noble friend Lord Warner, for Monitor to conduct and publish a review of anti-competitive barriers and their impacts within a year of Royal Assent. There may well be some sense in that, particularly in regard to the way in which he moved the amendment. There are similar duties on Monitor to look at impact assessments under Amendment 275. Government Amendment 278D, to be moved by the Minister later, refers to non-disclosure of the “business interests” of parties. Does that extend to the interests of, say, trusts or voluntary sector providers? Does “business” relate to their activities or would it be confined to commercial providers? It seems to me that it would be invidious if only one part of the provider sector had the protection of confidentiality; it should be applicable to all or none. There is of course no issue with the amendment that requires individual circumstances not to be subject to disclosure.
I have a question about Amendment 278J, which requires the Competition Commission to review the “occurrence” rather than the “development” of competition in the provision of healthcare services. It is not clear to me what the significance of the word “occurrence” is. This is not a government amendment and I do not know whether those who originally tabled it want to clarify the position. I understand the amendment if it requires the Competition Commission to review the impact of competition in the provision of healthcare services, but I do not know how the occurrence of competition would be reviewed. It does not actually make much sense to use the word in this context.
The thrust of most of these amendments makes sense and sets out a sensible role for Monitor. In what would have been the next group but for the leapfrogging, we will come on to look at the issue of conflicts, and I am sure that there will be some further discussion about that. However, I hope that the Minister will feel able broadly to support the amendments in this group and recognise that they should contribute to meeting the shared objectives that have emerged from today’s debate.
“(c) local authorities carry out their duties in providing social care for children in their area, and to the smooth transfer of their caring responsibility when a child moves into adult social care services.”
Baroness Finlay of Llandaff
My Lords, this group of amendments concerns children, particularly their social care. We have laid these amendments because we could find nothing in the Bill that mentions this. Children’s services will be commissioned potentially by six different groups. The Commissioning Board at national and at sub-national level, particularly through health visitors, will be responsible for the public health of children under five—until 2015 when that will transfer to local authorities—and also for primary care. That is often the first point of contact for problems in children which require a great deal of social care intervention integrated with healthcare provision. Public Health England is responsible for public health campaigns and health protection. The clinical commissioning groups will again be involved potentially at two levels; supra-locally and locally. The sixth area is the local authorities with the healthy child programmes for those aged five to 18, school nurses and child health for the nought to five year-olds after 2015, which is when the health visitors transfer.
However, all these different aspects of healthcare interrelate very closely with children’s social care. There are concerns over accountability, how the services will keep track of complex provision and who will be responsible for children’s health and welfare, particularly as regards obese children and those who have been bereaved. There is concern about children’s reaction to grief and the impact that this has on social behaviours, and how the public health services which deal with the prevention of childhood obesity can be evaluated and held to account.
Health visitors are the eyes and ears of the child aspects of primary care. However, there is concern about how they will relate to the primary care and accident and emergency sectors and social workers when they transfer to local authorities. How will the information on the at-risk register be transferred and how will access to primary care records be speeded up? Will the IT systems be compatible to enable effective information transfer between child and adult services, particularly when children who have multiple social problems reach an age when they will be transferred to adult services? There is particular concern about children with severe learning difficulties and developmental delays who require a great deal of social care input. They cannot be their own advocates and are extremely dependent on others. Therefore, it is important that the relevant information is successfully transferred. We know from previous tragic child abuse cases that information which has to be moved from one sector to another often gets lost, drops through the gaps and children suffer as a result.
There must be a smooth transition from one carer to another, particularly where children’s and adult social services are provided by different providers. It is important that adult social services should be satisfied that the children’s social services have done their job properly and thoroughly because, if they have not, the patient will suffer and adult social services may be faced with an unfair cost incurred as a result of a deficiency in the services provided by the children’s social services.
Our amendments do not propose a radical solution to the problem. We are fairly confident that the Government will not accept them as they will not want further major complications in what is already a very complicated Bill. They are simply designed to provide that at some time in the future Monitor will be given the power to check that all providers of children’s social care are doing their job properly, and that when they transfer a child to adult social care there is a smooth and sensitive transfer of responsibility and a complete transfer of information so that there are no gaps through which these children can fall.
We look forward to hearing what the Government’s solution is to this problem. We rather hope that the Minister might offer us some discussions outside the Committee to try to address some of the real problems that arise when children, including those aged nought to five, transfer from children’s services into adult services, given the gaps in information provision which can occur at the transition point. I beg to move.
Earl Howe
My Lords, I understand and well appreciate the concern of the noble Baroness to ensure a high standard of children’s social care services and, in particular, a smooth transfer for young people moving from children’s to adult social care services. I would, of course, be very happy to speak to her and indeed the noble Lord, Lord Northbourne, about this issue away from the Committee, if they consider that to be an appropriate way forward.
On the specific amendments that we are looking at, I really do not think that Monitor is the right organisation to ensure that local authorities are carrying out their responsibilities on these issues, or to act as a regulator of children’s social care services. I am confident that existing arrangements for the regulation and inspection of children’s social care are sufficient and robust. Joint working is important and I hope that the noble Baroness will be reassured that the relevant inspectorates are already working together to improve the arrangements for joint inspection, which will address the very important issue of child to adult transition that she has raised.
Children’s social care is regulated and inspected by Her Majesty’s Chief Inspector of Education, Children’s Services and Skills—Ofsted. Its inspection remit covers all local authority social services functions relating to children—that means services for children in need, safeguarding children, children in care and care leavers, as well as adoption and adoption support services. Local authority adoption and fostering functions must be inspected by Ofsted at a minimum of every three years. Ofsted can of course make unannounced inspections.
We are already working to improve these arrangements. Ofsted consulted over the summer on local authority child protection inspection arrangements that will be more child-centred and less bureaucratic. This new type of inspection will begin in May next year. In addition, all relevant inspectorates have agreed in principle to Professor Eileen Munro’s ideal model of joint inspection, which looks at the contribution all services make towards protecting children. Noble Lords may recall that Professor Munro last year conducted a thorough review of child protection arrangements for the Government. The Care Quality Commission is one of the inspectorates working with Ofsted to establish what those services will look like and when they will begin.
For children with special educational needs and disabilities, the recent Green Paper proposes a new education, health and care plan, covering support from birth to 25. The new plan will include a much clearer focus on the long-term outcomes for children and young people including independent living and employment. This should improve outcomes for young people with special educational needs and disabilities as they make the transition from school into employment or training.
I hope that the noble Baroness will appreciate that work in this area is ongoing. I sympathise with the tenor of all she said, but if she is content to wait for a discussion following these Committee proceedings, I hope that she will, in the mean time, withdraw the amendment.
Baroness Finlay of Llandaff
I am grateful to the noble Earl for his response. It is those transitional points that we have been particularly concerned about. I will discuss this with the noble Lord, Lord Northbourne, and it would be helpful for us to have a short meeting. We are grateful for the fullness of the response from the Minister. I beg leave to withdraw the amendment.
Baroness Murphy
I realise that I have another amendment in this group, and I would have saved the Committee a great deal of disquiet over the numbers if I had spoken to this one in the first place, so my apologies all round. This group of amendments is about how Monitor discharges its functions and what it takes into account. Mine is a probing amendment on whether we have the objectives for Monitor and their number right. Experience from other sectors suggests that if too many policy priorities are set, the regulator can become confused about its primary objectives, which can reduce its effectiveness. I wonder whether we have the clarity of Monitor’s objectives right.
Monitor will find itself in the position of other regulators in having to devise policies, particularly on the tariff, to meet a wide range of objectives over and above its primary duties. The experience of Ofgem, in particular, suggests that the risk might grow over time as the Government seek solutions for new problems as and when they arise. Setting too many policy priorities carries the risk of confusing the regulator about its primary objectives. That might be inevitable, given the complexity of healthcare policy-making, but it means that the accountability of the regulator in discharging those various functions is critical.
For other major economic regulators, the Government have committed themselves to updating the objectives only once in a Parliament and ensuring that objectives are outcome-focused. Monitor's objectives, unusually, will be set in primary legislation. I wonder whether they would be better in secondary guidance, together with a clear process for agreeing changes with the Department of Health, to protect the regulator from political whim. Nevertheless, it has a number of primary duties in Clause 59. In Clause 62 it has to have regard to a number of other matters. Monitor might find it difficult to demonstrate that they are all taken into account when decisions are made, possibly making it open to legal challenge. I wonder whether it is possible to reduce the number of duties.
I have included just one or two as exemplars simply because I think that they duplicate existing duties. In Clause 62(b),
“the desirability of securing continuous improvement in the quality of health care services for the purpose of the NHS”,
which is crucial, duplicates a primary duty in Clause 59(1)(b), so I think it could be removed. Clause 62(c), on,
“the desirability of securing continuous improvement in the efficiency with which health care services are provided for the purposes of the NHS”,
duplicates a duty under Clause 59(1)(a). Surely that could be removed. These are minor, tidying amendments, but if we can clarify for Monitor what its objectives should be, that would be a help to the regulator.
Baroness Finlay of Llandaff
My Lords, I half spoke previously to the need for Monitor to have regard to complex clinical conditions. I return to that and build on the comments that have just been made, particularly in relation to tariffs.
We are already beginning to see a degree of fragmentation through systems such as “choose and book”. We heard on a previous day in Committee about the problems for patients with various complex conditions, who have to be sent back to their general practitioner to be able to access a different discipline in secondary care and how their care then becomes fragmented. If you are going to provide good integrated care and improve clinical outcomes, you need all the different systems of the patient to be addressed simultaneously—the psychological and welfare areas as well as the different physiological systems that might be affected by a range of pathologies.
I remind the House that it is much easier when people are not terribly ill. When they do become terribly ill, more and more systems fail and become involved: cardiac complications, overwhelming infection, renal failure and potential dialysis might all be involved, and if there has also been trauma with orthopaedics there might be a lot of complex psychological conditions relating to whatever has happened to the person. They all need to come together around that patient. The patient cannot be parcelled off from one service to another or people be brought in sequentially like small aliquots of opinion.
Lord Clement-Jones
My Lords, Monitor has a range of duties which could potentially conflict with each other. Of course, we have discussed that previously, and it is recognised in Clause 63 of the Bill.
In specialised care, it is sometimes desirable to limit the number of providers to ensure that patient volumes are sufficient to support clinical expertise and high quality, safe services, an approach which was promoted by the Bristol inquiry and enshrined in the Carter report on specialised commissioning in 2006. This is entirely consistent with Monitor’s main duty under Clause 59(1), to
“protect and promote the interests of people who use health care services by promoting provision of health care services which is economic, efficient and effective, and maintains or improves the quality of the services”.
However, in terms of one of Monitor’s duties under Clause 59(3), to prevent anti-competitive behaviour, this could potentially be described as a restriction of competition. It is therefore important, I believe, to get a clear understanding that Monitor’s paramount duty should be towards the safety of patients, or, to put this another way, towards their welfare. In other words, it is legitimate for competition to be restricted in the NHS where it is in the interests of patient safety.
This amendment is designed to seek clarification that Monitor’s role in preventing anti-competitive behaviour will not debar the designation of providers of specialised services. I beg to move.
Baroness Finlay of Llandaff
My Lords, I have an amendment in this group which really builds on the amendment already spoken to comprehensively and efficiently by the noble Lord, Lord Clement-Jones—that is, to not impose a burden on providers in the process.
One of the difficulties in any type of regulation or inspection is that it is very easy for those who are doing the inspection to require more and more data from a provider to support whatever they view as their outcome and their inspection processes. There is a real danger in here that sometimes the regulatory processes can develop a life of their own, and, quite inadvertently, become a burden on providers. We have already seen that occur with some of the current inspection processes in place, which seem to have collected an inordinate amount of data sometimes, but have missed out on real deficits in care.
It is a paramount duty towards the safety of people who use healthcare services, and built into that of course will be good clinical outcomes, because bad clinical outcomes will be unsafe in the process. However, it is also a suggestion—and this is therefore a probing amendment—that the regulatory burden on the providers must not be excessive. They must be able to deliver patient care without diverting resources away from it in order to meet requirements from a regulator.
Lord Davies of Stamford
My Lords, I find it not entirely surprising that a number of us this afternoon have found it difficult to know at exactly what point we should be making the contribution that we wanted to make, because of course there is an immense overlap between the themes that all the clauses we have been reviewing today have brought forward.
All those clauses, and most of the amendments to them, necessarily derive from a single decision by the Government. This was the decision that they wanted to distance the Secretary of State from the operations of the health service and superimpose a set of bureaucracies and regulators that would in future take on the responsibility that the Secretary of State has had until now. That was a decision that has had, and will have, a lot of consequences.
Three consequences in particular are very unfortunate. The first is that there will inevitably be a lack of transparency. You may impose on Monitor the obligation to produce the annual report and occasional statements on the decisions it takes, and impose on clinical commissioning boards, foundation trusts and other bodies within the NHS an obligation to try to relate to the local public and have meetings and report to them and so on. However, you will never get the degree of close oversight that you can get in Parliament when the important decisions are taken by the Secretary of State in Parliament, where they are subject to a weekly or, when necessary, daily scrutiny. That does not apply to the functional decisions, which I will come to in a moment. That is the first inevitable cost of this proposal by the Government.
The second consequence is the cost to democracy. People will no longer feel that the health service is being delivered by their democracy, or is part of their democracy. It will increasingly be delivered by relatively remote and autonomous bureaucracies which will no doubt be staffed by the most high-minded people—a sort of platonic mandarinate who will certainly deliver the best they can for the human beings in their care. However, that is a very different concept from the democratically driven concept of the National Health Service on which a lot of us were brought up and which was, of course, the vision of Beveridge and Bevan.
The third consequence, to which I turn in specific detail, relates directly to the clause and amendments before us. Many contradictions and conflicts of interest will be created in the organisations and bureaucracy that take over the Secretary of State’s role. Until now the Secretary of State has been responsible for taking those decisions that are properly political decisions in the true sense of the word. They involve priorities, value judgments, trade-offs and strategic decisions for the future, which have properly been decisions of the Secretary of State up to now. Many of them will now be taken by someone else, particularly Monitor, which will take over from the Secretary of State the job of making sure that the whole system works. I have no doubt that the Government hope that that will work out well, but I repeat that I think that the effort, the initiative, is misconceived.
Two types of conflict will inevitably be structurally hardwired into Monitor. There will be the functional conflicts to which I have already referred. Monitor has specific, specialised responsibility for licensing and overseeing foundation trusts and making sure that problems are ironed out. That is one particular sector on the provider side of the equation. It now has a whole lot of responsibility for everyone else on the provider side and for the supplier side. There are some inherent conflicts.
There are also philosophical conflicts. Monitor is being given very many criteria. Clause 59 sets out what probably most of us would write if we were asked to write the most important targets of the health service on the back of an envelope. However, there is no attempt to establish a hierarchy and there will be conflicts between them the whole time. In the short term at least there could be serious conflicts between increases in efficiency, for example in access and improvement in care, and in all the other virtuous objectives set out in that clause.
The noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Finlay, have brought forward their own solution. They say, “Well, let us take one criteria, make that the overriding criteria and then Monitor won’t have a conflict any more”. That is how I understand the logic of what they propose. Perhaps I may disagree for a moment with the noble Baroness, Lady Finlay. It is not right to say that she builds on the suggestion made by the noble Lord, Lord Clement-Jones, because her proposal comes under different criteria. The noble Lord thinks that the safety of the patient is the most important thing, and the noble Baroness thinks that it is not to place too great a burden on providers. Both are admirable considerations, but by definition they cannot both be the overriding determining consideration where there is otherwise a conflict between desirable objectives. That will occur the whole time. These two amendments highlight the problem created by the way that the Government have decided to approach the future of healthcare in this country.
I turn now to the Government’s answer to the problem that I have set out. It is quite extraordinary. Clause 63(2) states:
“Monitor must act so as to secure that there is not, and could not reasonably be regarded as being, a conflict between”,
its responsibilities, which in this case are foundation trusts, and the rest. How can Monitor possibly act as if there is not conflict if there is a conflict? You cannot just pretend that there is not conflict and think that that means that the conflict has disappeared. That does not work at all. The same thing applies to subsection (3), which states:
“Monitor must ignore the functions it has under sections 109 and 111 when exercising … its functions under Chapter 2 … and Chapter 4”.
What exactly does that mean? It cannot be ignored. Of course, Clause 109 is about when a foundation trust runs into difficulty. When that happens the Government cannot wish away the fact that the foundation trust has a difficulty; they have a responsibility to resolve it. Perhaps they mean that there will be a department looking after the foundation trust’s problems but that it will not be allowed to speak to the departments with the general responsibility that Monitor exercises across the rest of the health service.
If that is what the Government are saying, perhaps they should say it explicitly. But if they are going to set up two separate departments which will not be allowed to talk to each other—there is a kind of negative synergy in an organisation having two functions of that sort—why not have two separate organisations? What is the logic for having Monitor at all if it will have to operate in this extraordinary way? I have intervened because the Government need to tell us clearly, before we agree Clause 63 and accept this Bill into the legislation of this country, exactly how they propose to grapple with the serious problems that their decision has created. I do not think that we will accept in this House that their decisions can simply be wished or thought away.
Lord Clement-Jones
My Lords, I thank my noble friend for that reply, which I have found very helpful. It was robust in one sense and has set out a robust framework in another. Although I was also interested in what the noble Lord, Lord Davies, had to say, in that it would tie us all in knots, I think that the Minister’s exposition was clear in that it has set out a suitable conflict framework. Although I cannot speak for my noble friend Lady Williams, I thought that the Minister explained the necessity for Clause 63(3) very well. His reassurance on the aspect of patients’ interests was extremely helpful as well, although of course it does not mean that the spectre of EU competition law does not still haunt us somewhat and that it will continue to be the subject of discussion, perhaps outside this Chamber. After all, that could override everything else if we are not careful.
I took considerable comfort from the Minister’s undertaking to review Clause 62 as well, because that is quite a shopping list. If it could be clarified, that would be helpful. His general undertaking to the Committee on the conflict area was also very helpful. In the circumstances, I am happy to withdraw my amendment.
Baroness Finlay of Llandaff
My Lords, I want to make a brief comment in response to the Minister’s reply to my amendment in the group, Amendment 274ZAA. He said that he was minded to rationalise the items in Clause 63 and therefore I feel that I must put in a formal plea that research, education and training should not be deleted from the list in the process of rationalisation. Having said that, I shall not press my amendment.
Lord Clement-Jones
My Lords, I will speak to Amendment 292ZA, the question that Clauses 119 and 120 stand part, and Amendment 294M. I shall principally speak to Amendment 292ZA, which is designed to make sure that the national tariff recognises the varying costs associated with people who have experienced homelessness or have complex needs in respect of the full range of healthcare services.
The Bill commits Monitor to publishing a national tariff for services which are or may be provided for the purposes of the NHS. Within this, the Bill makes provision for this tariff to be varied to reflect certain circumstances in which it is provided. However, homeless charities believe that the Bill needs to go further and make provision for tariffs to be varied to reflect the level of complexity and disadvantage experienced by certain patient groups. People who have complex health needs can cost more to treat. Unless the tariff structure reflects this, there is a real danger that services will not wish to treat those patients for whom health outcomes can be harder to achieve—such as homeless people.
Why should this not be reflected in the Bill? There is evidence that health services can already be reluctant to work with homeless people because of the higher costs of treating them. Unless the higher costs of treating some patient groups are taken into account, there is a real danger that the new tariff system may discriminate against homeless people and others with complex needs. In the long term, this will also incur a far higher cost to the NHS and other public services. Failure to treat disadvantaged patients at a primary care level can result in higher rates of hospital admissions, greater demands on acute care and the wider costs of ongoing poor health such as worklessness.
Homeless people have some of the poorest health in our communities. People experiencing acute disadvantage can have complex health needs. As the Department of Health’s Inclusion Health report stated, in order to meet the complex health needs of socially excluded groups, we need,
“a sophisticated, coordinated and flexible response from services. The costs of failure are great not only to the individual life chances of socially excluded clients, but also to the taxpayer, services and the communities who pick up the pieces”.
Unfortunately, many mainstream services do not offer this and as a result are not accessible to disadvantaged patient groups.
Currently, some specialist homeless or vulnerable person’s health services have negotiated their own tariff system so that they are not unduly penalised for treating complex patients. However, this can be difficult to negotiate and such services are not widespread. Unless there is provision for this and the new tariff system takes the wider factors that affect disadvantaged patients into account, services may be disincentivised from treating them. This will lead to poorer health outcomes and make it harder for the NHS to achieve a reduction in health inequalities.
My amendment builds on the commitment to improve the health of the poorest the fastest. The intention to reduce health inequalities through the reform of the NHS has been embedded in the reform process from the first White Paper in 2010. It was revisited by the NHS Future Forum, which flagged up a number of concerns about incentives against cherry-picking at the expense of more complex and expensive patients. In their response, the Government said that services,
“will be covered by a system of prices that accurately reflect clinical complexity”.
My amendment would help to achieve that.
Amendment 292ZB is simply designed to make sure that when Monitor sets prices, and consults on whether to vary prices, it takes into account its duty to promote integration. That is the reason for the reference to Section 13M of the National Health Service Act 2006 and clinical commissioning groups’ duties under Section 14Y of that Act.
On the question that Clauses 119 and 120 stand part, these were referred to in my speech at the beginning of the day—that now seems a long way away. This relates to the reference to the Competition Commission under Clauses 119 and 120. This is also to do with the reference to the method of reaching a price under the national tariff. The Minister dealt earlier with the issue of why an independent body had been chosen for that purpose but it could equally well be the OFT, which I believe would be less provocative and probably more apposite. That was certainly the view of my noble friend Lady Williams when she spoke to her amendment, and I very much hope that the Minister and the department will revisit that issue and see whether it is possible for the OFT to be the body that actually looks at the method of setting tariffs in those circumstances where there is disagreement. That would be a lot less provocative and less liable to introduce EU competition law, along with all the other matters that are involved.
I do not currently have Amendment 294M to hand, sadly, but no doubt I will shortly if I keep talking for slightly longer. It ensures that all providers licensed under chapter 3 and operating in relevant clinical commissioning groups are paid the same price for the provision of services. This is designed entirely to make sure that there is a level playing field within clinical commissioning groups’ areas. I hope that it is the intention in the setting of national tariffs that they will be uniform and there will be no difference in tariff paid by one provider versus another within the same CCG area. With that, I think that I have completed all the amendments that I intended to speak to.
Baroness Finlay of Llandaff
My Lords, I am tempted to say, “Follow that”; I certainly cannot. The reason why my Amendment 294BZA in this group is a probing amendment is that the wording in Clause 117(1)(a) talks about the,
“differences in the costs incurred in providing health care services for the purposes of the NHS to persons of different descriptions”.
It seemed to be extremely elegant and important to have in the Bill a recognition of the wide variation in both physiology and pathology that different people will present with and that that should determine the tariff itself, not simply be part of the consultation.
I hope that the Minister will be able to provide some assurance that findings from the consultation may indeed provide the range. Is it correct that additional support to secure continued access to services could come through commissioners and providers or, if they cannot reach agreement, for providers alone to be able to apply to Monitor for a modification of the price determined in accordance with the national tariff? Is it correct that Monitor would have the ability to approve and/or set the level of the modification under certain circumstances, using a methodology agreed between Monitor and the NHS Commissioning Board, if a provider could not, at the tariff price, cover its cost with an efficient service? One of the difficulties that keep emerging as we discuss tariffs is the complexity of applying them in the enormously wide variety of clinical situations that will be dealt with across the whole of the health services.
Health and Social Care Bill
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Baroness Thornton
My Lords, I start by congratulating noble Lords on making it through this day of debate. We are ending the day with this large group on failure, and the smaller group on pre-failure, tabled by my noble friend, in a moment or so.
In the NHS of 20 years ago, the trusts that got into problems were helped, although the help may have been brutal, with chief executives removed or moved on and nasty phone calls to trust chairs. The system gave powers of intervention from the Secretary of State through local strategic bodies, as they became. Financial help was grudgingly provided, usually for a recovery plan, sometimes delivered and sometimes not. The relationships were not defined by legal contract, and NHS contracts could not be enforced in the courts, so there was a system of arbitration within the NHS.
Those days have gone, and we now have an NHS as a network of many sub-organisations, some with linkages through real contracts. With FTs came the idea of a real contract, although in reality, of course, disputes are still sorted out long before reaching a court. We know that services, and even whole organisations, can fail as the impact of demographic, technological and behavioural changes shape our NHS. In reality, we have to deal with trusts that get into severe difficulties and may be technically insolvent, at which point a real organisation may not be allowed to trade. Then we have to accept that a whole trust might need to be shut down. Indeed, how should that be done? How should the continuity of services be maintained, how should the staff be dealt with, and how should the assets, most of which are owned by the state, be dealt with?
We know that this is the tail end of a bigger and important issue of reconfiguration. So how do we ensure that we can adapt services that show poor quality or that need to be delivered in different ways in different settings? Maybe, as with an increasing array of subspecialities, we have to accept regionalisation. Maybe we need network solutions. Is the market the way to do this? In other markets, innovations lead to changes in demand, and the organisations that cannot adapt close down. Is that what we want for our NHS?
Those who might be so inclined might like to wander through the delicate prose of Simon Burns MP in Committee in the Commons. He loves failure. The idea that you have competition is inextricably linked to having failure. It facilitates the market, brings in the innovators and drives out the inefficient. He believes that failure is a measure of market success, not failure.
It is true that in government we introduced a failure regime as we came to realise that, even after all the support and changes of management team, there may be organisations that are simply not viable. However, it is not so much that they were not viable; it is what that means, that continuing to support them is not giving value for the NHS, however much we adjust that value to include non-financial aspects. Indeed, we also wanted to bring out into the light the murky transactions used within the NHS to support organisations, through means such as brokerage loans. The tendency was for bad performers to be bailed out by the good—the opposite of a reforming system. The way NHS accounts were done also had to be changed to make this kind of smoke-and-mirrors accounting more open.
Issues around failure are more likely to operate at service level than at a whole-organisation level. To take a recent example, a well known and respected financial trust is having issues around its 18-week performance. Its general quality is good but it has signalled that it needs help, and it is indeed getting it from a Department of Health team. The question that we need to ask is: would this kind of support be available in the new world? Presumably, it would not; and even if it were, might that help be deemed anticompetitive? Would that good trust be allowed to fail? The link here to reconfiguration is inescapable.
We know and even admit in our rational moments that reconfiguration on a grand scale is what the Nicholson challenge is really about. The need to move services into community settings and to reduce dependency on the district general hospital model is widely recognised. However, we also know that reconfiguration is beset with political problems. In the run-up to the election, about one-third of constituencies had some kind of campaign to keep open a hospital, a surgery or whatever. One felt sometimes that even if there was no threat, one was invented. We had Andrew Lansley and David Cameron claiming that they would prevent any closures. I think that the Government are learning the hard way that promises made in opposition, especially during election campaigns, may turn out to be millstones when the real burden of decision-making passes to them. The examples of broken promises will continue as reconfigurations gather apace.
This is the issue to which our suspicions should be addressed. Is it part of the rationale to put the blame for nasty politically damaging decisions on others? This abdication of responsibility is characterised by the way that Ministers are trying to give away the key roles of the Secretary of State. This is in part a failure of process but is also a failure of leadership. The leadership should be accountable for delivering answers and necessary changes within a reasonable timescale. If we get reconfiguration right, the failure regime would look less necessary. This is far better for patients than the trauma of seeing their local facilities under constant threat or even being closed down. There are examples of where this has been done, and done well—and we need more of them.
In Committee in the Commons, the Conservatives in particular appeared to believe that these unpopular local changes would be less likely under the Bill—if changes in organisations are branded as failures, then those MPs would be well clear of any responsibility. In fact, we have years of evidence because every reconfiguration has to go through a clinical and management review at an early stage—so we know what works and what does not. We could use that evidence, rely on a robust process and stop opportunist politics. However, we know that the market will not bring about these changes any time soon.
In our NHS, the best interests of patients are served by good information that allows early intervention to improve failing services. CQC inspections are also of value in raising the prospect that poor services will be detected early. If you rely on competition, how long does it take for the public to react to the information that a service is bad and for them to choose to go elsewhere, or for that to impact on the finances to the extent that the service is closed down? In our view, using choice and competition to detect and close poor services takes too long and the cost for patients is indeed too high. That is what this suite of amendments aims to tackle.
The amendment sets licensing criteria to ensure that private providers meet standards around financial stability and probity. We need to supply regular financial information for the good providers. This is, in other words, a sort of Southern Cross test. Amendment 249MBA brings into effect the remaining inactivated arrangements for trust special administration from the 2009 Act, as amendments to the 2006 Act. I remember those well. Amendment 353ZZA is a commencement provision for that. Amendment 295 states that health special administrators must exercise their functions to “protect the interests of patients”. As to the Questions that Clauses 125 to 130 stand part of the Bill, this would create a regime for private companies that provide services to the NHS to have special procedures that augment the normal company provisions under the Insolvency Act. It arguably implies that we need stronger protection from the risk of private provider failure. It should be for the commissioners to factor in the risk of using private providers and contract to ensure that arrangements are in place for contingencies. The licensing regime needs to be tough enough to prevent Southern Cross-type failure through active monitoring.
Risk pooling is what the NHS does. We do not need new risk pools, with the costs that they involve. That is why we think that the clauses should be deleted. Clauses 131 to 143 inclusive allow Monitor to set up the regime to provide special administration for both private and public providers to levy charges on providers and commissioners and to manage the finances of a risk pool.
We argue that none of that is required; it just adds extra complexity and cost. Clause 170 is about FTs and failure. The clause removes the ability to deauthorise a foundation trust. We argue that that power should be retained, along with the recognition that some NHS provider trusts may need to be directly managed under the powers of the Secretary of State.
The new clause in Amendment 303ZA makes clear that the initial effort, in the context of failure, should be remedial action rather than going straight for a failure regime. My noble friend has a similar idea behind his amendment. On Amendment 303ZB, the new clause is intended to reinforce and strengthen how reconfiguration is carried out. Under Amendment 303A to Section 65A of the 2006 Act, bodies to which trusts’ special administration regimes apply should remain, so that the special administration regime applies to FTs and NHS trusts.
Again, we are shortening the Bill and making it simpler and probably taking out quite a lot of cost. I beg to move.
Baroness Finlay of Llandaff
My Lords, I have several amendments in this group. I shall start with Amendment 294N, which is a probing amendment. As far as I have understood it, social enterprise bodies which are NHS bodies in all but name are coming into existence. They have evolved from PCTs under the transforming community services programme. They will be subject to special health administration arrangements. I ask the Government to confirm whether the social enterprises that come under the health special administration arrangements are coming under arrangements based on insolvency law and that, as such, that allows assets to be transferred outside the NHS and the redundancy payments are not guaranteed.
Amendment 295CA is intended to ensure that clinical commissioning groups are consulted before the Secretary of State makes regulations that allow Monitor to impose charges on commissioners. The charge imposed can include a levy to fund Monitor’s functions that have to be invoked in the event of failures. Amendment 295CB is intended to ensure that when setting such a levy, Monitor takes into account the impact of the levy on the financial stability of the organisation, especially a financial trust that is already in distress or failing. Amendment 304A requires that the commissioners are considered when the services of a failed financial trust are considered by Monitor and should be involved in the decision as to which should be continued, and that such services must include some continuation of education and training, because in planning for the future workforce, if a whole lot of posts were suddenly lost, it would destabilise the workforce planning. That is in addition to considerations such as the service provision and issues of equity and access. That becomes particularly important because if you do not have the staff with the appropriate training, you cannot, in the long term, provide the service anyway.
Amendment 304B is intended to ensure that commissioners are involved in the board's role in agreeing arrangements to secure continued access to NHS services will be achieved. Will that include the board’s selecting which commissioner would become lead commissioner for the process during a failure?
Earl Howe
My Lords, this has been an excellent short debate on a large number of amendments, but focusing on a critical issue, which is what should happen to providers when they get into significant difficulty. While the debate has focused on the role of Monitor, it is the Government’s firm view that commissioners should lead the process of ensuring there are services available to meet the needs of local communities.
The Government brought forward amendments in another place to improve our proposals for ensuring continuity of services. These included removing provisions to apply an insolvency-based approach to foundation trusts in the form of health special administration. If a provider of NHS services becomes unsustainable, there has to be a legal framework that provides effective safeguards to protect patients’ and taxpayers’ interests. We have therefore taken an evolutionary approach in developing proposals to ensure sustainable local services. The Bill sets out a clear framework to achieve this.
We will maintain the existing regime for foundation trusts but we will improve it significantly. First, we have removed the need to de-authorise a foundation trust. This is because the Government are committed to all NHS trusts becoming foundation trusts, so that all NHS providers have the freedom to innovate and drive sustainable improvements in quality and efficiency, and are accountable locally. I am aware that the noble Baroness, Lady Thornton, has tabled amendments which relate to the issue of de-authorisation and we will discuss those when we reach the appropriate clause.
Further, the Government will also ensure taxpayers’ interests would be protected by securing solutions that make best use of available NHS resources. We do not want patients to use, or taxpayers to subsidise, poor quality, inefficient services or providers. Instead we will ensure an end to the culture of hidden bailouts. That is why Clauses 131 to 143 set out provisions for a transparent financing mechanism to fund continuity of services during a period of administration. In addition, I reassure noble Lords that the existing regime for NHS trusts, as distinct from foundation trusts, set out in the 2009 Act, would remain in place. Through a separate health special administration regime, legislation for the first time will also extend equivalent protection to patients who use NHS services provided by a company. Provisions set out in Clauses 125 to 130 would achieve this.
I turn to Amendment 282ZA. The Bill gives Monitor broad powers to collect financial information for the purposes of monitoring providers’ financial stability. Monitor will be gathering a range of information, including financial, to enable it to undertake an ongoing assessment of risk. Monitor would also be able to intervene in order to support a provider to recover and to prevent failure where possible.
I understand that some noble Lords are concerned about the range of interventions available when a provider becomes distressed. Providers themselves can take a range of actions, including improving the management capability and expertise that they have. Commissioners are responsible for securing access to local services and they can use contractual levers to respond to poor performance and prevent provider failure. Monitor would intervene on a provider on the basis of a predefined distress test to prevent failure where possible. The CQC would monitor providers’ compliance against patient safety and quality requirements.
This locally led approach is especially appropriate where there is a pressing need for services to be reconfigured to ensure sustainability. I am sure that noble Lords will agree that a reconfiguration is more likely to succeed if it is based on close partnership working between commissioners, providers, local authorities and their local communities.
Earl Howe
My Lords, when I refer to providers of NHS services, I am referring to NHS providers and non-NHS providers. It is to be determined who will contribute to the levy. That is being worked through and I am sure that the noble Baroness will have noticed from the document that we published the other day that this work is ongoing. We will make further announcements about that in due course.
On Amendment 304B, I say that the board should consult the relevant commissioners but it must make the decision itself, which is what the Bill provides for. The noble Baroness, Lady Finlay, asked whether social enterprises will be within the scope of the health special administration regime. Social enterprises are companies so they will be within the scope of health special administration. It is right that they are not treated as NHS bodies as when assets are transferred from PCTs robust rules apply, as I have set out in detail in previous debates. She asked whether the NHS Commissioning Board would nominate a lead commissioner if a provider becomes unsustainable. The answer is yes.
I hope that noble Lords will find that series of explanations helpful and I ask the noble Baroness, Lady Thornton, to withdraw the amendment.
Baroness Finlay of Llandaff
Before we finish this set of amendments, I want to mention a particular group. I am grateful to the noble Baroness, Lady Thornton, for her intervention, as I want to refer to charitable sector providers who are finding fundraising particularly difficult now. They are beginning to be hit by the downturn in the economy and the downturn in giving, and there is a real risk that some of the charitable sector providers will find themselves in difficulty. If a levy is imposed on them as well, in terms of their registration with Monitor, that may tip them over. My request is that, in looking at all this, there will be separate consideration of the charitable sector providers from other providers.
Health and Social Care Bill
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Lord Richard
My Lords, I am very grateful to my noble friend Lord Campbell-Savours for supporting my earlier remarks. Perhaps I may expand on them briefly. This is a very strange situation. It is not one that I have ever come across quite in this way before. There is evidence which is, at least prima facie, relevant. Everyone seems to agree that it is relevant to consideration of the Bill. Indeed, as far as the Information Commissioner is concerned, it is not only relevant but disclosable. That is a fairly strong basis on which to start our consideration of what we do about the Bill. If there is a chunk of evidence which is relevant to the Bill, and if that evidence is prima facie disclosable, it is somewhat wrong for the Government to crack ahead with the whole thing while the issue of disclosure of that piece of evidence remains up in the air. If one could expedite the appeals—I am bound to say, as a former practising barrister, that it does not always happen that appeals are expedited in the way one hopes—and therefore get the appeals procedure out of the way before Report stage starts, that would be a sensible way of proceeding.
On the other hand, if you do not get the appeals procedure out of the way, you have to look at the other side of the balance, which is that if the appeals procedure is not out of the way and this issue remains live, the Report stage should not start until after the appeals have been determined and after there has been a firm judicial decision, one way or the other, as to whether or not the Information Commissioner’s opinion on disclosure of this evidence is right. It is a strange position, but the evidence is clearly relevant and, according to the Information Commissioner, prima facie, disclosable. There are also precedents that this type of information should be disclosed. Therefore, it seems to me that it would be wrong just to crack ahead with the Bill as if this issue did not exist.
Baroness Finlay of Llandaff
My Lords, I hesitated over whether to intervene, but I feel that I should comment as a clinician. There is enormous concern out there in the clinical services, particularly over transition as the changes come through. There are all types of risk registers and many of them deal with financial and livelihood matters, but the problem is that this issue relates not to livelihoods but lives. People are really concerned that they will not be able to treat critically ill patients in the way that they know, and in the way that the evidence informs them, if we do not get the transitional arrangements correct. That is why there is so much strength of feeling behind the need for access and the need to know where the major risks that have been identified are. Assurance needs to be given through this House to the public at large that action has been taken to deal with the major risks that may be exposed in the risk register.
This is a Motion of Regret. It is nothing more than that. It does not alter the course of the law, and many suggestions have already been made to the noble Earl. I should emphasise that this debate in no way undermines the confidence of either this House or the profession outside in the integrity of the noble Earl, Lord Howe. That is completely intact and not under question. The anxiety relates to what is not being disclosed and what is not being dealt with and, therefore, who is actually being put at risk.
Lord Walton of Detchant
My Lords, I too support this amendment, although like the noble Lords, Lord Warner and Lord Turnberg, I would much prefer to see Clause 53 deleted from the Bill. Throughout my professional career I have been familiar with the expertise of the former Public Health Laboratory Service. It conducted research, carried out microbiological surveillance, protected the population of this country from epidemics and so on, looked after the safety of our water supplies, and indeed undertook a huge number of other activities. The noble Lord, Lord Turnberg, chaired that body with great ability and distinction.
I just do not understand the purpose of the Government in abolishing its successor, the Health Protection Agency, which has continued to follow that pattern and to supervise the work of laboratories across the country which were formerly part of the Public Health Laboratory Service. Again, it is difficult to understand what the purpose is of abolishing a body that has proved to be so effective, which continues to give excellent service and which, as other speakers have said, attracts external research funding. If it were to be absorbed into the Government under the Secretary of State, I believe that it would be less able to fulfil its functions and to carry out the distinguished research in which it has been involved over many years. For that reason, while I strongly support the proposal that Clause 53 should no longer stand part of the Bill, if—for the reasons that I hope can be explained by the noble Earl—the Government decide that that clause should remain, it is crucial that we have an amendment such as the one before us in order to preserve the activities of such a vital scientific institution.
Baroness Finlay of Llandaff
My Lords, I have added my name to Amendment 260, but I should like also to talk about the problem of abolishing the Health Protection Agency. I must declare an interest because at the moment my daughter is on a placement there and is most impressed by the work that she has seen. There will be a very specific problem for the Health Protection Agency if it is not completely independent, and that relates to Medical Research Council research funding. If the agency is part of the Department of Health, it will find it more difficult to secure MRC funding. That may also apply to Wellcome funding, but the problem will be particularly acute with regard to funding from the MRC, which is the highest rated funding that the agency can get.
Also, as has already been said, the agency is internationally renowned and recognised for the excellence of its work and looks set to bring in more work to the UK. It is now working with the World Health Organisation on disaster planning. In planning for new disasters that might take place, it is important that countries know what other countries are going to be doing. We have sea borders, but if there is a massive disaster in another country we cannot go to its assistance if we do not know how its systems work. The Health Protection Agency is the leading body in this work on behalf of the UK. It seems very short-sighted to do anything that would destabilise this organisation.
Lord Warner
I do not wish to have any commercial-in-confidence information and I am sure my friends do not either. We want to know what is at risk out of the £150 million the Health Protection Agency is getting now under the new arrangements. If you can guarantee, in writing, that Public Health England is not at risk of losing any of that money I think we will be much more confident. We do not want the details of the commercially sensitive stuff we just want the global figure and the assurances of what it is at risk of losing.
Baroness Finlay of Llandaff
Can we also have the assurance that it will be eligible in the future to apply for a broad range of funding even if currently it does not hold a grant from a particular grant-giving body? I think that that applies to the MRC.
Baroness Northover
I hope the cameras are not shining down on this piece of paper of mine so I can try to give you some of the information that may be less commercially sensitive: there are organisations such as the Wellcome Trust and Research Councils UK. Noble Lords should be very reassured as to how this will work, but as a very junior Minister I have to be extremely careful.
The noble Lord, Lord Turnberg, flagged this up, I took it back and asked for a breakdown of the funding the Health Protection Agency gets. I asked in every instance what would happen in the future and I have a comprehensive answer because I thought it was extremely important. I hope noble Lords will be reassured both by my probing and these answers, even if I dare not reveal them all. I hope we can therefore write and reassure noble Lords that those working for Public Health England will indeed have access to the same kind of grants that they have at the moment.
Amendments 257A and 257B are minor and technical government amendments to Clause 54. These amendments would allow the Secretary of State or the Northern Ireland department acting alone to exercise functions in relation to biological substances for the whole of the United Kingdom. I was asked about sub-national structures. Indeed, Public Health England will have hubs. The precise details of these arrangements will be published shortly. As stated in Healthy Lives, Healthy People, we will provide further detail on the operating model for Public Health England.
I was also asked about emergencies. As I mentioned on the previous occasion when we debated public health, Public Health England will act on behalf of the Secretary of State as a category 1 responder. It will also be able to offer support or leadership in dealing with local incidents short of a full-blown emergency.
Reference was made to one or two other areas. If noble Lords will forgive me, I will write to them to sweep up what needs to be covered. I hope that noble Lords are reassured by what I have said. It is extremely important to the Government and to both Ministers in the Lords concerned with this matter that Public Health England is very strong and has the necessary independence. As the noble Lord, Lord Turnberg, put it, it should not be the mouthpiece of the Government. It needs to be able to conduct expert research. I hope that I have reassured noble Lords who have raised these very important points that all this is built into the Bill, and that the noble Lord will withdraw the amendment.
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Lord Warner
My Lords, my name is on Amendment 258. I speak as a former Minister responsible for NHS R&D in the pharmaceutical industry in 2003 and 2004. We were having exactly the same discussions then. Since that time, the National Institute for Health Research has been set up, we have had the Cooksey review, OSCA has been set up, and we have had the review by the Academy of Medical Sciences. All these cases come back to the issue of a faster, smoother regulatory approval system. The same blockages that are being talked about now were being talked about five, six, seven years ago.
In that time the UK has lost large numbers of clinical trials. We continue to lose trials and we are going to lose more to south-east Asia. UK plc suffers while we continue with these present arrangements. I understand the Minister’s anxieties about this. However, at the end of the day it is difficult to see that a new authority would be in place, even with a very smooth passage, until at least a year later than if we went along with the amendment. We need to move faster on this.
I end with one question to the Minister. Have the Government actually talked to the big beasts in science research in this area—to the Wellcome Trust, the MRC, the Academy of Medical Sciences? Have they asked them directly whether they would you sooner have the Willis amendments or wait for a Bill in the next Session. I would like to know what their straight answer to the Minister would be on that particular question.
Baroness Finlay of Llandaff
I have my name on the amendments about setting up the authority. In his response to the questions posed, I hope that the Minister will address how exactly we are going to streamline the process, as has been outlined so eloquently, and whether mechanisms such as commencement orders could be used so that we do not delay the process of speeding up research, because some parts, such as the Human Tissue Authority and the HFEA, are not yet clarified. It would be very sad to go at the slowest pace rather than storm ahead. This Government have demonstrated an understanding of research as an important economic driver to the UK as a whole, but that infrastructure, as suggested in these amendments, has to be in place and cannot wait. I hope, therefore, that the Minister will also address the timetabling in detail when he replies.
Lord Beecham
My Lords, I come to this debate unencumbered by any particular knowledge or experience of the issues addressed by the amendment, but it is apparent that today’s debate is but the latest instalment in a long-running saga, which in a sense reached its peak almost exactly seven months ago on Report of the Public Bodies Bill; many of the arguments that we have heard today were rehearsed on that occasion. It is not without significance that the noble Baroness, Lady Deech, complained at that time that no full and impartial public review of the risks and benefits, including the financial risks, of the proposed abolition of the HTA and the HFEA had actually been undertaken. Members of this Committee are clearly of the same mind as most noble Lords have been.
At that time, the Minister set out his reflections on the points that had been made in that debate. He pointed out that there was a common theme: a desire for greater clarity on where the Government intended to transfer the functions of the HFEA and HTA, and concern that the dispersal of functions across a range of bodies would risk fragmenting regulation. Clearly, those matters are still in the air. The Minister said that he intended to consult in the late summer on the options for where certain functions would be most appropriately transferred, and intended to proceed on the basis that the preferred option was for the HFEA and HTA functions to be transferred to Care Quality Commission, except for certain research-related functions that would transfer to the health research regulatory agency. Consultation would therefore take place. It is now seven months since all that was said. The main justification for not proceeding with what was sought then, and indeed still is now, was that:
“We do not want to add to what is already a substantial Bill”.—[Official Report, 9/5/11; col. 699.]
It might be thought that there were matters of less importance in the Bill, and certainly matters that in many respects were more controversial, than the topic that we are addressing today.
Having said that, I have listened with interest to my noble friend Lady Warwick, who takes a somewhat different view of this. Without the in-depth knowledge that other noble Lords have exhibited on this I hesitate to disagree with her, but for my own part I am persuaded by the force of the arguments made by the noble Lord, Lord Willis, and those distinguished noble Lords who have supported him. It is not good enough, particularly in the light of the Government’s clearly confirmed intention to press on with giving greater emphasis to the role of research, specifically in this field, that we should be told, as I anticipate—perhaps wrongly—that further consultations will take place and at some time there will be a conclusion and then a Bill. Given that legislation must already be piling up for the next Session, which, presumably, unless the rules have changed again, will be a year long, it is unlikely, with pressure from other departments, that this department will obtain the space for a Bill of this kind, so the uncertainty will continue. Uncertainty is almost the worst feature of the present situation; it cannot be good for anyone concerned with the problems of research, from the point of view of either pure research or, more particularly, its development into industry and production. Equally, the ethical side clearly cannot be allowed to drift.
I hope the Minister will, if he cannot commit tonight to reviewing the position, undertake seriously to discuss matters again with the noble Lord, Lord Willis, and those who have supported him tonight, with a view to seeing whether, even at this stage, the Government can change their position and deal once and for all with a significant issue around which there seems to be a considerable degree of consensus in this Committee and in your Lordships’ House.
Health and Social Care Bill
Baroness Finlay of Llandaff Excerpts(12 years, 11 months ago)
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Baroness Finlay of Llandaff
My Lords, I added my name to these amendments, so eloquently introduced, with the evidence behind them informed by my noble friend Lady Emerton. It is important to state that these amendments may not be perfectly worded, as the noble Lord, Lord Alderdice, has pointed out, but the principle behind them has a lot of evidence to it. This is not about protection of a certain number of jobs; this is about the fact that you cannot substitute without having skills, competencies and attitudinal evaluation within a particular area.
There may be staff at different grades who will work in a complementary way and there is complementarity, but you cannot substitute. Physio assistants cannot be used to do what physiotherapists do. The same applies right across the piece. It is not just baseline qualifications, however; it is all the other layers as well. You do not want to be in an intensive care unit nursed by trained nurses who are not fully trained in those ventilators that are in use on that unit, who do not have all the additional skills as well and cannot communicate with patients in that situation and with their families.
As the noble Baroness, Lady Murphy, said, the evidence is overwhelming when you look at intensive care units but it goes right across the piece. I would like to cite briefly what we tried to do in Wales in my own discipline. We set minimum levels for the level of staff and the competencies for palliative care across the whole of Wales. It was not easy to do but it has worked and it has been a lever to drive up standards and drive up quality and to get some people to increase their training and go back to doing more training, without it incurring additional cost.
I recommend to the Minister that the Government look carefully at this amendment and think about some way of ensuring that patients across the whole of the UK will know that they will be looked after by people with the appropriate competencies and that, in times of financial stringency, we do not find that people revert to substitution as a misguided way of saving money which will be at the expense of quality if not at the expense of more than that.
Lord Newton of Braintree
My Lords, I wonder if I might come in on the side of the “sympathy but” brigade, which makes me a member of the same club as all those who have spoken before me. I have a lot of sympathy with the purpose of the amendment of the noble Baroness, Lady Emerton, but I worry about the rigidity of their terms in relation to specifying ratios and a maximum number of people that any nurse can deal with. It seems to me that this is a prescription for a degree of inflexibility that could end up closing wards for reasons that would not be sensible.
I am scarred by something that happened at Birmingham Children’s Hospital in my period as Minister for Health; it arose from a shortage of paediatric intensive care nurses. I do not know whether they are still in short supply but that is the kind of problem that would be exaggerated by this kind of rigidity. Nevertheless, the basic thrust of the amendment must be right.
There is only one other point I really want to make. As I understand it, my noble friend is likely to say that this is not something for the health Commissioning Board, but for the Care Quality Commission. I do not accept that. The Care Quality Commission will be doing snapshots, perhaps a bit more vigorously than it has done in the past, sometimes unannounced and so forth, but nevertheless more often than not there will be a snapshot of the situation at a particular time. I cannot see that the Commissioning Board can commission services without specifying something about the standard at which it expects that service to be provided, and that is relevant to this question of staffing levels in a general sense. So while I believe that it would be wrong to say this is all a matter for the Care Quality Commission, equally I do not believe it would be right to be as rigid as some parts of the amendments are at present.
Baroness Bakewell
My Lords, I rise to speak to Amendment 150B and 320ZB. As with the others that I have proposed to this Bill, my amendments are all associated with one running theme: meeting the needs of older people. First, I propose that the annual report of the NHS Commissioning Board should be measured by how effectively it meets the needs of older people. Thus, I am separating out a particular cohort of people for whom particular attention needs to be made. Why do I do that? It must surely be obvious every day that we read the papers and every occasion when stories run in the media of inappropriate treatment of older people in hospitals, care homes and nursing homes. They are not getting the treatment that they should and the public know this and care about it.
My major amendment stands aside from the many other amendments to this Bill so far that have dealt with new structures, responsibilities, commissioning and safeguards. The purpose of this amendment is to test views on the creation of a role of commissioner for older people. There are many reasons why such a post becomes increasingly pressing. You may well be familiar with them. First, there are the demographics. The statistics are familiar and frightening. There are 10 million people now over 65 in the UK. By 2034, 23 per cent of the population will be over 65. Of them, 3.5 million will be over 85. Such proportions of the population will constitute by far the highest percentage of users of healthcare and specifically of social care in this country. Old age is not a condition you cure. We are not hoping that old people will get better. Scientific advances will not find miracle cures that reduce the incidence of old age. Medical science will paradoxically be increasing the numbers in this cohort. This change constitutes one of the largest challenges that developed societies have to face. The situation is the same in Japan, America and Canada. This is where the human race is going. I feel that there is little appreciation of the scale of what it is to meet those needs.
All the detail and complexity of this Bill and the debates that we are having about it concern the replacement of one complex structure of the NHS with another. We have been debating in detail the network of relationships between the NHS Commissioning Board, the CCGs, HealthWatch England, the CQC, the local HealthWatch organisations and the role of Monitor. All this abundance of well intended organisational ways of meeting the needs of patients does not take on the bigger picture facing the future.
The old are a different cohort. We will all one day be patients. Before that, as people age they become needful of different provisions of social care. Social care is in the title of this Bill. They will need meals on wheels, transport provision, adapted housing and all the things that provide for a living that, while not being an illness, is not as independent as it once was.
Such a commissioner for the old already exists. Such an independent statutory body with an overview of all people aged 60 and over was created in Wales in 2006. It exists to promote the interests of older people and improve their lives. Among the crucial things its first commissioner, Ruth Marks, does is to promote awareness and challenge age discrimination. She also offers ongoing assistance for older people who contact her with problems. She is often dealing with complex issues that involve all the various public bodies and that individuals cannot cope with. In the commissioner, they have one person that they can turn to to help them through this web of public bodies. This unique help, individual to individual, through the complex world of health and social care provision, seems to me to be of overriding merit and appropriate in the discussion of this Bill. Northern Ireland also has such a figure, known as the Older People’s Advocate, currently in the person of Dame Joan Harbison. We already have a Children’s Commissioner, created by the Children Act 2004. This could act as a template for a commissioner for the old—to hear and then promote the views and concerns of individuals and to involve them in the discharge of the health service function.
In 2008, I was invited by the Government Equalities Office initially to be a champion, which I thought was bit aggressive; then I was invited to be an ambassador, which sounded rather diplomatic; and I volunteered to be a voice. Not only because I am a broadcaster, I thought that people want a voice and they know what it means. When Harriet Harman asked me to do this, she nodded in my direction and said that of course it was uncharted waters. Indeed it was. Neither of us realised what the reaction would be. I was inundated with complaints of every conceivable kind. Health sometimes, hospitals often, pensions frequently, but also things like the closing of public loos or ex-pats in Spain worrying about their heating allowance.
Some of them were very strange requests indeed—how would I get people’s savings out of the Icelandic financial system? I had to respond by sorting out the networks of support that exist—Citizens Advice Bureaux, Age UK, MPs and local authorities. It was a rigmarole of roundabout ways in which people could have a satisfactory answer to their personal problem.
Time has moved on. My role was a part-time, amateur job. We are now into the serious matter of considering the old. Old age now has a high profile. The newspapers are on board. The media follow such stories. We owe to them the revelation of the many scandals that exist. Architects are concerned and interested in designing lifelong homes. The co-housing movement is on the go. Martha Lane Fox is campaigning to get the old on the internet. There is a multiplicity of age-related websites. You can adopt a granny. You can adopt an old person’s garden. There are thousands of such websites but none of them answer the single requirement to have one person who is on your side. The Liberal Democrat conference in September debated such a policy motion, calling for a commissioner for the old. This is an idea whose time has come. I beg to move.
Baroness Finlay of Llandaff
My Lords, I apologise to the House for missing the noble Baroness, Lady Bakewell’s opening remarks. I simply point out that we have an Older People’s Commissioner for Wales, Ruth Marks. In March 2010 she led an inquiry into care in hospitals, called Dignified Care? By November this year, she was satisfied that the 12 recommendations from its in-depth and hard-hitting report had been met. She is now using her powers to drive forward additional adult protection legislation and a nursing home review. It is only with legal powers and leadership that we can really turn care round. I believe that such a post is more than cost-effective. I really recommend that the Government look hard at having an older people’s commissioner for England because we know that there is a big problem there. Such a post will more than save its cost.
Baroness Jolly
My Lords, I support the noble Baroness, Lady Bakewell, in her plea for a commissioner for older people. As she indicated, it has been a long-standing commitment of our party, which was put into party policy last September. Prior to the general election, we had a spokesman in the other place on older people’s issues, and there was a general election manifesto commitment. So we were right there and, as the noble Baroness has indicated, she has form in this regard too.
The Welsh commissioner for older people actually started life in your Lordships’ House before going to the other place, and the appointment was made in 2008. I have talked to Welsh colleagues over the last week and they have been really enthusiastic about the work that has been done and the progress made in Wales. So if it can happen in Wales, maybe we need to think about England too. The Welsh ambassador has similar responsibilities to those in the noble Baroness’s amendment. The role also has powers of investigation, entry and interview. I wish that we could be more ambitious with this older persons’ commissioner and extend the scope. As the noble Baroness said, there are so many issues that worry old people. Health and social care are clearly at the top of the list, but there are also pensions, housing, transport, leisure, even banking. Clearly there is a need for some sort of signposting centre for old people which somebody has to grasp and make it work.
The Government start a consultation on social care in the new year, and I know that my honourable friend Paul Burstow, the Minister for social care, is also keen on this particular issue, so I am really pleased to support this. Could my noble friend the Minister clarify whether an older person’s commissioner, or something similar, would be on the list of possibles, probables or definites for the next Bill?
Lord Newton of Braintree
My Lords, perhaps I may chip in once again in seeking that my noble friend should at least listen very carefully to what has been said by the noble Lord, Lord Warner. I probably ought to declare a sort of interest in that my wife is currently a member of a PCT board. I would like some clarity about just what the situation is in this respect. As the noble Lord, Lord Warner, indicated towards the end of his remarks, the contrast between what is being put in place at the moment and what is prospectively going to be put in place is even greater than the actual number of PCTs at present because of what has been done about clustering. At the moment—I do not know the exact figure on clusters—there is an even bigger contrast between, as I say, the number of clusters and the potential number of clinical commissioning groups, with all the costs, potential fragmentation and the rest of it that that might entail.
There is another issue and I just want to find out exactly how the Minister sees the position. Clustering has been achieved not by abolishing or merging PCTs but by appointing the same people to the boards of several PCTs. I think that the House should be clear about that. I want to know from the Minister exactly what is the number of PCTs at the moment; whether that number has in any way been affected by clustering; and whether the PCTs, which still exist as legal entities alongside the clusters which are not legal entities, continue to have all the responsibilities and duties that are assigned to them under the statutory basis on which they were set up in the first instance. PCTs remain the statutory entities. The clusters have no statutory basis at all, and we need to be absolutely clear what the situation is, how many PCTs we have and what their responsibilities are.
Baroness Finlay of Llandaff
My Lords, I have an amendment in this group. At first sight the group might seem loosely hung together but there is a common theme running through all this, and that is: how much is all this going to cost? The back-office functions for commissioning are not inconsiderable, and the more that clinical commissioning groups come together, the more some of those back-office functions can be merged and cost-savings made—or at least the more that expenditure can be decreased, because it is not really cost-saving. The document Developing Commissioning Support is quite interesting because it reveals the complexity of many of the back-office support functions that clinical commissioning groups will certainly need. Indeed, GPs themselves are independent contractors to the NHS. In many ways, that is why the amendment in the name of the noble Lord, Lord Hunt, is so sensible. Many of the other people working in the community are actually salaried, so they do not get any financial gain from contributing to a clinical commissioning group, whereas there are financial incentives for general practitioners in different ways of commissioning. For example, they often run out-of-hours services and may effectively be commissioning those from themselves within a particular area.
I want to draw the Committee’s attention to the need for collaboration in commissioning for those patients and groups of patients who have relatively rare but not terribly rare conditions. I shall take motor neurone disease as an example. In Nottingham, there is a properly commissioned neurological network that works across different PCTs with a lead PCT and the patients with motor neurone disease are able to access a pathway of care—a complete package of care—that is consistent with the Motor Neurone Disease Association’s own Year of Care pathway, which it developed to inform commissioning some time ago.
In another area, Southampton, no end-of-life care has been commissioned for motor neurone disease patients over the past five years. That means that patients even have to move to other areas, such as Gloucester, simply to access specialist palliative care when they are aware that they are going to need it at the end of life. That cannot be right. We know perfectly well that when you provide good integrated care, the quality of patients’ lives as their disease progresses can be improved by appropriate interventions. However, without it, it is a council of despair. The PCTs in that area have refused to fund end-of-life care for motor neurone disease patients, and it is an ongoing problem. Recently, two of the commissioners in the PCT were so concerned that they made a business case, but it was not backed by the PCT on financial grounds, because it is short of funding.
There is another problem, and another reason that clinical commissioning groups need to come together and collaborate. Quite a few seem to be looking at using the map of medicine as a basis to inform their commissioning decisions, but the map of medicine was not devised and written to guide commissioning. It was meant to guide clinical decision-making, and it is not complete in any one sector. You need to put the different parts of it together. For example, if you take chronic obstructive pulmonary disease, it does not have end-of-life care within its module. So if you use that module, you will not get the complete package that patients need. You also have to go to the end-of-life care module. Some of us who have looked at it in detail do not think that it is an appropriate template to use for comprehensive commissioning of services integrating processes early in the disease and right on through.
The commissioning groups are going to be on a very steep learning curve. They are going to find things very difficult, and with many small groups, the cost of them trying to do the commissioning will go up, and that is before they have used their funding to actually commission the services for patients that they have responsibility for.
These are very important amendments. This group and the next one get right into the heart of some of the problems that are beginning to emerge over the way that clinical commissioning groups are defined in the Bill.
Lord Mawhinney
My Lords, the noble Baroness, Lady Finlay, was right when she said that these are important amendments because they get to the heart of one of the big issues of the Bill. They pose a problem that only the Government can help us to understand and resolve. The noble Lord, Lord Warner, introduced us to the concept of clusters. Although I am deeply tempted—for I agree with what my noble friend Lord Newton of Braintree said about them—as we are supposed to be brief, I shall resist expressing my views on clusters until we get to the amendments that I have put down to Schedule 6, which deals with these issues, save to say that, at that point, the House is unlikely to be confused about what I think.
The noble Lord, Lord Warner, pinpointed the issue. From my Second Reading speech and also from conversations which he and I have had, my noble friend will know that I am enthusiastic about this Bill because it introduces GP commissioning. I have strong memories of the great advantage that GP fundholding presented to those patients who were the patients of GP fundholders. So I was drawn to be supportive, because I understood that the groups were going to be relatively small. They would benefit from the inter-reaction of GPs and patients, and nobody in the health service knows better than GPs what is in the best interest of their patients.
On the other hand, I recognise the point made by the noble Lord, Lord Warner, that if you have too many of them—as the noble Baroness, Lady Finlay, has pointed out—you run into other difficulties. Were we to wind up with a smaller number of large bodies, then clinical commissioning starts to mean something entirely different from what those of us who were supportive of the Bill believed to be the case initially. The noble Lord, Lord Warner, said there was a danger in all of this and a number of GPs would wind up being very disappointed. I have to say to my noble friend that if we get in to big organisations, there will be more than a few GPs who will be disappointed at the direction of government-policy travel.