Health and Social Care Bill

Baroness Finlay of Llandaff Excerpts

Tuesday 13th December 2011 Lords Chamber

[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?

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[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.

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Moved by

[Baroness Finlay of Llandaff]

267ZDB: Clause 59, page 88, line 6, at end insert—
“(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.

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[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.

Amendment 267ZDB withdrawn.

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[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.

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[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.

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[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.

Amendment 274ZA withdrawn.

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[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

Baroness Finlay of Llandaff Excerpts

Tuesday 13th December 2011 Lords Chamber

[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.

--- Later in debate ---

[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.

[Earl Howe]

I am grateful to the noble Baroness and will take that point away.

Health and Social Care Bill

Baroness Finlay of Llandaff Excerpts

Wednesday 7th December 2011 Lords Chamber

[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.

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[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.

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[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.

Health and Social Care Bill

Baroness Finlay of Llandaff Excerpts

Wednesday 7th December 2011 Lords Chamber

[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

Wednesday 30th November 2011 Lords Chamber

[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.

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[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?

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[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.

Health and Social Care Bill

Baroness Finlay of Llandaff Excerpts

Wednesday 30th November 2011 Lords Chamber

[Baroness Williams of Crosby]

My Lords, I have a great deal of sympathy with the intention behind this amendment. Noble Lords will remember that from the very beginning of the discussion about this Bill, there has been a great deal of concern about the conflict of interest that could so easily arise. Many of us recognise that the relationship between patients and general practitioners crucially depends upon that relationship being one of trust. The same will apply, if the commissioning groups work well, to the relationship between them and the patients who are within the practices of which they are part. So I sympathise very much with what the noble Baroness, Lady Thornton, has proposed, and also with what the noble Baroness, Lady Finlay, has proposed in Amendment 161.

Our concerns on this side of the House are not with the whole motivation behind this. We believe that that is extremely important and we completely share it. It is our feeling, rather, that the remedies are not adequate to the scale. We feel, for example, that one of the weaknesses of both amendments is the lack of any effective sanctions against those who breach what would be a relationship of trust. At the moment there is not provision within the Bill for effective sanctions, which can be used to ensure that these high-minded and perfectly proper principles are lived by.

The Nolan principles have been very effective in local government—as we all know—and increasingly effective in national Government. There are references to those in the course of the Bill, but there is no specific determination that members of the partnership groups or the CCGs would be dealt with, if they were in breach of the requirement that they should not ever put their own interests ahead of those of their patients.

I suggest to the noble Baronesses, Lady Thornton and Lady Finlay, and her associates in moving these various amendments, that they would look at the amendment we have put down—and I suggest this with due humility—which effectively brings into practice powerful sanctions. We believe these will be effective in ensuring that this relationship of trust is upheld, and also that powerful requirements lie on every CCG, as well as on the board itself, that it would be absolutely clear that all interests must be declared publicly.

These will ensure that once people’s names are on the register, and they have made a declaration of the appropriate kind about their own interest never being put forward as the reason for a decision, there are then effective measures that will enable the whole issue to be dealt with in detail, with appropriate requirements of sanctions and of effective punishment for those who breach them. We believe this to be absolutely central to the working of the clinical commissioning groups and to the whole relationship of doctors to their patients.

So, with those few words, I hope I can persuade the noble Baronesses, Lady Thornton and Lady Finlay, to have a look at the proposals that we have put forward, which, I am pleased to say, have at least to some extent the support of the noble Baroness, Lady Finlay.

[Baroness Finlay of Llandaff]

My Lords, I certainly support the amendments tabled by the noble Baroness, Lady Williams, who has just spoken, and they go further than the amendments to which I have added my name. I would just draw the attention of the House to the conflicts of interest guidance from the General Medical Council, which makes it quite clear that doctors,

“must be honest in financial and commercial dealings with employers, insurers or other organisations or individuals”.

It goes on to say:

“If you have a financial or commercial interest in an organisation to which you plan to refer a patient for treatment or investigation, you must tell the patient about your interest”.

I would also remind the House that the ultimate sanction is to be struck off, and that if you are struck off, you lose your livelihood. I have a concern that when it comes to the implementation, warnings may actually be issued rather than stronger sanctions taken against those who might breach such guidance, because this is guidance, and it is therefore subject to interpretation.

This whole group of amendments has really gone to the heart of the problem of conflicts of interest, both for the individual general practitioner, who would be on a clinical commissioning group, but also their families and all those others around. It may be friends of theirs, who they know really well, with whom they are inclined to place some commissioning contract, or enter into some arrangement. There is a really fine line between having a personal interest, and going to that person because professionally you think that they are the best person to do the job.

Of course, I will say as a doctor, we all know the doctors that we would like to be referred to, and we all know the people who we want to work with in our teams. That is human nature. It is a mixture of competence and attitude, but there is also something about having a shared set of values, and so on, because you tend to gravitate towards people who share the same set of values as yourself. The highest principles and values would of course fall, I would hope, outside of the conflicts of interest, but financial interest is a really difficult one.

While I would suggest that none of these amendments are absolutely perfect, this group of amendments illustrates the fact that we need to come back to this at Report with a definitive amendment that really crystallises the whole problem around conflict of interest in commissioning.

[Lord Greaves]

My Lords, I spoke on an earlier amendment this afternoon about issues that come round and round, and this one comes round across Bills. We had a great deal of quite difficult discussion on these matters in the Localism Bill—now the Localism Act—and achieved what we hoped will be a satisfactory compromise in the Bill.

It is all about standards in public life and the importance of all bodies that deal with public funds and public functions being part of the regime of standards in public life. I assume that clinical commissioning groups, while not part of local government, are certainly part of local governance, or they will be part of local governance as far as the health service is concerned. They will deal with a lot of authorities that have the standards of public life regime as part of their own practice. I wanted to go very quickly through the basic principles that need to be established in my view before this Bill is finished. First of all there have to be clear rules. In The Localism Act they are set out in Part 1, Chapter 7, across 11 pages and in parts of the schedules. There need to be set out on the face of the Bill so that everybody knows where we are.

There needs to be a code of conduct, whatever it is called, which is based on the Nolan principles. We came to the view in the Localism Bill, now the Act, that those principles needed to be set out again on the face of the Act: selflessness, integrity, objectivity, accountability, openness, honesty and leadership. In my view they ought to be set out on the face of this Bill.

There needs to be a system which members of commissioning groups have to register appropriate interests and again in the Localism Act some of these were pecuniary interests, going back to the old wording which is now on the face of the new Act. There are interests other than pecuniary interests which also need to be registered even if they do not debar people from taking part in decisions. If we are going to be open about what interests people have, then they ought to be there on record. There needs to be a register of interests—there is no point in registering if there is not an open public register. Then there needs to be a system in which people taking decisions and taking part in decision-making meetings have to declare interests at the point of that decision, as in the system that we have in your Lordships’ House. As the noble Baroness said, it needs to involve close families and partners as well as the individuals concerned.

Then there is no point in having that unless you have a system of dealing with complaints. It needs to be very clear what the system is, how such complaints are investigated and what penalties there are for breaching the rules. There may be different penalties for different rules. Clearly breaching the system in relation to financial pecuniary interests is much more serious than breaching one for non-pecuniary interests.

The penalties need to be clear and understood and the system for judging on them needs to be clear. The whole system has to be in the public domain. The system itself has to be open and transparent and all the actions taken under the system, whether it is just registering an interest or dealing with a complaint and the results of that complaint, have to be open, transparent and in the public domain. It seems to me that those are the principles. The details will quite rightly differ according to different organisations and different contexts. I am not suggesting the details of the local government scheme, although the amendment of my noble friend Lady Williams picks up some of the wording from the Localism Act, I think. Clearly CCGs are different from local authorities, but they are not sufficiently different that the basic principles should not apply, or the basic rules and regulations about avoiding conflicts of interest and declaring those interests when they exist and enforcing those interests within the framework of a broad code of conduct. That in my view has to apply and I hope that when the Bill leaves this House, it will incorporate sufficient detail to give those assurances.

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[Lord Marks of Henley-on-Thames]

My Lords, I rise to speak to Amendments 175E, 176AA to AD, 213C and 220A, all in the names of my noble friend Lady Williams, the noble Lord, Lord Patel and myself, and in the case of 220A in the additional name of my noble friend Lord Clement-Jones. The purposes of these amendments are first to secure on the face of the Bill a thoroughly robust regime to avoid conflicts of interest sullying the commissioning process, and secondly to ensure transparency in the commissioning process to the greatest extent that is commercially possible. Taking the point made by the noble Lord, Lord Warner, a moment ago, that this is not an entirely new area, I suggest that the arrangements for commissioning proposed in this Bill risk raising the threat level from conflicts of interest in the commissioning process from “moderate” to “severe”, if I may use the intelligence services’ scale. That is because of the greater involvement of practitioners in the commissioning process, which is of course to be welcomed for many reasons, and the increased likelihood that many practitioners may also be providers of other healthcare services or have interests in such providers.

Our task is to reduce the threat at least to “substantial”, and then to manage the threat in such a way as to avoid commissioning decisions ever being skewed by the private interests of those making the decisions. Much of what we propose ought to be uncontroversial, and merely represents good practice, but we suggest, and in this I agree with my noble friend Lord Greaves, that it is important that our commitment to best practice is made clear on the face of the Bill. Amendment 220A would impose on any provider of medical services who is also a member of a CCG a duty to declare any financial interest in a commissioning decision—a bare minimum proposal, I suggest. Amendment 213C would impose on the NHS Commissioning Board a duty to refer a member of a CCG to his or her relevant professional body for material breach of the provisions or of the guidelines we propose. I entirely agree with the further point made by the noble Lord, Lord Warner, that this is an appropriate way of dealing with offending by practitioners. It should not be for the board to act as, or to set up, a disciplinary tribunal, but it is sensible and a greater deterrent, I suggest, for the professional bodies to do so.

However, the meat of our proposals is in Amendments 176AA to 176AD. We propose a thoroughly transparent regime as the best and most effective way of protecting commissioning from the insidious effects of conflicts of interest. I say insidious—and this is a point in which I pick up on what was said by the noble Baroness, Lady Finlay—because it is not only when a public decision-maker acts deliberately to favour his private personal interests that conflicts arise and threaten the system. It is also when the decision-maker at least persuades himself that his interests and the public’s interests coincide. It is only public scrutiny of the process that can properly test that.

The provisions in the Bill permitting some public access to the meetings of governing bodies of commissioning groups are, I suggest, over-cautious and too limited. The system should be made more open. The public should not be excluded from governing body meetings during the all-important discussions involving a choice between potential providers. I entirely accept that that would involve a new openness about commercial transactions and decision-making. However, these decisions are about choices between providers at public expense; I question the need for meetings to be held behind closed doors in relation to them.

Secondly, in the case of other decisions where the public are excluded from governing body meetings in the public interest, then a record of decisions made should at least be published, and quickly. That is the subject of Amendment 176A.

Our amendments set out a code for dealing with conflicts of interest in new paragraphs to go into the schedule. There would be a requirement for a register of interests of all CCG members. That register should be kept up to date. It should be kept available for public inspection. Then there would be a provision to exclude from the governing body of any CCG a director of a healthcare organisation or anyone with a significant financial interest in such an organisation if there is a contract in existence between that CCG and that organisation.

Thirdly, there would be a provision to ensure that a member of such a governing body who would be excluded if such a contract came into existence would have to stand down from the governing body while any negotiations for such a contract were in progress.

Finally, our amendments import the admirable guidelines produced by the General Medical Council, entitled Good Medical Practice. Those are the guidelines to which the noble Baroness, Lady Finlay, referred. I am grateful to the GMC for producing a document of such clarity and for welcoming our use of it in these amendments. The emphasis of the guidelines is on honesty and openness; that is what we are trying to achieve in this Bill. I believe it is what the Government are trying to achieve in this Bill. These are probing amendments, intended to give the Government an opportunity to consider how they might import such guidelines into the Bill at Report stage. However, our central point is this: we believe that the present provisions of the Bill do not display the seriousness, the clarity or the robustness that are required to meet the risks posed by the new arrangements. I suggest that the Bill cries out for a code in this area such as the one we have proposed.

[Baroness Finlay of Llandaff]

My Lords, there is an additional area which I think means that the provisions in this Bill have to be different from other previous legislation. We face a huge financial challenge across the whole of healthcare, with budgets squeezed in a way they have not been squeezed before. So the potential for conflict of interest will go up as very difficult decisions are made. One can envisage the situation where somebody on the governing body of a clinical commissioning group will have a relative with a certain condition—and I refer back to the example I used previously, motor neurone disease. Say that person needs end-of-life care, and say that is a clinical commissioning group that has decided that it is not commissioning it in its area. There would be a direct personal conflict of interest, because that person would obviously want that care for their relative, but they would need to stand back. With the financial stringencies, the proposed amendments become even more important. While they are probing amendments, I hope the Minister in responding will recognise the importance of this area and agree to come back to it—hopefully, with a Government amendment—at a later stage.

[Lord Greaves]

My Lords, in brief response to the noble Lord, Lord Warner, I am not suggesting in any way that the regime should be identical to the local government regime, but that the decision-making body in clinical commissioning groups will be the board. Under the new Section 14A, the board will include lay members and possibly other people. So merely relying upon professional standards and professional systems of discipline will not be sufficient.

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[Baroness Finlay of Llandaff]

Before the Minister responds, I wonder if he could also explain why clinical commissioning groups would not necessarily have to have a register of hospitality, conflicts of interest and so on? Those of us who work for NHS trusts certainly have to complete a register, and if we receive hospitality above a minimum amount or major gifts, not only do we have to declare them, but we actually have to decline them. I think we would be subject to severe discipline if we breached that code.

[Earl Howe]

I do not disagree with any of these principles, but I am not sure whether the noble Baroness understood what I said earlier: there have to be arrangements for securing transparency about the decisions of CCGs, and governing bodies have to ensure that CCGs adhere to relevant principles of good governance—think of the Nolan principles, for example, and many other ways in which good governance can take place—but there is no need to specify all this in the way these amendments suggest because the arrangements provided for in the Bill will cover these things. As the noble Lord, Lord Warner, said we are not in new territory here. There are very well established procedures for tackling conflicts of interest when they arise. There might very well be a conflict of interest in the kind of situation to which the noble Baroness, Lady Thornton, has alluded, but there are ways of addressing and coping with that.

The key to this is to have in place a rigorous framework of requirements, approved by the board as part of the CCG establishment process, to ensure absolute transparency and to manage conflicts of interest, subject to oversight—the oversight must be proportionate, but it has to be there. We can put on the face of the Bill, as Amendment 176AD would have us do, a detailed list of behaviours that we would expect members of CCGs to observe. Obviously I cannot disagree, as I say, with the stipulations on this list, but they are already provided for in the Nolan principles and indeed the GMC code Good Medical Practice, to which the noble Baroness, Lady Finlay, referred—and adherence to that is a condition of registration for medical professionals. The noble Lord, Lord Warner, was absolutely right: this code is what GPs and doctors in general fear to transgress. Of course, if one looks at that set of behavioural requirements, they are actually only an ideal and they have no specific system in place to ensure that they are met. The sanction on doctors is the threat that they will be referred to their regulator.

The NHS Confederation was very clear about this, and I have to say I agree with it. The Bill has to allow flexibility for the way that conflicts of interest are handled and developed over time, rather than being rigidly set in law. What the NHS Confederation told us was that conflicts of interest need to be managed effectively otherwise,

“confidence in the probity of commissioning decisions and the integrity of the clinicians involved could be seriously undermined. However, with good planning and governance, CCGs should be able to avoid these risks”.

I agree with that. There is a balance to be reached, and we believe the system that the Bill would introduce for managing conflicts of interest—the key points of which I hope I have described—provides that.

Health and Social Care Bill

Baroness Finlay of Llandaff Excerpts

Monday 28th November 2011 Lords Chamber

[Baroness Williams of Crosby]

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

[Baroness Finlay of Llandaff]

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

[Lord Stoddart of Swindon]

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

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

[Baroness Finlay of Llandaff]

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

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

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

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

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

[Lord Newton of Braintree]

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

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

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

[Baroness Finlay of Llandaff]

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

“to set transparent eligibility and selection criteria",

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

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

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

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

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

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

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

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

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

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

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

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[Lord Patel]

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

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

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

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

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

[Baroness Finlay of Llandaff]

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

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

and that:

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

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

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

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

Health and Social Care Bill

Baroness Finlay of Llandaff Excerpts

Monday 28th November 2011 Lords Chamber

[Lord Patel]

I am grateful to the Minister for those comments and am greatly encouraged.

[Baroness Finlay of Llandaff]

I add my thanks for the Minister’s remarks. I look forward to seeing amendments which thread education and training through all parts of the Bill with duties on everybody at every level.

[Lord Walton of Detchant]

The Minister has completely taken the wind out of my sails. I had every intention of going at this hammer and tongs because all the medical organisations and all those involved in education and training are deeply concerned about the absence of detail in the Bill. The Minister has now reassured us greatly. We look forward earnestly and with keen anticipation to seeing what he proposes for the Report stage and hope that it will be adequate.

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[Lord Greaves]

My Lords, this has been a useful discussion. This clause takes a bit of reading but its meaning is quite clear and it was explained very carefully by the Minister and my noble friend Lady Williams. However, there is one point that I want to raise. I have an old fashioned, perhaps rather simple, view of legislation. When you read it, you should be able to understand what it means. The bit of this clause that is not good in this respect is new paragraph (b). New paragraph (a) very clearly says that the Secretary of State and these bodies cannot discriminate for ideological, dogmatic or general policy reasons in favour of either the public sector or the private sector. That is clearly there because of the concerns that the whole purpose of this legislation is to discriminate in favour of the private sector, as the Minister has explained very carefully.

However, new paragraph (b), which refers to what the Minister described as charities, voluntary organisations and social enterprises, refers to,

“some other aspect of their status”.

That is not clear and understandable legislation. I suggest that the Minister thinks seriously about coming back at a later stage and replacing those words with a clear explanation of what the Bill is referring to, which appears to be charities, voluntary organisations and social enterprises. If nobody else does so, I shall table an amendment on Report to replace the current wording with those words. However, I would prefer the Government to put into legislation words that ordinary people—or even the sort of extraordinary people who might want to read this legislation when it has been passed—can read and understand, rather than vague words such as,

“some other aspect of their status”.

[Baroness Finlay of Llandaff]

The Minister’s comments have been most helpful, so far as they have gone. Taking on board the comments made by the noble Lord, Lord Greaves, it will be helpful, when the Minister writes in response to this evening’s debate, to stipulate how the new arrangements will differ from what is currently available to commissioning by PCTs or by other groups. The voluntary sector works very well, by and large, with the current commissioning bodies and finds that it is viewed as good quality and value for money, by and large, though not all the time. The difference in the arrangements needs to be clarified in that letter so that people can really understand if there is a difference and where it is, and also to allay the fears which are quite widespread in the voluntary sector, as was stated so clearly by the noble Baroness, Lady Armstrong.

[Earl Howe]

My Lords, we will come quite soon, I hope, to Part 3 of the Bill, which deals with competition more generally. Much will be revealed at that time, but I can say to my noble friend Lord Greaves that I would be happy, if it would help him, to wrap up the meaning of that particular phrase in the letter which I am going to send on these examples. They are—I ask him to believe me—well chosen words.

NHS: Waiting Times

Baroness Finlay of Llandaff Excerpts

Tuesday 22nd November 2011 Lords Chamber

[Baroness Finlay of Llandaff]

What percentage of patients in hospital are currently awaiting discharge because of delays in establishing a suitable care and follow-up package for them at home, thereby preventing the admission of others for investigation and treatment?

[Earl Howe]

My Lords, in the first quarter of the current financial year, 0.4 per cent of occupied bed days were taken by patients who were delayed while waiting for a care package. That picture has deteriorated over the past year but that deterioration masks some variations. Some hospitals have improved dramatically and others have started reporting for the first time. It is not possible to compare this year’s figures with the previous year, although these are very important figures which we do monitor.

Health and Social Care Bill

Baroness Finlay of Llandaff Excerpts

Tuesday 22nd November 2011 Lords Chamber

The noble Baroness, Lady Morgan, asked—

[Baroness Finlay of Llandaff]

Before the Minister sits down, will he say why, if he feels that other accounts of public money should be open, general practitioners’ accounts of public money should not be open within the practice? This is public money that they will be receiving.

[Earl Howe]

Practices will be accountable for the money that they receive to commission services, as will CCGs. But it is another matter to say that independent private individuals should lay open what are effectively their tax returns to the general public. That is the sensitivity there.

[Baroness Finlay of Llandaff]

This is not about GPs’ private incomes and tax returns. This is about the finances of the business, which is their practice partnership, and within that the way in which that money is being spent on business, just as other business accounts have to be open and filed.

[Earl Howe]

I understand the noble Baroness’s point. Clearly, we want to see maximum accountability for public money. Does the noble Lord wish to intervene?

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[Baroness Tyler of Enfield]

My Lords, I will speak to Amendment 135CA in my name. We have already had a very interesting debate about what we mean by integration. Obviously, different people mean different things. The sense in which I will talk about integration is how we can encourage integrated care pathways for people who experience some of the worst inequalities in terms of access to healthcare.

Clause 20 states that the NHS Commissioning Board will encourage integrated working between clinical commissioning groups and local authorities. This is clearly welcome. However, it needs to go further. Those with the worst health outcomes often have the most complex needs and can often benefit most from integrated care. However, as is so often the case, disadvantaged groups can easily be overlooked in the overall system. The fundamental aim here is to ensure that integrated care pathways can be set up that specifically target those with the poorest health.

I will briefly explain why integrated care pathways are important for those with complex needs. A number of patient groups experience health inequalities. We all know about that, and heard about it in our previous debates. In their 2010 report, the Cabinet Office and the Department of Health identified a number of groups of people who have complex needs and as a result carry a disproportionate cost to the NHS. The report states that,

“socially excluded people often make chaotic and disproportionate use of health care services, and experience a range of barriers and issues relating to their access and quality of primary care”.

As we know, these groups include homeless people, people with mental health problems, people with drug and alcohol addictions and others.

I will give a specific example of why this is a very important issue. Homeless people have some of the poorest health outcomes in our communities. I will give noble Lords a couple of facts and figures. Eight in 10 homeless people have one or more physical health need. Seven in 10 have at least one mental health problem. Between 50 and 75 per cent of rough sleepers experience mental health disorders, including anxiety, depression, dementia and psychosis. Research by the Department of Health, again in 2010, estimated that the average age of death of a rough sleeper was between 40 and 44. I find that statistic shocking. Finally, the Department of Health estimated that this had a knock-on cost to the NHS that was four to eight times greater than that of a person in the general population.

As a result of these patients’ complex needs, barriers often exist that prevent them getting the treatment they need. Some services simply exclude them because they are deemed too difficult to deal with—too chaotic or complex. Evidence was found that one in 10 homeless people is refused access at primary care level. Integrated care pathways are crucial to provide personalised and accessible services that treat multiple problems at the same time.

I shall give a very brief example of how this can really make a difference in practice. The average age of homeless people dying while living in a St Mungo’s hostel is just over 40 years. Back in 2009 St Mungo’s began an intermediate care pilot at one of its hostels in south London. It was run by a full-time senior nurse and a health support worker. Together they worked with residents to help improve their health and well-being and particularly to prevent unnecessary admission to hospital. They also arranged appropriate discharge from hospital. As a result of this pilot there has been a marked increase in attendance at HIV services, chest clinics, dental appointments and mental health services. Calls to the London Ambulance Service have gone down by 13 per cent and hospital admissions by 40 per cent, which I think is a very significant figure.

This fits very much with the Government’s approach. Indeed, this amendment builds on the commitment to improve the health of the poorest the fastest, which has been part of these health reforms since the White Paper was published in 2010. It also builds on evidence presented by the NHS Future Forum, which stated:

“We need to move beyond arguing for integration to making it happen whilst also exploring the barriers. We would therefore expect to see the NHS Commissioning Board actively supporting the commissioning of integrated packages of care”.

In their response, the Government agreed that integration of commissioning health and social care should be the ambition for all local areas. The Government have made a number of welcome commitments to strengthen local development of pathways between health and social care providers, and we have heard about some of them this evening. They obviously see an important role for the NHS Commissioning Board working with senates and CCGs in taking this forward. Can the Minister explain how—in achieving better outcomes for those with the poorest health, as is required to reduce health inequalities—the aims of improving integrated working and the health of the poorest the fastest will be achieved in practice?

[Baroness Finlay of Llandaff]

My Lords, I have several amendments in this group. Amendment 203A has been spoken to fully by noble friend Lady Hollins, who has supported other amendments in this group. Amendment 135C would require a biannual report by the board to the Secretary of State on what has been done to promote integration. The other amendments are all designed to promote collaboration, decrease duplication and bring together primary and secondary care and public health and the diagnostic services to have better diagnosis and management of disease.

Integrated working allows patients and their carers to benefit from good primary care provided by GPs and others in the team, to have help and support provided by those working in social care, and to access early referral, appropriate investigation and treatment as required from specialist services. Good integrated care needs to see the patients and their experience in the context of their lives, social support, relationships, cultural experience, gender and a range of other factors. Bringing together an integrated social and clinical approach should include holistic plans for diagnosis, treatment, rehabilitation, support and long-term follow-up.

In their report Teams without Walls, the Royal College of Physicians, the Royal College of General Practitioners and the Royal College of Paediatrics and Child Health highlighted the recommended use of patient pathways as the building blocks for services, with the right balance between prevention, early identification, assessment, intervention and, where necessary, long-term support. They also pointed out that this had implications for commissioners, providers and regulators of services. Multi-professional working with the patient at the centre of everything provides the opportunity for a wide range of professionals, including those outside an organisation, to monitor care delivery and challenge standards. This will help prevent trusts and professionals from becoming insular. Insular practices can result in negative cultures developing and poor standards becoming tolerated.

The clinical commissioning groups have quite a challenge facing them if they are really to commission and develop integrated as opposed to fragmented care. Much has been said on this already, and I will not repeat the points made by previous speakers. However, patient needs will be better met if we move to a tariff structure that better reflects clinical complexity. The Government’s response to the Future Forum report seems to recognise this, but the current tariff structure overcompensates for simpler conditions and consistently under-compensates for more complex and unpredictable areas of care. To encourage integrated working, consideration needs to be given to a system in which payments are received over a longer term and for the achievement of integration and good clinical outcomes. To do that, it will be crucial for Monitor and the Commissioning Board working closely with royal medical colleges and specialist societies to develop a tariff that will provide integrated care.

[Baroness Murphy]

My Lords, much has been said on this group of amendments and I will not delay the Committee too much. I have a great deal of sympathy with the plea of the noble Baroness, Lady Thornton, that we should know what integrated care is. We have had several descriptions around the House. We have within the Bill a duty to promote integrated care, so it is important that we have read into the account the Government’s thinking on what “integrated care” means. I think that I echo the noble Lord, Lord Ribeiro, in saying that.

I am surprised that my noble friend Lord Walton, who is not in his place at the moment, did not mention Mrs Smith of 66 Acacia Avenue, or we might have said Mr Chowdry of 66 Mafeking Avenue. What does sitting at home feel like to those patients who are in receipt of community care? How does it work out for them? Integration of primary and secondary care with social care provision is what it really should be about. I look to the Government to reassure me that that is what we are talking about.

We have to be aware that some barriers in the NHS will require this financial manipulation. On the one hand, there is a profound mistrust by acute providers of the competence of community-based and primary care workers. Sometimes that has been justifiable in the light of the historical deskilling of clinical care that occurs in primary care settings. On the other hand, there is an attitude bordering on paranoia from community and primary services staff about the predatory nature of what Enoch Powell referred to as the “voracious” acute hospital sector, which is entirely justified by their experience of being sucked in to the acute hospital, and especially true since payment by results came in, which has had a really negative effect on this problem. Then there is the wild card of GPs who can suddenly bring to a halt community-based care out of hours, if they feel like it, without any impact on their budget at all. Noble Lords who, like me, have spent a great deal of time putting in packages of care will understand how frustrating it can be when it suddenly comes to a halt and nobody has budgetary responsibility for it.