Drugs: Prescribed Drug Addiction

Baroness Finlay of Llandaff Excerpts

Thursday 12th July 2012 Lords Chamber

[Baroness Finlay of Llandaff]

Will the Government ensure that the recommendations from the Royal College of General Practitioners for increased training in psychiatry is implemented in workforce planning after the new Act is in place? The inappropriate initiation of prescriptions is a major problem for those becoming dependent when alternative therapies, such as cognitive behavioural therapy, or simply better social support, would have avoided the inappropriate prescription of a drug on which physical dependence then develops.

[Earl Howe]

The noble Baroness is absolutely right, and I am very pleased that both the Royal College of General Practitioners and the Royal College of Psychiatrists have been keen participants in the round table group on addiction to medicines convened by my colleague Anne Milton. The actions agreed by the group have included greater recognition of the risk and the treatment of dependence on prescription drugs within the core competencies of psychiatrists and the further development of training and guidance on this issue for GPs and other healthcare practitioners.

NHS: Liverpool Care Pathway

Baroness Finlay of Llandaff Excerpts

Wednesday 20th June 2012 Lords Chamber

[Earl Howe]

My Lords, we will continue to do so. The Liverpool care pathway has sometimes been accused of being a way of withholding treatment, including hydration and nutrition. That is not the case. It is used to prevent dying patients from having the distress of receiving treatment or tests that are not beneficial and that may in fact cause harm rather than good. The noble Lord was right that the recent national care of the dying audit of hospitals, run by Marie Curie in collaboration with the Royal College of Physicians, notes that in 94% of documented cases discussions explaining the use of the LCP were held with relatives or carers. That audit process gives clinicians an opportunity to feed in their views about how well, or not so well, the pathway is working in practice.

[Baroness Finlay of Llandaff]

My Lords, given that the Government have recognised that the Liverpool care pathway has been designed to bring the best of hospice care into other care settings, such as hospitals, nursing homes and patients’ own homes, and that it is a tool—and a tool is often only as good as the person using it—will the Government ensure that Health Education England includes in its remit comprehensive education around the appropriate care of dying patients?

[Earl Howe]

Yes, my Lords. To ensure that it is used properly, the Liverpool care pathway emphasises the importance of staff receiving appropriate training and support in its use as well as accessing relevant end of life training and education programmes. A range of activity has been undertaken to support staff education and training and end of life care by the national end of life care programme and others. That includes the development of an extensive package of e-learning, which is free to access for health and social care staff.

Older People: Health and Social Care

Baroness Finlay of Llandaff Excerpts

Monday 18th June 2012 Lords Chamber

Asked By

[Baroness Finlay of Llandaff]

To ask Her Majesty’s Government how they plan to implement the recommendations in the report Delivering Dignity.

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)]

My Lords, the Government welcome the report from the dignity in care commission and will consider carefully all the recommendations addressed to government. We will respond to the commission in detail in due course. Many of the solutions to the issues in the report lie with the local NHS, social care providers and other key stakeholders. The Government will encourage the sharing of best practice by bringing people together and putting in place the right system incentives to enable providers to increase the quality of their services to older people.

[Baroness Finlay of Llandaff]

Following the report, Delivering Dignity, which was published today, will the Government instruct Monitor and the Care Quality Commission to require all authorised providers to seek, monitor and act on feedback from patients and their families, and will the Nursing and Care Quality Forum be widened to look at all aspects of care home staffing, root out poor care and ensure that action is taken so that respect of the individual is an “always” event in the delivery of care?

[Earl Howe]

My Lords, the NHS outcomes framework contains two domains that are highly relevant to this area. The NHS Commissioning Board will be in prime position to monitor those areas of the domains that relate to the patient experience. However, I have no doubt that the CQC will continue to do its work in maintaining essential standards of quality and safety. The Nursing and Care Quality Forum is an independent group and it is therefore for the forum itself to consider how to take forward the issues raised in the recommendation, but I understand that its chair, Sally Brearley, was already planning to consider care homes as part of the next phase of the forum’s work. She has already approached a number of individuals to strengthen the forum’s membership and add further expertise in that area.

Social Care: Legislation

Baroness Finlay of Llandaff Excerpts

Monday 11th June 2012 Lords Chamber

[Earl Howe]

My Lords, this is the first reform of social care law in more than 60 years. It is a unique opportunity to get the legal framework right. That is why we have deliberately taken time to engage fully with those who have experience and expertise in care and support. Many people in the sector have called explicitly for scrutiny on a draft Bill, so publishing a Bill in this way demonstrates our commitment to working in partnership. We remain absolutely committed to introducing legislation at the earliest opportunity in this Parliament to establish a sustainable legal framework for adult social care. The draft Bill will be the critical next step in delivering the reform agenda.

[Baroness Finlay of Llandaff]

Will the Government reassure us that in considering adult social care they will also take into account the transitional needs of children with very complex needs as they grow older and transition to adult care, because many of them are in the last phase of their illness and will die in early adulthood?

[Earl Howe]

The noble Baroness raises the key issue of transition, which will be covered in the forthcoming White Paper.

Health: Pancreatic Cancer

Baroness Finlay of Llandaff Excerpts

Monday 23rd April 2012 Grand Committee

[Baroness Finlay of Llandaff]

My Lords, I am grateful to the Committee for allowing me to speak in the gap. In this important debate, there has been much focus on research. However, results will take years to come through. Work on early diagnosis and necessary training will also take time. There are patients now with an advanced form of the disease, and there are patients whose disease will recur even when they have gone through treatments that put it in abeyance. Under the new contracting process, how will we ensure that patients with pancreatic cancer have access to anaesthetic intervention services for nerve blocks such as celiac blocks? How will we ensure that clinical nurse specialists work seven rather than five days a week, and that they work as part of multi-professional teams? Without expert medical back-up, the complexity of pancreatic cancer symptoms is difficult to deal with. How will we ensure anticipatory prescribing to reduce the complications of pancreatic cancer such as thromboembolism that sometimes kill patients before the cancer itself? Patients should also have access at all times of the day and night to drugs for pain relief and to combat vomiting.

Health and Social Care Bill

Baroness Finlay of Llandaff Excerpts

Monday 19th March 2012 Lords Chamber

[Baroness Finlay of Llandaff]

My Lords, I very much welcome the fact that these amendments have the Minister’s name on them. He has already made some concessions in relation to indemnity for these providers where they provide services for and on behalf of the NHS for patients. It seems completely right that some of the difficulties that they have faced in being able to provide flexible patient and family-focused services should be considered and looked at separately. As has already been said, in end-of-life care the charitable sector has completely revolutionised what is available to patients. I know that Marie Curie has done that. They even admitted a dog so that a patient would come in, and allowed that dog to be formally adopted, which enabled the patient to die peacefully because the dog was the only person that the man really loved in life. That flexibility makes all the difference. You would not find that provision or ability to meet an individual patient’s needs in many other parts of the sector.

This group of amendments is really important and to be welcomed. This morning, I was with Help the Hospices, which expressed concern on behalf of some very small organisations as to how they would cope in the new world in being able to continue providing the services that they want to. This group of amendments will provide them with a great deal of assurance.

[Earl Howe]

My Lords, I am pleased to conclude what has been a very good and constructive debate. I am extremely grateful to the noble Lord, Lord Patel of Bradford, for raising these important issues, both now and in Committee. As he stated, since his original Amendment 46 was introduced in Committee, we have worked together on this alternative amendment. While this has to some extent been a joint venture, all credit for the inspiration behind it must go to the noble Lord—along with the noble Lord, Lord Noon, whose strong commitment to the charitable sector is well known.

I can add little more to what the noble Lord has said, but it might be helpful to clarify a small number of points. First, I reassure the House that the Government are committed to a fair playing field for all providers of NHS services. We are particularly keen for voluntary sector organisations and social enterprises of all types and sizes to be involved. These providers are often among the most innovative and can offer highly personalised and bespoke services that meet the needs of local people. We understand that it is not just charities but the full range of voluntary sector providers—mutuals, co-operatives and social enterprises—that noble Lords are keen to see delivering NHS services. The new amendment enables a fair, transparent and impartial consideration of the issues, addressing all providers and possible means of responding to their concerns. I can confirm that the full intention is to look at how existing barriers can be removed, not to create new obstacles.

Secondly, as noble Lords are aware, a variety of barriers affect different providers. This includes not only payment of taxation but also access to and the cost of capital, the difficulty of securing appropriate insurance and indemnity, and the difficulty of bidding due to the scale or scope of contracts. The amendment therefore relates to a review of the full range of issues that affect the ability of providers or potential providers to deliver services for the NHS. I am sure noble Lords will agree that the potential is truly enormous.

We are clear that this is an important issue, which is why we want the report to be statutory and therefore accountable to Parliament and produced within 12 months of Royal Assent. Equally, it is crucial that the duty for the Secretary of State to keep these matters under review is in the Bill.

I can also assure noble Lords that the preparation of the report will involve full engagement with providers from all sectors, commissioners, and other stakeholders, such as Members of this House, to ensure that the full range of issues are considered and each of the concerns addressed. In particular, it will ensure that concerns around treatment for VAT of supplies of healthcare services or associated goods to the NHS by charities, including hospices, are considered. In response to the specific question of the noble Lord, I can confirm we would not see this review as in any way being slanted towards giving private sector firms a ‘leg up’.

This review will look at the barriers to achieving a fair playing field, and recommend actions to be taken to address them. We are already well aware that a number of the most deep-seated barriers affect voluntary sector providers, not those from the private sector. While I would not want to prejudge the result of the review, I fully expect that it will put forward a number of actions which could be taken to remove such barriers, thereby better enabling third sector providers to compete fairly with other providers of NHS services. I hope this reassures the noble Lord that, while I think we should look across all providers, it is our view that barriers facing voluntary sector providers are greater than those facing the private sector and we expect the review to focus accordingly on those.

I turn to the separate but related issue raised by my noble friend Lord Newby. We have also listened to the matters raised in other debates during this Bill and during the passage of the Public Services (Social Value) Bill, about the need to take social value into consideration in public sector procurement more generally. The Government agree that a wide-angle lens on the extended social, economic and environmental benefits when conducting procurement exercises can only be helpful. Today I am going further and put on the public record that the Secretary of State for Health is committing that the requirements in the public services Bill will be fully applied in relation to commissioning of NHS services through the procurement guidance that the board will produce on this. These were issues that were raised very compellingly by the noble Lord, Lord Mawson, and I pay tribute to him for his powerful and consistent advocacy on this theme.

I hope very much that your Lordships will find the amendment of the noble Lord, Lord Patel of Bradford, agreeable and I will be happy to support it.

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Moved by

[Baroness Finlay of Llandaff]

8: Clause 26, page 39, line 24, at end insert—
“( ) the provision of integrated urgent and emergency care at all times.”

[Baroness Finlay of Llandaff]

I am grateful to the Minister for meeting me with the President and Vice President of the College of Emergency Medicine and for listening so attentively to the concerns raised. This amendment comes from those discussions and aims to resolve the potential lacuna around the commissioning and the provision of unscheduled urgent and emergency care at all times of day and night.

Emergency medicine departments—commonly known as A&E—see 15 million patients a year, of whom about a quarter are children. About 7.5 million patients arriving in A&E are not ambulant. Typically one-third of these on a stretcher need to be admitted, most frequently into an acute medical bed. The extent of seriously ill and injured attendees is illustrated by the fact that one in 50 will need high levels of care. A quarter of all intensive care admissions come through A&E and seriously ill patients go straight to coronary care and high dependency units from the resuscitation room in the emergency department.

The full spectrum of integrated services has to involve acute medicine, acute surgery and orthopaedics, paediatrics, obstetrics and gynaecology and is crucially underpinned by critical care and anaesthesia.

These very seriously ill patients need integrated services along the whole care pathway; care cannot be broken up. The full spectrum of back-up services with radiology and laboratory services needs to be there 24/7. The best outcomes—and we were talking just now about patient outcomes—for trauma and stroke victims are absolutely reliant on immediate cross-sectional imaging, ideally co-located in the emergency department.

There is a need for closer integration and improvement of the services needed to care for emergency department patients. For example, those with mental health problems, both acute suicidal ideation and acute psychosis, and those with drug and alcohol problems, need a comprehensive integrated psychiatry service, as they are a very vulnerable group. Improving primary care, both out of hours and alongside emergency departments, is essential if departments are to deliver the best care and not be overwhelmed. This will require close collaboration, integration and accurately informed commissioning.

Emergency departments are the 24/7 final safety net for all other services in the healthcare system and they are the last open-access point of call. Escalation of a problem, failure in community care and inadequate out-of-hours primary care support all result in urgent presentation out of hours. Such patients often arrive at night, are unstable clinically and cannot be sent home again, as they are alone or unable to monitor the condition reliably. These 7 per cent to 8 per cent of attendees need to be observed for up to 24 hours in a clinical decision unit, where there is twice daily consultant input, either until they are stable enough to be sent home, or until deterioration indicates admission and ongoing management.

Emergency departments are busy places, providing 24/7 care, looking after patients with wide-ranging needs from resuscitation to reassurance, and interacting with many specialties to ensure the best care. The seriously ill initially need the close interaction of typically three to four specialties; any fragmentation threatens the quality of care.

Commissioning of services in emergency care is optimised by direct and close working between those specialists responsible for delivery and the local commissioners. Given the size and complexity of urgent and emergency care, this should mandate such a specialist on the local commissioning board.

The challenge to us with this Bill is to ensure that commissioning processes recognise that patient choice in emergency care is inappropriate, as every patient needs access to a quality service that is fully integrated with pre-hospital services such as out-of-hours primary care and ambulance services, and with all the back-up and specialist services that patients are moved to for ongoing management.

The national Commissioning Board must work very closely with the College of Emergency Medicine to ensure that commissioning guidance drives up the standards of weaker departments, that the integration of services is included in the commissioning and that the urgent and emergency service for a population has the full skill set to deal with the full range of undifferentiated clinical problems that arrive at the only open access point of care. It is key to local commissioning that specialists in urgent and emergency care are directly involved. Without that, we will replicate Mid Staffordshire, but it may not be evident until unnecessarily large numbers of lives are lost. I beg to move.

[Baroness Hollins]

My Lords, given the concerns among the medical profession which are still evident, I ask the noble Earl for reassurance that, for those services where commissioning is appropriate, competition will always be on the basis of quality, not price, and that providers will not be able to cherry-pick lucrative parts of the care pathway to the detriment of vulnerable patients, such as people with learning disability or severe mental illness—people that I am particularly concerned about as a psychiatrist. The health and well-being of these patients depends on the effective delivery and co-ordination of complex care pathways.

According to the Guardian, NHS Devon and Devon County Council have shortlisted bids to provide front-line services for children across the county, including some of the most sensitive care for highly vulnerable children and families, such as child protection, treatment for mentally ill children and adolescents, therapy and respite care for those with disabilities, health visiting, palliative nursing for dying children, and so on. On the shortlist for the £130 million three-year NHS contract are two private profit-making companies as well as the Devon Partnership NHS Trust, which has been bidding along with Barnardo’s and other local charities.

The contract will apparently be awarded, according to the criteria, to the most economically advantageous bid, which appears to be possible under current commissioning arrangements. I seek reassurance from the Minister that the new safeguards in the Bill also prevent such commissioning decisions risking the perceived risks raised by my noble friend with respect to the commissioning of integrated care pathways in emergency care. I am referring not just to the emergency care part of the pathway but to the whole care pathway, which inevitably requires stable working relationships across organisational boundaries.

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[Earl Howe]

I reassure my noble friend that there will be no shortage of advice available to CCGs once they are up and running, not only from the NHS Commissioning Board centrally—she will know that a programme of work is in hand on the part of NICE to produce quality standards that will underpin the commissioning guidance—but also from the clinical senates, which will fall under the wing of the board. We envisage that those senates will be a resource on which clinical commissioning groups can draw, not least in the area of less common conditions. We are very conscious that the quality of commissioning needs to be improved in many areas, and this is our answer to that. My noble friend has put her finger on an issue that is of central importance if the new duty to improve quality is to become a reality across the system.

Noble Lords will wish to note that the interpretation section of the NHS Act 2006 states that illness includes any disorder or disability of the mind,

“and any injury or disability requiring medical or dental treatment or nursing”.

We are absolutely clear that this covers cases relating both to physical and mental health requiring urgent and emergency care. This definition will apply to the duty to obtain advice in the new Section 14W. I hope I have been able to reassure the noble Baroness that CCGs will absolutely be expected to ensure that they obtain appropriate advice in order effectively to commission emergency and urgent care services; that they will be held to account for doing so; and that the current duty is deliberately drafted to ensure that it covers the full spectrum of services which CCGs will be expected to commission, including emergency and urgent care services. On this basis, I hope that she feels content to withdraw her amendment. I would, however, like to take this opportunity to thank the noble Baroness for our recent conversations on this topic, along with the College of Emergency Medicine.

My right honourable friend the Secretary of State and I both recently met with the college and found these meetings useful in exploring how we can ensure that we make the most of the opportunities presented by the new system in relation to improving the quality of emergency care. We look forward to constructive discussions with the college and with the noble Baroness as we move on to implementing the new arrangements.

[Baroness Finlay of Llandaff]

I am most grateful to the Minister for that full reply and for his recognition of the contribution that the new College of Emergency Medicine is making to the urgent care of people who are often in extremis. It is literally the life-saving service for many people every day across the country. I am also grateful for his assurance that the performance assessment of commissioners will include how they seek advice from the appropriate people who really know what they are doing, and that integration is assured. The importance of 24/7 recognition has also been brought out in his answer. I am sure that the College of Emergency Medicine will be delighted with the assurances that he has given, as will A&E consultants up and down the country. I am most grateful to him and beg leave to withdraw the amendment.

Amendment 8 withdrawn.

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[Lord Patel of Bradford]

My Lords, I am obviously very happy to add my name to the amendments tabled by the Minister in respect of Section 117 of the Mental Health Act, pertaining to after-care services. I was grateful to the noble Earl and to the noble Baroness, Lady Northover, for not opposing my amendment on this issue. It somewhat caught me off-guard, but I was pleased with that. I was particularly pleased that we have continued to work together to add these technical adjustments today. To remind noble Lords: Section 117 requires primary care trusts and local authority social services to work jointly in providing vital after-care services. These types of services can vary a great deal, including visits from the community psychiatric nurse, attending a day-care centre, administering medication, providing counselling and advice, and most importantly supporting accommodation within the community.

Section 117 provides crucial protection for vulnerable people because it ensures that their local primary care trusts and local authority provider supply that after-care package in an appropriate way, including sorting out the funding on an agreed basis. This means that these essential services cannot be taken away until both the PCT and local authority, in consultation with the patient and their carers or the voluntary sector—the people who are supporting some of these patients—are satisfied that the patient no longer needs their services. The original concern that the noble Lord, Lord Adebowale, and I had was that Section 117 after-care was being unnecessarily diluted, as a joint duty to provide after-care was being changed. To all intents and purposes, Section 117 would have been treated as a duty under Section 3 of the NHS Act, and that would potentially have opened up the possibility of charging.

The noble Earl has laid out the protections set out in additional amendments and they are to be welcomed. They go beyond my original concerns and address a number of important issues. I will not list those listed by the noble Earl, but I was happy about the part of Section 117 arrangements that fall under the remit of the Care Quality Commission, ensuring that the regulator and monitor of services should look across patient pathways. I am particularly pleased about the amendment that ensures that Section 117 services are eligible for direct payments. This is a positive step, because it means that people detained under the Mental Health Act can take more control of the services that they receive after their release.

This is not only the right thing to do, as it will empower people who have been affected by being detained, but it is also likely to help to avoid readmissions by ensuring that people are more satisfied and engaged with services. We still have a long way to go to improve services for people detained under the Mental Health Act; in particular the experiences and outcomes when they return to the communities where they live. However, these amendments are a definite move in the right direction and I must congratulate the Minister for having the foresight and good grace to bring these amendments before the House. I wholeheartedly support them.

[Baroness Finlay of Llandaff]

My Lords, in this group of amendments there are two that relate to Wales. On behalf of the NHS in Wales, I am most grateful for the clarification. Could the Minister confirm that the Public Services Ombudsman would deal with complaints by any provider who is providing services for and on behalf of the NHS, irrespective of whether that is an NHS provider or a non-NHS provider? It would be helpful to have that clarification.

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[Lord Cotter]

My Lords, I thank the noble Baroness, Lady Emerton, for introducing this amendment, which I hope the Minister will agree gives an opportunity for a very important issue to be aired. Many noble Lords have aired it in the past; indeed, I raised it on the very first day of the Bill. It is an area that remains of concern, and I have been pleased to hear from the Ministers that they are well aware of this. I recollect at the beginning of the Bill speaking to a nurse who, with an air of concern in her voice, said that when she asked assistants to carry out work the responsibility remained with her if that work was not carried out correctly. I welcome this opportunity for the Minister I hope to give a very strong response to indicate the Bill will cover this issue. As the noble Lord, Lord Patel, said, we are talking about 450,000 healthcare assistants: many people of varying abilities and knowledge.

I will say no more except to thank the noble Baroness for her amendment and, in anticipation, to thank the Minister for his response, which I hope will be robust and clear as to what we are going to do to address this concern.

[Baroness Finlay of Llandaff]

My noble friend Lady Emerton, in tabling this amendment, has come up with something very sophisticated and really rather clever. By requiring education, she will ensure that the next group has its standards driven up. People enter into a caring group and learn from others around them; the problem is that at the moment they are learning bad practice as well as, hopefully, learning good practice.

Making sure that these are assured training programmes is eminently sensible. Modern educational techniques using e-learning, DVDs and other ways of training mean that you do not have to take people away from the job and put them in college. They could be given provisional registration while they worked through some of these training programmes. Modern ways of teaching also allow you to train those with very low literacy skills. It is worth remembering that some of the very high-standard care assistants in the system providing care in people’s homes often have low levels of literacy, so they need to be taught using modern techniques. This will allow that to happen. As for tracking their attendance, with electronic records it becomes quite easy to monitor what they turned up for and how they performed and to assess them in the tasks that need to be undertaken.

This amendment seems to meet all the criticisms that the Government laid at the door of previous amendments. I hope that it will get a better reception than its predecessors.

[Baroness Cumberlege]

As a fellow of the Royal College of Nursing and the Royal College of Midwives, I very much regret that I have been unable to take part in the previous debates initiated by the noble Baroness, Lady Emerton. I regret that for many reasons, not least because I had the privilege of introducing the noble Baroness into your Lordships’ House, and what a good thing that was. The noble Baroness is a truly remarkable person. I am not at all surprised that she has crafted this very clever amendment, as the noble Baroness, Lady Finlay, said. I know that the noble Baroness, Lady Emerton, recognises that statutory regulation will not always prevent abuse. Indeed, the chief executive of the Council for Healthcare Regulatory Excellence told your Lordships at a seminar that the regulator is never in the room when abuse occurs.

I understand that the noble Baroness is calling not for regulation but for a voluntary register assured by the CHRE. People will get admittance to the register provided they have attended an assured training programme. The training programme is to be mandatory for all new healthcare support workers from 1 April 2013. I understand that that is where the Government have something of a problem because of the numbers and costs involved, as the noble Lord, Lord Patel, said.

However, is it not right that good employers should pay the registration fee and have some element of discrimination in deciding who they recruit to a job? The question asked by the noble Lord, Lord MacKenzie, was very apt. My noble friend’s answer to it will be very interesting. If individual support workers have to pay the registration fee themselves, it could be seen as a tax on work for people mostly on the minimum wage, and there is an issue about that. It will probably increase the cost of employment, and this is a market in which retail, part-time working and motherhood compete, so we have to be careful.

On Report, the noble Lords, Lord Turnberg and Lord MacKenzie of Culkein, referred to the history of state enrolled nurses. Unlike registered nurses, they were said to be used and abused. I remember that because I served with the noble Baroness, Lady Emerton, on the United Kingdom Central Council for Nursing, Midwifery and Health Visiting where, over time, we phased out state enrolled nurses. They have been replaced to some extent by healthcare support workers, and we are facing almost the same issues again.

In the previous debate, my noble friend Lord Newton and the noble Lord, Lord Hunt of Kings Heath, were very kind to mention my role in nurse prescribing. I am delighted to see the noble Baroness, Lady Jay, in her place. I remember the day when we rejoiced in the fact that nurse prescribing had gone another step on the way. It took me 26 years to get that to happen—a very long time indeed—and we are not quite there yet. It seemed to me that nurse prescribing was extremely obvious. In the light of today’s debate on risk and risk registers, it probably would have been seen as a very high risk, but it has not proved to be so—but we are not there yet. I am very much hoping that, with the help of my noble friend Lord Henley and the Home Office, the last piece of this jigsaw will be put into place.

We started very small with nurse prescribing. We started with Bolton. The whole of Bolton took on nurse prescribing. In some parts of the country, the fight was enormous. GPs saw prescribing as their territory, and they did not want nurses to step into it. We managed to achieve it, and one of my real worries is that if we have support workers who, as the noble Baroness told us in the previous debate, are administering some very serious drugs, the work that I have done will be diminished because people will then think that nurse prescribing can be done by anybody with sufficient training, and that is dangerous. It is wrong for patients, and it is wrong for support workers who have perhaps been told that they have to administer these drugs.

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[Lord Dubs]

My Lords, I shall speak very briefly as the House wants to move to a vote. I support this amendment and would like to pay a tribute to my noble friend Lady Thornton for the work that she and her team have put into this. Without the backing of a government department, they have performed heroically and very effectively.

I want to give only one personal reminiscence. The National Health Service started on 5 July 1948. I was a child in hospital on that today; I was quite ill in Stockport Royal Infirmary. The consultant and his team came; in those days one either had to stand to attention or lie to attention when the consultant came with the matron and the team of junior doctors. Momentarily, he stopped at the foot of my bed and I said, “Are we going to celebrate? Are we having a party?”. He asked, “What are you talking about”? I was the only child in the ward, so it was cheeky of me but I said, “Well, the hospital is ours today—isn’t it wonderful?”. He walked on without saying anything, but it was a momentous day and I never thought that, 64 years later, I would be here at Westminster and lamenting what has happened to our beloved National Health Service. Let me conclude by quoting Nye Bevan, who said,

“The NHS will last as long as there are folk … with the faith to fight for it”.

[Baroness Finlay of Llandaff]

My Lords, it is with a very heavy heart that I feel I must stand up and record that many of the voices outside, who are very scared about this Bill and what it means, are people who are of no particular political persuasion. Yet they are worried about the problem of lack of financial transparency, about the number of private healthcare companies incorporated in offshore jurisdictions—which they see may evade taxes of various types—and about the commissioning process. They are also concerned that the use of public money in the healthcare system will slowly be obscured like a great iceberg wrapped in fog. They will work to deliver whatever is needed for the patients in front of them. The vast majority of them stand to gain nothing by this Bill passing, but to gain nothing either if it does not pass. They want to improve the standards for their patients, and indeed they argue for change.

The noble Earl has worked tirelessly and has confidence across the whole House. Everybody, however much they have been concerned about this Bill, owes him an enormous debt of gratitude for the way that he has listened to every single one of us, at all times of the day and night, and weekends and so on. But we should not let this Bill pass without recognising the enormous concerns there are outside this House among those who will be delivering healthcare, now and into the future, in whatever form it takes.

[Lord Greaves]

My Lords, this has been an extraordinary parliamentary process. When this Bill was introduced, I said at Second Reading that it was a bad Bill. It was a bad Bill when it came here; there has been a growing tide of opposition to it and concern throughout the process while it was in the Commons and the Lords. There was the pause in the Commons and the Future Forum, which resulted in a large number of changes, and at that time Nick Clegg said that no Bill is better than a bad Bill. What we all individually have to do now—I speak very much for myself and not my party—is to assess whether it has now moved over from being a bad Bill to perhaps being, as Nick Clegg said last week, a much better Bill.

There is no doubt at all that on a spectrum of bad to good, it has shifted very considerably. It shifted in the Commons; it shifted far more here in the House of Lords. I believe that the process in your Lordships’ House has been the House of Lords at its best. This House can be proud of the work that it has done throughout the gruelling Committee stage, then during Report and again today. I regret that I could not take a detailed part in much of that, because I was then spending time as a patient of the NHS, but I have been watching it all and I believe that the work this House has done has been absolutely superb.

If I can make a party political point here for a moment, the work that our team has done on the Bill, led by my noble friend Lady Jolly with all my other noble friends who have taken part, has contributed well. I refer not only to the Liberal Democrats but to Cross Benchers and everybody around the House. Tribute has been paid to the Minister. I pay particular tribute as a Liberal Democrat to our person on the ministerial team, my noble friend Lady Northover, who from our point of view has played a very important part by being a link into the Government and getting many of the changes which have taken place.

It is about not just the changes to the Bill but the implementation—the work that starts after this Bill has been passed, as no doubt it will be today. A huge number of ministerial assurances have been made, which may or may not be put upon people’s bedroom walls as the noble Baroness, Lady Cumberlege, wants to do with hers. Nevertheless, this is a Bill which has had more outside scrutiny and involvement from people out there, as far as the House of Lords is concerned, than any other Bill I can remember in 12 years in your Lordships’ House. That will continue with the implementation, and it is absolutely crucial how the Government now implement this Bill. Will it be gung-ho privatisation, which is what people were very frightened of when the Bill was first introduced and many are still frightened about, or will it be implemented in a cautious and careful way to allow the health service to breathe and to cope with the changes? This will be absolutely crucial, and we will know the answer to that in a year or two’s time.

The noble Earl, Lord Howe, said that we have had debates of unparalleled length and scope, and that is true. However, as I have just said, the public interest and lobbying on this from outside has been unprecedented. One of the lessons that we all have to learn is that we—whether the House of Lords, members of the Government or our party—have not coped with that very well. I do not think that the Opposition coped with it terribly well either because, even this morning, I was getting e-mails telling me what the Bill did, some of which was absolutely untrue. They were still telling me that the Bill removes the duty on the Secretary of State to provide health services. We are still getting that, and the amount of education or information which goes out from debates within this Chamber to the outside world is pretty poor.

Several people have said, “We have been trying to follow this Bill. We have been trying to follow your Marshalled Lists, having discovered where to find them on the internet. We have been trying to follow the parliament channel, and we haven’t understood a word of it. It is interesting, but we can’t understand it”. I have to tell them that that applies to quite a lot of Members of your Lordships’ House while the Bill is going through.

Health and Social Care Bill

Baroness Finlay of Llandaff Excerpts

Tuesday 13th March 2012 Lords Chamber

[Lord Kakkar]

My Lords, my noble friend Lady Emerton moves a very important amendment that comes to the very heart of this Bill. The purpose of this Health and Social Care Bill is to ensure ultimately that quality is driven throughout the healthcare system and that standards are driven to the very highest levels. It seems counterintuitive that such an important group of healthcare professionals as healthcare support workers is not subject to any mandatory training or mandatory continuing professional development or, indeed, any form of statutory regulation. I suspect that many of our fellow citizens would find that a very peculiar situation, which they would not automatically recognise, when going into the hospital environment.

I would like to ask the Minister two questions, specifically with regard to proposals for ensuring strong voluntary registration of this particular group and members of other disciplines who are responsible for the provision of healthcare. The first relates to the role that the Secretary of State might play with regard to standing rules and providing guidance to commissioning groups on the action they should take and the requirements they should make of qualified providers. Will it be the case that commissioners will be in a position to demand of a qualified provider that all of their healthcare staff, be it doctors, nurses, or other healthcare professionals, are members of some form of registered regulatory scheme, be it a regulatory scheme for certain healthcare professionals or voluntary schemes for others? Will it therefore be possible for clinical commissioning groups in the future to refuse to commission from a potential qualified provider if that provider was unable to demonstrate that all the staff it employed were registered appropriately?

My second concern relates to a plurality of registers for a single discipline of healthcare worker. That seems counterintuitive: surely, if there is going to be a voluntary register for healthcare support workers, there should be a single register, not multiple ones, because multiple registers would provide less confidence to the general public. The general public should know that there is a single regulatory body and that that body has responsibilities with regard to setting certain standards, with regard to ensuring that there is appropriate training and with regard to the possibility of receiving complaints and disbarring individuals from working in that professional area.

[Baroness Finlay of Llandaff]

My Lords, I agree with those noble Lords who have said that this is a critical amendment. I do not understand how more than one register will ensure a uniform standard across the whole of the NHS. There is a real problem at the moment with healthcare assistants being used as substitutes, rather than having “delegated” tasks, as in the wording of this amendment.

I am concerned about relying overly on the employers themselves. We have seen in the nursing home sector that this has failed. Where there has been substandard care, nursing homes have not got rid of those staff about whom they have had questions and those who have been commissioning services from those areas have not been able even to close down nursing homes because they often have not known where else they could move the residents of that area. In the mainstream hospital sector, it is down to an individual nurse to decide what she delegates to a healthcare assistant. The beauty of having a statutory register is that there will be clear expectations of what healthcare assistants can and cannot do and the level to which they should be trained, with clarity of roles and values, which I believe will also increase their own self esteem, and their own sense of occasional involvement in their role in clinical care. It has been suggested that it would be in the interests of unions to have such a statutory register. I fear that there has even been confusion in the minds of some people between the role of a trade union and the role of a regulatory body. It will be very important that a register is completely separate to any type of union activity. When the Minister comes to answer, I would be grateful if he could explain how the standards to be set by a voluntary registration process will be overseen and monitored, and what levers the Government would have to improve and extend the criteria required by a voluntary register of those who are registered on it, in order to increase standards.

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[Baroness Pitkeathley]

It is a great pleasure to follow the noble Baroness, Lady Howarth, who I deservedly call my noble friend. I very much hope that the Minister will give her the assurances that she seeks. With regard to my noble friend’s amendments on the General Social Care Council, I take the view that we are where we are, however much I wished that different decisions had been taken. Noble Lords will appreciate that, as the first chair of the General Social Care Council, I would say that, wouldn’t I?

However, I take this opportunity to pay tribute to the councils and staff of both the General Social Care Council and the Health Professions Council for the professional and mature way that they have approached the difficult situations in which they found themselves. Their behaviour has been an example to us all and particularly, as far as concerns the GSCC, the fact that high staff morale has been maintained throughout this process is nothing short of a miracle and a great tribute to its leadership.

I agree with other Lords who have called the social work profession fragile. It needs to be promoted and defended if we are to maintain and extend the recruitment that the noble Baroness, Lady Howarth, has reminded us is so important for those people who do the difficult work in our society—which is rarely recognised until the tabloid press attacks it. I must draw your Lordships’ attention to the College of Social Work, which has just been established, which will have the promotion and defence of this fragile profession as part of its remit. It has had a difficult start, as is well known, but I believe that it has the potential to promote and support the profession to which we are all so indebted.

[Baroness Finlay of Llandaff]

My Lords, I have my name to two amendments in this group. They do not affect social work and therefore I have waited to intervene until the debate on social work had been completed.

I want to discuss two groups: clinical perfusion scientists and clinical physiologists. The clinical perfusion scientists are responsible for the single most invasive tool used in surgery today and are routinely responsible for the administration of potentially fatal controlled drugs. The numbers are small—there are only 350 clinical perfusionists—and they operate in a regulatory vacuum; they are the only non-regulated members of the cardiac surgical team. Yet their management routinely involves significant life-threatening risks to patients daily. Because they are not a regulated profession, in July 2009 the Department of Health produced a good practice guide to clinical perfusion in response to the Gritten report of 2005. It states that the Government fully recognise the need for clinical perfusionists to be regulated by statute and it draws attention to the fact that the document is an interim measure until they are subject to statutory regulation. Indeed, the document states that this has implications in law for their role in working with medicines.

Since the Gritten report in 2005, about a quarter of a million cardiac patients have had their hearts stopped for surgery by perfusionists, who use highly toxic substances and blood products. They feel that they need statutory regulation so that they can be supplementary prescribers, as there is a questionable legality at the moment around drug administration. They are in a unique position. It is this supplementary prescriber role that causes them much concern, because they would like to be assured that what they are doing falls fully within the Medicines Act. I hope that when the Minister responds he will be able to explain quite clearly precisely how, if they are not subject to a statutory register, everything they do complies fully with the Medicines Act.

As for assessing the risk and the need for a profession to be registered, the review of the Professions Supplementary to Medicines Act was debated in another place in 1999. The key test stated in that review is,

“whether there is the potential for harm arising either from invasive procedures or application of unsupervised judgement made by the professional which can substantially impact on patient/client health or welfare”.

In response to that test and in relation to clinical perfusionists, the right honourable Andrew Lansley, said:

“It seems to me that perfusionists entirely match that criterion”.

It seems odd, having had that debate and that being on the record, that clinical perfusionists are still trying desperately to argue that they should be subject to statutory regulation and feel that they are failing to achieve that.

The other group that I want to discuss is clinical physiologists. I suggest again that they fall within that criterion. They are a very skilled group of people who are often alone with patients, including children, in situations in which they are responsible for conducting sometimes complex investigations and interacting closely with whoever is the patient in front of them. For the past 10 years, they have had a voluntary register, which they feel is flawed and demonstrates the need for statutory regulation. As a group they will not gain either in status or financially by having a statutory register. They want it because they are concerned about patient safety. Their view is that there is currently no incentive to register; they are in short supply anyway and can get another job without too much difficulty.

As a group, they sent me an individual case study, which I found quite worrying. I will try to summarise for the House briefly, because this is Report. They cited a clinical physiologist who had been working unsupervised in a room alone with children and working one to one with them. Following a holiday to Amsterdam, he was found to be in possession of child pornography, prosecuted and placed on the sex offenders register. Among his papers, the police found that he was a clinical physiologist and alerted the appropriate group. They alerted the employers but discovered that even though he lost the job he was in, he was rapidly re-employed in another hospital, which they also alerted. They followed it up to find that he had changed his name and, under another name, again had sought employment. They are very concerned that this is one they know about but that there may be others they do not know about. The group does not see how its voluntary registration system gives patients and the public the protection that they ought to have.

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[Earl Howe]

I very much agree with my noble friend that we want to see a breaking down of silos, if I can put it that way, and a mutual respect and dependence appearing at commissioning level. I am not aware of any examples of clinical physiologists or perfusionists being involved in the commissioning of care. On the face of it, that seems unlikely, although not impossible; I would not rule it out. I take my noble friend’s point about our general wish to see a raising of quality not only in commissioning but also in the provision of care. It is a point well made.

[Baroness Finlay of Llandaff]

The Minister has spoken about assured voluntary registration being available now. He has said that the Government will monitor it and, if gaps are revealed, would then reconsider statutory registration. It strikes me, first, that we need to know what the criteria are that would trigger moving from an assured voluntary register to a statutory register and, secondly, that these professional groups are in a Catch-22 situation. They have been seeking statutory regulation to drive up and maintain high standards of clinical care. They have been doing all that they can to maintain high standards of clinical care. If they carry on being able to maintain those high standards, gaps will not be revealed. The only way that gaps might be revealed is, in fact, if they drop their standards. It seems like a Catch-22 situation, but I think that I have probably misheard the Minister.

[Earl Howe]

We are talking about controlling risk. The noble Baroness is right that the Government will retain an open mind about statutory regulation. I hope that that is clear. We have not closed the door to that by any means. However, clinical physiologists, for example, say that risks are apparent to them which some clinical physiologists pose to patients. We have never seen evidence of those risks. In the past, when the Health Professions Council made recommendations about regulation, it has not considered risks. However, we agree with the previous Administration that the extension of regulation should be based on risk. That is the key point. If it is shown that, notwithstanding everybody’s best efforts, assured voluntary registration has not been sufficient to protect patients then, of course, any responsible Government would wish to see a strengthening of the measures around registration.

I revert now to social workers, as I hope that I have covered the points raised. We can most effectively bring improvements to the regulation of social workers in England by transferring their regulation to the Health Professions Council. To answer the noble Lord, Lord Hunt, it may well be that the GSCC could have delivered improvements in the way that social workers are regulated. However, reforming the GSCC’s procedures to ensure that they were fit for purpose would have taken time and, I can tell the noble Lord, would have required very considerable resources. The cost involved, among other considerations, would have been prohibitive.

The Health Professions Council is an established and effective regulator. The proposed transfer of functions to it would bring a number of benefits to the regulation of social workers in England, and I have outlined those. The name “Health and Care Professions Council” was decided upon with reference to the views of the Social Work Regulation Oversight Group, of which both the chair of the Social Work Reform Board and the chief executive of the GSCC are members. As part of the process of renaming the Health Professions Council, the name “Health and Social Care Professions Council” was considered. However, following research commissioned by the Health Professions Council, it was decided that the name “Health and Care Professions Council” most effectively reflected the new remit of the council in a way that was clear to the public, registrants and employers, while maintaining name recognition for service users, employers and registrants. However, to ensure even further clarity for the public, the Health Professions Council’s new name will be supported by a strapline: “Regulating health, psychological and social work professionals”, so it is not as though “social work” has been omitted entirely from the heading of this organisation.

Health and Social Care Bill

Baroness Finlay of Llandaff Excerpts

Tuesday 13th March 2012 Lords Chamber

[Lord Warner]

My Lords, I support my noble friend’s amendment. As a Minister, I, too, had responsibility for the NPSA and I was responsible when we introduced the reporting system. It is easy to forget how difficult it was to secure agreement across the NHS to that reporting system. There was a great deal of nervousness about it and it has certainly taken time to build up the confidence, across the country, that ensures that most service providers are now engaged with reporting these incidents. If we put that reporting system under a powerful body that is responsible for commissioning, there is a real danger about maintaining the support for the level of reporting that we have achieved. There is a risk that, without a few more safeguards in the arrangements, we may see a dropping off in the reporting of those incidents. Providers will be nervous about how commissioners will interpret the reporting of those incidents. That is the nub of the issue. I think we have a real problem about how we can carry on building on the good work done by the NPSA on that reporting system and ensuring that we continue to give confidence to the NHS to report these incidents in the service of the greater good. I am interested to hear what the Minister has to say about protecting the gains that we have made so far in this area.

[Baroness Finlay of Llandaff]

My Lords, I speak in support of what has been said by the noble Lord, Lord Warner. There is real anxiety that people will be frightened to admit to and report errors, if they feel that that could threaten, in any way, the contracting of the service that they are working in. Who in the new system will be responsible for rolling out training that has come from the cataloguing and analysis of problems, and how will the lessons learnt in devolved nations be fed into the system for the UK as a whole. Indeed, how will lessons learnt in England be fed out to the devolved nations?

[Lord Patel]

My Lords, I speak as somebody who has been involved with the National Patient Safety Agency for longer than the noble Lord, Lord Warner, as a Minister, or the noble Lord, Lord Hunt, as its chairman, as I chaired it for four years. What is important is that the National Patient Safety Agency, as it is currently, has been unable to be effective. It has not been effective because it is not mandatory to adopt, implement or use the learning produced from the reports it receives from all healthcare providers on systems failures that may cause harm to patients. I hope that the Minister will reassure us that whatever the new arrangements are, the learning produced from systems failures will be implemented, or will be expected to be implemented.

I do not know whether the Commissioning Board is the ideal place for it—I understand that it is taking over the group that looked after the analysis of the reports. Therefore, it will be its task to disseminate all the learning that comes from it. The actual collection of information or data will be outsourced on a contractual basis to Imperial College. Perhaps the Minister will comment on that. The important issues are that the information on systems failure is collected and that the lessons learnt are available to all those who commission and provide healthcare. They must be implemented.

Health and Social Care Bill

Baroness Finlay of Llandaff Excerpts

Thursday 8th March 2012 Lords Chamber

[Lord Marks of Henley-on-Thames]

My Lords, I believe that I have answered the question. I accept that it is important. We believe that the provisions that are now to be in the Bill, given the government amendments and an assurance that I hope to receive from the Government, will cover the position.

I was explaining that, when we tabled Amendment 220B, we believed that there should also be an individual arrangement for agreement with Monitor so that all considerations could be balanced when considering any substantial increase in private income. However, in discussions, the Government agreed to respond to amendments that Liberal Democrat Peers tabled in Committee on the involvement of governors. Those amendments that the Government now pursue—Amendments 220BZA and 220BZB—represent that response. They ensure that any increase of more than 5 per cent would have to be approved by the governors voting, as I say, by a majority. The governors have to be satisfied that the plans put forward by the foundation trusts for attracting private income would not interfere with the treatment or welfare of NHS patients. I suggest that that scheme represents a devolved, local scheme that is consonant with the structures in the Bill and the desire to keep local decision-making at a local level.

There may still be concern that the governors of individual foundation trusts will primarily have in mind the concerns of their own foundation trusts. However, under amendments that have been agreed, Monitor is now to have continuing powers of supervision and intervention over foundation trusts. If we are assured that in every case where the governors approve a proposal for an increase in private income in excess of 5 per cent Monitor will consider whether the interests of NHS patients as a whole are to be safeguarded, and if it is not so satisfied it would intervene, I suggest that that assurance will meet that concern. We will not move Amendment 220B but we seek that assurance from my noble friend the Minister.

[Baroness Finlay of Llandaff]

My Lords, I have an amendment in this group. I recognise that it is badly worded and simplistic and I shall not be moving it. However, I would like to address other amendments in this group which are far better worded than mine. The adversarial debate that we have had has been unconstructive in view of the importance of the amendments we are discussing. Amendment 220C has the great advantage of involving all stakeholders. Some people will be affected when the balance of provision within a foundation trust changes. I am concerned about the amendment to which the noble Lord, Lord Marks, has just spoken because, as he admitted, the concerns of the foundation trust governors may be paramount as it is in their interests to look after their foundation trust and therefore the interests of others will be secondary in their minds. However, it is important to know what the local health and well-being board thinks about a proposed change, and that the clinical commissioning groups are involved and consulted on what could effectively be a change of provision.

I make it clear that I am not opposed to foundation trusts having private patient business. Indeed, I can see that it would be beneficial to all patients if we were to revert to the position that applied 30 years ago when these bodies were completely integrated. If highly specialised consultants provide outpatient and inpatient services to private patients on one set of premises in an area, they are on hand when things go wrong or an opinion is needed on a patient who has come in as an NHS patient. By driving some private provision outside that hospital campus, those consultants may be unavailable when they are needed because they are on premises down the road or they are on the end of a phone and cannot run down the corridor, see the patient and plan what is to happen strategically with the rest of the team and then monitor it.

An issue that has been resolved is the situation where a UK patient receives private treatment but something goes wrong and they need to go into intensive care, a renal unit or some other unit provided by the NHS. That previous episode of care has finished, they are now in a new episode of severe critical care and they go in as an NHS patient. That integration is therefore solved. But I hope that the Government will look kindly on Amendment 220C, despite some of the tone of the debate, because it ensures that all stakeholders are involved in the discussion. The change in provision is therefore planned and can happen smoothly and that decision is not taken on business grounds alone but can be for the benefit of the whole population that is being served.

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[Baroness Finlay of Llandaff]

My Lords, we have, I hope, threaded education and training through the Bill and established it as a core principle for all providers.

In support of the comments by the noble Lord, Lord Turnberg, it is essential to place on record that the vast majority of specialist training for all those specialties in secondary care occurs in those places that will have foundation trust status, if they do not have it already. That future investment in the specialist workforce to provide services is essential and there is merit in restating the importance of it.

[Baroness Wall of New Barnet]

My Lords, I also support the amendment. Adding to what the noble Baroness, Lady Finlay, has said, the House may be aware that trusts are now committed to quality accounts, certainly for clinical staff, and an integral part of those quality accounts is education and training. I would like to see it being widened beyond the clinical staff, because there are lots of staff in a hospital who need that constant education and training, to make sure that patient care overall is as good as we would all want it to be.

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[Lord Kakkar]

My Lords, I support the amendment moved by the noble Lord, Lord Phillips of Sudbury, to which I have added my name. I refer to Good Medical Practice, the document produced by the General Medical Council, which sets out the principles and values on which good medical practice is founded. Indeed, it is the document to which we as clinicians are obliged to practise. In so doing, I remind noble Lords of my own entry in the register of interests as a consultant surgeon at University College London Hospital NHS Foundation Trust, an institution that has a private healthcare facility that might avail itself of any change in the cap on private income.

In paragraph 9, Good Medical Practice makes important reference to decisions about access to medical care. It states very clearly that, as a clinician,

“you must give priority to the investigation and treatment of patients on the basis of clinical need, when such decisions are within your power. If inadequate resources, policies or systems prevent you from doing this, and patient safety is or may be seriously compromised, you must follow the guidance”,

elsewhere when raising your concerns. I support the amendment because it provides an important opportunity to place on hospital managements and healthcare systems in the National Health Service the same obligation that currently rests on clinicians: their absolute obligation to provide and take decisions about access to treatment on the basis of clinical need and priority.

It is not entirely clear that hospital managements have that same obligation. In promoting this amendment, one hopes that that obligation will be placed on hospital managements in such a way that in future, when there may be greater opportunity for income from outside the funding of the National Health Service—private income—into NHS institutions, no opportunity arises for pressure to be applied to clinicians. For instance, when there is limited access to operating lists or scanning facilities, and where two patients—one an NHS patient and the other a private patient—need to avail themselves of those facilities, the decision might be taken by the hospital management that preference be given to the private patient because it could provide further income for the NHS institution. When accessing facilities that are essential for clinical care, the same principle must always apply: the clinician uses their clinical judgment to determine on the basis of clinical need alone, rather than any other financial consideration for the institution, that the patient with the greatest clinical need at that particular moment is able to avail themselves of the necessary facilities. I hope that Her Majesty’s Government are able to ensure that that principle is enshrined or at least properly and effectively known so that there may be no misunderstanding in this matter in future.

[Baroness Finlay of Llandaff]

My Lords, I also have my name down on this amendment. I follow the same theme as my noble friend Lord Kakkar, who has just spoken. Good Medical Practice states:

“You must be honest and open in any … arrangements with patients”.

We have already discussed a duty of candour in relation to errors. There is also a requirement to give patients accurate information, as the noble Lord, Lord Phillips of Sudbury, has already said. Giving a patient information about what is available to them can entail informing them, for example, that other drugs are available but not currently funded by the NHS, or that clinical trials are available that they may wish to consider going into. You must answer the question, “Would I get treated quicker?”, honestly and with factual, correct information.

Of course, as has already been said, such stringent criteria do not apply to hospital managements. It would easy for them to see that there is something to be gained by increasing the private patient provision. I hope that this amendment encapsulates within it, in much more sophisticated wording, the spirit that I tried to capture in Amendment 220, which I withdrew. That spirit was to state that the provision should not be to the detriment of NHS patients. That is a fundamental principle that should go right the way through. I know that my wording was inadequate.

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[Earl Howe]

My Lords, before I address the amendments in the name of my noble friend, I would like to come back to some of the comments made by the noble Baroness, Lady Finlay. She mentioned one of the most pernicious myths about the Bill. The paper that she quotes is not just factually inaccurate on a large scale but is also, frankly, scaremongering. As she herself knows, the Bill does not extend current arrangements for charging; indeed, the Government have committed to introducing no new charges for healthcare during this Parliament. I felt that I had to make that abundantly clear. I know that the noble Baroness realises that that is the case but it is important for the world out there to understand what the Bill does and does not do.

I agree completely with the sentiments behind the amendment that my noble friend has tabled. Patients’ access to essential clinical care and treatment should be on the basis of clinical need, not their ability to pay. That has been a fundamental principle of the NHS since its inception, and we fully support that. I understand that there is some concern that private healthcare by NHS providers might represent a better deal for patients in need of essential treatment. However, I hope that I can convince my noble friend and other noble Lords that there are already adequate safeguards in place, because that is what I firmly believe.

First, I shall cover the issue from the perspective of clinicians—I shall move on to hospital management in a moment. Ethically and professionally, clinicians are required to treat all their patients to the same standard and should not discriminate in any way. It would be wrong to suggest that the vast majority who provide an excellent standard of care would not do so, and I am sure that my noble friend would never suggest that. The General Medical Council’s Good Medical Practice states that the overriding duties for doctors include making the care of patients a doctor’s first concern and never discriminating unfairly against patients or colleagues. The Government also have in place a robust system of regulation on the quality of services. The Bill strengthens that system and makes it more accountable.

Secondly, Good Medical Practice ensures equality of access. It requires all doctors to treat their patients on the basis of clinical priority and to the same standard. Therefore, if a doctor did not treat a patient on the basis of clinical priority or was treating a private patient to a better clinical service, they could be in breach of the principles set out by the GMC and could be putting their registration at risk. In addition, the terms and conditions of service in NHS consultants’ contracts make it clear they are responsible for ensuring that their private work,

“does not result in detriment of NHS patients or services”.

That principle was reiterated in the department’s guidance on NHS patients who wish to pay for additional private care alongside their NHS treatment, which was published by the previous Government following a review by Professor Sir Mike Richards in 2008. The guidance makes it very clear that patients who choose to pay for additional private treatment,

“should not be put at any advantage or disadvantage in relation to the NHS care they receive. They are entitled to NHS services on exactly the same basis of clinical need as any other patient”.

The NHS consultant contract also binds them into adhering to the principles set out in a code of conduct for private practice. These are recommended standards of practice for NHS consultants published by the department. This says that,

“the provision of services for private patients should not prejudice the interests of NHS patients or disrupt NHS services”,

and that,

“with the exception of emergency care, agreed NHS commitments should take precedence over private work”.

It is important to note the point about NHS commitments taking precedence over private work. I strongly believe that professional regulation through the General Medical Council combined with guidance from the Department of Health is the best way to ensure equality of access for patients. It allows regulators to respond to changing circumstances and practice without departing form the central principle involved.

Putting the amendment into statute would risk endless arguments about what is and is not essential care and treatment. Perversely, it could prevent a foundation trust giving preferential treatment to its NHS patients because of the amendment’s reference to equality. The primary purpose of a foundation trust is to provide NHS services. A foundation trust may want to prioritise NHS patients where there is equal clinical need. The amendment might well prevent that; at the very least, it would create legal ambiguity and confusion.

Some noble Lords have voiced concerns that a foundation trust might pressurise its consultants into prioritising private healthcare ahead of its NHS patients. There are safeguards to prevent that as well. First, foundation trusts have a public service ethos; they are governed by the public and by NHS staff. They have a principal legal purpose to treat NHS patients. Secondly, the NHS Commissioning Board and clinical commissioning groups would be responsible for ensuring that NHS patients continued to be offered prompt and high-quality care. With regard to managers, my noble friend will wish to know that we have already commissioned the Council for Healthcare Regulatory Excellence to produce standards of conduct and competence for senior NHS leaders, and these are currently the subject of public consultation.

I remind noble Lords of the points that we debated earlier. If there appeared to be a trend or a significant increase in the level of a trust’s private income, not only would that be picked up by the governors but it would be seen by Monitor, which will have extensive powers to direct foundation trusts through the licence. Foundation trusts will also be required to explain in their annual reports what the impact will be of their non-NHS income on NHS services. One might say that there is going to be no hiding place in this regard.

The noble Lord, Lord Campbell-Savours, asked earlier about GPs channelling patients to NHS private patient units. GPs’ responsibility is to ensure the best care for their patients. They would have nothing to gain from trying to collude with foundation trust managers and commissions to increase a foundation trust’s private income. More to the point, they would risk being reported to the GMC for not serving their patients’ interests. If the noble Lord’s point is that clinical commissioning groups may try to do this, then it would clearly be unethical and would give grounds for the commissioning board to intervene. I hope that that provides the noble Lord with reassurance on that point.

I make a further point to my noble friend around any possible incentive that trust management might have to channel patients into a private wing, a concern raised by the noble Lord, Lord Kakkar. The Bill will establish a transparent and legally enforceable pricing system that will reward foundation trusts for treating NHS patients. In other words, money will genuinely follow the patient, and foundation trusts will be paid a fair price for treating complex cases. The current system has not always achieved these simple aims. An independent report into the current system published last month makes this clear; I have placed a copy of that report in the Library of the House for noble Lords who are interested. As the report makes clear, although foundation trusts should have been paid for every NHS patient treated, this has not always been happening. There have been unacceptable levels of cross-subsidy that have meant that the prices payable for complex cases have sometimes been woefully inadequate. One important facet of the reassurance that I can give my noble friend is that the pricing system proposed under the Bill will address those problems and ensure that foundation trust managers have the right incentives and rewards for prioritising NHS patients.

For some—although not, I think, for my noble friend—the amendment has been prompted by fears around the consequences of the private patient income cap for foundation trusts being removed; again, the noble Lord, Lord Campbell-Savours, voiced that fear. I suggest to him that those fears are misplaced. It is not, to my mind, a valid argument to suggest that removing the cap, a restriction that does not apply to NHS trusts, would lead to foundation trusts ignoring NHS patients as their prime concern and responsibility. Foundation trusts are the only NHS organisations which have never been subject to a cap on the amount of private income that they can earn. However, some foundation trusts can and do earn high levels of private patient income. There are also some NHS trusts which earn private incomes well in excess of many foundation trusts. There is no evidence that these NHS providers have ignored NHS patients as their main responsibility. The NHS constitution guarantees fair access to NHS treatment. The Government are putting in place a quality improvement framework that will improve outcomes for patients. Therefore, there is no scope for NHS patients to be harmed by private provision. Indeed, I say again that the extra income that the NHS would earn through the lifting of the private patient income cap would help to provide better quality care for all in the future.

I hope that my noble friend will accept that he and I are on the same page—on the same side—on this question. The difference between us lies in how to tackle it. As the noble Lord, Lord Warner, was right to remind us, privately funded and NHS healthcare have always co-existed in NHS hospitals. Governments of all parties have preferred to use professional regulation rather than statute to ensure equality of treatment. I am sure that that is right. It is unnecessary and, I think, a mistake to use primary legislation to establish the same principles. Of course, over the length of time for which the NHS has been in existence, professional regulation has, on the whole, been an effective safeguard of equality of access. On that basis, I hope that my noble friend will feel genuinely reassured and able to withdraw his amendment.

[Baroness Finlay of Llandaff]

Before the Minister sits down, I seek clarification. It is extremely reassuring to hear about the code of conduct that will be coming through for managers. I seek reassurance that the code of conduct will cover managers at every level. While there is clarity over consultants, consultants’ contracts and the GMC guidance which we have discussed at length, there are many others in the healthcare team who are not managerially answerable to the consultants. They are managerially answerable in other streams. There needs to be consistency across all those aspects of management. That includes other professional managers such as nurse managers, allied healthcare professional managers and so on, not just those who are caught, perhaps, by the council guidance because they are managers coming from a non-healthcare background. We were seeking that consistency of conduct with the amendment. I hope that the Minister can give me reassurance.

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[Baroness Finlay of Llandaff]

My Lords, I added my name to these amendments because I agree with all the comments that the noble Baroness has just made. Children and young people are stakeholders in health. They are also the future of our nation. They may be dependent at the moment while they are children and young people, but they are the leaders of the future. They have specific needs and their own views about the way that they are treated. If they are not listened to and considered in the way that services are planned, they will continue to feel that they are not valued as much as they should be by healthcare itself and that healthcare is not really placing their needs at its heart in provision.

In the Royal College of Paediatrics and Child Health handbook called My Right to the Highest Standard of Health, Professor Terence Stephenson wrote,

“we cannot afford to continue as we are. The health of our children is at stake and we need to address real issues, with real change that brings about real positive impact on the health outcomes for children and young people”.

Children and young people must no longer be treated as passive recipients of services. It is by feeling valued that their well-being will be increased. Particularly in prevention in healthcare, the engagement of young people is critical to ensure that health improvement policies and the whole public health agenda are taken up by the very group of people who will get the most benefit from them and will be most harmed if public health measures fail—that is, those who are in adolescence and about to transition into early adulthood.

Until now, unfortunately, as has already been said, some LINks have not seen fit for their remit to include children. Through these amendments, I seek reassurance from the Minister that healthwatch will be provided with the resources, knowledge and capacity to involve children and young people effectively and will therefore be able to represent their needs and interests on a local and national level. It cannot be viewed as a tokenistic voice.

I shall cite an unfortunate example that the RCPCH has brought to my attention. A large teaching hospital trust was preparing an application for foundation trust status. As part of the process it was asked to show evidence of patient and public participation, including the involvement of children and young people. In response to this, the trust asked for some young people who were in-patients to receive a patient satisfaction questionnaire. A number of young people completed the questionnaire as requested, but the results were not used during the foundation trust application as the opinions voiced by the young people were at odds with the views of the management team. That is a clear example of tokenistic consultation but then doing nothing about the answers that are received.

Children are able to contribute in a very generous way to the shaping of healthcare services because they will comment quite openly, not only on what they need and what would make their journey through health better but on the experience of others that they encounter on the way. Children and young people with chronic conditions will form close friendships and bonds with other patients in their cohort, whom they will meet regularly when they attend different treatment sessions, and will be concerned about the welfare of those other children. In the days when I was working in paediatrics, I recall vividly how children in the leukaemic unit would ask about the welfare of other children. They would want to know what had happened to a child who had died and to talk about where that child had gone. One little boy commented on another, “At least now he’ll be able to do what he always wanted to do. He’ll be playing football, but it’ll be in heaven”.

Children know what they need, where they want to go and how they want to be involved and consulted. The whole tenor of our health services can be greatly improved by actively seeking out their views and acting on them, however difficult and uncomfortable those views might be.

[Baroness Masham of Ilton]

My Lords, I also have my name to the two amendments in this group. Children need protection and the support that my noble friend Lady Finlay has just talked about. So much more should be done for children, but the big problem is that they fall under so many different departments which are far too isolated. I am thinking now of the young people who are at risk from drugs and alcohol. I went to a presentation last week where there were photographs up of young children who had died from a combination of drugs and alcohol. So much should be done.

I hope that the Minister will answer my question from the previous debate about children and the risks that they face, taking Baby P as an example. Again, many departments came in and he fell through the net: health, the police, child protection and local authorities. They should be working together for children. We really need to protect them.

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[Baroness Finlay of Llandaff]

Before the noble Baroness sits down, does she recognise that the legal status of children differs from that of adults? That is why they do not fall into the same category as many other vulnerable groups. Children do not reach the age of majority until they are 18, although they can consent to some things at 16. Therefore, they are always dependent on a responsible adult to speak for them or to open the door for them, as it were. They cannot form a group in the way that others in the population can to speak up for their rights and what they need. Will the noble Baroness reassure us that the Government recognise that the legal status of children differs from that of adults, and that if these amendments are not to be accepted, careful consideration will be given as to how that can be made explicit in the Bill before it completes its passage?

[Baroness Northover]

The noble Baroness made a poignant case for why children need to be listened to. I hope I can reassure her that HealthWatch England and local healthwatch have a responsibility to hear the voices of everyone, whatever their age. I accept what she says about the legal status of children. However, as she made very obvious, that does not mean to say that we cannot hear their voices and take very seriously their perception of how they can best be treated.

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[Lord Shipley]

My Lords, I rise to speak to Amendments 238AA, 238AB, 238BZA and 238BA and to declare my interest as a member of Newcastle City Council.

These amendments relate to the membership of health and well-being boards. As currently proposed, the boards will have at least one councillor of the relevant local authority—so it could be one councillor, or it could be more. The choice will be with the council. However, several other people who have membership will be officers or unelected co-optees. This means that the board as currently proposed is effectively a board of directors, not a council committee which—unlike all other council committees—is made up of those who are publicly elected. Yet the board as proposed is legally a council committee; and because it is legally a council committee, only councillors can vote—officers must advise. For officers to vote, specific regulations will have to be put in place, and of course they can be. However, I hope that the Minister is willing to think further about this. Councillors, being elected, have both a democratic mandate—unlike officers—and a perception of service provision which comes from a geographical perspective as well as a service perspective. At times that can be very valuable, particularly in a geographically large council area.

To have just one councillor—which is what the Bill permits—would be a mistake. It would mean a council committee, the health and well-being board, would be dominated by officers and co-optees. It would also mean that only one political group was in membership of the board, which in my view would be deeply unwise.

Given the board’s terms of reference, I do not argue that councillors have to be in majority. However, I do argue that councillors are important; that geographical differences in a council area should be acknowledged; and that more than one political group should be fully represented on a board. Amendment 238AA solves this problem. It defines the minimum number of councillors as three. That would give the board greater breadth and enable political proportionality to be effective. Amendment 238AB states that where a council is a county council and part of a two-tier system of local government, there should be a district council representative as well as county representatives because district councils have statutory duties in relation to health and well-being. Having one district councillor appointed in this way as a representative of several district councils is normal procedure for those councils when duties span the two tiers. The other two amendments are simply enabling amendments assuming that Amendments 238AA and 238AB are agreed.

In Committee there was a discussion about councillor membership—how many there should be, whether they should be in a majority and whether they should have powers over the budgets of other health organisations not managed by the council. There was no conclusion to that debate, but I have thought long and hard about it. I have concluded that the amendments in my name and those of the noble Lord, Lord Bichard, and the noble Baronesses, Lady Eaton and Lady Henig, which reflect all parts of this Chamber, give a solution to this problem and would enable us to balance professional knowledge with the necessary democratic accountability.

I do not propose to press this to a vote, but I hope that the Minister will be willing to engage in discussion on it. What is being proposed from all parts of the House is a solution to a problem that needs to be resolved. It will prevent difficulties arising further down the line should a council decide to have only one councillor as a member of the board.

[Baroness Finlay of Llandaff]

My Lords, I shall speak briefly to Amendment 238A, which is in the name of my noble friend Lord Ramsbotham. I rather hope that the Government will take on board its spirit, if not its actual wording. The reason is that in creating a joint strategic needs assessment, there will be a requirement for those involved to begin to work in a completely new way. Human nature is such that people tend to repeat the patterns of things they have done before. In addition, they do not know what they do not know. When they feel insecure, they are less—not more—likely to consult, because it is quite threatening to have to consult and go beyond the boundaries of what you thought you knew and discover all the things that you did not know.

The beauty of the amendment is that it creates an obligation to,

“consult relevant health professionals and any other”

person, without specifying who they are. It leaves it very broad but it pushes forward the boundaries. We have already discussed the problem of children. The difficulty, if people do not consult widely, is that if children miss out at a developmental stage and one aspect of their development—for example, motor development, speech and language development or emotional development—does not occur, they never catch up. It is missed out for good; they always lag behind.

It is really important to make sure that the provisions are there right the way through the trajectory from birth onwards to make sure that the needs of children as they develop are met, that deficits are identified early and that interventions take place immediately.

[Lord Beecham]

My Lords, I will speak to my Amendment 238H, as well as amendments moved by other noble Lords. I am pleased to confirm that the Opposition entirely support the amendments moved by the noble Lord, Lord Ramsbotham, the noble Baroness, Lady Massey, and the noble Lord, Lord Shipley. Once again, I am pleased to say that Newcastle is united on the issue of the composition of health and well-being boards.

The only amendment about which I have not so much a reservation as a question is that to be moved by the Minister, Amendment 239, which refers to the possibility of a local authority giving permission to the health and well-being board to carry out,

“other functions of the authority”.

I wonder whether the Government have borne in mind the fact that there is now a general power of competence for local government, and whether it is the intention of this amendment to embrace not only the statutory functions of local government as things that may be delegated to the health and well-being boards but anything that the local authority is empowered to do. Given that there is now a general power of competence, that would be a very wide remit indeed. It is not necessarily a wrong line to take but it would be interesting to know whether the Government have considered that potential implication, and if they have not—and I would not blame the Minister if he had other, more pressing things on his mind—perhaps he might come back to us at Third Reading or before.

I particularly welcome the amendments moved by the noble Lord, Lord Ramsbotham, because they raise the issue of children’s services and health, which has to a significant extent been overtaken in this Bill by other considerations around traditional health services and adult care. I very much welcome those points.

In relation to the amendments moved by the noble Lord, Lord Shipley, I join him in thinking that it would be very helpful for the Government to send a signal as to the representation of elected members— not merely one, who could be regarded as a token, but a significant number. I would have gone perhaps slightly higher than three, but three would be a working basis.

In Committee, the Minister said that it is up to councils to decide the composition of these boards. That is true, but I think a signal would be welcome in that respect. I am particularly glad to join the noble Lord, Lord Shipley, in returning to a theme which I am afraid I have sounded more than once in debates over this Bill about the necessity for district authorities to be represented. It is a very important point in relation to the shire county areas.

Health and Social Care Bill

Baroness Finlay of Llandaff Excerpts

Tuesday 6th March 2012 Lords Chamber

The second of our amendments states that, those statements having been made, guidance should be issued by Monitor to ensure that they are implemented and become the case. Again, I think that it is an unexceptional amendment. It takes very seriously the mandate that many of us in this House have attempted: to enrich and embolden an essential weapon or tool for setting out the objectives of the NHS from the Secretary of State in each year. Effectively, these amendments say that Monitor shall make the statements; that Monitor shall ensure that those statements are carried out; and that it will do that within the structure and on a mandate, with the Secretary of State’s overall objectives, that will be reflected and clear. That is exactly what we want. We want clear objectives, agreed by all; we want a commitment by the House and by many beyond it, including the professional bodies, to do exactly those things. We want a comprehensive health service, directed towards increasing and improving quality; directed towards accepting innovation that will not threaten the health service but enrich it; directed, not least, to dealing with the inequalities that still exist; and directed to ensuring that we address them in a wholehearted and determined spirit. I beg to move.

[Baroness Finlay of Llandaff]

My Lords, I have Amendment 165 in this group. It is designed to prevent anti-collaborative behaviour in the provision of healthcare services for the purposes of the NHS. Promoting collaboration and integration must be at least as powerful, if not more so, than preventing anti-competitive behaviour. We are well aware that no two patients are the same and, to date, all too often professional boundaries—whoever is the person providing the care—have created barriers. Those are very evident between primary and secondary care and can prevent a seamless patient experience.

This is not an amendment to prevent different providers coming together. Its aim is to ensure that whoever those providers are, whether they are NHS, whether they are from the voluntary sector or whether they are from social care, they must collaborate for the benefit of each individual patient. Therefore, the ways in which they will need to be able to collaborate will vary depending on the patients they are dealing with. Good care should treat the patient and their experience in the context of their life, social support relationships, cultural experience, gender and a range of other factors, and the services should support people to live productive, independent lives in their own homes for as long as possible. Patients, including older patients, must have access to specialist services, including in-patient, acute care when appropriate. Again, that will require collaboration between homecare services, in-patient services and step-down services to rehabilitate people in their homes. There will be a wide range of providers of all those services.

Population health needs and inequalities must be considered at the planning stage. Even doing that will require close collaboration between those doing the assessments. The tariff should reflect the complexity of clinical care and should encourage integration and collaboration between providers. The danger exists at the moment of a tariff structure that does not reflect clinical complexity but overcompensates for simple conditions and for those where there is a discrete episode of care, and does not recognise ongoing complexity. The tariff must work toward commissioning across the whole patient pathway. Information and data gathered around patients and clinical services should also reflect that. I hope that the amendment will make sure that the need for collaboration occurs at every level across providers, because at the end of the day Monitor will have the responsibility for licensing all providers.

The other reason for the amendment is that there will be times when competition and collaboration might appear not to be one and the same, and may indeed look to be in conflict. My concern is that unless there is a requirement for collaborative behaviour, it will be all too easy for the justification for commissioning to be based more on competition than on collaboration. In the balance of doubt, patients need to know that there is collaboration between their providers. There have been examples in social care and in the delivery of healthcare in care homes where integration could certainly have improved, for example, the unacceptable level of medication errors. Collaboration is going on among a variety of agents and stakeholders to develop practical solutions and an integrated approach to medication safety in care homes. Public health, too, requires the three arms of health improvement, health protection and healthcare delivery to work together, and will be very dependent on collaboration with other aspects of the NHS.

Perhaps I might take this opportunity briefly to correct a piece of information that I gave to the House in our previous debate and which turned out to be a little out of date—for which I apologise. It related to troops coming back from our theatres of war, where the provision of prosthetics has improved. This is an example of good collaboration between all agencies, which has been underpinned by the military covenant that the Government supported and instigated in legislation. The result has been an improvement in the care of those who are extremely vulnerable.

I hope that the House, and the Minister in particular, will see that there is a need to make sure that collaboration is driven forward between all providers, wherever they are and wherever they come from, so that the NHS and its principles can be underpinned for the benefit of patient outcomes.

[Baroness Cumberlege]

My Lords, I, too, tabled an amendment in this group. Before I speak to it, I will say that I very much support what the noble Baroness, Lady Finlay, said. I was interested in an article in the BMJ that she, too, may have seen. It was a report by Nigel Hawkes on how competition works in healthcare and how it can stimulate the provision of better services. He went on to say:

“The report dismisses claims that competition makes integrated care impossible or that the opening of tendering a service to ‘any qualified provider’ amounts to privatisation of the NHS”,

and that,

“evidence suggests that competition with regulated prices”—

which is what we are proposing—

“can produce higher quality care at the same cost—and without leading to increasing inequity in access to care. Our message is that competition can help the NHS, but proceed with care”.

It is “proceed with care” that many of us want. Although I support the idea of competition, the National Health Service is not a free-for-all but a regulated market.

I think we need competition. Looking at the summary scores of the seven nations surveyed on health system performance, which have often been mentioned in earlier debates in this House, we do very well compared with other developed countries, but when it comes to patient-centred care, we come last—seventh. That is really why competition is necessary: to make the health service much more sensitive to the needs of patients.

I appreciate that noble Lords must label me the greatest bore on earth, but I am going to continue to bore because I am going to relate Monitor to the duties for patient and public involvement. This amendment introduces the same definition and scope of involvement for Monitor as Amendment 142, which I moved earlier on Report, on duties for NHS commissioners, including public and private providers.

On 16 February, I received a letter from my noble friend Lord Howe on patient and public involvement, and since then I have had some useful meetings with him. The context of this amendment is that patient and public involvement must be robust as we are moving towards a stronger, more plural market, which I support. Patient and public involvement is an even more indispensable component in a market where the consumer role is split between commissioners, who hold the money, and patients who consume the service. PPI must bridge this gap for the market to work well, as patient choice will never apply to some NHS services.

Given its pivotal role in the reformed NHS, it is vital that Monitor has a PPI duty that is consistent with that of the providers it is regulating. The Bristol Royal Infirmary public inquiry 11 years ago led to the statutory PPI duty and its report specifically mentioned regulators in the list of bodies that should have this duty, so Clause 61(7) is very welcome. However I do not feel that the wording of Clause 61 goes far enough to achieve the Bristol recommendation that regulators,

“must involve the public in their decision-making processes, as they affect the provision of healthcare by the NHS”.

On the broader PPI duty, my noble friend helpfully clarified at our meeting that statutory guidance will be used to describe what is reasonable in terms of PPI and that there will be consultation on its content. The intention, as I understand it, is that the guidance will require PPI in monitoring the impact of planning decisions or proposals to require the views of patient representatives and their carers. Perhaps my noble friend will confirm this. We also discussed the role of the NHS Commissioning Board in making sure that clinical commissioning groups enforce the model contract clauses on PPI against private providers. This is important as they do not have the statutory PPI duty that NHS providers have.

I think it is the Government’s intention to create a level playing field for patients and the public to influence private providers who are under contract to the NHS in the same way that they can influence NHS providers. Can my noble friend assure me that that is the case? That would be very helpful, particularly as providers may challenge statutory guidance as burdensome under the duty of autonomy in Clause 4 as amended.

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[Earl Howe]

My Lords, it is a concern that I understand. The destabilisation of the NHS will naturally be a concern to all commissioners, which is why they can protect that situation through the contract. They could insist through the contract that a provider provided the full range of services rather than a select few. I simply say to the noble Baroness that we are alive to that concern and I have no doubt that commissioners will be as time goes on.

On the amendment tabled by the noble Lord, Lord Warner, he will be disappointed to hear that I am not drawn to going any further than the Bill does, much as I understand that his idea is well-intentioned. I say that because of Monitor’s overarching duty to protect patients’ interests and prevent anti-competitive behaviour that would harm those interests. This amended duty reflects what the Future Forum recommended and it is right that we stick with that. I can, however, offer the noble Lord, Lord Warner, some reassurance. First, in carrying out its duty to address anti-competitive behaviour, Monitor will necessarily have to identify it. Secondly, Monitor would have the power under Chapter 2 of Part 3 to conduct market studies and to refer potential barriers to new entrants for further investigation by the competition authorities where necessary. I hope that that is of some comfort also to the noble Lord, Lord Adebowale.

We had a most constructive debate in Committee about the Secretary of State’s accountability for securing a comprehensive health service in England and his role in holding Monitor to account for its duties. I thank my noble friend Lady Williams for proposing an amendment which adds much to the Bill in this area. Clause 61 already requires Monitor to carry out its functions in a manner consistent with the Secretary of State’s performance of his duty to promote a comprehensive health service. My noble friend’s amendment would strengthen these provisions and thereby improve the Bill on a key issue. This would help to ensure that the Secretary of State can discharge effectively his responsibility for the health service in England and that Monitor carries out its functions to that end. I support my noble friend’s amendment.

Clause 64 specifies the range of matters that Monitor would be obliged to have regard to in carrying out its duties. In Committee, the noble Baroness, Lady Murphy, and my noble friend Lady Williams raised some concerns about that list. I agreed to reflect on these concerns and have tabled Amendments 168 to 171, which would rationalise the list and make it clear that maintaining patient safety would be the paramount consideration. I hope that the noble Baroness and my noble friend will be content with that rationalisation.

On the amendment tabled by noble friend Lady Cumberlege, the Bill ensures that patient and public involvement is embedded at every level of the healthcare system. However, unlike the NHS Commissioning Board and clinical commissioning groups, Monitor would not be responsible for securing NHS services to meet patients’ needs. It is a regulator, with economic and more technical functions. Clause 61 reflects this and gives Monitor the responsibility for determining arrangements for patient and public involvement as appropriate to its functions. So I am afraid that I do not regard my noble friend’s amendment as appropriate. She asked what could be done if Monitor did not involve patients in the right way. Well, the Secretary of State would hold Monitor to account as to how it discharged its functions. Monitor would have to report to the Secretary of State on how it was discharging its duty on patient and public involvement as part of its annual report. The Secretary of State could also request a specific report on how Monitor discharged this function and intervene where there had been a significant failure in meeting this duty. The Bill provides for HealthWatch to send advice to Monitor as it seems appropriate. Monitor would then be required to respond to this advice in writing. I hope that my noble friend will take comfort from those points.

I stress once again that the purpose of Part 3 is to strengthen sector regulation in healthcare to protect and promote patients’ interests. The current system is inadequate, fragmented and duplicative. It fails to protect the interests of all patients. Part 3 recognises that the NHS is not and never has been a single institution. The reality of the NHS is a comprehensive health service that has always been delivered by a diverse range of providers.

Part 3 would address gaps in the current system by extending equivalent safeguards to protect patients’ interests irrespective of who provides their NHS services. It would also make sector regulation in the NHS more effective in driving improvements and enabling integration during an absolutely crucial period of economic challenge.

I am very happy to support the amendments of my noble friend Lady Williams, which would improve the Bill, but I urge, following the reassurances and explanation that I have been able to give, other noble Lords not to press their amendments.

[Baroness Finlay of Llandaff]

Before the Minister sits down, will he answer a straightforward question in relation to my amendment? Given that the Bill at page 88 states,

“functions with a view to preventing anti-competitive behaviour”,

and my amendment, which is not being accepted, states,

“functions with a view to preventing anti-collaborative behaviour”,

will the Minister confirm that that means that competition is trumping collaboration?

[Earl Howe]

No. Collaboration, if it is in the interest of patients, will always trump competition.

[Baroness Finlay of Llandaff]

What instances are there of when collaboration has not resulted in improved patient outcomes? I have not been able to find any.

[Earl Howe]

Nor have I, which is why I listed earlier some prime examples of collaboration. Clinical networks are a prime example of collaborative behaviour which is clearly in the interests of patients. The noble Baroness is asking me to think of examples in my head of collaborative behaviour in the NHS that does not advantage patients. I cannot think of any, which is why it would be hard for Monitor to find fault with collaboration where it has clearly been designed to improve patient care.

--- Later in debate ---

Moved by

[Baroness Finlay of Llandaff]

165:Clause 61, page 88, line 5, at end insert—
“( ) Monitor must exercise its functions with a view to preventing anti-collaborative behaviour in the provision of health care services for the purposes of the NHS.”

--- Later in debate ---

[Baroness Finlay of Llandaff]

In summing up after the previous debate, the Minister spoke about the service currently being fragmented and duplicative, and I would agree that it is. I am glad that the Government’s intention is to have a service where healthcare providers collaborate more than they do at the moment. I accept that there will be a range of providers, and I support having a wide range of providers to provide a spectrum of services. However, I do not understand—and have not understood from the answers—why anti-collaborative behaviour should not be up there as a general duty for Monitor with anti-competitive behaviour. Because of that, and because of all the discussion that we have had over integration and collaboration, I feel that it is a duty that I have to those who wish to collaborate in the NHS to test the opinion of the House, so that there is equal status between anti-competitive and anti-collaborative behaviour in the event of there being a conflict between the two.

[Earl Howe]

I hoped that I had already made it clear to the noble Baroness that collaborative behaviour when it is in the interests of the patients—and I distinguish that from collusive behaviour, which is almost certainly not in the interests of patients—will be regarded by Monitor as trumping the need for competition to be deployed in services. I am not sure that I understand what the noble Baroness’s problem is in this area; she should be reassured by that.

[Baroness Finlay of Llandaff]

I am grateful to the Minister for trying to clarify these matters, but my concern relates to anti-competitive and anti-collaborative being of at least equal status. I would prefer anti-collaborative to be on the face of the Bill. Is the Minister prepared to have a discussion with me after this debate to see whether we could insert some other wording to prevent both anti-collaborative and anti-competitive behaviour? In that way, even when a provider states that it intends to collaborate and that is put down clearly, if it is demonstrated as time goes on that the provider is not fulfilling that, Monitor will have the leverage to say that it was in open competition but the provider has not fulfilled the requirement to collaborate.

[Earl Howe]

I am of course willing to hold discussions with the noble Baroness, but I remind her that we have explicitly provided for Monitor to use its licensing powers to support integration and co-operation when that is in the interests of patients. We were fully aware of that issue when drafting the Bill. Later amendments, which we will debate today, will strengthen the ability of Monitor even further.

[Baroness Finlay of Llandaff]

I recognise that they will strengthen Monitor further and that they will come later, but my disappointment is that they are not in the core general duties that will override the way in which Monitor functions. They will come later on and in detail, and I can see that in the amendments that the Government have tabled. But my concern persists, and I wish to test the opinion of the House.

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Moved by

[Baroness Finlay of Llandaff]

167A:Clause 63, page 89, line 34, at end insert—
“( ) Regulations may provide for Monitor to make the granting of a licence conditional upon performance in relation to matters set out as in section 64.”

[Baroness Finlay of Llandaff]

My Lords, some of the amendments in this group are in my name and that of the noble Lord, Lord Northbourne, who is unable to be in the House today because of ill health. They relate to the transition of care between different sectors and build around the principle of integrated working.

The problem that arises is that the responsibility for care of children will sit with different groups. There is a need to make sure that, when children make the transition from being the responsibility of social services to being the responsibility of the local authority and, in adult care, of the clinical commissioning groups, there is adequate provision for how that handover occurs. A clear date for it should be set and it should make explicit the duties for each party involved in handing on information. Without that, there is a concern that as these young people—many of whom will have mixed mental, physical and social care needs—transition across, information about those needs may not adequately pass from one agency to another. There is a concern that they may fall into a gap and that the responsibility at the time of transition will not be clear. We are also concerned that, without a clear, fixed date for the transition with a default time set in legislation, it will be easy for a young person’s care to drop out of sight, particularly if they are not supported by people well able to advocate on their behalf.

Also in this group is Amendment 174A, which concerns the general duties of Monitor and is in the name of the noble Baroness, Lady Young of Old Scone. She has asked me to speak to this amendment, which again emphasises the importance of integration of services. Her concern is about diabetes but goes far wider than that. Where there is a multiplicity of providers, how they work together will depend on how Monitor specifies service in the national tariff. Since patients with complex conditions require input from many different providers, there is a concern that, without a real emphasis in the Bill on provision being integrated, they may end up being told that their care is not the responsibility of one person or another. These amendments, which have been grouped together, seek clarity on the seamless provision of care. The principle behind them is to address those gaps that we have identified in that seamless provision of care.

I return to the amendments in my name and that of the noble Lord, Lord Northbourne. We are well aware that it can be very difficult to differentiate between the social and mental health needs of young people. For that reason, we feel that it is important that transition is clarified. I beg to move.

[Lord Beecham]

My Lords, we certainly support these amendments. I am particularly pleased by the reference in Amendment 171A to the transfer of information between child and adult social care authorities, which picks up a point that was raised in an earlier debate. These are sensible amendments, although there is an error in Amendment 238G, which refers to health and welfare boards, instead of health and well-being boards. On that not untypically pedantic note, I support the amendments and trust that the Minister will give them a favourable response.

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In earlier debates we discussed the social care White Paper. That will address integration and the reaction to that will be coming forward. I understand and accept entirely the spirit of these amendments but I hope that I have demonstrated our commitment to integration. I am entirely certain that our existing proposals and wider programme of work already address the underlying objective of these amendments. I hope I have reassured noble Lords and that they will feel able to withdraw their amendments.

[Baroness Finlay of Llandaff]

I am most grateful to the noble Baroness for the assurances that she has given. I am particularly grateful to her for focusing on the integration with educational needs as well as social care needs and physical and mental health needs, with a single point of assessment. I beg leave to withdraw the amendment.

Amendment 167A withdrawn.

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[Lord Warner]

My Lords, I, too, support this amendment. Since the noble Earl was so beastly to me over social care, I hope he will actually support this amendment.

[Baroness Finlay of Llandaff]

My Lords, the government amendments are indeed welcome because they reflect concerns that have been expressed. I am sure that all those who expressed those concerns are grateful.

The amendments in my name in this group relate to education and training. I know that we have somewhat threaded education and training through the Bill at all stages. Amendment 192 relates to considering education and training when setting licence conditions, and I put “education and training” because in addition to education, staff training at every level is essential.

I hope that the Government will support the view that no organisation should be fit to provide services if it does not ensure that its staff are being kept up to date and if it is not providing an environment from which people can learn. This does not mean that they all have to be recognised educational providers.

Amendment 196 in this group relates to indemnity. This amendment has been tabled again because, despite the response that we were given in Committee, concerns continue over indemnity for patients. Should a patient develop a problem subsequent to a provider going out of business, they should be covered by indemnity. It is interesting that we have the Legal Aid, Sentencing and Punishment of Offenders Bill in parallel with this Bill. We have concerns over legal aid for medical negligence. I have attached my name to amendments to that Bill concerning legal aid for the victims of clinical negligence.

I hope that the Government will see that there is a need to have indemnity within services, whoever the licensed provider is. There should be a read across to the protection of patients in the event of something going wrong or being done wrong that has harmed them, particularly if they have been harmed in such a way as to incur ongoing costs for healthcare and social care as a result of the problem that arose with the provider, whether it be a voluntary sector provider or a private provider.

[Lord Clement-Jones]

My Lords, I thank my noble friend Lord Howe for putting forward these amendments, particularly Amendment 193, to which I have added my name. In Committee, we were concerned that the powers of Monitor did not reflect the general spirit of the way in which the Future Forum report talked about the mixture of competition and integration. Although the objectives of Monitor at the beginning of Part 3 were changed to reflect the Future Forum report, some of the back end of Part 3 was not changed to reflect that. These significant amendments, particularly Amendment 193, rebalance the Bill and makes sure that it genuinely reflects the intentions of Future Forum. I am very grateful to my noble friend for putting down these amendments.

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[Baroness Finlay of Llandaff]

I am grateful to the Minister for his reply on indemnity. Would the risk pool apply to the provider rather than be linked to the individual patient? If there is an acute problem, some hospices will accept referrals directly from patients and their families rather than waiting for a GP necessarily to refer them. Those patients are all being treated in the voluntary sector; they are not paying; they are all being treated the same; and they have been under NHS providers for other parts of their treatment. The Minister may not be able to answer my question now, but I flag up such a situation as a potential that will need to be covered off in providing. However, I am sure that what he has said tonight will be warmly welcomed by the voluntary sector, which provides an important and, in many places, essential clinical service—which, I venture to suggest, hospices do par excellence. Their ability to meet patient and family need at great speed has allowed them to be recognised as being so important.

[Earl Howe]

My Lords, I understand the noble Baroness’s question. It might be best if I wrote to her because the circumstances that she posits are such as to make it important that I do not get it wrong if I give her an answer now. As she knows, the broad answer to her question is that our aim is for all NHS-funded care to be covered. She has raised a particular set of circumstances on which I shall have to take advice, if she will allow.