Health and Social Care Bill

Debate between Baroness Finlay of Llandaff and Baroness Thornton

Wednesday 29th February 2012 Lords Chamber

[Baroness Finlay of Llandaff]

My Lords, I did have a speech prepared in support of this amendment, based on the Welsh experience. However, after being woken by the “Today” programme telling me about a debate that we had not had—or that I thought I might have perhaps slept through—and announcing how the Government had responded in a way that I could not recall, I decided simply to bin my speech and live in hope. That is how we all are at the moment. We await the Government’s response to the amendments.

[Baroness Thornton]

My Lords, perhaps I may just say that when I was a Minister this was one of the few battles that I had and lost in the department. I shall be very glad if the noble Earl has had the battle and won—congratulations. I also say well done to all those who have been campaigning on this issue, particularly my noble friend Lady Gould.

Health and Social Care Bill

Debate between Baroness Finlay of Llandaff and Baroness Thornton

Wednesday 21st December 2011 Lords Chamber

[Baroness Finlay of Llandaff]

My Lords, I really am not trying to prevent Christmas starting for Members of this Committee. I feel as though most of today’s amendments have concerned me. These are probing amendments, which relate to NHS capital assets. They are designed to explore what happens to the current offices and clinical premises of an NHS body at the time of transition and afterwards. If these premises are occupied by a clinical commissioning group or a company that is advising a clinical commissioning group on its commissioning, who will become the owner of the property?

This is important because GPs are themselves independent contractors, not NHS employees. For many—not all but a significant number—the premises from which they work are owned by their practice. They, not the NHS, jointly own them, even though the building will usually have been subject to a range of capital improvement schemes from the NHS over many years. Such schemes allow a GP to purchase a practice and invest in it over the years. The capital gained then forms a significant additional pension pot for that GP.

My question for the Government concerns whether the deeds of the property will be transferred to the general practitioners of the clinical commissioning group. Will they be able to sell it for profit that would then be their personal profit? Will the profit revert to the NHS and, if so, to which pot? If property is transferred, will the new owner be liable to put capital gained into the capital part of the commissioning pot to develop service premises and equipment for the health service itself, rather than be able to take whatever capital gain there is on that property? I beg to move.

[Baroness Thornton]

My Lords, I just wish to add two questions of my own to the list that the noble Baroness asked. Has the Department of Health now resolved the issues around future asset ownership in respect of PCT and SHA estates? Within that, does that include LIFT schemes and PFI?

[Earl Howe]

My Lords, I hope I can answer the question of the noble Baroness very quickly. Clinical commissioning groups will be statutory bodies. They will be legally and operationally separate from GP practices. As such, if a clinical commissioning group occupies property that is under the ownership of that group, it will be under statutory ownership. It will not be open to GPs to sell such property at a cut price, or at any other price, to GP practices to enable such practices to pocket the profits. What the noble Baroness outlined sounded to me very much like embezzlement from the state. It will be no more possible for what she envisages to happen than for a primary care trust to sell a property and have its officers pocket the proceeds. I am a little mystified by the scenario that she has painted.

Health and Social Care Bill

Debate between Baroness Finlay of Llandaff and Baroness Thornton

Thursday 15th December 2011 Lords Chamber

[Baroness Finlay of Llandaff]

I put my name to these amendments, which are incredibly important. I hope that the Government’s response will be that they are listening and prepared to change this. It is worth noting that the Government’s response to Professor Sir Ian Kennedy’s report said:

“In the past, the NHS was not always set up to put the needs of patients and the public first. Too often patients were expected to fit around services rather than services around patients. Nowhere was this more the case than for children, young people and their families … If we are to meet the needs of children, young people, families and carers, it is vital that we listen to them in designing services, gather information on their experiences and priorities, provide them with the accessible information that they need to make choices about their care, and involve them in decision making”.

That is the Government’s own response to the report.

I also draw attention to the report from the ombudsman in Wales. I know we are going to debate ombudsmen later but I will make this one point. The ombudsman upheld a complaint that Health Inspection Wales,

“failed to seek the child’s perspective on her care”.

The Royal College of Paediatrics and Child Health is very concerned that “no decision about me without me” must extend to children and should involve both children and young people. Without that we will have poorer service planning and, as a result of that, poorer health outcomes. A voice for children and young people needs to be incorporated in the decision-making process of the NHS Commissioning Board, health and well-being boards and clinical commissioning groups, and a safe conduit for this involvement may be HealthWatch and local healthwatch.

I want to briefly draw the House’s attention to the fact that we have many young carers so it is not only children as patients that we need to consider. In the 2001 census it was found that there were 175,000 young carers and no one is disputing that those numbers have gone up significantly since then. A third of those are caring for somebody with mental health problems and the average age of young carers is 12 years old. Reading their comments, society clearly does not understand the pressures that they are under. There is evidence that when they get to school late, the school does not understand. When they try to accompany their parent to out-patient or even in-patient appointments, they are not listened to even though they have been providing all the care. The facilities where their relative is looked after are not appropriate for them to stay overnight. I remind the Committee that when a young parent is dying, the children will want to stay at the bedside. They may want to sleep in the same room. They do not want to be taken away. They may want to have a break; they may want to go out; they may want to watch a video. If we are really going to invest in quality of care and health outcomes for the next generation, and meet the Marmot review’s requirement for health inequalities not to be widened but narrowed, we must address the needs of this group in our population who provide a lot of care, who are incredibly important and who will be the citizens of the future, but to whom the system does not currently give a voice. To expect adults to be a voice for them is completely unrealistic, because, when they are a young carer, there is no other adult there apart from the person whom they are caring for.

I hope that these amendments will not be dismissed with a whole lot of reasons as to why they cannot be put into practice. If we are really committed to changing healthcare services for the population, we should listen to the voice of children and young people.

[Baroness Thornton]

My noble friend Lady Massey is, as usual, correct about these matters. I am always happy to take my lead from her. All my experience of working with NCH and lots of children’s organisations over the years, and, more recently, of talking to YoungMinds, leads me to think that this is a matter that the Government need to take into consideration.

Health and Social Care Bill

Debate between Baroness Finlay of Llandaff and Baroness Thornton

Tuesday 13th December 2011 Lords Chamber

[Baroness Thornton]

My Lords, I start by congratulating noble Lords on making it through this day of debate. We are ending the day with this large group on failure, and the smaller group on pre-failure, tabled by my noble friend, in a moment or so.

In the NHS of 20 years ago, the trusts that got into problems were helped, although the help may have been brutal, with chief executives removed or moved on and nasty phone calls to trust chairs. The system gave powers of intervention from the Secretary of State through local strategic bodies, as they became. Financial help was grudgingly provided, usually for a recovery plan, sometimes delivered and sometimes not. The relationships were not defined by legal contract, and NHS contracts could not be enforced in the courts, so there was a system of arbitration within the NHS.

Those days have gone, and we now have an NHS as a network of many sub-organisations, some with linkages through real contracts. With FTs came the idea of a real contract, although in reality, of course, disputes are still sorted out long before reaching a court. We know that services, and even whole organisations, can fail as the impact of demographic, technological and behavioural changes shape our NHS. In reality, we have to deal with trusts that get into severe difficulties and may be technically insolvent, at which point a real organisation may not be allowed to trade. Then we have to accept that a whole trust might need to be shut down. Indeed, how should that be done? How should the continuity of services be maintained, how should the staff be dealt with, and how should the assets, most of which are owned by the state, be dealt with?

We know that this is the tail end of a bigger and important issue of reconfiguration. So how do we ensure that we can adapt services that show poor quality or that need to be delivered in different ways in different settings? Maybe, as with an increasing array of subspecialities, we have to accept regionalisation. Maybe we need network solutions. Is the market the way to do this? In other markets, innovations lead to changes in demand, and the organisations that cannot adapt close down. Is that what we want for our NHS?

Those who might be so inclined might like to wander through the delicate prose of Simon Burns MP in Committee in the Commons. He loves failure. The idea that you have competition is inextricably linked to having failure. It facilitates the market, brings in the innovators and drives out the inefficient. He believes that failure is a measure of market success, not failure.

It is true that in government we introduced a failure regime as we came to realise that, even after all the support and changes of management team, there may be organisations that are simply not viable. However, it is not so much that they were not viable; it is what that means, that continuing to support them is not giving value for the NHS, however much we adjust that value to include non-financial aspects. Indeed, we also wanted to bring out into the light the murky transactions used within the NHS to support organisations, through means such as brokerage loans. The tendency was for bad performers to be bailed out by the good—the opposite of a reforming system. The way NHS accounts were done also had to be changed to make this kind of smoke-and-mirrors accounting more open.

Issues around failure are more likely to operate at service level than at a whole-organisation level. To take a recent example, a well known and respected financial trust is having issues around its 18-week performance. Its general quality is good but it has signalled that it needs help, and it is indeed getting it from a Department of Health team. The question that we need to ask is: would this kind of support be available in the new world? Presumably, it would not; and even if it were, might that help be deemed anticompetitive? Would that good trust be allowed to fail? The link here to reconfiguration is inescapable.

We know and even admit in our rational moments that reconfiguration on a grand scale is what the Nicholson challenge is really about. The need to move services into community settings and to reduce dependency on the district general hospital model is widely recognised. However, we also know that reconfiguration is beset with political problems. In the run-up to the election, about one-third of constituencies had some kind of campaign to keep open a hospital, a surgery or whatever. One felt sometimes that even if there was no threat, one was invented. We had Andrew Lansley and David Cameron claiming that they would prevent any closures. I think that the Government are learning the hard way that promises made in opposition, especially during election campaigns, may turn out to be millstones when the real burden of decision-making passes to them. The examples of broken promises will continue as reconfigurations gather apace.

This is the issue to which our suspicions should be addressed. Is it part of the rationale to put the blame for nasty politically damaging decisions on others? This abdication of responsibility is characterised by the way that Ministers are trying to give away the key roles of the Secretary of State. This is in part a failure of process but is also a failure of leadership. The leadership should be accountable for delivering answers and necessary changes within a reasonable timescale. If we get reconfiguration right, the failure regime would look less necessary. This is far better for patients than the trauma of seeing their local facilities under constant threat or even being closed down. There are examples of where this has been done, and done well—and we need more of them.

In Committee in the Commons, the Conservatives in particular appeared to believe that these unpopular local changes would be less likely under the Bill—if changes in organisations are branded as failures, then those MPs would be well clear of any responsibility. In fact, we have years of evidence because every reconfiguration has to go through a clinical and management review at an early stage—so we know what works and what does not. We could use that evidence, rely on a robust process and stop opportunist politics. However, we know that the market will not bring about these changes any time soon.

In our NHS, the best interests of patients are served by good information that allows early intervention to improve failing services. CQC inspections are also of value in raising the prospect that poor services will be detected early. If you rely on competition, how long does it take for the public to react to the information that a service is bad and for them to choose to go elsewhere, or for that to impact on the finances to the extent that the service is closed down? In our view, using choice and competition to detect and close poor services takes too long and the cost for patients is indeed too high. That is what this suite of amendments aims to tackle.

The amendment sets licensing criteria to ensure that private providers meet standards around financial stability and probity. We need to supply regular financial information for the good providers. This is, in other words, a sort of Southern Cross test. Amendment 249MBA brings into effect the remaining inactivated arrangements for trust special administration from the 2009 Act, as amendments to the 2006 Act. I remember those well. Amendment 353ZZA is a commencement provision for that. Amendment 295 states that health special administrators must exercise their functions to “protect the interests of patients”. As to the Questions that Clauses 125 to 130 stand part of the Bill, this would create a regime for private companies that provide services to the NHS to have special procedures that augment the normal company provisions under the Insolvency Act. It arguably implies that we need stronger protection from the risk of private provider failure. It should be for the commissioners to factor in the risk of using private providers and contract to ensure that arrangements are in place for contingencies. The licensing regime needs to be tough enough to prevent Southern Cross-type failure through active monitoring.

Risk pooling is what the NHS does. We do not need new risk pools, with the costs that they involve. That is why we think that the clauses should be deleted. Clauses 131 to 143 inclusive allow Monitor to set up the regime to provide special administration for both private and public providers to levy charges on providers and commissioners and to manage the finances of a risk pool.

We argue that none of that is required; it just adds extra complexity and cost. Clause 170 is about FTs and failure. The clause removes the ability to deauthorise a foundation trust. We argue that that power should be retained, along with the recognition that some NHS provider trusts may need to be directly managed under the powers of the Secretary of State.

The new clause in Amendment 303ZA makes clear that the initial effort, in the context of failure, should be remedial action rather than going straight for a failure regime. My noble friend has a similar idea behind his amendment. On Amendment 303ZB, the new clause is intended to reinforce and strengthen how reconfiguration is carried out. Under Amendment 303A to Section 65A of the 2006 Act, bodies to which trusts’ special administration regimes apply should remain, so that the special administration regime applies to FTs and NHS trusts.

Again, we are shortening the Bill and making it simpler and probably taking out quite a lot of cost. I beg to move.

[Baroness Finlay of Llandaff]

My Lords, I have several amendments in this group. I shall start with Amendment 294N, which is a probing amendment. As far as I have understood it, social enterprise bodies which are NHS bodies in all but name are coming into existence. They have evolved from PCTs under the transforming community services programme. They will be subject to special health administration arrangements. I ask the Government to confirm whether the social enterprises that come under the health special administration arrangements are coming under arrangements based on insolvency law and that, as such, that allows assets to be transferred outside the NHS and the redundancy payments are not guaranteed.

Amendment 295CA is intended to ensure that clinical commissioning groups are consulted before the Secretary of State makes regulations that allow Monitor to impose charges on commissioners. The charge imposed can include a levy to fund Monitor’s functions that have to be invoked in the event of failures. Amendment 295CB is intended to ensure that when setting such a levy, Monitor takes into account the impact of the levy on the financial stability of the organisation, especially a financial trust that is already in distress or failing. Amendment 304A requires that the commissioners are considered when the services of a failed financial trust are considered by Monitor and should be involved in the decision as to which should be continued, and that such services must include some continuation of education and training, because in planning for the future workforce, if a whole lot of posts were suddenly lost, it would destabilise the workforce planning. That is in addition to considerations such as the service provision and issues of equity and access. That becomes particularly important because if you do not have the staff with the appropriate training, you cannot, in the long term, provide the service anyway.

Amendment 304B is intended to ensure that commissioners are involved in the board's role in agreeing arrangements to secure continued access to NHS services will be achieved. Will that include the board’s selecting which commissioner would become lead commissioner for the process during a failure?

Health and Social Care Bill

Debate between Baroness Finlay of Llandaff and Baroness Thornton

Wednesday 16th November 2011 Lords Chamber

[Baroness Finlay of Llandaff]

I have added my name to one of the amendments in this group but support many of the others. The key issue is that children often need accurate diagnosis but do not get it. It is the way in which you detect learning difficulties of all sorts—sensory impairment and motor impairment. The need for a range of services integrated to support children is critical because as they grow up, unless their needs are addressed early they become greater; they do not decrease.

I shall illustrate that. A little girl, whom I shall call Emily, is eight. She was born prematurely but by the time she is eight, having had a stormy neo-natal period, she has epilepsy, cerebral palsy and swallowing difficulties. She is wheelchair-dependent, partially sighted and has communication difficulties. For her ordinary care, like other children, she needs her GP, district nurse and health visitor. For her hydrocephalus she needs paediatric neurosurgery. For her complex epilepsy she needs paediatric neurology. She needs physiotherapy because of the cerebral palsy and cramps. She needs speech and language therapy to help her learn to swallow efficiently and occupational therapists who help her to manipulate her communication device through which she communicates with her family who love her dearly and want to do the best for her.

That is one example and we have hundreds of children in our country who need integrated co-ordinated care. Perhaps Emily was lucky because she got the interventions that she needed and they were brought together. But, we also have a lot of children, as referred to in this debate, who are being missed on the way through because they do not have such clear-cut presentations. That is why, unless we use this as an opportunity to really change the way that we look after our children in health and social care in the broader context, we will be failing them.

[Baroness Thornton]

My Lords, this is a very important debate and the first opportunity we have had to look at the proposals affecting children. The Government’s plan is that public health services for children under the age of five, including health visiting and the family-nurse partnership, will initially be commissioned by the NHS Commissioning Board. To facilitate its plans to increase the health visiting workforce by 4,200 over a four-year period from 2011, the intention is that eventually this responsibility will pass to local authorities, which from the outset commissioned services for children between the ages of five and 19, including the Healthy Child Programme for school-age children. Maternity care meanwhile will now be undertaken by CCGs, although it was originally intended that this would be undertaken by the NHS Commissioning Board. The board will still be responsible for specialist neonatal services.

In the very helpful public health report recently published by the House of Commons Health Committee, Councillor Rogers of the LGG told the committee that the initial split of commissioning children’s public health services,

“doesn’t make sense. There is obviously a serious risk of a gap developing around the age of five, and it doesn’t make sense for school nursing to be in one place and health visiting to be in another”.

The Government’s response to the Health Select Committee was that,

“we believe that the commitment to raise the number of health visitors by 2015 is best achieved through NHS commissioning and thus will retain our existing proposal that the NHS Commission Board should lead commissioning in this area in the short-term”.

Health and Social Care Bill

Debate between Baroness Finlay of Llandaff and Baroness Thornton

Monday 14th November 2011 Lords Chamber

[Baroness Finlay of Llandaff]

I hope that the noble Lord, Lord Mawhinney, will be tempted by this comment. If commissioning groups do not have a duty towards education and training, there is a real danger that they will commission services that are equal in quality but undertake no education and training and are therefore of a lower price as they do not incur the expenditure of having to have facilities, and so on, to provide education and training as well. In that case, we will deny the developing workforce expertise of quality placements in many parts of Britain as local commissioning will not take account of it.

[Baroness Thornton]

My Lords, at the risk of stating the obvious, the massive reorganisation of the NHS proposed in the Bill, combined with the need to make £20 billion of efficiency savings, without doubt, and with common agreement across many of the professions, threatens the quality and delivery of medical training, post-graduate training and workforce planning. That is why noble Lords have been exercised about this matter from the outset.

The concern is that responsibility for medical training will be given to healthcare providers who, as I understand it, have a history of allowing service and research to dominate the agenda at the expense of education. That brings with it risks of its own. Many trusts, as other noble Lords have said, have persistently failed to support education supervisors by recognising this activity in job plans and increasingly failed to support their staff in fulfilling important national roles related to standards setting and training. I think that most noble Lords who have spoken would agree that there is an insufficient mention of the safeguards that need to be put in place to protect the quality of medical training.

The noble Lord, Lord Kakkar, and my noble friend Lord Turnberg mentioned their concern about post-graduate deaneries. Indeed, that was a major stream of work for the Future Forum. I would like to say to the noble Lord, Lord Mawhinney, that as he made his remarks about the Future Forum I wrote in my notes that I do not understand why the Department of Health seems to have franchised that particular piece of policy-making out to the Future Forum. I think that the Future Forum was right in what it said about the dangers and risks involved in abolishing the strategic health authorities and its recommendation that it was mandatory and critical that alternative arrangements should be made.

We know that post-graduate deaneries are currently pivotal in quality-managing the delivery of medical training in trusts, but the planned replacements, being answerable to and funded by healthcare provider units, may lack the impartiality required to drive the quality agenda at a time when it is most needed because of the fiscal pressures and the associated threat to education quality. We all agree that effective management of the complexities of post-graduate medical training require professional leadership skills and experience, which take many years to develop. The noble Baroness, Lady Finlay, underlined that point in her remarks. My noble friend Lord Warner put his finger immediately on the crucial aspect—how will the money be safeguarded and how will we make sure that the funding that is necessary is in the right place, is accountable in the right place, and cannot be directed into places that we would not wish it to be? How will the Government make sure that that is what happens?

I was very struck by the briefing on this matter by the Royal College of Nursing. The noble Baroness, Lady Emerton, referred to this. The Royal College of Nursing expressed its concern that Medical Education England would dominate the new organisation, HEE. I think we would all agree with the RCN that:

“It is essential that nurse educators are treated as equals and the membership of HEE is representative and not led by the medical deaneries”.

The Royal College of Nursing also believes that there is an essential role for national planning in the delivery of these important functions. I think that there are great risks in the decentralisation of education and training in terms of quality, standards and safeguards. It is unclear how the skill networks or the LETBs will be held accountable for performance issues. It is not clear what authority Health Education England will have to enforce performance issues or how its overseeing of the skills network will take place.

There are some key questions for the Minister to address. The crucial one, which was mentioned by the noble Lord, Lord Owen, who used the expression “chasm in continuity”, is how long we will have to wait for legislation. We cannot be sure that the primary legislation that will be required in this area is going to come down the track in the next year. The Minister needs to recognise that it is too risky to leave this to chance and we have to put the appropriate duties and powers in the Bill to ensure the continuity that the noble Lord, Lord Owen, mentioned. On these Benches, we are very happy to discuss how to resolve that particular issue and how to ensure that medical education is safeguarded.

This is an important group of amendments. I am slightly worried by the statement of the noble Lord, Lord Ribeiro, that this is work in progress. The problem is that there is too much work in progress and there will be too much work in progress for the next few years. This is an area where we cannot take chances. We know from previous reorganisations, for which my Administration were responsible, that we have to be absolutely sure that we are safeguarding the education and training of future generations of workers in the National Health Service.

The most reverend Primate said that continuity and certainty are vital. I agree with him. Certainty in this area is vital. I look forward to hearing the Minister’s views, but I suspect that we have not heard the last of this subject.

Health and Social Care Bill

Debate between Baroness Finlay of Llandaff and Baroness Thornton

Wednesday 2nd November 2011 Lords Chamber

[Baroness Thornton]

I think that the noble Lord misheard me. I said that it was the first time that we had discussed this in the process of this Bill. I beg to move.

[Baroness Finlay of Llandaff]

My Lords, I shall speak especially to Amendments 10A, 10B and 11A, and address my remarks principally to Amendment 10A, whose aim is to avoid fragmentation and inequity through a loss of contiguous, coterminous and comprehensive area-based structures for healthcare resource allocation planning, commissioning and service co-ordination. The amendment would ensure that the sensible changes that were just agreed today over GP contracts for this year are carried forward into GP consortia arrangements. The Secretary of State, Andrew Lansley, himself discussed issues around area-based practice at the congress for the Royal College of General Practitioners last month, and had a fairly extensive and open discussion with the GPs there on this topic.

I move to the Bill as it stands. I hope that with some of the background discussions that have been happening, my amendment will not just be dismissed and will be quite seriously considered, because it might solve a problem.

In the Bill, the new commissioning consortia’s duty—

Medical Profession (Responsible Officers) Regulations 2010

Debate between Baroness Finlay of Llandaff and Baroness Thornton

Tuesday 23rd November 2010 Lords Chamber

[Baroness Thornton]

My Lords, as the Minister quite rightly suspects, it was a combination of the report of the Merits of Statutory Instruments Committee on 7 October and my concerns that some aspects of the statutory instrument as drafted need further explanation that caused me to put down this amendment to the Motion this evening. I think it is important to say from the outset that as one of the Ministers who guided the Health and Social Care Act 2008 through your Lordships' House with my noble friend Lord Darzi, I am very pleased that this Government are showing determination to push ahead with this agenda because at the heart of this legislation are patient safety and ensuring that all clinical professionals deliver high quality, effective and safe care to their patients.

I fully appreciate that responsible officers are integral to improving care, and the development of their role seeks to raise the already high standards of the overwhelming majority of professionals, but their job is to identify and swiftly deal with the small number of staff who are not able to meet those standards. The public, professionals and the NHS have a right to be assured that licensed doctors are fit to practice.

I have absolutely no desire to delay the important matter of implementing this legislation. However, I think that it is important that the secondary legislation does the job that the original legislation intended. The report by the Merits Committee raises some important questions in this regard, as do some of the important bodies whose membership will, as it were, be on the receiving end of the instruments.

I think that the regulations do a very good job of describing the duties of the responsible officer and, indeed, the connection between responsible officers and designated bodies and medical practitioners, and this leads me to my first set of questions. Part 1 of the schedule contains a list of designated bodies that includes at least two organisations that the Government intend to abolish: strategic health authorities and primary care trusts. I join the Merits Committee in its recommendation that the House seeks clarification on how the Government's proposed changes to the NHS structure will affect the revalidation scheme in general and these regulations in particular.

Since the 2008 Act, the UK Revalidation Programme Board—hosted by the GMC, which I thank for its briefing and comment on this matter—has been rolling out the reform in phased stages, including a number of pilot exercises which aim to produce a well informed and robust system. Can the Minister tell the House how the changes that have been proposed will affect the pilots and their results? For example, the published guidance says that the responsible officers themselves will be assessed by the responsible officer in the strategic health authority, so what will happen now? How will the Government overcome this problem? I anticipate that we can expect some further orders and, if so, when and will they too be piloted? If nothing exists in the structure of the newly reformed NHS between groups of commissioning doctors at local level and the NHS Board at national level who or what will perform this function?

At the time of the original legislation, we had considerable discussion about the GMC and its role in this matter and about not conflating its particular and important role as the independent regulator for doctors in the UK or, indeed, creating conflicts of interest. At the moment, it seems to me that the only body that would appear to have a structure between the very local GP consortia and the national board is the GMC. What is the Minister’s view of this? How will revalidation work under those circumstances?

I thank the Minister for forwarding to me the letter that his honourable colleague Anne Milton sent to members of the Delegated Legislation Committee in another place. In this letter, she addressed the changes of architecture to the NHS. However, I am afraid that I did not find her explanation very comforting. She says:

“The Government’s proposed changes to the structure of the NHS set out in the White Paper ‘Equity and Excellence: Liberating the NHS’, in particular the abolition of PCTs and SHAs, will not affect the majority of organisations designated under Regulations, including NHS and independent hospitals. These organisations need to start putting the systems in place that support doctors, and provide the information that demonstrates the quality of care they provide. Without this, there is a danger that doctors will be inadequately supported for the introduction of medical revalidation in 2012. I believe that the medical leadership and stability provided by having responsible officers in place will also be important during this period of change”.

Well, quite: the two bodies that can provide that leadership are being abolished.

I turn now to concerns that have been expressed by professional organisations, which particularly led the Merits Committee to say that,

“these regulations are drawn to the special attention of the House on the grounds that they imperfectly achieve the policy objective”.

When I was a Minister, I would have regarded that as the parliamentary equivalent of being put on the naughty step and given a detention at the same time. I think that the Minister needs to give some thought to this matter and to put his responses on the record.

The British Medical Association has said that the laying of the order is “premature”. Although I am not one for delaying these matters, the Minister needs to address its concerns. The Royal College of Surgeons has expressed disappointment that many of its concerns were not addressed in the regulation. It raised the issue of potential conflicts of interest to arise from the installation of responsible officers with simultaneous corporate board responsibilities—for example, medical directors.

The RCS seems to think that such officers might be torn between trust obligations and the professional role of the responsible officer. I am sure that the Minister will be familiar with the examples that these organisations have raised. How do the Government intend to avoid the revalidation recommendations becoming the tools of managers and trust management agendas, rather than matters relating to the compliance of GMC and Royal College standards? Will the Minister confirm that it is the responsible officer’s responsibility to examine the doctor’s clinical ability and professional conduct, not his contribution to the meeting of trust budgets or targets? On this matter the regulations appear to be silent. Perhaps the Minister will expand. The RCS has expressed particular concern about the failure to incorporate whole practice appraisal in these provisions. I think that the Minister needs to give the House an explanation and reassurance about the need for the comprehensive protection to which patients are entitled.

On indemnity, will the Minister confirm how the Government will approach the issue of the potential increase in contributions for medical directors who take on the role of the responsible officer?

Finally, the GMC has expressed concern about appeals and that there is a significant omission of local appeals systems. The GMC fitness to practise processes should not be both the first and the last resort for appeal. There should be a viable appeals structure that flows up to fitness to practise. The British Medical Association says that in some organisations progress has been slow in demonstrating the capability to pull together the necessary data to actualise the new system. It says that appraisal has been patchy and disjointed in many organisations, and that that is quite aside from getting around to supporting any appeals system that may arise. I have raised several issues and I suspect that other noble Lords will seek clarification on the various other issues. I look forward to the Minister’s response.

[Baroness Finlay of Llandaff]

My Lords, we all know the sad history of this, through Shipman, which has led us to where we are today. I do not want to block these reforms because they will improve medicine for patients and for clinicians. But there are some questions which need to be sorted out urgently. One question is the role of the responsible officer in relation to doctors in primary care, particularly with the reorganisation.

In his opening remarks, the Minister spoke about trusts, but I would suggest that hospital practice is very much the easy end of it. The difficulty is where will doctors in primary care sit? How will the responsible officer work in relation to them? Where will academics sit and who will be the responsible officer, because there is sometimes a conflict, as has been pointed out, between academic priorities and the clinical priorities of a trust where that doctor may have an honorary contract? Even more, what about locums? What about the doctors who are constantly moving around? How will they be captured in the system? How will they be adequately and appropriately revalidated? Even with what used to be called 360 degree appraisal—that is, getting opinions from a lot of people—with locums there is a real danger that they will only spot their friends to fill out the forms because they may have had lots of contacts. Those concerns may never be sufficiently in the system to be raised before such a doctor moves on.

There is also a difficulty for those who raise problems. It may be that the doctor who is seen as the sand in the shoe of the trust, the difficult person, is raising real concerns about the way in which management is conducted, which is impeding good patient care. We know that one of the biggest problems is attitude. Often, the biggest problem encountered is not about the ins and outs of technique, because you can retrain on that quite quickly, but is about someone’s attitude. Someone who is whistleblowing, someone who works in the same organisation—I hate to use the term “whistleblowing”, because it is a sad reflection of the NHS as it is today that that term is around—and raises concerns should not in any way potentially be penalised for doing so. We would just go backwards and not forwards if that is the case.

Given that the majority of doctors are doing a really good job and are very flexible and going through changes, the system that comes in must not be too onerous. It must not be just a tick-box exercise. It has to be subtle enough to pick up real issues around performance and attitude. It has to pick up qualitative feedback, so that a bad attitude is detected, including a bad attitude towards patients.

As regards the responsible officer, I am afraid to say that I am sufficiently old-fashioned to think that I would prefer the minimum time after qualification to be a bit longer. It is not until someone has been practising for about 15 years that they really have accrued enough wisdom to be able to take on what will be a very onerous and potentially important role in relation to their colleagues. We need them to have a degree of wisdom. The appeals system is absolutely crucial if this is to work well and fairly. I hope that the Minister will give us a full reply in his response.

We also must be clear that the system will not pick up another Shipman. This is a clinical system and not a criminal justice system, so no one should be fooled into thinking that it will. Dame Janet Smith pointed out two things. First, the most important information about patient safety is doctors watching other doctors. They have to be able to raise concerns easily. Secondly, a good clinical governance system is a system in which questions can be raised at an earlier stage and more readily. So it is the whole system of the NHS with good clinical governance that will make this work. I hope no one thinks that just having responsible officers putting in appraisals will do the job because that will be a wallpapering exercise.

However, my main concern relates to primary care and to financial conflicts. In a privately managed organisation there may well be a conflict between what is actually in the patient’s best interest and what is being put forward as the protocol in that managed care programme. It may well be that the doctor is working in the patient’s best interests, but not in those of the organisation. Again, there has to be a degree of neutrality among the responsible officers. I hope that the Minister will be able to give replies to all these concerns, and like other noble Lords, I look forward to his response.