Health and Social Care Bill

Debate between Baroness Finlay of Llandaff and Lord Clement-Jones

Tuesday 6th March 2012 Lords Chamber

[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.

Health and Social Care Bill

Debate between Baroness Finlay of Llandaff and Lord Clement-Jones

Monday 19th December 2011 Lords Chamber

[Lord Clement-Jones]

My Lords, the amendment has been tabled with the support and assistance of the Royal Pharmaceutical Society and has been designed as a new clause that amends the Medicines Act 1968. It is also designed to increase patient safety by removing barriers to a learning culture across the prescription dispensing process, and to remove the injustice that pharmacists alone, among healthcare professionals, face through criminalisation. Single dispensing errors should be treated in a proportionate way that retains the ability to prosecute those who have been negligent or who have committed a deliberate act but that does not penalise pharmacists who wish to declare a dispensing error in the interests of patient safety.

The role of pharmacy continues to be vital to communities throughout England. Pharmacists are at the forefront of providing advice to patients in an increasingly high-pressure environment. In 2010 nearly 927 million prescription items were dispensed in England. This is a 4.6 per cent rise on 2009 and a 67.9 per cent rise on 2000. Despite this, the error rate of dispensing remains minuscule.

What is the background to the current state of the law? Sections 58, 64 and 85 were inserted into the Medicines Act 1968 to regulate the quality of medicinal products being manufactured in pharmacies across the country. There were concerns that the production of these items, primarily creams and solutions that could be prepared to suit to individual needs of patients, required a legal standard of purity. Nowadays, the practice of creating preparations in community pharmacies is practically non-existent. However, these sections of the Medicines Act have been used in a way that they were not originally intended for: to prosecute a pharmacist who makes a single error while dispensing a medicinal product. The law as it stands makes a single error an automatic criminal offence that is punishable by up to two years in prison.

Why should we support this amendment? Currently, pharmacists are expected to declare dispensing errors in the knowledge that they will face prosecution if they do not do so. Clearly, any person who is either wilfully negligent or deliberately acts in a way to harm a person must face prosecution under criminal laws. This amendment would allow that to continue but would also enable a proportionate response for those who make an error. Minor errors should be learnt of and dealt with through improved practice rather than through discouraging healthcare professionals from feeling able to report errors. Decriminalising dispensing errors will be beneficial to patients and the pharmacy profession through the creation of a culture of learning.

The current system goes against the spirit of openness in which pharmacists and other healthcare professionals should be allowed to work, so as to enhance patient safety. This amendment, or something similar, is the right way in which to tackle this important issue. The passage of the current Bill presents an opportunity to tackle this, and one that should not be missed. I beg to move.

[Baroness Finlay of Llandaff]

My Lords, I support the amendment. It raises a very important issue, namely what happens when an error occurs. At the moment, there is an enormous disincentive for the pharmacist to do what one would say is the right thing, which is immediately to contact the patient, or their family, carer or nursing home, to try to put an immediate stop to the further use of that medication and to do all they can to correct the error. In the law as it is written at the moment there is an in-built incentive to a pharmacist to attempt a cover-up, to weigh up whether the error is a major or minor one or one which they might just get away with, or perhaps even to make a phone call that fudges the issue and tries to cover up the fact that they have made a dispensing error, and to reclaim the medication in another way.

In addition to the importance of a spirit of openness, there is an actual safety issue here. We know from looking at medicine and nursing that when you make it easier for people to admit immediately that they have made an error and to do all they can to correct that error, they are much more likely to handle things in an open and honest way and to learn from it. Certainly I say to all my junior staff, “I know that you will make mistakes. The only thing that I will hold against you for the whole of your career is if you do not immediately notify whoever is the consultant covering you at the time. Mistakes will happen, but you must let people know immediately and take every step to correct them”. I do not see why we should be treating pharmacists in law in a way that works against that type of principle and which is inappropriately punitive.

Health and Social Care Bill

Debate between Baroness Finlay of Llandaff and Lord Clement-Jones

Tuesday 13th December 2011 Lords Chamber

[Lord Clement-Jones]

My Lords, Monitor has a range of duties which could potentially conflict with each other. Of course, we have discussed that previously, and it is recognised in Clause 63 of the Bill.

In specialised care, it is sometimes desirable to limit the number of providers to ensure that patient volumes are sufficient to support clinical expertise and high quality, safe services, an approach which was promoted by the Bristol inquiry and enshrined in the Carter report on specialised commissioning in 2006. This is entirely consistent with Monitor’s main duty under Clause 59(1), to

“protect and promote the interests of people who use health care services by promoting provision of health care services which is economic, efficient and effective, and maintains or improves the quality of the services”.

However, in terms of one of Monitor’s duties under Clause 59(3), to prevent anti-competitive behaviour, this could potentially be described as a restriction of competition. It is therefore important, I believe, to get a clear understanding that Monitor’s paramount duty should be towards the safety of patients, or, to put this another way, towards their welfare. In other words, it is legitimate for competition to be restricted in the NHS where it is in the interests of patient safety.

This amendment is designed to seek clarification that Monitor’s role in preventing anti-competitive behaviour will not debar the designation of providers of specialised services. I beg to move.

[Baroness Finlay of Llandaff]

My Lords, I have an amendment in this group which really builds on the amendment already spoken to comprehensively and efficiently by the noble Lord, Lord Clement-Jones—that is, to not impose a burden on providers in the process.

One of the difficulties in any type of regulation or inspection is that it is very easy for those who are doing the inspection to require more and more data from a provider to support whatever they view as their outcome and their inspection processes. There is a real danger in here that sometimes the regulatory processes can develop a life of their own, and, quite inadvertently, become a burden on providers. We have already seen that occur with some of the current inspection processes in place, which seem to have collected an inordinate amount of data sometimes, but have missed out on real deficits in care.

It is a paramount duty towards the safety of people who use healthcare services, and built into that of course will be good clinical outcomes, because bad clinical outcomes will be unsafe in the process. However, it is also a suggestion—and this is therefore a probing amendment—that the regulatory burden on the providers must not be excessive. They must be able to deliver patient care without diverting resources away from it in order to meet requirements from a regulator.

--- Later in debate ---

[Lord Clement-Jones]

My Lords, I thank my noble friend for that reply, which I have found very helpful. It was robust in one sense and has set out a robust framework in another. Although I was also interested in what the noble Lord, Lord Davies, had to say, in that it would tie us all in knots, I think that the Minister’s exposition was clear in that it has set out a suitable conflict framework. Although I cannot speak for my noble friend Lady Williams, I thought that the Minister explained the necessity for Clause 63(3) very well. His reassurance on the aspect of patients’ interests was extremely helpful as well, although of course it does not mean that the spectre of EU competition law does not still haunt us somewhat and that it will continue to be the subject of discussion, perhaps outside this Chamber. After all, that could override everything else if we are not careful.

I took considerable comfort from the Minister’s undertaking to review Clause 62 as well, because that is quite a shopping list. If it could be clarified, that would be helpful. His general undertaking to the Committee on the conflict area was also very helpful. In the circumstances, I am happy to withdraw my amendment.

[Baroness Finlay of Llandaff]

My Lords, I want to make a brief comment in response to the Minister’s reply to my amendment in the group, Amendment 274ZAA. He said that he was minded to rationalise the items in Clause 63 and therefore I feel that I must put in a formal plea that research, education and training should not be deleted from the list in the process of rationalisation. Having said that, I shall not press my amendment.

--- Later in debate ---

[Lord Clement-Jones]

My Lords, I will speak to Amendment 292ZA, the question that Clauses 119 and 120 stand part, and Amendment 294M. I shall principally speak to Amendment 292ZA, which is designed to make sure that the national tariff recognises the varying costs associated with people who have experienced homelessness or have complex needs in respect of the full range of healthcare services.

The Bill commits Monitor to publishing a national tariff for services which are or may be provided for the purposes of the NHS. Within this, the Bill makes provision for this tariff to be varied to reflect certain circumstances in which it is provided. However, homeless charities believe that the Bill needs to go further and make provision for tariffs to be varied to reflect the level of complexity and disadvantage experienced by certain patient groups. People who have complex health needs can cost more to treat. Unless the tariff structure reflects this, there is a real danger that services will not wish to treat those patients for whom health outcomes can be harder to achieve—such as homeless people.

Why should this not be reflected in the Bill? There is evidence that health services can already be reluctant to work with homeless people because of the higher costs of treating them. Unless the higher costs of treating some patient groups are taken into account, there is a real danger that the new tariff system may discriminate against homeless people and others with complex needs. In the long term, this will also incur a far higher cost to the NHS and other public services. Failure to treat disadvantaged patients at a primary care level can result in higher rates of hospital admissions, greater demands on acute care and the wider costs of ongoing poor health such as worklessness.

Homeless people have some of the poorest health in our communities. People experiencing acute disadvantage can have complex health needs. As the Department of Health’s Inclusion Health report stated, in order to meet the complex health needs of socially excluded groups, we need,

“a sophisticated, coordinated and flexible response from services. The costs of failure are great not only to the individual life chances of socially excluded clients, but also to the taxpayer, services and the communities who pick up the pieces”.

Unfortunately, many mainstream services do not offer this and as a result are not accessible to disadvantaged patient groups.

Currently, some specialist homeless or vulnerable person’s health services have negotiated their own tariff system so that they are not unduly penalised for treating complex patients. However, this can be difficult to negotiate and such services are not widespread. Unless there is provision for this and the new tariff system takes the wider factors that affect disadvantaged patients into account, services may be disincentivised from treating them. This will lead to poorer health outcomes and make it harder for the NHS to achieve a reduction in health inequalities.

My amendment builds on the commitment to improve the health of the poorest the fastest. The intention to reduce health inequalities through the reform of the NHS has been embedded in the reform process from the first White Paper in 2010. It was revisited by the NHS Future Forum, which flagged up a number of concerns about incentives against cherry-picking at the expense of more complex and expensive patients. In their response, the Government said that services,

“will be covered by a system of prices that accurately reflect clinical complexity”.

My amendment would help to achieve that.

Amendment 292ZB is simply designed to make sure that when Monitor sets prices, and consults on whether to vary prices, it takes into account its duty to promote integration. That is the reason for the reference to Section 13M of the National Health Service Act 2006 and clinical commissioning groups’ duties under Section 14Y of that Act.

On the question that Clauses 119 and 120 stand part, these were referred to in my speech at the beginning of the day—that now seems a long way away. This relates to the reference to the Competition Commission under Clauses 119 and 120. This is also to do with the reference to the method of reaching a price under the national tariff. The Minister dealt earlier with the issue of why an independent body had been chosen for that purpose but it could equally well be the OFT, which I believe would be less provocative and probably more apposite. That was certainly the view of my noble friend Lady Williams when she spoke to her amendment, and I very much hope that the Minister and the department will revisit that issue and see whether it is possible for the OFT to be the body that actually looks at the method of setting tariffs in those circumstances where there is disagreement. That would be a lot less provocative and less liable to introduce EU competition law, along with all the other matters that are involved.

I do not currently have Amendment 294M to hand, sadly, but no doubt I will shortly if I keep talking for slightly longer. It ensures that all providers licensed under chapter 3 and operating in relevant clinical commissioning groups are paid the same price for the provision of services. This is designed entirely to make sure that there is a level playing field within clinical commissioning groups’ areas. I hope that it is the intention in the setting of national tariffs that they will be uniform and there will be no difference in tariff paid by one provider versus another within the same CCG area. With that, I think that I have completed all the amendments that I intended to speak to.

[Baroness Finlay of Llandaff]

My Lords, I am tempted to say, “Follow that”; I certainly cannot. The reason why my Amendment 294BZA in this group is a probing amendment is that the wording in Clause 117(1)(a) talks about the,

“differences in the costs incurred in providing health care services for the purposes of the NHS to persons of different descriptions”.

It seemed to be extremely elegant and important to have in the Bill a recognition of the wide variation in both physiology and pathology that different people will present with and that that should determine the tariff itself, not simply be part of the consultation.

I hope that the Minister will be able to provide some assurance that findings from the consultation may indeed provide the range. Is it correct that additional support to secure continued access to services could come through commissioners and providers or, if they cannot reach agreement, for providers alone to be able to apply to Monitor for a modification of the price determined in accordance with the national tariff? Is it correct that Monitor would have the ability to approve and/or set the level of the modification under certain circumstances, using a methodology agreed between Monitor and the NHS Commissioning Board, if a provider could not, at the tariff price, cover its cost with an efficient service? One of the difficulties that keep emerging as we discuss tariffs is the complexity of applying them in the enormously wide variety of clinical situations that will be dealt with across the whole of the health services.

Health and Social Care Bill

Debate between Baroness Finlay of Llandaff and Lord Clement-Jones

Wednesday 16th November 2011 Lords Chamber

[Lord Clement-Jones]

I, too, support the amendments of the noble Lord, Lord Ramsbotham. He clearly has a great deal of support in the Committee for the amendments, on which he spoke so eloquently, as did the noble Baroness, Lady Wilkins.

I come at this as a former chairman, and now the president, of Ambitious about Autism, the autism education charity, and also as a very strong supporter of I CAN, the communications charity for children. I also strongly believe that speech, language and communications needs should be regarded as a public health issue. As both the noble Lord, Lord Ramsbotham, and the noble Baroness, Lady Wilkins, highlighted, speech, language and communication needs are the most common disability experienced by children or adults, and it is now being recognised that communication is indeed the single most significant factor in determining a child’s life chances. Because our economy has become increasingly dependent on communication-based employment, the fitness of a person in this century will be defined ever more in terms of his or her ability to communicate effectively. The economic impact on society of people whose communication disability renders them unemployable is significant and is growing year on year. As a society, we need to recognise this issue and find ways to improve the communication skills of children and adults.

As has been pointed out by the noble Lord, Lord Ramsbotham, a number of primary care trusts and local authorities in England have indeed already recognised the importance of boosting early language and communication development. They have aligned the work of speech and language therapists with the Healthy Child Programme and Sure Start children’s centres to create a powerful public health approach based on primary prevention.

However, in contrast, many commissioners—this was also mentioned by the noble Baroness, Lady Wilkins—as reported by Sir Ian Kennedy last year in Getting it Right for Children and Young People, have a limited understanding of children with speech, language and communication needs. Many of these local areas are still not doing enough to address these needs, and it is clear that the economic and social benefits of early intervention and prevention of speech, language and communication needs must be much better promoted. That is why the approach indicated by these amendments is so important and why I support them.

[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.