Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Baroness Finlay of Llandaff and Lord Newton of Braintree

Wednesday 7th March 2012 Lords Chamber

[Baroness Finlay of Llandaff]

My Lords, I sense that the House is getting to the point where this debate needs to draw to a close, so I will not go over the points that I was going to make at length, except to point out that there is a moral case and a financial case for both the first two amendments in the group. The moral case is that people are particularly vulnerable when they are in the hands of clinicians, their vulnerability being the reason that they need a clinical intervention. Therefore, closing down access to justice or compensation when things go awry seems particularly wrong.

I have a further point to make on allowing clinical negligence to come back into scope. The financial arguments, as already laid out by the noble and learned Lord, Lord Lloyd of Berwick, and in the report of King’s College London, indicate that on financial grounds alone both these amendments make sense. To repeat the figures given by my noble friend Lord Wigley, the cost to the public purse is estimated to be £28.5 million, as opposed to the £10.5 million that the Ministry of Justice hopes to save by this measure. We have heard a lot about the need to save money.

There could be unintended consequences from this calculation of increased, not decreased, expenditure. The intention behind the Government’s amendments is to be welcomed but I fear that there will be complications in, for example, trying to work out the dates of a pregnancy if a scan is not done in the first trimester. Women’s periods are notoriously unreliable as a method of establishing dates in a pregnancy, and arguments about whether it is one day or another will make life extremely difficult.

I end by pointing out that in his report Lord Justice Jackson said that of all the proposed cutbacks in legal aid, the removal of legal aid in relation to clinical negligence was the most unfortunate. He went on to state that if—in his view, wrongly—legal aid for clinical negligence was cut, then removing legal aid for expert reports would not make sound sense.

[Lord Newton of Braintree]

My Lords, I wonder whether I might be allowed to intervene from this Front Bench position without people feeling that I have fallen victim to delusions of grandeur of one kind or another.

I wish to make three points. First, I support the general thrust of the arguments that have been put forward by the noble and learned Lord, Lord Lloyd, the noble Baroness, Lady Grey-Thompson, and my noble friend Lady Eaton. I shall not elaborate but I think that they have made excellent points which need to be considered.

The second is to build on what was said by my noble friend Lord Cormack and, even more so, by the noble Baroness, Lady Mallalieu, about one striking aspect of the speech of the noble and learned Lord, Lord Lloyd, and indeed the note he had sent me. Had I had the temerity to intervene in the winding-up of the previous debate or had I wished to elongate my speech in that debate, I would have said that those of us who were supporting it were not hell-bent on increasing the deficit and raising the debt. The key point is that we just do not believe the Government’s figures. No one outside the Government believes that savings are going to be made on the scale that the Government claim, and in many cases we think that the deficit is going to be increased. We now have this concrete example of where the figures are wrong, and I hope that the House will bear that in mind.

Finally, one thing that sticks in my mind from this whole exercise is a seminar at which we heard from someone who had been severely damaged by clinical negligence, along with his wife. Victory in that case had enabled the wife to go on looking after the man and for him to go on having as normal a life as possible in a severely disabled state. I just ask myself how much the state saved in that one case, where the husband and wife would not otherwise have been able to go on in those circumstances. How much had been saved in terms of many years of residential care or much more extensive support from the social services department? In my view, these are the things that have not been factored into some of these calculations, and there are many others. Although not strictly related to this amendment, every child taken into care costs £36,000 a year. These are the costs that have not been factored in. I think that we are owed some better answers than we have had so far, and I hope, without much expectation, that we will get some better answers tonight.

Health and Social Care Bill

Debate between Baroness Finlay of Llandaff and Lord Newton of Braintree

Wednesday 29th February 2012 Lords Chamber

[Baroness Finlay of Llandaff]

My Lords, I also have an amendment in this group. For the convenience of the House, I have left it there because it concerns the clinical commissioning group’s function. On 27 February, the Minister rejected the amendment that I had tabled, which provided that the Commissioning Board must ascertain that clinical commissioning groups commission for less common conditions and that they collaborate.

Today is Rare Disease Day and my amendment specifically addresses rare diseases. In responding to me on 27 February, the Minister cited sources of advice that are available to patients, healthcare professionals and carers, specifically NHS Choices and NHS Evidence. I have been to their websites to find out how they inform commissioning for some of these rarer diseases. They are very helpful websites and they are a resource, but they are enormously complex. Trying to read across from one condition to another to put together a cohesive package for commissioning is very difficult. I am concerned that replicating this in lots of small clinical commissioning groups all around the country will be, in effect, a duplication of effort.

For some of these conditions there is no NICE guidance at all as yet. NICE does a fantastic job by producing the guidance that it does but it is not there for everything. The European Union’s recommendation of an action in the field of rare diseases has been published. The Minister informed us that there will shortly be a consultation on the Government’s response to that.

What are these conditions? They range across 5,000 to 8,000 different diseases, which occur at an incidence of less than five cases per 10,000 of the population. However, most of these people suffer from diseases that are so rare that they affect less than one person in 100,000 of the population.

The European Union recommends that member states should have plans and strategies in this field and adequate definition, codification and inventories of these diseases and research into them. It also recommends that member states should establish centres of expertise with a European reference network, gather expertise and empower patient organisations. These objectives are compatible with the amendments in the name of the noble Baroness, Lady Cumberlege. The European guidance also states that these services should be sustainable. However, given that the prevalence of these diseases is so low, it would not be cost-effective routinely to commission services in populations of fewer than 250,000.

These amendments are supported by more than 98 patient organisations, 70 of which are members of the Neurological Alliance. There is concern about the application of the appropriateness test to clinical commissioning groups. The biggest area in this context often relates to rehabilitation and aftercare and comprises people with severe anorexia and those who are rehabilitating after a severe head injury or major trauma or stroke and quadriplegia. An increasing number of survivors are coming back from our theatres of war who would previously have died of their injuries. They require complex rehabilitation. Sadly, there are already instances where some of these soldiers are not able to obtain the prosthetic support that they require and are having to raise funds themselves to obtain their prostheses, and some are going to the United States for this provision.

Some people may think that stroke is a common occurrence and therefore does not come into this category. However, some types of stroke are complex and occur infrequently in the population. Stroke comprises a very broad spectrum of diseases. Some of the rehabilitation and services required fall to local authorities to provide. There is concern about the extent to which the appropriateness test will be applied and where discretion will lie as regards these conditions. As I said, the clinical commissioning groups cover relatively small population areas and therefore it is not cost-effective for them to commission services for less common conditions. I am concerned that they will have no duty to collaborate with other clinical commissioning groups in commissioning services. One hopes that they will but there does not seem to be a requirement that they should. If commissioners lack adequate guidance on best practice in commissioning comprehensive and equitable services, they risk commissioning services which do not provide value for money and do not meet the needs of people with these less common conditions. The National Audit Office report on services for people with neurological conditions showed that there is a great need for improvement in service provision for this population, with significant variation in access to services and variation in quality in different areas. Even where there are localised examples of good practice, sometimes leadership is lacking on the outcomes analysis so these bodies are not able to disseminate their good practice for wider implementation.

The Bill certainly provides opportunities for collaboration between clinical commissioning groups, but not encouragement or incentives to do so, and these groups are left to determine when to co-operate. This amendment would provide an important indicator for clinical commissioning groups and would bridge the strategic gap between the commissioning that will be done centrally by the Commissioning Board and that which will be done at a local level. I give a very simple example of a neurology service involving someone with motor neurone disease who requires non-invasive ventilation. That service should be provided in patients’ homes or somewhere nearby. If it is not provided to a high standard, patients have a much higher chance of ending up as emergency admissions—in fact, this is almost inevitable—and the cost of that provision is three times that of providing adequate NIV services. It therefore becomes very cost-effective to ensure that there is appropriate commissioning for this group across the piece. The risk is that the disparity in service provision and outcomes will widen. I stress that the difficulty comes because these patients sit in the spectrum between what will be commissioned centrally by the Commissioning Board, what will fall to the clinical commissioning groups and, when patients get into long-term care and rehabilitation and being sustained at home, what will fall to the local authority—and that has not been made clear.

I will listen very carefully to the Minister’s response because this matter is so important that we may need to test the opinion of the House. I am hoping that I will get satisfactory answers from him and that these discrepancies will be clarified. If not, I ask him, if he is unable to provide adequate answers, to consider these issues at Third Reading.

[Lord Newton of Braintree]

My Lords, perhaps I may briefly intervene, although not in any way to differ from my noble friend Lady Williams of Crosby; I am much too diffident to dare to do that. In fact, I want to raise a few nitpicking points that occur to someone who has had a bit of ministerial experience over a fairly long period. They occur in relation to several of these amendments. First, it is far from clear, in light of the exchange with my noble friend Lord Mawhinney, just what “resident” means in this context. Someone needs to answer that clearly before we go down the path of the amendment. Secondly, on a related matter, does the proposal mean—whatever “resident” means—that people would be entitled to free NHS services, regardless of their status? Under existing law, a lot of people living in this country are liable to be charged for NHS services. That is not clear in some of these amendments.

In particular, it is not clear whether illegal immigrants are liable to be charged. I do not know the answer to that, and I probably ought to. If, however, they are liable, it is another factor to be taken into account when looking at what all this means. If we really mean that clinical commissioning groups must provide services—and I shall come back in a moment to the term “provide”, which also occurs in another of the amendments—to everyone resident in their area, how are the CCGs to establish that? Illegal immigrants, along with a number of other people, go to great lengths to stay beyond the radar. They will not be on the electoral register. They will not be registered with doctors. They will be trying to make sure that no one knows they are there. Do CCGs have to set up an immigrant police investigation team to find out who is resident in their area? These may sound like nitpicking points but they would be real issues if an amendment along these lines were passed, even though I am sympathetic to the aim. Parliamentary draftsmen would need to do some work.

What does “provided by” mean? Clinical commissioning groups will not provide many services; they are essentially commissioning groups. Do we mean “any services commissioned by” commissioning groups, many of which will involve secondary services—certainly—tertiary hospitals, and a whole range of other people? The amendment and several others in the group, however worthy their purpose, require a lot of careful drafting before we can accept them as amendments to an actual piece of legislation. My noble friend may care to comment on that.

Lastly, this rather curious group also includes the amendments of my noble friend Lady Cumberlege relating to HealthWatch England. I cannot see any problem with them. I support her entirely. It seems to be a no-brainer that if we are to set up a healthwatch system, people should have to take account of what their local healthwatches have to say.

Health and Social Care Bill

Debate between Baroness Finlay of Llandaff and Lord Newton of Braintree

Wednesday 30th November 2011 Lords Chamber

[Baroness Finlay of Llandaff]

My Lords, I added my name to these amendments, so eloquently introduced, with the evidence behind them informed by my noble friend Lady Emerton. It is important to state that these amendments may not be perfectly worded, as the noble Lord, Lord Alderdice, has pointed out, but the principle behind them has a lot of evidence to it. This is not about protection of a certain number of jobs; this is about the fact that you cannot substitute without having skills, competencies and attitudinal evaluation within a particular area.

There may be staff at different grades who will work in a complementary way and there is complementarity, but you cannot substitute. Physio assistants cannot be used to do what physiotherapists do. The same applies right across the piece. It is not just baseline qualifications, however; it is all the other layers as well. You do not want to be in an intensive care unit nursed by trained nurses who are not fully trained in those ventilators that are in use on that unit, who do not have all the additional skills as well and cannot communicate with patients in that situation and with their families.

As the noble Baroness, Lady Murphy, said, the evidence is overwhelming when you look at intensive care units but it goes right across the piece. I would like to cite briefly what we tried to do in Wales in my own discipline. We set minimum levels for the level of staff and the competencies for palliative care across the whole of Wales. It was not easy to do but it has worked and it has been a lever to drive up standards and drive up quality and to get some people to increase their training and go back to doing more training, without it incurring additional cost.

I recommend to the Minister that the Government look carefully at this amendment and think about some way of ensuring that patients across the whole of the UK will know that they will be looked after by people with the appropriate competencies and that, in times of financial stringency, we do not find that people revert to substitution as a misguided way of saving money which will be at the expense of quality if not at the expense of more than that.

[Lord Newton of Braintree]

My Lords, I wonder if I might come in on the side of the “sympathy but” brigade, which makes me a member of the same club as all those who have spoken before me. I have a lot of sympathy with the purpose of the amendment of the noble Baroness, Lady Emerton, but I worry about the rigidity of their terms in relation to specifying ratios and a maximum number of people that any nurse can deal with. It seems to me that this is a prescription for a degree of inflexibility that could end up closing wards for reasons that would not be sensible.

I am scarred by something that happened at Birmingham Children’s Hospital in my period as Minister for Health; it arose from a shortage of paediatric intensive care nurses. I do not know whether they are still in short supply but that is the kind of problem that would be exaggerated by this kind of rigidity. Nevertheless, the basic thrust of the amendment must be right.

There is only one other point I really want to make. As I understand it, my noble friend is likely to say that this is not something for the health Commissioning Board, but for the Care Quality Commission. I do not accept that. The Care Quality Commission will be doing snapshots, perhaps a bit more vigorously than it has done in the past, sometimes unannounced and so forth, but nevertheless more often than not there will be a snapshot of the situation at a particular time. I cannot see that the Commissioning Board can commission services without specifying something about the standard at which it expects that service to be provided, and that is relevant to this question of staffing levels in a general sense. So while I believe that it would be wrong to say this is all a matter for the Care Quality Commission, equally I do not believe it would be right to be as rigid as some parts of the amendments are at present.

--- Later in debate ---

[Lord Newton of Braintree]

My Lords, perhaps I may chip in once again in seeking that my noble friend should at least listen very carefully to what has been said by the noble Lord, Lord Warner. I probably ought to declare a sort of interest in that my wife is currently a member of a PCT board. I would like some clarity about just what the situation is in this respect. As the noble Lord, Lord Warner, indicated towards the end of his remarks, the contrast between what is being put in place at the moment and what is prospectively going to be put in place is even greater than the actual number of PCTs at present because of what has been done about clustering. At the moment—I do not know the exact figure on clusters—there is an even bigger contrast between, as I say, the number of clusters and the potential number of clinical commissioning groups, with all the costs, potential fragmentation and the rest of it that that might entail.

There is another issue and I just want to find out exactly how the Minister sees the position. Clustering has been achieved not by abolishing or merging PCTs but by appointing the same people to the boards of several PCTs. I think that the House should be clear about that. I want to know from the Minister exactly what is the number of PCTs at the moment; whether that number has in any way been affected by clustering; and whether the PCTs, which still exist as legal entities alongside the clusters which are not legal entities, continue to have all the responsibilities and duties that are assigned to them under the statutory basis on which they were set up in the first instance. PCTs remain the statutory entities. The clusters have no statutory basis at all, and we need to be absolutely clear what the situation is, how many PCTs we have and what their responsibilities are.

[Baroness Finlay of Llandaff]

My Lords, I have an amendment in this group. At first sight the group might seem loosely hung together but there is a common theme running through all this, and that is: how much is all this going to cost? The back-office functions for commissioning are not inconsiderable, and the more that clinical commissioning groups come together, the more some of those back-office functions can be merged and cost-savings made—or at least the more that expenditure can be decreased, because it is not really cost-saving. The document Developing Commissioning Support is quite interesting because it reveals the complexity of many of the back-office support functions that clinical commissioning groups will certainly need. Indeed, GPs themselves are independent contractors to the NHS. In many ways, that is why the amendment in the name of the noble Lord, Lord Hunt, is so sensible. Many of the other people working in the community are actually salaried, so they do not get any financial gain from contributing to a clinical commissioning group, whereas there are financial incentives for general practitioners in different ways of commissioning. For example, they often run out-of-hours services and may effectively be commissioning those from themselves within a particular area.

I want to draw the Committee’s attention to the need for collaboration in commissioning for those patients and groups of patients who have relatively rare but not terribly rare conditions. I shall take motor neurone disease as an example. In Nottingham, there is a properly commissioned neurological network that works across different PCTs with a lead PCT and the patients with motor neurone disease are able to access a pathway of care—a complete package of care—that is consistent with the Motor Neurone Disease Association’s own Year of Care pathway, which it developed to inform commissioning some time ago.

In another area, Southampton, no end-of-life care has been commissioned for motor neurone disease patients over the past five years. That means that patients even have to move to other areas, such as Gloucester, simply to access specialist palliative care when they are aware that they are going to need it at the end of life. That cannot be right. We know perfectly well that when you provide good integrated care, the quality of patients’ lives as their disease progresses can be improved by appropriate interventions. However, without it, it is a council of despair. The PCTs in that area have refused to fund end-of-life care for motor neurone disease patients, and it is an ongoing problem. Recently, two of the commissioners in the PCT were so concerned that they made a business case, but it was not backed by the PCT on financial grounds, because it is short of funding.

There is another problem, and another reason that clinical commissioning groups need to come together and collaborate. Quite a few seem to be looking at using the map of medicine as a basis to inform their commissioning decisions, but the map of medicine was not devised and written to guide commissioning. It was meant to guide clinical decision-making, and it is not complete in any one sector. You need to put the different parts of it together. For example, if you take chronic obstructive pulmonary disease, it does not have end-of-life care within its module. So if you use that module, you will not get the complete package that patients need. You also have to go to the end-of-life care module. Some of us who have looked at it in detail do not think that it is an appropriate template to use for comprehensive commissioning of services integrating processes early in the disease and right on through.

The commissioning groups are going to be on a very steep learning curve. They are going to find things very difficult, and with many small groups, the cost of them trying to do the commissioning will go up, and that is before they have used their funding to actually commission the services for patients that they have responsibility for.

These are very important amendments. This group and the next one get right into the heart of some of the problems that are beginning to emerge over the way that clinical commissioning groups are defined in the Bill.

Health and Social Care Bill

Debate between Baroness Finlay of Llandaff and Lord Newton of Braintree

Monday 28th November 2011 Lords Chamber

[Baroness Finlay of Llandaff]

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

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

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

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

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

[Lord Newton of Braintree]

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

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