Health and Care Bill

Debate between Baroness Finlay of Llandaff and Lord Warner

Lords Hansard - Part 1 & Committee stage
Monday 24th January 2022 Lords Chamber

[Baroness Finlay of Llandaff (CB)]

My Lords, this has been a very interesting short debate. I have two issues to raise. I am grateful to the noble Lord, Lord Hunt, for having raised perverse incentives and, indeed, the danger with perverse incentives that senior consultants with a great deal of experience could be absent from NHS premises when undertaking work such as surgery in other premises; they would therefore not be available to their NHS patients in the event of a problem and some surgery being left to more junior members of staff.

The other issue is the difficulty of ensuring true consent and information for patients when they are offered choice, with respect to their awareness of the staffing levels in the premises to which they will be going. In some of the private providers, there is not very comprehensive out-of-hours medical cover—particularly at night—with somebody on site. There is also a problem that, if a patient should develop a complication, foreseen or even unforeseen, and is in need of an intervention, they may then need to be transferred to a local NHS intensive care unit. In that event, it would be important for the money to follow the patient. If that intensive care unit is out of the area from which the patient has come, I hope that the regulations will allow for appropriate funding of that NHS facility.

[Lord Warner (CB)]

Is the noble Baroness aware that, during the arrangements in which there were contracts with the independent sector to provide elective surgery in independent treatment centres, the quality of that care was both reviewed by the then Chief Medical Officer, Liam Donaldson, and looked at, with evidence taken, by the Health Select Committee? They found that claims about shortcomings in these private facilities were exaggerated—their provision of services was equally as good as that of the NHS facilities.

European Union (Withdrawal) Bill

Debate between Baroness Finlay of Llandaff and Lord Warner

3rd reading (Hansard): House of Lords
Wednesday 16th May 2018 Lords Chamber

[Baroness Finlay of Llandaff (CB)]

My Lords, I begin by thanking the Minister and the noble Lord, Lord O’Shaughnessy, their officials and the noble and learned Lord, Lord Mackay of Clashfern, for the frank and open meetings we have had to discuss the issue of public health. I declare my interest as an honorary fellow of the Faculty of Public Health and I thank Mark Weiss and Angus Baldwin from the faculty, who have been most helpful.

We discussed this vital issue at some length on Report. At that stage, the noble Lord, Lord Hunt of Kings Heath, requested that we return to it at Third Reading. We are grateful to the Minister for agreeing to that so that we can return to the protection of the public’s health being part of retained EU law, as it affects Brexit negotiations and us after we leave the EU. My noble friend Lord Warner led on this principle and, in the light of the Minister’s reassurance, withdrew his amendment at the time. The assurances given on Report were important. I want to quote what the Minister said then, if I may, because I think that it clarifies where we are going now:

“All EU legislation in the area of public health which becomes part of retained EU law and domestic legislation implementing EU public health requirements will, by virtue of Clause 6, continue to be interpreted … by reference to relevant pre-exit case law and treaty provisions”.—[Official Report, 23/4/18; col. 1387.]


This means that Article 168, which was described by the High Court, in a case that went to that court, as at the epicentre of EU policy-making, would be available to our domestic courts in future.

The Minister went on to make it clear that the effect of Article 168 in the domestic law of this country before exit will continue after exit. However, although he had said that in effect Article 168 would be available in the future for UK courts to draw on, conflicting legal advice subsequently obtained by the coalition that had been promoting this is causing concern within the public health and wider health sectors. Since Report further organisations, including the Academy of Medical Royal Colleges, have joined the coalition. There are now 62 major organisations calling for watertight reassurance.

This Brexit-neutral amendment would ensure that both the present Government and future Governments continue to have regard to the Article 168 duty of a,

“high level of human health protection”

as we leave the EU, and ensure that we do not row back on the progress we have made in public health during our time in the EU. The amendment would place in the Bill, and therefore beyond doubt, the fact that Article 168 will be retained law after we leave the EU.

If the Minister cannot accept the proposed new clause—which would be the simplest solution—I hope he will be able to make a clear commitment to this House that Article 168 will be retained EU law after we exit the EU. I also ask him to confirm that the case law itself can be used to hold any Government, now or in future, to account, and that such a statement on the official record of this House can be used in court. Such reassurances would provide additional certainty and clarity about the tone and guiding principles for the UK’s Brexit negotiations across the board, including our future trade negotiations. I am, of course, aware that further legislation will come forward. I beg to move.

[Lord Warner (CB)]

My Lords, as the author and architect of the earlier amendment on public health, I think that I should say a few words. I thank the Minister: we had a number of spirited discussions, and he also had helpful meetings with the noble and learned Lord, Lord Mackay of Clashfern. When I read them carefully after Report, I was satisfied with the assurances that he had given. I think the Government shifted their position from saying that such an amendment was not necessary to recognising that there was case law suggesting that they should make the position absolutely clear on the Floor of the House—and when I had time to read the assurances the Minister gave on Report, I thought that he had done that extremely well.

As my noble friend Lady Finlay has said, there is a good deal of anxiety out there about whether there will be a drop in standards after Brexit. The debate on the previous amendment showed that there was still a mountain to be climbed—not by the Minister himself, but by the Government—to reassure people that many of the pre-Brexit safeguards will be in place, and standards will be met, post Brexit. I think there will be an issue when we deal with any trade Bill in this area: people will want to look very carefully to see that there is no backsliding on public health standards and protections. But for the meantime I thank the Minister for what he has done; I have no wish to make his life any more difficult than it already is.

Health Service Medical Supplies (Costs) Bill

Debate between Baroness Finlay of Llandaff and Lord Warner

Committee: 2nd sitting (Hansard): House of Lords
Wednesday 25th January 2017 Grand Committee

[Baroness Finlay of Llandaff (CB)]

My Lords, I have some sympathy with the amendment of the noble Lord, Lord Warner. It strikes me that the information being asked for in the Bill requires a degree of detail that probably is not going to reflect reality. This is very often a global industry, so defining a “UK producer” will be quite difficult. If we make the information requirements too difficult, I see a risk of some of the larger companies deciding to produce more offshore rather than here.

The other difficulty with the pricing of any medical treatment that comes to market is that it has often had a very long lead time—over years. So the true cost of that particular item becomes almost impossible to disaggregate from all the other costs. Then, once it is produced and packaged, there are distribution costs, the mark-up at wholesale level and so on. I can see how a producer, in wanting to keep a cost high, could potentially move around its budgeting line to protect itself. But the problem is that if you do not have a trigger, you may get so much data that you cannot actually extract the true knowledge and the important information from them. I understand why you would want to have a lot of data to be able to move the cost and map it efficiently, but there is only any point in mapping it if it has accuracy attached to it.

I have a question for the Minister. In all these information requirements, how will a “UK producer” be defined, as distinct from an international producer from elsewhere? I may have missed it, but I could not find it defined in the Bill; I can see only products defined.

It will become almost impossible to know where the true cost is, but if a cost is going up, that becomes counterintuitive. Generally, for medication that is out there on the market, the cost should fall. Usually, production costs drop, because, for example, antibiotic production used to be incredibly expensive and is now very much cheaper because of efficiencies and the way that the science has moved forward. So you would expect, with bulk sales and technological advances, that the cost should come down. I therefore have a question for the noble Lord, Lord Warner, on the trigger mechanism. Is his price absolute—in pounds—or is it also considered relative to other products in that field that may be on the market? For example, we have seen some major discrepancies with ophthalmic products. Eye drops for glaucoma have been incredibly expensive compared to exactly the same substance that is being used in oncology and has been priced at a much lower rate. The question has to come up as to whether the price is being held and maintained inappropriately, rather than having gone up.

[Lord Warner]

In response to the noble Baroness’s point, I would not claim to have actually considered the detail of what level of pricing we will use. My point in this amendment is to try to establish the principle of a trigger mechanism, and I am happy to be advised on ways of improving it.

Health Service Medical Supplies (Costs) Bill

Debate between Baroness Finlay of Llandaff and Lord Warner

Committee: 1st sitting (Hansard): House of Lords
Monday 23rd January 2017 Grand Committee

[Lord Warner]

My Lords, I support these amendments, to which I have added my name. I do not want to go over again what has just been said, but the issue of access is critical. It is why companies have invested in this country. They criticised NICE when it was first set up; they were highly hostile but have been wooed over, have stayed with the game, played in it and continued to make products which are of great benefit to NHS patients. However, having jumped that hurdle they now see a new one, which is driven not by cost-effectiveness but by cost—a straightforward capping of expenditure at an arbitrary figure of £20 million. The noble Lord, Lord Hunt, was a little critical of NHS England. I would be if I thought that it was only NHS England but I do not believe that the Government are not behind this, putting pressure on it. We already have a massive difference of view between the Conservative chairman of the Health Select Committee and the Prime Minister over how much extra money has actually been put into the NHS. The noble Lord, Lord Lansley, winces, but such measures are being introduced basically to stop the NHS carrying out a legal obligation to implement NICE recommendations. I totally support the amendments in the name of the noble Lord, Lord Hunt, because they are a way of trying to ensure that, where repayments are made, they go back to where they should be, which is in the NHS and helping patients to access new drugs.

[Baroness Finlay of Llandaff]

I have added my name to the first of the amendments. I would have added it to the second, but there was not room—there were already four names there. I strongly support them. The debate so far has related to the pharmaceutical industry, to pharmacies—that is, chemists in the community—and to the NHS but these amendments go to the heart of it, which is access for patients.

One problem with what will feel to a patient like almost arbitrary rationing is that they will know that they have a disease or condition and that there is a drug which, if they lived in other parts of the world or had more money, they would be able to access and which, for one reason or another, they cannot. We must recognise that any costing system for medicines is relatively arbitrary and does not cost in all the social costs of disease progression, or of more severe versus less severe forms. Nor does it factor in the cost to the whole family of the distress somebody feels when they need medication and cannot access a drug which has gone through an appraisal process and whose criteria they can see they fit.

I hope that the Minister will look sympathetically at the principles behind this amendment. If you save money but do not put it back into access to medicines, you are effectively bleeding that area to plug other gaps or deficits in the NHS. As for the patient with the condition who knows that there is medication that probably would help them, although they are well aware that they could be a non-responder, no one should underestimate the anguish to them and their families, or the knock-on effect on society in the long term of failing to ensure access to effective medications.

Health and Social Care (Safety and Quality) Bill

Debate between Baroness Finlay of Llandaff and Lord Warner

Friday 13th March 2015 Lords Chamber

[Baroness Finlay of Llandaff (CB)]

My Lords, I also have an amendment in this group. My intention is very similar to that of the noble Lord, Lord Turnberg, who has just spoken. I, too, state categorically that I do not believe that harming patients is acceptable. Pressure sores, neglect of patients, hospital-acquired infections and so on are not acceptable, and we should aspire to eliminate avoidable harm from our systems in healthcare. However, when we legislate, we must be careful that our wording is accurate, clear and does not raise the probability of unintended consequences. It is that which concerns me, hence my amendment.

The Berwick advisory group has advised that the correct goal is the continual reduction of harm, because patient safety experts report that zero harm is impossible, that cultures must be addressed to reduce harm, and that that is where resources should be focused. We must ensure that open, honest and transparent working cultures exist across the NHS, and that the clause does not inadvertently inhibit innovation, which often involves taking controlled risks, and does not stifle open discussion and reporting of errors. We must not legislate in a way that seeks blame and reverses our move towards such an open culture.

That is why I have suggested that the clause be retitled “Reducing harm in care”. The amendment would amend the National Health Services Act 2006 to include among the Secretary of State’s duties,

“the continuous reduction of avoidable harm”.

Given the time and progress of the Bill, can the Minister confirm that any subsequent regulations will be consulted on and be subject to affirmative resolution?

Can the Minister confirm that the duty in Clause 1 applies to organisations overall rather than to an individual practitioner, who may find himself or herself working in an uphill struggle to decrease harm in a poorly run organisation? As the noble Lord, Lord Turnberg, outlined, my concern is that such an individual could be scapegoated and hung out to dry by such an organisation unless it is absolutely clear that the onus of responsibility in Clause 1 rests on the provider organisation to have appropriate infrastructure in place to reduce avoidable harm. Can the Minister confirm that it is all organisations with which the NHS contracts in any form that must have a harm reduction policy, including private and voluntary sector care organisations, and that this must go across all health and social care?

Harm reduction must recognise the need to take risks at times with the intention of achieving a good outcome. Paralysis caused by risk-averse cultures is beginning to pose a great risk to patients, because not acting or taking the guidance or protocol-type approaches to care can sometimes pose a greater risk to an individual patient with complex individual needs than acting in a way that is outside what might be considered to be the normal confines of activity.

[Lord Warner (Lab)]

My Lords, I support all four amendments in this group, but I added my name to those of my noble friend Lord Turnberg. I speak from the perspective of someone who nearly 12 years ago as a Minister approved a new system to improve patient safety by reporting serious incidents. We did not try at that point to go for unrealistic approaches to improving safety in the NHS. That was not because we were spineless; it was because we needed to get people behind the agenda and bring out into the open serious instances of the poor practice that was going on and jeopardising the safety of patients. I do not think that Clause 1 meets that test. It is likely either to produce excessive caution or simply to drive some of the poor practice underground.

I support every word that my noble friend said and very much of what the noble Baroness, Lady Finlay, said, so I will not repeat them, but I want to draw attention to the briefing that we have all had from three significant organisations: NHS Providers, the Health Foundation and the BMA. I do not always stand up and advocate the policies of the BMA in a number of areas, but in this area it is absolutely right.

I draw attention to what those organisations say in some of that briefing—I shall not read it all out. The Health Foundation makes it clear that introducing a duty such as that in Clause 1 would go against the evidence of what is possible in delivering safe health and care services. It states that the NHS has already demonstrated considerable progress towards building a genuine safety culture and that it is concerned that the message sent to NHS staff through the wording of the Bill may hinder further progress on this. It draws out in a summary of its concerns three very simple points, which might be a consequence of passing the Bill as it stands. First, patient safety experts tell it that causing no avoidable harm is impossible; secondly, legislation is not a solution for cultural problems; and, thirdly, a duty of no avoidable harm will divert further resources from what we know improves safety. My noble friend Lord Turnberg alluded to shifting priorities of what organisations and staff do in a way that is not always helpful to patients.

NHS Providers said very similar things but added something important. It said that should the Bill pass into law, further regulations may be laid by a new Government who have not engaged or given assurances in this area. It urges amendment to ensure that any regulations are fully consulted on and passed by affirmative resolution.

This is an extraordinary point in the electoral cycle to bring forward a provision of this seriousness in the form of Clause 1. The Government have to think again; they should consider whether they really want to be involved with a Bill containing a provision of this kind. It is full of possibilities for unintended consequences; potentially it could do harm to patients. I do not doubt the good intentions of the people behind the Bill and I do not doubt that they will be pretty grumpy about some of us drawing attention to our concerns. This has become the Government’s Bill—let us not mince our words. It may have started off and still nominally be a Private Member’s Bill, but the Government have put a lot of effort into it, as the sheer number of civil servants standing by to help shows. This is, to all intents and purposes, a government Bill. If the Government really want this legislation in this Parliament, they have to consider doing much more than they are currently providing for to meet the concerns expressed not just by Members of this House but by people whose opinions we all respect. With all due respect to my noble friend Lord Turnberg, the easiest way to meet many of those concerns would be to accept the amendment of the noble Baroness, Lady Finlay. The Department of Health needs to consider whether this would be the wisest thing to do.

Assisted Dying Bill [HL]

Debate between Baroness Finlay of Llandaff and Lord Warner

Friday 16th January 2015 Lords Chamber

[Baroness Finlay of Llandaff]

My Lords—

[Lord Warner]

My Lords, I want to pursue the line of argument that the noble Baroness, Lady Brinton, has started. I agree with the noble Lord, Lord Carlile, that this is an important group of amendments. The noble Baroness has raised the issues of practicality and, possibly, unexpected consequences of some of the amendments.

I want to reinforce the point about the impracticability of Amendment 13. It fails to reflect the fact that in many cases of terminal illness a person will move from the place where the illness was diagnosed and the care of their consultant and GP to somewhere else. We have a National Health Service. You still get treatment if you move from A to B; medical records pass from A to B most of the time, reasonably successfully. The care of that person will be transferred to another GP and another medical practitioner. They may well not have had care of that person for six months. It may simply be impossible to operate Amendment 13 in the case of people who are terminally ill. We need to reflect on the practicality of that argument. I do not believe that the noble Lord expected that consequence from his amendments. That was the point that I was going to ask him about if I had been able to intervene a little earlier. I am happy to give way to the noble Lord.

Care Bill [HL]

Debate between Baroness Finlay of Llandaff and Lord Warner

Wednesday 9th October 2013 Lords Chamber

[Lord Warner]

I support the important amendment of the noble Baroness, Lady Greengross. I want to do so by telling a story and then putting a suggestion to the Minister. Like my noble friend Lord Hunt and me, he will have done his time touring hospitals as a Minister. We are usually shown the high points of the hospital’s achievements. Life changes a bit when you cease to be a Minister and you visit your friends and relatives in hospital. On visits to hospitals to see friends and relatives, because I am a nosy sort of person I have always looked to see whether there is a date for discharge on the charts. Some of these discharge dates are great works of fiction. When I have asked nurses about these discharge dates, quite commonly they say that managers have told them they have to have a discharge date—so it is something they have done for internal compliance purposes.

Although the suggestion of the noble Baroness, Lady Greengross, may not be right for the Bill, it is at the very least important for guidance. Planning on admission for discharge is needed. Present arrangements fail to communicate that to the social care world. It is now an internal mechanism for the NHS, not a mechanism designed to get people out of hospital into an appropriate placement as soon as they are ready to go. It would be a good idea to put this in the Bill, but at the very least this issue needs to be covered in some detail in guidance so that the NHS and the social care world are clear beyond peradventure what they are supposed to do when a person comes into hospital. If we went along that path, the world would be a better place and we would deliver some of the objectives of this legislation.

[Baroness Finlay of Llandaff]

My Lords, I shall be brief since the hour is getting late. This amendment makes a very important point, though it may be better in guidance. One of the problems is that the pinch point is always A&E, and getting patients out is really difficult. At the moment, there is tokenism in planning discharge. It needs to be much more embedded in trying to predict people’s needs and having things in place. Until discharge planning really is part of looking ahead at the aims for the patient we are still going to have backlogs, because we are still going to be waiting for somebody to come in and do something.

Care Bill [HL]

Debate between Baroness Finlay of Llandaff and Lord Warner

Tuesday 4th June 2013 Lords Chamber

[Lord Warner]

My Lords, I support these amendments. I will pick up the point made by my noble friend Lord Hunt about managers. The public sector needs all the quality management it can get and many of its problems rest on the fact that we do not have a cadre of managers to take many of our public services through the difficult years ahead. The NHS is no exception.

For too long—and my own party has been guilty of it in the past—we have dismissed managers as men, and indeed women, in grey suits who are dispensable. We have to give some strong messages to HEE that if the NHS is to develop and evolve and cope with the problems ahead, we need a strong cadre of managers and we have to develop them over time. It is not too early to start now because we have a real problem not just in staffing chief executives now but in staffing the next cadre of chief executives and the middle management and development programmes for that. The Government would do well to give some strong messages to HEE and possibly even consider strengthening the legislation on this issue because it would be a missed opportunity if we do not strengthen that body of people to help us run the NHS in the coming decades.

[Baroness Finlay of Llandaff]

My Lords, I will briefly add my support, particularly to the amendment in the names of the noble Lords, Lord Turnberg and Lord Patel. I will draw the House’s attention to the wording, that it is,

“expertise in medical education and training”

that is being asked for, not just medical education, and that the expertise in research is not tied to medicine.

I understand the arguments that HEE must not be too tied or have a board that is too rigid, but if it is to meet the enormous challenges that it faces—and it has come from many, many discussions—to be able to have questions asked at board level about education and training will be essential if we are to have a workforce that can adapt rapidly as new technologies and new ways of providing care come along. It will need to have people with expertise and understanding of the most efficient and effective ways to upskill the workforce in particular areas, because there are enormous unknown challenges ahead.

Health and Social Care Bill

Debate between Baroness Finlay of Llandaff and Lord Warner

Tuesday 13th March 2012 Lords Chamber

[Lord Warner]

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

[Baroness Finlay of Llandaff]

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

Health and Social Care Bill

Debate between Baroness Finlay of Llandaff and Lord Warner

Tuesday 6th March 2012 Lords Chamber

[Lord Warner]

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

[Baroness Finlay of Llandaff]

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

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

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

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

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

Health and Social Care Bill

Debate between Baroness Finlay of Llandaff and Lord Warner

Wednesday 8th February 2012 Lords Chamber

[Baroness Finlay of Llandaff]

My Lords, I wish to raise some questions because I have put my name to the amendment suggesting that Clause 4 be deleted. The Government’s guidance notes published with the amendment that has been tabled appear to make the duty of autonomy subject to the Secretary of State, but there is ongoing concern that there remains the risk that the clause could be used by clinical commissioning groups to justify not providing a full range of services or putting inappropriate services out to tender. While local organisations should have the freedom to respond appropriately to the health needs of the population, local commissioners should not be able to act totally autonomously and commissioners must have regard to national guidance. In his closing summary, the counsel to the chair in the Francis inquiry pointed out that there is a need for far greater standardisation of operating and quality standards in the NHS and close monitoring of compliance.

Concern about the inclusion of Clause 4 continues to lead to some uncertainty, confusion and concern about how competition would be applied in the new system. Phase 2 of the Future Forum recommended that the Government clarify the rules on choice, competition and integration. The concern is that if the restraint on autonomy is not as tight as it possibly ought to be, services could fragment. The Government need to clarify that integration will trump competition. I ask the Minister to clarify that the national Commissioning Board will be prepared to intervene if clinicians feel that the type of competition that is being proposed could fragment services. We have heard quite a lot about commissioning along whole-care pathways, such as musculoskeletal services and mental health services, and in whole-function areas, such as community services. There is concern that where this has happened in the east of England with musculoskeletal and respiratory pathways, there is a sense that they should have been put out to tender more than they have been. There is concern that there are times when whole-care pathways should not be subject to competition. The difficulty with the clause is that it leaves in doubt how much integrated whole-care pathways, which may not leave complete autonomy to different parts of the system, will trump competition between different parts of the system.

[Lord Warner]

My Lords, I had not intended to intervene in this group of amendments, but I want to make a couple of points and leave a question with the Minister. I have always been in the camp that feels that Clause 4 was misguided and should be abandoned. I can see the case, which was put very well by the noble Lord, Lord Marks, for retaining Clause 4 with these more controlled features. Listening to this debate, I have a number of concerns.

There is genuine concern that there might be a really rogue clinical commissioning group, but listening to the noble Baroness, Lady Finlay, has revived my concern that somewhere along the line, if we are not very careful and are too controlling, we will stop the initiatives that we want from commissioners as the NHS faces considerable challenges. As the House knows, I do not have the same fear that other Members of your Lordships' House have about third-sector or independent-sector providers, so I would not want anything in the peace that we see breaking out here to inhibit creative clinical commissioning groups setting off on new paths for new types of services simply because major people in the NHS have not woken up to the need for significant change. I hope that the Minister can reassure me that, in accepting this more nuanced version of Clause 4 on autonomy, we are not really inhibiting the creativity of clinical commissioning groups to bring in new players, even if it may seem a rather radical idea when they start to do it.

Finally, as the Minister knows, I have a mild obsession with the whole issue of a pre-failure provision in this legislation, which we will come to later. One of my continuing concerns is that we do not want to end up with a situation where we are restricting the ability of the National Commissioning Board to begin to intervene—to tackle failure at the local level—simply because autonomy requires people to flounder along as long as they like on the grounds that it is all about localism. I hope the nuanced version of Clause 4 that we are getting is still accepted as something that would enable the National Commissioning Board to intervene when there was a total failure by providers and commissioners at the local level to tackle the problems of clinical and financial unsustainability.

Health and Social Care Bill

Debate between Baroness Finlay of Llandaff and Lord Warner

Wednesday 7th December 2011 Lords Chamber

[Lord Warner]

My Lords, my name is on Amendment 258. I speak as a former Minister responsible for NHS R&D in the pharmaceutical industry in 2003 and 2004. We were having exactly the same discussions then. Since that time, the National Institute for Health Research has been set up, we have had the Cooksey review, OSCA has been set up, and we have had the review by the Academy of Medical Sciences. All these cases come back to the issue of a faster, smoother regulatory approval system. The same blockages that are being talked about now were being talked about five, six, seven years ago.

In that time the UK has lost large numbers of clinical trials. We continue to lose trials and we are going to lose more to south-east Asia. UK plc suffers while we continue with these present arrangements. I understand the Minister’s anxieties about this. However, at the end of the day it is difficult to see that a new authority would be in place, even with a very smooth passage, until at least a year later than if we went along with the amendment. We need to move faster on this.

I end with one question to the Minister. Have the Government actually talked to the big beasts in science research in this area—to the Wellcome Trust, the MRC, the Academy of Medical Sciences? Have they asked them directly whether they would you sooner have the Willis amendments or wait for a Bill in the next Session. I would like to know what their straight answer to the Minister would be on that particular question.

[Baroness Finlay of Llandaff]

I have my name on the amendments about setting up the authority. In his response to the questions posed, I hope that the Minister will address how exactly we are going to streamline the process, as has been outlined so eloquently, and whether mechanisms such as commencement orders could be used so that we do not delay the process of speeding up research, because some parts, such as the Human Tissue Authority and the HFEA, are not yet clarified. It would be very sad to go at the slowest pace rather than storm ahead. This Government have demonstrated an understanding of research as an important economic driver to the UK as a whole, but that infrastructure, as suggested in these amendments, has to be in place and cannot wait. I hope, therefore, that the Minister will also address the timetabling in detail when he replies.

Health and Social Care Bill

Debate between Baroness Finlay of Llandaff and Lord Warner

Wednesday 7th December 2011 Lords Chamber

[Lord Warner]

I do not wish to have any commercial-in-confidence information and I am sure my friends do not either. We want to know what is at risk out of the £150 million the Health Protection Agency is getting now under the new arrangements. If you can guarantee, in writing, that Public Health England is not at risk of losing any of that money I think we will be much more confident. We do not want the details of the commercially sensitive stuff we just want the global figure and the assurances of what it is at risk of losing.

[Baroness Finlay of Llandaff]

Can we also have the assurance that it will be eligible in the future to apply for a broad range of funding even if currently it does not hold a grant from a particular grant-giving body? I think that that applies to the MRC.

Health and Social Care Bill

Debate between Baroness Finlay of Llandaff and Lord Warner

Monday 14th November 2011 Lords Chamber

[Lord Warner]

My Lords, in the unavoidable absence of my noble friend Lord Rooker, he has asked me to move Amendment 50 standing in his name and those of a number of colleagues. This amendment is very simple in intent. It seeks to ensure that the national Commissioning Board has at least one member who is a public health specialist. Much of the work of the board and, indeed, of the clinical commissioning groups, is to commission services that arise from failures of public health, or the associated issue of the absence of clinical intervention at an early stage in a person’s condition. Later we will discuss a raft of amendments for strengthening the Bill’s provisions on public health itself. This group of amendments is concerned with the membership of the national Commissioning Board and the disclosure of information.

This amendment is intended to help the board in its deliberations. It is essential that it has ready access to public health expertise. I very much support Amendments 153ZA and 153B in this group, standing in the names of my noble friends Lord Hunt of Kings Heath and Lady Thornton, which seek to curb the administrative costs of clinical commissioning groups. I have degrouped my amendments on controlling the overheads and management costs of the board. I have also tabled amendments that try to curb clinical commissioning group management costs. I tabled these amendments because I wanted to ensure that we had a fuller discussion on the two linked issues of overheads and administrative costs at a later stage. I will not speak on that issue at length today but I want to flag up to the Minister that this is an extremely important issue in this very difficult financial climate. Rather unusually, we may need to put in a Bill establishing new bodies a curb on the extent to which they can grow their administrative budgets in the future. My noble friends are doing the House a service in giving us a chance to have a debate on this issue.

I return to Amendment 50. It may not be directed at the right place in the Bill—I leave the Minister to think about that—but its substance should be in the Bill. I hope that the Minister will reconsider the Government’s position on this issue. I beg to move.

[Baroness Finlay of Llandaff]

My Lords, I rise to speak to this amendment, which is also in my name, and to support the other amendments in this group. They have the effect of ensuring that public health considerations and public health expertise are given due weight in the new arrangements set out in the Bill.

Public health covers three main domains: health improvement; health protection; and health service delivery. Public health specialists are trained and skilled in interpreting data and information about populations, understanding health needs and securing the services required to meet those needs. That expertise is vital to having effective commissioning at every level, particularly that of the NHS Commissioning Board, which will have the overarching responsibility for commissioning health services, so as to ensure that the services are effective, appropriate, equitable, accessible and cost-effective. It therefore seems only sensible to make sure that that expertise is incorporated at board level.

The Commissioning Board exists to secure and improve the health of the population through the NHS services it commissions, and indeed through the services which are not NHS-provided, if I have understood this Bill correctly. To do this, the board would benefit from public health input. Public health specialists have an unparalleled overview of a community's need for health services and how they are best commissioned, including changing, adapting or even decommissioning services which could work better in other ways. The role of a public health specialist would also be to provide the essential expertise needed to commission preventive services, such as screening and immunisation, and to look at the evidence relating to those services. The board may need the courage to decommission some of those services as well, or to substantially alter the way that they are delivered.

It would be inappropriate to say that this is going to be too expensive, because a public health specialist should pay for themselves many times over with their presence on the board. It is only by having such an expert at board level that we can ensure their expertise is incorporated into decision-making, rather than only feeding into the process in an advisory capacity.