Mental Capacity (Amendment) Bill [HL]

Baroness Jolly Excerpts

2nd reading (Hansard - continued): House of Lords
Monday 16th July 2018 Lords Chamber

[Baroness Jolly (LD)]

My Lords, this has been an interesting and hugely well-informed Second Reading of the Bill and I join other noble Lords in welcoming the noble Baroness, Lady Barran, to her place. I am sure that she will bring a new and welcome voice to the House on all issues. My noble friend Lady Barker gave us a helpful account—a history lesson, if you like—which put everything into context. It is worth saying to the Minister now that it is absolutely not the case that we all sat around a table and decided what needed to be said. We have come to our views all on our own, and if we are saying much the same things, it is because they need to be said and are true.

I, too, welcome the Bill. It aims to make the process of depriving a vulnerable individual of their liberty simpler and less bureaucratic. Everyone here would agree that society is judged on how it manages its members who are vulnerable and unable to speak for themselves. This Bill makes a fair attempt at this, but it is not the finished article and I would probably give it a C. The points I will make fall into two distinct categories: points concerning the process of the creation of the impact of the Bill once it is enacted, and the second concerning the legislation itself: what should be in it, what should be taken out, and which clauses could be better worded.

The people who will be affected by this Bill are likely to be old, have mental health problems, autism or a learning disability, or have more than one of these conditions. I should refer to my interests as set out in the register. I chair a learning disability trust caring for more than 2,000 people, many of whom in our care lack capacity. I thank all of those who have provided us with briefings, and it is clear that common themes came out of them. One was the issue of finance. There was a feeling that this is going to be an expensive exercise. There will be a need to train assessors in care homes, to which I shall return later, to train advocates and, of course, to train the trainers. All of this will need to be rolled across England and Wales. Will care providers have to fund this, or will one-off training grants be made available? Certainly the system is under so much stress at the moment that it is unlikely to have the slack in budgets for extra training.

Then there is the role of care home managers. For some this might seem fine and a natural extension of their role. For others it may go into completely new territory where they have no experience and no confidence. I am sure that the Minister appreciates that most people with a learning disability no longer live in a care home but with carers in a domestic supported living setting. It would be a very large ask for those carers to assess the mental capacity of the person they support. Most carers are on the national living wage and may not be professionally ready to make such assessments.

Can the Minister clarify where the AMCP—approved mental capacity practitioner—sits in the new system and from where their funding comes? Where liberty protection safeguards are put in place, could an affected individual have an appeal funded? Will legal aid be available? Will the Minister explain why best interests are not included and what has taken their place? At the useful briefing last week, I inquired about consultation. For a Bill of such importance and with such a potentially huge impact, can the Minister clarify what consultation there was with provider organisations in the sector, the LGA, ADASS and the public at large? Over the last few months, many of us have had really interesting conversations with Sir Simon Wessely about his work reviewing the Mental Health Act. We welcome that review, but would it not have made sense to have waited until Sir Simon finished his work and then have a single view of the issue?

The Bill did not start from cold: the House of Lords Select Committee reported in 2014 on its scrutiny of the Mental Capacity Act 2005. Many noble Lords speaking today took part in those committee sittings. There was also the Law Commission’s Mental Capacity and Deprivation of Liberty report of 2017. They both made many fine recommendations and, along with many in the sector, I am surprised that a lot of work will need to be done in the summer to make the Bill finally fit for purpose. Among the areas I will be looking at in Committee is the issue of 16 and 17 year-olds. To include them in the legislation would align with the Mental Capacity Act. Can the Minister tell the House the rationale for not putting this transitional cohort in the Bill?

Article 5(1) of the European Convention on Human Rights uses the phrase “unsound mind”. The same paragraph also talks about vagrants. It was first drafted in 1950, nearly 70 years ago. It is not used professionally now and the profession believes that it has no place in a piece of modernising legislation; it creates unease among individuals, advocates and the sector alike. Article 5(2) calls for a detainee to be informed of the reason they are to be deprived of their liberty. Rather than having to refer elsewhere, how much more straightforward would it be to have this in the Bill? I support my noble friend Lady Barker’s view that any part of the Bill referring to the ECHR should spell out the impacts rather than cross-reference the Brexit debate.

Although not part of the legislation, the code of practice, once enacted, will make the Bill workable. Will the Minister clarify what progress has been made on writing a draft? Can noble Lords have sight of it? If so, when? This is a complex and important piece of legislation; I hope that the Minister is not expecting to complete it with just one day in Committee. We need to produce an A-plus Bill to send to the Commons. It may take more time than the Government want, but all the people affected by the Bill deserve better.

The NHS

Baroness Jolly Excerpts

Thursday 5th July 2018 Lords Chamber

[Baroness Jolly (LD)]

My Lords, I join other noble Lords in thanking the noble Lord, Lord Darzi, for tabling this timely debate and for his excellent speech in kicking it off. It is one of those speeches that we will want to reread, and we will need to pick up a copy of Hansard on Monday.

These Benches are proud that on this day 70 years ago the Leader in your Lordships’ House was Lord Beveridge, author of the report implemented by the Attlee Government, thus creating the NHS and social care entitlement. So perhaps this is true co-production.

I start by noting the contribution to today’s NHS of all the staff who over the last 70 years have worked tirelessly, whether as clinicians, carers, cleaners or managers, and I pay tribute to the current employees too. But what would somebody from 1948 make of the NHS now? My father-in-law graduated from Leeds medical school in that year and was one of the first cohort of NHS doctors—and very proud he was too. He recalled that there was a handful of drugs that they could prescribe, and after their six years’ training they knew pretty well all the medicines that there were to know. Later, he ran a GP practice from his home. One room became the waiting room and another the surgery. The family recall syringes being sterilised on the kitchen stove. He and a partner set up a practice which grew and grew, and it still exists. Today, I think he would be delighted to see his practice offer patients the ability to book appointments online and order repeat prescriptions, but he might be rather bemused by the need for a practice Facebook page.

Today, the life expectancy for men is 77 and for women 81. Then, it was 66 and 71. I think several of us have been looking at different briefings with different numbers, but the numbers are in the right sort of order. No one quite appreciated the impact of the impending baby boom rippling through the population. Most of the residents in today’s care homes were born before the NHS came into existence, and unless we mend our lifestyles a large proportion of us will not live as long as our parents.

In the new NHS, public health and prevention was important. I remember queuing in the village hall for cod liver oil, orange juice and polio jabs, and once at school we had nit inspections, eye and hearing tests, and TB jabs. Public health looks very different today—gone are the nit inspections—but local authorities have public health responsibility all over again. They look at health as a determinant in housing, social care and wider community services.

Prior to the NHS, the first port of call often was the high-street chemist for a chat with the pharmacist, who would be able to recommend the right remedy. This conversation was free, and a visit to the GP was out of reach for many. Now, too many of us visit our GPs expecting a prescription when we have a cough, cold or sore throat. We are unaware that we can get better with the help and advice of the pharmacist. If this was to be adopted as the first port of call by us all, our GPs would have time to deal with the people who are really poorly.

There cannot be a sustainable NHS without sustainable adult social care. Adequately funding social care would deliver benefits for local communities and savings for the public purse. For example, funding an expansion in social care capacity would alleviate NHS pressures and therefore enable more people to be discharged quickly and safely from hospital. We all have friends and relatives who, whether due to age, ill health or dementia, have found themselves in need of social care. The continued underfunding of social care affects us all. It is making it increasingly challenging for local authorities to fulfil their legal duties under the Care Act, leaving the ambitions of some aspects of the legislation at risk. Equally concerning is that, by 2025, another 350,000 people will need high levels of social care from councils. As the ADASS budget survey highlights, moving towards prevention and early intervention is one of the most important savings areas identified by councils. However, as budgets reduce, it becomes harder for councils to manage the tension between prioritising statutory duties towards those with the greatest needs and investing in services that will prevent and reduce future needs.

The current move towards integrated care organisations is welcome, but success will depend on strong leadership and a willingness of both health and care to co-operate, to share a budget and to involve patients, those in care and carers, and the voluntary sector in system design. As mentioned by the noble Baroness, Lady Morris of Bolton, the initiative currently under way in Greater Manchester, where 10 councils came together to deliver health and care services locally, has much potential. We await evidence of success and impact on the health community. In Cornwall, my part of the world, for the last year or so the local council has been working closely with the CCG to achieve the same end but on a much smaller scale and in a rural setting. However, where any services are devolved, we are also clear that national standards need to remain and that accountability will be key. As a quick note to the noble Baroness, Lady Gardner of Parkes, Cornwall still has all its community hospitals and they are used as step-up and step-down units. The challenge posed by the increased localisation of services is the risk of a postcode lottery in both availability and standards. Those local councils where there was the greatest need have low-rated housing, and any dividend from raising council tax is not enough to plug a gap.

Almost two years ago now, my right honourable friend Norman Lamb commissioned a group of experts from within the sector to look at the vexed issue of funding the NHS and social care. Among the recommendations were an annual rise in real-terms funding for the NHS in England in line with long-term growth. For the next five years, we believe that a 2% rise per year is a realistic figure. This should be matched by equivalent increases in funding for the devolved nations under the Barnett formula. A further recommendation was to set up an independent OBR for health to make recommendations to government about the funding required for a three-year cycle.

Recently, the noble Lord, Lord Patel, who sadly is not in his place, chaired a Select Committee of the House on the long-term sustainability of the NHS and adult social care. This was a look at the current system by a group of Peers with long experience of working in the NHS, government and social care. Their report was full of positive recommendations—it read like a critical friend’s review of an organisation in need of change. It took the Government some time to bring it to the House for debate; let us hope it takes less time to implement some of the recommendations.

Artificial intelligence, biosimilars, genomic medicine and robotic surgery would have been unimaginable to those doctors in 1948, but who knows what the next 70 years will bring. In many areas, we are on the cusp of system failure yet, in others, of huge system innovation. Organisations needing support should be encouraged, not punished. The Government need to be bold in their decisions and announcements in November. The Green Paper on social Care and its funding should be person-centred, encourage creative solutions and provide the necessary funding to deliver appropriate support for the NHS and for its stable future.

Health: Endoscopy and Bowel Cancer

Baroness Jolly Excerpts

Monday 2nd July 2018 Lords Chamber

[Lord O'Shaughnessy]

My noble friend is quite right to point out the potential of digital, particularly the analytical capability of artificial intelligence to look at samples. That was one reason why the Prime Minister recently pledged to have 50,000 more early cancer diagnoses by 2033—a long-term goal—precisely because the NHS is such a good place to use artificial intelligence to improve care.

[Baroness Jolly (LD)]

My Lords, after a cancer diagnosis, English patients have poorer outcomes than all but one of our European comparators. We welcome the announcement that the Minister has just made about new clinicians, but in some areas there are delays in referral, testing diagnosis and then treatment. The longest wait for treatment reported this year was 541 days. That is not good enough. How long does the Minister think we will have to wait for there to be sufficient clinicians and facilities to deliver a service that moves us significantly up the table?

[Lord O'Shaughnessy]

The noble Baroness is right to highlight the importance of waiting times. The 62-day standard is unfortunately not being hit at the moment. The NHS has pledged to get back on that standard this year. We are also piloting a faster, 28-day diagnosis standard in five areas at the moment with the idea of rolling that out so that there is a higher standard of care and fewer people have to wait longer.

Nursing and Midwifery (Amendment) Order 2018

Baroness Jolly Excerpts

Monday 25th June 2018 Lords Chamber

[The Earl of Listowel (CB)]

My Lords, the noble Baroness, Lady Thornton, and the noble Lord, Lord Willis, asked about the impact of this new profession on the wider healthcare workforce. I wonder whether it is helpful to ask the Minister at this point a little about possible impact, if any, on health visitors. There is real concern about the decline of health visitors; they had a resurgence in recent years but are in serious decline now. I do not wish to detain the House for too long if this seems a bit beyond the main business.

I am a patron of the charity Best Beginnings, which provides mental health and perinatal support for parents. I spoke with the chief executive last week. We recognise that health visitors are very important, as healthcare professionals working in the vital perinatal period to ensure the best attachment between parent and child. I recently spoke with the president of the Institute of Health Visiting, Dr Cheryll Adams. Again, she expressed concern about the decline of the number of health visitors. As we establish a new healthcare profession, do we not need also to think about this other, declining profession under the healthcare umbrella?

I imagine that there is no plan to replace health visitors with these new healthcare professionals, but sometimes there is a misunderstanding that health visitors are just there to weigh the baby, when anyone could do that. In fact, when family-nurse partnerships were introduced to support vulnerable parents, the outcome was significantly better when higher qualified practitioners worked with the families. This job is challenging, because people are often working with vulnerable families in poor housing and poor conditions. It is a demoralising profession, unless one has a good professional foundation.

I emphasis the importance of the vital early years. As Graham Allen and Mr Field MP have established, the first 2,000 days in a child’s life are the most important. We need to ensure that the best professionals are available to them. Two or three years ago, health visitor funding went from the Department of Health to local authorities. We all know that local authorities have very little money to spend, so it is not surprising that there has been a significant decline in the number of health visitors. Does the Minister recognise concerns about that decline? Will he assure the House that he is keeping in mind the health visiting profession and what can be done to sustain it and ensure its continued health?

I have a final question. This particular new brand of healthcare professional gives rise to the problem of professionals from the developing world being pulled in to fill the niche. I am sure that the Minister can assure us that we will not poach healthcare professionals from Nigeria, Ghana and elsewhere, but the possible risk of that certainly comes to my mind. I welcome the order and I look forward to the Minister’s response.

[Baroness Jolly (LD)]

My Lords, my contribution will be very short, as noble Lords have already said everything. We, too, welcome the role of the nursing associate. I commend the work of my noble friend Lord Willis of Knaresborough in making this happen and say to him that he can have the Front Bench if he is happy to take all that goes with it.

The noble Earl, Lord Listowel, made the point about impact. I just make one extra point. In remote locations—I live in Cornwall, but this could account for anywhere far-flung where there are hospitals and health establishments—there will be uptake from healthcare assistants who feel that they cannot leave home to train as a nurse because the distance is too great and they have family responsibilities or other commitments, but they could manage the two-year course. That would be really positive. Nursing associates would then improve in those establishments the quality, but also the skill mix, of nursing teams in areas where it is also particularly difficult to appoint.

I understand the timing of this SI. The noble Lord, Lord Clark of Windermere, said that perhaps there was still stuff to look at. It is really important that it gets on to the statute book, because we will have real live trainee nursing associates who need to register next year. Sadly, we cannot take any more time to do this, but from these Benches we really welcome the role of the nursing associate and the help it will give the NHS.

[Lord O’Shaughnessy]

My Lords, I sincerely thank every noble Lord who has spoken in the debate and engaged with these regulations so thoroughly. It has been a really important discussion about not just the new role of nursing associate but its impact on the overall health and care workforce. I am very grateful to all corners of the House for the broad welcome, albeit with questions and conditions, for the creation of this role.

I want to deal up front with the urgency of these regulations. I agree that there has been an element of rush, and I think we are all agreed on the requirement for it. But like all overnight successes, this has been a long time brewing, as the noble Lord, Lord Willis, pointed out. A lot of work has been done, and I salute, along with all noble Lords, the many people at the RCN, the NMC and others who have contributed to this, and the many people behind the scenes. It is quite right to acknowledge them. No doubt there is more work to come.

The primary debate, or part of it, revolved around the distinction between the nurse role and the nursing associate role. It is very important to be clear, as I hope I was in my speaking note, that these are distinct professions. They may all be part of the same family—there is a certain amount of semantics involved here—but they are distinct professions, which will be regulated distinctly, albeit in a joined-up way through the same regulator, which is quite right. The NMC is currently consulting on standards of proficiency. The department, with all the necessary arm’s-length bodies and others, will develop guidance for that separate profession. While nursing associates can inevitably support nurses, doctors and others, they will not just be the handmaidens to others, in the evocative phrase of the noble Lord, Lord Clark. They will be professionals in their own right.

It is also worth pointing out that, in the consultation going on at the moment on standards and proficiency, the NMC is also looking at the code of conduct and amendments to it. That consultation ends on 2 July so, again, I warmly encourage all noble Lords to contribute to that, because some of the ideas set out today could have an important role in getting that right.

The noble Baroness, Lady Thornton, asked about the financial risks involved in setting up the courses—making sure that they are properly constituted and so on. My department has a memorandum of understanding in place with the NMC to keep the costs of the set-up within agreed cost parameters. The costs of accrediting nursing associate courses are met from the annual registration fees paid by the NMC’s registrants. Therefore, the financial modelling has been investigated and we understand what we need to stick to.

Childhood Obesity Strategy

Baroness Jolly Excerpts

Monday 25th June 2018 Lords Chamber

[Lord O'Shaughnessy]

An upgrade in our grade is, I suppose, something to be welcomed. The noble Baroness is being a little unfair. The last obesity plan probably went beyond that of almost any country in the world, and this one certainly goes well beyond that. We know that we need to do more—that much is obvious from the facts—because, unfortunately, obesity continues to rise. We have taken big action through the soft drinks levy, improvements in reformulation and so on but it has not gone as far as we want. So we recognise the need to do more.

The noble Baroness referred to consultations but, if anything, you can accuse this paper of being too honest because any action requires consultation to go forward. I would not want her to be distracted by that because within it are some hard commitments. There is a commitment to voluntarism if we can make it work but, equally throughout, there is a commitment to legislate if that does not produce the right outcomes.

The noble Baroness asked about milk products. Again, if voluntary reformulation does not work, these will be considered by the Treasury as being liable for the levy on soft drinks to bring down the sugar content.

On advertising, the idea that we should have a 9 pm watershed across broadcasting is truly radical, and it is only right that we consult properly. There is a desire to do that by the end of this year, so the noble Baroness cannot accuse us of not moving quickly enough.

The Obesity Health Alliance, which counts dozens of bodies among its membership, has welcomed the plan set out today. Of course it wants us to get a move on—and we will—but it is important to note the radical change in policy to try to deal with this epidemic that we all face.

[Baroness Jolly (LD)]

My Lords, I thank the Minister for repeating the Answer to the UQ. Anything is welcome and I am at the stage where more questions are being raised than answered. A debate in this House would be useful and perhaps put some flesh on the bones. That is absolutely the wrong thing to say, but the House knows what I mean. It would give more clarity.

I wish to push the Minister a little further on the advertising issue. I appreciate that a consultation is coming up. We welcome the idea of using the watershed, but I am not clear from the Statement or from chapter 2 whether it includes all programmes before 9 pm or only programmes that are aimed at young people before 9 pm. That is an important distinction and it will be useful to know what is going to be consulted upon.

Families were mentioned in passing. I would like to know what work is to be done with families. I appreciate that there is not in this land a typical family, but we are trying to take out 500 calories a day from people’s diets and we need to point out the high calorific value not only of chips, which may seem obvious, but of pasta, rice—which everyone thinks is healthy—bread and buttered mash. There is still work to be done with families to make them understand quite what they are putting on their children’s table which seems healthy and fine.

Childhood Obesity: Yoga

Baroness Jolly Excerpts

Thursday 21st June 2018 Lords Chamber

[Lord O’Shaughnessy]

I will bring my mat.

[Baroness Jolly (LD)]

My Lords, as the Minister said, there really should be an evidence base before we pursue this too far. Does the department know whether there are sufficient teachers trained to teach children in yoga? Would there need to be appropriate safeguarding?

[Lord O’Shaughnessy]

I am afraid I do not know whether we know that. I suspect we do not. Yoga is an incredibly popular pastime for children and adults. Indeed, I think there are mother-and-baby yoga classes, which are also popular. I am sure safeguarding concerns will always be foremost when dealing with young children.

National Health Service: Assaults on Staff

Baroness Jolly Excerpts

Wednesday 20th June 2018 Lords Chamber

[Lord O’Shaughnessy]

I was delighted to meet my noble friend on this topic. I know he cares passionately about it. We have said—and I have said in this House before—that we are looking at the Scottish example with interest now that Scotland has gone ahead with it. There is a growing evidence base to demonstrate the benefits of minimum unit pricing, but we want to see what transpires in Scotland before making any decisions about whether to move ahead.

[Baroness Jolly (LD)]

My Lords, in England around 200 attacks on NHS staff occur every day, and this is nothing short of scandalous. Next week we have the Second Reading of a Private Member’s Bill, which has come from the other place, on assaulting emergency workers. Will the Minister confirm whether the Government are minded to support it—and, if not, what further action will be taken to protect health workers?

[Lord O’Shaughnessy]

I agree with the noble Baroness that it is scandalous and that we therefore want to support the Bill. I believe that it will have its Second Reading here on 29 June. I can confirm that the Government will be supporting the Bill.

Gosport Independent Panel: Publication of Report

Baroness Jolly Excerpts

Wednesday 20th June 2018 Lords Chamber

[Baroness Wheeler (Lab)]

My Lords, I thank the noble Lord for reading out the Statement. I was able to hear only a little of the media coverage in anticipation of the report this morning, but I heard one of the relatives speaking about what she had been through over the past 20 years. It was heartrending. Our thoughts, sympathies and condolences go out to the families of those 450 patients whose lives were shortened and who have campaigned for so many years to find out what happened.

We also pay tribute to the relatives for their determination, tenacity and persistence, and to the parliamentarians and others who have played their part in helping to get the panel established or supporting the relatives who have lost loved ones. I include in this the organisation, Action against Medical Accidents, which helped the families to get inquests and to press for a full inquiry, as it has done on so many of these very difficult, awful occasions.

I finally place on record our thanks to all who served on the inquiry panel and offer particular thanks for the extraordinary dedication and calm, compassionate, relentless and determined leadership yet again of the former Bishop of Liverpool, James Jones, in uncovering injustice and revealing the truth about a shameful episode in our nation’s recent history. In its own words, the panel finally,

“listened and heard the families’ concerns”.

The four key conclusions of the panel were that there was disregard for human life and a culture of shortening lives of a large number of patients; that there was an institutional regime of prescribing and administering “dangerous doses” of a hazardous combination of medication not clinically indicated or justified; that relatives were constantly let down by those in authority in the hospital when they complained; and that senior management, Hampshire Constabulary, local politicians, the coroners system, the Crown Prosecution Service, the GMC and NMC all failed to act in ways that would have better protected patients and relatives.

As the panel comments, patients’ and relatives’ interests were,

“subordinated to the reputation of the hospital and the professions involved … a large number of patients and their relatives understood that their admission to the hospital was for either rehabilitation or respite … they were, in effect, put on a terminal care pathway”.

The report is a substantial, 400-page document published only this morning and it will take some time for us all fully to absorb each detail. I welcome the Government’s commitment to coming back to the House with a full response as quickly as possible. I also welcome the setting up of a hotline and making available counselling provision to those affected and who have lost loved ones, as well as the Secretary of State’s commitment to meeting the families, with Bishop James continuing to act as a link.

Perhaps I may raise five key issues at this stage. First, can any further action be taken in respect of the 200 additional patients whose clinical notes or medical records were missing and who the panel considered to have been affected in a way similar to that of the 450 patients given opiates without appropriate clinical direction or as a result of the prescribing and administering opioids that became the norm at the hospital?

Secondly, on GMC and NMC failures in this matter, does the Minister accept that this underlines the urgent need for legislation to streamline their professional regulatory procedures and responses? In this instance, despite GMC disciplinary action against the doctor involved resulting in her being found guilty of serious professional misconduct, it did not have the authority to overturn the decision of its disciplinary panel not to strike the doctor off the register. I understand that a White Paper on regulatory matters issued by the GMC this week emphasises that, as matters stand, the GMC is operating under a legislative framework that is 35 years old and simply not fit for purpose. A Bill has been sought by this and the other professional bodies and promised by the Government, but we still have had no sight of it. Is it not now vital that such legislation is forthcoming?

Thirdly, on the key question of patient safety, in light of this inquiry, what changes have been made, or will be made, to the oversight of how medicines, particularly opiates, are dispensed in our hospitals? Is the Minister satisfied that oversight of medicines in the NHS is now tight enough to prevent incidents like this happening again? What are the wider lessons for patient safety and the need to build the safety culture in the NHS, and is additional legislation required to keep patients safe? Do the Government now regret the abolition of the patient safety agency? Do they consider that a new independent body is urgently required to pick up and take forward the PSA remit, and will the Minister promise to review this issue? Is there a need for the scope of the draft patient safety investigations Bill to be widened to reflect the learning from these tragic events?

Fourthly, there is the issue of how a proper inquiry in such appalling situations is actually started when there are ongoing police investigations and coroners’ inquests to be held. Delay is built into the system from the outset. It is a key issue that we need to find a way through.

Finally, we have all welcomed the learning from deaths programme set up to build organisational learning on the sorts of failures that we are discussing today. How will the programme assist in helping learn the lessons in this report?

We will rightly acknowledge 70 years of the NHS and the great efforts of our NHS workers every day. On this occasion, however, the system has let so many down and we must all ask why.

[Baroness Jolly (LD)]

My Lords, I shall crave the indulgence of the House for a moment while I read out the first two points in the summary and conclusions of the report:

“In waiting patiently for the Panel’s Report, the families of those who died at Gosport War Memorial Hospital … will be asking: ‘Have you listened and heard our concerns, and has the validity of those concerns been demonstrated?’ … It is over 27 years since nurses at the hospital first voiced their concerns. It is at least 20 years since the families sought answers through proper investigation. In that time, the families have pleaded that ‘the truth must now come out’. They have witnessed from the outside many investigative processes. Some they have come to regard as ‘farce’ or ‘cover-up’. Sometimes they have discovered that experts who had found reason for concern had been ignored or disparaged. Sometimes long-awaited reports were not published”.


I commend my right honourable friend Norman Lamb for having a quiet word with the Secretary of State to ensure that this was moved forward.

This report makes for shocking reading. It hangs on a confusion of responsibilities between two organisations, the NHS and the police force, and there is a multitude of questions to be answered. I shall put only two questions to the Minister and hinge them on two points in the report. The first is paragraph 12.62. Health bodies felt prevented from taking action because police investigations were under way. The report points out:

“All concerned assumed not only that the police investigations took priority, but that they prevented any other investigations from proceeding”.


There is clearly a need to clarify lines of responsibility between the police and the NHS regulatory bodies when there are allegations of wrongdoing and systematic failings of this kind so that organisations simply do not pass the buck. Can the Minister assure me that this work will start?

Secondly, how will the Government take forward the call for action in paragraph 12.60? I welcome the Minister’s commitment to an independent inquiry in future in such circumstances to be carried out by the police force, but the report states that,

“the evidence … suggests that, faced with concerns amounting to allegations of unlawful killing in a hospital setting, there are clear difficulties for police investigation. It is not clear to the Panel how the police can best take forward such investigations, and how they are to know whose advice to seek from within the health service without compromising their enquiries. This is … significant if the problem concerns the practice on a ward where more than one member of a clinical team is involved. It is a need that calls for action across different authorities, rather than a matter for the police service in isolation”.

We cannot guarantee that something similar to this could not happen elsewhere—please God that it does not—but what action will be taken to ensure that there is not such a muddle and confusion in a resolution? What processes are either in place or being put in place within NHS settings and with police forces to make sure that this does not happen again?

[Lord O'Shaughnessy]

I thank the noble Baronesses, Lady Wheeler and Lady Jolly, for their very perceptive questions—as ever. First, I extend my personal sympathies to the families and join my right honourable friend in expressing our apologies on behalf of the Government and the NHS for what has happened to them and their relatives. Like the noble Baronesses have done, I pay tribute to those families and all the others who have fought so tirelessly in seeking justice. As has been acknowledged, we owe a huge debt of gratitude to Bishop Jones and his panel.

The story told in this report is of a litany of failure across many institutions, which often had very closed cultures. Unfortunately, those piled on to one another across many different agencies of government, which is what created that highly unacceptable cover-up for so long. It is about getting to the bottom of that culture. Let us face it: unfortunately these circumstances are not unique. We come across this in different parts of our society all the time, and we need to get to the heart of that closed culture to lead to a culture of accountability and transparency.

The noble Baroness, Lady Wheeler, asked some specific questions, including about the 200 additional patients without notes. Clearly, further investigation is warranted because we need to substantiate that claim. It is obviously one of the work streams that will be going forward. She asked about streamlining professional regulation, given the obvious inadequacies of the GMC and NMC regulators during this process. As my right honourable friend the Secretary of State said, every part of government needs to look to itself with great honesty about what we need to do to put in place the right environment to prevent this happening again. I think we all agree on the need to move forward to streamline professional regulation. It is not something we have yet been able to do, but the tragic news we have been discussing today gives that fresh impetus. It is clearly something we will be looking at.

Patient safety is a great passion of the Secretary of State. There were changes in the oversight of medicines, particularly opioids, after the Shipman inquiry. The noble Baroness raised some good questions about whether there is a need for an independent body, or whether in the Health Safety Investigation Branch we have that body but its remit needs to be reconsidered as part of the Bill going through. I am sure that we will be doing that.

The noble Baronesses, Lady Wheeler and Lady Jolly, asked about the issues around inquiries. One of the things that has been exposed here is that there were overlapping inquiries that were impeding each other or preventing one another moving forward. Making sure that there is a clear process for how that ought to take place when someone—a family member, a staff member, the police—has raised a concern is something we have to get to the bottom of because that bureaucratic muddle was clearly at the heart of the delay and, because of the delay, more people died unnecessarily. It is not just a case of clearing things up and making them neater; it has a massive impact on harm.

The learning from deaths programme is a big step forward. It has been taken into many bits of the health service already. It is now moving into the primary care area. Trusts are already obliged to publish deaths that ought to be in the scope of mortality reviews. From next April, all non-coronial deaths will be subject to investigation by medical examiners. That is yet another part of the patient safety environment that we need to put together.

Going beyond that, there are clearly some very challenging questions that the criminal justice authorities, coroners, the Home Office, the Department of Health and Social Care and all parts of government need to ask themselves to see whether they are really doing everything they need to do to provide a safety net to make sure that when things go wrong we find out about them quickly, we stop them and we learn from them. In the next few months, as we move towards publishing a plan for what we should do next, it is imperative that all Members of this House and the other place, who have great contributions to make in this area, feel free to engage with this process and make their recommendations to it, so that when we report we have done as thorough and comprehensive a job as we possibly can so that we can prevent these tragedies happening again in future.

Branded Health Service Medicines (Costs) Regulations 2018

Baroness Jolly Excerpts

Wednesday 20th June 2018 Lords Chamber

[Baroness Jolly (LD)]

My Lords, I thank the noble Lord, Lord Hunt of Kings Heath, for bringing this slightly interesting regret Motion.

It is clear that the issue at stake is the appropriate treatment of hypothyroidism. We have to trust clinicians to prescribe based on what they consider is best for their patients, as the noble Lord, Lord Turnberg, said. I have done an awful lot of reading about this over the last few days, and, although it depends on which article you read, it seems that a significant number of women have this condition: one figure I was given was 10%. In fact, for the last 25 years I have been diagnosed as hypothyroid. I take T4— levothyroxine—which is cheap as chips and costs the NHS about £1.30 every month. But of course, not everybody responds to that, and the alternative is the very much more expensive T3. Some 10% to 20% of patients diagnosed with hypothyroidism come into this category. It is therefore important that the patient receives the right drug. We have heard completely unacceptable tales of patients, as a result of decisions made by clinical commissioning groups, surfing the internet to see what they can get. I did exactly the same last night—having a look to see what I could get—and, again, the T3 was ridiculously expensive, whereas T4 was hardly worth buying online as you could get it very much more cheaply.

What is to be done about this? I was going to explain what it is like when you develop hypothyroidism, before you are diagnosed, and so I thank the noble Lord, Lord Borwick, because his description was lovely: “pathetic, befuddled and exhausted”. I went to see a doctor because my brain was in a fog. I explained it to him and he said, “What do you expect? You work full time and you have two toddlers”. So I was sent away. Curiously enough, at a family event—a lot of my family are doctors or nurses—my mother-in-law asked me, “How long have you had a thyroid problem?” and I said, “I didn’t know I had a thyroid problem”. I went to see my GP, who said, “No, you haven’t got a thyroid problem at all. Who said you had one? Gosh—what does a paediatrician know about it?” Eventually, I had to leave my practice and go to another one to get a diagnosis. I am sure that that is not normal, but it was quite an interesting experience for me. Since then, I have been as fit as a flea. The medication works like a magic charm; very quickly you feel normal and well again. So I cannot overstate to Members of your Lordships’ House how important that prescription was.

I emphasise to the Minister what other noble Lords have said today. We must use the purchasing power of the NHS to drive down the costs of T3 in order to make the argument go away. That might be done by effective negotiation, as the noble Lord, Lord Lucas, said, or in another way, but it is completely scandalous that patients have to buy their own drugs online, and CCGs should therefore review or rework their guidelines as a matter of urgency. Drug companies must not hold the NHS to ransom over the cost of medication that will make patients feel absolutely well again.

On the issue of the costs of medication, one of the non-medical side-effects of having a diagnosis of hypothyroidism was that any other drug I had became free. It is on a list of conditions which, if you have them, mean that any other medication you need becomes free. At that time I was in my early 30s and working. It was very nice to have free prescriptions; I tried to pay for them but they would not let me. However, it means that for the NHS, an awful lot of money is spent inappropriately. Can the Minister give an indication of whether the department has any indication of how much this costs the NHS? I am happy for the NHS to pay for my levothyroxine, but it should not have paid for all other medication I was in receipt of—although, now that I am old, it comes free anyway. How sustainable is this in the current climate, and when was the principle last reviewed?

My takeaway issue for all this is that, whatever happens, we should ensure that the cost of T3 is driven down. However, I would also like the Minister to take this other issue away and—not as a matter of huge urgency—come back to me with some answers.

[Baroness Wheeler (Lab)]

My Lords, I thank my noble friend for tabling this Motion and for his excellent speech setting out the concerns we all share about NHS patients getting access to the drugs they need and how a number of CCGs are in effect placing a ban on expensive branded medicines—in this case ignoring NHS England’s advice concerning T3 in the treatment of hypothyroidism. I look forward to the Minister’s response to the key questions put forward by noble Lords on this issue.

The Motion has the full support from these Benches. I also commend the work of the British Thyroid Association and Thyroid UK in highlighting this issue, and the very helpful information on their websites, as well as the expert explanation from my noble friend Lord Turnberg on hypothyroidism. The websites include case studies of patient voices which clearly show the impact and suffering of patients who are either denied T3 or who are taken off it because of a decision made by their CCG. It is especially upsetting when patients who have successfully taken the drug for a number of years suddenly have to go back on to a drug, mainly T4, which they already know does not provide them with the treatment they need or will make them ill again. The case studies refer to both the T4 drug and the natural desiccated thyroid—NDT—drug, which I understand is the treatment given before T4 came on to the market but which is not now available in the NHS as it has to go through the Food and Drug Administration process, and it is not known when the branded NDT products will be licensed.

My noble friend and other speakers described their concerns over current CCG decisions that go against NICE guidelines and the advice of NHS England, and the increasing rationing of key services, so I will not repeat them and will await the Minister’s response. The NHS England recommendation and guidance on T3 needs to be clear and unambiguous. I hope that the Minister will acknowledge the confusion and concerns, and will ensure that NHS England informs CCGs that they must both comply with their guidance and amend it to end the scope for CCG misinterpretation. I hope that he will also acknowledge that access to T3 on the NHS is a matter of urgency for many patients and that he will give serious consideration to the call from Thyroid UK and ITT for the procurement of T3 from outside the UK for NHS prescriptions until its UK cost comes down.

On the regulations, I note paragraph 4.7 of the Explanatory Memorandum, which deals with provisions of the Health Service Medical Supplies (Costs) Act 2017 that have been included. This includes the promise of the annual review of the operation and objectives of the statutory scheme which is to be published and put before Parliament. Can the Minister tell the House what the current thinking is in terms of the review process and timing, and say when he would expect the first review to be completed?

The impact assessment also states that the implementation of these regulations will generate a saving of £33 million to the NHS between April 2018 and March 2019. The Department of Health and Social Care says that this will enable the provision of additional treatments and services estimated to provide NHS patients with an additional 2,213 quality-adjusted life years, valued at £133 million. Can the Minister explain to the House exactly how the Government have calculated the savings, and can he give more details of how this money is to be spent in the NHS?

The Explanatory Memorandum also says that the regulations set out other instances when the Secretary of State can give a direction specifying the maximum price of drugs—for example, when there are supply issues with respect to a particular branded health service medicine and the Secretary of State is satisfied that a new temporary minimum price needs to be provided to help resolve the supply issue. Can the Minister explain to the House how the Secretary of State is to decide on the temporary minimum price?

Finally, in respect of the provisions in the regulations for manufacturers and suppliers to pay 7.8% of their net sales income to the Government, the impact assessment provides for those in the PPRS with annual NHS sales above £5 million to make percentage payments based on the difference between allowed percentage and actual percentage growth in NHS expenditure on branded medicines. Can the Minister provide more clarity on how this 7.8% figure has been reached?

Long-term Plan for the NHS

Baroness Jolly Excerpts

Tuesday 19th June 2018 Lords Chamber

[Baroness Thornton (Lab)]

My Lords, I thank the Minister for repeating this Statement. I also declare an interest as a member of a local clinical commissioning group.

It would indeed be churlish to say that an injection of funding into our NHS is not welcome right now. However, the 70th birthday present is an uplift in funding of below the 60-year average—from 1948, the birth of the NHS, to 2010, it is just on 4%. Of course, we would all, not least the patients and staff, welcome not having to face another winter crisis like the one we have just had. After what, I suspect, were some serious tussles within the Government about quantum, timing and explanation of where the funding will come from, the Minister and his colleagues must be a little disappointed in the headlines that have been generated so far. The IFS said, with respect to the Brexit dividend that,

“over the period, there is literally zero available”.

Sky News has done a data poll which suggests a majority of people do not believe there will be a Brexit dividend to help to boost NHS funding, a reaction made more unpalatable to the Government because the same polls show that a majority of people, 54% to 38%, say that they would be happy to pay more tax to fund the NHS, which we in the Labour Party have known for quite some time. In 2002, when the then Prime Minister Tony Blair made a commitment to massively increased funding to the NHS, he also announced an increase in national insurance to pay for it. He and then Chancellor Gordon Brown had spent two years preparing for that announcement and preparing the plans for the investment in the NHS that was necessary to turn it round from the previous 18 years of Conservative neglect and underfunding and to deliver the waiting list targets, cancer treatment targets and A&E targets which then followed. So when Theresa May says, as she did over the weekend, that Labour spent only half of the increased expenditure on patient care, that is completely misleading and plain wrong. If she means that replacing falling-down buildings and worn-out equipment, paying staff decent wages, and investing in massively increasing the number of doctors and nurses available is in some way not spending money on patient care, one has to question the right honourable lady’s understanding of what the NHS is and what it does.

Leaving aside the issue of how the £20 billion will be raised, we do indeed need to address how it can best be spent. We recognise that it will take time and planning to work out how to make the best use of this funding over 10 years. The challenge is huge because the prevailing state created by a combination of cuts for both health and social care, and the overcomplex bureaucracy of the NHS as a result of the Health and Social Care Act, make this a serious challenge. Waiting lists of 4 million last winter in the NHS were so severe it was branded a humanitarian crisis. Some 26,000 cancer patients are waiting more than 60 days for treatment. There have been billions in cuts to local government and social care.

My questions to the Minister start with three basic ones about the legal obligations of the NHS. These were also asked by my honourable friend Jonathan Ashworth. Will the waiting list for NHS treatment be higher or lower this time next year than the 4 million it is today? This time next year, will there be more or fewer patients waiting more than 60 days for cancer treatment? This time next year, will there be more than 2.5 million people waiting beyond four hours in accident and emergency or fewer—a target not met since 2015?

If the Secretary of State wants, as he says he does, to transform the health and social care system, how will he do this when every economic expert, from the Institute for Fiscal Studies to the Health Foundation, tells us that with a growing ageing population—which the Minister mentioned—increasingly living with long-term conditions, this announcement will do nothing more than see the NHS stand still? As my honourable friend Liz Kendall put it yesterday:

“We cannot put the NHS on a steady financial footing without a proper funding settlement for social care, yet the Secretary of State now says that that will not happen until the spending review, which in reality means no substantial extra money for social care until 2020 at the earliest. We cannot transform care for older people or reduce pressure on the NHS until we look at the two together”.—[Official Report, Commons, 18/6/18; col. 63]


Why are the Government still ducking that vital integration issue?

Why is the social care Green Paper delayed yet again, and how can this funding be used to mitigate the £7 billion in cuts and 400,000 people losing care support? How will the Government bring together health, social care, parity in mental health and the essential preventive work of public health, when they are scattered across different delivery bodies, often with differing commissioning regimes and accountable sometimes to different regulatory regimes? How will that be done under the proposals for the 10-year plan? Will this injection of funding ensure that we have a service with new models of care fit for the 21st century? Finally, we have a £5 billion repair bill facing our NHS right now, and outdated equipment. When will the Government start investing in the fabric and equipment of the NHS?

[Baroness Jolly (LD)]

My Lords, I too thank the Minister for his Statement. I welcome any increase in funding. Should the Chancellor be wondering how to pay for it, we on these Benches would be quite happy to see a 1% increase on income tax, for starters. The IFS has said that increases of close to 4% are needed for social care, as well as a funding boost for the NHS. Yet the Statement had nothing to say on this vital issue. We all know that the NHS cannot function efficiently unless social care is working well too. Many local authority leaders are indignant that the Green Paper has been moved further down the track, so when the new funding does arrive there is already a sizeable deficit to claw back. They are extremely anxious about the situation with adult social care funding being insufficient for this financial year.

What conversations have been held with the LGA, local council leaders and the Ministry of Housing, Communities and Local Government in advance of these statements? We are also dismayed about the silence on mental health, public health and community health funding. One in four of us will be affected by mental illness, there is an obesity epidemic among our children, too few health visitors, and we are critically short of psychiatric social workers. Is the Minister confident that these issues can wait until the autumn NHS plan and the Budget?

[Lord O'Shaughnessy]

I thank the noble Baronesses, Lady Thornton and Lady Jolly, for their questions. I think that our debate on the report of the Lords Select Committee on the sustainability of the NHS and social care was revealing, in that we got a hint that, while the settlement would receive a broad welcome across the House, the party opposite might not be in quite the same positive mood, and, unfortunately, we have had that confirmed today. Perhaps that might generously be described as a cautious welcome.

The noble Baroness asked about the funding of this settlement. We were very clear yesterday that it will come, effectively, from three sources: from taxation, from economic growth, and from the fact that, as we are leaving the European Union, we will not be paying annual subscriptions any more. It will be a combination of those factors that determines the spending. Indeed, the Treasury is confident in that, and it would not have signed off this deal if it had not been.

On the noble Baroness’s specific questions about the legal obligations under the NHS constitution, actually the money that was given to the NHS at the Budget was to help it to get back on target—in the case of A&E, by the end of this financial year and, for elective procedures, to halt the growth in the expansion of the waiting list. Clearly, one of the reasons for this settlement, which is set out explicitly, is to get back to those key standards, which we know are the yardsticks by which people judge their everyday experience of the NHS.

On the point about there not being enough money, there can always be arguments for more, but it is instructive that two former Health Ministers, one from the Labour Party and one from the Conservative Party—my noble friend Lord Prior and the noble Lord, Lord Darzi—set out last week that they felt that 3.5% was the right figure, which we have got very close to. We should take the suggestion of those two very experienced and knowledgeable former Health Ministers as a good yardstick for our achievement.

The noble Baroness asked about social care funding, as did the noble Baroness, Lady Jolly. The intention behind the delay in the Green Paper—which I recognise is a source of regret for people in this House and elsewhere—is to make sure that integration, which we all agree has got to be at the heart of this 10-year plan, actually happens in planning terms and policy terms as well as in announcements and delivery. That is why there is that co-ordination between the two. Again, it is worth stating that, over the current three-year period, at previous Budgets an extra £2 billion was put into the social care budget, which is rising now for the first time in a number of years, and that is obviously important as we put together that long-term solution.

Finally, let me deal with two other points. On the repair bill and the capital settlement, again at previous Budgets the Chancellor has pledged £10 billion through a number of sources towards the capital settlement for the NHS, but we are expecting the NHS, through this process, to come forward with long-term, multi-year capital proposals, because clearly that underpins so much of the transformation.

In terms of the impact on other elements of the broader health budget, mental health is included in there, including a clear commitment to deliver on parity of esteem within this period. Public health and community health will be dealt with in the next spending review process, which will be happening in the next year. Again, there are clear commitments that there will not be additional pressures, if you like, created for the NHS by what happens to the public health and social care budgets in the future. Ahead of a spending review process, that is a clear indication that there is not a desire to create trouble, if you like, in those budgets that would land at the feet of the NHS.