Domestic Abuse Bill

Debate between Baroness Jolly and Lord Hunt of Kings Heath

Committee stage & Committee: 5th sitting (Hansard) & Committee: 5th sitting (Hansard): House of Lords
Monday 8th February 2021 Lords Chamber

[Baroness Jolly (LD) [V]]

My Lords, I am delighted that my noble friend Lord Marks of Henley-on-Thames tabled this amendment and the noble and learned Lord, Lord Garnier, added his name, as did I.

I will not speak for long—just a few minutes—but I would like to give this amendment some context. Just over a year ago, my noble friend was approached by a concerned mother about the “treatment” of her adult daughter by a person who described themself as a psychotherapist. This treatment would not have been recognised by any professional body and did a disservice to the regulated profession of psychotherapy. Such an individual is able to walk into a stranger’s home after being contacted on the strength of an advertisement in a shop window, local newspaper, magazine or online. Counterfeit certificates, business cards and brass plaques are easily obtained to give undeserved credibility.

The phoney therapist broke no law, but the treatment was unrecognised by any regulating body and did great harm to the young woman. She was turned against her family by coercive behaviour and a catalogue of lies. She was turned inside out emotionally and her family were left distraught. I was somewhat taken aback to receive letters from other families whose adult children had been in receipt of similar coercive treatment, leaving them a shadow of their former selves.

This amendment sets out to right these wrongs and ensure that the therapist would not be able to practise in future. I thank my noble friend Lord Marks of Henley-on-Thames, who spoke in that debate, as did the noble and learned Lord, Lord Garnier. The amendment sets out clearly what is an offence in this context, and how to determine that the perpetrator’s behaviour had a serious effect. It also sets out what would count as a defence for the person purporting to be the therapist, and, if found guilty, what the maximum terms of imprisonment would be.

Having listened to my noble friend Lord Paddick last week at the beginning of the debate, I think it worth mentioning that, although the original case concerned a young woman, there is no reason why it should not apply to a vulnerable young man. The amendment is gender neutral and goes a long way to right the wrongs in the case that brought me to this Bill in the first place. I am delighted to support it. I say to the Minister that the coercion was carried out in the victim’s home. It was abuse in a domestic setting and should have been a crime. This amendment will stop others being controlled or coerced by bogus therapists and, if they are sentenced, the punishment will fit the crime.

I wonder whether, before Report, the Minister would be willing to meet some of those who have spoken in this debate.

[Lord Hunt of Kings Heath (Lab) [V]]

My Lords, I welcome the amendment of the noble Lord, Lord Marks, and the opportunity to talk about the role of psychotherapists. As I will be discussing regulatory issues, I declare my membership of the GMC.

I have no doubt about the value of psychotherapists and the beneficial impact of their work for so many people. But there are potential risks, which the noble Lord, Lord Marks, referred to eloquently when we last debated the amendment. Also, in a Lords debate on 2 March last year, he said:

“We have heard harrowing accounts of victims, often young, brainwashed by unscrupulous and controlling individuals. These charlatans play on their clients’ suffering, deluding them into a false belief in their treatment, often conjuring up in them fake memories about their early years and inducing unhealthy long-term dependence on the therapist and rejection of families and friends.”—[Official Report, 2/3/20; col. 477.]


That was reinforced by the case the noble Baroness, Lady Jolly, just referred to.

Patients and clients can be vulnerable, and an insensitive, critical or sexually exploitative therapist could increase the risk of the patient having a poor—and potentially damaging—outcome from their therapy. The big problem is that the terms “psychotherapist” and “counsellor” are not protected. Any one of us could call ourselves one of those titles and advertise our services to unsuspecting and sometimes vulnerable people. I have long had worries about this, going back to when I was a Health Minister, some 20 years ago.

In 2001, the noble Lord, Lord Alderdice, introduced a Private Member’s Bill to provide for the regulation of psychotherapists and make provisions to enable the registration of the profession. Since then, we have established workstreams to look into regulation, but, unfortunately, the profession found it difficult to reach a common cause, principally because there were so many different, and sometimes conflicting, schools of thought.

That, I am afraid, was the start of a long and unhappy journey. In 2007, the then Government published a White Paper which included plans to introduce statutory regulation for psychotherapists and counsellors. But, unfortunately, by 2010, this did not import into statute, even though, by then, the noble Lord, Lord Alderdice, had done a sterling job in pulling the different psychotherapy schools together and getting agreement on the way forward. We then had the coalition Government in 2010, which announced a new approach to regulation and a belief that centralised statutory regulation was not always the most effective or efficient way of ensuring high-quality care. That, essentially, is where it stayed.

The debate in the name of the noble Baroness, Lady Jolly, last March, induced the following response from the Health Minister, the noble Lord, Lord Bethell:

“The Government are committed to a proportionate system of safeguards for the professionals who work in the health and care system … Where practitioners pose a direct risk of harm to the health and well-being of patients, legal avenues will and must be explored … However, more rules are not always the answer to every problem. While statutory regulation is sometimes necessary where significant risks to users of services cannot be mitigated … it is not always the most proportionate or effective means of assuring the safe and effective care of service users.”—[Official Report, 2/3/20; col. 480.]


He also referred to the more than 50,000 talking service professionals on the registers accredited by the Professional Standards Authority. That is welcome, but it is not statutory regulation, nor is it protection of title, which means any of us could, if we wanted to, continue to call ourselves a psychotherapist or counsellor.

The big problem here is that the Government are basing this on a risk assessment for which there is little evidence. There is a real lack of hard research in this area. I am grateful to the Library for unearthing a 2019 article, published in Frontiers in Psychology, which provided a potential explanation of why there may currently be a lack of quantitative research. It said:

“Although the broad topic of negative outcomes has been extensively discussed, empirical research on patient safety, directly examining the causes and prevention of harm, is not well established. Because harm … is relatively rare, and not amenable to experimental manipulation, such research is difficult.”


In 2017, the Brighton Therapy Partnership, a continued professional development and training organisation for counsellors and psychotherapists, said:

“There is very little research into the harm that properly executed therapy can cause. This is an unusual anomaly for a medical field, as in every other area research is abundant into both efficacy and failure of all treatment options.”


When the Government say, as I have no doubt the Minister will today, that it is not proportionate to regulate psychotherapists, there is an absence of evidence to base that on. In the meantime, in the absence of statutory regulation, the amendment of the noble Lord, Lord Marks, is essential. I hope he is prepared to support this all the way in the Bill. There is a dangerous gap, and some action needs to be taken.

Medicines and Medical Devices Bill

Debate between Baroness Jolly and Lord Hunt of Kings Heath

Report stage & Report: 2nd sitting (Hansard) & Report: 2nd sitting (Hansard): House of Lords
Thursday 14th January 2021 Lords Chamber

[Baroness Jolly (LD) [V]]

Amendment 68, in the name of the noble Baroness, Lady Cumberlege, requires the Secretary of State

“to create redress schemes for those who have already suffered avoidable harm”

related to hormone pregnancy tests, sodium valproate and pelvic mesh. The Minister has told us that there will be no redress agency. The noble Lord spoke passionately about suffering without redress. A significant amount will need to be paid through NHS Resolution to the women affected by these three interventions. Who will ensure that the women affected receive proper recompense? As the noble Baroness, Lady Cumberlege, has said, they have had to pay out for travel for treatment and payment for carers, and they are seriously out of pocket for what they originally thought was standard, straightforward NHS treatment.

I fear that, if there is no scheme, the NHS will have to pay more than it would through a properly managed redress scheme. This and the previous amendment are powerful signals to the Government that they must act on this issue of redress. I hope that, in summing up, the Minister will be able to share the Government’s plans with us. If they have no plans, what would he suggest that these women should do? The noble Lord, Lord O’Shaughnessy, put the case very powerfully.

[Lord Hunt of Kings Heath (Lab) [V]]

I very much agree with the noble Baroness, Lady Jolly, that this afternoon we have given a powerful signal to the Government. Certainly, from these Benches, we very much support her amendment and her efforts to get redress for people who were grievously damaged by procedures undertaken in the National Health Service.

The noble Lord, Lord O’Shaughnessy, talked about one woman’s experience of the impact of surgical mesh, and the huge pain and damage inflicted. I was very grateful to him when I had a Question on surgical mesh, which he answered, as watching it from the Gallery were a group of women from Sling the Mesh, who I had brought in. He gave a lot of time to them afterwards; perhaps it paved the way to the inquiry established under the chairmanship of the noble Baroness, Lady Cumberlege. Like him, meeting those women and talking to them about what they had suffered made me absolutely determined to do anything I could to raise the issue.

We were very fortunate that the noble Baroness, Lady Cumberlege, accepted the chairmanship of this inquiry, given the quality of her team and the extraordinary lengths to which she went to produce its very fine report. Anyone who has met the people involved and listened to the suffering that they have undertaken is left with a feeling that it is awful. Something must be done for them and I very much hope that the Minister will be sympathetic.

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[Lord Hunt of Kings Heath (Lab) [V]]

My Lords, it is a great pleasure to follow the noble Lord, Lord Patel.

What does one say to the people of Northern Ireland? They voted to remain in the EU, their vote was ignored by the DUP, and they have been duped by the Government, who continue to deny that there is a border in the North Sea—when today we are debating ample evidence of such a border. As the noble Lord, Lord Patel, identified, the distinction the MHRA is now having to make between the EU market, the British market and the market for Northern Ireland, as well as the bureaucracy involved and the cost for British-based companies, is undeniable.

These two very modest amendments seek to ensure that Parliament gets a regular report on how this is working in relation to medicines and medical devices regulations, and that various bodies should be consulted. However, over and above that, the Minister owes the House some explanation of how we have ended up in this bizarre situation, where Northern Ireland, which wanted to be in the EU and wanted to be listened to, has ended up in this rather parallel existence, with a border down the North Sea, food shortages in its supermarkets, and in a right mess. I hope the Minister can answer that.

[Baroness Jolly (LD) [V]]

My Lords, the amendments in this group relate to reporting requirements and consultation. The noble Lord, Lord Hunt of Kings Heath, has just put the political case very clearly; the noble Lord, Lord Patel, looked at the technical and regulatory issues; I will look at the practical issues around health services on the island of Ireland.

Amendment 69 from the noble Baroness, Lady Thornton, would require the Secretary of State to report on regulatory divergence between Northern Ireland and the rest of the UK. Can the Minister tell us when the first report would be published, whether the Republic would be part of this consultation, and if not, why not? The noble Baroness, Lady Thornton, and I tabled this amendment to require the relevant authority to consult with patients and healthcare and industry stakeholders when preparing a report under Clause 44.

Divergence is inevitable. The situation for healthcare on the island of Ireland could become extremely complicated. In the past, patients have travelled north or south to receive treatment wherever the appropriate treatment is available. Will citizens from Northern Ireland and the Republic have to use the new GHIC, or do the Government have an agreement with the Republic so that business as usual will be the new norm—no change?

Government Amendments 75 to 77 and 79 to 85 extend the reporting requirements under Clause 44 so that they apply to regulations made by a Northern Ireland department and in respect of regulations under Clause 18. However, we cannot ignore the Republic when we talk about health in Ireland.

Medicines and Medical Devices Bill

Debate between Baroness Jolly and Lord Hunt of Kings Heath

Report stage & Report stage (Hansard): House of Lords & Report: 1st sitting & Report: 1st sitting: House of Lords
Tuesday 12th January 2021 Lords Chamber

[Lord Hunt of Kings Heath (Lab) [V]]

My Lords, I must say that I very much disagree with the noble Lord’s remarks. If we want certainty, we need legislation that is well grounded and which has had thorough scrutiny in Parliament. The problem with this Bill is that it essentially gives a blank cheque to Ministers to change the regulatory regime for medicines and medical devices. If this was just to deal with the aftermath of Brexit, that, of course, would be understandable. But it was made clear in Committee and at Second Reading that the Government are wedded to this way of doing legislation. As the Minister said in Committee,

“this is a modern and fast-changing industry … we may still need to preserve our ability to amend and update regulations.”—[Official Report, 19/10/20; col. GC 328.]

The noble and learned Lord, Lord Judge, referred to two of our most distinguished Select Committees. We need to return to what our Constitution Committee said:

“This is a skeleton bill containing extensive delegated powers, covering a range of significant policy matters, with few constraints on the extent of the regulatory changes that could be made … The Government has not provided the exceptional justification required for this skeleton approach.”


As the noble and learned Lord, Lord Judge, has said, the Government have form. We are increasingly seeing the use of skeleton Bills and Henry VIII clauses. We really must come to a point where we say to the Government that we will not put up with this any longer.

I listened to the Minister in the last debate: what did he offer the House in respect of further scrutiny? It seemed to me he offered a debate or two, and that was it. The Government do not have an answer; they are refusing to budge on a principle which I believe is fundamentally wrong.

The noble Lord, Lord Naseby, talked with joy about the effectiveness of affirmative statutory instruments. This is nonsense. I think eight SIs have been defeated in your Lordships’ House in history; the last one led the Government to threaten to abolish the House of Lords. Unfortunately, the affirmative procedure is hardly any better than the negative procedure, and they do not allow this House to really exert any change on the orders going through.

We have to stand up on this matter. It is much more important and much wider than the issue of medicines regulation. I very much support the amendment moved so effectively by the noble Lord, Lord Sharkey.

[Baroness Jolly (LD) [V]]

My Lords, these amendments, led by my noble friend Lord Sharkey with eminent cross-party support, replace the affirmative procedure for delegated powers in the Bill with the super-affirmative procedure.

Because of the skeleton nature of the Bill, outlined in the previous group, it is key to ensure that Parliament is able to properly scrutinise regulations made under the Bill. The super-affirmative procedure, which affords a committee of either House the opportunity to comment on a draft of the regulations and make representations, is in our view the best way to do it.

The past year has made clearer than ever the need for outward-facing health policy with public health and safety at its heart. The regulations brought forward under this Bill are central to doing this, and the highest level of scrutiny is needed to ensure their success.

One of the first things I had to learn when joining the House was the sovereignty of the House. My 10 years in your Lordships’ House have taught me to spot Henry VIII powers and call them out. As the noble Baroness, Lady Andrews, said, these amendments are hardly revolutionary, so I urge the Minister to accept them.

We need well-grounded legislation, and this Bill gives the department carte blanche to do what it likes. The amendments tabled by my noble friend give Members of the House the opportunity to scrutinise in a proper way and that, after all, is what the public expect of us.

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[Baroness Jolly (LD) [V]]

My Lords, this amendment would require the appropriate authority to have regard to the protection of the environment when making regulations about human medicines. We have left the EU and need to be sure that our replacement regulations are fit for purpose. Many of us have spent a lot of time checking that these replacements are in such a fit state; but, while the health and safety of patients remain paramount, it is reasonable and, indeed, important, given the climate crisis, to consider the environmental implications of any policy stemming from these regulations.

The manufacture of human and veterinary medicines, and medical devices, does not happen in an environmental vacuum. Manufacturers have a duty to protect their environment—and manufacturers of medicines will need to be open about how they deal with chemical and other waste. I live in Cornwall where oestrogen has found its way into local rivers, ecosystems and oysters. Wastewater from pharmaceutical manufacturers could also find its way into local waterways. Will the Minister outline how this is dealt with by regulators, and how it is covered by the Bill?

Much waste from pharmaceutical plants is toxic and dealt with appropriately by manufacturers but, in a Brexit world, the regulation regime will have different regulations from the very strict ones that applied when we had to follow EU regulations. We can buy our medicines and medical devices from all over the world; we know that not everyone has the same high environmental standards governing manufacture that we have. What criteria are appropriate in the commissioning and purchasing of medicines from the rest of the world? Can the Minister please outline for us the nature of discussions with regulators about these issues?

[Lord Hunt of Kings Heath (Lab) [V]]

My Lords, this debate follows a very interesting one in Committee, in which the noble Baroness, Lady Bennett, posed some searching questions about the potential for designing new drugs that are less harmful for the environment, whether in their composition, their impact when they escape into the environment, or in their packaging. Today, she also argues that the expectation of this approach should be built into legislation.

In Committee, the noble Baroness gave some very interesting examples. I was particularly interested to hear that in Sweden—

Medicines and Medical Devices Bill

Debate between Baroness Jolly and Lord Hunt of Kings Heath

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Monday 19th October 2020 Grand Committee

[Baroness Jolly (LD) [V]]

My Lords, given that we are in Committee, I will not be making lengthy speeches, but I will raise what I think are the key issues in each of the groups. The amendments to the Bill relate to some of the constitutional issues. As a general rule, noble Lords do not much care for delegated powers because it is not considered good practice or procedure to give a Secretary of State carte blanche in any area. There are some areas in this Bill where the Secretary of State is being given powers that we would rather that he or she did not have.

As the Bill is skeletal and consists mostly of delegated powers, it is important and a good idea to ensure that appropriate steps are taken to set an end date on these, so sunset powers are being proposed. The noble Lords, Lord Lansley and Lord Kakkar, and the noble Baroness, Lady Thornton, have requested the Secretary of State to publish draft legislation to consolidate the legislation relating to human and veterinary medicine within three years of the Bill being enacted.

My noble friend Lord Sharkey and I have put our names to several amendments in this group. My noble friend calls for the super-affirmative procedure so that all powers given in the Bill will elapse after three years. I confess that this is the first time that I have seen that being used. The super-affirmative procedure involves an additional stage of scrutiny where Parliament considers a proposal for a statutory instrument before it is formally laid. This procedure is used for those instruments that are considered to need a particularly high level of scrutiny, which I think is certainly the case with this Bill.

Some of the amendments call for consolidation within three years, but in general what we are saying to the Minister is that there are not enough checks and balances. Please use the time between now and Report stage to look again, speak to Members of the Committee and bring forward government amendments—otherwise, I suspect that we may be voting on Report.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I have added my name to Amendments 1 and 140 tabled in the name of my noble friend Lady Thornton. As we are at the start of the Committee stage, perhaps I may remind the House of my membership of the board of the General Medical Council and my role as president of GS1 and the Health Care Supply Association.

I agree with my noble friend Lady Thornton about the clash between the first day of the Committee stage of this Bill and the Second Reading of the United Kingdom Internal Market Bill in the main Chamber. Today we are dealing with some of the most important debates in the whole Bill and when we come back on Report there will be a need to give more time to allow those people who could not be present today to make a full contribution to these debates. I hope that the usual channels will take that away. I am not quite sure about the procedure in these unusual circumstances, but in normal times I would have asked that the Committee stage procedure be used for these introductory debates on Report in order to allow for interventions. However, since interventions are now limited, that may not run well, although I think that noble Lords will understand what I am getting at.

This is an important Bill on patient safety and the health of our life sciences sector. It is striking in its brevity and in the extensive powers to be given to Ministers. The noble Lord, Lord Patel, has spelled out the wide range of delegated powers contained in the Bill, while a pungent analysis by my local university, the University of Birmingham, points out that, while delegated powers may be needed to ensure responsiveness in the EU exit transition period and to meet the challenges of technological change, they should not be used indefinitely or relied on to implement matters of policy. I am not going to repeat what the Delegated Powers Committee or the House of Lords Select Committee on the Constitution have said, but it is rare for two Select Committees to comment at the same time and in such a critical way about the skeletal nature of a Bill. It is to be hoped that the Government will listen carefully to what is being said.

At Second Reading, the Minister suggested that the sunset clause as proposed by my noble friend would emasculate legislation

“meant to give regulators the powers to be effective and to future-proof medical regulation in a fast-changing industry for many years to come. We must understand the impact on an industry that needs regulatory certainty or else, as many noble Lords have noted, will move elsewhere.”—[Official Report, 2/9/20; col. 433.]

I have to say to the Minister that most of the regulatory uncertainty has been caused by the Government’s failure to be clear about what regulatory regime they want for medicines and medical devices. They have now had four years to think about this and we are still nowhere near knowing what regulatory system they want to put in place. Are they going to go for alignment with the European Medicines Agency or do they want to strike out on their own? Do they want to ally with the US FDA? What on earth are the Government’s aims? The industry is at risk because of this huge uncertainty. The idea that we should allow the Government willy-nilly to get this Bill through and make whatever changes they want without the House treating it as primary legislation simply will not wash. I am absolutely convinced that the long-term regulatory system must be subject to detailed primary legislation. As far as I can see, the amendment to bring in a sunset clause is probably the most appropriate vehicle to ensure that that happens.

National Institute for Health and Care Excellence (Miscellaneous Amendments) Regulations 2018

Debate between Baroness Jolly and Lord Hunt of Kings Heath

Wednesday 1st May 2019 Lords Chamber

[Lord Hunt of Kings Heath (Lab)]

My Lords, I am glad to lead a short debate about NICE and the introduction of charges. I was NICE’s first Minister and have long taken an interest in the work of the national institute. Overall, it has done a fantastic job; its methodology has been followed by many other countries and, clearly, it has had an impact on judgments about clinical and cost effectiveness.

However, its role has changed over the years. It was brought into being to encourage and speed up adoption of proven, innovative new medicines and treatments because of a concern at the time that the NHS was slow to adopt new treatments and innovations that had been shown to be better than existing treatments and drugs.

To start with, that worked. However, despite the legal requirement on the NHS to implement the technology appraisal decisions of NICE, right from the start it proved remarkably reluctant to do so. As time has gone on and money has been squeezed, NICE has become more a rationer of treatments than a pusher of the introduction of new, innovative products. My concern about charges is frankly not so much to do with the principle of charging, because it follows a well-known model and principle used throughout government endeavours, as with some specific issues, particularly in relation to small companies and the current or future review of NICE’s methodology, which I wanted to raise.

We know from the helpful paper produced by your Lordships’ Secondary Legislation Scrutiny Committee that the government grant to NICE has fallen from £66.4 million in 2013-14 to £51.2 million in 2018-19 and that the Government have argued that NICE needs to identify other sources of funding to enable it to continue its full programme of work.

Obviously, there was consultation. One issue raised in it was the impact of charging on the relationship between NICE and the pharmaceutical industry—but it is important that we recognise that NICE is concerned not just with medicines and the pharmaceutical industry. In the consultation, the potential for conflicts of interest and the public perception of such conflicts were identified as risks. In other words, because the pharmaceutical industry will now be paying for the work being done by NICE, will it have undue influence on the work of NICE? Looking at the robust approach of NICE, I think we can dismiss that fear, but it would be good if the Minister could say something on the record about how we can avoid any perceived conflict of interest.

The second issue I want to raise is the mechanism for reducing the impact on small companies. The original proposal was for a 25% discount but, as a result of concerns raised, the Government decided to provide a subsidy of 75% for small companies. That is welcome and I accept that the Government moved a long way, but the Ethical Medicines Industry Group, which represents a number of small pharmaceutical companies, says that despite that, there is concern among those companies about the impact on them when they have a number of other issues and challenges at the moment, including Brexit and the rebates associated with statutory and voluntary medicines pricing schemes. It thinks that the NICE charges still present a significant cost for small companies and asks the Government to consider whether further measures could be introduced to help mitigate the impact of this on SMEs. One of its suggestions is a fee exemption for companies bringing their first product to market. I think that is an interesting suggestion in terms of encouraging new entrants into the market, which I believe is government policy.

More generally, it is important that, with the extra resources that will be going to NICE, we take the opportunity to ensure that NICE modernises its approach to medicines assessment. When the Government introduced the concept of cost recovery they said the charging would provide a more sustainable model, enabling NICE to flex its capacity in response to the pipeline of technologies that require assessment by NICE. That is welcome, but I want to refer to a briefing I received from a company called AbbVie, which says that it is imperative that NICE fulfils this commitment to adapt and update its methodology and modernise its approach to assessing new technologies.

One example it gives is that we know that medicines are increasingly targeted at smaller patient populations developed through clinical trials. Inevitably, these will embrace patients in smaller numbers. The problem is that regulatory agencies tend to approach this with some caveats. Inevitably, the clinical trials result in smaller datasets and regulatory agencies are certainly demonstrating significant flexibility to approve such medicines, often conditional on that data. However, the approach of health technology assessment bodies such as NICE is often challenged by such datasets, resulting in delays and highlighting a disconnect in the medicines approval pathway. AbbVie-commissioned research shows that medicines, such as those specifically expedited through the regulatory approvals system, due to their addressing areas of high unmet medical need, take longer, on average, to receive subsequent approval from NICE than those medicines that have not been expedited, thereby making the whole process very difficult. The upcoming NICE methodology review, due to commence through 2019-20, provides an opportunity to look at this again and I would be grateful if the Minister would say one or two words about that.

I also raise an issue raised with me by Alexion, a company focused on the development of medicines for rare and ultra-rare diseases. It has concerns about the potential unintended consequences of introducing charges for appraisals without action to address the significant challenges these treatments face in NICE assessments.

In conclusion, I do not object to the principle of charges: I think it is quite proper and the Government’s approach is to be supported. I have concerns about the small companies. I know that the 75% rebate is generous on any count, but any additional costs on those companies is something to be concerned about. The core of my question to the Minister is around the methodology review, to ensure that NICE keeps up to date with developments in science and technology. That is very important.

Turning to my final point, I know that the noble Baroness has taken a great interest in this over the years, representing her old constituency, particularly the life science sector. On the one hand, government policy is about encouraging UK life science and biotech companies to develop, to innovate and to invest in the UK. However, the National Health Service is set up to ensure that those innovations are not adopted by it. Despite a number of welcome government initiatives, they are all what I would call upstream, because the downstream is too difficult. This is a real problem so long as we have an NHS dedicated to stopping innovation. I fear that, despite all the warm words from Ministers that we have heard over the years, the NHS response is to dampen down investment in these new technologies and medicines. My argument is that, post Brexit, we cannot afford for this to happen. One way or another, we have to find a way to get the early adoption of new medicines and new techniques, where they can be shown to do better than the existing ones, and NICE has to play a part in that.

This is really my usual rant about innovation and getting patients access to the fantastic things being developed in the UK. I look forward to the Minister’s response and I beg to move.

[Baroness Jolly (LD)]

My Lords, I thank the noble Lord, Lord Hunt of Kings Heath, for giving us the opportunity to ask the Minister some questions. As I expected, it was really interesting, starting with NICE from its inception. Those of us who have been involved with the NHS for some while know the standing that NICE has within the NHS community and how it is changing and adapting to changing circumstances, new technologies and the importance of really exciting new pharma, including pharma for specialised conditions. It also gives us the opportunity to better understand the motivations and reasons behind some of the changes.

As I see it, this SI does two things. It enables NICE to recruit experts from across the UK to its appeal panel, as opposed to individuals only in England. This aspect of the SI appears to represent a sensible change. Secondly, it will allow NICE to charge industry for the cost of making technology appraisals—TAs—and highly specialised technology, or HST, recommendations. I see this aspect of the SI as potentially contentious. How will the anticipated savings from the SI be used? To whom will they be allocated? Will they be used to support growth of the life sciences sector in the UK, or will they just become part of the income stream and then go some way towards the possible privatisation of NICE? Is not the reason for this SI that NICE’s government-funded budget is decreasing? The documents with this SI note that in 2013-14 NICE received £66.4 million in government funding, and that by 2018-19 this had dropped to £51.2 million. I wonder how many other NHS-funded organisations have faced cuts of 23% over five years and quite considerable growth in their business.

Mental Capacity (Amendment) Bill [HL]

Debate between Baroness Jolly and Lord Hunt of Kings Heath

Committee: 3rd sitting - (Hansard): House of Lords
Monday 22nd October 2018 Lords Chamber

[Baroness Jolly (LD)]

I would like to add a few more points on training. An awful lot of people in an awful lot of new roles will require training to get whatever system that we are going to end up with up and running at pace. Which organisation will be responsible for setting up the programmes for ensuring the delivery of good-quality training? Who has the responsibility to ensure that nothing is implemented until all the appropriate professionals have received their training? There is nothing worse than determining a date to fire the gun if you discover that all the people who are going to run the system are not yet trained. Can the Minister confirm that all this will start with plenty of time before the rollout of this new system? We expect that training should be effective and ongoing. Who will assess the trainers? What is the process for ensuring quality and a national standard? We may well be able to twist something that currently exists and make it work, but I do not have that knowledge. Can he also confirm that, as part of this training, the rights of the individual will be reinforced? Will the training clarify the role that each of these professionals within this new system is going to have in ensuring that an individual’s rights are observed and respected?

[Lord Hunt of Kings Heath (Lab)]

My Lords, I want to follow up the remarks of the noble Baroness, Lady Finlay, by referring to the recent CQC annual report, which had a section on the implementation and practice in relation to DoLS. The report laid out a number of key concerns about care home and hospital providers that are actually using DoLS at the moment in relation to the Act itself. There is a huge variation in practice and this variation is commonly linked with a basic lack of understanding of the law, which is complex and difficult to understand. The report says that the result is that there are unnecessarily restrictive practices that can result in the loss of freedom and, in some cases, the loss of people’s human rights. The problems are reinforced by limited staffing levels, a lack of time to complete applications and inadequate staff training.

I am aware, of course, that the intention of this Bill is to streamline some of those procedures, although I think that, because the safeguards have been drastically reduced, we might be landing ourselves in future problems once the courts begin to hear some of the cases that will arise. The point is that it is quite clear that, at the moment, effective training is not taking place among many of the organisations involved in the operation of DoLS. The risk is that the same will happen in relation to the new legislation. We need some guarantees that there are going to be resources and a concerted training programme to ensure that we mitigate that impact.

--- Later in debate ---

[Baroness Jolly]

My Lords, I shall speak also to Amendments 87, 93 and 94 and address the amendments tabled in the name of my noble friend Lady Tyler and the noble Lord, Lord Touhig. Amendments 93 and 94 are simply enabling provisions.

Amendments 86 and 87 would require that, before the implementation date of this legislation, the Secretary of State should lay before both Houses of Parliament a copy of the updated code of practice giving guidance as well as a response to the review of the Mental Health Act that Sir Simon Wessely is carrying out. We have been half guessing in our discussions what might or might not be in it.

The Bill is not particularly easy to read and it is certainly not a guide for practice, and the ensuing Act will not be easy to read either—unlike the Care Act. The code of practice is absolutely critical to take professionals through what the legislation will entail and what they will have to implement in their practice. To that end, I have a little list. I wonder whether the Minister can indicate or confirm whether these issues will be covered in the code: the basis for detention and when the “necessary and proportionate” test applies; the role of IMCAs and appropriate persons; the professional qualifications and training of those undertaking pre-authorisation reviews; when an AMCP referral should be made; and obligations to provide information to the person and their family about the authorisation. The Minister may not have the answers on his person or from the Dispatch Box right now, but perhaps he could write to me and make that clear.

To make this happen, we would need subsection (2)(a) of the new clause proposed by Amendment 86 and a year’s wait. Many noble Lords have spoken both on and off and in Committee about the Mental Health Act. In our previous debate, the noble Baroness, Lady Meacher, referred to the work of Sir Simon in reviewing that Act along with the Act we are trying to amend now. Between them, the two Acts define, among other things, the care and rights of the most vulnerable—those with mental health conditions and those lacking capacity—who are unable to make decisions about their care. Sometimes, but not always, there may be an overlap. It would not be prudent for the Bill to end its passage through Parliament without us learning the findings of the Wessely review and determining whether it is necessary to amend the Bill further—hence the need for subsection (2)(b) of the new clause proposed by Amendment 86. Earlier today, the Minister spoke about pushing ahead. I understand the need for urgency, but I fear that if we pass the Bill in haste, we may end up repenting or regretting at leisure. That is just me being slightly cautious.

Amendment 87 calls for the Secretary of State to,

“lay a copy of the report before both Houses”.

He or she—who knows who it will be by then—is being asked to look at how the Act is working and whether they are confident that there is an improvement in the process surrounding the deprivation of liberty. We have all discussed this issue; the Minister will have detected the Committee’s concern about this area of the Bill. Basically, I am calling for the Secretary of State to report back on the impact of the Act and ensure that the code is well and truly in place before we start to use the Act in earnest.

I added my name in support of my noble friend Lady Tyler’s amendment, which seeks to ensure that regulations are scrutinised and debated in both Houses. It would also ensure that consultation takes place outside Parliament, which is critical. It is fine for us to debate these issues here—clearly, some people have more experience and understanding than others—but I get many letters from not just individuals who are, or would be, affected by the Bill but the sector, saying, “Keep the Government’s feet to the fire. Make sure we get the very best Bill we can”. I do not doubt at all the Minister’s intention to achieve that end, but the devil is in the detail and there is a lot of it. We must make sure that we get this right through primary legislation. As I said, there is much expertise but we all welcome the opportunity to look at the detail of regulations, both accompanying primary legislation and in any future proposed changes.

Under DoLS, a number of important things were set out in regulations, particularly: who best interests assessors were and how they were to discharge their duties; the timeframe for carrying out assessments; the type of information that would need to be collected; and details of how disputes might be resolved. As my noble friend Lady Tyler will highlight, this is not just about ensuring that regulations are debated; it is about how those in the sector—families and vulnerable people themselves, I would suggest—are consulted and involved in getting the detail right in both initial regulations and any subsequent changes down the line.

To bring this matter into sharper focus, I wonder if the Minister might be able to confirm what he thinks might go into regulation? I hope he would also confirm that regulations laid accompanying this Bill, and any amendments down the line, are subject to the fullest scrutiny both in this House and in the sector. This will mean a decent time gap will have to be found between the laying of the regulations and the debates in both Houses.

I welcome Amendment 92, in the name of the noble Lord, Lord Touhig, which would see another two independent reports commissioned by the Government. They would be laid within two and four years of implementation, to provide a valuable update as to how implementation was proceeding and highlight areas for improvement. We will need to monitor the implementation of the Act, however it may end up, really closely. We are dealing with the most vulnerable in our society.

These amendments are based on the PIP independent reviews, which have proven successful in highlighting problems. While I am sure many in this House would agree that there are still things to improve in terms of personal independence payments, the oversight provided by the independent reviews has been invaluable in terms of recommending important changes aiding implementation. There are many important issues to review: best interests decisions—ensuring that they are just that, and not based on commercial or other considerations; a monitor of advocacy offered and its uptake; the involvement of P—the cared-for person—and not just professionals, but also those who care for P, and the families of P. I am happy to support those particular amendments, and beg to move.

[Lord Hunt of Kings Heath]

My Lords, I have three amendments, starting with Amendment 87A. It sets out a number of requirements before the Act can come into force, embracing a set of independent reports that I would like to see commissioned by the Secretary of State. They address work on the rewording of the expression “unsound mind”; the availability of independent advocacy; appeals on behalf of cared-for persons; the availability of legal aid and support for cared-for persons participating in court proceedings; and short and long-term costs for implementing provision bills for local authorities, the courts and the health service. I recognise some of these points have already been discussed, on the second day of Committee in particular, and the Government are bringing forward amendments so the Bill reflects the need to consult the cared-for person. The Minister also agreed to look further at the expression “unsound mind”, which many believe is stigmatising and outdated language.

I hope the Government might just go further. This amendment is based on the report of the Joint Committee on Human Rights and reflects some of the issues it would like to see covered in legislation. I will not comment in detail, but I want to come back to the role of the Court of Protection. We discussed this on the second day of our proceedings, and I think the Committee was informed by the view that recourse to the Court of Protection should be avoided wherever possible, because of the stresses and strains involved and the cost. I am certainly conscious that we do not want to create a situation where mental capacity professionals defer their responsibility to the court, and individuals have to undergo court procedures unnecessarily.

According to Dr Lucy Series of the School of Law and Politics at Cardiff University, while the cost and stress of applications to the Court of Protection is undeniable, research by Cardiff has shown that the Government have taken the decision not to reform the Court of Protection, which would make it less costly, less stressful and more like the tribunal approach that many noble Lords would like to see. It is instead being managed by, essentially, restricting access to justice. A week ago, the noble Baroness, Lady Stedman-Scott, said that,

“if a person wants to challenge their authorisation in the Court of Protection they have the right to do so”.—[Official Report, 15/10/18; col. 371.]

However, the practicalities are that people may experience extreme difficulty initiating a court action without assistance, as will their families. The evidence on this matter was very clear to the House of Lords Select Committee on the Mental Capacity Act and the Law Commission. I hope that the Government will consider it.

European Union (Withdrawal) Bill

Debate between Baroness Jolly and Lord Hunt of Kings Heath

Report: 2nd sitting (Hansard): House of Lords
Monday 23rd April 2018 Lords Chamber

[Baroness Jolly (LD)]

My Lords, I shall speak very briefly. I totally agree with what the noble Baroness has just said. This debate seems very much like the one we had during the passage of the Health and Social Care Bill about parity of esteem for mental and physical health. We were told by the Government that we did not need to have it in the Bill; we could assume that they would treat mental and physical health equally. That patently had not been the case. You might wonder whether they are treated in the same way now but the intention to treat them the same way was put in the Bill and so is on the record. This is very similar. The Government are saying: “We do not need this. You can trust us”. We might possibly trust the current Government. I see no reason why in most instances we should not trust them, but there are Governments coming down the track who may not be as reliable and trustworthy as the current one. So my instinct at the moment is to listen to what the Minister says when he winds up the debate on this amendment, but I would rather that it was in the Bill than not.

[Lord Hunt of Kings Heath (Lab)]

My Lords, this has been a short but very interesting debate. The noble Baroness, Lady Jolly, really put her finger on it when she talked about trust. It seems to me that there are two threads running through the argument. The first is the legal one, about which the noble and learned Lord, Lord Mackay, has spoken so eloquently. Then there is the issue of trust in the Government on public health. In a sense, the two run together.

The Minister is not a Health Minister, and I have to say to him that the reason for the lack of trust is the Government’s record. First they transferred public health in England to local government and then they slashed the budget, which means that even essential public health services are struggling to be performed effectively. Secondly, there is the Government’s reluctance to legislate in the areas of public health, preferring voluntary agreements with the food and drinks industry and so on to deal with things such as alcoholism, obesity and other public health issues. Thirdly, there is the fear about future trade deals—when it comes to it, the Government will be so desperate for trade deals with countries such as the US that public health and farming interests will be swamped by the desperation to reach a deal. That surely is one of the risks.

None the less, this is a debate on the terms of the amendment. I found the Minister’s intervention very helpful. I also found the intervention by the noble and learned Lord, Lord Mackay, helpful. However, this has only just come and I would like time to consider it. The noble Lord, Lord Warner, will make his mind up as to whether he pushes this to a vote tonight. It would be extremely helpful if the Minister would indicate that if we ask for time to look at the detail of his intervention, we could bring it back at Third Reading. That would be a constructive and very helpful outcome to the debate.

National Health Service (Pharmaceutical and Local Pharmaceutical Services) (Amendment) Regulations 2017

Debate between Baroness Jolly and Lord Hunt of Kings Heath

Thursday 19th October 2017 Lords Chamber

[Lord Hunt of Kings Heath (Lab)]

My Lords, I beg leave to move the Motion standing in my name on the Order Paper. I so do because I am very concerned at the reduction in community pharmacy funding, at the very time when we need this precious profession to take on ever more responsibilities. In opening this debate, I take the opportunity to pay tribute to Mr William Darling CBE, the youngest ever president of the Royal Pharmaceutical Society, who died earlier this year. I had the pleasure of working with Mr Darling over many years in the NHS; it was he who brought home to me the hugely valuable role that community pharmacies play in the UK. I, the profession and the public will be ever grateful to him for his immense services.

I should also say by way of introduction that the Secretary of State, under current statutory requirements, was expected to initiate a review of the pharmaceutical and local pharmaceutical services regulations 2013 by 31 August this year. He has not done so because, according to the Explanatory Memorandum, the Pharmaceutical Services Negotiating Committee sought to judicially review the Secretary of State’s decision on pharmaceutical spending and the department decided to await the outcome of the review. Let me say at once that I do not object to that at all or, therefore, to the order. What I object to is the way the department has dealt with the profession over the whole question of funding.

I find it remarkable that a Conservative Government are effectively undermining both patient choice and the role of SMEs in their approach. On patient choice, it was clearly stated by Ministers at a meeting of the All-Party Pharmacy Group last year that the intention was to reduce the number of community pharmacies in this country. Remarkably, the department feels that there is too much choice for patients in our high streets. In effect, the change to funding they are making is reducing the number of pharmacies. The judicial review ruled in the department’s favour, but nevertheless established the legal principle that it is the duty of the Secretary of State to always bear in mind health inequalities when making judgments. The problem in relation to community pharmacy cuts is that the department has not done so; nor does it deliver the more clinical and effective approach that it said it wanted in its letter to the PSNC back in December 2015.

Community pharmacies are the most accessible of all healthcare services. Last year, they had, on average, 137 visitors a day, gave 281 medical reviews and dispensed approximately 87,000 prescribed products. My concern is that the cutbacks or reforms will have a painful impact on thousands of people and therefore need to be thwarted as soon as possible. By reducing the contribution that community pharmacies can make, there is a risk of an increased burden on already pressed GPs and A&E departments.

I remind the Minister of a PricewaterhouseCoopers analysis commissioned by the PSNC in England in 2015. It estimated that community pharmacies contributed £3 billion in value to the NHS, its patients, the public sector and the wider economy. This included £1.1 billion in cash savings for the NHS, £600 million in benefits to patients and £242 million saved in avoided NHS treatment costs. It is rather short-sighted to undermine a profession that can give so much to patients and relieve some of the pressure on a system that, overall, is really suffering at the moment.

The majority of community pharmacies’ funding comes, of course, from the NHS and is used to fund their premises, staff and all other operating costs. My understanding is that this funding was reduced by 4% in 2016-17, with a further reduction in 2017-18, making a total 7.5% drop from 2015-16. Some pharmaceutical contractors claim that the payments to them have been cut by as much as 20%. We know that the Government have brought in some reforms—combining dispensing fees into one, a special funding scheme for pharmacies in isolated areas, a scheme for high-performing pharmacies and a pharmacy integration fund—and I welcome those payments. The problem is, they will not ameliorate the impending crisis faced overall by many community pharmacies.

One of the reasons given by the Government is that they think there are simply too many community pharmacies in some parts of the country. It often seems to me that the Department of Health lives in a world of isolation, ignoring general government policy. I had rather thought that the Government were in favour of consumer choice and therefore having more community pharmacy premises on the high street would be a good thing, not a bad thing. No doubt the Minister can enlighten me on the Government’s view on that matter.

One has to be clear that although Ministers have said they are worried about the number of community pharmacies, the reality is that those cuts will actually affect mainly the smaller pharmacies, which tend to be in the deprived areas. This is the real concern here. The fact is that there is financial instability in the sector. The reduction in NHS funding has led to pharmacies having to face worryingly high and unexpected wholesale bills if they want to maintain an adequate level of stock, which clearly they need to do. They face the potential prospect of banks withdrawing credit because income covenants have not been reached, due to the inability to find a source of credit to cover the aforementioned bills.

In a desperate attempt to keep the business viable, community pharmacies are reducing their services to patients. Because they are having to reduce their staff costs and make staff redundant, they are reducing opening hours and apparently cutting some free services, such as delivering prescriptions to the home, which particularly benefit older people and those with long-term degenerative conditions. We know that community pharmacies were under significant financial strain this summer. We are concerned that as we move into the winter, that financial strain will grow. Of course, it is mirrored by the pressure on the NHS at the moment.

Last year community pharmacies provided 950,000 flu vaccinations. There is a reason for this: it is very convenient. You do not have to wait until the surgery tells you that you can come in one Friday when it is able to give you a vaccination. You can go into a pharmacy and have it immediately. Already this year, community pharmacies have given out 500,000 flu vaccinations—a figure that could double by December. It is just one example of community pharmacies’ huge potential. They could do more—much more—if they were fully engaged in the kind of planning we need to see at local level.

Last night in your Lordships’ House we debated sustainability and transformation programmes. I do not think many STPs have mentioned the contribution that community pharmacies could make to providing services which, otherwise, other bits of the health service will have to. It is a pity because I believe this profession could provide much more support for the system and for patients in the future. I am worried about the impact of the financial reductions that have been made. I hope through this debate to at least encourage the Government to think again. I beg to move.

[Baroness Jolly (LD)]

My Lords, I am happy to lend my support to this regret Motion. For many years, pharmacies have been the lynchpin of our health service. Before the NHS was formed, the pharmacist was the expert who those without means went to for advice and medicine. With the advent of the NHS and a free general practice service backed up by free prescriptions, the role of the pharmacist began to change. The last couple of decades have seen further change. Pharmacists began to reassert their role of offering advice to customers, being commissioned locally and nationally for public health and medicines support.

In 2015 the Government proposed 6% cuts to the pharmacy service and suggested the ways in which this might be achieved, including a reduction in the number of pharmacies and the adoption of internet supply. This was solely a budgeting exercise and lacked any evidence base or indeed impact assessment. The Chief Pharmaceutical Officer suggested that we have 3,000 too many pharmacies without offering supporting evidence.

Apart from the pharmacy being a place where we collect our prescriptions and buy over-the-counter painkillers and cough medicines, the public ask advice from the pharmacist on things they would not trouble a doctor with. Women access emergency hormonal contraception, while needle and syringe programmes are managed, as is the supervised consumption of medicines.

Pharmacies offer specific public health services, support with self-care and medicines support, including checking prescriptions and the New Medicine Service. In addition, they arrange deliveries of prescriptions to patients. That might be stopping in some parts of the country but in Cornwall it is ongoing. In 2015, there were nearly 12,000 community pharmacists dispensing a billion prescription items to the value of £9.3 billion. They are funded by both local and central government to provide essential, advanced and local services.

The PSNC was so concerned at the lack of evidence base for the Government’s decision that it commissioned PwC to look at 12 specific services and determine their net value. In 2015, more than 150 million interventions were made, along with 75 million minor ailment consultations and 74 million medicine support interventions. They also served more than 800,000 public health users, for example with supervised interventions and emergency hormonal contraception. PwC determined that patient benefits totalled £612 million, that the wider societal benefits were £575 million, and that the NHS benefits to the tune of £1,352 million. There are other benefits to the public sector of £452 million. That is a total just shy of £3 billion of benefit which, in one way or the other, comes to us all from having community pharmacists. That is just the financial benefit and does not include the benefit of Joe Bloggs or Mary-Jane being able to walk in and ask their pharmacist a quiet, discreet question and get support, help and advice.

I suggest that when not only our GPs but our A&E services are under immense pressure from patients presenting with conditions that do not require prescriptions or that level of advice, this is not the time to take away from the high street the welcome and expertise of the neighbourhood pharmacist. Will the Minister persuade his colleague to stop, look at the evidence and protect these services which are so vital to the communities they serve?

Care Quality Commission Review: Deaths in the NHS

Debate between Baroness Jolly and Lord Hunt of Kings Heath

Tuesday 13th December 2016 Lords Chamber

[Lord Hunt of Kings Heath (Lab)]

My Lords, I thank the Minister for repeating the Statement and take this opportunity to offer my condolences to the noble Lord, Lord Prior, on the death of his father.

The circumstances of Connor Sparrowhawk’s death were shocking and I pay tribute to his family, who fought so hard for justice and to ensure that other families do not have to go through what they did. The findings of this report are a wake-up call: relatives shut out of investigations, reasonable questions going unanswered and grieving families made to feel like a pain in the neck, or that they would be dealt with better at a supermarket checkout. This is totally unacceptable and we therefore strongly welcome the recommendation of a national framework and the specific measures which the Secretary of State has outlined. I assure the Minister that we will work with her and the Care Quality Commission to support the establishment of such a framework in a timely fashion.

Families and patients clearly should not be forgotten in the process. Will the Minister pledge that families and carers will be equal partners in developing the Government’s plan for implementing the CQC’s recommendations? Does she agree that those who work in the NHS show extraordinary compassion, good will and professionalism but also that when something sadly and tragically goes wrong, it can often be the result of a number of interplaying systematic failures? A national framework will therefore provide welcome standards and guidance across the service.

Does the Minister recall that the previous Labour Government set up the National Patient Safety Agency, based on airline experience, which was responsible for monitoring patient safety incidents, including medication and prescribing error reporting? Does she also recall that the agency was scrapped under the Health and Social Care Act 2012 and will she acknowledge that this decision was a mistake? Can the Minister tell me what happened to the national reporting and learning system which the NPSA had developed to do the very work that she has outlined in the Statement today?

I was interested in the Minister’s comments about the Secretary of State not setting any targets for reducing reported avoidable deaths. I understand the reasons—it is a sensible approach—but it is one thing for the Secretary of State to say it and another for the different multilayered sections of bureaucracy to understand it. Can she assure me that the Secretary of State will make it clear to the various regulators that targets are not to be set? Equally, I agree with her point that seeing an increase in the number of reports of potentially avoidable deaths may well be a sign of care getting better rather than worse. But explaining that to the media and the public will be a challenge. Can she tell me that that will be a priority for the Government when these reports are published?

For a national framework and the proposed measures to succeed, investment will be necessary as well. Can the Minister confirm whether hospitals will receive extra funding to carry out the additional requirements that the CQC has recommended? Crucially, will this include safe staffing levels? The House will know that hospitals across England are suffering chronic staff shortages, leaving doctors and nurses overstretched. To go back to the mid-Staffordshire inquiry, Sir Robert Francis called for safe nurse staffing levels to be published by NICE. But when NICE attempted to do that, it was blocked by the Government. Will the Minister now commit to NICE publishing safe staffing levels, as recommended by the Francis report?

We saw reports over the weekend that the bed shortages in England have got so bad that seriously ill patients with eating disorders have to travel to Scotland for treatment. This is leaving some of the most vulnerable in our society hundreds of miles away from their homes. If the Government are interested in safety, does the Minister believe that this practice is safe and sustainable?

In conclusion, the CQC has called for the issues addressed in its report to be a national priority and for all those involved in delivering safe care to review the findings and publish a full report. The Opposition absolutely agree with that. Action is needed. We welcome the recommendations and we stand ready to work with the Government to ensure that these issues are no longer ignored.

[Baroness Jolly (LD)]

My Lords, I, too, thank the Minister for repeating the Statement and echo the condolences offered by the noble Lord, Lord Hunt of Kings Heath. I declare my interests as set out in the register. I am chair of a learning disabilities charity caring for adults across England.

We welcome the findings of this report but are saddened that we should need one. However, we welcome its publication and recommendations and hope that they will be taken forward and acted upon as a matter of urgency.

I am going to talk about families, governance and learning good practice from unexplained death inquiry processes. In the report, the Secretary of State said:

“The lesson of Mid Staffs, Morecambe Bay and indeed other injustices like Hillsborough is that when families speak out we must listen”.

Surely another lesson is that a trust, or even a regulated care setting run by a charity or the private sector, should reach out to the family first after the family member dies in an unexplained way. We recognise that the emphasis in the report on the importance of including and listening to families in investigations is extremely important, but is this not what common decency should require and families expect, and should this not already be happening?

The situation at Southern Health NHS Foundation Trust reflects what is known across the sector: that whether we like it or not, mental health and learning disabilities are always considered after acute and community services. As long as I can remember—and my involvement with the NHS began at the end of the 1990s—commissioners thought of them last and there was certainly nothing approaching parity of esteem. Now, at least for mental health, we have parity of esteem, and we should have processes in place that are as good and as robust as in all other NHS settings. The chair of the trust should work with the CEO to make sure this happens and a named non-executive director on the board should have ownership of the process. Sadly, this situation is nothing new. Trusts have struggled with this for years and it has to be kept on the agenda. I mean this literally as well as figuratively. It should not be relegated to a subcommittee; it should be on a full board meeting agenda by default.

I commend the processes adopted by Mersey Care NHS Foundation Trust. In such circumstances as we have been discovering, it carries out a review within days, very quickly, while all the involved staff are still in post and details are not forgotten—and, of course, families are involved.

Any good unexplained deaths investigation or complaints system should always have an element of learning built into it. This should be shared within the organisation and also within the sector, and there should be a process to make that happen. Processes currently seem to be ad hoc. Standards and definitions should be standardised into a common framework, as indicated by the report.

I have three key questions for the Minister. First, will the Government consider extending the recommendations of this report to regulated residential settings where those with a learning disability or a mental health condition are being cared for? Secondly, the report outlines the need for a national framework. Will the Minister outline who will co-ordinate the work outlined in the report and who might be involved, and indicate its expected completion date? Finally, will the framework contain recommendations about sharing good practice within the organisation and the sector?

Care: Budget

Debate between Baroness Jolly and Lord Hunt of Kings Heath

Wednesday 28th January 2015 Lords Chamber

[Lord Hunt of Kings Heath (Lab)]

My Lords, is the noble Baroness seriously saying that the Government are not responsible for the funding cuts to local government and the consequent impact of a reduction in social care services? On the better care fund that she referred to for the next financial year, I refer her back to the King’s Fund quarterly monitoring report, which we discussed yesterday, which showed that 83% of NHS trust finance directors were not confident that the fund will be able to reduce pressure on A&E services. The better care fund is destined to fail.

[Baroness Jolly]

I think the noble Lord will expect me to disagree with him on that issue. A lot of work has gone in with local authorities, with the CCGs and with NHS trusts to try to ensure that that work succeeds.

NHS England: Major Incidents

Debate between Baroness Jolly and Lord Hunt of Kings Heath

Wednesday 28th January 2015 Lords Chamber

[Lord Hunt of Kings Heath (Lab)]

My Lords, I am very grateful to the noble Baroness for repeating that Statement, and I echo her thanks to the staff of the NHS and other agencies who are coping with such pressure at the moment. The noble Baroness said that there is no definition of a major incident. Can she tell me why there is no national definition of a major incident, given that the NHS is a national service and that we need comparators between different areas of the country? Can she also tell me why a head of operations at a major trust who received the NHS England guidance said it was designed,

“to effectively stop trusts from calling a major incident”,

and that consultants’,

“hands will be tied in most cases if they wish to call a major incident for capacity reasons”?

That sounds rather like news management by NHS England. Finally, can she confirm that, when the previous Government left office, the 98% target was being met?

[Baroness Jolly]

I shall take the noble Lord’s questions in reverse order. The 98% target was being met—up until probably the middle of November, we were hitting our target—but, from the middle of November through the cold Christmas and New Year season, demand was really very high. In 2013, NHS England produced guidance on such issues that would, clearly, have gone to all CCGs, trusts and interested organisations. It is up to local trusts, following the guidance, to make their own decisions about how appropriate it is to call an emergency. The noble Lord has an advantage over me; I have not seen the West Midlands document, so I am not sure exactly how that trust interpreted the guidance. I have not seen the document, so I cannot follow the trust’s interpretation, but from the Secretary of State’s Statement, he probably finds it difficult to follow.

NHS: Finances and Services

Debate between Baroness Jolly and Lord Hunt of Kings Heath

Tuesday 27th January 2015 Lords Chamber

[Baroness Jolly (LD)]

We agree with the King’s Fund that very real financial and operational challenges face our health and care services. However, we are committed to a sustainable future for our NHS. This is demonstrated by our protection of NHS funding and our further funding commitment for 2015-16. This will begin to deliver the vision for transformation set out in the NHS Five Year Forward View.

[Lord Hunt of Kings Heath (Lab)]

My Lords, the King’s Fund quarterly monitoring report of NHS finance directors shows a worrying picture of 42% of NHS trusts facing a financial deficit this year, services under pressure, operations cancelled and a 50% increase in the wait for packages of care by patients in hospitals. Finance directors describe the situation as critical. What specific action are the Government taking to respond to this crisis? Are the Minister and her Liberal Democrat colleagues now prepared to say that they regret their role in helping the passage of the 2012 Act, which has caused so much damage and fragmentation?

[Baroness Jolly]

To take the last point first, I do not regret that. I do not regret parity of esteem for mental health. I do not regret health and well-being boards in local authorities. On the noble Lord’s first set of points, we have seen rising demand in emergency and waiting lists, a reduction in unplanned financial support, and focus on safer staffing ratio guidance. Various things are happening. The noble Lord, Lord Carter, one of the noble Lord’s noble friends, is looking at procurement within hospitals. Right across the piece, local NHS and foundation trust boards are concentrating on how they can restructure services to improve the situation.

General Practitioners: Hippocratic Oath

Debate between Baroness Jolly and Lord Hunt of Kings Heath

Thursday 11th December 2014 Lords Chamber

[Baroness Jolly]

That is the case.

[Lord Hunt of Kings Heath (Lab)]

My Lords, going back to the point raised by the noble Lord, Lord Trefgarne, will the noble Baroness repeat the words of the noble Earl, Lord Howe, when this issue was raised a couple of weeks ago—namely, that the core part of the 2004 contract that the noble Lord complained about was negotiated in the 1990s by the previous Conservative Government? Will she confirm that?

As far as the oath is concerned, the noble Baroness will be aware that part of it states:

“Whatsoever house I may enter, my visit shall be for the convenience and advantage of the patient”.

Would Hippocrates be surprised by how few home visits are now done by doctors?

[Baroness Jolly]

I cannot say whether or not Hippocrates would be surprised. However, doctors—certainly, those in the out-of-hours service—are committed to home visits where it is decided that they are clinically appropriate.

Care and Support (Deferred Payment) Regulations 2014

Debate between Baroness Jolly and Lord Hunt of Kings Heath

Tuesday 9th December 2014 Lords Chamber

[Lord Hunt of Kings Heath (Lab)]

My Lords, my noble friend has done a singular service in bringing these two Motions before your Lordships’ House. I take this opportunity to welcome back my noble friend Lady Wilkins, who is in her place. It is great to see her back in your Lordships’ House.

My noble friend made some very telling points about the scheme and the puzzle about the differentiation in numbers relating to the date of its introduction. I was particularly struck by his comments and concerns about the impact on local authorities, on financial advisers, and, of course, on old people themselves. I hope the Minister is in a position to answer my noble friend. He referred to the National Audit Office’s study of the state of readiness of local authorities. I had the opportunity of meeting with the Local Government Association yesterday. It is fair to say that it seems prepared for the introduction. However, its own report has pointed out some of the issues it faces: concern about an increase in total costs; measures around IT, workforce, information and advice, and market shaping; and feedback through direct conversations with its own members that suggests that other pressures on councils, including funding shortfalls and work on the better care fund, compounded with uncertainty on key advice and information, has delayed or otherwise impacted on its preparations in a number of areas.

We debate the introduction of the Care Act’s provisions by local authorities in the context of a huge squeeze on local authority funding. Remember that, since adult social care is probably local authorities’ biggest area of discretionary spend, there have inevitably been huge reductions in their resources. I remind the Minister that, as we have seen from the Autumn Statement, the Chancellor has said that he wants to keep the state permanently at the size it was in the 1930s—around 35% of GDP. If the Government are re-elected at the next general election, that is bound to have a huge impact on local authorities’ capacity to introduce and run the provisions in the Care Act.

I particularly want to talk about one issue relating to implementation. The Minister knows that local authorities will be liable to assess people’s eligibility as self-funders from 2016 onwards. That will then start the clock running to reach the 72,000 cap, at which point those self-funders will be eligible for local authority support. However, picking up my noble friend’s comment, it is clear that local authorities will not be able to assess all current self-funders in April 2016. In fact, I think some self-funders will not be aware of the provisions and therefore will not apply on the first date that they could. Others will apply, but the local authority will not be able to get round to assess them.

The question that I want to put to the Minister is this: will the introduction of the cap on individuals be retrospective? In other words, if I am a resident in a care home, it takes the local authority a year to come round and assess me because of lack of capacity, so will the Government backdate the assessment to the beginning of the introduction of the provisions in April 2016, or will the clock start to run only when the assessment has been made? The question also applies to those self-funders who did not apply on the first potential date when they could have done but were in a care home at that date. That is crucial. There is a risk, if it is not completely retrospective, that local authorities will ration people’s eligibility for this new system by simply delaying the assessments that take place. That is entirely consistent with the point raised by my noble friend. At the heart of his argument are the issues of capacity and the state of readiness of local authorities to undertake the considerable responsibilities that they have been given. It would really be helpful if the Government were able to state with confidence their assessment of the state of readiness of local authorities. What will happen to the thousands of individuals who, in my understanding of what these provisions mean, would be eligible right from the start of the new scheme? Will they have to wait until the clock starts for their assessment to take place?

[Baroness Jolly (LD)]

My Lords, the Government have made a clear commitment to introduce a universal deferred payment scheme from April 2015. The fulfilment of this pledge directly addresses the long-standing problem in the care system whereby people who have gone into residential care have often had to sell their homes at short notice in order to pay for care. This has often happened at a time when people need space to adjust to a change in lifestyle and circumstances and to make important decisions about their care and finances. This has been a well known source of distress to people—I am sure we would all identify with that—as well as making it harder for them to plan. The introduction of the universal deferred payment scheme directly addresses this issue and that is why we are proud to announce the new scheme from April 2015.

The first Motion that we are to debate calls for the regulations bringing the universal deferred payment scheme into force to be annulled on the grounds that the reforms are coming into force a year before other changes to social care funding. There are two compelling reasons why the Motion is misguided and any delay must be resisted. First, many thousands of people stand to benefit from deferred payments in the first year of the scheme alone. These people would otherwise be at risk of having to sell their homes to pay for care. Secondly, local authorities are confident that they will be ready to implement the scheme in full from April next year so there is no sensible reason why these people should not benefit.

The need to reform deferred payments without delay has been accepted for many years. The Commission on Funding of Care and Support, chaired by Sir Andrew Dilnot, supported extending deferred payments in part due to its finding that,

“the availability and use of deferred payment schemes is patchy”.

At the moment, offering deferred payments is voluntary for local authorities, with no common eligibility criteria. As a result, not everyone who wants and needs a deferred payment can get one. The Dilnot commission identified that one of the key reasons for this patchy provision across the country was the fact that local authorities were not able to charge interest on deferred payments and were thus forced to run the scheme at a cost to them. By allowing local authorities to charge a low rate of interest that will help them run the scheme on a cost-neutral basis, we are removing one of the clear disincentives of the old scheme. From April next year, local authorities will be able to charge up to 2.65% interest, which helps to keep the scheme financially sustainable and compares very favourably with equity release products, which can charge in the region of 7% to 8% interest. Through the regulations being debated today, all local authorities will be required to have a deferred payment scheme from April next year. There will be a universal offer across the country, ensuring that those most at risk of losing their home can benefit from the support they need to meet their care costs, wherever they live.

It has been suggested by the noble Lord that the universal deferred payment scheme should be delayed by a year and not come into force until 2016. We are sympathetic to concerns that local authorities could have found the implementation of the scheme challenging, but I can reassure your Lordships’ House that the timetable that we have planned is realistic, necessary and achievable. The Department of Health has worked closely with local government colleagues through the LGA and the Association of Directors of Adult Social Services to ensure that the sector is ready to implement the Care Act from April 2015. To pick up on a point raised by the noble Lord, Lord Hunt, we recognise that there will be a need for additional capacity to assess people and we are prioritising £335 million in 2015-16 to support implementation, including early assessments towards the cap. The latest survey of local authority readiness shows that progress towards implementing Part 1 of the Care Act from April 2015 is on track and that confidence is high and improving in almost all areas, including deferred payments.

It is important to note that the introduction of the universal deferred payment scheme from April 2015 will mean that an extra 7,600 people will be able to benefit from the protection of a deferred payment. This is in addition to the 3,900 people who would have benefited in the current regime anyway. This means that when the new scheme comes into force, we project a total of 11,500 new deferred payment agreements in the first year alone.

The noble Lord, Lord Lipsey, questioned the uptake assumptions in the impact assessment. The figures used in the impact assessment are based on a local authority with a well established scheme. All who qualify for deferred payment would also qualify for the 12-week property disregard so will come to their local authority anyway. Noble Lords will surely agree that, bearing in mind the confidence of local authorities in being able to implement the scheme, it would be hugely unfair to these people to wait any longer than is necessary to introduce this historic reform.

Care and Support (Deferred Payment) Regulations 2014

Debate between Baroness Jolly and Lord Hunt of Kings Heath

Tuesday 9th December 2014 Lords Chamber

[Lord Hunt of Kings Heath (Lab)]

My Lords, I again thank my noble friend for bringing us back to a very important part of our debate during the passage of the then Care Bill some months ago. We need to remind ourselves of the fanfare with which the Government introduced that Bill. As my noble friend said, there was an explicit statement that older people would no longer have to sell their homes to pay for their care. As he has carefully outlined, that is strictly true even within the provisions of the deferred payment regulations. But as he said, it is not in the spirit with which the Government actually announced this policy. Instead of a scheme that would have brought comfort to thousands of people, they have produced a very mean-spirited scheme that will clearly exclude many people who one would have thought should have taken advantage of its provisions.

As these are regulations, we tend to ask technical questions. I have two questions for the noble Baroness, on which she may want to write to me. On the impact of the relevant figure on pensions, how will a pension pot be treated in relation to the calculation of the non-housing asset? Do the Government expect the new flexibility in assessing pension savings contained in the Taxation of Pensions Bill to have any effect on this policy? Will those savings be counted towards the £23,250 cap? I would be very happy for the noble Baroness to write to me on those points.

My noble friend Lord Lipsey came to the crunch of the matter when he said that he did not expect a scheme to be available to the wealthy and the very asset-rich. I endorse that. My noble friend Lord Warner wrote to the right honourable Norman Lamb a year or so ago. My noble friend was a member of the Dilnot commission but is unable to be here tonight. He wrote:

“As a commission we accepted there had to be some eligibility criteria because this was never intended as a scheme that was available to the wealthy and asset rich”.

However, as he said, and as my noble friend Lord Lipsey said, being required to spend down to assets of £23,250 seems far too restrictive to deliver a viable scheme or to reflect what the Dilnot commission recommended.

Surely, even at this stage, the Government need to reconsider this scheme. It is very disappointing that the consultation has taken place, we had a very good debate on it and yet the Government have moved not one inch on this policy. If it goes ahead, it will be very disappointing for many thousands of people who had every reason to expect that they would take advantage of the scheme. The noble Baroness may say that we should not worry because local authorities will be able to offer schemes above the threshold of their own volition. However, I very much doubt whether many local authorities will take advantage of that. Therefore, I support my noble friend. I am delighted that he will push this measure to a Division tonight. We are very happy to support him.

[Baroness Jolly (LD)]

My Lords, I shall also have to take exception to the noble Lord’s second Motion today on the eligibility criteria. The eligibility criteria are not, as he has suggested, at odds with the overarching policy intention that people should not be forced to sell their home within their lifetime to pay for their care. Indeed, they ensure that protection and support is available to those who need it.

Noble Lords will recall that in my earlier speech I made reference to the conclusions of the Commission on Funding of Care and Support, chaired by Sir Andrew Dilnot. As I said, the commission supported the extension of deferred payments. More specifically, it recommended:

“Anyone who would be unable to afford care charges without selling their home should be able to take out a deferred payment”.

The deferred payment scheme that each local authority will be required to implement will achieve precisely this—it will provide protection to those at risk of having to sell their home to pay for their care.

It has been suggested that the eligibility threshold, which requires a person to have less than £23,250 in savings and assets on top of the value of their house to qualify for a deferred payment, has been set too low and will not achieve this aim. It has even been suggested that this policy would leave people unable to afford their basic living expenses. So allow me to shed some light on this debate by informing noble Lords that setting the threshold at this level means that 80% of people who develop a residential care need will qualify for either help from their local authority in paying for their care or a deferred payment agreement. This means that only the wealthiest 20% of people entering residential care—those who have savings and assets above £23,250 on top of the value of their property—will be asked to initially meet their own care costs before they receive local authority support. Crucially, anyone in this wealthiest 20% bracket would subsequently qualify for a deferred payment if their savings and non-housing assets fell below the £23,250 threshold. So if a person has a change of circumstances or has to spend down their savings to below £23,250, they would be eligible for the support and protection provided by a deferred payment.

[Lord Hunt of Kings Heath]

My Lords, can the Minister clarify this? Taking the case raised by my noble friend of an individual with £30,000 of non-housing assets, under her definition these classify this individual as being in the wealthiest 20%. Is that so?

[Baroness Jolly]

That is what has been assessed as wealthy. The £23,250 was set as a level below which you would be eligible for assistance.

While we want as many people as possible to benefit from the reforms, the eligibility threshold was set at this level because we wanted to focus the funding available for the scheme on providing protection to those at most risk of losing their homes. If we extended automatic eligibility for deferred payments to the wealthiest 20%, who can afford care without having to sell their home, it would mean having to take funding from elsewhere in the care and support system, where it could surely provide greater benefit. That is why the regulations that were laid before the House do not mandate that a local authority must offer a deferred payment to someone with assets of more than £23,250. This is necessary to ensure value for public money by targeting resources where they are most needed.

We have set these criteria so that people will be entitled to a deferred payment when they would be at risk of being forced to sell their home to pay for care. The criteria are also to ensure good value for public money and minimise the risk of bad debt. I trust that noble Lords agree that it is only right and proper that we should prioritise first, and help and support those most in need. There has also been some suggestion this evening that the Government have not been open about the £23,250 threshold, or that my noble friend Lord Howe, who is not in his place, was somehow disingenuous when he spoke on this matter in your Lordships’ House previously. The £23,250 asset threshold, discussed frequently during the passage of the Care Act, has been the subject of not one but two public consultations. First, it was discussed in the consultation on funding reform in July 2013; secondly, it featured in the draft regulations and statutory guidance published for consultation this summer.

These consultations have involved officials from the Department of Health proactively engaging with people, and travelling the length and breadth of the country to consult the full range of stakeholders, including service users, local authorities, members of the general public and the Care and Support Alliance. The policy has been developed in close consultation with an expert body, called the Paying for Care Transformation Group, whose membership includes a range of charities and third-sector organisations, including Age UK, Carers UK, the Care and Support Alliance, and Sense. Through this group we have ensured that the development of the universal payment scheme has been guided by the expertise and insight of those key organisations. It is hardly fair to say that we did not take a full range of views into account, or that the asset threshold is in any way a surprise.

On a point made by the noble Lord, Lord Hunt, about whether the pension pot should be included, that is covered in the statutory guidance on charging, but I am more than happy to write to him and place a letter in the Library.

The introduction of the universal deferred payment scheme will extend protection to those most at risk of having to face selling their home to pay for their care and support. The scheme will help provide reassurance and peace of mind to thousands of care recipients and their families who would otherwise be faced with making extremely challenging decisions at a most vulnerable time in their lives.

I hope that I have been able to provide assurance about the great benefits of the deferred payment scheme and how it will work from April next year. I hope that I have also convinced your Lordships’ House that these regulations should be allowed to come into force without further delay or hindrance.

Health: Care Homes

Debate between Baroness Jolly and Lord Hunt of Kings Heath

Tuesday 11th March 2014 Lords Chamber

[Baroness Jolly]

Certainly. I cannot give chapter and verse on the particular instances the noble Baroness outlines but we are more than aware that proper care in care homes actually helps to drive down inappropriate hospital admissions. Out-of-hospital care can also be applied. That is an enhanced service under the new GP contract.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I refer noble Lords to my health interests. There appear to be two different issues from the work by Care England. First, some GPs are charging nursing homes for work that ought to be provided free at the point of use. Secondly, other GPs are calling services “enhanced services” when they are no more than the normal services that should be provided free of charge. Will the noble Baroness say a little more about what action should be taken? As this appears to be fraud, as my noble friend has stated, should this not be a matter for referral to the police?

[Baroness Jolly]

In the first instance, rather than referring it to the police, NHS England needs to find out exactly the extent of what is going on. The whole business of enhanced services is slightly confused because under the new GP contract there are several enhanced services that would be appropriate within a care home which should not be paid for. Also, “enhanced services” is used as a generic term to imply some sort of value added. Maybe we need to think about how we use language to better differentiate.

Mental Health: Spending

Debate between Baroness Jolly and Lord Hunt of Kings Heath

Monday 27th January 2014 Lords Chamber

[Lord Hunt of Kings Heath (Lab)]

My Lords, I beg leave to ask the Question standing in my name on the Order Paper, and refer noble Lords to my entry in the register of interests.

[Baroness Jolly (LD)]

We stopped commissioning the national surveys of investment in mental health services in 2012 to reduce bureaucracy in NHS organisations and local authorities. NHS England will publish data on mental health spending in 2012-13 this year. We are currently working with NHS England, NHS stakeholders and partner organisations to review how mental health data are collected and presented to make them more useful and meaningful for commissioners, including in how to identify priority areas such as IAPT and dementia specifically.

[Lord Hunt of Kings Heath]

My Lords, first, I welcome the noble Baroness to her first Oral Question on health. Is it not a fact, however, that the annual survey showed that, far from parity of esteem, the proportion of money going to mental health services has reduced in the past two financial years? Is that not why the survey has been discontinued? Will she give orders to NHS England to start producing the survey again to ensure that there is, in fact, parity of esteem for mental health services?

[Baroness Jolly]

The noble Lord is absolutely right: parity of esteem is critical. The Government are very intent on holding NHS England completely to account on parity, which is woven into the NHS outcomes framework and the mandate. As I said in my Answer, the Department of Health is working very carefully and closely with NHS England to determine what the most appropriate data are to ensure that patient care is maximised.

Health: Birth Defects

Debate between Baroness Jolly and Lord Hunt of Kings Heath

Wednesday 6th November 2013 Lords Chamber

[Baroness Jolly]

My Lords, I am telling noble Lords what I have been briefed. I am more than happy to write to noble Lords and, if they are happy for me to do so, leave the letter in the Library for everyone to check. I will also need to respond to the noble Lord, Lord Rooker, on his question regarding terminations.

The noble Countess, Lady Mar, asked about the risks and benefits, and assessing impacts, of fortification, giving due consideration to the implications of additional recommendations by SACN. We will take into account the views of the Chief Medical Officer, who raised the issue in her annual report, and of the devolved Administrations. The other point raised by the noble Countess was on ensuring that NTDs are avoided in pregnancy and on preventing vitamin B12 masking. We need to get this right. SACN considered the amount of folic acid to recommend and also recommended developing guidance on supplement use for particular population groups, along with implementing measures to monitor evidence of long-term exposure to intakes of folic acid. We are carefully weighing the benefits and risks of SACN’s recommendations and will take account of all views.

The noble Baroness, Lady Grey-Thompson, asked what foods would be considered for fortification. Currently, breakfast cereals are voluntarily fortified with folic acid in the UK. The FSA considered other foods, including soft drinks, fruit juice, milk and chewing gum, when it made that recommendation, but the consumption rate of these products is not considered to be universal across women of child-bearing age and would therefore not be suitable for fortification. Other foods were also considered. Bread was finally decided upon as the universal food as—to answer a point raised by both noble Baronesses—it is universally consumed across the population and all socioeconomic groups: more than 90% of households eat bread. Fortification of wheat flour would also include other wheat-based products such as pizzas, pastries and biscuits.

I think I have replied to several points that were raised.

[Lord Hunt of Kings Heath]

My Lords, will the Minister write to noble Lords—clearly the Government will have to consider this—and set out a timetable on when they will come back to Parliament with an answer?

[Baroness Jolly]

That sounds eminently sensible. I am happy to write to noble Lords to give them that information. I hope that I have provided reassurance—I am not convinced that I have—that the Government are committed to reaching the right decision on the fortification of flour with folic acid, doing proper justice to the work of SACN and others and ensuring that, while seeking to deliver the benefits, we minimise the potential risks. In the mean time the Government will continue to raise awareness of the need to take folic acid supplements and are supportive of all those who are raising awareness of this issue. I thank the noble Lord for securing the debate.

National Health Service (Clinical Commissioning Groups—Disapplication of Responsibility) Regulations 2012

Debate between Baroness Jolly and Lord Hunt of Kings Heath

Tuesday 29th January 2013 Grand Committee

[Baroness Jolly]

My Lords, I shall be brief. The main purpose of this secondary legislation is to transfer responsibilities for patient care and commissioning from the PCTs and SHAs of the old world on to the CCGs and the National Commissioning Board of the new. It seems complicated, but it is relatively straightforward. I note as well that some individuals are actually covered by the board, and I welcome developments such as the board’s responsibility to fund fertility treatment for members of the Armed Forces. I shall be asking the Minister for assurance and clarification in a few areas.

I note that care needs to be taken at the borders of Wales and Scotland as far as residence is concerned so that the appropriate arrangements are made with the NHS bodies in Wales, Scotland and Northern Ireland.

I note that my noble friend said that the commissioning groups would be responsible for commissioning ambulance services and accident and emergency services. If there is a major disaster in a CCG area, how is that covered? It would certainly be a big, unexpected hit on a CCG’s budget so I would assume that the board might pick that up. I would welcome clarification on this.

I note, too, that the board has responsibility for those in immigration removal centres, secure training centres and young offender institutions. My noble friend also indicated that some services might actually be commissioned by the Home Office. Can she give the Committee some assurance that in all these areas the mandate will be adhered to and reported, that health inequalities will be addressed and that governance will be transparent, so that reporting would be available on an annual basis as to what is commissioned in each of these establishments, and the outcomes?

In Committee on the Health and Social Care Bill, and elsewhere, we were all very concerned to ensure that everybody was going to be covered by CCGs. There was a lot of debate about people who are at the margins: Gypsies and Travellers; those who are homeless; people with chaotic lifestyles, substance dependence, mental health issues, and so on. I am sure that these groups are now swept up into these regulations.

I welcome the clarification on temporary patients. In Cornwall, our population rises by several hundred thousand during the summer and it is welcome news that it is really clear how that is going to be commissioned.

In conclusion, clearly much work has been done in this piece of secondary legislation to ensure that everybody is covered. The way that it is laid out is very complex. I would be grateful if my noble friend could explain who is the arbiter in future should either a category of person or a certain individual not fall into any of the areas covered in this secondary legislation. Who should decide who should commission these services?

[Lord Hunt of Kings Heath]

My Lords, I, too, thank the noble Baroness for her explanation of the two statutory instruments that are covered in the Explanatory Memorandum that we have received. I particularly noted her reassurance in relation to temporary arrangements, which is very helpful, as I do not think the instrument itself is particularly easy to follow.

As far as the affirmative instrument is concerned, perhaps I could ask the noble Baroness about the situation with regard to patients from Northern Ireland. Indeed, some of my remarks would apply to patients from Scotland and Wales as well. Regulation 2(2)(a) refers to,

“a person usually resident in Northern Ireland who is provided with primary medical services by a member of the CCG”,

and says that for such a person,

“a CCG does not have responsibility in relation to its duty to commission services”.

But what if the person who comes from Northern Ireland, Scotland or Wales needs services that a GP cannot give—for example, in a hospital—and this is regarded as secondary care? Who has responsibility for commissioning secondary care services in such circumstances?

I would like to ask the Minister about abortion services, because I have asked a number of questions recently about the eligibility for abortion services in England of people normally resident in Northern Ireland. On 8 January, I received a response from the noble Earl, Lord Howe, which referred to the fact that the Secretary of State,

“has a duty under Section 3 of the National Health Service Act 2006 to provide a variety of secondary care services to such extent as he considers necessary to meet all reasonable requirements. This duty is delegated to primary care trusts … in Regulation 3(2) of, and Part 2 of Schedule 1 to, the National Health Service (Functions of strategic health authorities and primary care trusts and administration arrangements) (England) Regulations 2002”.

The noble Earl went on to say:

“Regulation 3(7) of the regulations sets out who a PCT is responsible for exercising functions (including the Section 3 duty) in respect of. Under Regulation 3(7), there are two sets of limited circumstances in which PCTs would be able to exercise their delegated functions to provide abortion services to women resident in Northern Ireland. The first is set out in Regulation 3(7)(a)(iii), which provides that a PCT shall exercise its delegated functions in so far as those functions consist of the provision (or securing the provision) of certain services to ‘qualifying patients’ resident in Scotland, Wales or Northern Ireland who are present in its area and do not fall under the responsibility of another PCT. This essentially covers persons resident in the above countries with serious mental illness who are present in a PCT’s area. The second is set out in Regulation 3(7)(b)(i), which provides that a PCT must exercise its delegated functions in so far as those functions consist of the provision (or securing the provision) of accident and emergency services for the benefit of all persons resident in its area”.

He then said:

“A PCT’s functions under Regulation 3(7)(a)(iii) will clearly be exercisable only in respect of the limited number of women who fall within that provision. A PCT’s functions under Regulation 3(7)(b)(i) will be exercisable in respect of any person present in the PCT’s area”.

He then went on to say, I think rather controversially:

“There is no absolute right for a patient to receive particular treatment under the NHS. A PCT has delegated powers to provide abortion services to a woman who is ordinarily resident in Northern Ireland but present in the PCT’s area in so far as that provision falls within Regulation 3(7)(a)(iii) or (b)(i) and is considered by the PCT to be necessary to meet all reasonable requirements”.—[Official Report, 8/1/13; cols. WA 1-2.]

I am well aware that of course the noble Earl was referring to the current legislation and that the 2012 Act made amendments to the 2006 Act, including changing the words around “reasonable requirements”. However, I hope the noble Baroness will be able to reassure me that women coming to England from Northern Ireland for an abortion service will continue to be able to be eligible to receive that service. I would be very grateful for any reassurance she can give me on that.

I now want to come on to the standing rules. The noble Baroness said we were not debating these this afternoon but I must confess to being a little surprised, because the two had been put together in one Explanatory Memorandum and the noble Baroness has referred to them, so I had assumed we would be able to discuss them. I will ask four questions and see how we go.

First, there is the issue of consultation. Paragraph 18 of the standing rules says that the board “must consult” persons specified, including Healthwatch England. The noble Baroness will probably know what is coming. She will know that, in a week or so, we are debating the NHS bodies and local authorities partnership arrangements. This relates to the issue of whether local Healthwatch organisations can campaign. There has been some controversy. Healthwatch England has not made any public comment on the regulations. Did it respond to them? If so, why did it not publish its response? The noble Baroness responded for the Government and said that there was a great deal of debate. She assured us that Healthwatch England, despite coming under the CQC, would be independent. So far, we have seen very little sign of that independence. Will the Minister reassure me that when the board consults the CQC, CCGs, Healthwatch England, Monitor, the Secretary of State and such other persons as the board considers it appropriate to consult, those submissions will be published?

My second question relates to the issue of commissioning and relevant bodies in paragraph 34. This concerns the duty of any relevant body in respect of the funding of the commissioning of drugs and other treatments. The noble Baroness will know that this can often be a controversial area. She will also know that there is continuing concern about the local accountability—or lack of it—of clinical commissioning groups. They can, in accordance with the Act, make judgments about whether a treatment will be available to local people. Will the Minister consider amending the rules to make sure that when a member of the public wishes to appeal against a decision of the commissioning body, a panel must be convened to hear the appeal? I noted from paragraph 23(3) of the standing rules, which relates to decisions about continuing healthcare that are equally controversial, that panels must be established to hear appeals by people who do not agree with the decision reached about their eligibility. Why is it not considered necessary that a similar arrangement should be put in place when it comes to commissioning decisions either by the CCG or by the NHS Commissioning Board?

CCGs are about to start work formally. In Birmingham, I have been very impressed with the leadership of the two CCGs with which I am in contact. However, nationally I do not think that the public have heard very much about them. I do not get any sense that clinical commissioning groups feel that they are accountable to the local population when it comes to making commissioning decisions. If a CCG turns down a request for a certain drug or treatment to be given to a patient, surely there ought to be a way in which that member of the public can challenge the decision.

My fourth question relates to paragraph 39, which covers the important issue of patient choice. Can the Minister say anything about how that choice is to be exercised? In particular, what information needs to be given to any member of the public to make a choice, and who will be available to offer advice to that patient? It is all very well talking about patient choice, but we all know that that is very difficult to exercise unless there is a mechanism by which a member of the public can obtain help and advice in exercising it.

My final question relates to Schedule 5, which I am sure all noble Lords have studied with great care. It relates to the panels that must be established to review decisions about continuing healthcare. Schedule 5(1) disqualifies a number of persons from being a chair, CCG member or social services authority member of a review panel, including a Member of Parliament, a Member of the European Parliament and a member of the London Assembly. Can the noble Baroness tell me why that is so? Why is it deemed okay for Members of the House of Lords to serve on such a panel while Members of Parliament may not? I would be grateful for a response to that.

Care Quality Commission (Registration and Membership) (Amendment) Regulations 2012

Debate between Baroness Jolly and Lord Hunt of Kings Heath

Monday 25th June 2012 Grand Committee

[Baroness Jolly]

My Lords, we all want the CQC to be effective and efficient. The noble Lord, Lord Hunt of Kings Heath, has laid out a clear description of its history and where it is now. It has a difficult task: it has to balance registration complexity for those providing both health and social care and ensure safety and quality of services. Of course, since the Act of 2012, all providers in the public, private and voluntary sectors are involved and it has to extend its remit to include dentists and GPs. It has a huge task. There have clearly been failings in the past, but the organisation as a whole has faced up to them and has made many strides forward.

We have this SI as a result of the Health and Social Care Act 2012. It is in two parts—registration, and governance and membership—and it throws up more questions than answers. I was reminded of a long time ago when I was a CHI reviewer. The training was superb; the teams went in and the inspection was intensive and penetrated every corner. Perhaps there would be some mileage in looking back at that model to see whether it could be incorporated into what currently exists.

[Lord Hunt of Kings Heath]

I was interested in the noble Baroness’s comments about the CHI training process. Does she agree that one of the great advantages of the CHI approach was that, when a team went in, it had respect because the people in the team were the equals, if you like, of the people whom they were inspecting and, although it was an inspection and allowed people to work with an inspection team, it was almost a development opportunity for the organisation as well?

[Baroness Jolly]

Certainly that was my experience. Although there were instances where we had uncomfortable inspections, afterwards an awful lot of work was put in to try to remedy issues that had been raised. The team went in as a team and worked as a team. Everyone on the team had experience of working within the NHS in one format or another and, although we may not have carried out identical roles to those that we were inspecting, there was a clear awareness that we knew what we were about. I shall not carry on at great length because of the time.

The amendments to the registration are a tidying-up exercise. All that we are doing is replacing the National Patient Safety Agency with the NHS Commissioning Board Authority, so it is a cut-and-paste job, if you like. Will the Minister confirm that in due course this will subsequently transfer to the board when the board becomes the board and not just the authority? Will the Minister clarify the situations where deaths and other incidents in these situations involving service users—vulnerable people—are reported and say why they might be reported to the board and not to the CQC? If we are to learn anything from this information, it is critical that the board commits to publishing it on a regular basis. It also needs to be part of the board’s regular agenda.

On a related issue, will the Minister update the Committee on deaths of service users and untoward incidents, which cause difficulty for carers and, in the case of untoward incidents, the patients themselves? During the consideration of the 2012 Bill, there was much debate about the duty of candour. Will the Minister give us some sort of update on where things are? I remind him of his comment on 27 February:

“I reiterate the commitment that I have given today that the Government intend to use the ‘standing rules’ regulations to specify that the contractual duty of candour must be included in the NHS standard contract”.—[Official Report, 27/2/12; col. 1055.]

That was a welcome move but I would appreciate it if the Minister could update us on where we are. I appreciate that this will not happen overnight; it will require training and a large amount of cultural change.

I move on to the governance and board membership issue. Today we had the interesting interim report on the Winterbourne View Hospital. Bearing that in mind, will the Minister reflect on whether he believes that the new governance arrangements proposed in these regulations will minimise or even avoid a repetition of this level of behaviour or such an appalling lack of dignity for those with learning disabilities? Does he believe that adequate funding is available for the CQC? Again, the noble Lord, Lord Hunt, gave us a long list with numbers relating to its remit—it is really broad and deep. The Committee would probably feel comfortable if it felt that the CQC was being ably supported with adequate resources. It has had a difficult role in changing times and it can use its registration requirements to drive up quality. To that end, the Government must work with it. I think that we would all agree that service users and carers deserve no less.

Health and Social Care Bill

Debate between Baroness Jolly and Lord Hunt of Kings Heath

Wednesday 30th November 2011 Lords Chamber

[Baroness Jolly]

My Lords, I have supported the idea of coterminosity from when I first saw the Bill in January. It struck me as being straightforward and sensible that if health and social care were put together, the health boundaries would be aligned with the social care boundaries. That clearly happened in the middle of the last decade, when PCTs were grouped together to be coterminous with social care boundaries. There are all sorts of issues. If you have a large clinical commissioning group, then there is a capacity issue in that you have one clinical commissioning group that might need to work with several local authorities’ health and well-being boards, directors of public health, healthwatches or whatever. If you have a small group, then you have many CCGs working with all those bodies. It struck me that if there were a direct fit, everything would look quite neat and hunky-dory. I parked the thought in my mind that everything was fine.

Then I started to look at what was happening around me locally in the south-west. Torbay has been mentioned many times in your Lordships’ House. It provided a care trust—health and social care together. One of the areas they are really anxious about is that if they become part of Devon, an awful lot might get lost. So there are special circumstances around that integration. They know that they are small and they are trying to look at making themselves bigger by working with other parts of Devon, all of which take their acute services from one DGH. The same sort of thing is happening in Plymouth. Noble Lords will remember from the Bill about constituency boundaries in January that there was a huge big deal about Cornwall being all on its own. Cornish patients, believe it or not, actually do cross the Tamar in order to go to hospital in Plymouth. A fifth of Cornish hospital patients actually do that, so a whole group of Cornish GPs who face that way, along with some in south-west Devon who face that way, along with Plymouth, have discussed the possibility of working together as a group, simply because they all face one DGH. It was a common bond, if you like.

Therefore, we have a county or a district or a borough seen as one possible common bond. We have an idea that commissioning groups who commission from a particular hospital, trying to work together in a pathfinder mode, is not peculiar to the south-west; a lot people seem to think it would be a good idea. There are lots of issues, so how do we solve this? I still think that, for an awful lot of situations, co-terminosity is the right answer. The test really has to be: what actually can be deemed to be in the interest of the patient? The whole thing has to be taken in the round; it has to include care providers and health providers and there has to be an element of size capacity. My head—and my heart—say coterminosity, but then I look at certain other areas where there are groups that have—

[Lord Hunt of Kings Heath]

Would the noble Baroness give way? She has raised an interesting point. Could I describe the situation in Birmingham? My understanding is that although there will be more than one clinical commissioning group, there will clearly be one HWB group and the membership has now reached 25. There is one place for providers on it. One gets the feeling that there is a risk that it will become a talking shop. Secondly—and I declare my interest as chair of an NHS foundation trust in Birmingham—if you exclude the providers from those key discussions, you will not get a buy-in. Think of patient discharge and the relationship between reducing length of stay, preventing admissions and the support that social services needs to give packages of care. One worries that you reach a situation where the whole thing is so unwieldy that it will not really work.

--- Later in debate ---

[Baroness Jolly]

I have lost my thread. We are talking about Birmingham, which is humongous, and presumably any large city would have exactly the same sort of issues. Is the noble Lord arguing for coterminous clinical commissioning groups?

[Lord Hunt of Kings Heath]

My point is that my amendment was a probing amendment to get some information from the Government about their intent regarding boundaries. Clearly, one of the problems that we are discussing is size and the larger you make clinical commissioning groups, the less influence GPs will have on their deliberations. The whole point about clinical commissioning groups was to put GPs in the driving seat. I do not know if Ministers know how much pressure within the system is being put upon potential clinical commissioning groups, but they are being told that they have to get large. The numbers who put themselves forward at the beginning were basically told that there was no way that they would get approval, so they have been forced into big marriages.

I simply point out that even if you take Birmingham, where there will be very big clinical commissioning groups, you will still end up with an unwieldy health and well-being board. One has to think through the implications of this if you are then trying to get a cohesive strategy on public health and on joint commissioning that pulls all of the players together—while still excluding the providers from those discussions. We started from an original prospectus that was going to give GPs real control over commissioning. That is gone. I agree with the noble Lord, Lord Mawhinney. I do not think that there is now any chance in the system that is being forced upon the service, that individual GPs will have any influence. As with the noble Lord, Lord Mawhinney, it is clear that GPs are realising this now, and that the prospectus is a false one.

[Baroness Jolly]

I think that the noble Lord’s point is well made. The noble Baroness, Lady Finlay, however, talked about the element of size and back office, which needs to be quite large. Small CCGs will need to share a back office, simply because that is the way it is. There will need to be shared commissioning arrangements. I think that the noble Earl, Lord Warner, was saying much the same thing: these things will not work if they are tiny but might if they are larger. I remember primary care groups, which became primary care trusts, which became bigger primary care trusts. What is a reasonable size to make all those linkages work? What we do not want is for all of these organisations to spend their days going to meetings. If we are not careful and clinical commissioning groups go over local authority boundaries then they will have to serve more than one health and well-being board.

The ideal would be to have some co-terminosity but clearly it will not work in really enormous situations. My background and experience is in rural areas, where it strikes me as the most obvious way forward. Even if that is not how it starts, that is how it probably should end up. As for the Torbay example, the PCTs are very small. However, they are also perfectly formed and have done a really good job. They are desperate to keep what they did, and did well, but they are being pressured to join a Devon PCT—which also has pressure on Plymouth, which is also part of the Devon PCT. So it is not a straightforward picture. When clinical commissioning groups put their case to the board, there needs to be some sort of nuancing in application.

Health and Social Care Bill

Debate between Baroness Jolly and Lord Hunt of Kings Heath

Monday 14th November 2011 Lords Chamber

[Baroness Jolly]

Apparently there was a Persian poet who got there even before him, but whether Donald Rumsfeld was a reader of Persian poetry, I know not. The point is that you do not know what you do not know. Both those voices would bring to the board serious added value.

I have another four or five amendments in this group which relate not to the composition of the board but to its work. Every year, the board is tasked with producing a three-year business plan on how it is going to discharge its functions. We have a Secretary of State who produces a mandate for the board. We are all in total agreement that the board has huge powers to shape the NHS. New Section 13S of the 1996 Act indicates that there should be an ability to revise the plan. It talks about a “revised plan” but says nothing about the process of revision. The Bill is silent also on the operational plans of the board. I am slightly curious as to which comes first—the mandate or the plan.

How might a conversation with patients and other stakeholders be managed to revise the draft plan? Clearly, we have to start with a draft and then it will be revised. To what extent does the Minister envisage the plan being amended? Might the details on board membership and business plan consultation be included in guidance to the board? One half of my amendments is about board composition; the others are about business planning. It will be interesting to hear the Minister’s response to the latter because it will give us some indication of the way that the board plans to work or it is planned that it should work.

[Lord Hunt of Kings Heath]

My Lords, I have a series of amendments in this group concerning membership of the national Commissioning Board and its cost. There is common consent that getting the board’s membership right is important.

My Amendment 52A would ensure that the chair could be appointed only with the consent of the Health Select Committee. I fully acknowledge that Professor Grant, the chair of the NCB, went before the Health Select Committee; I have already referred to the transcript. It is clear that the process ensured proper and effective scrutiny. However, I should just like to put the matter beyond doubt and make sure that the procedure will always be followed in future, and I hope that the Minister will agree to my amendment. I should say that I followed the legislation which established the Office for Budget Responsibility, so we have a precedent for ensuring that a Select Committee of the other place has an important role to play in such appointments in the future.

My Amendment 52B is simply a matter of good governance to ensure that a lay vice-chair is appointed, which I am sure I am right to assume is the Government’s intention.

On the composition of the board, my Amendments 54 and 56 are intended partly to probe and partly to make a point. It would be helpful if the Minister could give some indication of the likely make-up of the board, both executive and non-executive, and perhaps some details about how non-executives are to be appointed. My specific point is to encourage the Minister to ensure that, on the executive side, a medical director, a nursing director and a finance director are always appointed. To be frank, my main focus is in relation to a nursing director. I have no doubt that there will always be a finance director and a medical director; I want to ensure, and I want the Minister to give an absolute assurance, that there will always be a nursing director on the national Commissioning Board. I go back to 1991, when NHS trusts were first appointed. Some noble Lords here will recall that some rather foolish chairs of those trusts did not want to appoint a nurse to their board. They were forced to do so, I am glad to say, through the intervention of a Secretary of State at the time. I have no doubt that it is the intention of the Government to ensure that there is a director of nursing on the board, but I should like to make sure that it always happens.

I understand that getting a range of expertise on the non-executive side will always be difficult. As the noble Baroness, Lady Jolly, said, the risk is that Parliament will always seek to legislate for a list of backgrounds, which we know is not a practical way to ensure that a fairly small board is appointed. My amendments seek to ensure that there are at least some non-executives on the NCB who have some experience of the National Health Service. While the temptation will always be to appoint people from other sectors because of the experience that they can bring, there is something unique about the National Health Service. I think that non-executives find it helpful if, among their number, they have people who know the business and help them to challenge the executives. One of the risks of the fashion—my own Government were as guilty of it as any other—of thinking that what the health service most needs is outside business expertise is that, when it comes to issues of safety and quality, you do not have anyone on the non-executive side who can effectively challenge the executives. I urge the Government to ensure that there are non-executives on the board who have real experience of the National Health Service and how it works in order to enable a proper challenge to be put to the executive directors.

Amendments 52D and 54A are probing amendments, designed to tease out the place of public health on the national Commissioning Board. I support the comments already made by noble Lords. On my proposal that the Chief Medical Officer be a member of the board, the Minister may say that he thinks it more appropriate for the Government’s chief medical adviser to be seen purely as part of the department than to be on the national Commissioning Board. I sympathise with that point. I suspect that the answer to the question of the noble Baroness, Lady Jolly, in relation to HealthWatch is that there is always a problem if people are appointed because of their other positions. The problem is that they then have to take responsibility for the corporate decision-making of the NCB. I can therefore assure the Minister that my amendment to place the CMO on the NCB is probing, designed to enable us to hear how the public health function will be given sufficient prominence within the national Commissioning Board.

My Amendment 55 would remove the requirement for the appointment of the chief executive to be approved by the Secretary of State. I have no problem with paragraph 3(4) of Schedule 1, which provides for the first chief executive to be appointed by the Secretary of State. This is normal practice and is entirely sensible in view of the need to get the national Commissioning Board up and running. However, my question is why the Secretary of State needs those powers in relation to subsequent appointments. After all, the Minister has waxed lyrical about the need for there to be distance and for the Secretary of State no longer to intervene, so why on earth does he have to approve the appointment of a chief executive? Surely that is for the board to do. Surely it is for the Secretary of State to nominate the chairman of the board to go through the necessary parliamentary scrutiny. For the Secretary of State to actually have to approve the appointment of the chief executive is ambiguous. The department has not sorted out the real relationship between the Secretary of State and the national Commissioning Board. On the one hand, there is the desire to give the NCB as much freedom as possible; on the other hand, one knows that in these clauses there is a desire to control it. I should have thought that the fact that the Secretary of State has a veto over the chief executive appointment is an example of that. I hope that we can see that go between now and the conclusion of our proceedings on the Bill.

Health and Social Care Bill

Debate between Baroness Jolly and Lord Hunt of Kings Heath

Monday 14th November 2011 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, I also have an amendment in this group. I say to the noble Lord, Lord Patel, that he anticipated the remarks of his noble friend Lord Walton remarkably well.

Having argued against bureaucracy in the previous group of amendments, I am now about to argue in favour of putting senates on a statutory basis. I shall explain why. First, this was a very good outcome of the listening exercise. I think that because I am concerned at the Government’s decision to abolish the strategic health authorities. It is what I call the Hagley Road issue. In 1948, the Birmingham Regional Hospital Board was established; its offices were in Hagley Road and throughout 60 years there has always been something there. It may have been a regional health authority, a regional hospital board, a strategic health authority—call it what you will—but there has always been a regional outpost of the department acting essentially as a leader, with a positive role in looking at the region as a whole, ensuring that its services were cohesive and had proper direction and that, by and large, it was self-sufficient. That is to be removed and we are going to get large SHA clusters which will cover a much larger part of the country. Although we do not know the size of the clinical commissioning groups, they will clearly cover much smaller population areas.

I believe that there is still a need for a mechanism whereby strategic leadership can be given over a region, and I see the clinical senates as being the best approach to that. Noble Lords have spent at least two days debating reconfiguration and are concerned that these difficult decisions often have intervention from the centre. Clinical commissioning groups will be too small to take on the kind of strategic leadership that is required. When you are trying to establish in a region where the super specialty and tertiary services should be and trying to come to a view about how many A&E and emergency departments you need, you require a body that can take a strategic overview. The clinical commissioning groups are too small to do that. They could, of course, possibly come together in a kind of federated meeting to try to resolve those kinds of issues, but that could prove to be very difficult. Therefore, the senates could have an important role in setting some of the parameters and giving strategic leadership to a region.

However, as the Government intend them at the moment, these will be informal groups of people who could easily be ignored by the clinical commissioning groups, by the health and well-being boards, by the deaneries and by all the organisations that have an influence on the way in which the health service is going. My amendment is designed to set out a more structured approach to ensure that clinical senates are created as bodies corporate, that they are properly accountable to the national Commissioning Board and that they have the ability to give strategic leadership and have some oversight of the work of clinical commissioning groups.

I suspect that my amendment will not find favour with the noble Earl but the point about the need for strategic leadership in a region is important. I fear that the super SHA clusters will be too large to do that and the clinical commissioning groups will be too small.

[Baroness Jolly]

My Lords, I would like to speak to Amendments 51 and 84, but before I do, I have an interest to declare. I am chair of the Specialised Healthcare Alliance, an organisation campaigning for those with rare and complex conditions. The move to commissioned services for this particular group of patients by the NHS board is really welcome. It is the first time that there will be a common standard across England under the auspices of the board. However, we are not totally clear about the composition of the senates or their roles. I am not sure that the amendment of the noble Lord, Lord Walton—who is not in his place at the moment—actually gets to the meat of this. There is concern that specialised services within senates might get lost. If a specialised senate with expertise and integration were set up, that might be useful to this group of patients, but more often than not networks are where the specialised services go to for the expertise. We welcome the commitment to ensure that networks stay as they are and possibly expand. Maybe a network could set up a task and finish group to look at the problems around specific conditions. I would be grateful if the Minister would make the role of the senates clear. Would they have a role in specialised commissioning? Similarly, I would be grateful if he would shed some light on the ways in which the board will commission specialised services in general.