Care Bill [HL]

Baroness Meacher Excerpts

Tuesday 9th July 2013 Lords Chamber

[Baroness Wilkins]

My Lords, I will speak to Amendment 88A. This amendment relates to Clause 9, which requires a local authority to carry out an assessment where an adult may have needs for care and support. The clause sets out things that the local authority must consider, for example the outcomes the person wants to achieve in their day-to-day life. There are similar provisions in Clause 10 in relation to a carer’s need for support. There is, however, an anomaly between Clauses 9 and 10. Under Clause 10(6), the local authority also has to take account of whether the carer works or wants to work, and whether the carer is taking part—or wants to take part—in education, training or recreation. That provision is missing from Clause 9, while in other respects the two clauses closely mirror one another. Surely the same provision as Clause 10 proposes in relation to carers should apply to people in need of care and support? While many of those with a need for care and support may be elderly, or may not be able to—or want to—work, others will want to. Many will be interested in education, training or recreation. This is an important gap that sends an unfortunate message about the ability or desire to work of those with needs for care and support.

Of course, it may be that the Government will argue that this is covered by Clause 1(2)(d), which includes in the concept of well-being,

“participation in work, education, training or recreation”.

If that were so, however, presumably the separate provision for carers in Clause 10(6) would not be needed.

I understand that overwhelming evidence exists that carers are often forced to withdraw from education or employment. That may well be why the Government felt they should include the emphasis on these things in relation to the assessment of carers’ needs. Possibly there is not as much evidence in relation to disabled people, and, as I have said, many social care users are older people. That does not mean that they will not be interested in education, training, recreation or even work. One in three people who use social care services are disabled people of working age.

In the recent report The Other Care Crisis by five disability organisations, the researchers found that time and again disabled people told them that the right care and support was critical in finding and sustaining work, studying and keeping fit or enjoying the arts. How can you hold down a job if the hours and type of support you are provided with take no account of a course you may be studying or of a job? What if the job starts at 9.30 am but your carers do not come to get you up until 9 am, or they turn up at different times each morning because of short-staffing?

Carers UK and others have rightly worked very hard to show the impact of caring on employment chances. As I say, this may well be the reason why the Government has included Clause 10(6). The Government may simply not have realised, however, how this would come across to users of social care services who wish to work. I hope the Government will want to rectify this anomaly.

[Baroness Meacher]

My Lords, I shall speak to Amendments 88SA, 88SB and 92ZZCZA, all of which are designed to ensure that parents who have care and support needs receive sufficient services to ensure that the caring burden on their child is not such as to impede their education and well-being.

Young carers are, of course, children and young people under 18 who provide regular and ongoing care and emotional support to a family member who is physically or mentally ill, disabled or misuses substances. The 2011 census identified 178,000 young carers in England and Wales; an 83% increase in the number of young carers aged five to seven years old; and a 55% increase in the number of eight and nine year-old children caring. I find these numbers staggering. We are talking about a lot of children of a very young age caring for a very considerable number of hours each week.

Why are the amendments important? Apart from a concern for the well-being of children, the issue is important for taxpayers. Young carers whose parents do not receive the support they need have poor educational and employment outcomes and suffer from negative health, with obvious cost implications for the Treasury. These amendments and the resulting early intervention could alleviate those problems and avoid crises, family breakdown and child protection issues, which, again, are a tragedy not only for the family but for the taxpayer and society.

National Health Service (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013

Baroness Meacher Excerpts

Wednesday 24th April 2013 Lords Chamber

[Baroness Meacher]

I would simply like to ask the noble Lord, Lord Warner, whether he has any interests in private sector provision and, if he does, whether he would like to declare them to this House.

[Lord Warner]

If the noble Baroness was listening, I think I declared my registered interests at the beginning of my utterances. She is very welcome to look at the register, which will show those particular interests, but they do not shape my view. I would like to finish the argument. If noble Lords want to go on interrupting me that is fine, but I would like to finish the arguments which substantially substantiate the case for accepting these regulations.

As I was saying before I was interrupted, these rules are very similar to the rules produced under the previous Labour Government but with the addition of some sensible provisions on integration. Let me remind colleagues that these regulations are totally compatible with the policy of using the independent sector in the NHS set out in the 2005 election manifesto of the Labour Party. Some may recall that Labour won a third election on the trot with that manifesto. I also remember, as a Minister, implementing the NHS parts of that manifesto with a policy of “any willing provider”. Many of the interests opposing these regulations look remarkably familiar to me from those days.

Even in the swashbuckling new Labour days of modest NHS competition, most PCTs’ contracts were rolled forward each year under that regime without any tendering process, competitive or otherwise. My guess would be that there were probably somewhere of the order of 50,000 of those contracts each year. It would have been totally impracticable and unnecessary to put many of those out to competitive tender each year, or even every three years. It will be the same with the 211 clinical commissioning groups. They will not be able to put out to tender on any great scale a large number of contracts, and they will be operating with a smaller number of staff than the PCTs.

The clinical commissioning groups will have to concentrate their change efforts on those services where there is continuing failure or underperformance, or where it is clear that there is a bigger prize of patient benefits from a major overhaul and out-tendering of services. I suggest that it is almost a paranoid fantasy to suggest that David Bennett and Co. at Monitor, with about 40 staff working on competition issues, will be able to act as a kind of Stasi outfit, rounding up clinical commissioning groups which have not recorded enough competitive tendering processes.

I am afraid that I have to disagree fundamentally with many of my colleagues. My sympathies are with the Minister over these regulations. He has done his best, in his customary patient way, to clarify them. In my view, they are perfectly acceptable in their present form and can always be amended in the light of experience. To my colleagues on these Benches, I would say that we ought to remember what was satisfying to the British public when we were winning elections. This approach of injecting, on an agreed basis, some measure of competition and change where NHS public providers are consistently failing is in the best interests of patients.

NHS: Private Companies

Baroness Meacher Excerpts

Monday 11th February 2013 Lords Chamber

[Earl Howe]

My Lords, there are tariffs that are nationally set and others that may be locally set, but there is scope to vary even the national tariffs if there is a good reason to do so on the grounds of local variation in costs. There is some flexibility in the system, but the main basis of the policy, as I stressed earlier, is that, where competition occurs, it should be on the basis of quality and not price.

[Baroness Meacher]

The CQC has an incredibly important job to do, but we know that it is very overstretched. What systems do the Government have in place to ensure that the CQC’s scope is adequate to monitor all private and NHS facilities and ensure that they are providing a sufficiently good service?

[Earl Howe]

I am aware that the board of the CQC is looking at that very question at the moment in the light of the Mid Staffordshire review. The noble Baroness is absolutely right. I think the essence of the answer to her question is that a risk-based approach must be adopted so that areas that are deserving of more attention from the CQC receive it and areas that are of lesser concern are allowed to act accordingly without interference.

Health: Mental Health

Baroness Meacher Excerpts

Wednesday 21st November 2012 Lords Chamber

[Earl Howe]

My Lords, the way in which mental health services are commissioned locally is of paramount importance. One of the features of the reforms is to bring together local authorities and the health service to plan services in a much more integrated way. Clinical commissioning groups will ignore the imperative of mental health at their peril, because they will be charged—under the commissioning outcomes framework, which the board will set—to deliver meaningful progress on all the indicators, including mental health indicators. It is an absolute necessity that good commissioning takes place at a local level.

[Baroness Meacher]

My Lords, the Minister is well aware that only a third of people whose lives are being ravaged by depression and anxiety are receiving treatment. He rightly pointed out that the commissioning board has a responsibility here, but I understand that it does not regard this as one of its priorities. Will the Minister give a very clear signal to the commissioning board that Ministers regard the equal treatment of mental and physical illnesses as important, and that parity must be achieved?

[Earl Howe]

My Lords, that objective is explicitly spelt out in the mandate. I have already spoken about some of the ways in which we expect the board to demonstrate that they have delivered that objective, and I can give the noble Baroness the reassurance that she seeks.

NHS: Evidence-based Medicine

Baroness Meacher Excerpts

Wednesday 10th October 2012 Lords Chamber

[Earl Howe]

My Lords, I do not think I can add to what I said previously as regards my right honourable friend. No doubt he will take the noble Lord’s comments into consideration. As regards NICE guidance, as the noble Lord will know, there are concerns that in certain parts of the health service NICE guidance is not followed as we would expect it to be. There are various initiatives in train to correct that, both as regards the NICE technical appraisals and also clinical guidelines.

[Baroness Meacher]

My Lords, the noble Earl knows very well that NICE has issued excellent guidance in relation to the increased access to psychological therapies, and these therapies are the best way, according to the evidence, to deal with depression and anxiety. Can the Minister explain to the House what actions he will take to make sure that these evidence-based therapies are available across the country? As the Minister knows, at present they are not.

[Earl Howe]

The noble Baroness will remember that one of the features of the Health and Social Care Act is a duty placed on the NHS Commissioning Board to promote the quality of care. In doing that, it will promulgate commissioning guidance based on advice received from NICE. In the mandate there is another means for the Secretary of State to ensure that instruments such as NICE clinical guidelines get traction within the health service.

NHS: Mental Health Services

Baroness Meacher Excerpts

Monday 8th October 2012 Lords Chamber

[Baroness Meacher]

My Lords, I congratulate the noble Lord, Lord Alderdice, for tabling this important debate; a debate, in my view, of national importance and of particular importance to the Government in their quest to take a million people off employment support allowance, or, in the future, universal credit figures within about 10 years. That is a major objective of this Government. We know that more than 40% of ESA claimants have mental health problems, the vast majority having depression or anxiety. That is nothing new. We also know that NICE recommends improving access to psychological therapies, and CBT most particularly. Not everyone likes the conclusions of NICE, or IAPT, but we have to take seriously the enormous amount of work that NICE does in looking at all the research available on a subject such as this and drawing its conclusions.

I do not share the views of the noble Lord, Lord Alderdice, that the style of therapy does not matter too much and that you can have bits here and there. This is a much more serious matter and people who practice these therapies tell me that these treatments, like other medical or pseudo-medical treatments, are potentially dangerous if they are not done really well. The quality of the therapist is absolutely vital and the methods and the types of therapy that they use. If we want to help people, rather than make them worse, it is no good using the wrong type of therapies, or short-term therapies, with the wrong kinds of people. We have to be very careful. It is essential that these IAPT services are of the best possible quality, which means, of course, using the best possible people. These services need to be available right across the country, so that GPs, wherever they are, can refer people for such help so that they do not lose their jobs—that, surely, has to be the first priority—or, if they have already lost their jobs, so that they can be prepared, as soon as possible, to get back into work and stop claiming benefits.

I shall leave my noble kinsman Lord Layard to talk about the national perspective. I shall talk about what is going on on the ground, as I am familiar with that. One problem is that the tendering process can result in services being provided by two or three different organisations. Far from just giving these services to the NHS, our experience is that they tend to be divided between different organisations. That may be all right but, over the years, health and social services have struggled to ensure that services provided across several organisations hang together and provide a good pathway of care for patients. It is very difficult on the ground; it sounds nice, but it does not work. The second best solution is to ensure that these different organisations work effectively together so that patients have a good pathway.

Competition rules may be being misinterpreted, but commissioners on the ground understand that these different organisations must use different IT systems, even though they are very happy to use the same one. The result is that these organisations do not communicate effectively with each other. That may be due to the limited understanding of commissioners. I do not think that the problem lies with competition, per se; I think it lies within the capacity of commissioners to operate competition in the best interests of patients and, to be perfectly frank, that simply is not happening.

Another issue is the tariff for IAPT services. The “any qualified provider” guidance for commissioners makes it clear that local commissioners should set their own tariffs. We know what happens if they do that. We know that the money supposedly put into IAPT psychological services is not ring-fenced and that local authorities are tempted to siphon it off into other things, and who can blame them? I do not blame them, but it means that we have to be very careful if we want a really good psychological service to deal with the unemployment problems of people with anxiety and depression. We cannot cut corners and a lot of tariffs are being set too low because of a lack of understanding.

The most serious problem, as I understand it, applies to steps 3 and 3 plus services. To treat effectively those with severe anxiety, severe obsessive-compulsive disorders and those with tricky, difficult and often multiple problems we need skilled therapists. That cannot be done by a low-cost therapist. Under AQP rules, a session of high-intensity therapy costs £40 to £50. High-intensity therapists themselves will cost more than that. There are also other costs such as administration, office costs and so on. However, when properly funded, we know from research that these services are highly cost effective; they get people back into work. The big question is why this is happening.

Even if trusts downgraded their intensive therapists from band 7 to band 6, which will inevitably mean losing their very best people—the noble Lord, Lord Alderdice, said, that they should not do that—and even if they made huge and probably unrealistic assumptions about productivity, organisations could not afford these services at steps 3 and 3 plus. My understanding is that steps 1 and 2, although challenging, will be deliverable. The whole benefit of the IAPT programme is that it is a stepped care programme. If someone is identified as needing step 2, and after a bit the therapist realises that that person has much deeper and more extensive problems than they originally presented with, they will need step 3 and if step 3 is not there, the value of step 2 will be lost. Such people will not get better and they will lose their jobs or not get back into work. That is the sort of concern felt at the bottom, where people are trying to deliver these services. I am not saying that they should all be delivered by the NHS. The NHS is having to renegotiate contracts and is having to cut the amount of money to deliver the same service, or something nearly as good. However, with IAPT it is not like that; it will all be tendered out, and change will be much more radical.

The view that I have had from others is that this consequence is more of a cock-up than a conspiracy. People are not trying to destroy this, but these AQP services will go live in November 2012 through to March 2013. The consequences of all these inadequate tariffs and problems on the ground, separating the different bits of the service across organisations, will become apparent during that six-month period and will get worse over time.

Before I finish I want to refer to a rather nice little piece of information, which supports my concerns. I happened to be at the Verulam School in St Albans talking about the House of Lords last Friday. The sixth formers were an impressive group of people. They were so concerned about mental health among young people—that is, themselves—that they undertook a survey of 1,800 young people in the St Albans area, which is not known for its deprivation. They really got at some of the problems and concluded:

“The value of mental health provision and the overwhelming need for it has become clear to us, as has the need for appropriate access and early support”.

They were very concerned about cuts to counselling support services for young people in St Albans. If you go along to east London you will find that things are even tougher, but it was interesting to find that result in a relatively well heeled part of the country.

I appeal to the Minister to do all that he can to rescue this inexpensive and highly cost-effective contribution to the Government’s goal to reduce unemployment. Will he try to ensure that IAPT is removed from the AQP system, if at all possible, even at this late stage? Will he try to secure the continuity of the central policy unit for IAPT? Those two things would transform everything. I have great trust in the Minister and look forward to hearing his comments.

Drugs: Prescribed Drug Addiction

Baroness Meacher Excerpts

Thursday 12th July 2012 Lords Chamber

[Earl Howe]

There are no plans to revert to the former situation as regards heroin, but my noble friend makes the point that alcohol addiction is an extremely important issue. The commissioning of services to treat addiction will in the future architecture of the system be devolved to local areas. The all-party group on benzodiazepines on which the noble Earl sits has done some important work in exposing those areas where services are not as good as they should be.

[Baroness Meacher]

I applaud the Minister’s comment that treatment must be based on need rather than on whether a substance is legal or illegal. Is he aware of the excellent work being done to treat heroin addicts in Switzerland, where a third of people are in employment and two-thirds of people are living legally within 18 months? Will he consider introducing to this country these highly cost-effective approaches?

[Earl Howe]

I am not aware of the work in Switzerland and I would be pleased to read about it. If lessons can be learnt, there is no doubt that we should take account of them.

Health and Social Care Bill

Baroness Meacher Excerpts

Tuesday 13th March 2012 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, we now move on to another group on the regulation of healthcare workers, and social care workers as well. In debate in Committee, I made it clear that I was concerned about the decision of the Government to abolish the General Social Care Council and to transfer responsibility for regulation of social care workers to the Health Professions Council. I am concerned for two reasons. First, I know that the General Social Care Council had rather a bumpy ride to start with and was the subject of a review, which was critical of the way in which it performed. However, it is right to pay tribute to the tremendous work undertaken in the last two years under its current leadership and the chairmanship of Mrs Rosie Varley to improve and enhance the quality of the regulation by the council. It is very disappointing that the Government have decided that, just at the time when the GSCC is starting to prove itself, the whole thing is to be dismantled and the function transferred to the Health Professions Council.

I also do not understand why the Health Professions Council is considered to be the right regulator for social workers. There is a difference between social work and health work. We touched on that in the last debate. I agree with what the noble Earl, Lord Howe, said in response to the noble Baroness when he reflected on the value of social care workers but also on the difference in role. The Health Professions Council regulates a number of bodies, but they all have a health basis in the main. Therefore, it stretches the imagination to see how this body will effectively regulate social care workers in the future. The profession of social work is pretty fragile and having its own regulator is one of the building blocks for boosting the status, confidence and quality of the social work profession.

I oppose the abolition of the GSCC and the transfer of social worker regulation to the HPC in principle. If I am unsuccessful in persuading the Government, even at this stage, to change their mind, I suggest that a number of issues would help to reassure me and many social workers about the way in which the HPC will perform. This is why I have a number of amendments, which seek to ensure that there is an appropriate definition of “social worker”. I think that it would be appropriate, inside the HPC, to establish an office of chief social worker. I also think that the name of the HPC should recognise that it is regulating the social work profession. I have not yet had any rational answer as to why “Social Work”, or something of the sort, should not appear in the title of the HPC. We know that the reason is that the HPC has refused to have it. I think that the department is finding it difficult to tell the HPC that it is subject to parliamentary provision and that it is not enough, simply because it does not want “Social Work” in its title, not to agree to it. I refer the noble Earl, Lord Howe, to the Bill before us. It refers, in these clauses, to a number of orders, including health and social work orders. Therefore, there clearly cannot be an objection in principle to the use of “Social Work” in the title. It is totemic, but it is at least a way of showing the 100,000 individuals in the social work profession to be covered that in fact the HPC is not going to continue with a medical model of regulation.

My final point is this. I invite the noble Earl to state clearly that it is not his department’s intention that the HPC should eventually take over the regulation of nurses and doctors. He will know that a review is being undertaken of the Nursing and Midwifery Council and I gather that there are also proposals to change the governance of the General Medical Council. A number of people in the health service have told me that they think the eventual aim is for the HPC to regulate all the healthcare professions. The noble Earl would provide a great deal of reassurance if he would say that it is not his department’s long-term ambition to turn the HPC into the sole regulator of all the health and social care professions. I for one would be very concerned about that. I beg to move.

[Baroness Meacher]

My Lords, I shall speak to Amendment 241C, which is tabled in my name. I also support the amendments tabled by the noble Lord, Lord Hunt. I was tempted to add my name to them, but I was a bit late yesterday. These amendments concern the implications of abolishing the General Social Care Council and the dilution or indeed the elimination of some of the functions carried out by that body. I thank the Minister for the briefing meeting that he held yesterday. At the tail end of this most unpopular of Bills, and after what I gather have been more than 100 meetings with Peers and others, I want to acknowledge the extraordinary work that the noble Earl has done throughout.

The social work profession is perhaps the most battered profession in this country and, if I may say so, the previous Government did not help in that. A certain Secretary of State for Education in the other place took what I thought was completely unreasonable action following the Baby P incident, which left the social work profession pretty much on its knees. The idea of having a chief social worker in this country who would act as a spokesperson for social work—someone who would promote and defend it—is enormously justified at a time when the profession, as I say, is on its knees. It is very difficult to appoint good people because of the reputation of the profession and because of the actions of that Secretary of State. He happens to be a friend of mine, but I think that he made a terrible error on that occasion.

Amendment 241C seeks to ensure that best interest assessors under the Mental Capacity Act continue to have their training regulated. I realise that the Government’s agenda is to reduce regulation wherever possible and I broadly support that objective, because we have had too much regulation in this country. But there are limits to that process and I believe that this is one issue over which the Government have in fact gone beyond a reasonable limit. Post-qualification training is currently regulated by the General Social Care Council, but under the Bill only the training of approved Mental Health Act practitioners will be regulated by the Health and Care Professions Council. Although the GSCC accepts that it could have done a better job with that regulatory power, to do away with it altogether seems to be the absolute opposite of the right answer.

Why is this important? It is because the issue here is often about the deprivation of liberty of elderly patients with dementia and those with severe learning difficulties. Civilised countries always take extra care in protecting individuals where their liberty is being taken from them. It is somewhat arbitrary that these groups happen to fall into the ambit of the Mental Capacity Act on the one hand and that of the Mental Health Act on the other. I am sure that in time those two pieces of legislation will be brought together, but in the mean time we have to manage the fact that people are being detained either under the Mental Health Act or the Mental Capacity Act and that very similar processes are under way in the two sets of circumstances. Mental Capacity Act clients in residential homes or nursing homes, for example, who do not have the capacity to make their own decisions about their lives, are in essentially the same position as psychiatric patients who are not able to make a rational decision about whether they need to be detained in hospital.

Psychiatric patients are assessed by approved Mental Health Act practitioners to determine whether they warrant that detention. In Mental Capacity Act cases, the professional is assessing whether a particular decision is in the best interests of the patient or resident, assuming that the patient does not have the capacity to make the decision for themselves. In both cases this is likely to involve assessing whether the individual can live safely at home. That is the whole point. People are assessing pretty much the same thing under the two different pieces of legislation. It is true that in some cases approved mental health practitioners have to assess the risk to others, but the issues are honestly very similar. Is there any logic, therefore, in regulating one and not the other? We know that abuse of these adults is commonplace. Relatives may of course be absolute angels in terms of protecting their family members, but they may not be, and the best interest assessor is there to protect vulnerable people when relatives let them down.

The words of Mr Justice Peter Jackson in his ruling in the London Borough of Hillingdon v Steven Neary and Mark Neary and the Equality and Human Rights Commission highlight the importance of the deprivation of liberty safeguards. The deprivation of liberty safeguards were designed to protect the human rights of some of our most vulnerable people. Employers and supervisory bodies have to be sure that the professionals they charge with undertaking this vital role are competent, compassionate and able to approach the situation from both a practice and legislative basis. With the closure of the GSCC, I urge the Minister to put in place a system at least as robust as the current one, and ideally more robust, to ensure that the providers of training for best interest assessors can clearly demonstrate their ability to produce and, importantly, assess potential best interest assessors. That would go a long way towards protecting some of these very vulnerable citizens.

I want to turn briefly to a number of the amendments tabled by the noble Lord, Lord Hunt. The first concerns student registration, which we discussed in detail at the briefing meeting yesterday. I shall not go into all the detail again. However, it has to be said that if it is justified to register social workers, it has to be justified to register social work students. That is because these people are unknown and untried. They go into vulnerable people’s homes on their own and they are probably more of a potential risk to their clients than qualified social workers. There is once again an issue of logic here, which I hope the noble Earl will take seriously.

A further concern is that, as I understand it, the Health and Care Professions Council will not introduce the satisfactorily assessed and supported year in employment as a requirement before someone can be accredited as a fully qualified social worker. This is another important safeguard, as people have to prove themselves over the course of a year’s work. There is no great administrative problem about this. It is simply a requirement so that employers meet certain standards. I would argue that it is not a bureaucratic nonsense; it is an important requirement.

Finally, there is to be no regulation of social care workers. The arguments that were rehearsed in the previous debate probably apply just as much to this one. The case for statutory regulation where vulnerable people and low-paid workers are concerned seems absolutely overwhelming. Again, I hope that the noble Earl might agree also to have a review of this area. At the minimum, is the process of voluntary regulation really working?

I fear that the Government have gone too far in dismantling the protections for vulnerable clients. Of course employers and universities have important responsibilities for their workers and clients, but I hope that even at this late stage the noble Earl might want to maintain some state responsibility for the protection of these most vulnerable clients when their liberty may be taken from them.

Health and Social Care Bill

Baroness Meacher Excerpts

Tuesday 6th March 2012 Lords Chamber

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)]

My Lords, this has been a thoughtful debate. At the outset, it is appropriate for me to pay tribute to the noble Lord, Lord Warner, for his strong advocacy of the need to improve the quality and funding of social care services. The noble Lord played a critical role as part of the Dilnot commission and has made strong speeches both today and in Committee on this subject.

I am in complete agreement that high-quality social care services are crucial for the health and well-being of the population. As the Government and many others have said, major reform in adult social care is long overdue. We recognise the need for lasting reform to respond to the challenges facing social care. The recent engagement exercise, Caring for our Future: Shared Ambitions for Care and Support, conducted from September to December last year, highlighted again the scale of the challenges. We know that the quality of care is variable and can sometimes be poor, as recent high-profile failures have demonstrated. The current social care system does not support people to plan for their future care needs or maintain their well-being and independence. People often have a poor understanding of what social care is and of how to navigate the system and access the services they need.

All this is compounded by the well documented twin issues of an ageing society and financial constraint. This critical context explains why the Government have set the reform of adult social care as one their key priorities, but it also explains why social care reform merits it own focus and cannot be dealt with around the edges of discussions on another important topic. The Government are convinced that the time has come for social care reform. Given that, the question before us is not whether action should be taken to improve the quality of social care services but rather how we go about doing so.

I have given Amendment 163AA a good deal of consideration, and I am afraid that I have to say to the noble Lord, Lord Warner, that I do not feel it is the appropriate mechanism to achieve what he seeks. This is because, as well as reform being needed for social care quality and funding, there is broad consensus that social care law too needs extensive reform. The noble Baroness, Lady Murphy, helpfully mentioned the Law Commission report on law reform, which put forward this argument last year. I wish to quote a short passage of the report, which states that,

“adult social care law has been the subject of countless piecemeal reforms … It is of little surprise that not only does the law perplex service users and social workers, but also the judiciary”.

This is the problem with the noble Lord’s amendment; to accept it would be to perpetuate exactly the same confusing and piecemeal approach against which the Law Commission argues. The legal framework for care and support needs fundamental reform, not further additions to an already opaque statute.

I wish to set out briefly what I see as the appropriate course of action on social care reform. We will publish a White Paper on care and support in spring this year. I repeat that undertaking, particularly to the noble Baroness, Lady Pitkeathley. We will follow this by bringing forward legislation at the earliest opportunity. The White Paper will draw on multiple sources, including the excellent work of the Law Commission and the Commission on Funding of Care and Support, for which I again express my gratitude to the noble Lord, Lord Warner. The White Paper will respond formally to the reports of both those commissions and, of course, to the Health Select Committee report on social care.

The noble Lord has proposed that a duty be placed on the Secretary of State to secure continuous improvement in the quality of social care. The Government’s proposals for embedding and safeguarding quality throughout social care will be a central theme for the White Paper. We sought views on this as part of the engagement; it highlighted that progress on quality has already been made with the publication of Transparency in Outcomes last year, which set out the Government’s approach on quality, transparency and outcomes in social care. Our approach to quality improvement is aimed at responding to poor quality, enabling improvement and rewarding best-quality services to support choice.

The ideal for social care is a sector filled with great people doing great jobs who deliver high-quality care to people using social care services. As I said, we are committed to publishing the White Paper this spring and preparations are on course. The Government are taking the broadest possible approach to achieving consensus on the most crucial long-term issues. Therefore, in that context, I do not believe that the time is right for an amendment of this sort. It would pre-empt the White Paper and could leave stakeholders unclear on the broader picture of social care reform.

Moreover—I see this as the central point—we do not want to make further changes to the existing statute when more lasting legal reform is already planned in the near future. Social care is a vital public service and deserves its own focus in its own statute. Too often, debates on social care have taken place on the margins of those on another issue.

[Baroness Meacher]

My Lords—

[Earl Howe]

I will give way but we are on Report.

[Baroness Meacher]

I apologise for intervening but I wonder whether it might be relevant to change the Title of the Bill to the Health Bill, bearing in mind the noble Earl’s very valid comments that there will be a White Paper and a totally separate Bill. The Bill’s Title is a misnomer.

[Earl Howe]

The noble Baroness may not have been following all our debates as closely as some, given that we have extensively debated integrating health and social care and how the Bill will improve the prospects of that. I therefore do not agree that social care is such a poor relation in the Bill. She is quite right; of course its prime focus is health, but we have not completely neglected the subject that is so close to her heart.

Specific legislation on social care will be the most appropriate vehicle for debating these critical matters and achieving lasting reform. Of course I understand the desire of the noble Lord, Lord Warner, to keep social care at the top of the political agenda. That is greatly to his credit. I can assure him that the Government have not lost sight of this. We share the same aims for a high-quality service, but it would be wrong to legislate now in such a selective way. The noble Lord may suppose that this is just another instance of a Minister following the standard line that says “resist”, but I hope he will accept that that is not so. There are genuine reasons why the amendment is a bad idea, and I hope that he will feel able to withdraw it.

Having said that, I look forward to debating these issues with him further in due course, and to benefiting from the insight that he and others bring to this topic.

--- Later in debate ---

[Lord Marks of Henley-on-Thames]

My Lords, I will speak briefly, in addition to what my noble friend Lady Williams of Crosby said, to the amendments in our names concerning the Secretary of State giving guidance to Monitor: Amendments 163C, 166B, 173A, 173B and 173C.

These are further amendments concerning the role of the Secretary of State and are intended to ensure that the Secretary of State has a practical and effective influence over Monitor’s overall approach to the work it does. The Secretary of State would exercise that influence by issuing statutory guidance to Monitor that will have to be published and laid before Parliament. The guidance in each case could be revised but the revised guidance would also have to be published and laid before Parliament.

The heart of the scheme is Amendment 166B. The duty referred to in that amendment under Clause 61(9) is the duty on Monitor to exercise its functions consistently with the Secretary of State’s duty to promote a comprehensive health service. The amendment allows the Secretary of State to publish guidance to Monitor on the objectives specified in his mandate to the board and to set out guidance on how those objectives are relevant to the separate work carried out by Monitor. Monitor is, of course, required to have regard to such guidance.

Amendments 173A to 173C empower the Secretary of State to give guidance to Monitor in line with any guidance that he has published under new Section 13E of the 2006 Act. That is the so-called outcomes document issued by the Secretary of State to the board in connection with securing continuing improvement in the quality of services and outcomes achieved by the health service. These amendments make it incumbent on Monitor to have regard to that guidance, which must also be published and laid before Parliament. Amendment 163C concerns reporting by Monitor so that in its annual report Monitor would be required to state what it did to comply with the guidance, envisaged by these amendments, given by the Secretary of State in relation to the exercise of its functions.

These are modest but important amendments. They seek to weave into the fabric of the Bill a clear role for the Secretary of State to give strategic guidance to Monitor in line with the Secretary of State’s overarching duties, in particular with the objectives set out by the Secretary of State in his annual mandate to the board, and in line with the outcomes document that he publishes that is designed to ensure the board’s performance of its duty to secure improvement in the quality of services.

These amendments are part of creating a coherent and consistent framework within the new structures established by the Bill, to ensure a single and purposive approach by all the bodies within the NHS, with the Secretary of State remaining in charge of setting the strategic objectives for the service. In those circumstances I suggest that they are very welcome.

[Baroness Meacher]

My Lords, I rise with some trepidation, not having been involved in Committee on this Bill but having been upstairs in Grand Committee on another Bill. I therefore have not done the learning that I know noble Lords around the House have done during that process.

Many noble Lords have referred to the term “competition” without distinguishing between competition within the NHS between public sector organisations and competition between public sector and private sector organisations. It is perhaps relevant for me to quote recent research by Zack Cooper and colleagues at the London School of Economics. It came out in February, since Committee, which is my justification for introducing research at this late stage of the Bill. That research looked at competition between public service NHS organisations on the one hand, starting in 2006, and between the different forms of organisation, the private and the public, on the other hand, starting in 2008.

This considerable research looked at 1.8 million patients, 161 public sector hospitals and 162 private sector hospitals and should be taken seriously. It showed that the result of public sector competition was a reduction in lengths of stay both pre-surgery and post-surgery. Those results were significant. As the Minister knows, I support strongly competition in the public sector. I really believe that human beings thrive on competition. Therefore, if the research showed that public and private sector competition worked, I would support it because I believe in the best possible service for patients.

This research also shows that when you look at the competition between the private and public sector organisations, you will find an increase in the length of stay in the public services, albeit that there perhaps is a marginal improvement financially. If you look at the whole policing and monitoring apparatus that you need in far greater proportions once you have all this competition, I am not sure that you would even achieve a financial benefit. However, you find a reduction in quality, most particularly for people with long-term conditions. That is why I needed to speak in this debate.

I hope that whatever happens on these amendments, great care will be taken to protect public service provision. If we do not prevent the cherry picking, which happened in the provisions studied by this research and has occurred in other settings examined by research, without any question we will achieve a two-tier service with the private sector cherry picking the easier and healthier patients and the public sector having the complex care. I know that this issue will have been rehearsed at length in Committee. I do not want to go on further but it is important that we do not just use the word “competition” without clearly differentiating the competition that we are talking about.

[Lord Ribeiro]

For clarification, perhaps the noble Baroness would say whether we are dealing with apples and pears here. She made reference to the private sector and chronic care whereas she said specifically that the earlier 2006 report related to surgery. My understanding is that quite a lot of the competitive work done in the NHS involved ISTCs. These contracts were held by private practitioners and private companies. I have not read this report but we need clarification as to whether we are dealing with a level playing field of NHS provision or whether this is NHS provision against private provision.

[Baroness Meacher]

I am grateful to the noble Lord for his intervention. I was trying to conflate a number of points. The research that came out in February has to do with surgery but the point is that those findings support earlier studies which looked at a mixed public-private market by Allen and Gertler in 1991 and Ellis and McGuire in 1986 and others. Their research also showed that if you have private and public services competing with each other, you will see the cherry picking and the detriment to the long-term conditions to which I have referred. I am sorry that I slightly skipped a few things and compounded them into one. The findings are absolutely consistent whether they are concerned with surgery or other settings.

--- Later in debate ---

It is important to remember that Monitor will work with the Commissioning Board to design tariffs which best incentivise high-quality patient care, including through integration. That brings me to the point made by the noble Baroness, Lady Meacher. The Bill addresses the situation where a private provider could cherrypick the most profitable services to deliver, leaving an NHS hospital with the most complex procedures. It requires Monitor and the NHS Commissioning Board to take account of variations in the range of services provided by different providers, and the complexity of the needs of patients treated, to ensure a fair level of pay for providers. As a result, providers undertaking only the more simple interventions would be paid a suitably lower price. We are not seeking to stop providers choosing which services to deliver; the issue is making sure that they are paid a fair price for each of them. If prices accurately reflected the cost of services, private providers simply would not have the incentive to cherry-pick and damage the viability of other providers.

[Baroness Meacher]

Lower prices may be determined for simpler procedures, but this matter is far more complicated than that. If a lot of the simpler procedures are creamed off, the public sector institution may not be viable, which the research again shows. It is not straightforward. People concerned with long-term and complex conditions fear that over time such a differential organisational and pricing structure could lead to a two-tier system.

[Earl Howe]

My Lords, it is a concern that I understand. The destabilisation of the NHS will naturally be a concern to all commissioners, which is why they can protect that situation through the contract. They could insist through the contract that a provider provided the full range of services rather than a select few. I simply say to the noble Baroness that we are alive to that concern and I have no doubt that commissioners will be as time goes on.

On the amendment tabled by the noble Lord, Lord Warner, he will be disappointed to hear that I am not drawn to going any further than the Bill does, much as I understand that his idea is well-intentioned. I say that because of Monitor’s overarching duty to protect patients’ interests and prevent anti-competitive behaviour that would harm those interests. This amended duty reflects what the Future Forum recommended and it is right that we stick with that. I can, however, offer the noble Lord, Lord Warner, some reassurance. First, in carrying out its duty to address anti-competitive behaviour, Monitor will necessarily have to identify it. Secondly, Monitor would have the power under Chapter 2 of Part 3 to conduct market studies and to refer potential barriers to new entrants for further investigation by the competition authorities where necessary. I hope that that is of some comfort also to the noble Lord, Lord Adebowale.

We had a most constructive debate in Committee about the Secretary of State’s accountability for securing a comprehensive health service in England and his role in holding Monitor to account for its duties. I thank my noble friend Lady Williams for proposing an amendment which adds much to the Bill in this area. Clause 61 already requires Monitor to carry out its functions in a manner consistent with the Secretary of State’s performance of his duty to promote a comprehensive health service. My noble friend’s amendment would strengthen these provisions and thereby improve the Bill on a key issue. This would help to ensure that the Secretary of State can discharge effectively his responsibility for the health service in England and that Monitor carries out its functions to that end. I support my noble friend’s amendment.

Clause 64 specifies the range of matters that Monitor would be obliged to have regard to in carrying out its duties. In Committee, the noble Baroness, Lady Murphy, and my noble friend Lady Williams raised some concerns about that list. I agreed to reflect on these concerns and have tabled Amendments 168 to 171, which would rationalise the list and make it clear that maintaining patient safety would be the paramount consideration. I hope that the noble Baroness and my noble friend will be content with that rationalisation.

On the amendment tabled by noble friend Lady Cumberlege, the Bill ensures that patient and public involvement is embedded at every level of the healthcare system. However, unlike the NHS Commissioning Board and clinical commissioning groups, Monitor would not be responsible for securing NHS services to meet patients’ needs. It is a regulator, with economic and more technical functions. Clause 61 reflects this and gives Monitor the responsibility for determining arrangements for patient and public involvement as appropriate to its functions. So I am afraid that I do not regard my noble friend’s amendment as appropriate. She asked what could be done if Monitor did not involve patients in the right way. Well, the Secretary of State would hold Monitor to account as to how it discharged its functions. Monitor would have to report to the Secretary of State on how it was discharging its duty on patient and public involvement as part of its annual report. The Secretary of State could also request a specific report on how Monitor discharged this function and intervene where there had been a significant failure in meeting this duty. The Bill provides for HealthWatch to send advice to Monitor as it seems appropriate. Monitor would then be required to respond to this advice in writing. I hope that my noble friend will take comfort from those points.

I stress once again that the purpose of Part 3 is to strengthen sector regulation in healthcare to protect and promote patients’ interests. The current system is inadequate, fragmented and duplicative. It fails to protect the interests of all patients. Part 3 recognises that the NHS is not and never has been a single institution. The reality of the NHS is a comprehensive health service that has always been delivered by a diverse range of providers.

Part 3 would address gaps in the current system by extending equivalent safeguards to protect patients’ interests irrespective of who provides their NHS services. It would also make sector regulation in the NHS more effective in driving improvements and enabling integration during an absolutely crucial period of economic challenge.

I am very happy to support the amendments of my noble friend Lady Williams, which would improve the Bill, but I urge, following the reassurances and explanation that I have been able to give, other noble Lords not to press their amendments.

Health and Social Care Bill

Baroness Meacher Excerpts

Tuesday 28th February 2012 Lords Chamber

[Earl Howe]

The noble Lord is right. The stance taken by a number of medical bodies and members of the medical profession is of course a matter of great regret to me and my ministerial colleagues. I say to them and to the noble Lord that once the Bill has been approved by Parliament, as I sincerely hope it will be, that will be the time to re-engage with the medial profession and work with it to ensure that the Bill delivers on the promise that we have held out for it and that we still believe in. The principles that the Bill embodies, which the medical profession has always said that it supports, can then be given substance in the form of the improvements that we would like to see delivered to patients. From all the comments that I have heard from doctors and others who are in doubt about the Bill, most of their concerns revolve around its implementation and what it will mean in practice, rather than the principles that it enshrines. We need to look forward collectively and work together to make the NHS work better.

[Baroness Meacher]

My Lords, I, too, applaud the noble Earl for the way that he handles this very difficult Bill in very difficult circumstances. I am sure he is aware that there is a lot of concern about the Bill in the field of mental health, particularly as private provision gathers pace. Can he give any assurance to mental health professionals and services up and down the country about what in the Bill might protect mental health services in the future?

[Earl Howe]

Several things in the Bill are new. One is the duty to reduce health inequalities, which is very important in mental health. Another is the duty to promote integration of services. Again, we have had many debates on that and there are mechanisms that we propose to use to support greater integration of services.

I also believe that the worries about competition are misplaced. Competition is a tool that commissioners can use, or decide not to use, in the interests of patients. It is no more than that. The Bill does not change competition law or increase the scope for competition to be used in the NHS. It leaves the decision-making to commissioners on whether competition does or does not serve the interests of patients. There is a lot of misapprehension about what the Bill does, not just among those in the mental health world but more widely. I hope that that reassurance is helpful.