Health and Social Care Bill
Baroness Murphy Excerpts(13 years, 4 months ago)
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Lord Marks of Henley-on-Thames
It is indeed important to clear that up, and the answer is yes. If the Secretary of State considers that the body with which he proposes to intervene is acting in a way that is not consistent with the interests of the health service, then, for the purpose of these amendments, it is not acting properly and the Secretary of State’s powers of intervention are triggered. That was the point of our amendment in Committee and it is the point of these amendments, which have now been accepted, as the noble Lord points out, by the Government. So the answer to his question is indeed yes.
A similar test applies in the case of the board’s powers to intervene in the conduct of clinical commissioning groups, where a parallel test is applied. It is, then, the board’s view of the interests of the health service that counts, just as, where it is for the Secretary of State to intervene, it is his view that counts.
As my answer to the noble Lord’s intervention makes clear, the amendment puts the Secretary of State right back in the driving seat. He has of course to have regard to autonomy, and a failure has to be sufficiently significant for him to take the view that an intervention is warranted, but, subject to those two points, if he takes that view, he may intervene in the ways prescribed by the Bill, and his ministerial responsibility and his answerability to Parliament are assured.
I am grateful to my noble friend the Minister for his support and to those in his department who have helped with these amendments. I am grateful also to all those who spoke in Committee on the intervention and failure regime and who took part in the quite involved discussions about it that we had privately. By going carefully through the Bill to pick up all the relevant powers of intervention, and by then applying a consistent trigger within the control of the Secretary of State, we have developed a coherent and effective way of ensuring that the failure regime is workable.
Amendments 294 and 295, in my name and the names of my noble friends Lady Tyler and Lady Barker and the noble Baroness, Lady Murphy, are designed to rectify a small but not insignificant failure in the arrangements in the Bill as it stands. Clause 287 deals with the consequences of a failure to co-operate, a duty imposed by the Bill on Monitor, the Care Quality Commission, the board, NICE, the NHS Information Centre and strategic health authorities. If the Secretary of State is of the opinion that there is a breach, or the risk of a breach, of one of the specified duties to co-operate, he may under the Bill as it stands give a notice setting out the opinion that it is in breach to each relevant body, and he must publish the notice. If the breach continues and it is detrimental to the performance of the health service, he may then prohibit each body from exercising specified functions until the other body with which it is not co-operating agrees in writing what the first body may do. The Secretary of State’s prohibition may last for a year in the first instance but can be extended year on year. In default of agreement by the bodies concerned there is a long-stop power to go to arbitration.
Quite apart from the utter complexity of these provisions, there is an Alice in Wonderland feel of unreality about them. With all this activity, there is a serious danger that nothing will get done. The power of the Secretary of State arises only in the event that there is a breach of duty to co-operate—and then it is only a power to stop anything being done. The first problem is that the parties can, honestly and in good faith, co-operate with each other so that there is no breach of the duty, but nevertheless fail to reach agreement so that a conflict persists. The trigger for intervention should not be a mere breach of a duty to co-operate but the existence of an actual or potential conflict. That is the point of Amendment 294.
The second problem is that the power should not be simply a power to stop all action but should instead be a power to act in such a way as to resolve the conflict. In respect of the intervention powers that we have already considered with the other amendments in this group, the power has generally been to direct that the body concerned exercises functions or exercises them in a specified manner. Why is that not an appropriate power here? I suggest that it is and that Amendment 295 would give the Secretary of State a power to give such a direction, thus effectively resolving any conflict.
The power in our amendment is an additional power. If a stop order of the kind proposed in the clause at present is considered likely to be effective in resolving a failure to co-operate or an outright conflict, then let that power be exercised. However, there must be some power accorded to the Secretary of State to step in and resolve a stalemate. That power is not currently in the clause and there is a risk that not only the bodies concerned but the health service, patients and the standing of the Secretary of State may suffer in consequence. I beg to move.
Baroness Murphy
My Lords, I will very briefly say that I added my name to two of these amendments because I have, in practice, come across occasions when organisations such as the former Monitor and CQC had difficulties in their relationships, which had to be sorted out with some difficulty. It seems that they could be in the very position that the noble Lord, Lord Marks of Henley-on-Thames, has described so eloquently, and that we need some way of resolving these conflicts to the benefit of patients so that decisions are made quickly. I support these amendments.
Lord Hunt of Kings Heath
My Lords, this is an important debate. I want the noble Earl, Lord Howe, to make it absolutely clear in relation to Amendment 71 that the intervention of the Secretary of State will follow if the Secretary of State considers it to be in the interests of the health service when one of these bodies is failing to discharge a function properly. The wording of this amendment means, in effect, that if issues are raised in Parliament about NHS performance on which the Secretary of State, quite naturally and properly, wished to intervene, the Secretary of State can indeed do that. In the end, only the Secretary of State can, in those circumstances, consider what is in the interests of the health service. It is absolutely right and proper for the Secretary of State to be in that position.
The second set of amendments starts with Amendment 294. The noble Baroness, Lady Murphy, is absolutely right to point out the problem of conflict between the CQC and Monitor, which is almost built in intentionally. The second report of the Francis inquiry into the Mid-Staffordshire trust may have some points to make about that. However, we are also adding to the architecture of the national Commissioning Board, and there is inevitably going to be tension between those three bodies. For instance, the national Commissioning Board and Monitor are to be given roles relating to the tariff, and it is clear that there is confusion over the roles in respect of quality issues. Monitor is now involved in making some inquiries of foundation trusts relating to quality, which is no doubt a defensive reaction to the criticism that will flow from the Francis inquiry. The national Commissioning Board is so powerful in the new structure that there are bound to be some issues about its relationship with the quality and economic regulators. We would like to hear from the noble Earl, Lord Howe, that the Secretary of State will not hesitate to intervene and knock heads together if the natural—and probably useful—tension goes beyond that and becomes a problem.
Lord Newton of Braintree
Perhaps the noble Lord could comment on one specific point. In my experience, the biggest problem in respect of these rare diseases is not providing the services—although that can be a problem—but the fact that they are not identified in the first place because no doctor has ever seen one before. Identification is at least as big a problem as treatment but that is not addressed in this amendment.
Baroness Murphy
My Lords, I quake to disagree with my noble friends Lord Walton and Lady Finlay about Amendment 96 but I do so as someone who has been the chief executive of a very large health commissioning organisation. It is utterly crucial that rare conditions are considered individually and that the level at which they are commissioned is decided by the national Commissioning Board coming together with the clinical senates and the clinicians involved in the area. They are best placed to decide on the best level of commissioning based on epidemiology and public health expertise. In fact, this amendment would achieve the very opposite of what the noble Baroness, Lady Finlay, wanted: to highlight some of these very important rare conditions which we do not want to forget. It is not helpful, however, to have rare conditions identified in this form in the Bill. We must leave it to the clinicians to make a judgment about how they are commissioned in groups. That will protect patients better, in my view, than any statutory guidance of this kind. I hope she will reconsider and not press this amendment.
Lord Harris of Haringey
The noble Baroness is not only disagreeing with the noble Baroness, Lady Finlay, and the noble Lord, Lord Walton, but disagreeing with all the organisations associated with these particular rare diseases. They think that the way forward is in the amendment of the noble Baroness, Lady Finlay.
Baroness Murphy
I will respond briefly to that. We all have tremendous sympathy with the fact that very many rare conditions are not currently commissioned to the standard that we would wish. It is also true, by the way, that many ordinary conditions are not commissioned to the standard of service across health and social care which we think would be best for the patients. That is undoubtedly true, but we would not necessarily fix that by having a special focus on the way we say where it is going to be commissioned. What we need are specialists in each of those rare conditions’ groups to be consulted, to ask patients and their relatives about how they should be commissioned, and some professional advice about the epidemiology of it.
Noble Lords should remember that the national Commissioning Board has the ability in this Bill to use, for example, the good offices of their local offices that will regionally be able to ensure that clinical commissioning groups can come together to commission properly for rare conditions. That is already happening around the country, and that is more likely to be a way forward than this particular statutory amendment. I am not saying that those rare conditions do not need some focus and better commissioning: they certainly do.
Lord Patel
My Lords, my name is on Amendment 96. I feel we might be running the risk of missing the important point in a rush to say whether this amendment should be tested. I would very much like the Minister to accept that there is an issue to be addressed here: it is on how the commissioning would be carried out for patients with less common conditions and rare diseases. The Bill is not clear, hence this debate and the amendments put forward by my noble friend Lady Finlay, previously in relation to commissioning boards and now in relation to commissioning groups.
This amendment alludes to the duties of the commissioning group,
“to ensure the provision of services for patients with less common conditions”.
Small commissioning groups may not be able to ensure the provision and may well have to co-operate with other commissioning groups. The direction may well actually have to come from the national Commissioning Board.
The noble Lord, Lord Walton of Detchant, referred to the funding issue. There has to be some pool funding from the national funding pool because the commissioning group may not be able to afford the large amount of money required for treating those people. I am familiar with that, because I was involved in setting up the process for handling it in Scotland. I ask the Minister to accept that there is a lacuna here of how commissioning for rare diseases would be done. He needs to reassure us that it will be robustly done, with clear leadership and responsibility. I hope that he will be able to do that.
Baroness Murphy
I strongly support the stance that the noble Lord, Lord Beecham, has taken on the amendments of the noble Lord, Lord Patel, but I was expecting him to speak to Amendment 163A. I am very disappointed that he has not because it is such a brilliant idea and I was hoping that the Government might listen to it.
Lord Beecham
I am grateful to the noble Baroness for reminding me that I wanted to say a word about that. I was anxious that we should make progress but perhaps a little overanxious. I shall not detain your Lordships' House long on this matter, but the financial side of the arrangements for public health is extremely problematic. At the moment, some £5.2 billion is allocated to public health expenditure out of some £92 billion of NHS expenditure as a whole, of which about £2 billion is directed towards local government. The allocation is based on the existing pattern of primary care trust expenditure, which bears little or no relation to any discernible logic or needs—we heard that at a meeting with the Minister just today.
In addition, there is the new concept of the health premium, which is supposed to be subject to consultation, which has not gone very far and which carries with it a distinct danger that resources will be allocated to areas that can demonstrate an improvement in rather easier circumstances than areas with, for example, a higher instance of poverty, unemployment or other factors that militate against an easy improvement. For example, Easington in the north-east would be a very different proposition from Eastbourne in the south.
The purpose of the amendment, which is a probing amendment, is to try to ensure that the system of developing health premiums should be based on principles that are outlined in the amendment and should be subject to adequate discussion before a new system is put in place.
Health and Social Care Bill
Baroness Murphy Excerpts(13 years, 4 months ago)
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Baroness Murphy
“( ) After subsection (5) insert—
“(5A) The Secretary of State may by directions to the Board specify the minimum amount which the Board must spend in a financial year in making payments under—
(a) this section;(b) subsection (1) of this section;(c) subsection (3) of this section.(5B) The Secretary of State may by directions to the Board specify—
(a) a body or description of bodies to whom payments under subsection (1) or (3), or under either or both of those subsections, must be made by the Board in a financial year;(b) functions or activities, or descriptions of functions or activities, in respect of which such payments must be made by the Board in a financial year;(c) the minimum amount that the Board must spend in a financial year in making such payments—(i) to a body or description of bodies specified in relation to the year under paragraph (a);(ii) in respect of functions or activities, or descriptions of functions or activities, specified in relation to the year under paragraph (b);(iii) to a body or description of bodies specified in relation to the year under paragraph (a) in respect of functions or activities or descriptions of functions or activities so specified under paragraph (b).””
Baroness Murphy
My Lords, the noble Baroness, Lady Cumberlege, expressed what we psychiatrists call a transient situational emotion of delight.
Baroness Murphy
Just as she was delighted at having her amendment accepted, I too am delighted that the Minister has expressed the fact that the Government will accept this amendment. I beg to move.
Health and Social Care Bill
Baroness Murphy Excerpts(13 years, 4 months ago)
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Lord Warner
My Lords, so near, yet so far. Amendment 42 is very simple. It requires the Secretary of State to include in his mandate to the national Commissioning Board the requirement to set out two things. First,
“the priority and scope for … service redesign and reconfiguration”,
in the NHS,
“in the light of the best clinical advice available”,
and secondly,
“the priority and scope for transferring resources to adult social services to improve service integration and achieve best value for health services”.
These are two big issues for the NHS and how it meets the Nicholson challenge of £20 billion of savings by 2015 and how it improves service integration. The proposals in this amendment are very much in line with the recommendations of the Health Select Committee in its two recent reports on public expenditure and social care, which were mentioned on the last group of amendments. As the Public Expenditure report said on page 30:
“The Nicholson Challenge can only be achieved through a wide process of service redesign on both a small and large scale”.
It went on to say,
“we are concerned that savings are being made through ‘salami-slicing’ existing processes instead of rethinking and redesigning the way services are delivered”.
Since I put this amendment down, I am pleased to say that the Minister has responded in a most constructive way. On the first part of the amendment, regarding service reconfiguration, he has entered into most constructive discussions on this issue and the related Amendment 217 in my name and the names of the noble Lord, Lord Patel, and the noble Baroness, Lady Williams, regarding a pre-failure regime. The Minister has undertaken to have an alternative to that amendment prepared before Third Reading. I would be glad to hear more today on how that work is progressing.
On the second prong of the amendment, the Minister has had prepared an alternative approach for transferring money from the NHS to adult social care by amending Schedule 4. This gives the Secretary of State power to direct the board to make payments for community services, which, I understand, include adult social care. This is Amendment 148B, in the name of the noble Baroness, Lady Murphy. It would have been in my name as well if I had not been dallying in India when the noble Earl wanted to discuss it with me. I am very supportive of that amendment on the assumption that, as drafted, it is wide enough to cover adult social care, because that term is not mentioned specifically, and on the assumption that there are no vires issues with the Treasury on the matter of using NHS money for social care. Perhaps the Minister could provide some assurances on this when he responds.
These issues are important for the NHS and for patients in the particular financial and demographic challenges that services face. I am pleased with the Government’s constructive response. In the mean time, in order that we may debate these issues, I beg to move Amendment 42.
Baroness Murphy
My Lords, I will interject here with regard to my amendment to Schedule 4, tabled as Amendment 148B in the supplementary hymn sheet. First of all, I thank the Minister very much for the discussions that I had with him and the Bill team last week. As a result, I tabled this amendment. Unfortunately, I omitted to let the Whips’ Office know that it was to be discussed with Amendment 42, otherwise they could have been tabled together.
As I understand it, the important thing about this amendment is that it addresses the issues that we have just spent another hour discussing of how in practice you get money flowing from health to social care, and how you promote integration of services through some practical mechanisms on the ground. Over the last 60 years, there has been too much money held in the NHS—I say this as a health service person—when it should have been better transferred in to social care services to support people with long-term conditions. It has been extremely difficult to get mechanisms that work well. The importance of this is that we do not have to have it repeated in the mandate, which was in the amendment tabled by the noble Lord, Lord Warner. I was very supportive of that, but it is much more flexible to have it as the Secretary of State’s direction. It also covers wider organisations than adult social care, although we expect that to be the main route to which the Secretary of State would wish to ask for moneys to be transferred. My amendment is slightly superior in that respect to the amendment proposed by the noble Lord, Lord Warner. However, it does not address the most important issue that the noble Lord brought up in the first part of our amendment—that of the reconfiguration of services and how you can prepare and work towards dealing with issues around failing organisations and services. I know that, as the noble Lord said, the Minister has been looking at that issue and may be able to come back to us with some mechanisms for that—but on this one I wish to speak in support of my Amendment 148B, which addresses the Secretary of State’s direction in Schedule 4.
Lord Patel
My Lords, I have added my name under that of the noble Lord, Lord Warner, and I would also have supported Amendment 148B under the name of the noble Baroness, Lady Murphy, if I had not been in India at the same time—not, I hasten to add, with the noble Lord, Lord Warner.
I merely wish to speak about reconfiguring hospital services. It is quite clear that in the long term demographic changes and the shifting burden of disease require a fundamental shift away from acute care in hospitals to supporting people with long-term conditions in the community. The recent financial pressures and shortages among some parts of the workforce and the need to improve quality and safety mean that changes to hospital services in some parts of the country are already a necessity. The Government have argued that service change should be locally led. In Committee, the Minister stated that,
“we should be cautious about any process that would significantly weaken both local commissioner autonomy and public engagement”.—[Official Report, 13/12/11; col. 1271.]
I agree that clinicians and local communities must be fully engaged in the process of service change. However, local involvement and strategic leadership are not mutually exclusive. For example, the reorganisation of the successful stroke services in London proceeded with strong support from clinicians and the public. It is not clear how strategic reconfigurations of specialist services will be led. Again in Committee, the Minister stressed that the NHS Commissioning Board,
“will be able to support clinical commissioning groups by providing support and advising on the possible effects of larger changes”.—[Official Report, 22/11/11; col. 1046.]
A recently released paper outlining the design of the NHS Commissioning Board confirmed that involvement in large-scale reconfigurations will be one of the functions of the four regional sectors that will be established as part of the board. But I am not too sure whether the NHS Commissioning Board has the necessary capacity or experience to do that. The lack of clear responsibility for driving forward strategic reconfigurations of services is the most significant omission from the Bill. We need a clearer explanation about how these reconfigurations will be taken forward under the new arrangements, otherwise the risk is that the NHS will not be equipped to meet one of the bigger challenges, as is necessary to reconfigure some of the acute services.
Health and Social Care Bill
Baroness Murphy Excerpts(13 years, 6 months ago)
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Baroness Murphy
“Mental Health Act: members of ParliamentRepeal of section 141 of the Mental Health Act 1983
Section 141 of the Mental Health Act 1983 (members of Parliament suffering from mental illness) is repealed.”
Baroness Murphy
My Lords, Section 141 of the Mental Health Act 1983 provides that where a Member of Parliament is detained under the Act, the Speaker must arrange for two registered medical practitioners—psychiatrists appointed by the president of the Royal College of Psychiatrists—to examine the Member of Parliament and report. Six months later, the Speaker must arrange for a second assessment by psychiatrists, and if in their opinion the Member is still suffering from mental disorder, the Speaker lays a report before the House of Commons and thereupon the seat of that Member shall become vacant. There is no appeal mechanism. This provision also applies to Members of the Scottish Parliament and the Welsh Assembly, but not to the House of Lords. There have been times in this Committee when I have wondered about that.
This clause has never been invoked. In fact, the last use of the preceding section was for the removal of Reverend Charles Leach MP in 1916. It was very interesting to read about his case. He was clearly suffering from what we would call multi-infarct dementia and was not actually refusing to give up his seat, although it is clear to me that he would not now be detained in the way he was in those days. The Victorian legislation was introduced by the Lunacy (Vacating of Seats) Act 1886, a Private Member’s Bill to deal with one particular issue, although it was too late for that and therefore post hoc. The legislation was transferred, word for word and process by process, substituting lunacy commissioners with two psychiatrists in 1959 and again in the 1983 Act, and here we have it still.
We know from a survey conducted by an all-party parliamentary group in 2008 that one in five Members of Parliament admits privately to having had personal experience of mental ill health. That is not significantly different from the general population. The majority of those would be mild forms of mental distress, but some of us are aware of serious breakdowns where Members of Parliament have recovered fully and returned to work with few people being much the wiser. Surprisingly, there is a very inclusive, supportive environment in the Commons for people who have suffered periods of mental ill-health.
There is widespread agreement that this stigmatising and discriminatory legislation is not fit for purpose. None of us would tolerate such discrimination against people with physical ill-health who were away from the Chamber of the Commons for six months or more—for example, with a cancer or following a stroke. I am sure that the Minister will remember his own words along these lines in our debates on the Mental Health Bill in 2007, when the noble Baroness, Lady Wilkins, tabled an amendment similar to this one. Unfortunately, we did not have an opportunity in those 2007 debates to pursue the matter at great length because the previous Government reached the end of their term.
The repeal of this section was recommended by the Speaker’s Conference in January 2010—I think that 68 per cent of those who voted were in favour. In February this year, Deputy Prime Minister Nick Clegg announced that it would be repealed when a suitable vehicle could be found. I pay tribute to him and to the Cabinet Office Minister, Mark Harper, for their continuing commitment to this cause. This Bill is a suitable vehicle. I thank the clerks in the Public Bill Office for finding the right place to include it.
We should get this measure off the statute book and demonstrate the House's commitment to the continuing campaign to reduce the stigma to which the voluntary organisations and the Royal College of Psychiatrists have given so much time and energy to make a success. It is time for change and I hope that the Government will respond positively.
The noble Lord, Lord Stevenson of Coddenham, has introduced in this Chamber an important Bill to repeal four pieces of legislation that discriminate against people with mental health problems, of which this was one. The others refer to jury service, governors of schools and directors of businesses. I am totally supportive of that Bill and hope that it is successful. I understand, however, that it is unlikely to be able to proceed through the Commons this Session and will therefore have to be reintroduced in the new Session. If this amendment were accepted today, it would require a simple revision to that Bill, but the major practical provisions are of much more widespread significance and would, I believe, continue to attract government support.
I had considered withdrawing the amendment and waiting for next Session to get that whole Bill through, but my anxiety is, as Harold Macmillan said, “Events, dear boy, events”. We have an opportunity now to get this right and we do not know for sure whether the opportunity will appear again soon. I would very much like to see the repeal of this section enacted this Session. What a Christmas present for the mental health world that would be. I beg to move.
Lord Deben
My Lords, the parallel is that things amazingly go on in this country until they are stopped. The Girls’ Friendly Society long ago lost any reason for existing because the girls with whom it was friendly no longer existed in the situations and houses in which they were, yet it took a good 40 years to decide that it was time for it to go. I remember sitting next to a person who explained to me that the trains from Ipswich did not go to Manchester direct but went down to London because there was a row in about 1850 between the Great Eastern Railway and the Grand Central Railway. No one knew that that was the reason, so the trains still went along that route. It was only on privatisation that people started to look again and discovered why that was.
Baroness Northover
My Lords, I remind the Committee that the Government are publicly committed to the repeal of Section 141 of the Mental Health Act 1983. On 3 February 2011, the Government announced that it would be repealed when a suitable legislative vehicle became available. Section 141 sets out a process by which an MP’s seat is vacated if they are authorised to be detained under mental health legislation for a period of six months or more. There is, however, no parallel provision for the automatic disqualification of those who might be hospitalised or on sick leave with physical ailments for six months or more, as the noble Baroness has indicated, even if those people might be equally incapable of fulfilling their duties. The noble Baroness is absolutely right in that regard.
Even those who are imprisoned are not automatically disqualified unless their sentence is more than 12 months. This is an unwarranted discrimination against those with mental illness. With the repeal of Section 141, being detained in hospital for mental health reasons would no longer lead to the automatic loss of a MP’s seat.
However, the Government believe that the most suitable vehicle for this reform would be a stand-alone Bill, allowing both Houses the chance to debate this important issue. There are some outstanding questions on the extent and effect of repealing this provision, which we are still discussing with the devolved legislatures. The Government do not feel it is appropriate to accept this amendment while these questions remain unanswered.
The Private Member’s Bill of the noble Lord, Lord Stevenson, the Mental Health (Discrimination) Bill, had its Second Reading on 25 November 2011. The Bill aims to repeal various pieces of legislation that discriminate against the participation of those with mental health conditions in public life, including Section 141. At its Second Reading, the Government indicated their support for this Bill and we continue to support the Bill as an appropriate means for removing several pieces of discriminatory legislation.
We have already announced our intention to repeal, setting out the Government’s position that this sort of discrimination is not acceptable. While I applaud the noble Baroness’s intention, this important reform should be part of a stand-alone Bill, not inserted here at Committee stage. I am sure that noble Lords will agree that the issue should be given the parliamentary attention it deserves, and I hope that the noble Baroness will be prepared to withdraw her amendment.
Baroness Murphy
My Lords, I am profoundly disappointed but beg leave to withdraw the amendment.
Health and Social Care Bill
Baroness Murphy Excerpts(13 years, 6 months ago)
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Lord Beecham
In the first place, I am grateful to the noble Lord, Lord Mawhinney, for recognising when I am on my feet, given that there is not much of me to be seen. In relation to his question, I am not suggesting that they should be voting members. That is the point. There is a difference. The voting members—I do not mean executive members—should be confined to elected councillors and those representing the other partners, the clinical commissioning groups and the trusts. It is a partnership arrangement. You have this sort of arrangement in care trusts and the like. It is an acceptable one, but at the very least there should be equality of arms between the elected members and those from other organisations.
Baroness Murphy
Can we be quite clear that the noble Lord, Lord Beecham, is asking for a health and well-being joint board on which the director of social services and the director of public health—two crucial people contributing to the board—have no vote?
Baroness Williams of Crosby
My Lords, we on these Benches have strongly supported the many references to integration that have been made in Committee, and it is obviously central to the whole of the attempt to deal with the major problems that confront us all over the next few years. However, I completely agree with the noble Lord, Lord Warner, that it is not very clear what this is, other than a nice word. The more flesh that we can put on it, the better all round, and the clearer the position of local authorities will be.
Many local authorities have of course already delivered, on behalf of the primary care trusts, the kind of approach that the noble Lord, Lord Warner, has been advocating, but the situation has to go a great deal further. We are particularly attracted by his Amendment 336 because it is very clear and precise in what it suggests about the relationship between CCGs, particularly those who wish to devolve some of their responsibilities, or in some cases are unable to deliver on those responsibilities.
I would like to say, from these Benches, on behalf of my noble friend Lady Jolly and myself, is that it is crucial that at an early stage health and well-being boards are able to mount mechanisms for early decision-making. If a CCG is unable to meet part of its responsibilities—and that may happen at relatively short notice—it is critical that the health and well-being boards have structures within their own management which would enable them to deal with the issues rapidly. It would be no good at all if there is a long interregnum when services to patients are put at risk.
I would advocate, in addition to what the noble Lord, Lord Warner, has said, that the new health and well-being boards should make an early approach to seeing how they would deal with what might be, if not an emergency, at least the beginnings of an emergency in the particular aspect of what the CCGs are proposing to deliver.
Baroness Murphy
My Lords, I have added my name to these amendments. Like the noble Lord, Lord Warner, I have come back time and again to this issue of what we really mean by integration, and what it will mean for patients, clients, and people living in the community. It must be a seamless service. They do not mind, of course, where the services come from, but it has to be utterly without gaps. It has to operate 365 days a year, year after year after year, if it is to work.
It seems to me that these health and well-being boards have two huge areas that they will have to work in: the public health and well-being functions around housing, the health of children, and the education of children, for example; and the delivery of services. These two arms are quite difficult to meld together in any joint planning arrangements. The joint strategic needs assessment will try to produce these two focused blocs, but it is actually quite difficult. I am sure I am not the only alumnus, or graduate, or perhaps I should say survivor, of joint planning arrangements. I am even a survivor of a health action zone. I know how difficult it is, and how many hours of work go into properly well-functioning joint planning arrangements, which can commit funds. It takes hours of time and extraordinary leadership from health and local authorities to make them work properly.
I am not sure that I think these health and well-being boards are an inspiration, as the noble Baroness, Lady Cumberlege, does. They are a bit of an improvement on what went before, but to work properly they are going to have to work very hard locally to get it right, and get the structures right. I think it would help enormously if they were working towards something real. For me the real thing would be the integration of the working of health and social care, both at the patient level and at the public health and well-being end of the population. Our Amendment 336 provides one option for a way of working together—an option that local organisations might want to take up. It is an idea, and I am sure that we can think of many others that would also fit the bill. I want these boards to be real and their functions to be made practically useful on the ground, so I support these amendments.
Lord Patel
My Lords, I have my name on these amendments. Of course, we have had an opportunity to discuss integrated care at length at other times. However, I agree that integrated care and the delivery of it is one of the key challenges in the Bill. I agree with what the noble Lord, Lord Warner, said. To a patient, integrated care is the care they need: primary care, secondary care, social care and care in the community.
What leverages will there be for the commissioners to promote the integration of health and social care? They will have the budget, but what other incentives will they have? There is some evidence that contracting of provision of care to a population, particularly the elderly, the frail and those with complex diseases, will require much more care but also use more resources and services. It is not only value for money, but improved patient experience and patient outcomes. How will the commissioners be encouraged to do this? Does the Minister think that three separate outcomes frameworks in health, social care and prevention will help or hinder integration of care? There is also an issue about who will lead this change, if we think that this is the key challenge in the Bill. I agree that putting a clear definition of what we mean by integration, or what a patient means by integration, into the Bill will give a clear message to all those who commission and deliver the care, to know exactly what they have to do.
Health and Social Care Bill
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Lord Warner
My Lords, I will just raise a couple of points about Amendments 300 and 301, tabled by the noble Baroness, Lady Williams, in relation to the Secretary of State's role in mergers. The other day, I tried to express a little about my concerns, which I continue to have, about the speed at which the Government are expecting some of these trusts to become foundation trusts. One thing that I am beginning to see happening in the NHS—this will lead to some questions to the Minister for clarification—is the rush to merge. Mergers can take a number of forms, and a good example is in north-east London, where there is a proposal to merge Barts and The London with Whipps Cross and Newham. These three hospitals have failed to become foundation trusts but it seems to be thought that by some osmotic process, which I am not altogether clear about, such a merger will improve their prospects of doing so.
Discussions are also going on in other parts of the country about merging non-foundation trusts with successful foundation trusts. The evidence here is that there are some very high-risk ideas floating around regarding trusts which so far have not been good enough to become foundation trusts, and causing risks to stable foundation trusts by merging them with trusts which are in some degree of difficulty. However, I can see that the NHS might feel under pressure to try to get people to secure foundation trust status by the deadline that the Government seem to have in mind.
As I said the other day, trusts have had eight years to get themselves ready to become foundation trusts and they have failed to achieve it so far. You have to be one of life’s great optimists to believe that somehow, because the Secretary of State has set a deadline for 2016, it is going to happen. There is a serious question about whether the necessary checks and balances are in the system to stop what I would call silly and fruitless behaviour. Is the Minister confident that the Co-operation and Competition Panel will be a sufficient bulwark to stop what I am calling silly behaviour in relation to mergers, or do we really need the kind of strengthening that I think is implicit, if not explicit, in Amendments 300 and 301? This is a serious issue. We are beginning to see behaviour which may not be in the public interest as people try to get foundation trust status without the necessary skills and competences, or indeed the necessary financial situation in their locality, to achieve this.
Baroness Murphy
My Lords, I echo many of the words of the noble Lord, Lord Warner, although I wish to put a slightly different slant on the issue. It is crucial that we press on with the project to get all trusts to foundation status. There is no doubt in my mind that having this two-tier system, which we have allowed to continue for too long, has led to difficulties in foundation trust hospitals becoming more self-reliant, more seriously entrepreneurial in the way that they think about their services, and more responsive to the local agenda, and so on. They have not had to bother because they have always had Big Brother watching. The de-authorisation process, which threatens to drag them back to the Department of Health, has acted as a sort of brake on their thinking. That has been quite difficult. I seriously think that we should move trusts to foundation status. The noble Baroness, Lady Thornton, is looking puzzled, but I think that it has been a really serious problem.
Baroness Thornton
I was looking puzzled only because I wondered what evidence there was for some kind of break in the system.
Baroness Murphy
Some kind of break in the system? I shall continue with my theme: it is crucial that we move all trusts to foundation status. I quite agree that the dates that have been set before have come and gone, but quite often they have come and gone because the strategic health authorities have not provided the necessary support to move trusts to foundation status. In fact, some strategic health authorities were positive blocks in the system to the development of expertise within the foundation trust. I accept that there are some at the moment which, as the noble Lord, Lord Mawhinney, has mentioned, face the PFI problem. Te recharge is too great for them to subsume and the debt is too great. Others have long-standing debts that cannot be written off. Some are not viable because of the populations they serve. Unless we have a definite aim and objective to get them there, they will never get there. We can get there if there is a concentration on the problem. Each hospital is different. I share the concerns of the noble Lord, Lord Warner, about some of the projects to merge one failing hospital with another, or one failing hospital with a less than successful one.
The evidence from NHS trusts’ failing hospitals merging has been that they continue to fail in a bigger way. The Barking, Havering and Redbridge three-trust hospital merger was a striking example of one that did not work and never could. I have that anxiety. If we are going to move away from the process that we have put into this Bill and retain de-authorisation and NHS trusts, we accept that we are continuing with a two-tier system for ever. That would be seriously detrimental to trying to get everyone moved over into a properly regulated system. It is going to be difficult. Certainly, the role of governors needs strengthening. Governors in some places are wonderful. In other trusts, they are mixed-ability classes, let us say. They will need considerable support and development to get there. Nevertheless, it would be catastrophic to have a two-tier system continuing to run after the introduction of the Bill. We need a fixed end point to work to.
Lord Warner
I totally support the idea of getting everybody into foundation trusts. I am questioning whether the processes that we have in place will actually deliver that in the time scales that are being set by the Government. I suspect that in practice you can make the kind of progress required to achieve the Government’s objective only if you reconfigure services rather than just pursuing merger mania.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, this has been an extremely valuable short debate on Part 4. I hope it will be helpful if I explain briefly why I feel that the provisions of this part of the Bill are so important.
They are very much part of our overall vision of modernisation and improvement to meet the needs of changing circumstances: changes in demands, in resources and in innovation. They are about ensuring that foundation trusts are accountable, transparent and autonomous in the way they operate so that they can innovate and provide high-quality and responsive patient care.
Part 4 of the Bill will reform the legal basis of foundation trusts to bring them in line with the new system of sector regulation. Protecting patients’ interests will be at the heart of the system and we will strengthen the governance of foundation trusts to ensure that this happens. We are also taking steps to ensure that all trusts become foundation trusts as soon as they are able. This will mean that all patients can benefit from services provided by organisations that put them first and provide high-quality, accessible care. It will also mean that all NHS providers would be able to take their own decisions on organisational change, such as mergers, acquisitions and separations, based on what is best for patients.
To ensure the best use of taxpayers’ money and the continued delivery of high- quality services, we will make the financing system more transparent and rules-based. Foundation trusts will be required by Monitor to report separately within their accounts their NHS and private-funded income and expenditure, increasing transparency about whether private patient activities are making a profit or a loss. We intend that foundation trusts should decide matters such as which partners they will invite to appoint their governors and how best to equip their governors with the skills they need for their role. Foundation trusts should develop their own good practice to ensure that their governors have the training they need and build up close working relationships with the board of directors so that governors have the information they need to hold the directors to account on behalf of the members whom they represent: the public, staff and patients.
I understand the intention of my noble friend Lady Williams in proposing that the NHS Commissioning Board should appoint a governor to each foundation trust, but I agree with my noble friend Lord Mawhinney because I believe that the right kind of close partnership working between foundation trusts and their commissioners can be achieved in a whole lot of ways and that trusts should be able to develop this relationship in the way that best works for them. To mandate an arrangement such as the one that my noble friend proposes would not be the right way to do it. I also quite agree that it is important for the provision of integrated services that foundation trusts should work closely with their partners in local authorities and other healthcare sectors. However, again, foundation trusts should be free to set up the most effective ways of doing this, including executive and professional collaboration. Similarly, we would not want to prescribe governor attendance at all parts of the directors’ board meetings. It is for foundation trusts themselves to decide how to deal most effectively with discussions and decisions on sensitive and confidential matters so that the trust’s interests are best served.
I also feel strongly that it would not be appropriate for the Secretary of State to become involved in the approval of mergers and separations of foundation trusts. Foundation trusts are themselves best placed to decide what will work well for their patients and staff, and to involve the Secretary of State would be to add an extra layer of bureaucracy for no good purpose, in our view.
The amendments tabled by the noble Baroness, Lady Thornton, seek to preserve the current position where foundation trusts can be subject to terms of authorisation applied by Monitor and, if they fail to meet their principal purpose, they can be de-authorised and returned to central control. The obvious point to make about this idea is that it would be incompatible with our proposal to repeal NHS trust legislation once the foundation trust programme has been delivered. The more deep-seated objection is that these amendments would depend on an infrastructure which we propose to replace with a comprehensive new regulatory system. There would be no obvious body to manage the performance of reverted NHS trusts, including measures for dealing with providers at risk of becoming unsustainable. We have looked at this from a different angle. Our proposed system would shift the emphasis from maintaining the existence of an unsustainable provider, often at great cost to the taxpayer, to ensuring continuity of essential services to local populations. That is surely what matters. It is surely right for the system to be geared towards continuity of service provision.
A further amendment by the noble Baroness, Lady Finlay, proposes that abolition of NHS trust legislation and repeal of Monitor’s authorisation powers should not happen before 2020. We are taking a stronger, more testing and more transparent approach than before to managing the foundation trust pipeline, and we expect the vast majority of NHS trusts to become foundation trusts by 2014. This would give patients a clinically and financially sustainable NHS provider system, by definition, because otherwise the trust would not have been authorised as a foundation trust. I am afraid that the noble Baroness’s amendment would not support the change in momentum and mindset that is now evident within the NHS. I very much agreed with the cogent points raised on that topic by the noble Baroness, Lady Murphy.
The noble Baroness, Lady Finlay, quoted the HSJ saying that some foundation trusts plan to make major reductions in staffing. I have not read my HSJ this week yet but I think that foundation trusts themselves are best placed to make decisions about how to provide services efficiently and effectively, which includes ensuring that they have the right levels of staff. What matters are those services. It is always regrettable if front-line staff posts are reduced, but if the service can be maintained in as good a way or better, that is surely what should matter in the end.
Baroness Murphy
My Lords, I welcome the comments of the noble Baroness, Lady Thornton, that her opposition to the Clause standing part of the Bill is for probing purposes, as are some of the other amendments. We have all welcomed the review of the private patient income cap introduced by the previous Government following the judicial review by Unison of Monitor’s interpretation. The Government’s amendments go a long way to addressing our concerns about the extension of private income diverting NHS hospitals into private activity. I understand and have great sympathy with the amendments tabled by the noble Baroness, Lady Williams, and the noble Lord, Lord Clement-Jones, in that respect.
I ought to say that I have never, as an NHS consultant, practised privately. This is both an ideological and a practical matter. As I mentioned before in Committee, my own professional activity simply could not be done effectively without working in conjunction with social services, housing and the voluntary sector. It would not, therefore, have sat very easily with my activities. I have, of course, seen the very important role that private income plays in swelling the NHS coffers in many foundation trusts. However, it is worth reminding ourselves how dreadfully unfair that private patient cap has been. Hospitals like the Royal Marsden have a cap of 30 per cent, but they manage to do that work without any diversion of activity from their brilliant NHS service. Many acute FTs and all mental health foundation trusts have a cap of zero. For NHS FTs as a whole, the average PPI cap is 1.5 per cent of their income. The overall figure is therefore tiny. Foundation trusts’ private income was less than 2 per cent of their total income across the board. However, this income can be very welcome to individual hospitals. Anything that makes the system fairer for hospitals is extremely important. It is of course worth saying that ordinary NHS trusts do not have a cap and can make as much income as they like.
We need a mechanism to enhance FTs’ commitment to remaining focused on NHS patients. I believe that all existing foundation trusts are focused on that, but if we approve the government amendments—Amendment 299AZA and one other—they will go some way to ensuring that at least the majority of activity remains as it is. In reality, private practice is not likely to extend very much. The provisions will prevent the kind of unfairness and terrible bureaucracies that have been associated with joint ventures and the complexities of the current rules which even the judge in the judicial review of the private patient income cap admitted were real practical difficulties for foundation trusts that needed to be addressed.
The government amendments are strong, but I would not entirely not support some of the stronger amendments tabled by the noble Baroness, Lady Williams.
Health and Social Care Bill
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Baroness Williams of Crosby
My Lords, at this late hour I will keep the Committee only for a moment or two. I congratulate the noble Lord, Lord Warner, on a courageous, statesmanlike and important amendment. We all believe that there have to be huge changes in the NHS, those of us who support it very strongly just as much as those who are critical of it. The noble Lord has thoughtfully tried to produce a machinery of government that will enable some of these extremely difficult decisions to be made. Perhaps I may say without, I hope, offending anybody, that there are echoes here of what happened to the Governments of Greece and Italy—flatly refusing to look at the realities, refusing to change, and ending up with effectively a total loss of trust in the democratic system. I believe that this amendment is an attempt to try to get away from that and to begin to mobilise a much larger section of the public for the changes that have to be made. That can be done only through open debate and the willingness of politicians to get up and express the need for change and their support for it, not by hiding away and doing the popular thing when that is almost certain to bring about the destruction of the remaining health services in any effective way.
I congratulate the noble Lord and say that he is brave to have done this, and to point out rather harshly that we all have to learn that we cannot at one and the same time take part in Chase Farm demonstrations and Chase Farm decisions. What that means is that, inescapably, the Secretary of State has to be at the centre of this operation, unpleasant though it is, because—as most of those who have been in Government know—either you have to take unpleasant decisions or you have to resign. What you cannot do is dodge the issue by saying, “It is nothing to do with me”, because in the end that will not carry the public with you. It is the public we need to mobilise behind us.
Baroness Murphy
My Lords, I have added my name to this amendment because it fills in the hole in this Bill that I am still worried about. Clauses 95 and 96 contain good ways of intervening early in individual failures on quality and the financial governance of providers that will enable Monitor to get in and do the business it needs to do with individuals, but what we have not got are the mechanisms that will allow Monitor to address at an early stage failures that can be seen coming up in a local health economy.
I have already experienced in the current regime how difficult it is for a regulator to get discussions going locally between trusts and local commissioners on how to address a local service failure. I well remember the whole of the Monitor board going down to the south-west—the trust will remain nameless—to address a failure of the local economy, to discuss it with the strategic health authority and to attempt to come to a conclusion and come up with a plan about how the local economy would solve the problem. The Minister has already mentioned bailouts. The solution was that the strategic health authority would give a bung, which it duly did and which sent the problem away. But in fact the problem did not go away because the local economy was still failing.
It is this early failure—where you can see that things are mounting up, that it is not going to work and that the sums are not going to add up—for which we need some mechanism. This is a clever scheme, but it may be too interventionist. It may be put into blocks which are too chunky to be inserted into the Bill as it is. But we need to address the problem of failure before it gets to the point of administration. As the noble Lord, Lord Warner, says, Monitor will not want to implement the failure regime and the administration regime until things have gone desperately awry. It should not implement the failure regime when the problem is an economy problem and not a trust problem. We need to have some reassurance that there will be some support for local people who are trying to tackle this in a meaningful way.
Lord Davies of Stamford
My Lords, I do not want to hold up the House for too long, but I feel that someone should respond to my noble friend Lord Warner’s amendment on behalf of what he rather dismissively described as the elected political class. I am proud to say that I was a member of that elected political class for 23 years, representing Grantham and Stamford. In the course of those 23 years I had to take action to save both Grantham hospital and Stamford Hospital, separately and at different times, when they were threatened with closure. I used all the methods which my noble friend is no doubt familiar with: meetings with Ministers, lining up local government support, petitions, threatening judicial reviews—even potentially funding a judicial review—and heading major marches. I remember leading over 9,000 people through the streets of Grantham and 5,000 through the streets of Stamford. We won in both cases. Grantham is still a very successful local district hospital and Stamford is a smaller hospital—what you might call a cottage hospital.
The point I wanted to make is this: I would have welcomed the sort of report from Monitor which my noble friend is suggesting. If one wants to save one’s local hospital, and one wants to make sure that the right decisions are made about the health of one’s constituents, one wants a warning as early as possible about the financial or clinical problems—or both—that may be arising. There are often all sorts of alternatives that one can find to closure. It is important for democratic confidence in the NHS that all the possibilities are thoroughly explored and everybody is content that the decision has not simply been taken behind closed doors and then announced to the public when there could have been some initiative that might have saved the day. On behalf of the—slightly dismissed—elected political class, I thoroughly support the amendment of my noble friend.
Health and Social Care Bill
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Baroness Anelay of St Johns
My Lords, I appreciate that this procedure is not common, but it is not novel. The noble Baroness, Lady Murphy, is seeking to contribute to the continued debate. May I suggest that Peers who are attempting to leave should do so by the other door, and preferably not by that door—I say to the noble Lord, Lord Borrie—so that she can stand and be heard by the House?
Baroness Murphy
Thank you very much indeed. I just want to comment briefly on the amendments on licensing. Some of them are asking quite a lot of the licensing procedure, but there may be other mechanisms that achieve what they want to achieve. I am sympathetic to people’s desire to add these conditions, but I think that it is important to see the licensing arrangements as part of the system, in conjunction with registration with the CQC. It enables Monitor to approve the compliance arrangements to achieve good governance and the information requirements needed to monitor that the organisations are delivering the right standard of care.
The threat of licence revocation enables Monitor to pick up at an early stage the problems of quality and finance which other people have spoken about. Obviously the providers will be very concerned to hold on to their licence, which seems to be a very powerful and potent tying-in of organisations to the ethos and objectives of the NHS. We must be very careful not to regard the licensing process as something within which to impose too many conditions, but as a basic framework that ties the licensees into the system. That is particularly important when organisations start to go wrong. We will discuss later how they are rescued from those predicaments. However, it seems to me that this creates a basic level playing field, and that it would be a mistake to use that process to do much more than tie everyone into the basic system. It sort of replaces the old authorisation process on compliance and quality that was operated by old Monitor, but it is a way of going forward as new organisations come into the NHS as providers of NHS services. I just wanted to add those comments because I think that these amendments might be adding a bit too much to the responsibilities of the licensee.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, licence conditions will be the mechanism through which Monitor will be able to prevent potentially anti-competitive behaviour and enable service integration, where this is what commissioners want. Monitor would also use licence conditions to collect the information it would need to set prices, and to help identify at an early stage—at an early stage—if a provider was at risk of financial distress. If that was the case, it could work with the provider to address potential problems, as well as supporting commissioners to ensure continuity of services. I completely understand the concerns in that area.
First, I think that I need to make clear that all providers of NHS healthcare services will be subject to the requirement to hold a licence. This includes providers of primary medical services, which is the question posed in Amendment 279A. Furthermore, where a provider is providing services that carry a requirement to be registered with the Care Quality Commission, that registration will be a prerequisite to being granted a licence by Monitor. We all want to see close operational links between Monitor and the CQC. The Bill emphasises this by placing duties of co-operation on both organisations, not just in matters such as information sharing, but also in the development of the joint application mechanism for providers seeking registration from both bodies.
We are also clear that regulation must be proportionate, and impose the minimum of additional burdens on those being regulated, while still safeguarding the interests of patients and the public. To that end, the Bill makes provision for the Secretary of State to make regulations establishing an exemptions regime, so that licensing can be targeted towards those parts of the health service where there is the greatest need for regulation. While we are clear that there must be an exemptions regime, we also recognise the importance of making sure that we get the scope of it right. To that end, we are already committed to consulting fully next year on our proposals for the exemptions regulations. Noble Lords may also be aware that the Delegated Powers and Regulatory Reform Committee of your Lordships’ House has recommended that the first set of exemption regulations should be subject to the affirmative resolution procedure. We agree, and both Houses will have the opportunity to debate them before they come into force.
The Bill provides for Monitor to attach conditions to licences. While the Bill sets a framework for the scope of those conditions in Clauses 95 to 97, we are clear that it will be for Monitor itself to develop the detail as the sector regulator. The intention is that the conditions will support Monitor in exercising its functions and that Monitor will be best placed to know how they should be framed to achieve that. Therefore, including large numbers of mandatory conditions on the face of the Bill, as some noble Lords have suggested in certain amendments—for example, Amendments 283, 285ZA and 287A—would undermine the Monitor’s independence, which we do not think is desirable if it is to be a robust and vigorous sector regulator.
Nevertheless, I would like to reassure the Committee that there will be proper oversight of Monitor’s proposals for conditions. My right honourable friend the Secretary of State will have the power to veto the first set of licence conditions. We are clear that Monitor must be able to operate freely and autonomously within the legislative framework established by the Bill. We have built in reasonable checks and balances through requirements for key products, such as the licensing criteria and conditions, to be subject to approval by the Secretary of State. Although I understand entirely the reasoning behind amendments tabled by noble Lords which would increase the level of the Secretary of State’s involvement in provider regulation—for example, Amendments 281A, 282A and 282B—regrettably, I feel that these go a step too far in limiting Monitor’s independence.
The noble Baroness, Lady Thornton, asked me quite a number of questions to which I feel I should write in response. In particular, however, she asked whether Monitor will have the role of resolving disputes and whether all disputes would go to court. The answer to both of those questions is no. The NHS standard contract already provides for contractual disputes to be resolved through arbitration and this will not change. Licence holders have to agree special conditions or modifications to conditions. If the provider disagrees and Monitor then wants to proceed, it must refer the matter to the Competition Commission for consideration.
My noble friend Lord Clement-Jones spoke to Amendment 281A. I want just to comment briefly on that. The amendment would increase the minimum length of notice period during which representations could be made following publication of a notice of proposed exemptions. I am grateful to my noble friend for that. The Bill is clear that the notice period should be not less than 28 days. It could therefore be much more than that, and our expectation in most cases is that it will be. But there will be times when the Secretary of State needs to act quickly, so being locked into a notice period of not less than 90 days could be detrimental to a particular provider or group of providers.
My noble friend Lady Williams spoke to two amendments, Amendments 287EA and 287EB, where the purpose is to ensure that licence conditions on providers of NHS services restrict the income they can earn from private patients and the number of private patients they treat, as well as that funds provided for NHS care are not used to subsidise private treatment offered by foundation trusts, with various conditions attached. I understand my noble friend’s concern about this. However, the amendments would be impractical, and in particular for licence holders who are not NHS bodies they would be highly undesirable. Foundation trusts’ principal purpose—we will come to this in a later group of amendments, when we discuss the private patient income cap—is to provide goods and services for the NHS in England. It means that they must earn most of their income, over 50 per cent, from NHS services. We are tabling a government amendment to make it clear that the majority of every foundation trust’s income will continue to be from NHS service provision. Foundation trusts must comply with their principal purpose or they will be breaking the law. They could be at risk of successful legal challenge if they fail to meet their principal purpose. We are tabling a second government amendment to require foundation trusts to show in their annual reports how income earned from private activities has impacted on the provision of NHS services. Using NHS income to subsidise private patient work would lead to foundation trusts breaching the NHS constitution. The Government also gave a commitment that foundation trusts will have to produce separate accounts for their NHS and private-funded work.
Finally, I want to mention briefly the amendments that will fall to me to move in relation to licensing: Amendments 280A, 281B, 284A to 284C, 285A, 286B, 287C and 287D, and 288A to 288F. These are without exception minor tidying-up amendments to improve the drafting or clarify meaning, and I hope that the Committee will accept them when they are moved. I hope, too, that the Committee feels reassured by my explanation of how we envisage licensing to operate and that the noble Baroness will be able to withdraw her amendment.
Lord Warner
My Lords, this amendment is in my name and that of the noble Lord, Lord Patel. I begin by briefly making clear my position on competition, which underpins this amendment. I am sorry that I had to miss the discussion on the first group of amendments. However, my position on competition is no different from what it was when I was the NHS reform Minister in the Blair Government, but it is somewhat different from that of the current Front Bench, as will become clear.
I start from a position of being opposed to monopolies, whether they are in the public or private sectors, and I consider that such research evidence as is available—such as that by Dr Zack Cooper at the LSE—supports the view that competition—
Baroness Murphy
I apologise. I think that the group we should be addressing begins with an amendment in my name. Unfortunately, I withdrew that amendment last week but it has continued to appear in the Marshalled List, for which I apologise. I believe that we should be moving on to the next amendment in that group.
The Deputy Chairman of Committees (Viscount Ullswater)
Perhaps I may clarify matters for the Committee. The group that we are now discussing begins with Amendment 265ZA, tabled by the noble Baroness, Lady Finlay, but which she did not move. However, the amendments in the group following that one were called in their place.
Baroness Murphy
My Lords, I wanted to come in on this matter of anti-competitive practices and the role of Monitor in it. I apologise to the Committee if some of these matters have already been covered, but I was unable to be here this morning. However, this seems like an opportunity to speak, as we are discussing Monitor’s role in anti-competitive practice.
I am concerned that we have not yet talked about the quite serious anti-competitive practice that exists in the NHS today, and how damaging it is. As we know, the independent co-operation and competition panel has highlighted a range of tactics that are very common at the moment in the NHS and which go seriously against patients’ interests. We have not sufficiently considered these when we are looking at competition. We tend to think of competition in relation to the independent sector versus the NHS in approaching the provision of services, but in fact it is this anti-competitive practice within the NHS which is so damaging. An example of this is the protection of certain local services against providers for elective operations, and so on.
I can think of an example in my own backyard, at Barts and The London—and this is a very real case. For years and years Barts used the mainstream orthopaedic services to provide local podiatry services, at a very high cost and very anti-competitively against the local community services, which had very skilled podiatrists who were able to do foot operations very cheaply and simply with a much smaller waiting list. Those sorts of anti-competitive practices are rife throughout the NHS, and are against patients’ best interests. It is utterly crucial that this role to reduce as much anti-competitive practice as possible should be watched by Monitor, but we want it to be co-ordinated with its role on integration—there is absolutely no reason why the two things cannot go side by side.
I am sure that we will come on to mergers and acquisitions, but the recent protection of patients and the public—for example, against the merger of two mental health trusts, Norfolk and Waveney, and Suffolk—seems to me to be extremely good judgment about what is likely to be in patients’ best interests. We should remember these matters of anti-competitive practice that are, as I say, rife in the NHS, and we really need to do quite a lot to stamp them out. I hope that the role of Monitor in working on these practices in patients’ best interests will be strongly supported.
Baroness Finlay of Llandaff
My Lords, the noble Lord, Lord Warner, was most helpful in setting out the criteria with which one would want to look at competition, and emphasising the importance of competition. But there is another area of competition, which is the one that really drives up quality of care: the inherent competitiveness of different clinicians and different clinical services, their desire to have better clinical outcomes than others, and the pressure that they will put on themselves within their own team to achieve better clinical outcomes.
I apologise to the House if I contributed in any way to the confusion over the numbering of the amendments as they have arisen. I would like to address the ones that come after Amendment 266, which will be Amendments 268B and 267C. Amendment 267C was tabled because of the large number of patients with complex clinical conditions.
It is very easy, when we are thinking about tariffs and services, to look almost at discrete nuggets of care, diagnosis and so on. Indeed, Monitor has a requirement in the Bill to seek appropriate advice to effectively discharge its functions in,
“the prevention, diagnosis or treatment of illness, or … the protection or improvement of public health”.
The amendment related to the management of a wide range of complex conditions has been tabled because in complex conditions many situations overlap and cannot be discretely targeted together, nor can they necessarily be unpacked one from another because of their impact on each other. That requires integration of clinical services.
Lord Clement-Jones
My Lords, I am sure that this was well worth waiting for, but it could be the mouse that roared. We are back to other aspects of Clause 59 on the general duties of Monitor. This amendment and Amendment 267ZB simply aim to ensure that to discharge its functions Monitor has input from HealthWatch England. That is all about patient and public involvement. It seems to me and to my noble friends that Monitor should definitely insert such input into its deliberations. I cannot find in the rest of the Bill any other such duty on HealthWatch England, which after all will have an extraordinarily important role. Many noble Lords have welcomed the new enhanced role for patient and public involvement. I remember the demise of community health councils and the hard-fought debate that took place in about 2004—I cannot remember exactly when—and I very much welcome the new enhanced role for HealthWatch England. However, Monitor will need to be informed by it and I very much hope that the Government will take this on board. I beg to move.
Baroness Murphy
I realise that I have another amendment in this group, and I would have saved the Committee a great deal of disquiet over the numbers if I had spoken to this one in the first place, so my apologies all round. This group of amendments is about how Monitor discharges its functions and what it takes into account. Mine is a probing amendment on whether we have the objectives for Monitor and their number right. Experience from other sectors suggests that if too many policy priorities are set, the regulator can become confused about its primary objectives, which can reduce its effectiveness. I wonder whether we have the clarity of Monitor’s objectives right.
Monitor will find itself in the position of other regulators in having to devise policies, particularly on the tariff, to meet a wide range of objectives over and above its primary duties. The experience of Ofgem, in particular, suggests that the risk might grow over time as the Government seek solutions for new problems as and when they arise. Setting too many policy priorities carries the risk of confusing the regulator about its primary objectives. That might be inevitable, given the complexity of healthcare policy-making, but it means that the accountability of the regulator in discharging those various functions is critical.
For other major economic regulators, the Government have committed themselves to updating the objectives only once in a Parliament and ensuring that objectives are outcome-focused. Monitor's objectives, unusually, will be set in primary legislation. I wonder whether they would be better in secondary guidance, together with a clear process for agreeing changes with the Department of Health, to protect the regulator from political whim. Nevertheless, it has a number of primary duties in Clause 59. In Clause 62 it has to have regard to a number of other matters. Monitor might find it difficult to demonstrate that they are all taken into account when decisions are made, possibly making it open to legal challenge. I wonder whether it is possible to reduce the number of duties.
I have included just one or two as exemplars simply because I think that they duplicate existing duties. In Clause 62(b),
“the desirability of securing continuous improvement in the quality of health care services for the purpose of the NHS”,
which is crucial, duplicates a primary duty in Clause 59(1)(b), so I think it could be removed. Clause 62(c), on,
“the desirability of securing continuous improvement in the efficiency with which health care services are provided for the purposes of the NHS”,
duplicates a duty under Clause 59(1)(a). Surely that could be removed. These are minor, tidying amendments, but if we can clarify for Monitor what its objectives should be, that would be a help to the regulator.
Baroness Finlay of Llandaff
My Lords, I half spoke previously to the need for Monitor to have regard to complex clinical conditions. I return to that and build on the comments that have just been made, particularly in relation to tariffs.
We are already beginning to see a degree of fragmentation through systems such as “choose and book”. We heard on a previous day in Committee about the problems for patients with various complex conditions, who have to be sent back to their general practitioner to be able to access a different discipline in secondary care and how their care then becomes fragmented. If you are going to provide good integrated care and improve clinical outcomes, you need all the different systems of the patient to be addressed simultaneously—the psychological and welfare areas as well as the different physiological systems that might be affected by a range of pathologies.
I remind the House that it is much easier when people are not terribly ill. When they do become terribly ill, more and more systems fail and become involved: cardiac complications, overwhelming infection, renal failure and potential dialysis might all be involved, and if there has also been trauma with orthopaedics there might be a lot of complex psychological conditions relating to whatever has happened to the person. They all need to come together around that patient. The patient cannot be parcelled off from one service to another or people be brought in sequentially like small aliquots of opinion.
Baroness Murphy
My Lords, I would like to make a few remarks about tariff and price setting and echo the words of the noble Lord, Lord Warner, who reminded us that there are two equally important mechanisms: tariff development, which is the responsibility of the national Commissioning Board; and price setting, which is the responsibility of Monitor. It is critical that Monitor retains the responsibility to set prices. That enables it to uphold its responsibilities for sustainability and balance the interests of commissioners and providers in the patients’ best interest. Independence in price setting is utterly critical. We have seen previously that not having independence from the executive arm in the NHS has been a disadvantage in getting the right prices which reflect the complexity of the issue concerned. I take the point made by the noble Baroness, Lady Thornton, that the development of tariffs is a very complex matter. It is work in progress but the work never stops. That has been the case in all countries that have developed tariffs and will be for the foreseeable future. We need flexibility when designing tariffs.
I say to the noble Lord, Lord Davies, that we have seen how catastrophic simple price competition has been internationally in driving down quality of service. Indeed, we have seen that in this country, too. Price competition was not helpful. In order to drive down prices and get better value, you need to start designing the tariff around best practice. This was mentioned by the noble Lord, Lord Warner. You need to design a pathway of care based on what should ideally happen to a patient, deliver the clinical pathway, cost that out and get the best practice in place. If that amounts to less than the set price, which it often does, that is the way that you can start to drive down costs while improving quality. A tremendous amount of superb work has been done in a group of mental health trusts looking at best practice tariffs for episodes of care. If we can get that work ongoing in a group of people who are dedicated to designing better tariffs, we will be able to improve price competition by designing the tariff correctly while not striving to be competitive on price alone.
Lord Davies of Stamford
I am very grateful to the noble Baroness for giving way. I made clear in my remarks that I believe one should start by specifying quality—that would include her point about best practice—and then allow the market to bid against that. Where potential suppliers, whether NHS or otherwise, can come in below the existing price—call it the tariff price or what you will—that will be a spur to everybody else to consider whether they can deliver that quality—I stress “that quality”—better, more effectively and more cheaply. That mechanism will be totally absent in the National Health Service if the Bill is not changed in the way that I have suggested or something equivalent.
Baroness Murphy
I take the noble Lord’s point. I think it is possible to introduce the mechanisms that he would like to see through the existing mechanisms in the Bill on tariff design. Those mechanisms would also address the points made by the noble Lord, Lord Butler, about the need to develop an additional payment for certain kinds of innovation tariff. The possibilities for designing tariffs are wide. We do not need to be rigid about this. I do not know how much needs to be written on the face of the Bill. It seems to me that we need to get that separate in our minds from the actual price setting which is more the role of the independent regulator, having got the design of the tariff correct. Therefore, I would like to see Monitor retain its role as a price setting regulator but I wholeheartedly agree that a lot of creative work needs to be done on the tariff to get it right for integrated care packages and proper best practice design.
Health and Social Care Bill
Baroness Murphy Excerpts(13 years, 6 months ago)
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Baroness Thornton
My Lords, I promise that this will be a very much shorter speech. We now turn to the second group, which concerns Monitor’s function as a licensing provider—a part of the suite of amendments that we have put down about reconfiguring Monitor.
The Bill extends the concept of financial regulation to non-financial trusts, and we can see the logic in this. For consistency, however, we argue that all providers of services to the NHS—not just foundation trusts—should have to meet requirements around their financial position and have this subject to oversight, as well as the obvious fit and proper test that they would have to go through.
We can see the argument for a robust evaluation, for example, of capital structures, which certainly would have been helpful in the case of Southern Cross. The regulator should be allowed to make authorisation subject to this kind of probity test—something like a fit and proper persons test. For us, the key aspects of the licensing regime should be determined by the Secretary of State, not by the regulator. The job of the regulator in our view is to operate the system, not to define it. I would invite the Minister to say whether he agrees with that analysis.
With foundation trusts we set out that Monitor shall use the licence to ensure that information flows to the regulator to enable it to have effective oversight and to intervene if necessary. The licence has to extend this to other sorts of providers which may be reluctant to supply information or submit to the idea of intervention. They may claim commercial confidentiality. The Bill resolves this problem, as far as we can see, by simply having no oversight—in other words, the “nothing to do with us, guv” approach to regulation. We believe that the public would not accept this. The Mid Staffs example, where Monitor came into much criticism, or the Southern Cross example might be instructive here.
Baroness Murphy
I am sorry to interrupt. The situation at Mid Staffs arose following the approval of the Department of Health and the Healthcare Commission. It was passed to Monitor as a fit and proper hospital. The scandal emerged only three weeks after it was approved by Monitor.
Health and Social Care Bill
Baroness Murphy Excerpts(13 years, 6 months ago)
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Lord Hunt of Kings Heath
My Lords, I have a number of amendments in this group which concern the duty of the Secretary of State to keep health service functions under review. This is an important provision. I note that on what will probably be the last day in Committee, we have Amendment 354, which relates to a requirement on the Secretary of State to publish a report which can then be debated by Parliament. Although it is not grouped with this amendment, it is highly relevant to it.
It would be helpful to know from the Minister just how these matters are going to be monitored and how adjustments can be made in the light of experience. As my noble friend Lord Warner suggested, although we are not going to be allowed to see the risk register—I am very doubtful that we will see it before the Bill has passed through your Lordships' House—we know that considerable risks will come with these changes. The noble Baroness, Lady Cumberlege, spelled out some of the key issues that we face. The last thing that the health service needs is a massive reorganisation. Clearly, there are risks and it is right that there should be a regular review by the Secretary of State.
It is also right that the Secretary of State, when reviewing the operation of the changes, reviews all parts of it. I am extremely puzzled by Clause 49 concerning the duty to keep under review. The Bill sets out the bodies to be reviewed. They are the NHS Commissioning Board, Monitor, the Care Quality Commission, the National Institute for Health and Clinical Excellence, the Health and Social Care Information Centre and special health authorities. There is no mention of the plethora of bodies that will exist in the new system. There is no mention of clinical senates, the local field forces of the NHS Commissioning Board or health and well-being boards. Quite remarkably, there is nothing about clinical commissioning groups. Perhaps the noble Earl could tell me why the effectiveness of the CCGs is not to be kept under review?
Perhaps I have misread the Bill and this will be done in some other way. But I find it remarkable that this Bill is built around GPs and clinical commissioning groups, which are untried and untested, yet they are not to be kept under review. Looking at the architecture of this Bill, one begins to see very tight control of most of the health service but when it comes to clinical commissioning groups, issues of corporate governance, conflicts of interest or any of the other matters, it is incredibly light touch. It is as if we are to believe that, somehow, this part of the reforms is believed by the Secretary of State to be so remarkably able to carry out its duties that very little monitoring, performance management or review is to be undertaken. I would be grateful to know why clinical commissioning groups in particular have been left out of this list.
Amendment 243A concerns the annual report. In Clause 50 we see a requirement on the Secretary of State to publish an annual report on the performance of the whole service in England, which must be laid before Parliament. That, of course, is welcome. But my amendment asks that the report should include a statement on progress towards reducing relevant inequalities, on integration of services, on waiting time performance, and on health outcome performance. No doubt the noble Earl will argue that it is a list, and that the Secretary of State’s annual report is bound to cover these matters.
However, we are in new territory when it comes to specifying matters in the Bill. We are told that the Secretary of State is stepping back from involvement in the National Health Service, and that we should not worry about that, because there will be a mandate, and a constitution. All will be well. Those of us with some experience in these matters are rather doubtful as to whether that is sufficient in terms of accountability. In that context, it is right for Parliament to set out some details which we would expect the Secretary of State to report annually. Of course, there may well be other matters which one would wish the Secretary of State to report on, but my four areas cover some of the main points.
Amendment 245B relates to the intervention orders under the 2006 Act. I would be grateful if the noble Earl would confirm whether those intervention orders apply to the NHS Commissioning Board and clinical commissioning groups. If they do not, perhaps he could explain why not?
Amendment 245C deals with liabilities and the Secretary of State’s responsibility in relation to NHS organisations. Again, could the Minister confirm whether this duty applies to the NHS Commissioning Board and to clinical commissioning groups?
Amendment 245ZA relates to the general power of the Secretary of State. In page 289, line 30, the Government seek to dissipate the general power of the Secretary of State, as is currently set out in Section 2 of the 2006 Act. I realise that this takes us back to the crucial debate we had on day 1 about the powers and duties of the Secretary of State. The Explanatory Note which relates to this says that the reason for changing the wording is because there is no longer a duty on the Secretary of State to provide services. Given that those matters have been, in a sense, put to one side, is this part of the package that is being looked at, because it does relate to the general powers of the Secretary of State?
My noble friend Lord Warner made some very apposite points which I certainly support, and I was very interested in the remarks of the noble Baroness, Lady Cumberlege. I had been agonising about her amendments, and she has very helpfully clarified a point for all of us. She has really put her finger on it. I am disappointed that she did not take part in our debate at our last sitting ,when we discussed the complexity of the new arrangements.
We were promised a streamlined approach. What we have got instead is a highly complex set of arrangements. The NHS Confederation has expressed its concern about their complexity. I therefore like the amendment of the noble Baroness, Lady Cumberlege, that asks the Government to try to clarify for us who on earth is responsible for what in the new system.
When it comes to the key issues of the reconfiguration of specialist services and of funding, someone out there is going to have to hold the reins. Some agency or body is going to have to sort the problems out. It ain’t going to be the clinical commissioning groups. They are too small and they will not be able to do it, so someone else will have to. Is it going to be the clinical senates, or are we going to have to rely on the local government health and well-being boards, or will it actually be the local offices of the NHS Commissioning Board? I know that it will be the local offices of the NHS Commissioning Board. If that is so, we come back to the fact that that is patently going to be where the power is, and surely they ought to be made accountable. That is why I had an amendment down on our last day in Committee to turn them into statutory bodies. I detected a modicum of sympathy around the Committee, but not much more than that. However, the noble Baroness, Lady Cumberlege, as a distinguished former regional health authority chairman, knows that when we had the RHAs it was they that, in the end, had to intervene and sort problems out. There needs to be some sort of agency to do that in the future, and I think we should be told.
Baroness Murphy
My Lords, I had not intended to intervene but I have been stimulated to do so by the noble Lord, Lord Hunt of Kings Heath. The model being described of the Commissioning Board and its regional offices—the outposts—is very similar to the model that functions rather well for universities. There is the Higher Education Funding Council for England, which is centralised but also corporate with all its regional offices. The vice-chancellors, who you might say are the chief executives of the local organisations, relate directly to HEFCE. However, the regional executive officers are there to act as a moral support and a conduit. They do not necessarily sort out problems, but at least they are aware of them and know which areas the central body ought to be looking at. That is not so different from the way the regional officers from the Department of Health worked during the time of the district health authorities, between 1983 and 1990. If it is well done, and it has certainly functioned well for the duration of HEFCE, then it seems to me that it is a model which can be built on and developed. Is not that the way the problems the noble Lord is talking about will be resolved?
Lord Hunt of Kings Heath
I am grateful to the noble Baroness for her helpful intervention and I fully accept what she says. I want to make two points. First, we need an acknowledgment by the Government that there is going to be a kind of intermediate tier that, in the end, they can turn to when there are problems—if CCGs cannot work out a strategic approach or if reconfiguration is not taking place, as well as all the things that arise in the health service generally. My second argument is that I believe the health service is somewhat different from HEFCE in that it touches everybody, and the kind of issues that this intermediate tier will intervene on are likely to concern the public much more. There is then a case for making the intermediate tier a statutory body. Essentially there are two points here. I certainly agree with the noble Baroness about the importance of a helpful enabling intermediate tier which occasionally needs to intervene.
Baroness Murphy
My Lords, I have added my name to the amendment because we are considering a Bill under which we are trying to improve the efficiency, effectiveness, productivity and quality of the NHS. Yet we know that that is completely impossible without improving the social care system.
When I first picked up a copy of the Bill from the Printed Paper Office and read it through, I thought that there must be a third part that would address social care. I therefore rang up the department and spoke to the relevant David—they are all called David—and asked, “Where is it, David? Where are the social care bits that should go with it to make it a Health and Social Care Bill?”. He just said, “Oh, that comes later”. The reality is that many medical specialties simply cannot function effectively without social care services. Those specialities include general practice and my own in geriatric psychiatry. Much of that work involves people with long-term conditions, mental health problems, learning disabilities, all care of the elderly, all primary care and community services. I spent some years of my life trying to transfer money—rather successfully in Lewisham—out of the NHS and into social care, in order to be able to perform my job.
We are not getting the best use of the specialities in the National Health Service for wide tracts of the population simply because we have inadequate domestic personal care, inadequate assessments under social care, inadequate provision of support for carers and those vital bits that make real life work. We know that 40 per cent of the increase in demand for NHS services is entirely dependent on the change in the demographic over the past 20 years. We know from the predictions of McKinsey and others that that increase will continue unless we do something about it.
I used to do a lot of work in the Italian health service, where social care, because it has been so dependent on church organisations, is not organised in the same way that we are. The Italians began to be seriously worried, and they still are, because of the horrendous bed-blocking and poor health services for older people. I hate the term bed-blocking; it really means an inappropriate service to an older person. Who cares whether the bed is blocked? I personally did not care about that as regards my patients. The important thing is that the patients were not getting the appropriate services they needed in the community.
Unless we get a government response on how social care is to be funded in the community and in residential and nursing care that is doable, feasible and affordable, we will not make much progress in the health service because we will be constantly coming back to this problem. It is for this reason that I have added my name to the amendment. I do not know if it is the right amendment. I saw it as a way of kicking the Government a bit further to get a move on about the social care response. The Bill will not work for the NHS of the future unless we have an appropriate social care service response.
Lord Turnberg
My Lords, there is little doubt that one of the key elements in the delivery of a system of care which improves on what we have now—and we certainly need to improve the current position—is the need to integrate care between the NHS and social care. It is in that light that I have found the Nuffield Trust report, Towards Integrated Care in Trafford, which I am sure that many noble Lords have read, so helpful. A number of things of value come out of the report. First, it needs local buy-in, the involvement of clinicians, managers, patients, local authorities and the public. It also needs good data-sharing, good leadership and time. It does not happen overnight. It took them two years, despite having all the enthusiasm and conditions in the area, for it to get off the ground.
Of course, all that needs the will of those who are paying for the services—the commissioners—if they are to pay for integrated care across the divide, which has proved so difficult. All those local changes depend on funding. If we believe that improvements in this area are critical—and I am sure we do—surely it should find a stronger place in the Bill, in particular in the Secretary of State’s annual report. Amendment 244 states that we should insert the words,
“and its integrated working with adult social care services”,
in the report. That seems to me entirely appropriate and I hope that the noble Earl will consider that as a useful amendment to take forward.