Health and Social Care Bill

Baroness Murphy Excerpts

Wednesday 30th November 2011 Lords Chamber

[Baroness Murphy]

We have been urged to hurry up today; we have all heard of speed dating so this is going to be speed debating.

When I first read the amendment of the noble Baroness, Lady Emerton, I did not agree with it on the basis that if you legislate for a minimum number of registered people or nurses, there is a tendency for people to adopt the lower level. I have looked at international evidence and I know that 10 years ago in California they mandated by specific legislation a minimum qualified nurse staffing level in surgical wards in intensive care. It has had a dramatic effect not only on the wards in those hospitals but on other hospitals in California where the standards have risen, mortality rates have fallen. There has been a very large study of 8,000 patients in California, and the other two comparative sites were in Pennsylvania and New Jersey; there is no doubt whatever that there has been a dramatic change and a very positive change, and most hospitals staff above the minimum. Those fears have not been founded.

The Dr Foster document that came out this week clearly showed the relationship that we know about internationally between poor staffing levels on wards for older people and mortality rates and care levels, and its relation to the morale of staff who work on those wards. I am, almost reluctantly, driven to accept the wisdom of the amendment of the noble Baroness, Lady Emerton, which I support.

[Lord Walton of Detchant]

My Lords, I, too, wish to support the principles underlying the amendment proposed by my noble friend Lady Emerton. However, one concern I have particularly relates to paragraph (4) of Amendment 139. Concerns have been expressed in many quarters over the past two years about the variable quality of the health care assistants employed in many of our hospitals. Some of them are absolutely excellent, but some of them—particularly in certain care homes—have had very little training and there is no process at the moment by which such care assistants can be registered; nor is there any formal requirement of a specific training or educational programme for these individuals. The time is approaching when there must be minimum standards of education and training laid down for such people. I trust that, in relation to what is said in paragraph (4), we can have an assurance from the Minister that this is an issue that the Government will consider.

As the noble Lord, Lord Alderdice, said, the same problems arise in relation to psychologists. Clinical psychologists have a formal training programme but not all psychotherapists, who do not hold a medical qualification—they do not have any such programme, although many of them make an outstanding contribution. The regulation of psychologists has been discussed for several years but little progress has been made. Can the Minister tell us whether that is still under consideration?

My final point relates to the fact that the regulation and registration of many of the other professions working in the NHS, in hospitals and the community—occupational therapists, physiotherapists and others—of course comes under the Health Professions Council. This is a Health and Social Care Bill. Only two years ago, a statutory authority for the registration and regulation of social workers was created, the General Social Care Council, and that body is in existence. I want to ask the Minister: is it proposed, as I believe is the case, that the Government are going to bring that body within the ambit of the Health Professions Council, or are they going to make it subject to the oversight of the council for regulatory excellence? That is a matter upon which the Committee needs to be reassured.

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[Baroness Jolly]

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

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

[Baroness Murphy]

My Lords, is not the whole point of the formation of clinical commissioning groups that it should be a local solution that fits the configuration of a particular urban or rural area and that it should be decided locally with the Commissioning Board what the best fit is? I take the point made by the noble Lord, Lord Warner, that size is an important issue as to whether one is favouring individual GP commissioning of a personal family health service or whether one is going for the much bigger purchasing of population services. Surely the big difference with this Bill is that PCTs had no real central support for developing commissioning in the way that clinical commissioning groups will have very explicit support from the Commissioning Board. I can see that the noble Lord, Lord Warner, is shaking his head, but I think that makes a huge difference because we have seen the concentration of emphasis by the Department of Health on the acute sector, and to get a way towards having much greater leadership from the centre in developing commissioning seems to me a very positive thing.

The noble Lord, Lord Hunt of Kings Heath, asks why is it only GPs—why do all professionals not get involved? All local primary care clinical professionals should have an input to the groups’ deliberations, but surely the obvious answer is that it is GPs who specifically use resources for their patients from secondary care. They actually determine the costs in secondary care through their use of secondary care hospitals; they intervene to stop secondary care—they have the possibility of doing it through provision of primary care; and they have enormous control over the funding, potentially, of the hospital system. It seems absolutely obvious that it should be GPs. The input of local dental practitioners, opticians and pharmacists is vital but they do not play the same financial role and that is why it seems to me it has to be GPs.

We cannot in this Chamber fix this Bill to lay down rules for the development of clinical commissioning groups. It would be absurd. The Commissioning Board and local people who are going to contribute to it have to make that decision. They have to be the ones to make it work. If they need to come together to commission services for rare conditions, that is fine.

[Lord Warner]

There are very few things in health policy on which I disagree with the noble Baroness. However, this House needs to look at what the evidence base from GP fundholding and practice-based commissioning shows us. The evidence base shows that GPs did quite well in commissioning some services. However, their actual impact on reshaping services out of acute hospitals was virtually zero. There have been some very good evaluations of GP fundholding and some less good evidence from practice-based commissioning. These showed that GPs got very close to their patients, understood what they wanted and reshaped some services. The transaction costs were seriously high in GP fundholding, which demonstrated that doing good commissioning requires a lot of data collection and analysis, which does not come cheap.

We need to understand the issue of muscle. People like the Nuffield Trust have done some good work on this. At the end of the day, the GP commissioners we have had so far were not strong enough and did not have big enough budgets or the analytical capabilities to call the shots with acute hospitals. That is the bottom line. I strongly support GP commissioning in principle. However, we are in danger of repeating the mistakes of the past and not learning from those experiences.

[Baroness Murphy]

I do not disagree with the noble Lord, Lord Warner. It is absolutely true that there is a balance and that size is important. Nevertheless, at the moment we are going back to a size that is approximately the same as the old district health authorities that we had between 1983 and 1992. They survived for quite a long time—

[Lord Patel]

Too small.

[Baroness Murphy]

I agree; they were too small. However, if you want to get that balance and that advantage of the clinical commissioning, it seems that, with a different sort of central support, it would be possible. With some local responses and reconfiguring of commissioning groups and the old PCTs, it can work. I do not feel quite as depressed about the clinical commissioning groups as other people.

[Lord Greaves]

I was going to make merely a brief intervention on this group on the question of coterminosity. However, this has extended into a much more important debate, which is coming down to some very fundamental issues in relation to clinical commissioning groups. The noble Lord, Lord Hunt, is to be congratulated on introducing this debate because it is absolutely crucial. We have to have it some time—if we are having it on this amendment, fine.

The noble Lord said in passing that the same issues keep coming round at different stages of the Bill. On this Bill the same issues keep coming round in different sessions in Committee. This is the second time we have talked about coterminosity. I think previously it was on an amendment from his colleague, the noble Baroness, Lady Thornton. I will not repeat everything that I said then, except to say that there has to be some flexibility. There are very good arguments for saying that CCGs should not cross local social care authority boundaries. However, the point I made previously was that in very large counties, like Lancashire or North Yorkshire or, if I think about the south of England—which I force myself to do occasionally—Hampshire and Kent perhaps, at the very least they ought to have the ability to not have a very large CCG forced on them that covers a whole county, which would be very remote indeed.

We have heard about Cornwall and Devon from my noble friend. We have heard about Birmingham. I am going to say a few things about Lancashire. I am very interested to know whether there are any noble Lords in Committee today who are very clear about what is happening in relation to setting up CCGs in their own areas, how it will work and what will come out of it. Asking colleagues on the Liberal Democrat Benches while this debate has been going on, nobody seems to know; chaos and confusion seem to be the impression. I am not saying that it is chaos and confusion, but as far as ordinary members of the public are concerned, let alone other people like myself who try to take a more direct interest, it is not very clear at all what is happening, or if what is happening is clear, it is not clear why and how it is happening. This comes back to the points raised by the noble Lord, Lord Hunt, about the fact that there are very clear pressures from above that are moulding the system that is going to take place. I very much take the point from the noble Baroness, Lady Murphy, that there ought to be local discretion and local decision-making here. However, that is not happening. People are being forced into decisions, and that goes against what she was saying.

Let me tell you about where I live, in east Lancashire. At the moment there are two PCTs. There is a Blackburn with Darwen PCT, because Blackburn with Darwen escaped from Lancashire County Council at some stage in the past and became a small unitary authority, so it has its own PCT. The other five districts, which are part of Lancashire County Council, have an East Lancashire PCT which, as the noble Baroness pointed out, had been formed by amalgamations over the years. There is one East Lancashire Hospitals NHS Trust that effectively covers the two PCTs, so there are two PCTs and one hospital trust at the moment. The PCTs have been combined with the rest of Lancashire into a county-wide cluster, but the East Lancashire PCT still exists.

I have recently been given a whole set of minutes and agenda papers, a great big thick file, from a relatively recent meeting—in the last few weeks—of the East Lancashire PCT. Although they find it increasingly difficult to keep going because all their chief officers have gone, there are still functions taking place at the PCT level; there are functions taking place at the cluster level, and for somebody like me who takes an interest in but is not directly involved in the health service nowadays—I used to be on a district health authority, an area health authority and a community health council, but am not now—I find it very difficult to find out where the decision-making is taking place.

Back when CCGs came along, the original idea was that they would be quite small, as the noble Lord, Lord Mawhinney, quite rightly said. They would be groups of GP practices within a recognisably local area. Whether that was a good or a bad idea—and in many ways it was an attractive idea—that has clearly now gone by the wayside. People were told that the minimum that you could get away with in east Lancashire was district-wide—that is the lower tier—so people were getting together and forming proto-CCGs at the district level.

In terms of population, Rossendale is about 70,000 and Pendle is probably the biggest of the five at about 90,000; it is that sort of range. The doctors who were getting together and working on these CCGs—and certainly in both Burnley and Pendle they were working closely with the district authorities to share back-room services and so on when they were set up—were told that this will not do any more. I am not at all clear who told them, but it has been made absolutely clear that there now has to be a new CCG covering the five districts, an area of 450,000 people. It is a very significantly different proposition, however you define significant, from groups of local practices, where the whole thing started off.

Blackburn and Darwen, because it is a unitary authority, is insisting that as far it is concerned, it will have its own CCG, which will be coterminous with the relatively small unitary authority, which has a population of around 140,000.

Health and Social Care Bill

Baroness Murphy Excerpts

Monday 28th November 2011 Lords Chamber

[Baroness Pitkeathley]

My Lords, I agree with my noble friend Lord Harris that this is an extremely important group of amendments. I rise very briefly to support those emphasising the significance of patient involvement and, in particular, Amendment 191 in the names of the noble Lords, Lord Patel and Lord Warner, which changes “promote” to “pay regard to”.

There is no doubt that we have made progress in recent years in addressing patient interest and hearing the voice of patients and carers, and we should acknowledge that. We still have a long way to go, however. When you work with groups of patients and carers, or with individuals, you always get the same reaction. They say something like, “I feel consulted out. I have been to every meeting, I’ve talked to every clinician, I’ve given my opinion endlessly, I sometimes think they add the words ‘patient’ and ‘carer’ to every paragraph of every document that comes out of any commissioner, but what I do not know is what happens as a result of my involvement”. This is what we must bear in mind. Changing the wording in that amendment would strengthen the ability of the patient, the user and the carer to ensure that something happens as a result of their involvement. That is what we must concentrate on. We should never forget that the involvement of patients is not a tick-box exercise; it is there to ensure we shape services around the needs of patients, not the convenience of commissioners.

[Baroness Murphy]

My Lords, I rise to add a number of comments to one or two of these amendments. I have my name on Amendment 196, also in the name of the noble Lord, Lord Patel, which is about making choices real for patients. My experience is exactly the same as his—that patients have actually benefited very little from the wide range of choices they could have if they understood the information about accessibility, about the sort of provider, about the range of other services that that provider might have and about the performance of that provider. If you are skilled you can use information available on the internet now to find details on the various providers you have been offered under the “Choose and Book” system used by general practitioners. However, the vast majority of patients simply do not have the skill to negotiate the choices. Making that choice a reality is therefore vital.

I also support the amendments proposing that patients, wherever possible, should carry their own records. To cheer up my noble friend Lord Patel, I say that he will be reassured to know that most maternity units now do have the patient carrying their own records, and that has proved to be of great benefit because they hang on to them when the NHS loses them. It has worked very well in maternity services and I certainly support it. There should be more of that in mental health services, where there has been too much holding on to information—not always accurate information—in patients’ records. It would be much better if the patient held on to those data and was able to carry a great deal of the data with them. Of course, it would be much better if people had access to information on simple records but they do not because we do not have electronic patient records in every place. The more information the patient can carry with them, the better it is for those who are going to encounter them in the future; it is also better for the patient to have accurate data about their condition.

I come now to the question of whom the clinical commissioning groups should consult in the way of secondary providers when commissioning care. I do not support the amendment of the noble Baroness, Lady Finlay, which suggests that the specialist on the clinical commissioning group should be local rather than a person from another area. No doubt when you have too much conflict of interest, specialists on a clinical commissioning board, and a PCT which engages with the local providers and takes account of their desires, local institutions become favoured. We have seen that many times. It is simply the institution the provider belongs to. That is when you are making a decision, so it is very important that the decisions should be made by somebody who can input and hold in their heads all the necessary secondary specialist information. The decision should nevertheless not be made by a local person with an interest in secondary care.

However, when it comes to gathering local information, local institutions and specialists in those institutions should be consulted about what is possible in the area, what has been done before and what could be thought about in the future. That is where primary care trusts in some parts of the country so often, unfortunately, have not appreciated what they could benefit from locally in terms of academic health partnerships and how they could use their academic health science groups to assist them with the commissioning function. They need to take account of what is available locally, and need to understand and get help and consult with local academic institutions and providers, but when the decision is made it should be made by individuals who do not have a conflict of interest locally.

[Lord Marks of Henley-on-Thames]

My Lords, I shall speak briefly to Amendments 193 and 197, amendments to proposed new Sections 14T, on promotion of involvement of each patient, and 14U on the duty as to patient choice.

The Bill and our debates on it have been characterised by a recognition of the importance of patient involvement and patient choice, and a great deal has been said about those two things in this debate. It is important that we recognise and welcome the new Sections 14T and 14U to the NHS Act, which will enshrine those in statute, but it is also important to note that this is not an entirely new idea. In many areas of medical care, patient choice has been with us for some time. Patients currently have a choice of GP practice; they have a choice of hospital; they have a choice of the GP whom they wish to see within a practice; and they have a right to be informed.

However, there is in practice all too often a gap between the theory and reality. The reality is that although people may theoretically have the choice, they do not know that they have the choice. They do not know despite the excellent section on choice on the NHS website and the literature that is put out about choice at the national level. The amendments are designed to impose on clinical commissioning groups at the local level the duty to take steps to inform patients about their right to be involved and their right to make choices. They state, in certain terms, that each group,

“must take steps to inform patients, their carers and their representatives of the right to be involved in such decisions”,

and, in the other cases,

“to make such choices”.

They are simple amendments, and it may be a matter of regret that they are necessary, but simply having the right in the statute book will not do unless we can also ensure that patients are informed of those rights.

Health and Social Care Bill

Baroness Murphy Excerpts

Tuesday 22nd November 2011 Lords Chamber

[Baroness Murphy]

My Lords, I have added my name to the amendments, many of which are from the noble Lord, Lord Patel, because I, too, am worried that the Secretary of State may feel obliged to include in the mandate every last possible objective and priority that the department can think of. Let us remember that it will probably be the department’s civil servants that write the mandate.

For decades, the NHS has prescribed objective-setting as a sort of all-purpose remedy for NHS motivation. Rather than dispensing objectives as a benign, over-the-counter treatment for the NHS Commissioning Board, the Secretary of State needs to conceptualise his objectives in the mandate as prescription-strength medication that requires careful dosing, consideration of harmful side-effects and close supervision.

Given the impact that objective-setting has on activity in management, I should like to ask for a more self-critical and self-denying approach to the creation of the mandate than has hitherto been the case in NHS priority-setting—hence the rather arbitrary notion that we might have five “musts” and five “maybes”. I would like the Secretary of State to restrict his mandate to one side of A4, but I can see a departmental machine creating a mandate which reflects all the recent ministerial enthusiasms—for example, a waiting list here and a choice or two there—and which during its creation becomes a sizeable novel of the unattainable but desirable, or, alternatively, the attainable but unimportant, which were the characteristics of NHS priority lists in the past.

The mandate should answer the question: where do we want the NHS to go in the next five years, and specifically in the next year, and what resources are we going to dedicate to get there? We should then translate that into something specific that is measurable, achievable and realistic, with time for things that one wants to see for all objectives. If one has more than just a handful of objectives, I suspect that only two or three will ever get done. I therefore wonder how we can be reassured that the Secretary of State will produce a working document of realistic goals.

[Lord Hunt of Kings Heath]

My Lords, this is one of the most important groups of amendments that we are going to discuss, because, in a sense, it sets the whole relationship between the Secretary of State and the NHS Commissioning Board.

I have considerable sympathy with my noble friend Lord Warner’s Amendment 96, which seeks to avoid the Secretary of State essentially putting in a huge shopping list of demands by limiting the mandate to a maximum of five obligatory and five desirable functions.

I come back to the recent interventions by the Government in the affairs of the National Health Service. The most recent have been around waiting times, both in terms of what happens to patients who have passed the 18-week target and of the activities of some primary care trusts, which, in order to contain their expenditure, have set arbitrary waits for patients even though they are ultimately treated within the 18-week limit. I have said to the Minister that I have no complaint about the intervention of Secretary of State, which I thought was quite proper, but it is very difficult to see how this will happen under the new system. We have yet to receive a satisfactory answer to it. What in the new system will suddenly obviate the need for the Secretary of State to make such interventions?

The question then comes to the mandate. Is it, as my noble friend Lord Warner hopes, a high-level document which will focus on a very limited number of objectives, or will it be a shopping list? The noble Baroness, Lady Murphy, expressed it very well as in a sense legitimising “recent ministerial enthusiasms”. We were rather given the lie to this when we debated this matter last week, because the Minister suggested that if there was an issue such as primary care trusts lengthening waiting in order to meet the budget, the mandate could be used to prevent it. Indeed, that is the risk—that the Secretary of State will, quite properly, come under pressure to intervene in the health service. The Bill weakens the legal powers of the Secretary of State to do so. The risk is clearly that the mandate will be used instead, and it would be used retrospectively if it does not satisfy the intervention power. I believe that there is great reservation among noble Lords as to whether the intervention power is sufficient, because there has basically to be a failure by the NHS Commissioning Board to carry out the objective. If it is not sufficient for an intervention to take place during the year, my goodness me the shopping list will grow when the new mandate is written. So, there are some very important issues on which we have yet to receive any answer from the Minister.

There are, however, a number of other important amendments in this group. Perhaps I may ask the Minister to clarify three points. The first point is how long the mandate will last. My assumption, from what Ministers have said and what is in the Bill, is that it will last for a year. The Minister will be aware that the chairman of the NHS Commissioning Board expressed a wish to the Health Select Committee, which was vetting his appointment, that the mandate should last for three years. I wonder if the Minister could clear up that matter for your Lordships.

Will the Minister also clarify the intention behind the provision in proposed new Section 223D(7)(b), on page 27, which allows changes to total capital and revenue resource use after parliamentary general election takes place? I take it that this is simply to allow for a change of Government but I would be grateful if he could spell that out.

However, my substantive amendment, Amendment 100A, is concerned with parliamentary scrutiny. In Clause 20, proposed new Section 13A states:

“Before the start of each financial year, the Secretary of State must publish and lay before Parliament a document to be known as ‘the mandate’”.

Surely Parliament is entitled to a little more involvement than merely receiving the mandate as a fait accompli. My noble friend Lord Warner has already pushed the Government in their amendment to give Parliament information about any reservations the board may have expressed about meeting the mandate. I would certainly support that in the interests of transparency. There is also, in Amendment 100, reference to the requirement on the Secretary of State to consult the board, HealthWatch England and other persons, with the results of any consultation on the mandate to be published. That too seems reasonable.

However, I wonder if we ought not to go further in terms of parliamentary scrutiny. If we take Ministers at face value—and the Secretary of State has expressed a wish to step back from day-to-day involvement in the National Health Service—it is clear that the mandate assumes special importance. Why is Parliament not being given a proper opportunity to scrutinise the mandate before the Secretary of State finally sets it for the NHS Commissioning Board? If the Secretary of State is really going to tell Members of Parliament in particular that he is not going to intervene in a particular question because he considers that now to be the responsibility of the NHS Commissioning Board, in accordance with the mandate that the Secretary of State has set, then I think that Parliament should be entitled to some involvement in scrutiny of that mandate. My Amendment 100A suggests how that might be done. It is built on the system of scrutiny for national policy statements.

The House will be aware that the Planning Act 2008 introduced a new planning system for applications to build nationally significant infrastructure projects. They cover applications for major energy generation, railways, ports, roads, airports, water and hazardous waste infrastructure. Under this system, national policy on national infrastructure is set out in a series of national policy statements. Under Section 92 of the Planning Act 2008, each proposal for a national policy statement must be laid before Parliament. In so doing, the Secretary of State specifies a relevant period for parliamentary scrutiny.

If during that scrutiny period either House passes a resolution with regard to the proposal, or if a committee of either House makes recommendations regarding the proposal, the Secretary of State must lay before Parliament a Statement setting out his response to the resolution or recommendations. Following completion of parliamentary scrutiny, the Secretary of State may formally designate the proposal as a national policy statement. The final national policy statement is also laid before Parliament.

In the House of Lords, national policy statements are normally debated in Grand Committee, but that does not restrict the freedom of committees of the House or individual Members to make use of the statutory procedures. In the event of a Motion for resolution being tabled, the usual channels have undertaken to provide time for a debate in the Chamber within the scrutiny period.

When I was energy Minister, I had to bring through four energy policy statements. We had three four-hour debates in Grand Committee. They were very thorough. The Government took note of what took place in those debates. In the end, it is up to the Government to make the statement because it is a matter for the Executive. I do not challenge that the mandate, which I regard as important as a national policy statement, is ultimately for Ministers to make. It is rightfully an Executive responsibility. However, the process that I am suggesting in my Amendment 100A would allow Parliament to have much more involvement in the scrutiny. It would allow Ministers to take account of that and then make their minds up in relation to the mandate.

If the Government are determined to hand over such responsibility to a quango—and I remind the House that in this Bill the National Health Service Commissioning Board is given concurrent powers with the Secretary of State in relation to the crucial responsibility in Clause 1—there has to be a great parliamentary scrutiny of that mandate.

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[Baroness Murphy]

My Lords, I recognise the problem that has been described so ably by the noble Lord, Lord Warner, but I wonder whether he is not being a little pessimistic about the possibilities of the architecture providing the right framework to do what he wants to do. If we look at the role of the economic regulator, it must, as it has under the more restricted role of Monitor, include a very serious analysis of how financial management is happening in provider trusts, or foundation trusts, and has led to the growth of the service level management system, which for the first time has given people an idea about which services are making money, which are losing money, which are loss leaders and so on.

These are terrible terms when one is talking about human services and I do not like them. Nevertheless they are business terms and we understand what they mean in this context. They have also led to a much more fundamental understanding of the capital assets of each foundation trust. It has led to better use of capital assets at the moment, but that is largely because at a time of massive growth people do not look to make best use of their capital assets. At a time when money is shrinking or staying the same, as it will be over possibly the next 10 years or more, people will be looking to use their capital assets more effectively.

We must look to the economic regulator to encourage the sort of use of assets that we have so often wanted to encourage in the younger Monitor—to use those assets more effectively and to ensure that we can look across the totality of both community and acute hospital providers at how entrants into the system are using their assets. That would be possible under the new Monitor. I am not sure that we should set up another body to do that although I can see it might have a short term job to make sure that everybody is using the same monitoring mechanisms and is putting in the same sort of systems of financial accounting. With the new architecture we should be able to do that through Monitor.

[Lord Warner]

My Lords, I should like to respond briefly to the noble Baroness. There is nothing in the amendment that would stop this information being given to Monitor. If people want to amend the amendment in terms of Monitor as the customer for it, I do not feel strongly about that. I have put it under the national Commissioning Board because one of the things it will be doing is, I suspect, giving guidance to clinical commissioning groups on the nature of contracts. One of the requirements that can be used to drive change in this area is contractual requirements on people in terms of the standardisation of accounts. I saw the national Commissioning Board as likely to be able to deliver through this independent panel—which can be as short lived as one wants—the kind of changes that we need.

I want to emphasise to the House that the financial situation in the NHS is serious and will get really serious over the next few years. We need to improve very rapidly the quality of the financial management accounting systems in the NHS. That is a separate issue from the assets and procurement issue, to which the noble Lord, Lord Owen, has very ably drawn attention, because it is another long-standing problem. The standardisation of management accounts is an urgent issue for the NHS in the brave new world that it is going into, particularly with the large increase in the number of new organisations that are going to start for the first time to handle big sums of money without much clarity about how they are supposed to account for it.

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[Baroness Finlay of Llandaff]

My Lords, I have several amendments in this group. Amendment 203A has been spoken to fully by noble friend Lady Hollins, who has supported other amendments in this group. Amendment 135C would require a biannual report by the board to the Secretary of State on what has been done to promote integration. The other amendments are all designed to promote collaboration, decrease duplication and bring together primary and secondary care and public health and the diagnostic services to have better diagnosis and management of disease.

Integrated working allows patients and their carers to benefit from good primary care provided by GPs and others in the team, to have help and support provided by those working in social care, and to access early referral, appropriate investigation and treatment as required from specialist services. Good integrated care needs to see the patients and their experience in the context of their lives, social support, relationships, cultural experience, gender and a range of other factors. Bringing together an integrated social and clinical approach should include holistic plans for diagnosis, treatment, rehabilitation, support and long-term follow-up.

In their report Teams without Walls, the Royal College of Physicians, the Royal College of General Practitioners and the Royal College of Paediatrics and Child Health highlighted the recommended use of patient pathways as the building blocks for services, with the right balance between prevention, early identification, assessment, intervention and, where necessary, long-term support. They also pointed out that this had implications for commissioners, providers and regulators of services. Multi-professional working with the patient at the centre of everything provides the opportunity for a wide range of professionals, including those outside an organisation, to monitor care delivery and challenge standards. This will help prevent trusts and professionals from becoming insular. Insular practices can result in negative cultures developing and poor standards becoming tolerated.

The clinical commissioning groups have quite a challenge facing them if they are really to commission and develop integrated as opposed to fragmented care. Much has been said on this already, and I will not repeat the points made by previous speakers. However, patient needs will be better met if we move to a tariff structure that better reflects clinical complexity. The Government’s response to the Future Forum report seems to recognise this, but the current tariff structure overcompensates for simpler conditions and consistently under-compensates for more complex and unpredictable areas of care. To encourage integrated working, consideration needs to be given to a system in which payments are received over a longer term and for the achievement of integration and good clinical outcomes. To do that, it will be crucial for Monitor and the Commissioning Board working closely with royal medical colleges and specialist societies to develop a tariff that will provide integrated care.

[Baroness Murphy]

My Lords, much has been said on this group of amendments and I will not delay the Committee too much. I have a great deal of sympathy with the plea of the noble Baroness, Lady Thornton, that we should know what integrated care is. We have had several descriptions around the House. We have within the Bill a duty to promote integrated care, so it is important that we have read into the account the Government’s thinking on what “integrated care” means. I think that I echo the noble Lord, Lord Ribeiro, in saying that.

I am surprised that my noble friend Lord Walton, who is not in his place at the moment, did not mention Mrs Smith of 66 Acacia Avenue, or we might have said Mr Chowdry of 66 Mafeking Avenue. What does sitting at home feel like to those patients who are in receipt of community care? How does it work out for them? Integration of primary and secondary care with social care provision is what it really should be about. I look to the Government to reassure me that that is what we are talking about.

We have to be aware that some barriers in the NHS will require this financial manipulation. On the one hand, there is a profound mistrust by acute providers of the competence of community-based and primary care workers. Sometimes that has been justifiable in the light of the historical deskilling of clinical care that occurs in primary care settings. On the other hand, there is an attitude bordering on paranoia from community and primary services staff about the predatory nature of what Enoch Powell referred to as the “voracious” acute hospital sector, which is entirely justified by their experience of being sucked in to the acute hospital, and especially true since payment by results came in, which has had a really negative effect on this problem. Then there is the wild card of GPs who can suddenly bring to a halt community-based care out of hours, if they feel like it, without any impact on their budget at all. Noble Lords who, like me, have spent a great deal of time putting in packages of care will understand how frustrating it can be when it suddenly comes to a halt and nobody has budgetary responsibility for it.

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[Baroness Williams of Crosby]

I listened very carefully to what the noble Baroness, Lady Murphy, said, and I broadly agree with it, with one slight exception. She said that she did not think that there were many examples around the world of particularly good integrated practice and then she mentioned that there had been considerably activity of this kind in some mental health trusts in the UK. I want to throw a slightly more cheerful note into what has been a slightly gloomy debate. As it happens, this morning, a Canadian doctor friend of mine brought to me the latest report of the Commonwealth of Massachusetts study on relationships between doctors and patients. It is a comparative study of 11 medical systems throughout the world. I shall not keep the Committee for long, but I will read a couple of the findings that date from November 2011. It was a major study of thousands of patients—more than 1,000 in Britain, a couple of thousand in the United States and so on—at the time that the report was put together at the end of 2009. I shall be very quick, but I think it is quite remarkable. In patient engagement in care management for chronic conditions, which is something we have been talking about a great deal when talking about integration, the country that comes out the best of the 11 is the United Kingdom. In shared decision-making with specialists, the first is Switzerland, the second—

[Baroness Murphy]

I am very well aware of the wonderfully heartening Commonwealth of Massachusetts report, but the point I was trying to make is that we are marvellous at health and social care integration in this country compared with many others. Having spent my life doing it, I am quite proud that we can say that we do it better than most. But my point is that if you want cost-effective purchasing of care systems that promote it, we cannot point to anywhere in the world where there are very good, efficient systems. Kaiser Permanente is a very restricted system for its employed clients in California. We do not have the systems that financially promote a drive towards those systems. It is not that we do not do it, but that we do it in spite of, not because of. However, the report is most heartening.

[Baroness Williams of Crosby]

I would not disagree with the noble Baroness on that issue. I agree with her, but I am trying to make a different point, which is that I think we have been left with, by sheer good fortune, if you like, a much better starting point for serious integration than many other health systems. It relates also to Amendment 203A, which was tabled by the noble Baronesses, Lady Hollins and Lady Finlay, about the role of competition, about which I am rather less confident than some others.

I shall mention two other findings from the report because it is a remarkable and impressive story. On the doctor/patient relationship, there was a question about how far patients felt that they had close relations with their doctors and the ability to speak to them and to discuss their cases with them. Once again, quite remarkably, the United Kingdom comes out second to Switzerland in the 11. To take a final and very surprising finding in this study, on medical, medication or lab test errors in the past two years, the figure for the United States was 22 per cent, for the Netherlands it was 20 per cent and for the United Kingdom it was 8 per cent. It is extraordinary that we so rarely blow our own trumpet in this country, and very occasionally, we should.

Health and Social Care Bill

Baroness Murphy Excerpts

Monday 14th November 2011 Lords Chamber

[Baroness Murphy]

My Lords, I must confess that when I first read about clinical senates, I thought, “This is a great solution”. But what is the question? The problem came home to me very much when visiting the New York mental health commissioning services and seeing the great difference in their approach. Mental health is commissioned by the public purse for a largely public service everywhere in the world, so it is a good way of looking at how people commission differently in different places. The big difference between New York’s system of commissioning mental health services and ours was that they had clinical specialists involved on a day-to-day basis who could never be second-guessed by the provider system. That is because they were recognised experts who usually had run a service themselves and were very respected nationally or locally. They were incorporated into the commissioning group. The same was true of public surgical services, public health services, and so on. That was very impressive.

Therefore, when I heard about clinical senates, I thought that this could be the way to provide that kind of serious expertise from a region to clinical commissioning groups. However, it does not seem to be developing quite that way. The noble Lord, Lord Hunt of Kings Heath, is very optimistic, with a slightly grandiose idea of what these clinical senates might do. I would love to share his optimism but I remember those dreadful regional medical advisory groups. I know that the noble Baroness, Lady Emerton, will remember them, because we dealt with the same clinical regional advisory group for the south-east Thames. They were dire; they were the lowest common denominator of time-serving BMA—No, I am going to be very careful now. I do not want to be too rude, but on the whole, they were not the edifying cutting edge of specialties.

[Lord Patel]

Psychiatry.

[Baroness Murphy]

Even the psychiatrists were not. I can remember this group of people being pretty darn useless. You would send up a proposal; they would look at it; they did not like it because it was not in their best interests as a specialty and they would send it back again. I can see that my colleague, the noble Baroness, Lady Emerton, agrees with my every word.

I am a little concerned about what these people are going to do. Will they provide cutting-edge, evidence-based expertise of the best kind to local commissioners? Will they be a talking shop? Will they be a regional medical advisory group?

[Lord Warner]

My Lords, I rise to reassure the noble Baroness, Lady Murphy, and restore her confidence in the Labour Benches on the subject of senates. If the Conservative side can have the Mawhinney-Howe dialogue, why should we not have the Hunt-Warner dialogue on senates?

I can well understand why people would like to be a senator. It sounds very grand. It would be good to put on your CV that you are a member of the senate of wherever—even if it is Birmingham. To some extent, I can understand why the Future Forum thought it would be a good idea to have senates. I can imagine it received a lot of representations from specialists in various parts of the country that perhaps these GP commissioners, as they were then known, were getting a little uppity and needed to be curbed a little and put in their place. Why, then, not give a little more space to the people who really know about these things—the specialists—and bring them together in senates? Yet, since 2006, thanks to the helpful report by Sir David Carter on specialist commissioning, we have gone a long way in putting in place a sensible way for dealing with regional specialties and, on top of that for very rarefied stuff, a national commissioning capability. That has not been around for long. It would not be a bad idea to try to keep some of that learning experience together as we move into this brave new world.

I do not have any problem with networks. Networks have been a proven success. They have done a lot of good and there is a lot to be said for trying to reinforce them, even to put some wording about them in the Bill. But I struggle with senates. We need a really good explanation of what they are out to do. The noble Baroness, Lady Murphy, put her finger right on the button: it is a very good solution but what is it a solution to? I hope we can have some enlightenment on that from the Minister.

Health and Social Care Bill

Baroness Murphy Excerpts

Monday 14th November 2011 Lords Chamber

[Baroness Murphy]

My Lords, this is a very large group of amendments and I take them in the spirit that they are mainly probing. One cannot help but be sympathetic to the intention to have public health expertise available to the Commissioning Board, as well as the patient’s view and all those other things. The professional point of view is vital.

I speak as someone who was the only NHS non-executive on the Monitor board for many years before I recently ended my term of office. I am also very sympathetic to the idea that there should be an external non-executive person on the board. Having said that, I think that the noble Baroness, Lady Jolly, and the noble Lord, Lord Hunt of Kings Heath, have mentioned that what we have here is a corporate board, not a representative committee, and a relatively small board. Therefore, it is vital that we do not put on the face of the Bill the number of people who we would like to see have an impact on this board. I look forward to hearing how the noble Earl responds on how we can address these concerns.

I strongly support the amendment of the noble Lord, Lord Hunt of Kings Heath, and the noble Baroness, Lady Thornton, about having a senior independent director on the board. I have seen how extraordinarily valuable that role can be in foundation trusts and, indeed, on the Monitor board. A little holding to account of the chairman by the non-executives through that senior independent director—a powerful second person on the non-executive front—gives the board great added strength. I support that amendment, although a deputy could well play that role. I certainly support the thrust and meaning of these amendments but I would not like to see them written into the Bill as they are.

[Baroness Cumberlege]

I would like to support the noble Baroness, Lady Murphy. It is really rather a mixed bag of amendments that we have before us. Clearly what is proposed in the Bill is that there should be 11 members on the NHS Commissioning Board. Perhaps the most wonderful Primate—I hope that Hansard will allow me to make the change—and the right reverend Prelate will think that the number 11 has a certain resonance about it, historically and religiously. We will leave it at that.

What I wanted to address was the size of the board and what has been said about whether it should be representative or whether it should be left to the board to decide the skills and experience that it needs to act effectively. I saw in the amendments—sadly, he is not in his place at the moment—that the noble Earl, Lord Listowel, suggested having a director or a previous director of children’s services on the board. I can fully understand that because the noble Earl has done so much to try to promote the well-being of children. Clearly he feels that it is a constituency that needs to be represented on the board.

Other people might think that perhaps we need a past director of adult services on the board, especially as we have an increasingly elderly population. I can think of other professions which may ask where on the board are the pharmacists, the podiatrists, the physiotherapists, the occupational therapists and the dentists. We could have a litany of people who wanted to be on the board, so we have to be very careful.

Health and Social Care Bill

Baroness Murphy Excerpts

Wednesday 9th November 2011 Lords Chamber

[Lord Warner]

My Lords, I compliment the noble Lord on his speech and say that we hope to see him every day of this Committee.

[Baroness Murphy]

My Lords, could I try to cheer up the Committee? We are getting very gloomy about this topic. To me, this is one of the most important clauses in the Bill and we must support it. I hope that we can reassure colleagues on the opposition Benches that there is no intention, as far as I can see, to withdraw any accountability, which we have discussed at great length. Nor is there any intention to interfere with the ability of the Secretary of State to intervene when necessary. It is clearly written in the Bill that the Secretary of State has a mandate and a multi-year setting of objectives, but he has to stay clear of interfering until something is really at crisis point, is going wrong or is urgent. There is plenty of opportunity for him to interfere.

I want to intervene because we have gone into the stratosphere with ideological and constitutional issues. We have certainly talked about political interference, and I agree wholeheartedly with the noble Baroness, Lady Cumberlege, about this. As a senior manager, I have a little list of Ministers around this Chamber who I can tell noble Lords did or did not interfere. I am delighted to say that the noble Baroness, Lady Cumberlege, was one of the least interfering of Ministers. Others around this Committee must wait for my judgment elsewhere.

--- Later in debate ---

[Baroness Thornton]

I am sorry to interrupt the noble Baroness. I am listening carefully to her because she has great experience. Is she not talking about transferring the setting of targets, projects or whatever from the responsibility of Andrew Lansley as Secretary of State to Sir David Nicholson as head of the NHS Commissioning Board? If the problem, as she sees it, is the setting of too many targets and projects—although I do not know what that has to do with Clause 4— I am not sure what safeguards there are to stop that from happening anyway.

[Baroness Murphy]

Perhaps I may respond. It is a direct result of that chain of command that goes from the Secretary of State, to Ministers, to Sir David Nicholson and to everyone inside the Department of Health. It is a direct result of the impact on the management system.

[Baroness Thornton]

My point to the noble Baroness is that I do not believe that it will change.

[Baroness Murphy]

I am sorry but I think it is the direct result of Clause 4. I shall continue my theme, if I may.

It is vital that we do not get lost in the impact of what the setting of targets does to the management structure. If the Government set goals and we have key performance targets, at the moment hospitals, services and local commissioners have no responsibility for their strategic direction or goals. I talk as someone who has been a strategic health authority chairman and I know exactly what micromanagement of health authorities and trusts means. I will come on to foundation trusts and why it has not worked entirely with them.

The targets are passed down through commissioning organisations without any understanding of the capacity to deliver. No sooner has one directive been issued than another set of politically interesting goals arrives as an additional directive—without removing the first. All this has no connection to how healthcare is delivered at the front line to patients and it creates a sort of parallel universe of management that never really touches operational patient care.

In mental health services, the care programme approach was an absolutely classic example of something that was implemented without any thought being given to how the service was really delivered and it therefore took 10 years to put in place. In successful businesses, managers focus their time and attention on operational realities—on how to help staff solve problems and improve day-to-day operational performance. This is the front-line machine that implements management decisions. However, in the NHS, managers are not interested in the front line. At every level, they focus upwards to the next level and, as a health authority chairman, I was pretty horrified to find that at least 25 per cent to 30 per cent of my CEO’s time was taken up at meetings and other activities, to which we referred as “feeding the beast” of the Department of Health or of Ministers. I understand that in many trusts some 50 per cent of this time is taken up with managing the centre.

The preoccupation with satisfying the centre leaves front-line staff—unsupported and often demoralised—to cope with broken systems, unless they have a substitute in a charismatic clinician who leads them instead. That is why high-flying specialist units work exceptionally well and why everyday bog-standard services are often a disgrace. That is why meeting targets is often a game. Data are manipulated and money is diverted from one front line to another to achieve a target temporarily until the Minister’s attention is diverted to the next enthusiasm.

The four-hour waiting time target at A&E is a very good example. This was an admirable target—some would say it was not tough enough—but it was achieved only with horrendous diversion of funds from other front-line areas and a reordering of clinical priorities, but with no real change in hospital behaviours or any understanding by staff as to why they were doing it. Metrics for the purpose of compliance are almost always different from those that one would wish to collect to understand and improve patient care pathways. A&E services targets were achieved at the cost of diverting increasing numbers of patients into medical assessment units and we have ended up with an 11.8 per cent increase in emergency admissions and vast numbers of patents being admitted from A&E who would not previously have been admitted—all in the interests of reducing a particular target, but without any fundamental change in the way that hospitals are run.

That is what this autonomy clause is meant to assist—we seem to me to be forgetting that. We must have organisations within the health service which set their own objectives, manage them properly and start concentrating on the front line of patient care. There is ample accountability in the Bill to ensure this along with the proper regulatory system. I know that autonomy can lead to machismo behaviour and that it can go wrong. We do need tough regulation, but we need tough light-touch regulation, with a mandate that has been agreed beforehand. With that, we will see that this autonomy clause is utterly vital to the way that we should be developing the health service.

[Lord Newton of Braintree]

My Lords, I wonder whether I may contribute. It is perhaps rather rash of me as it will be obvious that I have not been here all of the time, partly because I had not anticipated that we would have such a lengthy debate after the agreement that I thought we had reached on Clauses 1 and 4.

It is perhaps appropriate that I should intervene, not least because I am the third former Conservative Health Minister to speak in the debate. I ought to make it clear to my noble friend Lady Cumberlege that it is 2:1 to my noble friend Lord Mawhinney, as indeed I made clear to her in a more private conversation yesterday. Nevertheless, I am unhappy to find myself disagreeing with her, and also, for the second time in two days, disagreeing with the noble Baroness, Lady Murphy. However, the fact is that I do disagree with them.

I cannot claim the record of my noble friend Lord Mawhinney of not having spoken against the Government since 1997. My record is much more sinful. I agree with every word that he said. I shall say that, rather than repeat it all. The problem with micromanagement is that what it means is to some extent dependent on the perception of the trouble that it is causing. Picking up the report published today, is it micromanagement for the Secretary of State to say that it is unacceptable to be leaving patients screaming all night, not to give them water, not to make sure that they are getting a proper diet and not to look after them or clean up for them? That could all be micromanagement, but the public will not regard it as micromanagement. They will say, “This is the NHS. You are responsible for the NHS. Get something done about it”.

At the core of this is a point that my noble friend made and I made in different terms much earlier in our discussions. The notion that the Secretary of State can wash his hands of certain things is for the birds. Two of us here have been Ministers for Health and others in the Chamber have also had that position. If things went badly enough wrong, the Secretary of State could not go to the Dispatch Box and say, “Nothing to do with me, guv. Go and ask the Commissioning Board. Go and ask Monitor”. It is nonsense, and we need to recognise that.

--- Later in debate ---

This amendment will ensure that clinical commissioning groups and foundation trusts are not able to break down the systems so painstakingly put together in the past few years. Let us not move away from that tried and tested system where staff unions and employers can put their energies into giving evidence to an independent pay review body rather than expend these energies on local bargaining, which could create disharmony, industrial disputes and issues of morale. I hope we hear from the Minister that we will continue to have national pay bargaining in the National Health Service.

[Baroness Murphy]

My Lords, by now it will be no surprise to the Opposition that I do not support this amendment. It seems to be an extraordinary pedalling-backwards amendment. I ought to remind colleagues that foundation trusts already have the ability to negotiate local terms and conditions of service, so at least two-thirds of mental health trusts and half of all acute trusts already have it. They have not used those freedoms for very sound reasons, but there will come a time when gradually they will want to do so. It seems extraordinary that we would seek to remove those freedoms. I say to those who are anxious about pushing pay downwards that that has not happened at all with consultant grades of pay, where freedoms have led to much greater flexibility and a real and genuine recognition of the rarity of some consultant specialties in some areas, so it is not a good idea to remove that pay bargaining and that flexibility locally.

I do not see the Agenda for Change as being successful. Yes, it was better than the Whitley Council, which had 250 different scales and you did not know where you were; it was pretty grim. However, Agenda for Change has not been implemented with the learning and skills framework alongside in any more than 50 per cent of trusts. It has not led to productivity gains. It led to an uplift of pay but did not actually deliver what employers wanted it to deliver.

In my view, a good employment framework for local organisations must take account of local economic circumstances, the social demographic mix and the skills available in the local communities. Therefore, it must give local employers greater flexibility, as part of the autonomy of those organisations, and the ability to move away gradually from the situation that we have at the moment of profound skill shortages of nurses in some areas and an oversupply of some skills in other areas. If we could be more sensitive to local circumstances, we would get better values and rewards for staff in the NHS. I therefore very much support the Government’s approach to this and do not support this amendment.

[Lord Rooker]

My Lords, I intervene briefly in this debate. It also gives me the opportunity to apologise to the House. I removed Amendments 35 and 36 at 10 pm on Monday because I could not guarantee to be here at 3.30 pm today. I apologise if it caused confusion, but I could not be here today at that time.

On Amendment 45, I would like to know the Government’s position, because the noble Baroness said that the Government maintain their position. In some ways, the temptation for fragmentation is enormous. I am not sure whether the NHS is still the largest employer in Europe. As a totality, I think it probably is. However, we are talking here about England—or are we? The issue of devolution is crucial. I served for 12 months as a direct rule Minister in Northern Ireland, and I came across problems there relating to people doing the same job here. Also, of course, moving around Whitehall, as the Minister probably discovered himself, you go into departments and meet people doing more or less exactly the same job on vastly different salaries. The temptation of fragmentation was accepted at the centre of government, and that has led to significant problems of mobility for people moving even around Whitehall.

I am no expert on the NHS—I only know it as a patient and a family member of patients—but as far as I am concerned, it is a team effort. It is a bit like the argument we had with the firefighters. You are sending people out on a team to do a job, and they are not going out on different rates of pay, different pensions and different contracts. The one way to keep it cohesive is to maintain national pay bargaining. It does not mean that one size fits all, but the fact is, as my noble friend who kicked this off said, the industrial relations implications are enormous, given the potential for disputes that nobody wants. A dispute is created because of a festering sore on something else. The facility is not there if you have a system of national pay bargaining for healthcare staff.

The amendment refers to,

“services for the improvement of public health”.

Quite clearly, there will be transfers of public health staff who are working in local government and who are perhaps working to and with NHS rates of pay. That in itself will be a difficulty if people are going to work with colleagues in local government under a different scheme. While the Government take account of that, the temptation will be to level down to local government to get one size fits all at the local level. I do not think that that temptation ought to be accepted.

As for the issue of regional break-up, there was an argument about this many years ago when there was an attempt to pay teachers more who were prepared to go and work in the inner cities. You can have a local premium, and you can do some local work where there are factors, but in the case of nursing staff, particularly the lower-paid, and their ability to move around the country for career opportunities and to move their family, they are working within one service. Everybody knows that it is the NHS—the “N” is still there—but they are faced with the issue that, for the same job in the next region or the next but one region, they may be paid up to 10 per cent less and their pension and terms and conditions may be different. That could cause enormous problems.

I only spoke in the mental health debate last week, but the overall theme of the Bill and the many allegations that have been sent to noble Lords, of which the Minister will be aware, are that this is a grand plan—not now, but in the end—to fragment and break up the National Health Service, a plot hatched in the 1980s by Members of the other House who are currently members of the Government. The introduction of market forces into both the provision of care and other providers, and the temptation then to break up national pay bargaining to fit the new regime, which is supposed to be patient-oriented, is an enormous pressure on the Government. Ministers will be told that this will make sense at the local level. It may be asking a lot for the Minister to give a definitive response to this tonight, but the issues of industrial relations and pay bargaining in the NHS have to be settled well before the passage of this Bill, if only because during the period of implementation we do not, as my noble friend said, want discord among the staff as they implement what will be, I accept, many positive changes in the Bill.

The other issue that has to be raised, because we are talking about services to patients, is the pay and bargaining within service providers as the issue gets broken up. There will be some debates about charities, the third sector and social enterprise involvement where industrial relations and pay bargaining may be affected. However, there are other issues relating to the private sector doing jobs using NHS staff. It offers mobility as teams move. People do not have one place of work but may move between two or three different establishments, one of which may be the NHS, in which they may be based. They are expected to perform as part of the team locally, providing the services to patients in the round. What happens to pay bargaining in those situations?

If we allow fragmentation at a local level, it would be wise for the Minister to say that the status quo will be maintained. I accept that the status quo has flexibility built in, as the noble Baroness said, but it is a flexibility that does not appear to have been used. This is a bit like the Scottish Government. They had the flexibility to put up income tax by 5 per cent, but it has never been done. This is the reality. You put in that flexibility but for various reasons there are barriers to actually using it. In this case, the evidence is that the flexibility has not been used except perhaps in extreme circumstances. I do not think that it would be a good idea if we went down this route. I think there is enough evidence to keep people working together as a team with a national perspective that allows job mobility and promotion without people being afraid of moving within the same service because of the pay and conditions. I do not think that it is a good idea, and I hope the Minister will be able to take a more positive approach to this issue, even if he can only state it in general terms.

Health and Social Care Bill

Baroness Murphy Excerpts

Monday 7th November 2011 Lords Chamber

[Baroness Greengross]

My Lords, I will speak to Amendment 33 in my name. I am pleased to follow the noble Baroness, Lady Williams, and the noble Lord, Lord Turnberg, because a lot of my work is concerned with the sort of inequalities they have spoken about. The noble Lord, Lord Turnberg, mentioned Professor Sir Michael Marmot. I have been privileged to chair the advisory group for the longitudinal study on ageing that he established. I have done that since it started. It demonstrates so clearly the terrible, almost life-or-death sentences that health inequalities impose on different groups in terms of their life expectancy. This is really something that is quite impossible for us to continue.

My other role as the lead commissioner on age at the Equality and Human Rights Commission means that I hope very much that we can, if we amend this Bill, achieve more positive healthcare outcomes. The Bill, in order to achieve that, must be explicit that improvements have to be achieved across the whole population, not just some parts of it. We know that one group whose needs are currently very often underprioritised and underrecognised is older people, particularly within the NHS. Sadly, ageism persists in clinical practice—very often older people lag behind other groups in terms of better healthcare outcomes. I am very concerned that unless a clear obligation to demonstrate that improvement is being achieved across the whole population, the specific needs of older people will continue to lag behind those of other groups or sometimes to be ignored and similar existing health inequalities may even be maintained and strengthened.

My amendment would define the Secretary of State’s duties to reduce health inequalities against three different criteria: the definitions of equality contained in the Equality Act 2010; different parts of England; and different socio-economic strata. In any subsequent reporting of progress towards reducing health inequalities, the Secretary of State would have to demonstrate consistency in the progress made against the three criteria.

My amendment would clarify the Secretary of State’s duties in relation to reducing health inequalities. I am afraid that without this in the Bill health service improvement may not reach everyone. There may be a failure to improve services for specific groups such as those mentioned within the list of protected characteristics. Clause 3 currently requires the Secretary of State to have regard to the need to reduce inequalities between the people of England with,

“respect to the benefits that they can obtain from the health service”.

The amendment to this clause would ensure that access to health services and improving health outcomes were an intrinsic part of the Secretary of State’s duties. Without guaranteeing improvement in access to services, there is a risk that there could be high levels of variation in the kinds of services the NHS provides across the country.

I have listed the equality characteristics detailed in the Equality Act 2010 which is not necessarily Members of your Lordships’ House. Too often it has been the case that health inequalities exist in part because people belong to one of the groups listed here and there is actual discrimination against a patient. In relation to specific treatments, patients are treated differently not purely on the basis of clinical decisions but on the basis of one of the protected characteristics, particularly age. For example, despite improvements in cancer outcomes, a 2007 study of breast cancer patients in Manchester found that older women are less likely than younger women to receive “standard” management for breast cancer and less likely even after accounting for differences in general health and co-morbidity to have surgery for operable breast cancer.

My amendment will ensure that the Secretary of State’s duties are clear and specific and that people across England can be sure their access to healthcare and the quality of the healthcare they need will be assured regardless of who is providing the service. The areas where the Secretary of State can demonstrate improvement in reducing inequalities should be balanced and fair in their focus. The risk otherwise is that commissioners will be incentivised to invest their efforts in improving health outcomes for those groups where they believe they can make the easiest and quickest gains and some groups, including older people, risk being shunted to the sidelines. This must not happen.

[Baroness Murphy]

My Lords, I have a great deal of sympathy with those who want to beef up this duty on the Secretary of State. I want to ask the Minister to explain why the public health function was left out—it is very specific about NHS responsibilities. I suspect the answer is that public health is in relation to other departments of state. He is shaking his head so perhaps that is not the answer. Working in the NHS one cannot but be aware of these profound inequalities. Within the first week of going as chairman to the east London health authority, three facts hit me in the face. First, in Hackney, people had only a 25 per cent chance of referral for a hip replacement as per the norm for England. Secondly, in Newham, mortality rates for bowel cancer after treatment were 30 per cent worse than elsewhere. It clearly emerged that there was a failure of referral to access, for, particularly, certain of the ethnic communities. Thirdly, on a visit to the community podiatry service, every patient was white in an area where the population was 25 per cent black and minority ethnic. Simply, no one had ever asked them the relevant question. Addressing inequality seems to be profoundly difficult on the ground: you must have the information and the wit to discover whether there is a problem of access, referral or discrimination and treatment, or whether there are underlying features of the illness that make inequalities difficult to address.

Health and Social Care Bill

Baroness Murphy Excerpts

Wednesday 2nd November 2011 Lords Chamber

[Baroness Murphy]

My Lords, this is a topic very close to my heart. The delivery of social care is almost wholly towards people with health problems; if you do not have a health problem, a disorder or disease, you will not be in receipt of social care. But we have always had this curious distinction between who delivers what. We have had these great silos whereby enormous amounts of spending in the health service would be better spent transferred to social care services. We have known that for years and years, but it has not really happened as fast as it should have done.

The commissioning and delivery of services has been almost wholly down these isolated silos. We have tried to chisel away at this over the years with joint trusts for delivery of services to children and other joint trusts for delivery of services to mental health, and so on. But for the mainstream older person coming through healthcare services, we have not had that integration very effectively, and we have therefore wasted money buying health services when we should have been buying social care services. So it is crucial that people get better cost-effective packages of care, which include the whole pathway.

It is also true that we have a system at the moment whereby in the past 20 years we have moved hundreds of thousands of seriously disabled older people out of NHS care into independent sector nursing homes and, in the beginning, local authority care homes and contracted private homes, leaving behind the teams of people—healthcare professionals, medics and nurses who used to care for them in hospitals—completely isolated back in the hospital. They are not delivering those community services that the independent sector nursing homes and local authority care homes so desperately need to provide—comprehensive health and social care service in residential care. It has always seemed extraordinary that we have allowed these silos to grow up, whereby the person sitting in the hospital, the consultant geriatrician or the psychogeriatrician, does not think that it is their business to provide a service for the wider community of patients in their patch. It seems extraordinary to me that we could have got ourselves into this position.

We need something to move back again to a situation in which people think epidemiologically about a community, about how the best services could be provided from vertically integrated care between hospital and community services—and of course that community care must start with what comes from primary care—but also fundamentally from what is commissioned from social care as part of the package. Perhaps we can get it in somewhere in this Bill that we need to do this. We all know about Kaiser Permanente and the examples of how it works in the States. It works very effectively when you can commission from a range of services across health and social care directly. That makes a great deal more sense than trying to narrow the trenches; a trench always pops up somewhere else when you chisel away at a trench between local authorities and NHS authorities. You do not need to do that if you are very clear about commissioning a package of services across the divide and across NHS primary care and social care. This is extraordinarily important as the population continues to age and, without it, we will not be able to generate that wonderful £20 billion of savings that we are always going on about. We will get better value for money if we contract across an integrated care pathway across health and social care.

I do not know whether this is the right point to get this proposal in. Like the noble Lord, Lord Warner, I am sure that it should go somewhere and that we should have a real commitment in the Bill. If it is the right point, we can get people to translate this into the sort of unbundled tariff that we need to get the financial packages right and move away from the counterproductive system of payment by results. Unfortunately, that again tends to fossilise an old-fashioned way of doing things, which is too expensive. I give my full support to this amendment.

[Baroness Pitkeathley]

My Lords, my name is added to some of these amendments and I will add little to the eloquent speeches of my noble friend and of the noble Baroness and the noble Lord from the Cross Benches. I want to endorse only the important points of principle that they have set out. As someone who has spent a large part of a long working life at the margins or the crossover points between health and social care, I am only too well aware of what goes wrong if you do not have proper integration. It is very important, as the noble Lord, Lord Patel, reminded us, to come at this from the experience of the patient, the user and the carer. Their needs rarely come neatly packaged as health and social care; there is always crossover between them. That is especially true in the case of long-term illness but it is also a concern to those who have had an acute episode, especially in these days when people are discharged early from hospital but still need medical, nursing and social care at home.

Almost 40 years ago, I wrote a book called When I Went Home, a study of patients discharged from a local community hospital. One patient I interviewed said to me, “What I don’t understand is why they don’t talk to each other. Why did they discharge me without arranging it with my family—without even telling my family I was coming home—and why weren’t the services I needed at home all geared up for when I got there?”. I have lost count of the number of times that I have heard this story repeated over the years. Patients, users and carers do not understand different funding mechanisms, professional boundaries or sensitivities about exchanging information—and why should they? We have been saying for at least 40 years that we must improve integration. Let us for goodness’ sake use this reform as a means of achieving more commitment to integration, to which everyone pays such a lot of lip service but which in reality is still sadly lacking.

I must emphasise that we are at a point where not only do we risk not making integration better but where it could become worse if we do not really emphasise the importance of integration in this legislation. I am thinking of things such as the pressure on local authority budgets and on the voluntary sector, which is so often such an important part of an integrated care package. I am thinking of the mismatch in timing between the reforms in social care and those in the health service. I always think, too, that we should remember that it is people, not structures, who promote integration. Those currently employed in health and social care are working in a confused situation. They are often uncertain about their futures and their working relationships. They are therefore really not in a good place for cutting across professional boundaries and perhaps giving up some of their power to develop the flexible ways of working which are so necessary for integrated services. We owe it to them, as well as to the patients, users and carers, to be as explicit as possible about the importance of integration. I hope we will do that in this Bill.

Health and Social Care Bill

Baroness Murphy Excerpts

Wednesday 2nd November 2011 Lords Chamber

[Baroness Williams of Crosby]

My Lords, perhaps I may ask a couple of questions in this short debate and thank the noble Baroness, Lady Finlay, for her comprehensive presentation. This is a difficult area of the Bill. First, what happens with someone whose main residence is in one place but who is actually very dependent on out-of-hours care because of the nature of their job. There must be literally hundreds of thousands of commuters for whom the natural place they would like to go, due to the recollection of personal data and all the rest of it, would be the clinical commissioning group in their home area, but because they spend a great deal of time at work a long way away they will in fact depend on out-of-time services. I am troubled by the low quality of some of those services in comparison to what we might call mainstream NHS care.

The second question is perhaps easily answered. Can the Minister say something about the relationship of both new structures to NHS Direct? I am not clear as to whose responsibility NHS Direct will be. Will it continue as a kind of separate freewheeling service or be linked to a clinical commissioning group; and, if so, at which end of the spectrum would it be linked?

[Baroness Murphy]

My Lords, I am particularly concerned about the area-based issue because, like many people, I have been banging on for years about the importance of coterminosity between health and social services. However, my experience over the years has been that that has not made much difference to the co-ordination of care between health and social care.

I want to raise a point about the new arrangements. I understand that we are trying to move away from the old RAWP funding formulation, which has always been deeply unsatisfactory and open to political manipulation, to the funding of real groups of patient populations on a risk-assessment base. To achieve that, there is no doubt in my mind that you must have real people on real lists, whether or not that clinical commissioning group has a responsibility to provide for a population within the group. You must be able to work towards a funding solution for those clinical commissioning groups that reflects real need and moves away from the old area-based populations.

I think that that may be the response I would give the noble Baroness, Lady Finlay. I did not really understand the brief amendments in this group that were not specifically related to this question so I address my issues to that.

[The Lord Bishop of Chester]

My Lords, I completely support the amendment in the name of the noble Baroness, Lady Finlay, but wonder whether what she wants could be achieved—it might be a small step in the right direction in relation to legislation generally—by simply removing from the Bill the words “provided to individuals”. The term “individuals” has a jarring effect. “Provided to people” might sound a bit better, but “individuals” has a slightly impersonal feel, especially as we are concerned as a Committee and as a House about the “national” character of the National Health Service. References to individuals jar in that regard as well. Simply requiring improvement in the provision of services might achieve what the noble Baroness seeks in her amendment.

--- Later in debate ---

[Lord Layard]

My Lords, some years ago I had a meeting with a newly appointed Secretary of State for Health, although he was not that newly appointed—he had been there for three weeks. At the end of our conversation about mental health, he said, “You know, I’ve just realised something. I’ve been in this job for three weeks, I’ve had about 50 meetings and this is the first time I’ve heard the words ‘mental health’”. That says it all. That is how our health service is run and, unfortunately, how the priorities are set. I should just like to review four key facts to show why this is not at all satisfactory.

First, according to the official survey, one in six adults suffers from mental illness, mainly clinical depression or crippling anxiety disorders. These are serious conditions, as has been said. For example, a very good WHO study compared the debilitating effect of depression with that of angina, arthritis, asthma and diabetes. Depression is at least 50 per cent more debilitating than those conditions. That is why half of all the disabled people of working age in our country are disabled by mental illness. It is not a small segment but a massive chunk. It is the largest illness among people of working age.

However, coming to my second point, only a quarter of those who are mentally ill are in treatment, compared with more than 80 per cent of those with the kind of physical illnesses that I mentioned. Last year the chairman of the Royal College of General Practitioners wrote to his members with the question: if you have a patient who needs psychological treatment, can you get it normally, sometimes or rarely? Only 15 per cent said “normally”. That is the situation that we are in, which is shocking. The treatments that are available are good. They are recommended by NICE but simply not delivered on a proper scale, even though they are meant to be delivered according to the NICE guidelines.

Thirdly, what is even more extraordinary is that these are cheap treatments. It is quite easy to show from the experience of the Improving Access to Psychological Therapy programme, for example, that they completely pay for themselves through savings on out-of-work benefits, lost taxes, unnecessary visits to the GP and unnecessary references to secondary care. However, if we ask what commissioners’ priorities are, these treatments are of lower priority than many of those for physical conditions that are often much less disabling.

Finally, what is so extraordinary about this, as other speakers have said, is that the problems of people with mental health difficulties also rebound on their physical condition. We also know that many physical conditions rebound on mental conditions. Many physically ill people—those suffering from angina, lung disease or a stroke, for example—suffer from depression. Several proper clinical trials show that, with proper psychological treatment of these mental conditions, the physical condition will improve to the extent that all the money is, again, repaid in savings in physical care. Therefore, we should give much more priority to these conditions.

We also see cases where people are referred with physical conditions that have no physical explanation. Something like half of all referrals to the secondary sector fall into that category of medically unexplained symptoms. Again, many of those will respond to psychological treatments.

Despite all this, we all know where mental health stands in the priorities of commissioners. It counts if there is a serious risk of homicide or suicide. Then they really get to it. However, if not, it is, unfortunately, the easiest area to cut, which is happening on quite a scale at the moment. Two years ago the regulator, Monitor, recorded the fact that mental health services are cut by more than physical health services whenever there is a shortage of money. Monitor recorded this in its advice to trusts on how to budget in the future; it was part of its guidance. It is invariably the case that mental health is cut more than physical health when there is a shortage of money. It is just extraordinary. That guidance was eventually recanted but it is the reflex throughout the commissioning world. I am making the point that this is not only important but a very big thing. That is why it is important that we include the phrase “physical and mental illness”, and do so from the beginning of the Bill. If we do not, people will tend to forget mental health, as the department did for three weeks when it was briefing the then Secretary of State. I urge the noble Earl to take this amendment very seriously.

[Baroness Murphy]

My Lords, I rise briefly to support the eloquent speech by my noble friend Lady Hollins and other noble Lords who have spoken in this debate, if only to give the House a hat trick from the psychiatrists who are here today.

In 1845 the Lunacy Act first separated physical and mental health with the building of the asylums. Before that, in the Poor Law Commission’s provision of service to the general population, around 30 per cent of the medical time of general practitioners and specialists who were engaged by the Poor Law Commission was spent on people with mental health problems and what we would call learning disabilities. That division, however good it was in developing the services in other ways, has led to a separating out which continued after 1948, to the detriment of the development of services.

This Government and their predecessor have done an enormous amount to right that imbalance. As I have pursued my career in psychiatry, I have seen a dramatic difference in the investment that has been made in mental health services. However, there is still a lack of parity and when people talk about illness they still mean physical illness. I do not know whether the wording “physical and mental” is quite right in this amendment. However, it seems to me that the time is right to have an explicit provision on the face of the Bill regarding the equal importance of mental health and physical health in building a healthy nation. Unless we address physical and mental health together, we will not improve public health. It would be a good time to get such a provision in this Bill as it moves forward with a new style of NHS. I hope the Minister agrees that this is too important a matter to let it go.

Health and Social Care Bill

Baroness Murphy Excerpts

Tuesday 25th October 2011 Lords Chamber

[Lord Hennessy of Nympsfield]

My Lords, having suggested during the Second Reading debate that your Lordships might consider the value of a preamble to the Bill which captures the ethos and purpose of the National Health Service, I was grateful to the noble Earl, Lord Howe, in his letter of 20 October to noble Lords, for describing it as “an interesting idea”. The Minister went on to say that,

“preambles have fallen out of use in modern-day legislation, partly because there is a risk that they could lead to unintended consequences, and also because it is considered bad legislative practice to include words in a Bill that have no clear legislative purpose or effect”.

I note and accept that preambles have fallen into disuse, but I continue to see the value of capturing the NHS ethos and purposes firmly right at the top of the legislation, which is why I welcome the proposed amendment in the name of the noble Baroness, Lady Thornton, as a surrogate for a preamble.

I am especially pleased by the NHS constitution occupying a prime position in the amendment’s attempt to capture the principles of the health service in England. The first two principles expressed in the NHS constitution must continue to suffuse the whole enterprise and its legislative underpinnings. The first principle declares:

“The NHS provides a comprehensive service, available to all irrespective of gender, race, disability, age, sexual orientation, religion or belief. It has a duty to each and every individual that it serves and must respect their human rights. At the same time, it has a wider social duty to promote equality through the services it provides and to pay particular attention to groups or sections of society where improvements in health and life expectancy are not keeping pace with the rest of the population”.

Principle 2 explains quite briefly that:

“Access to NHS services is based on clinical need, not an individual’s ability to pay. NHS services are free of charge, except in limited circumstances sanctioned by Parliament”.

Faith in those principles runs deep in our country, powerfully and, very largely I think, consensually. They deserve to be emblazoned at the top of this Bill through a clear reference to the NHS constitution. In fact, apart from the words “not the market”, the amendment before us could, I suggest, represent a common bonding for our deliberations, however fiercely contested will be many of the clauses to come, just as the sustenance of a comprehensive National Health Service free at the point of delivery is one of, or perhaps the most, tenacious common bondings of our people and our country.

[Baroness Murphy]

My Lords, one cannot help but be moved by the commitment of the noble Lord, Lord Hennessy. In view of the public discussion that has gone on outside this Chamber, we all welcome a recommitment to the principles of the NHS constitution. But I have a number of really serious concerns about the amendment as it stands. For a start, remembering back to the 2009 Act, the whole point about the NHS constitution is that it was not just a set of airy-fairy principles, it concerned how those principles were to be put into effect. To extract these crucial principles, which along with the noble Lord, Lord Hennessy, I wholly support, and put them separately at the beginning of the Bill is to confuse the issue and, I think, to leave us open to further legal challenges over what the NHS is about. The NHS constitution stands; that it must stand is reiterated in the Bill, and therefore we should not seek to water it down in any way.

The second part of the amendment again does not quite reflect what we have tried to do, as we discussed the development of this Bill, to ensure that the NHS is about improving quality. It is not about accepting quality, equity, integration and accountability as is; it is about continuous change leading to improvement. Again, I think that that is not reflected in subsection (2), which is very confused, and I really do not understand the phrase at the end, “not the market”. What does that mean, and how does it relate to the,

“person or body performing functions”?

The third subsection, about the primacy of patient care, is crucial. We want to see the primacy of patient care throughout the Bill. Again, however, as it stands, the amendment would rule out structural and financial reorganisations, for example to improve the formula for allocation of resources to local clinical commissioning groups. It would rule out the decisions that we want local groups of commissioners to make regarding reconfiguration. It would stultify the development of an improved health service. I really think that that is confusing.

As for the Nolan principles, I think that all of us would say that they are crucial. But they are in the Bill as it is, as they were in every NHS Act recently. Standards in public life are something that everybody who is in public service must be committed to, and they are in employees’ terms and conditions of service. These are desirable things, and I am very sympathetic to the desire to make a comprehensive statement of the commitment of all sides of this House to a universal and comprehensive NHS. However, this amendment is not it.

[Baroness Jolly]

My Lords, I do not intend to take an awful lot of your time with my comments. I agree with many comments made by my noble friend Lady Williams, and I share the anxieties expressed by the noble Baroness, Lady Murphy. To a certain extent I am bemused, because we have a perfectly good NHS constitution. It has been said that it is only three years old and indeed it is. It was a result of the work of the Labour Peer the noble Lord, Lord Darzi, and involved a huge cross-party effort. This is to be commended. This amendment does not match it in breadth or scope.

We are now in Committee and it is not sensible of us to prolong the debate. We have many, many days yet to go and we really need to move on and get on with the Bill. However, I want to finish by thanking the noble Baroness, Lady Thornton, for her compliments about our conference motions and the way in which our policy is made following votes by our members at conference. The second subsection of this amendment came from a motion to our conference last spring. We wanted the NHS to work for patients and not providers and as a result of this and the Future Forum deliberations, this was acknowledged. Furthermore the Monitor duties were changed to reflect this so that they now are about the promotion and protection of patient care. I really feel that we need to move on and get on with the Bill.