Mental Capacity (Amendment) Bill [HL]

Debate between Baroness Murphy and Lord Hunt of Kings Heath

Monday 15th October 2018 Lords Chamber

[Baroness Murphy]

I support the comments made by the noble Baroness, Lady Hollins, on some of the training issues. Like many people here, I suspect, I have spent a great number of years training junior doctors in how to use mental health legislation, as well as social workers and occupational therapists. One of the most difficult things is to convey the culture of what we are trying to achieve in legislation of this kind. We all refer to the European court and the agreements, but what we are trying to achieve for individuals and why is difficult for many people to grasp when they have grown up in a very didactic, academic environment, where these things are not necessarily considered.

A key aspect of that cultural shift which is so required is the problems that arise between relatives, carers and professionals over what should happen to an individual. All the way through this Bill, I have been scratching my head and thinking, “Will this solve the Bournewood problem?” All the cases from Bournewood onwards have arisen because of a cavalier approach or attitude by professionals to discussing with relatives and carers what the individual wanted, needed or was used to. If we do not get those things right, we will not solve the problem and there will be another case because it will all be up again for grabs where the professional training has not been accurate.

I note that there are some very specific proposals about care home managers. There are some very specific difficulties about what training care home managers currently have, and it is absolutely basic and rudimentary. It is largely about keeping the accounts right. We need to find a way to get the culture of what we are trying to achieve for individuals and families into this Bill. Exploring those training options is crucial if we are to avoid another Bournewood.

[Lord Hunt of Kings Heath]

My Lords, the noble Baroness, Lady Murphy, has made a very telling comment. Part of the issue of training is cost. It seems to me that part of this Bill is about cost shift from local authorities, which have found managing this process very difficult, to care homes. We have not discussed this very much, but will the Minister tell us who he expects to pay the cost of this whole process? I suspect that the answer is that it is going to be in charges, mainly for self-funders, who not only will probably pay the cost of their own assessment, but will probably—as they do at the moment—have to subsidise the cost of local authority-funded people who come under the provisions of the Act. Clearly, the Government did the RIA on the basis of trying to show that the cost will be minimal in order to prevent being rumbled on essentially what they are seeking to do, which is clearly to cost shift the public sector in favour of self-funders.

The RIA is simply non-believable, and puts into question quite a lot of the architecture of the Bill. We know that care home managers, as the noble Baroness, Lady Murphy, said, have rudimentary qualifications. We also know that the turnover for care home managers is quite high. Therefore, major new responsibilities are being given to people who are in a sector where they are often pretty poorly paid; they do not have much training, and they do not have professional qualifications in many cases.

Training is very important indeed, and we need to have some answers as to how this is actually going to happen and who is going to pay for it. If the answer is that it will mainly be paid for by self-funded, vulnerable people, I do not think that is right.

Health and Social Care Bill

Debate between Baroness Murphy and Lord Hunt of Kings Heath

Thursday 8th March 2012 Lords Chamber

[Baroness Murphy]

I have concerns similar to those of the noble Lord, Lord Warner, but this amendment is different from those that I have seen floating around from the noble Lord, Lord Phillips. I also have questions, but we must be very clear about what we mean by “queue-jumping”. If an NHS patient goes to an ordinary NHS hospital consultant and is told that they need an operation, it is completely legitimate for them then to ask to go privately and pay for the operation. That is, as the noble Lord, Lord Warner, said, enshrined in the NHS Act of 1948, and completely legitimate. Queue-jumping is when a patient sees a private consultant who then inserts the patient into the NHS list ahead of other NHS patients. That is what we want to avoid, and it is already completely illegal and highly frowned on. Most hospitals do what they can to exclude it, but I take the point made by the noble Lord, Lord Phillips, that it goes on, and we know that it does. It is an unpleasant practice and should be stamped out, but I do not know whether this amendment does that.

As the noble Lord, Lord Kakkar, reminded us, the conundrum of private units in NHS hospitals must be borne in mind. That may be the most constructive way in which to ensure that NHS consultants are available to NHS patients when they need to be, as the noble Baroness, Lady Finlay, said. But often private patients have operations that go wrong—and then, if there are two patients in need of an NHS intensive care bed, the patient who takes priority is the person with the clinical need. It is very much the same as someone on a battlefield. It does not matter whether it is an enemy soldier or a domestic soldier.

[Lord Hunt of Kings Heath]

I thought that the amendment was focused not so much on clinicians but on the board of the trust. That is a slightly different argument.

[Baroness Murphy]

The noble Lord may be right. If the change in wording applies to how the management behaves but makes no change in clinical priorities—the noble Lord, Lord Kakkar, said that it would not interfere with clinical priorities—I would support it. It is necessary to ensure that management acts like that, as long as it does not cut across the clinical priority that the sickest person comes first, whether private or NHS.

Health and Social Care Bill

Debate between Baroness Murphy and Lord Hunt of Kings Heath

Wednesday 29th February 2012 Lords Chamber

[Baroness Murphy]

My Lords, I will very briefly say that I added my name to two of these amendments because I have, in practice, come across occasions when organisations such as the former Monitor and CQC had difficulties in their relationships, which had to be sorted out with some difficulty. It seems that they could be in the very position that the noble Lord, Lord Marks of Henley-on-Thames, has described so eloquently, and that we need some way of resolving these conflicts to the benefit of patients so that decisions are made quickly. I support these amendments.

[Lord Hunt of Kings Heath]

My Lords, this is an important debate. I want the noble Earl, Lord Howe, to make it absolutely clear in relation to Amendment 71 that the intervention of the Secretary of State will follow if the Secretary of State considers it to be in the interests of the health service when one of these bodies is failing to discharge a function properly. The wording of this amendment means, in effect, that if issues are raised in Parliament about NHS performance on which the Secretary of State, quite naturally and properly, wished to intervene, the Secretary of State can indeed do that. In the end, only the Secretary of State can, in those circumstances, consider what is in the interests of the health service. It is absolutely right and proper for the Secretary of State to be in that position.

The second set of amendments starts with Amendment 294. The noble Baroness, Lady Murphy, is absolutely right to point out the problem of conflict between the CQC and Monitor, which is almost built in intentionally. The second report of the Francis inquiry into the Mid-Staffordshire trust may have some points to make about that. However, we are also adding to the architecture of the national Commissioning Board, and there is inevitably going to be tension between those three bodies. For instance, the national Commissioning Board and Monitor are to be given roles relating to the tariff, and it is clear that there is confusion over the roles in respect of quality issues. Monitor is now involved in making some inquiries of foundation trusts relating to quality, which is no doubt a defensive reaction to the criticism that will flow from the Francis inquiry. The national Commissioning Board is so powerful in the new structure that there are bound to be some issues about its relationship with the quality and economic regulators. We would like to hear from the noble Earl, Lord Howe, that the Secretary of State will not hesitate to intervene and knock heads together if the natural—and probably useful—tension goes beyond that and becomes a problem.

Health and Social Care Bill

Debate between Baroness Murphy and Lord Hunt of Kings Heath

Wednesday 7th December 2011 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, I have a number of amendments in this group which concern the duty of the Secretary of State to keep health service functions under review. This is an important provision. I note that on what will probably be the last day in Committee, we have Amendment 354, which relates to a requirement on the Secretary of State to publish a report which can then be debated by Parliament. Although it is not grouped with this amendment, it is highly relevant to it.

It would be helpful to know from the Minister just how these matters are going to be monitored and how adjustments can be made in the light of experience. As my noble friend Lord Warner suggested, although we are not going to be allowed to see the risk register—I am very doubtful that we will see it before the Bill has passed through your Lordships' House—we know that considerable risks will come with these changes. The noble Baroness, Lady Cumberlege, spelled out some of the key issues that we face. The last thing that the health service needs is a massive reorganisation. Clearly, there are risks and it is right that there should be a regular review by the Secretary of State.

It is also right that the Secretary of State, when reviewing the operation of the changes, reviews all parts of it. I am extremely puzzled by Clause 49 concerning the duty to keep under review. The Bill sets out the bodies to be reviewed. They are the NHS Commissioning Board, Monitor, the Care Quality Commission, the National Institute for Health and Clinical Excellence, the Health and Social Care Information Centre and special health authorities. There is no mention of the plethora of bodies that will exist in the new system. There is no mention of clinical senates, the local field forces of the NHS Commissioning Board or health and well-being boards. Quite remarkably, there is nothing about clinical commissioning groups. Perhaps the noble Earl could tell me why the effectiveness of the CCGs is not to be kept under review?

Perhaps I have misread the Bill and this will be done in some other way. But I find it remarkable that this Bill is built around GPs and clinical commissioning groups, which are untried and untested, yet they are not to be kept under review. Looking at the architecture of this Bill, one begins to see very tight control of most of the health service but when it comes to clinical commissioning groups, issues of corporate governance, conflicts of interest or any of the other matters, it is incredibly light touch. It is as if we are to believe that, somehow, this part of the reforms is believed by the Secretary of State to be so remarkably able to carry out its duties that very little monitoring, performance management or review is to be undertaken. I would be grateful to know why clinical commissioning groups in particular have been left out of this list.

Amendment 243A concerns the annual report. In Clause 50 we see a requirement on the Secretary of State to publish an annual report on the performance of the whole service in England, which must be laid before Parliament. That, of course, is welcome. But my amendment asks that the report should include a statement on progress towards reducing relevant inequalities, on integration of services, on waiting time performance, and on health outcome performance. No doubt the noble Earl will argue that it is a list, and that the Secretary of State’s annual report is bound to cover these matters.

However, we are in new territory when it comes to specifying matters in the Bill. We are told that the Secretary of State is stepping back from involvement in the National Health Service, and that we should not worry about that, because there will be a mandate, and a constitution. All will be well. Those of us with some experience in these matters are rather doubtful as to whether that is sufficient in terms of accountability. In that context, it is right for Parliament to set out some details which we would expect the Secretary of State to report annually. Of course, there may well be other matters which one would wish the Secretary of State to report on, but my four areas cover some of the main points.

Amendment 245B relates to the intervention orders under the 2006 Act. I would be grateful if the noble Earl would confirm whether those intervention orders apply to the NHS Commissioning Board and clinical commissioning groups. If they do not, perhaps he could explain why not?

Amendment 245C deals with liabilities and the Secretary of State’s responsibility in relation to NHS organisations. Again, could the Minister confirm whether this duty applies to the NHS Commissioning Board and to clinical commissioning groups?

Amendment 245ZA relates to the general power of the Secretary of State. In page 289, line 30, the Government seek to dissipate the general power of the Secretary of State, as is currently set out in Section 2 of the 2006 Act. I realise that this takes us back to the crucial debate we had on day 1 about the powers and duties of the Secretary of State. The Explanatory Note which relates to this says that the reason for changing the wording is because there is no longer a duty on the Secretary of State to provide services. Given that those matters have been, in a sense, put to one side, is this part of the package that is being looked at, because it does relate to the general powers of the Secretary of State?

My noble friend Lord Warner made some very apposite points which I certainly support, and I was very interested in the remarks of the noble Baroness, Lady Cumberlege. I had been agonising about her amendments, and she has very helpfully clarified a point for all of us. She has really put her finger on it. I am disappointed that she did not take part in our debate at our last sitting ,when we discussed the complexity of the new arrangements.

We were promised a streamlined approach. What we have got instead is a highly complex set of arrangements. The NHS Confederation has expressed its concern about their complexity. I therefore like the amendment of the noble Baroness, Lady Cumberlege, that asks the Government to try to clarify for us who on earth is responsible for what in the new system.

When it comes to the key issues of the reconfiguration of specialist services and of funding, someone out there is going to have to hold the reins. Some agency or body is going to have to sort the problems out. It ain’t going to be the clinical commissioning groups. They are too small and they will not be able to do it, so someone else will have to. Is it going to be the clinical senates, or are we going to have to rely on the local government health and well-being boards, or will it actually be the local offices of the NHS Commissioning Board? I know that it will be the local offices of the NHS Commissioning Board. If that is so, we come back to the fact that that is patently going to be where the power is, and surely they ought to be made accountable. That is why I had an amendment down on our last day in Committee to turn them into statutory bodies. I detected a modicum of sympathy around the Committee, but not much more than that. However, the noble Baroness, Lady Cumberlege, as a distinguished former regional health authority chairman, knows that when we had the RHAs it was they that, in the end, had to intervene and sort problems out. There needs to be some sort of agency to do that in the future, and I think we should be told.

[Baroness Murphy]

My Lords, I had not intended to intervene but I have been stimulated to do so by the noble Lord, Lord Hunt of Kings Heath. The model being described of the Commissioning Board and its regional offices—the outposts—is very similar to the model that functions rather well for universities. There is the Higher Education Funding Council for England, which is centralised but also corporate with all its regional offices. The vice-chancellors, who you might say are the chief executives of the local organisations, relate directly to HEFCE. However, the regional executive officers are there to act as a moral support and a conduit. They do not necessarily sort out problems, but at least they are aware of them and know which areas the central body ought to be looking at. That is not so different from the way the regional officers from the Department of Health worked during the time of the district health authorities, between 1983 and 1990. If it is well done, and it has certainly functioned well for the duration of HEFCE, then it seems to me that it is a model which can be built on and developed. Is not that the way the problems the noble Lord is talking about will be resolved?

[Lord Hunt of Kings Heath]

I am grateful to the noble Baroness for her helpful intervention and I fully accept what she says. I want to make two points. First, we need an acknowledgment by the Government that there is going to be a kind of intermediate tier that, in the end, they can turn to when there are problems—if CCGs cannot work out a strategic approach or if reconfiguration is not taking place, as well as all the things that arise in the health service generally. My second argument is that I believe the health service is somewhat different from HEFCE in that it touches everybody, and the kind of issues that this intermediate tier will intervene on are likely to concern the public much more. There is then a case for making the intermediate tier a statutory body. Essentially there are two points here. I certainly agree with the noble Baroness about the importance of a helpful enabling intermediate tier which occasionally needs to intervene.

Health and Social Care Bill

Debate between Baroness Murphy and Lord Hunt of Kings Heath

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.