Maternal Safety Strategy

Baroness Thornton Excerpts

Tuesday 28th November 2017 Lords Chamber

[Baroness Thornton (Lab)]

My Lords, I thank the Minister for repeating this important and very serious Statement today. To lose a baby is a heartbreaking matter for parents and families, and something from which sometimes they never recover. Clearly, it should not be so hard for parents to find out what may have gone wrong and why they do not have the healthy baby that they were so eagerly anticipating. So it is quite right to have a much simpler and more transparent process to find out whether anything went wrong, what it was and whether it might have been avoided, and to apologise in a timely fashion if things went wrong.

I welcome the announcement that all notifiable cases of stillbirth and neonatal death in England will now receive an independent investigation by the Healthcare Safety Investigation Branch. The HSIB is a new organisation; are we going to see primary legislation in this Session establishing it? This development is definitely an important step that could bring certainty and closure to hundreds of families every year. We on these Benches also welcome the moves by the Secretary of State to allow coroners to investigate stillbirths. There is much else to welcome in this, including the tobacco control plan, which is a passion of my own.

Our National Health Service offers some of the best neonatal care in the world, and the progress set out today is a tribute to the extraordinary work of midwives and maternity staff across the country. However, it is shocking and heartbreaking that in nearly 80% of the cases referred to by the Minister, improvements in care might have made a difference to the outcome for the baby when things have gone wrong. There is no doubt that staffing shortages mean that midwives are under enormous pressure, which can lead to situations that have a devastating impact on families. While of course we welcome the Secretary of State’s ambition to bring forward to 2025 the target date for halving the rate of stillbirths, neonatal deaths, maternal deaths and brain injuries that occur during or soon after birth, that can be delivered only if the NHS units providing those services are properly resourced and properly staffed.

I looked in vain for something in the Statement to tackle the low levels of maternity staff, an issue that is clearly linked to safety. Noble Lords will know that the heavy workload in maternity units was among the main issues identified by today’s report, with service capacity in maternity units affecting over one-fifth of the deaths reviewed. Earlier this year, research revealed that half of maternity units had closed their doors to mothers at some point in 2016, with staffing and capacity issues the most common reasons. The Royal College of Midwives tells us that we are around 3,500 midwives short of the number needed, and this summer, for the first time, there were more nurses and midwives leaving the register than joining it. This issue will be exacerbated by the fall-off of new recruits from Europe post Brexit.

A survey published by the National Childbirth Trust this year showed that 50% of women having babies experienced what NICE describes as a red-flag event. These are indicators of dangerously low staffing levels, such as a woman not receiving one-to-one care during established labour. What action will the Government take alongside some of these excellent proposals properly to address the staffing shortages as part of the strategy to improve safety? I hope that the Minister can reassure us today that the Government will provide the resources that NHS midwives and their colleagues need to deliver on these ambitions.

Finally, if and when parents resort to legal remedies, as they sometimes feel they have no choice but to do, do the Government intend to deal with the performance of the NHS Litigation Authority in terms of both timeliness—acknowledging fault in a timely manner—and learning lessons which are properly disseminated? As the Minister quite rightly said, we must have a learning culture, but one area which fails is the conduct of the NHS Litigation Authority.

I thank the Minister for the Statement, and we would be very interested in working with him to put legislation on the book that makes these proposals happen.

[Baroness Jolly (LD)]

My Lords, I pay credit to our midwives, who do a wonderful job all across the country, and to those who campaigned to get the report and have spoken about it—I woke up this morning to a very moving Radio 4 piece on the “Today” programme.

I also welcome the Statement from the Secretary of State. Bereaved parents certainly want an answer, and this is an ideal way of helping them to reach some sort of closure. One of the critical points that the Each Baby Counts report makes about maternity care is the importance of continuity of care both for the expectant mother and for the team in the delivery suite. Staffing is an issue, with the workforce being short by 3,500 and a third of our midwives approaching retirement. Some midwives are adopting different patterns of work or choosing to leave the profession, but temporary midwives, be they bank or agency, are not the solution. They undermine the continuity that is so critical. A perfect storm is approaching about recruitment and retention.

Will the Government reconsider some form of financial support for midwives in training? Are any other incentives being considered? Will they guarantee an NHS midwife who is an EU national a job should we leave the EU? What measures are being considered to bolster the morale of NHS midwives, because at the moment, it is really quite low?

Brexit: Mental Health Research Funding

Baroness Thornton Excerpts

Thursday 23rd November 2017 Lords Chamber

[Baroness Thornton (Lab)]

My Lords, the European Commission made it very clear in October 2017 that British researchers funded under Horizon 2020 programmes will lose access to their grants in the future. Given that the EU is the largest single funder of mental health research in Europe and that the UK is a net gainer, will the Minister inform the House when we will see the plans to ensure that the UK remains a leading contributor and beneficiary of European-wide mental health research?

[Lord O'Shaughnessy]

As I said, we continue to bid for funds that we can draw down, and the Government are committed to underwriting any successful bids as part of the Horizon 2020 programme. Our intention is to continue in that programme. Obviously, if that is not the case, we will have funding available to support health research in this area, but our intention is to continue with the partnership that has proved so fruitful.

Older Persons: Human Rights and Care

Baroness Thornton Excerpts

Thursday 16th November 2017 Lords Chamber

[Baroness Thornton (Lab)]

My Lords, I join other noble Lords in congratulating my noble friend Lord Foulkes on bringing this debate to your Lordships’ House today and on introducing it with his usual verve and clarity.

We have had a great debate, which has, of course, shed light on the range and challenge facing us all as we get older. I thank the noble Lord, Lord Balfe, for welcoming me back to the Front Bench. I also hope he might try to do something about zero-hours contracts and outsourcing, which he referred to in his speech and which lie at the heart of his party’s economic and public policy.

As I reached the age at my last birthday which, I gather, tipped me over into the realm of “older person”, I wondered whether I should declare an interest. Then I realised, looking around the Chamber today that, with the exception possibly of the noble Baroness, Lady Cavendish, and, of course, of my ever-youthful noble friend Lord Cashman, we are mostly in the same boat.

Longevity is a cause for celebration, as well as for the concerns that have been expressed. My noble friend Lady Massey mentioned the stereotyping of old people. Her speech made me want to go out and dye my hair purple. I am very pleased that the Labour Government championed the rights of older people and enshrined age discrimination in the Equality Act 2010. It says that you should not be treated differently because of your age. It reflects the Human Rights Act 1998, the European Convention on Human Rights and the United Nations convention on the rights of older persons. The noble Baroness, Lady Greengross, is absolutely right. Human rights do not lessen with age.

I should like to raise an issue of discrimination with the Minister—the flagrant injustice done to all women born in the 1950s who are affected by the changes to the state pension law through the 1995 and 2011 Acts. I have two sisters who are affected by it and I just missed the cut-off by a whisker. This debate is about inequality and justice. The Conservative Government’s Pensions Act 1995 included plans to increase women’s state pension age to 65—the same as men’s. I think that everyone would agree with that equalisation, but I do not agree—and neither do many women—with the unfair way in which the changes were implemented in the Pensions Act 2011. There was little or no information for those affected and no time for them to make alternative plans. Retirement plans were shattered, with devastating consequences. What are the Government going to do to mitigate this injustice to this cohort of older women?

The second matter I should like to raise with the Minister is one which many noble Lords have mentioned: the crisis of funding in the provision of social care. The old and those with serious conditions, and the co-morbidities that go with them, bear the brunt of the squeeze in funding in the NHS, the reduction in spending on social care and the Government’s incoherent strategy—perhaps I should say lack of strategy—for integrated care. Council-funded social care was reduced from £16.6 billion in 2011 to £15.6 billion in 2016-17—a real-terms reduction of 6%. I thank the Local Government Association and Age UK for their brief. Councils have worked hard to protect adult social care spending in cash terms. However, the LGA’s latest analysis on the funding gap faced by councils shows that this approach is not sustainable. The LGA estimates that local government faces a funding gap of £5.8 billion by 2020, £1 billion of which is attributable to adult social care and includes only the unavoidable costs of demography, inflation and the national living wage. The figure excludes other significant pressures, including addressing unmet need. The scale of the funding gap and the crisis of unmet need is widely documented, not just by independent think tanks such as the Nuffield Trust and the King’s Fund but by the voluntary sector: Age UK, Sue Ryder and many others.

Given the important role that social care services play in supporting elderly and disabled people, it is crucial that the Government use this autumn Budget to take immediate action to address the adult social care crisis. Although I do not expect the noble Lord to share with us or to reveal what might be in the Budget, I hope that he and his colleagues agree that this is a cause worth fighting for. Have he and his colleagues done so in this spending round?

Finally, I ask the Minister when the Government will publish their planned consultation for proposals on the sustainability of social care. Hopefully, we can then start building a sustainable system for the future.

Hormone Pregnancy Tests

Baroness Thornton Excerpts

Thursday 16th November 2017 Lords Chamber

[Baroness Thornton (Lab)]

My Lords, I thank the Minister for repeating the Statement. I realise that the House is working him hard today, but he has the comfort of a huge department to provide his brief for him. In some ways, that underlines the dilemma that he and the Government face on this issue. This report has caused such dismay and disbelief among campaigners, and every MP who spoke in the Commons, that it requires the Government to use their critical faculties, listen to what is being said across the piece and look again at the report, its genesis and its lack of transparency.

I have two questions. First, will the Minister explain why Marie Lyon was told:

“I could go to prison if I divulge what was discussed”?


Does he agree that that is about as far away from transparency as it is possible to get?

Secondly, the draft of the report, which was published in October, stated that:

“Limitations of the methodology of the time and the relative scarcity of the evidence means it is not possible to reach a definitive conclusion”.


That sentence was removed from the final version. Why was it removed, why was there a delay of a month and did the Minister speak to the authors of the report about the sentence before its removal?

[Lord O'Shaughnessy]

I thank the noble Baroness for her questions. The most important thing to stress is that this report was the product of an expert working group of scientists and included an independent member in Nick Dobrik, who is a noted thalidomide campaigner and certainly not a government yes man. The chair of the families group, Mrs Lyon, was an observer. We are beholden to take the evidence of those who are best qualified and who have given their view on what link there may or may not have been between these pregnancy tests and the abnormalities. The conclusion they have come to is that, in their view, there is no causal association on the basis of the evidence they were able to consider.

The noble Baroness asked about transparency. Every single member of the expert working group signed a confidentiality agreement. That is common to all such groups in the Commission on Human Medicines. Mrs Lyon was not alone in that. That expires at the point of publication, so she is now absolutely free to say whatever she wants, as indeed is any other member. I can reassure her that there was no particular or unusual treatment for her compared to other members of the panel or to other panels that have operated in similar ways. The minutes of all the meetings will be published. As the Statement pointed out, the full evidence set will also be published, once it has gone through due diligence.

Changes to the draft were suggested by the Commission on Human Medicines and accepted by the expert working group. There was no interference from me or anyone else—it was a discussion between those two bodies. The report was unfortunately delayed. That was in order to make sure that it was as clear and as digestible as possible for non-experts. I think the report is a very thorough and comprehensible piece of work. I recognise that it is not the response that families were looking for. In some cases, they have experienced horrendous events—they have either lost babies or, in some cases, their children have extremely severe deformities—but I come back to the point that the task of the group was to look at whether there was a causal association. The group had scientific expertise. It has given its advice, and we are following it and the recommendations that it made.

National Health Service (Mandate Requirements) Regulations 2017

Baroness Thornton Excerpts

Wednesday 6th September 2017 Lords Chamber

[Baroness Masham of Ilton (CB)]

My Lords, I want to ask the Minister about the better care fund, which is for health and social care working together, which also comes under the mandate. The better care fund document was not available for scrutiny purposes, as it was not published until 15 days after the instrument was laid before the House. All relevant documentation should be available. Without that, effective scrutiny is not possible. What is the present situation, as this deals with some very vulnerable people?

[Baroness Thornton]

My Lords, I draw the attention of the House back to the resolution on the Order Paper moved by my noble friend. I hope that the noble Baroness, Lady Redfern, will forgive those of us on this side if we look sceptical because the reason that my noble friend, when he was Secretary of State, had to set the targets that he did was because of the record of her party’s Government over many years. If we are a little sceptical, it is because there is form on this.

Being a veteran of the passage of the Health and Social Care Act 2012, like my noble friend, I recall that there were many assurances given about the legal framework that would make the reorganisation work, particularly on the importance of the mandate. Therefore, I would be most interested to hear from the Minister on the last part of my noble friend’s resolution, which calls on the Government to publish the advice that they have received on the legality of their actions. Did they seek advice about the legality of their actions, given that they had been so keen to have that legality exist during the passage of the Act that set this framework and, if so, what did that advice say?

Mental Health Services

Baroness Thornton Excerpts

Thursday 25th June 2015 Lords Chamber

Asked by

[Baroness Thornton]

To ask Her Majesty’s Government what action they plan to take in the light of the report by the Care Quality Commission, Right Here, Right Now, regarding providing young people with adequate help, care and support during a mental health crisis.

[Baroness Thornton (Lab)]

My Lords, I know that the Minister is now almost a veteran in your Lordships’ House, but he is new to me and I have not had the opportunity to welcome him to his position, which is one that I held in the past. I hope that he will enjoy his job as much as I did, and I know that, like me, he will probably by now know his place in your Lordships’ House, given its huge expertise on health matters. If he knows that, he will almost certainly succeed in his position.

Earlier this month, the Care Quality Commission produced Right Here, Right Now, an investigation into people’s experience of help, care and support as a result of a mental health crisis. In your Lordships’ House, we fought for, and won, the battle for parity of esteem. Indeed, I am very pleased to say that it was Labour votes in the House of Lords that ensured that the Government wrote parity of esteem between mental health and physical health into law. However, I am afraid that since then it has become clear that the reality does not match the rhetoric. Despite the Government saying that they would protect front-line services, on the coalition Government’s watch the budget for child and adolescent mental health was reduced year on year, and we have seen key prevention and early intervention services stripped back, such as child and adolescent mental health services—CAMHS—and early intervention in psychosis services.

This latest report found that people’s experience of mental health crisis care was simply not good enough, with children and young people in particular experiencing very poor care. I commend the CQC for this report, which clearly shows significant variations in the help, care and support available to people in crisis, and that often a person’s experience depends not only on where they live but on what part of the system they come into contact with. The CQC asked people to share their experiences, and what people told it demonstrates a real weakness in mainstream mental health provision as regards 24-hour crisis care. In some cases, the only recourse for people trying to access crisis services is to a phone line telling them to go to their local emergency department.

For children and young people, the problems are even more acute. There is a lack of health-based places of safety for children and young people. Many units do not accept children under 16, there is the problem of places of safety being already occupied, and there is a lack of CAMHS availability to support out-of-hours care. These issues often mean that children end up travelling many miles away from home. In June 2014, the Royal College of Psychiatrists conducted a survey that revealed that 83% of those surveyed had experienced difficulty at least once in finding an appropriate bed for children and young people, and that 22% of respondents who worked in child and adolescent mental health services had placed a child 200 miles away from their family.

Right Here, Right Now reveals a disparity between adult and child crisis care, particularly in accident and emergency. It found that:

“Through our local area inspections on people presenting to A&E in crisis, we found that there were clear differences in the quality of care experienced by those under 16 compared to those over 18 years old. The liaison psychiatry service met specifications set out in the RAID model. Adults were seen promptly and there were clear pathways through to community services. People aged 16 or 17 would be seen and assessed by the RAID team with support from CAMHS, while those under 16 were referred directly to the child and adolescent mental health service … This may be an appropriate referral route, but in practice it meant that if a CAMHS referral was made after 12.00 noon, the child would not be seen until the following day or potentially after the weekend, as the CAMHS team did not offer out-of-hours service”.

The disparity in care at accident and emergency is particularly concerning given that the number of children under 18 attending accident and emergency for psychiatric conditions increased by 82.5% between 2010-11 and 2013-14.

Young Minds, an organisation that does excellent work, believes that as well as improving the response to children attending accident and emergency with mental health crises, much more should be done to provide early intervention support so that children do not end up in a crisis in the first place. A freedom of information request by Young Minds found that 74 out of 96—77%— of NHS clinical commissioning groups froze or cut their CAMHS budgets between 2013-14 and 2014-15. It also found that 59 out of 98—60%—of local authorities in England have cut or frozen their child and adult mental health services budgets since 2010-11, and that 56 out of 101—55%—of local authorities that supplied data have cut, frozen or increased below inflation their budgets in this area. It has also been revealed that 80 educational psychologist posts have been lost since 2010.

As well as the disparity between experiences of attending accident and emergency, there is a disparity between adults and children when it comes to health-based places of safety under the Mental Health Act. While I am sure that everybody would welcome the move to end the practice of detaining children and young people in police cells, Right Here, Right Now says:

“The decrease in the use of police custody may not mean that people are more likely to be detained under section 136 in dedicated places of safety based in mental health services. It may be that a desire to avoid using police custody has moved the pressure to elsewhere in the local system”.

It also says:

“We also had concerns about the provision of appropriate places of safety for children and younger people. We found that too many providers had policies that excluded young people from all their places of safety … These restrictions created untenable situations where people under 18 were one and a half times more likely to end up in police custody. However, there has been a major drive to reduce the number of children and young people in police custody”,

which we welcome. It goes on to say:

“Between 2012/13 and 2013/14, the percentage of under 18s detained in police custody fell from approximately 45% to around 31% ... This is a positive achievement, but it still means that nearly one in three people under 18 ended up in police custody rather than somewhere they could receive appropriate treatment”.

I have some questions for the Minister. Future in Mind, the report of the Children and Young People’s Mental Health and Wellbeing Taskforce, states:

“If you have a crisis, you should get extra help straightaway, whatever time of day or night it is. You should be in a safe place where a team will work with you to figure out what needs to happen next to help you in the best possible way”.

For many children and young people, as the CQC report makes clear, this is simply not the case. What steps is the Department of Health taking to implement Future in Mind? Indeed, what are the Government doing to ensure that early intervention actually happens? How will they persuade the CCGs to give this the priority that it needs, as this is the obvious and oft repeated answer to how to mitigate these crises? Given the paucity of child-appropriate health-based places of safety, as the CQC highlights, does the Minister share the CQC’s concern that the banning of police cells, while most welcome, will create pressure in other parts of the system? Does the department have any solutions?

In Stamp Out Stigma, the Time to Change campaign seeks to tackle the stigma surrounding mental health and to break the taboo that is often associated with mental health problems. I was recently surprised to read the comments made by a Member of this House about mental health, which illustrates why we need to be on our guard not to perpetuate, even by accident, the stigma that goes with mental health issues. In a discussion about lowering the voting age, a noble Lord said:

“My Lords, does the Minister agree that an important part of due diligence in the policy of lowering the voting age would be to consult child development experts? Is she interested to learn that the view of a child development expert who has treated 16 and 17 year-olds for depression, eating disorders and other health issues over many years is that while quite a few 16 and 17 year-olds would be old enough to make a good decision in this area, many would not?”.—[Official Report, 1/6/15; col. 157.]

Several arguments can be made about not lowering the voting age. The issue of mental health is not one of them. In fact, it is probably a rather dangerous road down which to tread.

I have a final question for the Minister. Labour committed to enshrining in the constitution a right to mental health therapies. Just before the election, the Conservatives announced that they would do the same. The Government have launched a consultation, which has subsequently concluded. When can we see a response to that, and what action might be taken?

Right Here, Right Now highlights yet again that mental health services are failing and that this is a very unsatisfactory situation that creates terrible distress, stress and heart break, and sometimes even worse, for people with mental health problems and their families.

Abortion (Sex-Selection) Bill

Baroness Thornton Excerpts

Tuesday 16th December 2014 Lords Chamber

[Earl Howe]

My Lords, the legal position is not in doubt. It is illegal to abort a foetus based solely on its gender. The Abortion Act states that two practitioners have to be,

“of the opinion formed in good faith”,

that the woman had grounds for an abortion. It is for doctors, in line with any guidance from their professional bodies, to satisfy themselves that they are in a position to give the opinion and to defend it if challenged. We refreshed the guidance in May of this year to make the position crystal clear.

[Baroness Thornton (Lab)]

My Lords, anyone who seeks an abortion on the basis of wrong gender is perpetuating a practice that is not only morally repugnant but illegal, as the noble Earl said. Sex-selection abortion is banned in the UK under the Abortion Act 1967. Does the noble Earl agree that because this practice happens in certain places in the world it may be taking place illegally in those communities in the UK? What are Her Majesty’s Government doing to identify whether this is the case?

[Earl Howe]

My Lords, our latest analysis of data by country of birth and ethnicity, which we have done for a second year running, found no evidence of sex selection taking place in the UK. Without exception, the wide variation in birth ratios was within the bounds expected. Any termination wilfully failing to meet the requirements of the Abortion Act will render those performing such procedures liable to prosecution under other legislation.

Abortion

Baroness Thornton Excerpts

Wednesday 12th February 2014 Lords Chamber

[Earl Howe]

My Lords, as I have said, the guidance to abortion providers will be updated and that will include the guidance to independent sector providers. It will be made abundantly clear that gender selection is illegal.

[Baroness Thornton (Lab)]

The Minister has explained the issue extremely clearly. When the next tranche of research on live births comes through, will the Government undertake to dig deep into it to ensure that illegal sex-selective abortions are not taking place? Secondly, there is a statement in today’s Daily Telegraph about 36 abortion centres that are giving unreliable and misleading advice to women who wish to discuss terminations—for example, by telling them that if they have a termination they may get breast cancer. I know that the Department of Health has issued guidelines on this but I would like to know what the Government intend to do about it.

[Earl Howe]

On the noble Baroness’s first question, the detailed analysis that we did last year was quality-assured by the methodology team at the Office for National Statistics. I can tell her that the team will quality-assure the future analysis of data each year. On the story in the Daily Telegraph, patients should be able to expect impartial advice from the NHS. CCGs and NHS providers must account for the counselling services that they recommend. Guidance on the provision of non-judgmental counselling was included in the Government’s framework for sexual health improvement, published in March last year.

NHS: Competition

Baroness Thornton Excerpts

Monday 10th February 2014 Grand Committee

[Baroness Thornton (Lab)]

My Lords, I hope that the Minister is not feeling got at, and I am extremely pleased to note that the noble Baroness, Lady Brinton, will be speaking in the gap. I think that the lack of speakers in this debate bears out what we knew during the passage of the Bill—that this is a hellishly complicated matter. I wonder, indeed, where the noble Lords, Lord Clement-Jones and Lord Marks, and the noble Baroness, Lady Williams, are. I know that the noble Baroness, Lady Jolly, is here today, but she is now bound to support what the Minister has to say. Where are the noble Lords who helped to get the current competition regime through your Lordships’ House and on to the statute book two years ago, and why are they not here to explain how well they think it is working and that their support for it is therefore justified?

We know that people are fearful, as my noble friend has explained. They are fearful on the ground. They do not know how to express their worries, and often they realise too late that something precious has been undermined when the decisions their doctor is making may have something to do with Spire Healthcare or Richard Branson’s Virgin Care on the bottom line than what might be best for them—or that, at the least, those two things are being balanced against each other.

We know that competition comes in many flavours. Peer competition, as expressed by my noble friend, for clinical excellence is fine. Indeed, I have long championed the provision of social enterprises, and what value they can bring to some healthcare as being good for everyone concerned—not least the taxpayer because 5% to 10% is not being siphoned off into the pockets of shareholders across the world. That profit is being ploughed back into the social purpose of the provider and innovation. Indeed, we know that there has always been a mixed market in the provision of healthcare, and always as part of a planned process of provision.

Competition in various forms between NHS providers has been tried, as with the wide choice of acute providers for routine operations. As my noble friend has said, by 2010 the Labour Government had come to accept that there may be some occasions when an incumbent NHS provision could not be brought to the required standard and an open competition might be best. Tactical use of open competition could therefore be a tool. However, the Health and Social Care Act was always about competition as a strategy which essentially sees healthcare as a commodity and, essentially, Part 3 of the Act brings into play the ideas that have been used for the privatisation of utilities in the past. We went through this at length and, on this side of the House, we predicted what might happen.

The NHS has now tendered three-quarters of new contracts to competition. Section 75 regulations were made under the Health and Social Care Act in April last year. They appear to force competition on to the NHS in contravention of ministerial promises made during the stormy passage of the Act itself. At a critical juncture, the then Health Secretary Andrew Lansley wrote to the new local—as they became—clinical commissioning groups, telling them that,

“I know many of you have read that you will be forced to fragment services, or put services out to tender. This is absolutely not the case. It is a fundamental principle of the Bill that you as commissioners, not the Secretary of State and not regulators, should decide when and how competition should be used to serve your patients’ interests”.

He told the House of Commons:

“There is absolutely nothing in the Bill that promotes or permits the transfer of NHS activities to the private sector”.—[Official Report, Commons, 13/3/13; col. 169.]

Indeed, the noble Earl, Lord Howe, promised us here in your Lordships’ House:

“Clinicians will be free to commission services in the way they consider best. We intend to make it clear that commissioners will have a full range of options”.—[Official Report, 6/3/13; col. 1691.]

However, when the regulations emerged, there was a storm of protest. The noble Earl repeated:

“It has never been and is absolutely not the Government’s intention to make all NHS services subject to competitive tendering”.—[Official Report, 12/11/13; col. GC266.]

Can the Minister put a percentage on what he thinks is a reasonable amount to go out to tender and what he thinks is not a reasonable amount to do so?

Critics, including leading lawyers, say the redrafted regulations did no such thing; they did not fulfil the promise that the noble Earl had said that they would. They still enforced compulsory markets in the NHS, regardless of clinical or local wishes and in contravention of government promises. Indeed, my noble friend has given some examples.

In the debate on 24 April 2013, Liberal Democrat health spokesperson, the noble Lord, Lord Clement-Jones, told the House of Lords:

“Commissioners will not be forced to tender”.—[Official Report, 24/4/13; col. 1486.]

Indeed, the noble Earl backed him up, saying that,

“it is NHS commissioners and no one else who will decide whether, where and how competition in service provision should be introduced”.—[Official Report, 24/4/13; col. 1508.]

The noble Baroness, Lady Williams, told the Lords:

“We have learnt in the debates in this House to trust the noble Earl, Lord Howe”.—[Official Report, 24/4/13; col. 1496.]

Well this is a matter not of trust or otherwise, but of whether the Government’s course is the right one. We believe that the evidence now shows that, indeed, it is not. The proof of the pudding is in the eating, as my noble friend has said.

Is the Minister now prepared to release the Government’s legal advice on this matter, which has not been released so far despite requests from various people, including my noble friend Lord Hunt? Overall, the impact of the Health and Social Care Act has been negative, as it has deflected money and energy from clinical care into administration. We have seen the fears from CCGs around what Section 75 means. It appears to mean—certainly, this is what many CCGs understand—that almost every service has to be competitively tendered.

We have seen a CCG offering the biggest NHS contract in history, in Cambridge, and making a thorough mess of that process. We have seen claims by a CCG in Oxford to be leading on competition for outcomes, and, again, stalling when confronted by providers. My noble friend has also mentioned what has been happening in Blackpool, in relation to Spire. I would like the Minister’s comments on what has happened in Blackpool, and what he thinks are the implications of the Spire challenge, and Monitor’s support for it.

I also want to ask the noble Earl about the amount of money that has had to be spent in Bournemouth and Poole on the merging of the hospitals there. The merger seems to be completely justified on clinical grounds; however millions of pounds have been spent on lawyers and paperwork. This is one of the hospitals that already have a deficit: the merger is urgently needed. Does the noble Earl think that can be justified in today’s cash-strapped NHS?

We have heard from many people that they believe that the requirement for competition is hindering the need for integration and co-operation—as we said it would. The people who seem to be benefiting most from the new regulations and the new NHS, as structured by the Government, are competition lawyers. They are being allowed to call the shots, it would appear. Most of all, the vision expressed by Mr Lansley in 2006 for a regulated market for our healthcare seems to be losing its supporters and its driving force is gone. Indeed, rumours abound that the once-enthusiastic Liberal Democrat fellow travellers are now seeing the light. Much of what Mr Lansley wanted is being rolled back or ignored.

The problem is that the market requires no strategic direction because it has its own impetus, which is to make profits where they can best be made. The NHS needs a strategic direction. The Government, however, are incapable of delivering that strategic direction because in the passage of this Act they have given away the levers that would allow them to do so. They can make statements, they can make plans, they can pass strategies, but they no longer have the levers to be able to deliver them.

What does the future hold? Would the Minister speculate about what the next Conservative manifesto might offer the NHS? Noble Lords may remember that the Prime Minister promised that there would be no more tiresome, meddlesome top-down restructuring. That statement may have been wiped off the internet by the Conservative Party, but we remember it very well. What does the Conservative Party think that it might bring forward in its next manifesto? I finish by quoting what David Nicholson, the retiring head of NHS England, has said about this:

“We are bogged down in a morass of competition law. We have competition lawyers all over the place telling us what to do and causing enormous difficulty”.

He also said,

“All of [the politicians who drew up the Health and Social Care Act] wanted competition as a tool to improve quality for patients. That’s what they intended to happen, and we haven’t got that…”.

--- Later in debate ---

[Earl Howe]

The market, however, did exist, which was the point that I made. The market was out there well before the 2012 Act and well before this Government came to office. It was incumbent on us to clarify and simplify the rules that the previous Government put in place. We did that through Part 3 of the Act. It was not a signal to anybody to marketise the NHS. Indeed, as I said, we explicitly provided for it to be illegal for Ministers or Monitor to prefer the independent sector over public sector providers. That is explicit in the Act, so the noble Lord cannot accuse the Government of enabling legislation to promote marketisation.

[Baroness Thornton]

My noble friend’s question was actually about the signal. If, as the noble Earl has told us, all these things existed before the Act, why did we have to have Part 3 of the Act? Why was it necessary? The only reason that it seems to have been necessary—we think that the evidence now shows that to be the case—is that it increased marketisation in the NHS.

[Earl Howe]

Let me be clear. Repealing Part 3 of the Health and Social Care Act, which is what the noble Baroness appears to be suggesting is desirable, would not stop competition law applying. It would not remove the powers that the OFT has, which were introduced by the previous Government. It would just mean that a health expert regulator—Monitor—would not be the body considering the application of competition law to the NHS. I do not believe that that is in the best interests of patients. That provision was widely welcomed by those who understood these matters.

I was asked about the case involving Blackpool and Spire. It would not be appropriate for me to comment on an ongoing investigation by the independent regulator but I stress that, in considering this case, Monitor is doing nothing that the Co-operation and Competition Panel could not have done under the principles and rules for co-operation and competition. As regards the Greater Manchester proposals which the noble Lord, Lord Hunt, raised, I can inform him that Monitor has closed that case and NHS England is pursuing its procurement of these services.

The noble Baroness, Lady Thornton, asked about Bournemouth and Poole. I want to be clear that there is nothing to stop two providers coming together if it is in the best interest of patients. The OFT has already cleared two out of three mergers. However, while in some places mergers have improved things for patients, there is evidence that some mergers can be costly and may not deliver the benefits that were intended. It is therefore right that these are examined. The competition authorities have listened to concerns raised in the system. That is why, in October last year, they set out their commitment to work together with Monitor to ensure that the interests of patients are always at the heart of the merger review process; that the process works quickly and predictably; and, importantly, that any costs can be minimised.

Monitor will take a more active role in supporting merging parties and advising the OFT. This means that some mergers may not need to go to the competition authorities at all, and that those which do can be dealt with more quickly. For example, the proposed merger involving Torbay and Southern Devon Health and Care NHS Trust—an integration pioneer—and the South Devon Healthcare NHS Foundation Trust is one of the first cases in which, with the help of Monitor, the trusts have been able to self-assess and conclude that they do not need to notify the merger to the OFT, as it would be unlikely to raise concerns from a competition perspective.

The noble Lord, Lord Turnberg, challenged me on the evidence for the value of competition. There is robust evidence, as I have already mentioned. A report of January 2012 by the Office of Health Economics states that,

“evidence both from the UK and internationally suggests that quality based competition with prices fixed by a regulator can be beneficial, producing higher quality care at the same cost on average and, importantly, not leading to increased inequity in access to care”.

Researchers at the London School of Economics have found that hospitals in areas where patients have more choice of provider have shorter lengths of stay in hospital and lower death rates than in less competitive markets. Research by York University found an increase in quality at a hospital stimulated local rivals to respond, as well as to increase the quality of their services. The research found improvements in relation to mortality rates, stroke readmission and patient satisfaction.

There are various other answers that I would like to give, but I have been advised that I am well over time, for which I apologise. I simply conclude by saying that this has been, as ever, a stimulating debate on a topic to which I am sure we will return in coming months. I hope that my comments today have at least partially clarified the legal position and wholly clarified our intentions regarding the place of competition in the NHS. I hope, too, that they have provided some measure of reassurance to noble Lords that the system is acting upon the concerns that it hears.

Children and Families Bill

Baroness Thornton Excerpts

Wednesday 20th November 2013 Grand Committee

[Baroness Young of Old Scone (Non-Afl)]

My Lords, I hope I am not the only person who is going to speak at this point. I would find it really awesome to be the only one who caused this rather rare event of an amendment being carried over between two sessions of business.

I support Amendments 264, 265 and 266 on standardised packaging. I do not want to make too many of the points that have already been made—at breakneck speed, may I say; it showed that we can speed up if we put our minds to it—but will bring in a few others. There really is quite a consensus stacking up that there is a pressing case for standardised packaging.

The World Health Organisation says that standardised packaging would produce,

“the maximum reduction in the marketing effect of tobacco packaging”.

Australia has adopted it, as everybody knows, and the early evidence is that the standardised packs there are making smoking less appealing and have not caused any problems for retailers, which was one of the predictions. Scotland and Ireland have committed to it in principle, and I have it on very good authority that the Health Minister in Wales is convinced of the evidence. New Zealand, Canada, France, Norway and India are all considering this way forward.

We have huge support here from the medical colleges, including the Royal College of Paediatrics and Child Health, from the BMA, and from charities such as my own charity, Diabetes UK—I declare an interest as chief executive—as well as Cancer Research UK and the British Heart Foundation. They all believe that there is an increasing body of hard evidence. Of course, the public support standardised packs, with 64% polling in favour.

Standardised packs are really important because packaging is the last advertising route left to manufacturers and tobacco companies are spending a huge amount on pack design, and they do not do that for no reason. They recognise the truism that kids and young people are attached to brands. If you have ever tried to persuade your child to buy a pair of supermarket trainers you will know exactly how attached to brands they are.

When I was a kid and all my friends were starting to smoke, there was a league table of cachet. I am really old so Navy Cut was considered a bit more gentlemanly than Wills Woodbines. Embassy and Regal were the great working man’s fags and of course Silk Cut was for the ladies. Then the 1980s came and people took up Camels or Gauloises or, the height of cool, Lucky Strike. I was terribly tempted, I must say, by Balkan Sobranie, which were wonderfully coloured little cigarettes with gold filters. I had a friend, Brian, who smoked them and I used to sit there with one unlit, toying with this beautiful, chic sophistication while he puffed away. Alas, he died at 51 of lung cancer.

Helena Rubinstein used to say:

“In the factory we make cosmetics but in the store we sell hope”.

But of course we are not talking about selling hope; we are talking about selling addiction, cancer, heart disease, poor quality of life and early death for our children and young people.

Noble Lords have already shown that more than 200,000 kids aged between 11 and 15 start smoking each year. We really should take the step. Why do the Government continue to delay? I am sure the Minister will tell us. If they are waiting for the emerging impact of the Australian policy, they should not. The conclusive evidence could take two or three more years with another 500,000 kids addicted to a killer habit. We know that HMRC believes that there is no evidence that standardised packaging would increase the illicit trade that is one of the concerns, so there is no case for waiting for the Australian evidence. Why does the Minister believe there is a case for further delay? Will he please simply give in and get the Government to support Amendments 264, 265 and 266? I particularly commend Amendments 265 and 266, which strengthen the amendment further.

[Baroness Thornton (Lab)]

My Lords, the noble Earl and I have been discussing the regulation of tobacco products since 2008. At that time he was often sceptical about the efficacy of our proposals for the retail marketing of tobacco products. I particularly welcome these amendments because it is important that we keep this issue alive. Since 2010, my noble friend Lord Hunt and I, as well as others, have asked a series of questions about the enactment of the legislation concerning the display of tobacco products. I congratulate the noble Earl on making that happen successfully. It has been a success: it is now normal to walk into your corner shop and not see tobacco products side by side with comics and chocolates, which used to normalise tobacco for our young people.

It is important to be clear in what we are talking about. There are all the statistics in the world that people can talk about in terms of cancer, addiction and all those other things. However, we are talking about whether we are prepared to allow the over-powerful and wealthy tobacco companies to gain their next market for the profits they need to make from tobacco products. That is what this amendment is about. They can exist only if they continue to recruit young people to tobacco addiction so that they have their next generation of smokers, and that is what this is about. It is about reducing the number of young people who, by becoming addicted to tobacco and tobacco products, provide tobacco companies with their next generation of smokers. We know how hard it is to stop smoking once you have started, and I speak as an ex-smoker.

I hope that, over the years when the noble Earl has distinguished himself as the Minister in his job at the Department of Health, he has had access to all the information and research, and now has at his disposal all the facts about tobacco addiction and all the terrible diseases that this brings to everybody, so that he will be convinced that we need to take this forward. I hope he will tell the Committee either that the Government will support these amendments, or that they are not necessary because the Government intend to take plain packaging forward as quickly as possible.

[Lord Judd (Lab)]

My Lords, my noble friend just referred to how difficult it is to break the habit once you have formed it. I was a smoker in my youth. I progressed to a pipe, and on one occasion I was in some gathering with fellow young people when the bowl of my pipe dropped off into a pint of beer. I realised that this was a message from God and that one or other had to stop. I had little difficulty in choosing beer with which to continue. We all have these experiences. I am sure I am not alone in remembering with some guilt that, having joined the smoking culture—certainly the presentation of tobacco and cigarettes was an important part of the wooing of a person into the habit—I used to take tremendous pride in choosing the right cigarettes for my father on his birthday or at Christmas. That was very important, because he was a smoker and I was able to present him with a well wrapped packet of what he would like. Later in life, he suffered a severe stroke which left him speechless for the rest of his life, and I have always had an element of guilt about the fact that I no doubt contributed to that development in his health.

I do not understand why we prevaricate on these issues, as we are talking about a killer. Let us get this absolutely straight: it is a killer. We have no hesitation in saying that we must have rules about seat belts in cars because children get killed in accidents. We have special rules about children in cars because of how vulnerable they are. Why, if we take this seriously for seat belts and the rest, do we not take it equally seriously for tobacco?

My final point is that, as a society, we are agonising over the difficulties faced by our health service as it tries to grapple with the pressures on it. By enabling and encouraging young people to become part of the smoking community—by allowing them to drift into it or, indeed, by encouraging the deterioration in their health because of our failure to take rigorous action—we are deliberately adding to the problems of the health service. It seems to me that this is not only wrong but irresponsible. On the one hand to be grieving and agonising about the problems of the health service and the shortage of funds, and on the other hand to be aggravating it by our failure to act where we could act, seems to me irrational behaviour.

I commend noble Lords who have tabled these amendments, which certainly deserve support. I believe we shall be looked at very critically indeed in history for having prevaricated and pussyfooted for so long on such a crucial issue.