Health and Social Care Bill
Baroness Thornton Excerpts(13 years, 4 months ago)
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Baroness Thornton
“(1B) Annual proper accounts and proper records must be separately prepared and kept which separately detail the income and expenditure derived—
(a) from private charges, and(b) in relation to the provision of services to NHS patients.(1C) “Private charges” means charges imposed in respect of goods and services provided to patients other than patients being provided with goods and services for the purposes of the health service in England.”
Baroness Thornton
My Lords, I start by wishing everybody in the Chamber a happy International Women’s Day.
We turn to the discussion about the private patient cap. We have three amendments in this group, and I will talk to each of them.
Amendment 218A seeks to ensure that proper information is available on private patient income—that is, more than just the final line of total income. This is relevant to ensure that there is no possibility of cross-subsidy from the NHS to the private sector, either directly or by some accountancy magic. There needs to be absolute clarity. As we see new foundation trusts emerge that are neither mental health nor acute-based trusts—ambulance trusts, for example—the issues may be different but the need for transparency and accountability is just the same. This is important for openness and transparency and makes easier the kind of considerations that the governors need to apply. It is also a means of sending a signal that this activity is separate and, at least in some sense, subordinate to the principal purpose, which is to treat NHS patients.
The amendment seeks to delete the part of Clause 163 that brings in the 49 per cent test, which is a new way of making explicit the “principal purpose test” that all foundation trusts have to meet. I think we could all agree that the reaction to the figure of 49 per cent shows how strongly many believe that this is an obvious signal that there should be a great increase in private income that is neither anticipated nor desired. We know that in reality very few foundation trusts even get to 5 per cent, let alone 50 per cent, and there is no immediate prospect of them doing so. It is therefore difficult to see why the Liberal Democrats or indeed Mr Lansley would be so crass as not to see how the 49 per cent figure would be greeted.
There are several dangers with this late pre-Christmas addition to the Bill. It sends the wrong message. We believe that it may tempt bureaucrats and quangos charged with funding to say that some foundation trusts should get less funding as they have not done enough to push up their other sources of income, as we have seen with local authorities that rely heavily on other income. This would be totally wrong and an inappropriate target for the NHS. We also think that there is a danger that high levels of foundation trust income may exacerbate fears of queue-jumping and charging.
There is a serious argument that when private patient income is as the result of innovation and intellectual property, as we all wish to be the case, then high levels of benefit should be shared more widely rather than being kept in one trust. Since the NHS as a whole will have nurtured that opportunity, the NHS as a whole should benefit. A high-performing trust with little or no private income is certainly no worse than any other, and some may argue that it may even be better if its focus is in the right place—that is, NHS patient care. We suspect that this might be an attempt to shift foundation trusts from being NHS providers that focus on NHS patients to some sort of multinational health business, and that their success or otherwise will be measured against a new benchmark of how much private patient income they generate.
Of course we recognise the special place that some of our leading hospitals have in the high private patient cap that they need to reflect their partnerships with research and other institutions across the world. None of these amendments seeks to diminish that—indeed, quite the reverse—but those hospitals will only ever be a small number, and the amendments address the majority of foundation trusts.
In Committee I asked the Minister for any evidence of benefits to NHS patients. It seems that the Government were just relying on claims made by a number of foundations trusts eager to expand. One day perhaps a proper independent study will be carried out. Some would say that independent studies into claims that foundation trusts are more innovative or that they improve faster than non-foundation trusts have been disproved by evidence. The real test is how private income benefits NHS patients, and that is not the same as benefiting the organisation or the prestige of some of its senior staff. Removing the 49 per cent and relying on the principal purpose, plus the role of governors, is a much better route to providing the flexibility that is needed to change private patient income caps. Our Amendment 220C addresses that issue, and it has been the subject of much discussion. I hope that the misrepresentation of that amendment, particularly by the Prime Minister, will not be repeated here. We accept the need for flexibility, and were looking at this matter when in office.
Lord Marks of Henley-on-Thames
My Lords, this group of amendments is on the question of foundation trusts’ private income cap. All of us are agreed that the number of private patients and the amount of private income are important considerations for foundation trusts. The risks to the NHS of too much private income and private treatment in foundation trust hospitals are clear and perhaps do not need rehearsing at length. If too many beds in such hospitals are taken up with private patients, unless we are very careful, that may limit accessibility of those beds to NHS patients. The development of foundation trust hospitals with an unusually great proportion of private income may—again, unless we are very careful—threaten to undermine the commitment to reducing health inequalities that runs through the Bill. Emergence of “star hospitals” could threaten other hospitals in the region.
Finally, the threat of foundation hospitals being subject to EU competition law would have been greater if it were possible to have foundation trust hospitals a majority of whose income was private; that, at any rate, is our view. This is one of the principal reasons for the cap on caps, by which the principal purpose of foundation trust hospitals can only be fulfilled if more than half of foundation trusts’ income is NHS income. That is the so-called 49 per cent.
I say to the noble Baroness, Lady Thornton, that the only reason that that majority provision can be said to send the wrong message is that, sadly, some in her party have taken to the airwaves to say that there is a hidden agenda to the Bill by which the Government seek to make national health foundation trust hospitals have 49 per cent of their income from private patients. There is no such hidden agenda. Frankly, it has not been responsible politics to raise people’s fears by going around the country suggesting the contrary.
Baroness Thornton
Does the noble Lord think that it was necessary to put 49 per cent in the Bill? Why did the Government have to put a percentage in at all? Does he think that the communication issues, as it were, around this were handled very well?
Lord Marks of Henley-on-Thames
My Lords, on these Benches we take the view that it was sensible to include this provision. The advice that we have is that the risk of the application of competition law is reduced by ensuring that the majority of income for NHS foundation trust hospitals will always be for the purpose of treating NHS patients. It is not an absolute guarantee but it is a sensible risk-reduction exercise and it was put in for that purpose. There is no point in taking a risk unnecessarily. The communication problem has frankly been the result of the efforts of opponents of the Bill, partly in the party of the noble Baroness, in stressing the 49 per cent and suggesting that it is the purpose of the Bill, which, as I say, it is not.
That is not to say that private income in NHS foundation trusts is bad. The Labour Government recognised that throughout. In her speech, the noble Baroness herself very properly recognised it. Private income represents an opportunity for foundation trusts to attract innovation, to buy new and expensive equipment and to develop world-class centres of excellence. We recognise and applaud those features of private income. However, when tabling Amendment 220B, we were concerned that there should also be an individual arrangement for foundation trusts by which individual limits would be subject to agreement with Monitor.
Earl Howe
With respect to the noble Lord, perhaps I may point to a later group of amendments in the name of my noble friend Lord Phillips, which gets to the heart of that question. I do not think that the noble Lord’s question is directly related to the private patient income cap but, if I may, I should like to cover the answer to it when we reach the later group.
Baroness Thornton
This goes back to the maths, which partly relates to the question that I asked the noble Earl earlier. I think that the Minister and his colleagues may need to look at what his proposals actually say about the proportion. His amendment refers to 5 per cent, and I am not sure that that is not a very tiny amount. I do not want it to be a particularly big amount but I am not sure that the Bill says what the noble Earl says it says. That is the clarification that I need.
Earl Howe
I shall gladly seek clarification and, if I have misled the noble Baroness, I apologise. By the time we reach the end of the debate, I shall have made doubly certain that what I said was correct. I hope that the approach that I have just laid out will allay noble Lords’ concerns, subject to any clarification that I am able to offer the noble Baroness. I am now told that I was absolutely right in what I said.
One thing that these arrangements may well do is nurture the working relationship between directors and governors. I think that they would help to ensure that directors worked collaboratively with their governors to develop non-NHS activity in the best interests of NHS patients. A planned increase of 5 percentage points or more in one year would be a very significant increase in non-NHS income for any foundation trust. Such an increase would certainly be due to a major development becoming operational, such as a new private patient facility. Requiring governors to vote on such a significant development strengthens directors' accountability to their local communities. However, I take the point made by the noble Baroness, Lady Murphy, about confidentiality. In all of this, we should be aware that the strengthening of the governors' oversight in this way places increased responsibility on the governors to maintain an appropriate level of confidentiality while a new project is initially developed. I would expect the directors and governors to ensure that a foundation trust's constitution would protect that.
Earl Howe
My only frustration was that I was getting to what my noble friend wanted me to cover but she did not give me the chance to do it. Otherwise, I am more than happy to take questions from noble Lords on points of clarification.
I was explaining that governors, as representatives of local communities, will hold directors to account for ensuring that non-NHS activity does not significantly interfere with the foundation trust’s principal legal purpose, which is to provide NHS services. Our proposals strike the right balance between the powers of the directors and the responsibility of the governors.
The answer to my noble friend’s point, and that of my noble friend Lady Williams, is that Monitor will publish guidance for NHS providers on the requirements it sets for them to maintain the continuity of NHS services. We fully expect this guidance to cover conditions for foundation trusts relating to the need to ensure that the continued provision of NHS services is not put at risk by non-NHS activity. As the House will know, foundation trusts will be required to demonstrate how non-NHS income contributes to the foundation trust’s delivery of improved NHS services. In particular, if a foundation trust is increasing its non-NHS income by more than 5 per cent of its total income in a year, we will expect Monitor in every instance to review whether there is any cause to intervene in order to safeguard the ongoing provision of NHS services. This will be in addition to the required scrutiny and approval by the foundation trust’s governors. I hope that fully reassures my noble friends that this matter is not just a question that will be looked at within the confines of a foundation trust. It will have wider exposure than that.
I am afraid I am going to disappoint the noble Baroness, Lady Finlay, not as regards her amendment, which she did not speak to, but as regards Amendment 220C. The problem with it is that it would give Monitor the discretion to agree private income caps for foundation trusts. It would also retain the current cap and, as I have indicated, we think that the cap is unfair and has definitional complexities. That is an undesirable road to go down. It would burden foundation trusts with a governance regime that would be bureaucratic, costly and at odds with a foundation trust’s ability to manage itself.
Requiring governors to vote on any increase to their trust’s private patient cap, and therefore any increase to non-NHS income, would unreasonably inhibit the board of directors’ ability to manage its organisation. We surely do not want foundation trusts being run by boards that are constantly requiring votes by governors. The proposal in Amendment 220C would also require a majority vote by the members of a foundation trust for any increase to the trust’s private patient cap. That is a completely misguided approach. It would undermine the authority of the governors. Governors represent the members, the majority are elected by the members, and they should be allowed to get on and fulfil their responsibilities.
Securing a majority vote by members would also be very expensive. Many foundation trusts have several thousand members. Do we really want scarce NHS resources being spent on polling members about any increases to non-NHS income? I gently ask noble Lords opposite to think again about that.
Finally, Amendment 220C proposes that Monitor should be required to approve any increases to private patient caps beyond 5 per cent. My objection to that is that it would undermine foundation trusts’ autonomy to manage themselves. Directors and governors are better placed than Monitor to decide what is best for their organisation. Monitor’s involvement could also dissuade foundation trusts from pursuing innovative approaches if they are required to go through an external assessment and, in effect, a second approval process.
The central point is this: Part 4 has been built on the experience of what foundation trusts know will work. It represents the opportunity to realise what value foundation trusts can bring to the NHS. It will enable them to develop as responsive, transparent, autonomous and accountable bodies. Removal of the private patient income cap is about foundation trusts making the most of the opportunities they have to earn additional income for investment in the NHS. It is precisely why many NHS leaders and clinicians wrote an open letter to this House urging support to remove the cap. I hope that what I have said will reassure noble Lords that we have the right checks and balances in place while also giving foundation trusts the freedom that they need and have asked for. I also hope that the noble Baroness will feel able to withdraw her amendment.
Baroness Thornton
I thank the Minister for those remarks. I might be able to make him happy at least in one or two respects. This has been an interesting and useful debate, but I would like to start by making two comments. The first is about the remarks made by the noble Lord, Lord Marks. I know that he and his colleagues have been frustrated about the interpretation that has been put on the 49 per cent. The noble Lord spoke about that being there to mitigate risks. The only point that I would make to him and his colleagues is that the opportunity to mitigate those risks was there earlier this week, and they did not take it.
I would also like to apologise to colleagues on the Cross Benches if they have found the adversarial style in this part of the Bill unhelpful. On these Benches, it partly stems from our very grave disappointment that we have not managed on Report to protect the NHS in the way that we felt was necessary. I am afraid that those arguments are political arguments and the arguments that we have had to have. I put that on the record. I do not apologise for the fact that they have been political, but I apologise to my colleagues that sometimes they have not been entirely comfortable with that.
Lord Low of Dalston
My Lords, I cannot speak with anything like the authority of the noble Baroness, Lady Finlay. Few of us can. The noble Baroness, Lady Massey, has obviously been working off the same brief that I have been looking at, so there is little that I can add to what she said. However, I was struck by the research findings that she told us about, which make clear the lack of attention that is paid to the involvement of children. I note also that there were concerns expressed around the involvement of children in patient and public voice mechanisms in the NHS. These concerns were reflected in the report of the Future Forum. Therefore, I think there is every reason to make the involvement of children explicit on the face of the Bill.
Baroness Thornton
My Lords, we welcome the amendments. Anxiety has been expressed by children’s organisations on two fronts throughout the course of the Bill. One is that the fragmentation and reorganisation proposed in the Bill mean that the safeguarding of children’s health may be lost in some way. The second is that it is not clear that children’s voices will be heard, which is the subject of these two very modest amendments. I hope that the Government will accept them. I cannot see any reason why they should not.
Baroness Northover
I am very sorry if there was a conflict of timing. Obviously it is difficult to schedule all the various meetings. My noble friend Lord Howe has had 100 meetings on this Bill.
Baroness Northover
I am very sorry if that was the case. If it was the case all the way through, as the noble Baroness, Lady Thornton, indicates, perhaps it might have been an idea to feed that in.
Baroness Thornton
The noble Baroness might like to check with the Box. I informed the noble Earl’s office of the times of our group meetings at the beginning of proceedings. Meetings and seminars have clashed all the way through.
Baroness Northover
I am very sorry if that is the case. I would hope that we would be able to have other such meetings. As these arrangements are taken forward, it would be extremely useful to have people’s engagement. I was extremely glad that, even in such a clash, the noble Baroness, Lady Wheeler, and her noble friend were there.
The noble Lord, Lord Harris, should have received the letter about the amendments, but I gather that he thought he had not. A letter and briefing notes were sent to all Peers when the amendments were tabled and a full narrative of local healthwatch policy has been published on the Department of Health website. If the noble Lord has not seen the letter then I will feed that into the department to make sure that he receives this information so that he has it at his fingertips when he is contacted late at night by people who email him with concerns.
As I have mentioned before, it is very important that the local healthwatch seeks out views right across the area. It is an important factor in this arrangement that the local healthwatch will have a seat on the health and well-being board. I hope that that will help to reassure people of the influence of local healthwatch.
The noble Lord, Lord Harris, talked about privatisation by so-called social enterprises, or he flagged that up as a concern. I emphasise that the Government are huge fans of social enterprises, which perform a range of roles across the NHS. Social enterprises such as Turning Point are, of course, extremely valuable. This is not about privatisation or competition, as I feel we have made very clear.
The noble Lord, Lord Harris, also referred to my noble friend Lord Howe. My noble friend’s concern in 2007 was that local LINks should have at least a basic structure of governance. That is precisely the concern that has led us to propose that local healthwatches should be social enterprises. The question of governance is quite separate from the question of whether or not an organisation should be statutory. Perhaps the noble Lord, Lord Harris, can enter dialogue with my noble friend Lord Howe on all of that in due course.
The noble Lord, Lord Harris, also asked about the possibility of there being more than one local healthwatch. Only one local healthwatch will be permitted for each local authority area. Each local authority will be able to make only one contract. If the local healthwatch wishes to subcontract some of its functions it can do so if the local authority permits, but the functions would still remain the responsibility of the local healthwatch. I hope that that clarifies the position.
Health and Social Care Bill
Baroness Thornton Excerpts(13 years, 4 months ago)
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Baroness Thornton
“CHAPTER A1Principles of regulations of health and adult social care servicesPrinciples of regulation of health and adult social care services
Any person undertaking any regulatory functions under this Part or any functions in relation to services provided under this Part shall exercise all such functions based on the principles of universality and social solidarity.”
Baroness Thornton
My Lords, at last we come to the heart of the Health and Social Care Bill—Part 3. On 3 March, David Cameron was again telling his party about the need for greater competition and for the private sector to be encouraged. He has since justified his remarks by saying that it would have been easier not to have addressed the “invisible crisis” in the National Health Service in England. So, the “invisible crisis” which no one but the coalition Government seem able to see is the justification for fragmenting our NHS and opening it up to the private sector.
Our fundamental disagreement with the two parties opposite is that we think that competition should be used only within a managed framework and when it adds value. There has to be freedom to use non-competitive means and to deliver co-operation, collaboration and integration. For a moment we thought that we had a new recruit to the argument, when the Secretary of State announced that he had lost faith in competition. He was all for it in his landmark 2005 speech to the NHS Confederation, and he was all for it when he and his coalition allies launched this Bill with price competition and an economic regulator to promote competition. Now, however, it is reported that he is not so sure.
We on these Benches have not changed our minds. We share the view expressed by the noble Baroness, Lady Williams, that Part 3 should be dropped—a view which is shared by almost all the professional bodies, as well as the staff in the NHS. Even the evangelical GP commissioners are very aware of competition, and we note that the drive to force through any qualified provider for the operating framework for 2011-12 has just been thwarted—a highly embarrassing defeat for government policy.
Making competition central to the reform of the NHS, as opposed to making it one component of a more rational and comprehensive reform with collaboration and co-operation at its heart, remains dangerous. Even with the amendments already agreed, Part 3 is a mess; and even at this late stage the Government should think again and try to build on the very wide consensus that accepts a role for competition only when it adds value for patients.
The three amendments in this group—and the late arrival of a manuscript amendment in the name of the noble Lord, Lord Clement-Jones, which I will return to in a moment—seek to address fears that have been widely expressed about the way that competition will intrude into the NHS in ways that we do not want, and that do not benefit patients. The fear is supported by the legal advice of many experts, who foresee how the Bill will open up opportunities for legal challenge in ways that are not currently acknowledged.
We also see that some clinical commissioning groups are asking awkward questions about how autonomous they will be, and how free to do the job that they are given. We know that they will have to obey the rules set out for them both by the NHS board and by Monitor, but is it worse than that? Will they have to employ legal and consultancy support on a grand scale to avoid being challenged by the courts or by whatever the co-operation and competition panel turns into? Will fear of challenge deter the innovation that the Bill claims will be unlocked?
Amendment 178A is the best effort of many legal minds collectively to solve the problem of ensuring, so far as is possible, that commissioners can do their job. When one looks at the old NHS, or even at Wales, one sees that there is a very high degree of confidence that arrangements made between different parts of the NHS will not be subject to legal challenge on competition grounds. There are no contracts on the arrangements of which the law may get traction. However, even in Wales, if there is a decision that some aspect of provision may require non-NHS providers to be engaged, the full force of competition law applies. We all know that. We are part of the EU so these rules apply.
We know that health services can, as Part B services, get some protection from the full force of EU competition law. We believe that that protection will be chipped away over the years. Although procurement is simpler under Part B, it is still open to challenge if the basics around transparency are not met. If there is an intention to enter into a contract that is enforceable in law, you quite rightly have to go through the correct procedure. This is no different from what is set out in the current principles and rules, which, if you read them, make a lot of sense—as they should, because my Government wrote them.
The doubt and the opportunities for challenge will remain unless you construct in the legislation a framework to protect commissioners of the kind that we set out. Such an approach might not be perfect but it is the best that major brains can come up with. Since the coalition Government’s stated intention is that commissioners should be free, we should be able to see either their version or their legal advice—but we have not. The purpose is not to give unfair preference to NHS providers, or, indeed, to prevent third sector providers; the purpose is to free commissioners to make decisions that would have to pass the test of reasonableness in any event. Neither the third sector nor private sector providers would be any worse off, because they would still have to go through procurement procedures under any circumstances if a service went out to tender.
We think that Amendment 163BZZA, at the head of this group, and the following amendment are the right place to recognise this important principle from the outset. Amendment 163D follows a line that our Liberal Democrat colleagues have also explored, which is to define our NHS in a way that makes it clear that it is not a market despite what the Bill states.
The principle of social solidarity is used in the courts to help differentiate national social policy from the EU internal market and competition law. Social solidarity is therefore not an invention of the Labour Party, it is a term used in EU law. Social solidarity means “provided for that purpose as a matter of social policy” and as such may be considered by the courts to restrict the application of EU internal market law. All this has the same objective—to limit the scope for EU law to be applied in ways that do not help.
The noble Lord, Lord Clement-Jones, has, as it were, come to the party somewhat late by tabling his manuscript amendment. My colleagues and I have been in discussion with him and his colleagues, including the noble Baroness, Lady Williams, for many months, and we have shared with them our thinking on this matter. Indeed only last week I wrote to the noble Baroness, the noble Lord and their colleagues about exactly what we thought we should do together on Part 3. In that letter, as point one, I said:
“Your amendment 177”—
the manuscript amendment—
“and our 163 cover the same kind of point and should be combined”.
I am very pleased that this burst of late enthusiasm from the noble Lord, Lord Clement-Jones, has led to his agreeing that we should combine our amendments, and I am absolutely delighted to say that I would want to accept his amendment as an amendment to our amendment. I hope that noble Lords will have time to work out what exactly is going on here as the discussion progresses. Essentially, however, the noble Lord, Lord Clement-Jones, wants to amend our manuscript amendment with his manuscript amendment—which I am sure he will explain. I apologise to the House that this has been done as a manuscript amendment, but I am happy to report that we seek the same end. When the time comes, I will be very happy to accept the noble Lord’s amendment.
Our amendment does not oppose the use of competition, in its place, and will enhance the Bill. I also like its use of the term social solidarity, as that appropriately describes what our NHS is, and why and how it exists. I beg to move.
Amendment 163BZZB (to Amendment 163BZZA)
Earl Howe
My Lords, competition in the health service is a complex topic and very often, in my experience, misunderstood. It is important that we start with a misconception which several noble Lords have raised with me outside the Chamber and, indeed, in Committee. We need to be clear that competition already exists in the NHS and that the Bill does not herald its introduction. The last Government fully recognised that and encouraged it. The last operating framework which they put in place for the NHS stated:
“We shall enable this by … re-affirming our commitment to the ‘any willing provider’ approach for free choice of elective care, reducing the barriers to the entry of new providers”.
The previous Prime Minister, Gordon Brown, giving evidence to the Liaison Committee in December 2007, said that,
“the private sector … is expanding, will continue to expand and will be a lot bigger in the next few years than it is now”.
The Labour Party manifesto of 2010 said:
“Patients requiring elective care will have the right, in law, to choose from any provider who meets NHS standards of quality at NHS costs”.
The previous Government’s policy of increasing the use of competition is already benefiting patients. The recent report from the Office of Health Economics Commission on Competition in the NHS concluded 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 health care”.
Baroness Thornton
I thank the noble Earl for allowing me briefly to intervene. He has given some useful and selective quotes. Do not those quotes go on to warn very seriously about cherry picking?
Earl Howe
I think that the noble Baroness and I agree that cherry picking is highly undesirable, which is why this Bill outlaws it.
I do not see, as some do, competition and integration as polar opposites, nor are they mutually exclusive. I agreed entirely with the Future Forum when it said in its report last year:
“We have also heard many people saying that competition and integration are opposing forces. We believe this is a false dichotomy. Integrated care is vital, and competition can and should be used by commissioners as a powerful tool to drive this for patients”.
That is worth keeping in our minds.
In response to my noble friend Lord Clement-Jones, let me turn to competition law. I understand that some noble Lords want to prevent competition law ever applying to NHS services. That is to wish for the impossible. The question is not whether competition law should apply to the health service but how. That is why I agree with my noble friend that we must make sure that the NHS is insulated from the inappropriate application of competition law. In particular, we must ensure that clinicians are free to commission NHS services in the way that best serves patients’ interests and that there are no impediments to beneficial co-operation to increase integration, improve quality or reduce inequalities. Under our proposals, a series of protections will provide the sort of insulation against inappropriate application of competition law that my noble friend and others require. I hope that the House will allow me to set this out in a little detail.
Co-operation for the benefit of patients should not breach competition law. Article 101(3) of the Treaty on the Functioning of the European Union and Section 9 of the Competition Act lay down exemptions which apply if the wider benefits of an agreement outweigh its anti-competitive effects. On an individual basis, we would expect collaborative arrangements whose overall effect was beneficial to patients to meet the criteria in Article 101(3) and Section 9.
Competition law would be unlikely to apply to a wide range of NHS services. Some obvious examples are accident and emergency, trauma, critical care, maternity, specialist surgery and many others, particularly in remote or rural areas.
Monitor would support the NHS to understand where competition law does and does not apply. A key benefit of establishing Monitor as a sector regulator, with concurrent responsibilities under the Competition Act, is that it will be able to provide authoritative guidance to the NHS on where that law would and would not apply. The Government’s firm expectation is that Monitor would produce sector-specific guidance and address this question in terms of relevant examples, including models of integrated care and clinical networks, which would be updated in line with developments in healthcare practice. This guidance would help reduce unnecessary fear of legal challenge and uncertainty for both commissioners and providers.
Monitor could also provide informal advice in individual cases, building on what the Co-operation and Competition Panel does now. For example, that might include commenting on what types of collaborative arrangements and specific provisions within such arrangements are and are not likely to comply with the competition rules. Any such advice would be without prejudice to any future decision that Monitor might have to take to enforce the provisions of the Competition Act. However, like the guidance, such advice would provide reassurance to providers and could help them to avoid unnecessary legal costs.
If and when it became appropriate, Monitor could make the case for block exemptions. That would mean that the Competition Act would not apply to specified arrangements for the provision of NHS services. At this stage, it is not clear whether or where block exemptions might be appropriate, but an example of the sort of arrangement that could potentially be covered is clinical networks. In any event, this protection would remain available and there is no doubt in my mind that Monitor would be better placed than the OFT to determine when and where it might be needed.
In these and other areas, competition is unlikely to be effective in providing services on the scale or in the way that best promotes patient's interests. The NHS often acts to promote social objectives to ensure that patients receive the level of service that they could not afford or which private companies might not find it profitable to provide. Applying competition law in such contexts makes little sense and such activities are likely to fall outside its scope.
Next, commissioners would not have to create markets against the interests of patients. 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 and that they will be under no legal obligation to create new markets, particularly where competition would not be effective in driving high standards and value for patients. As I have already explained, this will be made absolutely clear through secondary legislation and supporting guidance as a result of the Bill.
The Bill already creates duties on commissioners to secure continuous improvement in the quality of services, reduce inequalities and promote integrated services. The Government intend to complement these by making it explicit through regulations under Clause 73 of the Bill that commissioning decisions must be in the best interests of patients, those decisions must be transparent and commissioners will be accountable for them. We would expect the NHS Commissioning Board to maintain guidance to support commissioners in these decisions, based on the available evidence and drawing on academic research.
It is worth reflecting that without Part 3, the main legal provision on commissioning NHS services would continue to be the general procurement regulations for public bodies introduced by the previous Administration in 2006. The application of that law to the NHS is unclear. Without the provision that we intend to include in regulations under Clause 73, commissioners would continue to face risk of legal challenge when they decided not to open services up to competition, even where the decision was in the best interests of patients. That uncertainty is unacceptable.
Finally, the Bill would prevent private companies taking over NHS trusts or foundation trusts. There has been a lot of misconception about that. I assure the House today, unequivocally, that that could not happen.
I now turn to the opposition amendments. Amendment 163D raises the application of competition law to the provision of NHS services. Its intention is to ensure that competition law does not apply to the provision of NHS services. However, as I have said, there is a basic point to make here: it is not within the gift of this Bill to secure that. It is like saying that if you pass a law saying that black is white, that is what will happen. However, what I agree on absolutely is that we need to protect the NHS from inappropriate application of competition law and its undesirable effects. Equally, as I said earlier, we do not want to leave patients unprotected from potential abuses by providers. That would be the effect of the amendment and I hope that the noble Baroness will reconsider her wish to move it.
I also referred to the fact that this Bill would provide for clinical commissioners to decide how to secure NHS services to best serve the interests of their patients. Hence, I do not agree with Amendment 178A.
The NHS has always been a comprehensive service, free to patients, with treatment and care based on clinical need and delivered through a wide range of diverse providers. That includes GPs, dentists, independent sector providers, NHS trusts, foundation trusts and a range of charities and social enterprises. Taken together, these providers operate across the various sectors of healthcare, including the community and mental health. They provide a range of services, including vital specialist services to people in lower socioeconomic and minority groups, and people with rare medical conditions.
Amendment 178A does not acknowledge that reality at all. Instead, it seeks to create an arbitrary and unnecessary presumption in favour of NHS and foundation trusts which would likely act against patients’ best interests. For example, the amendment would make it more difficult for a clinical commissioner seeking to manage long-term conditions such as diabetes or COPD in primary care and in the community—involving GP practices or social enterprises—instead of sending those patients to hospital. That could prevent choice for patients in a very crucial area. It could also prevent choice in end-of-life care by restricting the extent to which organisations such as Macmillan and Marie Curie were able to extend the services that they delivered for the NHS. It could prevent charities such as Turning Point transforming—
Baroness Thornton
My Lords, has the noble Earl actually read the amendment? Paragraph 6(c) says,
“the need to commission health services in a way that promotes the integration of health and social care services”.
Will the noble Earl accept that he just said that it does not say that? It says that; it is there.
Earl Howe
My Lords, we are talking about Amendment 178A. I disagree with the noble Baroness’s reading of it. It is quite clear what it says. It is geared towards making the NHS the preferred provider. The noble Baroness shakes her head. If I have misunderstood and that is not her intention, I will obviously retract that.
Yet the amendment would increase the risk of commissioners facing legal challenge under procurement law. As the noble Baroness pointed out in 2010,
“procurement must be transparent and non-discriminatory”.—[Official Report, 9/3/10; col. 137.]
Amendment 178A would be a retrograde step. I ask the noble Baroness to withdraw it, as well as the other amendment in this group.
Baroness Thornton
My Lords, I apologise to the House for the confusion that has just reigned. I blame the Liberal Democrats for that, but then I would, wouldn’t I? The noble Lord, Lord Clement-Jones, decided to seek to amend my amendment. Then, when I said that I would like to accept his amendment, he refused to allow me to do so. What can a girl do when she has been rejected in this way? My Amendment 163BZZA is the lead amendment in the relevant group. It is very disappointing that the Liberal Democrats did not feel confident enough to vote for their own amendment, again. They seem to be making a habit of that.
Lord Clement-Jones
My Lords, perhaps I may intervene. Has the noble Baroness received legal advice on the benefits of a Pepper and Hart-type statement versus the kind of amendment that her party has tabled, its effectiveness and the width of the statement made by the Minister?
Baroness Thornton
The noble Lord, Lord Clement-Jones, has a very legalistic manner of addressing the House. Of course I understand exactly what was happening there, and I understand exactly what the deal was between his Benches and the Minister, which was that the noble Lord would get a strong statement in response to his amendment. Is he satisfied with it? If so, he is wrong. That strong statement means that the protection comes when legal action starts to take place. I would prefer the protection to be in the Bill. That is what these amendments are about—protecting the NHS. We disagree about that and the noble Lord knows it. If I may address the Liberal Democrat Benches, it seems likely that the noble Lord’s spring conference will agree more with me than with him. However, that is his party’s problem for this weekend—not ours, for now, on the Bill.
I should like to make two further remarks on the substantive amendment and what the noble Earl said. He suggested that we were making the procurement rules more complex. We were not; we were making them simpler. The NHS deserves protection in the Bill. The Liberal Democrats have made a deal that sells the NHS short, as happened on the issue debated last week on conflict of interest. That is a great shame.
Lord Clement-Jones
I apologise for interrupting the noble Baroness, but does she realise that the more she attacks us, the more chances we have of a very positive outcome at our Gateshead conference?
Baroness Thornton
I was not actually attacking the noble Lord; I was just speculating about what might happen. I feel for Liberal Democrat Peers when they go to their conference this weekend, because they may be in for an uncomfortable time. However, that is absolutely not my business. I will just witness it with interest. It is time that we moved on and I beg leave to withdraw the amendment.
Baroness Thornton
“(c) is to continue as regulator of NHS Foundation Trusts as set out in Chapter 5 of Part 2 of the National Health Service Act 2006.”
Baroness Thornton
My Lords, this is a large group of amendments led by our amendment. In fact, we have only two amendments in the group, but they address issues regarding Monitor. The amendment suggests that Monitor should continue to be the independent regulator of NHS foundation trusts.
Our Amendment 167B would remove Clause 63. It might be easier if I were to explain why that amendment is there. It is not that we are necessarily opposed to Monitor’s functions as a regulator of social care, but something as important as this matter should be done not through regulations but in a proper manner through primary legislation. That is the only reason why that amendment is there and we seek the Minister’s views on it.
Returning to the amendment, Monitor must remain as the independent regulator of foundation trusts. We do not believe that now is the time to relax oversight of foundation trusts. We can be confident that the Francis inquiry will have views on this. We support trusts becoming foundation trusts, but only half of trusts have achieved foundation status, and the issues facing those unable to achieve the required standard remain. There is yet another drop-dead date; my Government had a drop-dead date and that did not work; we do not think that another drop-dead date will change that situation.
We must also be cautious in overclaiming the merits of the foundation trust model, because time will tell. Monitor has an important role in that, which should continue, although we do not support the need for an economic regulator for our NHS, because we do not see healthcare as a market. I do not intend to rehearse those arguments, but patients are not consumers, and choice for patients is not shopping. Economic regulation and privatisation are certainly linked in the view of those who want to break up our NHS—many of those who want the Bill in the private sector.
The Bill is radical, not evolutionary. We believe that the Government should have taken a different approach, but it is important that Monitor continues to carry out its role. It should not be asked to do two roles: those of the foundation trust regulator and the economic regulator for the NHS. We think that that presents Monitor with an insurmountable conflict of interests and that it lacks the capacity and capability to carry out the enhanced role. I hope that the Minister will accept our sequencing idea—I freely confess that it was stolen from the noble Baroness, Lady Williams, who first used the word sequencing— which is to allow Monitor to become an economic regulator only after it completes the job of authorising all those bodies which will get foundation trust status after a few years’ oversight. We believe that Monitor should take on those new duties and roles only at that point, May 2016, which is in the Bill.
Even for supporters, there is a realisation that Part 3 is a direct challenge to the idea that local commissioners will be free to shape local services as they see fit. The more we have patient choice, the more we have any qualified provider, the more regulatory enforcement around competition, the less need for commissioners. That is the central irony of the Bill. Any commissioner needs to read Clauses 19 and 73.
I think we need a discussion about Monitor’s roles and functions. I will wait until I sum up to comment on other noble Lords’ amendments in the group. I beg to move.
Earl Howe
Nor have I, which is why I listed earlier some prime examples of collaboration. Clinical networks are a prime example of collaborative behaviour which is clearly in the interests of patients. The noble Baroness is asking me to think of examples in my head of collaborative behaviour in the NHS that does not advantage patients. I cannot think of any, which is why it would be hard for Monitor to find fault with collaboration where it has clearly been designed to improve patient care.
Baroness Thornton
In response to that last remark, it depends on whether Monitor decides it is collusion or collaboration. That is the key point. We suggested that that was a problem right at the very beginning of the Bill—how you distinguish between collaboration and collusion and what you do about that. I do not think we are any closer to finding the answer.
I turn to remarks that were made during the course of this very useful if diverse debate. I want to take one moment to say something to the noble Baroness, Lady Williams, and her colleagues and to the noble Baroness, Lady Murphy, about the fact that they feel misrepresented in social and other media. Indeed, as politicians it goes with the territory that you may be misrepresented from time to time. I have the greatest respect and admiration for the noble Baroness, Lady Williams, and she knows herself that that is where you are when you are in politics.
However, the noble Baroness herself wrote in an article in the Guardian on 13 February about dropping the chapter on competition, and in a letter that the noble Baroness and her leader wrote to their own MPs and Peers, they set a high bar for how Part 3 of the Bill might be made safe. It is just and proper that everybody will be looking at the noble Baroness and her friends to see and test whether they have succeeded and met their own aspirations. At the moment, I think that that is open to question. I do not think that it has been achieved. I know that that might be painful, but that is the case.
We have had some thoughtful amendments and contributions. As usual, the noble Baroness, Lady Finlay, in her amendment and questions put her finger on a very important issue that the Bill needs to address even at this late stage. I had a great deal of sympathy with the amendment of the noble Baroness, Lady Cumberlege. I rather hoped that she would get a more positive response than she did and I am sorry about that.
Baroness Williams of Crosby
The noble Baroness is perfectly entitled to say what she had said. I accept that fully and I am sure that she said it in all sincerity. But the difference between us is that I believe that the Government have moved a long way, particularly because of the Minister. I believe that that culmination of changes will enable us to bring about an improved NHS. I may be proved wrong. I freely accept that I may be proved wrong. But I believe that the changes that have been made are so far reaching that we can make the NHS better than it is today. I know that the noble Baroness, who herself has been responsible in her attitude towards the Bill, would wish to see that, even though she may not think that this is the way to do it.
Baroness Thornton
I am not sure whether this is the way to do it. We disagree. I do not think that the Liberal Democrats have achieved it, but there we are. As the noble Baroness said, history will see who is right and who is wrong.
I am extremely pleased to see that the noble Baroness, Lady Meacher, has transferred her attention from the Welfare Reform Bill to this one. She is quite correct that it is impossible to stop the negative impact that has been observed in the studies that she referred to. She is completely right about that. This whole debate illustrates the problem: half of the Bill seems to be there to mitigate the damage that the other half does. What used to be, for example, a clear duty to co-operate—and it was a simple duty—is now dense and complex.
Turning to our Amendment 163B, I should like to say to the noble Baroness, Lady Murphy, that it does not rule out the economic regulator function. That amendment does not seek to do that, so I hope that the noble Baroness, with that reassurance, might support our amendment. We seek to clarify and put beyond doubt that Monitor should have that function. We seek to do it in the first part of the Bill. We want Monitor to keep its current role. We believe that there should be two bodies and that it is difficult for Monitor to do both jobs at once, but it is important at this point of this first part of the Bill that we make it completely clear. Where the Bill says that Monitor should be the,
“Independent Regulator of NHS Foundation Trusts”,
we need to make it completely clear that it will continue to do that job.
We are not trying to weaken the role of Monitor. We think that foundation trusts are facing huge risks and huge reorganisation. They need the support that Monitor will offer them. I suspect that the Francis report, as I said earlier, will indeed have something to say about the strength and importance of Monitor as a regulator of foundation trusts. We would like this to be in the Bill because it makes it completely clear that this is an important job that Monitor does and that it should keep doing that job for the foreseeable future. I wish to test the opinion of the House.
Baroness Thornton
“(5) An NHS commissioner shall be entitled to undertake a review (“a Commissioning Review”) of all or any part of the health services that the NHS commissioner considers are reasonably required in order to discharge its functions under this Act, and, upon completion of such a Commissioning Review, an NHS Commissioner shall be entitled to determine that the most appropriate way to deliver all or any part of such services shall be through the conclusion of arrangements with one or more health services bodies or one or more NHS Foundation Trusts.
(6) NHS Commissioners shall, when conducting a Commissioning Review, have regard to the following factors—
(a) the need for NHS services to be provided in a way that is economic, efficient and effective;(b) the need to commission services in a way that maintains or improves the quality of the services;(c) the need to commission health services in a way that promotes the integration of health and social care services;(d) the need for health care services provided for the purposes of the NHS to be provided in an integrated way where this will—(i) improve the quality of those services (including the outcomes that are achieved from their provision) or the efficiency of their provision, (ii) reduce inequalities between persons with respect to their ability to access those services, and(iii) reduce inequalities between persons with respect to the outcomes achieved for them by the provision of those services;(e) the likely future demand for health care services;(f) the desirability of patient choice.(7) An NHS commissioner shall be entitled, as part of any Commissioning Review, to seek expressions of interest from health services bodies or from NHS Foundation Trusts which may have an interest in providing such services, and shall be entitled to undertake such processes as it shall consider appropriate to determine which of such bodies is able most appropriately to provide any such services.
(8) A Commissioning Review and decisions made following a Commissioning Review to make arrangements with one or more health services bodies or NHS Foundation Trusts shall not constitute anti-competitive behaviour for the purposes of this or any other Act.
(9) The Public Contracts Regulations 2006 shall not impose any obligations on an NHS commissioner which undertakes a Commissioning Review or makes decisions to make arrangements with one or more health services bodies or NHS Foundation Trusts following a Commissioning Review.
(10) Regulations under this section shall not impose obligations on an NHS commissioner undertaking a Commissioning Review.
(11) The NHS Commissioning Board may, after consultation with Monitor, publish guidance to NHS Commissioners concerning Commissioning Reviews.
(12) The National Health Service Act 2006 shall be amended by adding the following after section 9(4)(r)—
“(s) An NHS Foundation Trust”.”
Baroness Thornton
My Lords, I would like to comment on the three amendments in the name of the noble Lord, Lord Clement-Jones, and then speak to the two amendments that we have in this group. They say that imitation is the sincerest form of flattery, so I am very happy that the noble Lord saw fit to take three of the amendments that we tabled in Committee and to make them his own. Those are Amendments 186, 187 and 188. That is fine by us. I understand that the Minister will be very sympathetic to these amendments and might accept them, which is probably just as well, as I would hate to embarrass the Liberal Democrat Benches any further by having votes on amendments that they have tabled and speak to but then do not support.
These three amendments would stop a review from happening. I know that the noble Lord, Lord Clement-Jones, and his colleagues need to tell us that they have won a great victory by getting the Government to concede on these amendments. Far be it from me to intrude on the coalition parties’ love-in, so to speak. When we tabled these amendments in Committee they were part of an overall, comprehensive change to Part 3 of the Bill. In many ways these amendments were part of the tidying up of our suite of amendments to effect radical change to and improvement of Part 3. We certainly support these amendments.
I turn to Amendments 196A and 196B, which stand in my name and that of my noble friend. We do not understand why the noble Lord, Lord Clement-Jones, did not also table those amendments as he is going to be very successful in having his amendments agreed to. In fact we think that there is no need to have any mention of the Competition Commission in the Bill. For the sake of completeness, we would have preferred those amendments to be included. Perhaps I may implore the Minister to accept them as well.
Earl Howe
My Lords, Amendments 196A and 196B, tabled by the noble Baroness, Lady Thornton, would remove the provision for adjudication if a significant proportion of those affected object to proposals by Monitor for methodologies to be used to calculate prices of levies to ensure the continuity of the central services or proposed licence modifications.
I am clear that we must have a process for adjudicating on Monitor’s proposals if a sufficient number of those who will be affected by them object; otherwise, in these circumstances, either Monitor would have no way of proceeding with disputed proposals or those affected would have no other way of disputing proposals other than by judicial review. Either way that would be unacceptable and could result in significant harm to patients, for example if a licence condition that Monitor proposed related to securing essential NHS services. For pricing methodologies, for example, the amendments would mean that Monitor could go ahead with its proposals even if sufficient numbers of those affected objected. The only way that providers, in the case of pricing commissioners, would be able to ensure that their concerns were taken into account would again be through judicial review. We need to ensure a fair and transparent system of pricing, securing competition on quality and not price, and removing incentives for providers to cherry-pick the services that they deliver or the patients whom they treat.
I am therefore clear that we should have a process for adjudication. I am also clear that the Competition Commission should undertake that role. It has other adjudication roles. The commission has experience of working across a range of sectors, on the basis that it does not necessarily have the knowledge which it needs about those sectors in-house. It would be free from political intervention in making these judgments. It is well respected by other regulators across the economy, for which it performs a similar role. In our earlier debates, some noble Lords expressed concern that there should be appropriate checks and balances on Monitor’s powers. The provision for adjudication by the Competition Commission creates one such check and balance. These amendments would remove it. For those reasons, I oppose Amendments 196A and 196B, and I hope that on reflection the noble Baroness, Lady Thornton, will withdraw them.
I turn to the Competition Commission’s role in reviewing how competition is benefiting patients in the NHS. After briefing myself, I came to the conclusion that the reviews will bring considerable benefit to the NHS because they will help us understand further what effect competition has on NHS services for patients. They will also increase Monitor’s accountability because they will consider how Monitor is discharging its functions. The commission will be well placed to conduct them because it is an independent body with a long history of performing such reviews across the economy. It is the body where the expert technical knowledge needed to perform this function already resides, and it understands and reviews how markets and regulation work in the best interests of people. That was why the provision was put in the Bill.
However, I listened to the points made this evening by my noble friends Lord Clement-Jones and Lord Newton. On earlier occasions my noble friend Lord Clement-Jones was quite vocal in expressing his views to me on this subject. I have some sympathy with the argument that prescribing reviews every seven years, as the Bill stipulates, may place too great an emphasis on competition. Greater flexibility about the timing and specification of reviews may be helpful. Therefore, I am clear that such reviews of competition in the NHS, when they happen, should focus on benefits to patients. On the basis that prescribed seven-year reviews may place too great an emphasis on competition in the NHS, and given the role of the Competition Commission, if it is the view of the House that Clauses 78, 79 and 80 should be removed from the Bill, I will not oppose Amendments 186, 187 and 188.
I turn briefly to the issues raised by the noble Baroness, Lady Hollins, on procurement in Surrey. The issue was raised earlier by the noble Lord, Lord Adebowale. I agree with her and with the noble Lord that social enterprises can and do play an important role in providing innovative, high-quality services, often to very vulnerable people. Turning Point is an excellent example. The key aim of our reforms is that patients should be treated by the best providers; that bureaucratic procurement practices should not frustrate this; and that it should be quality that counts. We will take all this into account when framing the commissioner procurement regulations.
On the example quoted by the noble Baroness, I understand that the requirement for the £10 million performance bond to which she referred was subsequently withdrawn and therefore played no role in the decision to appoint a preferred bidder. However, I will write to her with further details on this.
Baroness Thornton
Baroness Thornton
My Lords, we now move on to pricing. We believe that setting the national tariff is a matter of policy and that it should be set by a Secretary of State, not Monitor. That is the main thrust of these amendments. Amendment 201A is about setting the national tariff as a matter of policy. Amendment 201B proposes that regulations to the national tariff must state how the prices and methods were determined, that any proposed change to the national tariff will be subject to proper evaluation and testing, and that there must be evidence of consultation between the Secretary of State and Monitor. Amendment 201C states that the national tariff should not be allowed to vary in relation to different descriptions of provider. Amendment 201D states that where a commissioner of a health service receives an offer from a service provider who is licensed by Monitor at a price below the national tariff—I am sorry; that is my noble friend’s amendment. I beg his pardon. Then there are a whole set of amendments which seek to delete clauses—Amendments 211A, 214A, 214B and 214C—because if the Secretary of State is setting the national tariff, these clauses are unnecessary.
At present, the national tariff is set by the Department of Health, often in ways that are mysterious, probably less than optimal and without sufficient consideration of unintended consequences, and often without enough testing. Nevertheless, we remain firmly of the view that price setting is such a fundamental part of the system that it has to remain the responsibility of the Secretary of State and the Department of Health. We do not have an answer as to why you would give such a potentially potent policy lever to the regulator. I should be grateful if the noble Earl could explain that. Why keep price control with Monitor? I should be interested to hear what he has to say. I am sure that we would all agree that the key point is that we get tariffs right. We therefore seek to insert the need for proper consultation and transparency in the tariff-setting process. I beg to move.
Lord Davies of Stamford
My Lords, I shall speak to Amendment 201D in my name. I tentatively proposed this in Committee as a probing amendment. I bring it forward now much more seriously because I have been reinforced in my belief that this is a necessary amendment by everything that has been said. My belief has also been reinforced by the support of a number of colleagues, including explicitly by my noble friend Lord Warner, to whom I am grateful.
It has been clear from our debates that the Government’s intention is that there should be two price regimes in the NHS—one for services for which there is no national tariff and one constituted by the national tariff itself. Services that are outside the national tariff will be contracted for on the basis of a tender offer and good value for the taxpayer or customer. I have no quarrel with that, and the Government have clearly stated that they intend to achieve contracts on the basis of the right reconciliation of quality and price. I argued in Committee—and I am sure that I was right —that that constitutes price competition. The Government do not like the phrase “price competition”, but I am not interested in semantics or the party-political reasons that may lie behind their semantic choices; I am interested in the reality, which is that commissioning services on that basis is entirely rational, and I have no quarrel with it.
The problem arises in relation to the national tariff. The Minister set out the position clearly in his response to me on 13 December. He said,
“we want a system of fixed prices”,
and then stated that,
“the tariff would not be a maximum price”.—[Official Report, 13/12/11; col. 1229.]
In other words, the tariff could not be varied either upwards or downwards; it would be an immutable price. I regard this as extraordinarily irrational and perverse, and I hope that I can persuade the Government to think again. It has at least four problems.
First, if there is an immutable price, you may not be able to pay for certain services that are required and are of the quality necessary for patient outcomes. The Government have recognised that point at least. Indeed, Clauses 124 and 125 appear to address that because they make it clear that there is scope for an agreement between a commissioner and a provider to be approved by Monitor at a price above the tariff. The wording in Clause 124(5) and Clause 125(3) is identical, except for the words “approve an agreement” and “may grant an application”, and states:
“Monitor may approve an agreement”—
or “grant an application”—
“only if, having applied the method under section 116(1)(d), it is satisfied that, without a modification to the price determined in accordance with the national tariff for that service, it would be uneconomic for the provider to provide the service for the purposes of the NHS”.
That makes it clear that it is possible for the commissioner to pay more than the tariff in those exceptional circumstances, with the consent of Monitor, and of course I approve of that, but it is not possible for the commissioner to approve less. That is an extraordinary state of affairs.
I can quite understand why the Government do not want to write into the Bill that it will not be possible for a commissioner to accept a lower price. That would not make the slightest sense. It would be all over the tabloids in headlines. Instead, it is disguised in the language of parliamentary drafting as being a power that would exist only if it was uneconomic for the provider to provide the service for the purposes of the NHS. You can never argue that it is uneconomic to provide a service at a higher price. The amendments provide only for the circumstance in which the commissioner finds it necessary to pay a higher price than the tariff to secure the patient services which the commissioner is procuring.
That is the only one of the four problems raised by that approach to a national tariff which the Government appear to have addressed. The second is that in many cases, it may be possible to provide the same quality of service at a lower price, but the Government are excluding, a priori, from the beginning, outright, in principle, any possibility of that happening. That makes no sense. We and the Government surely agree that the NHS budget will always be under great pressure, that there must be financial discipline in the NHS, and that when there are opportunities to secure the same quality at a lower price it should be the obligation of commissioners to achieve that. My amendment does not go so far as to create an obligation—I was more hesitant than that—but at least there must be the possibility for commissioners, if they see an opportunity, to procure that service at a lower price and save money for the benefit of patients and the National Health Service as a whole.
The third and fourth problems created by government policy in this area are perhaps a little more subtle. The third, which I mentioned in debate in Committee, is that if you deny the possibility of bids coming in at a lower price for any given service, you deny the possibility of ever investigating or having insight into the process of price formation in that sector of activity. You simply do not know to what extent the prices you are working on—the prices you are accepting—contain an unnecessary level of cost and overheads, or the extent to which you are not getting a good bargain. In my view, you should not be sleeping at night if you are a commissioner and you do not know how prices are formed, whether you could be getting a better price and, if so, what that better price would be.
The fourth problem created by the Government's approach to this up until now— I live in hope that they may change it in the light of this debate—is that it dampens or may even be fatal to innovation in this area of the National Health Service. I think we are all agreed in principle that we should encourage innovation, but there is no point in any prospective provider spending time and money on developing a better approach to solving a problem or a new technique for diagnostics, therapy or what have you, which has the same quality and outcomes, or even better, which could be delivered at a lower price, because the price is fixed. You can only come up with the same price because you are not allowed to be given a contract if you tender at a lower price. That makes no sense, so I must press the amendment again.
I emphasise, as I did in Committee, that the amendment is in no sense prescriptive. It does not force commissioners to take the lowest price. There might be an argument for forcing commissioners to take the lowest price where quality remains the same, but I have come up with a much weaker amendment. It is purely permissive. It provides for commissioners, where they wish to and where Monitor approves—so there is a double check, a double brake on the mechanism—to accept a lower price. It is extraordinary that they are not allowed to do something which all of us in every other field of economic activity would feel to be the rational thing to do.
My noble friends on the Front Bench have made the point several times that there are many situations in which it would not be sensible to take the lowest price in an NHS context. One of them I described in some detail in Committee, so I do not need to go over it too much tonight. There is no doubt that in any field of economic activity where overheads or fixed costs are a high proportion of the total costs there is a temptation or opportunity for predatory pricing. If the fixed costs are a very high proportion of the total costs, then anyone who has the capacity to make a one-off offer can come in with an offer which may be at a substantial premium to variable costs and therefore very attractive to him if he has spare capacity. It would be much lower than the full cost and therefore very tempting but it might be very dangerous for the customer—the commissioner in this case—to accept because it might undercut and perhaps destroy the capacity on which he relies on a long-term basis. Clearly, no one is going to provide services at below full cost on a long-term basis. Therefore, there is always a danger of predatory pricing in healthcare and we must be alert to it. There is no question about that.
Earl Howe
I will be happy to meet the noble Lord to talk about that.
I was talking about the example of the Netherlands and Germany and was about to make the point that bodies of that kind can create a transparent and stable environment for pricing outside the influence of politics so that providers have confidence to invest and regulators can develop strong technical skills in setting prices at efficient levels. The Bill proposes that independent statutory bodies—Monitor and the NHS Commissioning Board—would collaborate to regulate prices. This will give commissioners a key role in price setting, whereas the opposition amendments would prevent this and would return control to Whitehall.
Monitor would publish national tariff prices based on a methodology subject to consultation where providers and commissioners could trigger an independent adjudication to ensure transparency and fairness. I am clear that we must have, as I said earlier, a process for adjudicating on Monitor’s methodology. Otherwise Monitor could just go ahead with its proposals, even if there were a whole lot of people affected by the proposals who objected and the only way that they could see those objections through to a conclusion would be through judicial review. The government amendments in this group ensure that the appropriate providers could trigger independent adjudication.
I am also clear that the Competition Commission should undertake this role. As I said earlier, it would be free from political intervention in making these judgments and is well respected as an organisation across the economy for the role it performs. The opposition amendments would prevent any of these benefits being realised. A key priority for improving the system is to expand its coverage so that more and more services are brought within scope. The previous Government failed to do this in line with their own published timetables, for example, regarding mental health services. The Bill would place duties on Monitor and the NHS Commissioning Board to secure the standardisation of service specifications to support the foundation of a comprehensive tariff system. This will make reconfiguration of services and integration across administrative boundaries easier.
To put matters beyond doubt, the national tariff would be a fixed price, with any competition based on quality and choice, not price. We listened to representations made to us about this, and we amended the Bill to make clear that the tariff would not be based on a maximum price. Of course I understand the points made very ably, if I may say so, by the noble Lord, Lord Davies, and the noble Baroness, Lady Murphy. We all want to see best value for money for taxpayers in the way that services are provided, but our judgment was that, for reasons that I will elaborate on, that is not the right way to go. Where services were not covered under the national tariff, there would be rules to govern those prices locally. Prices and rules within the national tariff would be legally binding and independently enforceable by Monitor to eradicate any abuses. Tariff prices could not be varied for different providers according to their ownership status. That would prevent future Governments paying inflated high prices to private providers.
I shall elaborate a little on what I said in answer to the noble Lord, Lord Davies. The purpose of the tariff is to ensure that providers are reimbursed fairly for the services they provide and to allow competition to be based on quality and not price, as I mentioned. When a maximum price was suggested, the fear was that there would be a drive to the bottom on prices, thus jeopardising the quality of care. The evidence from the UK and internationally suggests that quality-based competition with fixed prices can be very beneficial in producing higher quality care—that evidence is reported by the Office of Health Economics—whereas evidence from the USA sounds a note of caution that the wrong kind of competition based on price can lead to a race to the bottom on quality. Our judgment was that we should stick with our position that the tariff will not be a maximum price.
Finally, the Bill addresses the problem of cherry picking, which I am afraid was a problem that the previous Government did not grip. It places a duty on Monitor and the NHS Commissioning Board when setting prices to consider the range of services provided by different providers and the differing needs of the patients treated. As the Royal College of Psychiatrists noted:
“We are particularly glad to note the Government’s moves to prevent the cherry-picking of services and hope that the safeguards are a success”.
The Opposition’s amendments would actually delete these important provisions from the Bill, thus not addressing the concerns expressed by clinicians up and down the country.
To conclude, the status quo is not an option. The Bill strengthens the current system and meets the concerns raised by clinicians and others. I ask noble Lords not to press their amendments which would fail to address the current fundamental problems and would deny patients and taxpayers the benefits of an independent, fair and transparent system. Finally, I hope the House will accept the minor and technical amendments in my name in this group when I come to move them.
Baroness Thornton
My Lords, the Minister has explained this very clearly. We part company about the transparency, clarity and accountability. I resist the temptation at this time of night to start asking questions of the Minister about this matter, but I fear that it is going to take a very long time to sort this one out. One of the reasons why my own Government had not completed this task is that it is fiendishly difficult and fiendishly complex. I fear that this Bill is not going to make it any less fiendishly difficult and fiendishly complex, but it also might make the whole process a lot less accountable.
This was in fact the final group of amendments that we had put down in our suite of amendments to reform the whole of Part 3 in Committee. The noble Baroness, Lady Murphy, is quite right. If you give the responsibility and accountability for the tariff to the Secretary of State, you undermine the role of the economic regulator. Yes, that was the point of this amendment in the very first place. She got it in one—well done.
At this time of night, it is probably best if we do not delay proceedings. I beg leave to withdraw the amendment.
Health and Social Care Bill
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Baroness Hollins
My Lords, I pay tribute to the work of my noble friend Lord Sandwich, who has done so much to raise awareness of the often unmet needs of people whose addiction originated in a legal prescription. There is some progress in training doctors—for example, in undergraduate medical education with a new national curriculum on substance misuse. This guidance provides learning objectives on rational prescribing and iatrogenic addiction. The fact that such a curriculum is only just being introduced shows the need for the attention of clinical commissioning groups to be brought to this issue.
There seems to be a special responsibility on the National Health Service to provide better care for people affected by medical prescribing practice, and I hope that the Minister will be able to suggest how such a responsibility could be emphasised in the Bill.
Baroness Thornton
My Lords, I intend to make only two remarks. We have a great deal to get through tonight, so I shall exercise great self-discipline. I think that I will come in at under a minute and a half.
The noble Earl needs to be commended for his determination and hard work in this area. We think that it is an important issue. This is a growing problem and the noble Earl makes very reasonable requests, for which he has widespread support. I agree with the noble Baroness, Lady Masham, in that I fear this problem may get worse before it gets better, but I hope that the Minister will have good news for us about it.
Earl Howe
My Lords, we return to an issue of enormous significance for the individuals and families affected. I refer of course to those suffering from addiction, or withdrawal from addiction, to certain prescribed drugs. I am grateful to the noble Earl, Lord Sandwich, for his amendment, which would put in primary legislation a requirement for clinical commissioning groups to provide a specific service and, in so doing, to co-operate with and take account of the good practice of specialised agencies.
I think that the desire for good practice and for improving practice is common ground between us. The noble Earl will know that local areas are currently responsible for the design and provision of treatment and support services. We think that that is right. Having said that, it is clear that we need to do all we can to prevent dependence occurring in the first place. I am fully with him on that. For those who do develop dependence, it is important that they have access to the services they need to help them to recover, rebuild their lives and contribute productively to society. By placing the funding and responsibility for commissioning services to support people to recover from dependence with the local authorities, the Bill will provide local areas with opportunities to improve integration of commissioning and provide more effective joined-up services to meet local needs.
Health and Social Care Bill
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Baroness Thornton
My Lords, I have a question on Amendment 148A, which does not look small or minor to me. It concerns “Support functions of the Secretary of State”. Why is it there? Why is it necessary? What does it aim to do?
Baroness Finlay of Llandaff
My Lords, I did have a speech prepared in support of this amendment, based on the Welsh experience. However, after being woken by the “Today” programme telling me about a debate that we had not had—or that I thought I might have perhaps slept through—and announcing how the Government had responded in a way that I could not recall, I decided simply to bin my speech and live in hope. That is how we all are at the moment. We await the Government’s response to the amendments.
Baroness Thornton
My Lords, perhaps I may just say that when I was a Minister this was one of the few battles that I had and lost in the department. I shall be very glad if the noble Earl has had the battle and won—congratulations. I also say well done to all those who have been campaigning on this issue, particularly my noble friend Lady Gould.
Baroness Northover
My Lords, I am the lucky one who has drawn the long straw on this issue and I am very grateful to my noble friend Lord Howe for allowing me to have that long—rather than a short—straw. I am especially grateful to my noble friend Lord Fowler for bringing back this important issue. Again, I pay tribute to his enormous commitment in improving HIV services for all and, of course, to the outstanding work he did to protect the public from infection.
As I advised in Committee, the Department of Health has now concluded its review of the current policy, under which some overseas visitors are excluded from free HIV treatment. The review considered many issues, including the public health and economic arguments for providing free treatment. We also noted the recommendation and findings on this in the No Vaccine, no Cure report, published last year by the House of Lords Select Committee on HIV and AIDS in the United Kingdom, chaired by my noble friend Lord Fowler.
Since the debate in Committee we have also taken account of the views of other government departments with an interest in this issue and I am pleased to report that the Government have agreed to support the change that this amendment proposes. The evidence on the public health benefits of HIV treatment is compelling. Research published last year, and subsequently reviewed and endorsed by our own Chief Medical Officer’s expert group, shows that treatment reduces infectivity and onward transmission by up to 96 per cent. Reducing transmission will reduce the risk of new infections in the wider UK population and, as noble Lords have said, reduce the NHS costs associated with treating late diagnosis of HIV. Around half of new HIV diagnoses in the UK are diagnosed late; that is, after HIV treatment is clinically recommended. As the noble Baroness, Lady Masham, said, late diagnosis results in increased mortality and morbidity and more expensive treatment.
As my noble friend Lord Fowler said, it is estimated that there are 91,000 people living with HIV in the UK, of which one-quarter are unaware they are infected, which means they can continue to transmit HIV to others. Without access to treatment upon diagnosis there are no or few incentives for testing. Amending these regulations will remove this barrier. It is also worth noting that the knock-on effect of improved public health protection for HIV is that reduced onward transmission will itself reduce the number of new cases within the overall population. The noble Baroness, Lady Gould, made reference to the importance of all of this. Earlier diagnosis, resulting from the testing of those previously put off by the prospect of charges, will reduce the number of late cases with more complex emergency healthcare needs. Together these benefits should reduce overall NHS costs significantly over the longer term.
Therefore, we agree that where clinically necessary we must provide HIV treatment, free of charge, to all who are present in the country, irrespective of their residency status. In doing so, this actually does no more than to bring HIV treatment in line, as others have said, with that for all other major communicable diseases, such as TB and hepatitis, and for all other sexually transmitted infections for which treatment is free without a qualification period. However, my noble friend’s amendment as drafted proposes to include a residency qualification period of six months for HIV treatment. I understand why he put that provision in. Our view is that such a limitation could compromise our primary public health objective and that therefore there should be no such exclusion. However, I recognise that my noble friend had included this limitation to address wider concerns about attracting others to come here for treatment. We share those concerns.
The NHS is, and must remain, a national not an international health service. While it should also provide for the emergency and humanitarian needs of others, we are clear that in implementing this change we must avoid creating an incentive for people to travel to the UK solely for the purpose of free HIV treatment. In fact, they should not have to; there has been huge progress globally on increasing access to free or subsidised HIV treatment. Some African countries have achieved universal treatment coverage. Average treatment coverage in Africa has increased to almost 50 per cent, with even higher treatment coverage in eastern and southern African. While the different models of healthcare systems in other countries make direct comparisons difficult, research suggests that free HIV treatment is available, regardless of a person’s residency status, in France, Spain, Holland, Italy and Portugal. The noble Lord mentioned the situation in the rest of the United Kingdom.
The Department of Health is already in the process of drafting, with HIV clinicians and others, new clinical guidance to support implementation in a fair and consistent manner. This will limit the extent of immediate access to drugs after a person is diagnosed and allow for continued review of the duration of any drug supplies before another visit is required. So it simply will not be the case that tourists can get off the plane and access immediate long-term supplies of drugs. If clinicians identify a person who is in the country just to receive free treatment, the NHS will not provide it unless there are exceptional circumstances, such as extreme infectiousness or pregnancy. Treatment for any conditions other than HIV itself remains chargeable.
Furthermore, we will continue to monitor any change in new HIV diagnoses in the UK of HIV infections acquired abroad. We will strengthen our current monitoring and collect additional anonymised data on residency status that will help to identify any abuse. In addition, we will maintain existing stringent procedures to check for fraudulent registrations at GUM clinics. It will also remain the case that receiving HIV treatment will not be sufficient to overturn an immigration requirement to leave the country and there are no provisions under the Immigration Rules for a person to travel into the UK in order to access the NHS.
To conclude, I am very grateful for the opportunity to discuss this important issue again and I am very grateful to noble Lords around the House for all their work over a number of years. I pay tribute also to the noble Baroness, Lady Thornton. This is a very sensitive issue and I appreciate the constructive way that people have dealt with it. There is a compelling public health case in support of this amendment which we cannot ignore. However, while safeguarding our overriding responsibility for public health, we are clear that the change this amendment proposes should not be seen as an incentive for travel to the UK for the purposes of obtaining free HIV treatment. We will therefore be introducing strong safeguards in our front-line procedures in clinics to address this.
Having said that, the Government support the change that this amendment proposes but I am asking my noble friend to withdraw it for now, for three reasons. First, on a technical point, the proposed change is to secondary regulations. It is not normal procedure to amend such regulations through a primary Act. Secondly, as I have indicated, the amendment includes a six-month exclusion period that we do not support. Thirdly, the department needs some time to finalise the clinical procedural safeguards and monitoring processes that I have set out.
However, in seeking withdrawal, I offer on behalf of the Government an absolute commitment that the department will introduce a statutory instrument to amend the current exemption, so that the exemption from charges for treatment of sexually transmitted infections will include HIV. The change would be effective from October this year, and we would anticipate laying the amending SI before the Summer Recess to achieve that effective date. As my noble friend Lord Fowler said, this makes economic and human sense. I hope that my noble friend will understand and agree to the process that I have proposed as the most effective way of delivering the mutually desired outcome of his amendment, for which he and others have long campaigned.
Health and Social Care Bill
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The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, I shall now repeat as a Statement the Answer given by my right honourable friend the Secretary of State for Health to an Urgent Question tabled in another place earlier today about the Health and Social Care Bill. The Statement is as follows:
“Mr Speaker, I am glad to have this opportunity again to set out the purposes of the Health and Social Care Bill. It is to give patients more information and choice, so that they share in decision-making about their care. It empowers front-line doctors and nurses to lead the delivery of care for their patients. It cuts out two tiers of bureaucracy, and strengthens the voice of patients and the role of local government in integrating services and strengthening public health.
The values of the Bill are simple: putting patients first, trusting doctors and nurses, focusing on results for patients, and maintaining the founding values of the NHS. We are constantly looking to reinforce those values, strengthening the NHS to meet the challenges it faces. We know change is essential: we will not let the NHS down by blocking change.
Throughout the development and progress of this Bill, we have engaged extensively with NHS staff, the public and parliamentarians. The Health and Social Care Bill is the most scrutinised public Bill in living memory. With over 200 hours of debate between the two Chambers and 35 days in Committee, we have ensured that Members and Peers have had every opportunity to examine, understand and amend the Bill to ensure it does the best possible job for patients.
We have made this legislation better and stronger. We have made significant changes to the Bill, including in response to the NHS Future Forum’s work, and we will be open to any further changes that will improve or clarify the Bill. For example, so far in the Lords, the Government have accepted amendments tabled by a number of Cross-Bench, Liberal Democrat and Labour Peers.
Yesterday, my right honourable friend the Deputy Prime Minister and the noble Baroness, Lady Williams, wrote to their Liberal Democrat colleagues explaining their support for the Bill with those changes and some further amendments they wish to see. They said, for example, how we must,
‘rule out beyond doubt any threat of a US-style market in the NHS’.
I wholeheartedly agree.
The Bill is about quality, not competition on price. It will not permit any NHS organisation to be taken over by the private sector. It will put patients’ interests first. We will not permit any extension of charging. Care will be free and based on need. Where the doctors and nurses on the ground know that competition is in the best interests of their patients and where it is based entirely on the quality of the care and treatment provided and not in any way on the price of that care and treatment, then competition can play an important role in driving up standards throughout the NHS.
We will not see a market free-for-all or a US-style insurance system in this country. I believe in the NHS. I am a passionate supporter of our NHS. That is why I understand the passionate debate it arouses. But it is also why I resent those on the Benches opposite who seek to misrepresent the NHS, its current achievements and future needs.
We are using the debates in the Lords further to reassure all those who care about the NHS. I am grateful for the chance to reassure all my honourable friends in the House of the positive and beneficial effects of debate in the House of Lords, and of the work we are doing to secure a positive future for the NHS”.
My Lords, that concludes the Statement.
Baroness Thornton
My Lords, I thank the Minister for that Statement. We are in a slightly odd situation here. We have a letter from the Deputy Prime Minister and a distinguished Member of your Lordships’ House to MPs and Peers in their party concerning a matter of public policy involving a major piece of legislation currently before this House. I thought that we could not be further surprised by the parliamentary twists and turns of this Bill, but it is really a case of “Whatever next?”. Is it the first time that a serving Deputy Prime Minister has decided to send a letter suggesting amendments to his own Government’s legislation? This letter seems largely to concern Mr Clegg saying that he wants more amendments to the Bill and expects this House to deliver them so that Liberal Democrat MPs can support the said amendments in the Commons. It is not clear to me whether the Minister in the Commons, or even Conservative MPs, will do so as well. Remarkable!
I appreciate that it may be difficult for the Minister to answer this question, but I am going to ask it anyway. How exactly does he think that the Liberal Democrats propose to achieve this target set by Mr Clegg in this House when they are part of a coalition wedded to this Bill in all its glory—and Part 3, too—and the Lib Dems command 70 to 80 votes in the House on a good day? Who will deliver Mr Clegg’s amendments to Part 3 of the Bill, I wonder? Will it be done by consent with the Government or will it be by Division?
I would like to ease Mr Clegg’s dilemma in this matter and make a very generous offer. The Liberal Democrats can have our amendments to Part 3 of this Bill. We have a great set of amendments to Part 3 which would serve to deliver what Mr Clegg and the noble Baroness, Lady Williams, say that they seek on competition and, indeed, more. So I look forward to the Minister’s response to my offer.
However odd the mode of delivery, it is important to ask whether this is a major announcement of a change in government policy and, indeed, was the text of the letter discussed with and agreed by No. 10 and Mr Andrew Lansley. This development has added to the considerable confusion about what government policy around the Bill is exactly, and I think that Ministers need urgently to clarify what precise changes are being proposed, what discussions have been held with the Deputy Prime Minister and whether these policy changes now represent government policy. I ask this because we know that Mr Clegg has to manage the challenge of the Lib Dem spring conference—and a challenge it is certainly shaping up to be. According to today’s media, the Liberal Democrat health activists are planning to put an emergency motion to the party’s spring conference urging their leadership to reject the provisions of the NHS reform Bill despite, presumably, the final changes advanced by Mr Clegg and the noble Baroness, Lady Williams, in this joint letter. Certainly this letter and that conference, combined with the growing tumult against the Bill—another royal college might bite the bullet and say that it wants the Bill to be withdrawn again; I think that there are only about two more to go—put the discussions that we will have on Part 3 in your Lordships' House next week in an interesting light.
This is an odd way to develop and announce policy—or is it shift in policy? Yesterday morning, the Minister, Simon Burns, was insisting the whole Government backed the Bill “as amended now”. At the same time sources close to Mr Clegg, whoever they may be, were insisting the changes that he is demanding are,
“significant and not simply reassurances”.
However, at the same time the PM’s spokesperson said,
“we do not see any need for further significant changes to the Bill”.
We need to know which of these is correct. I hope that the noble Earl will be able to enlighten the House.
This letter states that,
“we want to rule out beyond doubt any threat of a US-style market in the NHS. That is why we want to see changes made to this bill that have been put forward by our Liberal Democrat team in the House of Lords to make sure that the NHS can never be treated like the gas, electricity, or water industry”.
That is exactly what I have been saying all the way through this Bill. The letter proposes four broad changes. The first is that we should remove the reviews by the Competition Commission from the Bill. In fact, amendments to that effect where tabled by the Labour Party. Imitation being the greatest form of flattery, I am very happy that the Liberal Democrats are tabling them again. Secondly, the letter suggests that we keep the independent regulator for foundation trusts, Monitor,
“to make sure hospitals always serve NHS patients first and foremost.”.
Well, hurrah! We have an amendment down that does exactly that. Thirdly, the letter proposes to,
“introduce measures to protect the NHS from … threat of takeover from US-style healthcare providers by insulating the NHS from the full force of competition”.
Mr Clegg might just have noticed the threat that competition posed when he signed this Bill a year ago. Finally, it proposes,
“additional safeguards to the private income cap to make sure that foundation trusts cannot focus on private profits before patients”.
Well, the amendments that the Liberal Democrats have promoted so far on this certainly need some thought and some change. We would agree with them and we shall see. This is all familiar to us on the Labour side, because those proposals were part of the substance of our amendments in Committee which were so soundly and roundly rejected by the Minister. Is he about to resile from his earlier position and embrace the Labour amendments? I would appreciate some notice if that is what he intends to do.
I have a few questions. The document issued at the Conservative away day last Friday said:
“If we changed or altered the bill now, we would end up in a no man's land, and chaos”.
Can the Minister confirm that this is still the Government's position? Can he clarify whether the changes outlined in the Deputy Prime Minister's letter now represent government policy? His letter promises,
“additional safeguards to the private income cap”.
Can the Minister explain what these additional safeguards are, and why the Deputy Prime Minister feels that they are necessary? Why does the Secretary of State seem to have no regard for the views of health professionals and the public when it comes to making changes to this health Bill but is quite happy to make concessions to accommodate the Liberal Democrats before their spring conference? Will the Minister clarify whether these amendments to the Health and Social Care Bill are “significant”, as stated by the Deputy Prime Minister, or a “reassurance”, as stated by the Prime Minister's official spokesperson?
In 2009, the Prime Minister said:
“There will be no more of those pointless re-organisations that aim for change but instead bring chaos”.
It seems to me that the Secretary of State has seen a clear example of unmitigated chaos in the latest incarnation of his Health and Social Care Bill. Really, this is a most unloved and unwanted piece of legislation and the Bill should be dropped. In conclusion, the Minister has my deepest sympathy in dealing with this Statement, because it seems that it puts him between the rock of Andrew Lansley and the hard place of the noble Baronesses, Lady Jolly and Lady Williams, and their colleagues—probably not a comfortable place to be. Actually, this is not the way to treat Parliament and its consideration of this Bill. It is not the way to treat the people who work so hard for the NHS and, indeed, it is not the way to treat our NHS.
Health: Neurological Conditions
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Earl Howe
There have been shortages of certain medicines over the past two or three years for a number of reasons; there is not a single reason. The Department of Health is working with the medicines supply chain established under the previous Government, and is doing very effective work. It is liaising with manufacturers, wholesalers and the pharmacy trade to ensure that medicines are available when needed. I have not seen the article to which my noble friend refers, but we are not of the view that there is any need for undue concern. However, we are keeping the position under review.
Baroness Thornton
My Lords, it has been suggested that the UK currently does not have enough neurologists—that there should be one neurologist per 40,000 people, and at the moment we have one neurologist per 125,000 people. How will the Government increase the number of neurologists; and how will they do that under the current proposals for the reform of the NHS? Who will drive that increase?
Earl Howe
As the noble Baroness may remember, the National Service Framework for Long-term Neurological Conditions set out as a principal requirement the need for an appropriately skilled workforce to manage the care of people with long-term neurological conditions. At the moment that is the responsibility of primary care trusts. The good news is that full-time equivalent numbers of consultants have been rising steadily. According to the Information Centre census, there were 523 in 2010, an increase from 517 the previous year and from 449 in 2004. To answer the latter part of the noble Baroness’s question, I can say that the Centre for Workforce Intelligence will feed into Health Education England, which will in turn inform the local partnerships that we intend to establish under the reforms, so that there is both a national and a local input on workforce numbers and the numbers we need to train to deliver the service that patients require.
Health and Social Care Bill
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Baroness Masham of Ilton
My Lords, I would like to ask the movers of the amendment a question just for my own concern. Health is free at the point of delivery so there should be no problem with integration between primary and secondary care. However, this is not the case in social care as there is means testing. How does this affect integration?
Baroness Thornton
My Lords, I am not going to attempt to answer the noble Baroness’s question. I shall leave that for my noble friend Lord Warner or the noble Lord, Lord Patel. The noble Lord, Lord Patel, and my noble friends Lord Warner, Lady Pitkeathley and Lord Turnberg made a very good job of introducing these amendments, stressing the importance of joint commissioning, the work of the Health Select Committee in the Commons and its recommendations, and indeed the vital nature of tariff reform. This is a modest but very important amendment that strengthens the Bill.
Every time we meet on Report on this Bill we are in a different world. The world we are in today is not the same one we were in 10 days ago. As we speak, the Royal College of Physicians has decided by a majority of 80 per cent to ballot its members about how they feel about the Health and Social Care Bill. By my counting that leaves only two royal colleges which have not consulted their membership so far. We all know what the results of the consultations have been, but still we plough on with this Bill.
The remarks of the noble Lords, Lord Mawhinney and Lord Newton, and the noble Baroness, Lady Jolly, together underline the defects of this Bill. Why are we having a debate about integration at this point in the passage of this Bill? It occurred to me that perhaps those debates should have been had before we had the Bill. However, because you cannot achieve everything does not mean that you should not try to achieve something. That is what these amendments do and that is why we on these Benches are very keen to support them. It seems to me that through all the many definitions of integration that we have discussed in this House, the one that is going to have the most effect on budget and finance is in these amendments here before us today. I hope the Minister will accept these amendments because they will improve this Bill.
Earl Howe
My Lords, integration has been a consistent theme throughout our debates on the Bill and the noble Lord, Lord Warner has made a number of highly informed speeches on this topic, as indeed have many in your Lordships’ House. The noble Lord, Lord Warner, made a powerful case for taking action for further integration. There is no disagreement between us on this. It is why the Government have already taken a number of steps to do precisely what he is asking and I name a selection only. We have put duties on commissioners to promote integration. We are creating health and well-being boards, bringing together health and social care commissioners and their representatives—one of the main manifestations of joined-up thinking in this Bill. We are strengthening the duties in relation to pooled budgets. We are placing specific duties on Monitor to support integration and tabling an amendment prior to Report giving Monitor express power to do that. We are working with the Future Forum, the King’s Fund and the Nuffield Trust in a whole range of non-legislative measures. This is not as the noble Baroness, Lady Howarth, put it, something the Government have put into the “too difficult” box. We are determined that we need to tackle this. I hope no one in your Lordships’ House is left in any doubt about our commitment in this area.
There are numerous examples of the non-legislative things we are already doing. We agreed with the Future Forum’s recommendations that the board should produce commissioning guidance for CCGs that focuses on how to meet the needs of different groups of people who may have multiple problems such as the frail elderly. By April 2012 the department will put in place new metrics that bring together existing data on patients’ experiences at the interface between services. We are working with the NHS Institute for Innovation and Improvement to identify and spread examples of good practice in local measurement and improvement of pathways of care. Through the NHS operating framework for 2012-13 we are asking all PCTs to work with their local authority partners to look at how integration can be better achieved. I have a whole string of other examples.
As I have said, the commitment of the Government in this area should not be doubted. I was very pleased to see the King’s Fund and the Nuffield Trust in their report to the Future Forum recognising that,
“integrated care lies at the heart of”
this Bill,
“to put patients first, improve health outcomes and empower health professionals”.
That is exactly right. While there is clearly work to be done to make this a reality, the Bill will, for the first time, create duties for NHS bodies to promote and encourage the commissioning and provision of integrated services. It is a difficult concept to define. While the noble Lord, Lord Warner, is to be congratulated on the attempt he has made in his amendment, my fear is that the amendment will not actually take us very far. The precise term “integration” is used only in headings in the Bill and the concept of integration is applied in a number of different contexts so a fixed definition of this kind may not be appropriate in every case. It may be too narrow in some cases—some noble Lords have alluded to that point. It is also a somewhat circular definition, referring as it does to integration meaning the delivery of integrated care. That serves to illustrate the real difficulties with this approach.
I am not convinced that it is necessary to try to describe what integration means. Integration is a broad concept. It could encompass a range of measures. As the recent King’s Fund and Nuffield Trust report noted,
“integrated care means different things to different people. At its heart, it can be defined as an approach that seeks to improve the quality of care for individual patients, service users and carers by ensuring that services are well co-ordinated around their needs”.
Yes that is right and the duty on the board in new Section 13M is absolutely consistent with that approach.
We were very grateful to the Future Forum for its recent work on integrated care. We welcome its recommendation that the entire health and social care system should share a clear and common understanding of the value of integration as a means of putting patients at the centre of their care. However, it was also clear that rather than being an end in itself, integration is,
“a means to achieving better outcomes for people”.
That is surely right. There must be the scope for integration to be adaptable to the needs of local communities and individual patients. The noble Lord’s definition holds,
“improving the delivery of integrated care and treatment to individual patients”
as the objective in itself when improving outcomes and reducing inequalities should be the ultimate objectives.
Very recently, I was advised of a paper produced by the World Health Organization in 2008, Integrated Health Services - What and Why? It starts off by stating that integrated health services mean different things to different people. It lists a whole variety of interpretations of what integrated healthcare means and says that it is in essence very difficult to boil these things down to a definition that is going to please everybody. It also casts doubt—I do not want to make too much of it—on the empirical base for claiming that integration is the answer in every set of circumstances. In making that point, I do not want to imply that the Government are anything other than fully committed to integration, because we certainly are, but the paper’s conclusion is:
“‘Integration’ is used by different people to mean different things. Combined with the fact that this is an issue which arouses strong feelings, there is clearly much scope for misunderstanding and fruitless polarization”.
For the World Health Organization to come to that conclusion tells a story. In drafting the various duties and powers in relation to integration, we have consciously avoided a fixed definition to allow for a measure of flexibility and innovative thinking. We have focused on the purpose—the “why” rather than the “how”.
I recently met front-line staff when I visited the NHS on the Isle of Wight to look at how they were delivering an efficient, integrated, urgent care service. I made a point of asking them whether they thought that a definition of integration in the Bill would be helpful. I received a resounding no in response. They felt that something like that would stifle their ability to apply fresh thinking and to come up with inventive solutions of their own as to how best to provide integrated care. We are clear that we should not put clinicians, who know the needs of their patients best, in a straitjacket by defining integration in the Bill.
Clearly, it will be important that the board and CCGs are held to account for delivering against these duties. They are already required to set out in their annual reports how they have exercised their functions, including how they have met the various duties placed on them.
Amendment 38C also makes particular reference to the board and Monitor developing tariffs that will support integration. On that point, I reassure the noble Lord that the duties on the board and Monitor to promote integration would apply in relation to their functions in relation to the tariff. The clauses on the tariff allow a high degree of flexibility for the board to adopt different approaches to tariffs, including “bundles” of services or pathways, and we are committed to extending these. They also allow scope for local flexibility in how the rules are applied where necessary. The noble Baroness, Lady Wall, provided considerable insight into what is needed here. Perhaps it would be helpful if I gave an example of a pathway tariff.
In 2012-13, we are introducing a “year of care” tariff for funding cystic fibrosis services, developed with the support of the Cystic Fibrosis Trust. This includes all the care for cystic fibrosis patients for a whole year. The price is broken down into different “bands”, depending on the complexity of the patient. The tariff will cover the care undertaken by specialist centres and local hospitals, but it will be paid only to the specialist centre thereby promoting better joint working between specialist centres and local hospitals. We are confident that the board, with support from Monitor, will continue to develop and increase the scope of bundled service tariffs where it is clear that tariff design of that kind is appropriate and will deliver benefits to the patient.
Lord Rea
Would the Minister look at the experiment mentioned by the noble Baroness, Lady Jolly, in Torbay, where there has been considerable merging of health budgets and social services? That was locally led, but would it not have helped to spread it further with an amendment such as this in place, so that it could be encouraged from the centre?
Baroness Thornton
My Lords, I support these amendments, and I do so because I agree with the noble Lord, Lord Patel, that there was a grave omission from the Bill that would allow strategic reconfigurations to take place that are not based on failing institutions. It was certainly not clear to us—and I rest on the authority of my noble friend Lord Warner on this—how, with the abolition of the SHAs from April 2013, strategic reconfiguration of specialist services would take place. Ministers have said, “Oh no—it’s all going to be okay”, but they have not explained how you would reconfigure the stroke services in London, as the noble Lord, Lord Patel, said, after the abolition of the strategic health authority. We support the amendments and hope that the Minister will do so as well.
Earl Howe
My Lords, we have had several lively debates on the importance of redesigning services if the NHS is to become more personalised and productive, and the noble Lord, Lord Warner, speaks with great insight and passion on this issue. He has tabled further amendments on this topic, which we will have an opportunity to debate in detail at a later stage.
The Government are clear that, as a basic principle, the reconfiguration of services is a matter for the local NHS and that decisions about service change should be driven by local assessment of need. The reconfiguration of services works best when there is a partnership approach between the NHS, local government and the public. What matters is that strategic decisions are taken at the right level. We believe that our reforms will enable commissioners to make the changes that will deliver real improvements in outcomes for patients and the public. The Bill places clear duties on the Commissioning Board and clinical commissioning groups, which will underpin a locally driven approach to service redesign, clinically based and framed around the needs of patients. That includes duties to promote the NHS constitution and the involvement of patients as well as duties to secure continuous improvement in the quality of services and to reduce inequalities. These duties set important guiding principles against which the commissioning system will develop and oversee service redesign and reconfiguration. In addition, the NHS will continue to assure reconfiguration proposals against the four clear tests set by the Secretary of State, which are that proposals should have support from clinical commissioners; should be based on robust patient and public engagement; should be underpinned by a clear evidence base; and should be consistent with current and prospective plans for patient choice. The Bill and the four tests will ensure that any proposals for service change are based on a thorough assessment of local need, underpinned by clinical insight and developed through dialogue between commissioners, providers, local authorities, patients and the public. Of course, the board will have an important role in providing support and assurance to local commissioners, but we will not be replicating layers of top-down management.
With the clear legal duties set out in the Bill, the four tests and the support and assurance that will be available, there should be no need for the Secretary of State to prescribe through the mandate how the commissioning system should prioritise and determine the design of services. To do so would cut right across the clinically led local commissioning, which is at the heart of the Bill. Nevertheless, I recognise the importance of getting these arrangements right, and between now and Third Reading I commit to working with the noble Lord with a view to finding a formula designed to address the concerns that he has articulated. We are looking at a range of options. I hope to be able to say more about this when we reach his later amendment on the subject. I hope that for now he will find this rather broad assurance sufficiently strong to enable him to withdraw that part of the amendment.
I hope that the noble Lord will be able to withdraw the rest of Amendment 42 as well, because it also raises another issue. It is vital, especially in the current economic climate, for the NHS to provide financial support for adult social services where possible in relation to those services at the interface between health and social care. Here, I pay tribute to the noble Lord, Lord Warner, who has been a tireless advocate of social care at numerous stages of our proceedings, to ensure that this element of the equation—and that part of the Bill’s title—is not overlooked.
The noble Baroness, Lady Murphy, has tabled Amendment 148B with a similar aim in mind. We are all, I think, aware of the impact that such services can have in helping people to live independently in their own homes and in reducing unnecessary hospital admissions—which is, of course, better for the individuals involved and relieves pressures on the NHS. The last spending review included a commitment to provide £648 million in 2011-12, rising to £700 million by 2014-15, for these purposes. Early indications are that this funding has helped to promote integrated working between social care and health commissioners. We want this to continue. I can reassure the noble Lord and the noble Baroness that by virtue of paragraph 130 of Schedule 4 to the Bill the NHS Commissioning Board and CCGs will inherit the powers that primary care trusts currently have under existing legislation to make payments to local authorities towards expenditure on community services.
Generally speaking, our approach in this Bill has been to give NHS commissioners maximum autonomy in how the NHS budget is used. However, I have sympathy for the argument that it is legitimate that the Secretary of State should be able to determine the proportion of NHS funding that is to be transferred to local authority community services in order to secure closer working between the NHS and social services. I am not sure that the mandate is the right vehicle for this. However, I can see very considerable merit in the approach that the noble Baroness has taken with Amendment 148B. This amendment would give the Secretary of State additional powers to direct the board on the minimum amount that it should transfer to local authorities in a given financial year. The Secretary of State would be able to specify in the directions the bodies to which those payments should be made, the amount that should be paid to each body and the functions in respect of which the payments must be made, and to amend these instructions if necessary. It would essentially enable the current arrangements to continue.
The noble Lord, Lord Warner, asked whether the amendment was wide enough to cover adult social care; whether it was within vires; and whether the Treasury is content. The answer to all those questions is yes. Indeed, I am advised that the amendment would enable funding to be transferred to other community services, such as housing, if necessary.
The approach taken is in line with current practice, which is approved by and agreed with the Treasury. Importantly, this would represent only a minimum. The board would retain the power to make additional payments over and above those required by the Secretary of State if it chose. The CCGs would also retain their powers to make such payments. Although I think it makes sense for it to be the NHS Commissioning Board that makes these payments, it would also be vital that there is a dialogue between local authorities and clinical commissioning groups as to how the funding could be best used. Of course, both will be involved, as members of health and well-being boards, in setting the strategic framework for health and social care commissioning through the joint health and well-being strategy. In addition, the existing powers in Section 256 for the Secretary of State to give directions on the conditions that should apply to such payments would apply. This is helpful because it would provide a mechanism for ensuring that the agreement of the health and well-being board is obtained as to how funds are spent.
The noble Lord, Lord Warner, has spoken with great conviction about the Bill’s importance, including the tangible duties to act to ensure that integration moves from being just an aim to being a reality—as, indeed, the Future Forum has emphasised that it must. I think that Amendment 148B meets all the criteria to ensure that that will be the case. I shall therefore be happy to support it if the noble Baroness should decide to move it. I hope that my noble friends will join me in supporting the amendment; I would urge them to do so. Given that commitment, I hope that the noble Lord, Lord Warner, will be prepared to withdraw Amendment 42.
Health and Social Care Bill
Baroness Thornton Excerpts(13 years, 4 months ago)
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Baroness Thornton
My Lords, I support this group of amendments from the noble Baroness, Lady Morgan, which call on the NHS Commissioning Board to promote research supported by the health service for the purpose of protecting the public from disease and other dangers to health. These amendments also include the need for the board’s business plan to explain how it proposes to discharge its duty in respect of these issues to promote the NHS constitution and for the annual report, in particular, to contain an assessment of how effectively it has discharged this duty. We support these too.
The amendments underline the importance of embedding research in the NHS and we welcome the introduction of a research duty on the Commissioning Board and the intention to ensure that research is genuinely an integral part of the health service, as my noble friend, Lord Turnberg, and the noble Lord, Lord Willis, said. This is one part of the Bill which has genuinely been recognised and improved on by the Government. However, ensuring that the intention of their duty is clearly understood and sufficiently comprehensive is crucial. These amendments are designed to ensure this. Amendment 66A would ensure that there are clear commitments to research for which the board is accountable and Amendment 67AA requires the board to explain activity relating to the research duty. Both these provisions ensure that there are important monitoring mechanisms in place in the board’s business plan and annual report. As the noble Baroness, Lady Morgan, has stressed, they address an apparent anomaly which requires the board to report on improvement in the quality of services and on public and patient involvement but not on research, as the noble Lord, Lord Willis, said. We hope that the Government will accept these amendments in that spirit.
Earl Howe
My Lords, we had a very positive debate on the importance of research at an earlier stage of Report. I was grateful to the noble Baroness, Lady Morgan, for the support she expressed for the changes the Government have made to the Bill. I am more than happy to respond to these amendments this evening. I sympathise and agree with the noble Baroness’s championing of research in this Bill. She and my noble friend Lord Willis have been particularly vocal and well informed on this subject. Nevertheless, I am afraid I am reluctant to agree that the Bill needs yet more amendment. Having said that, I hope I can reassure the noble Baroness going forward.
On Amendment 60A, the duties on the Secretary of State, the board and CCGs to promote research and the powers to conduct research all apply to the health service in its widest sense. This encompasses both NHS and public health services under the 2006 Act. In relation to the board’s duty in new Section 13L, the duty to promote research on matters relevant to the health service already covers public health protection. Public health protection is a function of the Secretary of State under Section 2A of the 2006 Act and therefore part of the health service.
There are also other clauses in the Bill that focus specifically on research into health protection. Clause 10 lists research and other steps for advancing knowledge and understanding as examples of action that the Secretary of State may take under his wider duty in relation to protecting public health. Public health and health protection in particular will, of course, be predominantly the responsibility of Public Health England rather than the board. It is not therefore necessary for the board’s functions to cover such matters but there will, of course, be close working between them and there are powers under Clause 21 for the Secretary of State to arrange for other bodies, including the board, to undertake any of his public health functions if necessary.
Turning to Amendments 66AA and 67AA, we have had a number of debates about exactly what the board should give particular attention to in its annual business plan and its annual report. I would like to remind your Lordships that the board is already required to set out in these documents how it intends to exercise its functions including how it will meet the various duties placed on it under the Bill.
The Bill emphasises a very few key duties that the board must look at in particular in its business plan, annual report and performance assessments, and that CCGs must look at in their commissioning plans and annual reports. We feel that we have chosen the right duties in each instance. As to the board’s and CCGs’ annual reports, it is more important that they focus on the outcomes that have ultimately been achieved through the provision of services, rather than on the way in which those services are being delivered. On the whole, that is the distinction we have tried to draw.
My noble friend Lord Willis asked about Dame Sally Davies and her reporting lines. I am sure my noble friend will remember that I wrote to him on 17 November and briefly covered this point. In short, as he knows, the National Institute for Health Research is and will remain part of the Department of Health. Its budget is held centrally by the department. The Chief Medical Officer is and will remain responsible for the NIHR and its budget. In her capacity as Chief Scientific Adviser and head of the NIHR, she will report to Ministers and the Secretary of State, but she will be there to give advice to the NHS Commissioning Board if asked to do so on matters relating to research. Similarly, in her capacity as CMO, she reports directly to the Secretary of State, but will be there to provide advice to Public Health England. I hope that that is of help to my noble friend.
The noble Lord, Lord Turnberg, asked me how the local authority role in promoting research would be assisted and how that would manifest itself in practice. I should like to write a letter to him on that point because the planning on that is, if I can put it this way, work in progress and I hope that I will be able to tell the noble Lord a little more in writing in a few days’ time.
Health and Social Care Bill
Baroness Thornton Excerpts(13 years, 5 months ago)
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Baroness Whitaker
My Lords, in supporting this group of amendments to which I have put my name, perhaps I may first say how grateful I am to the Minister for his letter of 29 November in response to the Committee debate. He confirmed in that letter that speech language and communication needs are included in the remit of public health. This group of amendments simply makes that clear for the Secretary of State and for commissioning groups. I suggest that it would not otherwise be clear. Look at what has happened: 70 per cent of British Sign Language users admitted to A&E units will have no interpreter provided. Increasing numbers of people with hearing loss have problems even with making appointments and understanding the diagnosis of their GP.
Since Committee, as the noble Lord, Lord Ramsbotham, would have said and as the noble Baroness, Lady Hollins, said, the report of the communication champion, Ms Jean Gross, has been published with further evidence of cuts by 10 local authorities to speech therapy services of more than 15 per cent. The Royal College of Speech And Language Therapists reports that 70 of 109 such services jointly funded by the National Health Service and the education authorities had lost the NHS element. More than half of newly qualified speech therapists have not found jobs. This crisis in the provision of speech and communication therapy means that for a significant proportion of children with these conditions—I remind the House that it is the most common disability of childhood, which substantially limits the chances of reaching their potential at work and even in relationships—this problem will be neglected without the kind of emphasis that these amendments provide. It needs to be clear that the health duties will include communication needs.
Baroness Thornton
My Lords, briefly, we support these amendments and commend the noble Lord, Lord Ramsbotham, and my noble friend for tabling them again because they are indeed important. I got quite excited when I saw the original spelling which was out there because I was thinking, “Is this about TB or HIV? This is a new one on me”. Nevertheless, this is a very important group of amendments because, as the noble Lord, Lord Ramsbotham, and other Members of the House have pointed out over many years, if you do not deal with the communication, speech and language problems of children at an early stage, you are storing up problems for the future. Indeed, Jean Gross’s report on front-line speech therapy for children is a cause for great concern, because it is quite clear that significant gaps are already appearing because of the cuts that have been made to provision.
I point out to the House that the allied health professionals have expressed their very grave concern about these issues by saying that they would like the Bill not to proceed. They are among the many thousands of health workers who, in this case, have been saying that for some extremely good reasons. Perhaps the noble Baroness would like to explain to the House what she is doing to persuade the allied health professionals and the speech and language therapists why the Bill will help them do their job any better, when it is quite clear that the services to children with speech and language therapies are already suffering.
Baroness Northover
My Lords, we are very sympathetic to the points that the noble Baronesses, Lady Hollins, Lady Whitaker and Lady Thornton, have just made. The noble Baroness, Lady Hollins, is quite right about the importance of communication skills—or even “communization skills”; my dyslexic son latched on to that one. We are acutely aware that addressing these kinds of areas is critical to the reduction of inequalities.
The noble Baronesses, Lady Hollins and Lady Whitaker, were concerned to ensure that we had flagged up this area. My noble friend Lord Howe sent a letter to the noble Lord, Lord Ramsbotham, who has worked tirelessly in this area. I emphasise that the Healthy Child programme, from pregnancy to five years, is the overarching NHS framework for providing prevention and early intervention for children and their families, and consists of a programme of screening, immunisation and health and development reviews. It is led and delivered by health visitors. It provides regular opportunities after birth for the parents and the health visitor to review together a child’s development, health and well-being, including any concerns about speech and language skills. We are working to improve the coverage of the HCP by delivering the Government’s commitment to increasing the health visitor workforce by 4,200, full-time equivalent, by 2015.
As part of the HCP’s schedule, the review at two to two and a half years includes a focus on speech and language development and is a key opportunity for health visitors to identify any problem and to take appropriate steps to refer a child to speech and language therapy if required. Following the commitment in the July 2011 publication Supporting Families in the Foundation Years, the Department of Health and the Department for Education are working together to develop the two to two and a half year review to become an integrated review, covering both health and education. The Department of Health is also leading a piece of work to develop a population measure—
Baroness Thornton
How does the Minister reconcile what she has just been telling us about referring children to that service after review at two and a half years with the fact that 70 local authorities have lost their NHS funding, 25 have lost cash from the LEA and those speech and language therapists are actually not going to be there?
Baroness Hollins
My Lords, I shall speak also to Amendments 55 and 238. My noble friend Lord Rix sincerely regrets that he could not stay this evening as his wife is unwell.
The three amendments tabled by my noble friend to this Bill have been placed together in this one group. I welcome this opportunity to speak to them. Noble Lords will be aware that these issues were raised during the Committee stage of the Bill. My noble friend recently met the Minister to discuss the matters that I am about to raise in relation to people with a learning disability. It is appropriate for me to declare an interest as a psychiatrist specialising in learning disability and also because my son has a learning disability.
To be fair to the Government, it could be argued that the broader issues which these amendments attempt to resolve could have been addressed by the National Health Service many years ago. However, my noble friend and I are using the opportunity presented by this Bill in an attempt to tackle them now. The first amendment, Amendment 37, aims to ensure that health services for those with the most complex needs are commissioned by the NHS Commissioning Board. Concerns were expressed about this issue in Committee. We seek assurances that health services for those with the most complex needs, particularly people with profound and multiple learning disabilities and people with complex needs whose behaviour challenges services, will be commissioned centrally by the NHS board. This amendment would ensure that the NHS Commissioning Board has oversight in this area, including the co-ordination and commissioning of specialist services or facilities for this particular group of disabled people. Any assurances that the Minister may be in a position to provide on this matter would be welcome.
The second amendment tabled in the name of my noble friend, Amendment 55, concerns the importance of collecting data on the experience and outcomes encountered by all patients in the NHS. Where a patient has a disability, it would also ensure a breakdown of disability by impairment type. In Committee, the Minister informed the House that his department is working with the NHS information centre to explore the extent to which indicators in the NHS outcomes framework can be disaggregated to show impairment types, which we would both welcome. However, if the information is not collected at source, clearly there will be limits to which this can be achieved. The Minister also stated that the Government's NHS information strategy aims to cover this issue too, when it is published later this year. Any additional assurances that the Minister is willing to give about what steps the Government will take to ensure that data are collected at source would be welcome.
The third and final amendment, Amendment 238, concerns the provision of independent advocacy services for people who are in the process of making a complaint against the NHS. For those who are unfortunate enough to encounter it, the NHS complaints system is flawed and ineffective. We welcome the Government's proposal for local authorities to make appropriate provision to support people in the complaints process through the use of advocacy services. However, there is a risk that advocacy support could be started and then halted some time before any conclusion to an ongoing complaint has been made. In Committee, the Minister emphasised that local authorities would have the discretion to provide independent advocacy services, consistent with their legal obligations, as they deem appropriate. My noble friend is particularly concerned that such discretion could leave many families without the on-going advocacy support that they need. Is the Minister able to provide my noble friend with any comforting words on that matter? I beg to move.
Baroness Thornton
My Lords, it is important that the Minister can give us some satisfaction in answer to the remarks made by the noble Baroness, Lady Hollins, particularly in view of the tireless pursuit of these issues by the noble Lord, Lord Rix. This small suite of amendments aims to start at the top as it talks about the Secretary of State’s power to require the board to commission services including for those with profound and multiple learning disabilities. It then puts a duty on the board to reduce inequalities, which will involve collecting data on the experiences and outcomes of patients with these disabilities. It also sets out that there should be no upper limit on the length and type of advocacy support that must be provided by local authorities. Therefore, it aims to provide a suite of amendments that address the whole system and the interventions that will be necessary to provide the right framework under the new regime for some of the most vulnerable people in our country.
It was interesting that, on a more general matter concerning children and the Bill, the NHS Confederation deputy policy director, Jo Webber, said recently that the Government's plan to recruit 4,200 extra health visitors by 2015 was leading to a loss of staff in other vital roles in some areas. For example, many established and successful children's health teams are being rearranged or in some cases disbanded simply to employ more health visitors. Ms Webber’s report claimed that the Government should replace the health visitor target with one that focused on the outcomes for children rather than on the numbers of staff in place. That was a very wise remark.
I turn to the children with the most complex difficulties and the question of how under this framework they will receive appropriate assessment and treatment that will address their individual needs. At best, there will be problems with the transition to the new system, and if there are gaps in the service for vulnerable children and learning-disabled patients who perhaps have GPs with limited experience, and doubts about how GP consortia will react to the situation, that is an issue of great concern. Historically, there has been an imbalance whereby people with learning disabilities have lost out when compared with those, for example, with mental health problems—who have also lost out. Therefore, how this group of children and young people are catered for will be a way of testing whether these things will work at all.
Earl Howe
My Lords, I am grateful to the noble Baroness, Lady Hollins, for her typically knowledgeable contribution to today's debate. I hope she will accept that the Government are committed to improving the health of people with learning disabilities, to help them both to live longer and to stay healthier for longer. The Bill aims to drive improvements in outcomes by establishing clinically led commissioning, by giving patients a stronger voice and by embedding quality improvement and a reduction in health inequalities at all levels of the system.
We debated these amendments in Committee and I have since exchanged correspondence with, and met, the noble Lord, Lord Rix. I understand and share his concern, and that of the noble Baroness, that there should be robust arrangements for commissioning services for people with profound and multiple learning disabilities, and for people with complex needs or challenging behaviour. I am afraid that it may disappoint the noble Baroness to hear that I still believe that the amendments are unnecessary. However, in saying that, I hope that I can reassure her about the reasons why.
On Amendment 37, the regulation-making powers in new Section 3B are already broad enough for the Secretary of State to require the board to commission these services. The current intention is that the regulations under subsection (1)(d) will be used to give the board responsibility for commissioning specialised services for rare and very rare conditions. The current specialised services national definitions set will form the basis for the services included in these regulations. These will include a number of services for people with profound and multiple learning disabilities, and people with complex needs or challenging behaviour. The services that are not considered specialised will be commissioned by CCGs, although in practice there will need to be close collaboration between the board and CCGs to ensure that patients receive a seamless service.
Health and Social Care Bill
Baroness Thornton Excerpts(13 years, 5 months ago)
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Baroness Thornton
My Lords, I think the noble Earl has answered the question as far as it goes, but he raises several points. First, this Bill did not need to be in front of us at all because many of the changes that are taking place do not need primary legislation. Secondly, his colleagues in another place have constantly said that the Bill cannot be dropped because it has gone too far. We are not in the same place now as we were at the end of Committee; millions of people in the health service have now expressed their view that this Bill should not happen at all. Given that, do the Government have a plan B in case they need to withdraw the Bill? Do they have people working on that in case the Bill has to be dropped?
Lord Warner
My Lords, before the Minister responds to that question, will he consider later—if he cannot answer now—the budgets for clinical commissioning groups? I understand from a meeting of the national Commissioning Board, which was held in open session on 2 February, that Sir David Nicholson is reported as having said that clinical commissioning governance is, in effect, moving on apace, and that more than 95 per cent of clinical commissioning groups have now agreed their constituent practices and geographies and are already seeing benefits in their services from the work that they have been doing. At the high level, around 50 per cent of the commissioning spend is already delegated to clinical commissioning groups from PCTs under various delegation schemes. That seems fair enough, but there is a final point on which I would welcome the noble Earl’s clarification. It says that the ambition is for all this to be so delegated to clinical commissioning groups by 1 April 2012. Will that delegation still be part of the present powers, or is it in anticipation of the legislation being passed in time?
Lord Eden of Winton
My Lords, we have listened to many powerful and persuasive speeches. I am tempted to go all the way with those who have advocated the inclusion of this amendment in the Bill, but I take up the words of the noble Baroness, Lady Finlay, who referred to the need for a cultural change. I think all noble Lords would agree that there is the need for a cultural change. I only question whether it is right to try to achieve that change through legislation. Surely what we are seeking to do is to change attitudes and get people to understand that there is no difference between physical and mental illness. For that reason, I think we need to hesitate before including words in legislation. What we need to do is to make people throughout the health service and everyone associated with the administration aware of the fact that there is no difference between physical and mental illness, and that those with mental illness need to be treated on an absolutely level footing with those with physical illness.
Baroness Thornton
My Lords, we on these Benches liked this amendment the first time round and we have not changed our minds. It may be symbolic in its effect—in fact, we think it all the better for that. Legislation should be the expression of policy and this amendment flows from important policy commitments by successive Governments about the parity of policy-making at all levels of the system to consider mental health alongside physical health. We give our very full support to the mover of this amendment and we urge the Minister to accept it.
I have two other remarks to make. First, I always listen extremely carefully to the noble and learned Lord, Lord Mackay of Clashfern. Frankly, if he says it is good enough for this Bill, that is good enough for me. Secondly, I agree with the noble Lord, Lord Newton, that it is a no-brainer. To the noble Lords, Lord Ribeiro and Lord Alderdice, and the noble Baroness, Lady Williams, I say that we are on Report. This is not the time for probing amendments. This is the time for taking decisions about what we want in the Bill. The Minister had the opportunity to take this away and consider it after Committee, when the House was as united in its view about this matter as it is today. Today I urge the Minister to accept this amendment but, if he will not, the House needs to express its view about this matter if at all possible.
Baroness Thornton
“(2) The Secretary of State must for that purpose provide or secure the provision of services according to this Act.”
Baroness Thornton
My Lords, we originally put down Amendments 3 and 4 in Committee back in the autumn. It has to be said from the outset that this is actually still a very bad Bill. Since Committee, the context in which we are discussing this Bill has without doubt changed. It seems that it has no support from anywhere except in the Department of Health—and possibly not even from everybody there. It still has no mandate.
Going back on previous commitments to,
“no more top-down reorganisation of the NHS”,
the Prime Minister and his Health Ministers, including the noble Earl, have adopted what we on these Benches would like to term the “Attlee defence”, in deference to the noble Earl, Lord Attlee—and I mean the Government’s Earl Attlee, not ours, as it were. Last March, during a debate on the Building Regulations (Review) Bill, in trying to explain the Government’s position, the noble Earl came up with:
“I gently remind the Committee that I answer for Her Majesty's Government, not for the previous Opposition”.—[Official Report, 4/3/11; col. 1352.]
That is a remarkable statement. Perhaps the Minister could gently remind the Prime Minister and the Health Secretary of their coalition agreement.
It is significant that the Prime Minister has had to come to the Bill’s rescue today, not least because a Downing Street source yesterday was reported to threaten the very life of the Secretary of State—I think that the words used were “taken out and shot”—for his failure to communicate the Bill and the Bill’s policy. We in the Opposition have never advocated such a thing. Perhaps the Minister would like to comment on this particular version of the Secretary of State’s ultimate responsibility in his job.
The Prime Minister’s words were also revealing in that the Government intend to push this Bill through. I do not believe that that is a respectful way of referring to the remaining stages in your Lordships’ House. It begs a question that I should like to ask the Minister early in Report stage, which arises from what happened recently as regards the Welfare Reform Bill. Will he give the House notice now as to whether the Government intend to use the financial privilege mechanism to strike down any amendments that this House might agree during the remaining stages of this Bill?
I have searched in vain for a precedent of legislation that is so unwelcomed by those who have to deliver it, so incomprehensible to those on whom its consequences will be wreaked and so difficult to explain in simple terms. But even the Minister, who is acknowledged by the whole House to be an outstanding performer and someone who can normally enlighten us about most matters in clear, plain English, has had to resort on many occasions to seeking to justify points of this Bill in the managerial jargon of his boss, Mr Lansley, which is as dense as the Bill itself. If any noble Lords doubt that, I suggest that they need only to peruse the record of the Committee stage.
We do not work in a sealed bubble in this Chamber and I appreciate that the Government might prefer it if that were the case. But the public’s view of this Bill has shifted and hardened since we completed the Committee stage before Christmas. The views of those who have engaged with this Bill for more than a year have changed and we need to hear their voices throughout Report stage.
As we all know, the discussions around the role of the Secretary of State have been of great significance. What has emerged is that the reasons for changing the role have never been made clear. As has been pointed out, there is a continuity around the role of the Secretary of State which goes way back to the founding of the NHS. I will not rehearse all the arguments that we heard in Committee and at Second Reading, and which some of us have been rehearsing during the months between those stages and up to last week. The reality is and always has been that the legal duty on the Secretary of State is to provide services. Even securing the provision of services has been delegated to organisations which deliver that duty on behalf of the public. Public accountability is and always has been vital to maintaining public confidence in the NHS. Ultimate political accountability exists in the person of the Secretary of State.
In no way can the Secretary of State argue that any failure to provide necessary NHS services is not his or her responsibility. The argument that if there is an issue the Secretary of State must work through failure regimes, regulations and directions to others is not good enough. As the Health Select Committee and many noble Lords, including the noble Lord, Lord Mawhinney, said in Committee, it would not be believed anyway.
We will be moving to the alternative wording in the next debate. We on these Benches have supported the process that has led to that wording. However, I should like the Minister to explain—I would be very happy to hear that explanation when he responds to the next debate—the difference between these words and those that are before the House. I am giving the Minister notice that this remains a bit of a mystery.
As with so much else in this unloved Bill, we are left with the question: why? Why on earth did the original Bill propose a radical change to the role of the Secretary of State? The Minister in the Commons, Simon Burns, was ready to die in a ditch for the wording. It was a liberation ideology for him. Why, throughout the scrutiny in the Commons, was the line rigidly held by coalition Ministers and MPs, and why is the Secretary of State—I really do think the House needs to know the answer to this question, but again I am quite happy to wait—now briefing royal colleges saying, “Actually, the changes that noble Lords have agreed in their Chamber will make no difference to the Bill”?
Our amendment and the others that deal with the role of the Secretary of State are important and we have undoubtedly prised improvement out of, if not a reluctant noble Earl in this Chamber, certainly out of a reluctant Government. Many of these issues are proxy arguments about what kind of NHS we want. During the rest of the Report stage we will focus our energies on the many other things that need to be changed, particularly in Part 3. These are part of the argument about why we do not want a full market, why we do not want regulation along the lines of that for the utilities or for the banks, and why we need to protect and preserve the tradition, well established and well understood, of the role of the Secretary of State.
I will be withdrawing the amendment, as I promised the Minister I would, but I would like some answers to the questions that I have posed in these remarks. I beg to move.
Earl Howe
I am grateful to the noble Baroness, who is of course quite right.
I have been handed a note which says that when I said that there would be no legally enforceable duties on quality improvement, I should have clarified that that would have a follow-on. I should have said, “across the NHS system”.
The noble Baroness, Lady Thornton, referred to potential privilege responses from the Commons. My noble friend the Leader of the House made a Written Statement last Thursday about the financial privilege of the House of Commons in which he drew attention to a paper by the Clerk of the Parliaments, available in the Library. I think that questions about procedure may be best directed to my noble friend, but I shall do my best to assist. The Clerk of the Parliaments makes it clear in his paper that,
“until the Commons asserts its privilege, the Lords is fully entitled to debate and agree to amendments with privilege implications”.
That is what we should do. I would much regret it if the House thought that I was trying to restrict its role of revision. The Marshalled List sets out more than 100 amendments in my name, tabled in response to debate in Committee, and if the House agrees to those amendments I can assure noble Lords that the Government will encourage the other place to accept them.
The essence of the noble Baroness’s question is about privilege reasons for the Commons rejecting amendments proposed by this House, and on that I can say two things. First, any amendment with implications for public expenditure might involve privilege, but that is a matter for the Commons alone. Decisions on financial privilege are for the Speaker of the Commons on advice from the Clerks of that House. If the Commons reject a Lords amendment in which the Speaker has determined that privilege is engaged, the only reason that it can send this House is a privilege reason. There is no discretion.
Secondly, this debate is by its nature premature. I hope that our debate and dialogue will lead to this Bill being sent to the Commons in a form that that House will accept. Until we see how Report unfolds, it is too early to speculate on the reaction from the Commons. One cannot have a reply to a question until the question has been asked.
Baroness Thornton
My question was actually about the Government’s intentions. That was a very enlightening and helpful remark about privilege. The Speaker of the Commons will not presumably, by and large, take a view on privilege unless the Government ask him to. So my question was about the Government’s intention on this matter.
Earl Howe
I have taken advice on this, and I believe that what I am about to say will not mislead the House as I have been given this advice on authority. It is not for the Government to do anything; it is not within our power to do anything. The noble Lord, Lord Martin, who spoke last week on this matter, is par excellence an authority on this. A view is taken by the Clerks in another place on the amendments passed in this House as to whether privilege is engaged. The Speaker is then advised. The Government have no role in that process at all; it is a Commons privilege, not the Government’s privilege.
I hope that what I have said will persuade your Lordships that the course down which the Opposition would wish to take us is the wrong one. The Bill, once amended—if that is your Lordships’ wish—through the amendments that have been jointly agreed on a cross-party basis, will therefore be fit for purpose in clarifying beyond peradventure the Secretary of State’s accountability for the health service and the exercise of his powers. With that, I hope that the noble Baroness, Lady Thornton, will feel able to withdraw her amendment.
Baroness Thornton
I thank the Minister for that response. I made it clear in my opening remarks that I would not seek to push the amendments to a Division, although the remarks of the noble Baroness, Lady Williams, and the Minister made me wonder whether I ought to do so, because certain things that were said were not justified.
First, the noble Earl took us through a list of things that without the Bill would not be happening. On almost every single one, I thought that without the Bill you could do all those things. You do not actually need this Bill to do most of the things that the noble Earl listed as being desirable objectives. I am sure that we would agree about most of them being desirable objectives.
The noble Earl mentioned the listening exercise as being proof that this is not the unloved Bill that I would suggest it is. Only yesterday, a former special adviser to Downing Street said that the listening exercise was a tactic as part of managing the Bill. Frankly, I was horrified by that. If I had been Professor Steve Field or one of the 40-odd people who, with every good intention of doing a public service unpaid, gave their time to take part in that listening exercise, I would think that it was really shocking. So I think that the noble Earl should be careful about praying the listening exercise in aid in explaining how loved or unloved this Bill is.
It is time that we moved on. I intend to reserve my praise for the next debate and leave my criticisms in this debate. I intend to withdraw my amendment, even if the noble Earl will not withdraw the Bill.
Baroness Young of Old Scone
My Lords, I am afraid that I will be even more discordant. I do not want to denigrate the congratulations that have been offered to the noble Baroness, Lady Jay, and her colleagues and the process that has been gone through to reach agreement on this amendment. However, I share the view of the noble Baroness, Lady Pitkeathley, that we must not forget not only how deeply unpopular the Bill is but that it is flawed.
I had not intended to speak on this amendment but I cannot let the moment pass as I think that the noble Baroness, Lady Jay, referred to a spirit of improvement that she was seeking in moving this amendment. However, we have to remember that the improvement is a bit like trying to paint the face of a harlot; at the end of the day, it is still the face of a harlot, no matter how improved. We are seeing real impacts on healthcare in this country as a result of the Bill, as we speak. I come from a background of having run health services for 20 years. I have also been the regulator for health and social care and am now part of a patients’ organisation. Patients are telling me that we are seeing the fragmentation of responsibility for the commissioning of healthcare and that services are suffering as a result of the financial squeeze; for example, diabetic specialist nurses are disappearing and patient education is being cut. The things that are important for the quality of care are being removed.
I am experiencing a huge loss of momentum in getting any change implemented in the care for people with diabetes. Whenever I speak to the Secretary of State, he tells me that it is no longer his responsibility and that I should talk to the NHS Commissioning Board. However, when I speak to the NHS Commissioning Board, staff say, “We are still working out how we do this”. When you talk to clinical commissioning groups, they are still not clear about the framework in which they are operating. Therefore, we are losing one, two or three years of headway on issues where there needs to be real improvement for patients.
Because of the preoccupation with reform, we are seeing a lack of real focus on the task in hand, which is how we make the health service more efficient. The Minister and the Secretary of State have repeatedly told me that these reforms will deliver that necessary improvement in care and efficiency. However, my experience over 40 years leads me to believe that that is not the case. In saying that, I am not making a political point; I speak from my knowledge of what is happening in healthcare. We will continue to try to improve the Bill because we are good and honest toilers in the House of Lords, but we are trying to improve something that is deeply flawed.
Baroness Thornton
My Lords, we must be thankful to my noble friend Lady Jay and the Constitution Committee for their initial work and their second report, which has enabled us to reach the point that we have. I am grateful to my noble friend Lady Pitkeathley and the noble Baroness, Lady Young, for saving us from the gloopy treacle of self-satisfaction into which we were sinking, to which my noble friend Lady Jay referred.
I, too, thank the noble Lord, Lord Laming, the Convenor of the Cross Benches, for chairing the seminars that have been referred to. We all know that chairing seminars attended by opinionated Members of this House and lawyers is not an easy task. He did an excellent job and led us gently towards the consensus that has resulted in the amendments being tabled that we are discussing. I pay tribute to the noble Baroness, Lady Williams, the noble Lords, Lord Hennessy and Lord Owen, whose wisdom brought the great importance of this issue to the attention of the House.
We support this amendment as it is clearly an improvement on what was in the Bill originally. We are still perplexed as to why we could not simply have kept the 2006 wording, but we are where we are. However, I wish to repeat the question that I have already put to the Minister. The Secretary of State has let it be known that he does not think that this measure makes a difference. That shows no respect for the work that we have undertaken and the place in which we find ourselves. Therefore, I should like clarification on that point. We need to know why that is the case. This measure constitutes a significant change because, as I think the noble Baroness, Lady Williams, said, it will have repercussions on other parts of the Bill. I welcome that and hope that it is the case. We need to look at the changes proposed in this and the following amendments as they should make easier our job of testing other parts of the Bill against them.
I say to the noble Lord, Lord Mawhinney, that this is still a very political Bill. The noble Lord’s party and the Liberal Democrats pushed the original drafting on the Secretary of State’s powers through the Commons. I have tried to keep my remarks about the highly politicised nature of the Bill separate from this debate because I thought it was important that we should also recognise the work that has gone on and the consensus that we have reached in this House. That is due to a combination of clarity, wisdom and our consideration of the Constitution Committee’s report. I compliment noble Lords on my own Benches because we were determined not to accept the well meaning and imaginative original proposal of the noble and learned Lord, Lord Mackay of Clashfern. We had very trenchant support from noble Lords such as the noble Lord, Lord Owen. The Minister, in his wisdom, took these clauses off the Floor of the House and we are now where we are. That is a great credit to everybody concerned, including my own party. Therefore, we are very happy to welcome this amendment and hope that it bodes well for our future discussions on Report.