Health and Social Care Bill

Baroness Thornton Excerpts
Wednesday 9th November 2011

(13 years, 7 months ago)

Lords Chamber
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Baroness Cumberlege Portrait Baroness Cumberlege
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I am very grateful to the noble Baroness, Lady Williams, who has put the matter eloquently and correctly. I am very much in favour of my noble friend’s wish to try to get some negotiation. As the noble Baroness said, many of us feel that that is the way forward.

This is a difficult issue. It is trying to get the balance right between, on the one hand, the accountability and responsibilities of the Secretary of State, and, on the other, the freedom of those managing the service to do so without interference. Many of us are trying to achieve that balance.

I should like to refer to the letter that the noble Lord, Lord Warner, mentioned because I want to get it into Hansard. My noble friend urges us to consider three key factors in his letter and I quote the second one. He said that,

“we fulfil the policy intention that the Secretary of State should not be involved in the day to day operations of the NHS. Ministers should set the overall strategy, hold national arms-length bodies rigorously to account for their performance, and have the requisite power to intervene if the system is not operating effectively”.

Those are my views entirely.

I am now going to say something that I know is extremely unpopular in the Palace of Westminster: politicians are really neither loved nor trusted by the public to a great extent and I have to say also that they are seldom admired by those working in the NHS. There have been too many decisions that have been taken without any evidence to support them, resulting in very long delays in things such as reconfigurations. Those delays have jeopardised patient care. Reversals have been made at the last minute, ignoring well founded clinical advice from clinicians saying to us that the service is unsafe, yet the position of an inadequate, unsafe hospital or service continues because of political interference. That undermines the confidence of managers to manage.

I want to mention Kevin Barron, who is the Labour MP for Rother Valley—

Baroness Thornton Portrait Baroness Thornton
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I do apologise to the noble Baroness, but I absolutely cannot resist asking her whether she thinks that the public love quangos more or less than politicians, since the intention is to put our National Health Service in the hands of an extremely large quango. So is it Andrew Lansley or David Nicholson?

Baroness Cumberlege Portrait Baroness Cumberlege
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My Lords, I have not seen any evidence from MORI or any other polling organisation that has put that question to the public, so it is left in the air. I have seen the MORI poll that very recently showed that 88 per cent of people who were questioned said that doctors were the most trusted profession to tell the truth, whereas only 14 per cent thought that the truth was told by politicians. I think that is really sad—sad for democracy and sad when it comes to trying to build the confidence of people who are in charge of the National Health Service.

One real problem, which exists even if the same party is in power for a length of time, is a lack of a consistency of leadership. The Secretaries of State are here one minute and gone the next. Really successful organisations—I am thinking of schools, hospitals, companies—benefit from continuity in leadership. I read the other day that Sir Alex Ferguson has been in charge of Manchester United for 25 years. If we had had that inspiring leadership for a real length of time, I wonder what difference it might have made to the NHS. Since 1997 we have had seven Secretaries of State. Frank Dobson was in charge for 17 months. Alan Milburn, the longest serving Secretary of State, served for four and a half years and some might think that he was the most successful. At least he had time to draw up the NHS Plan, which made an impact on the service and he had time partially to implement it. John Reid—now the noble Lord, Lord Reid—Patricia Hewitt and Alan Johnson all served two years, and Andy Burnham less than a year.

Those of us who have served in government know, as Ministers, that you take up your post with enormous enthusiasm and unrealistic aspirations. You want to do things. Above all, you want to improve the NHS. You believe that you are in charge and that you can set policy. But, no, the first thing that happens is that you inherit the policies of your predecessor, which are not your policies that you know and love. They are not yours, but you do your very best to implement them. Then you have a chance to set your own policy but, before you have had time to implement it, you are off again. In the mean time, you are expected to make some very courageous, unpopular decisions about institutions that you may know very little about and about people whom you have rarely met. So how do you exercise judgment and build relationships when you are there for such a very short time, possibly just two years? That contributes to an NHS that gets confused and fed up and is mistrustful of its masters.

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Let us look at the UK and the imposition of what the central chain of command does. It manifests itself in performance targets. Targets are always popular—they are brilliant and, what is more, the NHS always meets them. It may take some time but, usually, if you tell the NHS to manage something and hit a target, eventually it will get there. In practice, a project board forms. Some hospitals have as many as 500 projects going on at the same time. That was the number that was found by one consulting agency. It found an enormous number projects under way to deliver these targets, often with external consultant help from the centre or the assistance of external consultants such as the big five. It can be demonstrated very easily that when a project is going on it is possible to reduce admissions, for example, by 60 per cent, with positive effects on cost, quality of outcomes, follow-up and discharges. It is possible to reduce the proportion of beds occupied by patients who are medically fit for discharge by 25 per cent to 30 per cent and so on.
Baroness Thornton Portrait Baroness Thornton
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I am sorry to interrupt the noble Baroness. I am listening carefully to her because she has great experience. Is she not talking about transferring the setting of targets, projects or whatever from the responsibility of Andrew Lansley as Secretary of State to Sir David Nicholson as head of the NHS Commissioning Board? If the problem, as she sees it, is the setting of too many targets and projects—although I do not know what that has to do with Clause 4— I am not sure what safeguards there are to stop that from happening anyway.

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

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

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

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

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

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

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

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

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

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Baroness Wall of New Barnet Portrait Baroness Wall of New Barnet
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My Lords, I had not intended to participate in the debate because I did not arrive until it had started, but I have been here a long time now and want to share with people how it feels on the ground. What the noble Baroness, Lady Cumberlege, said is absolutely true. I do not envy the noble Earl because I think that the analysis that the noble Lord, Lord Darzi, gave is exactly how it feels. There is that dilemma. The noble Baroness congratulated us on now having a decision from the Secretary of State. We do, but the decision is bound up in another clause, which brings about another kind of action that we must take. It has not removed anything; it has just given us another dilemma and delay in what we must do.

I say to the noble Lord, Lord Mawhinney, that I only wish that everybody in his position did what he did. Though I have five years of experience, I am not medically qualified; I am just somebody who cares about the people that I have responsibility for as the chair. My experience from those years was often of political interference. I ask noble Lords to forgive me for being emotive about this, but it is absolutely true. We had consultation for many years, authorised by the independent review body. The Secretary of State at the time, Alan Johnson, said, “Whatever the review body says, we will go with it”. That was perfect. Then we had a hold-up and a change of government. The new Secretary of State, Andrew Lansley, then came to our trust and said, “This isn’t going to happen. We want people on the ground to be able to say, ‘Yes, if I want this service, I can have it here, and, yes, if I want my baby here, I can have the baby here’”. Both those services were questionable in terms of their clinical reliability. They were not unsafe, because we would not be doing it otherwise, but certainly questionable. And so we started all over again.

A year later, we have gone through not a consultation but the four tests, where the clinical members of the local authority team went through the same process as was involved in the previous consultation—is it clinically safe or is it not? It took a year or so for the Secretary of State to come back with another response to that. That was another stall until, just a matter of weeks ago, we received a letter from the Secretary of State addressed to the local authority—because it had put the case to him—which said, “Yes, I think that the BEH strategy should go ahead, but, actually, I think that you should consider other things as well”. Those things cut right through the BEH strategy.

Local MPs are very open about the fact that they have interceded and expressed their views. They are very proud to say, “I’ve spoken to Andrew about this and I’m not going to have that”. This goes on all the time—I am not sure that this is inappropriate language to use in this House I ask your Lordships to forgive me if I am saying things that I should not; I am just trying to tell noble Lords what it feels like as somebody who is working in the health service on behalf of patients. That is how it feels. I do not know whether political interference by the Secretary of State, as I see it, can be removed by having the national Commissioning Board make the decisions, because my view would be that MPs will always go to whoever can make an intervention in Parliament. That goes for MPs from all parties; it is not about the present Government.

I do not envy the noble Earl in the decisions that he has to make about this, but the view of the noble Lord, Lord Darzi, is very much attuned to what I see in reality. There is a dilemma; there is that interference. But, on the other hand, there are major decisions that have to be made that can be made only by the Secretary of State in the sense of his or her national perspective. I have no words of wisdom, but I have a lot of feelings. Please can we get this right?

Baroness Thornton Portrait Baroness Thornton
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My Lords, I have added my name to those opposing Clause 4. We have had a very good debate, to which my noble friends Lord Darzi and Lady Wall have brought an element of reality. However, their remarks do not take us from the point of wondering whether this is the right clause in terms of autonomy. They have both succeeded in pointing to the problem that exists, and I am not sure that the Bill solves it.

Autonomy, from the ancient Greek, means,

“one who gives oneself their own law … In medicine, respect for the autonomy of patients is an important goal … though it can conflict with a competing ethical principle, namely beneficence”.

It might be thought that a health and social care Bill would reflect the second part of the above definition—culled, I have to say, from Wikipedia—given the concern for the interests and dignity of patients. However, such is not the case. Clause 4 seeks to insert a new section into the National Health Service Act 2006 under the rubric: “The Secretary of State’s duty as to promoting autonomy”. The clause requires the Secretary of State when exercising functions in relation to the health service, so far they are consistent with the interests of the health service—not, it may be noted, in the interests of patients—to act with a view to securing certain things that the clause then goes on to list.

I had a discussion about this clause with the noble Baroness, Lady Murphy, yesterday or the day before. I say to her that the fact that we both seem to have completely different views of what this clause seeks to do actually tells us something about it and its drafting. We totally disagree about what we think this clause seeks to achieve. That alone should make us think that perhaps we need to go back to look at this clause.

Clause 4 places upon the Secretary of State a duty to promote autonomy, as we have said. We feel that this clause is part of the general shift of the Bill to denude the responsibilities of the Secretary of State, because—viewed alongside of the removal of the Secretary of State’s current powers under Section 8 of the 2006 Act to give directions to PCTs and SHAs—it significantly dilutes the Secretary of State’s powers to influence the provision of health services. Independent legal advice from Stephen Cragg QC, for example, commented on the consequences of Clause 4:

“If the Secretary of State attempts to use his or her powers to impose requirements on commissioning consortia, for example, then there could well be a judicial review challenge from a consortium which opposed the requirements on the basis that they infringed the principle of autonomy in the new Section 1C and could not be justified as necessary or essential. This approach replaces the, more or less, unfettered power that the Secretary of State has to make directions currently to be found in Section 8 of the NHS Act 2006 with a duty not to interfere unless essential to do so”.

The emphasis on autonomy links to the change in the role of the Secretary of State, as was explained wonderfully and adequately by the noble Lord, Lord Marks.

Since the founding of the NHS, the Secretary of State has always had powers of direction and intervention over NHS bodies, which enabled him or her to control the system. While some providers such as foundation trusts could be given earned autonomy—as was referred to by other noble Lords—the Secretary of State retained control through commissioning and the nature of contracts with foundation trusts.

This is a very important clause, and nothing that has been said in this debate makes me think that I was wrong to put my name on behalf of these Benches to the Question relating to clause standing part of the Bill. I appreciate that we will be having a broad discussion of these matters along with Clauses 10 and 1 but, unless the Minister has something very significant to say about how he sees this clause evolving, I absolutely have to agree with the noble Lord, Lord Marks, that this can come out of the Bill because of all the other powers that remain in it, which we will look at in due course.

Finally, I thank the Minister for his letter to me, which was circulated around the House. I thank him and his staff and the noble Baroness, Lady Williams, and her colleagues for the fact that we are finding a way forward to having a discussion which I hope and trust will bear fruit.

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Lord Walton of Detchant Portrait Lord Walton of Detchant
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My Lords, I am glad that the noble Lord, Lord Willis, has raised this extremely important matter. Research misconduct is rare, but it happens. Several years ago, there were a number of quite cogent reports produced by Dr Frank Wells of the British Medical Association, Dr Stephen Lock, who was the editor of the British Medical Journal and his successor, Dr Richard Smith, which actually demonstrated that in a number of rare cases research results had been fabricated. This issue has been highlighted by a number of similar events in the United States and elsewhere. The universities, the research councils and a number of other bodies have looked at this matter and made a number of recommendations. I am not at all certain that this is the right place in this Bill for this issue to be raised, but the question needs further consideration by the Government—for instance, to decide whether this important issue should be in any way part of the remit of the proposed new medical research agency.

Baroness Thornton Portrait Baroness Thornton
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The noble Lord raised a very interesting and important point, but I do not intend to delay the House by expanding on it.

Earl Howe Portrait Earl Howe
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My Lords, Amendment 41A, tabled by my noble friend Lord Willis, will require the Secretary of State to set up a system to ensure that research is conducted properly and ethically and that there are sanctions in place in cases of misconduct. Let me say straight away that I am in agreement with the intention of my noble friend in tabling this amendment; the proper conduct of research is very important, just as proper conduct is critical in clinical practice. All my noble friend’s comments on that theme were extremely pertinent.

Looking at the amendment as it is worded, I can assure my noble friend that there are already systems in place to ensure that research is conducted ethically. Research, as he knows, cannot proceed without ethics committee approval. I realise that this is a probing amendment, but equally, as it is worded, it overlooks an important element in the current system of accountability, because it would risk undermining the clear responsibility in research, as in clinical practice, that employers have for the conduct of their employees and that professional councils have in regulating their members. Both can impose sanctions on researchers if their conduct is found to be inappropriate. I do not see that it is the responsibility of the Secretary of State to impose sanctions on clinical professionals, and it should not be his responsibility to do so for researchers. In the future, the Health Research Authority will continue the good work of the National Research Ethics Service, working with others to prevent misconduct by ensuring that the ethics of research have independently reviewed by research ethics committees.

This evening, I am able to give a new commitment to my noble friend. I am happy to tell him that we intend to publish the draft clauses on research for pre-legislative scrutiny in the second Session of this Parliament. That scrutiny will enable my noble friend and other noble Lords to comment on the detail of our proposals for the Health Research Authority and, in turn, enable us to ensure that future legislation is fit for purpose. I hope my noble friend will welcome that pledge.

If I may, I will cover the question my noble friend asked me about the concordat in a letter to him following this debate. I hope I have reassured him that there are systems in place to ensure good conduct in research. Nevertheless, his points are well made and I shall reflect fully upon them. I can only say at the moment that the Health Research Authority intends to build on these systems. In the light of what I said, I hope my noble friend will feel able to withdraw his amendment.

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Moved by
45: After Clause 5, insert the following new Clause—
“The Secretary of State’s duty as to national workforce structures
After section 1D of the National Health Service Act 2006, insert—“1E Secretary of State’s duty as to national workforce structures
The Secretary of State has a duty to maintain a national pay and bargaining system for healthcare staff, to cover those staff providing NHS services and services for the improvement of public health.””

Hospitals and Care Homes: Hydration

Baroness Thornton Excerpts
Monday 7th November 2011

(13 years, 7 months ago)

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Earl Howe Portrait Earl Howe
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My Lords, since the publication of the CQC summary inspection report, my right honourable friend the Secretary of State has requested a further 500 inspections of dignity and nutrition in care homes and 50 further visits to hospitals, which will start in the new year.

Baroness Thornton Portrait Baroness Thornton
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My Lords, I was disturbed by the Minister’s first response to this Question because it sounded as if the Government are washing their hands of a hydration policy. Can the Minister say whether that is indeed the case? It seems to me vital that the Government should be providing leadership in ensuring that, at every level of health and social care, they are following through on the policies that are in existence and that have been disseminated over many years, and that they should not say that this is a matter for the policy of individual hospitals.

Earl Howe Portrait Earl Howe
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No, my Lords, the Government are very far from washing their hands of this extremely important issue. As the noble Baroness will know, the new registration system under the Health and Social Care Act 2008 covers all providers of health and adult social care regulated activities. There is an outcome in that set of regulations which requires providers to adhere to the highest standards of nutrition and hydration. It is because of that that my right honourable friend has been so concerned to instigate these unannounced inspections by the CQC.

Health and Social Care Bill

Baroness Thornton Excerpts
Monday 7th November 2011

(13 years, 7 months ago)

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Countess of Mar Portrait The Countess of Mar
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My Lords, I support this amendment. If ever there was a case against inequality of treatment, it is for people with ME. I am saying ME rather than ME-CFS because that is too long. The postcode lottery for people with ME has been highlighted in two inquiries by the All-Party Parliamentary Group for ME over the last five years. People are constantly writing to Ministers complaining; the noble Earl himself knows, because I keep complaining about it. In 2002, the Chief Medical Officer announced an award of £8.5 million to set up specialist centres for ME. These have just fizzled out. Once the £8.5 million ring-fence money had been spent, the first thing that was cut was services for people with ME. The trouble is, they are blighted with the distinction of being yuppie flu sufferers—people who swing the lead. They are not: this is more and more often now being proven to be a physical disease with mental side effects, as cancer and MS and a whole lot of other chronic diseases are. It is time the inequality of treatment for people with ME-CFS was obliterated.

Perhaps the worst inequality is in services for children. There are virtually no ME services for children in the UK, particularly children who are bed-bound and housebound, and this is a disgrace on our society. These children—very often high-achieving children—are suddenly struck down; they can no longer have social relationships because they are too ill or too tired to cope; they cannot continue with their education and yet there is no medical attention for them. I am sorry—I am suffering myself at the moment, so I am not being very comprehensive in what I am saying—but it does need to be said that these people need to be looked after. I support the amendment in the name of the noble Lord, Lord Warner.

Baroness Thornton Portrait Baroness Thornton
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Eight noble Lords have amendments down in this group about inequalities. Many of them seek to do the same kinds of thing. I intend to speak to Amendments 22, 25A, 27A—I mention in passing that my noble friend Lord Beecham has his name against Amendment 29—31, 32, 68A, 68B, 69B and 120A.

I will quickly run through these amendments. Amendments 21, 22, 23 and 25 strengthen the duty on the Secretary of State to reduce inequalities in the health service. The Bill currently requires the Secretary of State simply to “have regard to” this need. Amendment 21 says “is required”—the strongest of these amendments—followed by Amendment 22 with “seek”, and Amendment 23 with “act with a view”. Amendment 25A says it is the Secretary of State’s duty to reduce inequalities between people and “between communities” in England. I will return to that in a moment. In Amendment 27A, we on this side are seeking to add detail to the inequalities that the Secretary of State has a duty to reduce. We argue that,

“inequalities in health status, outcomes and experience, … the outcomes achieved … by … those services”,

and,

“ability to access such services”,

must be taken into consideration. My noble friend Lord Beecham has added his name to the amendment in the name of the noble Lord, Lord Rooker. It adds a qualifier to the duty to reduce inequalities:

“to ensure that greater patient choice is not accorded a higher priority than tackling health inequalities”.

Amendment 31 says that, in an instance of a conflict of duties on commissioners or regulators, the duty to reduce inequalities is paramount. Amendment 32 says that, as part of this duty, the Secretary of State must publish comprehensive, publicly available data on the extent to which inequalities have been reduced across the NHS. Amendment 68A says that the duties of the NHS Commissioning Board as to the improvement of public health should be extended to cover the duty to reduce health inequalities. Amendment 68B concerns each local authority having to take steps to reduce health inequalities between people and between communities. Amendment 69B again relates to public health: the Secretary of State must also seek to reduce health inequalities between people and communities. Finally, Amendments 120A, 190A and 190B are about the national health Commissioning Board having a duty to reduce inequalities in health status. Noble Lords will get the theme that is running through here.

Clause 3 places a duty on the Secretary of State to have regard to health inequalities, and that is an aim and aspiration that we would, of course, support. However, the problem with this clause is that that duty is not capable of effective fulfilment. For example, public health analysis and needs assessment require comprehensive area-based population data. This is the basis of the current health system mechanisms for resource allocation and for the commissioning of public health measures designed to prevent or ameliorate systematic inequalities both between groups of residents in an area and across and among areas, with respect to the access of resources, services, and their use and outcomes. Census estimates, adjusted for factors such as age and deprivation, are used as the denominator for the population in such analyses. Our problem with this Bill is—and I would be grateful if the Minister would address this issue—that public health analysis will not be able to be carried out in this way in future because of the proposed shift from area-based PCTs to GP-listed clinical commissioning group structures. Therefore, denominators which allow GP registrations to promote reductions in inequalities might be inherently problematic because of continuous enrolment and disenrolment, which affect accuracy, as does patient selection. The denominator will not be representative of all the people in a geographically bounded area. Without a geographic population focus, it will not be possible to monitor inequalities. I realise that part of these issues is also addressed in amendments needed to Clauses 7 and 10, but they are points which we would like to have addressed here.

Amendments 120A and 190A address the argument that local authorities and clinical commissioning groups should have a duty to reduce inequalities not only in their areas, but also in England. We think this makes sense because, for example, somewhere like Lambeth or Bradford—where I come from—could make huge improvements within area inequalities but still lag miles behind the rest of the country. Amendment 25A calls on the Secretary of State to act to reduce inequalities between people and communities. The word “communities” is important in this context because it speaks to local authorities. Given that public health inequalities are going to be in their jurisdiction, it seems that this is an important matter. Therefore, we would like the Bill to address within-area geographical inequality because it refers to inequalities between groups and communities of groups, not just an individual’s access and receipt of services. We believe that the Government should set out how they intend to use non-legislative levers and incentives to translate the duties in the Bill into practical action and how the NHS will be accountable for progress in reducing health inequalities. Our Amendments 31 and 32 tie in with this. We think we need to understand where those levers will exist, how they will be used and how the Government will measure inequalities.

As noble Lords will realise, Amendments 120B and 190B also arise directly out of the Equality Act and concern individuals and discrimination in the receipt of services. I know the noble Baroness, Lady Greengross, will address Amendment 33, which is tabled in her name. We believe that Amendment 120B addresses the general duties of the national Commissioning Board, which are vital parts of the picture. If the duties to deliver and secure provision of the health service are split between the Secretary of State, the board and CCGs, corresponding duties to reduce inequalities must also be exercised by all three, and these amendments seek to put that in the Bill.

Lord Turnberg Portrait Lord Turnberg
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My Lords, I had not intended to speak to these amendments, but it is clear that we have had problems associated with inequalities for a very long time, and they persist. Many years ago, we had the Black report on inequalities in health, which was a major landmark, and since then we have had Sir Michael Marmot and his marvellous book The Status Syndrome pushing away at the inequalities in health, and my noble friend Lord Layard and his book on happiness and the inequalities in life in general. There is no doubt that the effects of inequalities are very severe. We see quite marked differences in health and life expectancies in communities adjacent to those where life expectancy is very high. We have some communities where several years of life are lost. The effects are very severe indeed. The reasons why there are such inequalities are multiple. They are certainly way beyond the ambit of a health Bill. Clearly there are factors outside health services that make the difference. Nevertheless, it is important that we have within a health Bill recognition of that fact and of the need for those within a health service to take account of inequalities and make recommendations as a result of them, so I am very much in favour of these amendments. We should have them in the Bill.

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Baroness Thornton Portrait Baroness Thornton
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My Lords, perhaps I may respond very briefly from these Benches. I took the Committee through our amendments at a gallop, so perhaps I may make two points very quickly. This debate has illustrated the problem that these amendments seek to address, and indeed it was illustrated by criticism from the King’s Fund and the Commons Health Select Committee, referred to by the noble Lord, Lord Patel. The duties, although welcome, are too narrowly drawn and, crucially, do not extend to local authorities. I might say that the noble Earl’s party does have form in this matter. We know how a previous Conservative Government treated the Black report, ready in 1980 just after the Conservatives came to power. It was not to Mrs Thatcher’s liking and was never printed. Only 260 photocopies were distributed in a half-hearted fashion on bank holiday Monday—my noble friend says that he has two of them. I know that the coalition Government would not allow that to happen and I welcome the change of heart that is shown in this part of the Bill.

However, my understanding is that the weighting given to health inequalities in the formula of allocating NHS funding has been reduced from 15 per cent to 10 per cent. Can the Minister confirm that that is indeed the case? What signal does it send about the Government’s priorities and their commitment to dealing with health inequalities? It seems to me that the commitment to dealing with health inequalities could be remedied. There is a need for a widened definition of health inequalities to include reducing inequalities in the health role, and of access for the Secretary of State, the NCB and clinical commissioning groups. There is a need to specify and define inequalities, particularly inequalities between groups and communities rather than individuals, and there needs to be a strong duty on local authorities as public health duties are transferred to them.

Finally, the message here is that the Minister needs to look carefully at these amendments and that the Committee is very interested in engaging with the Government to strengthen this part of the Bill. I look forward to the noble Earl’s remarks.

Earl Howe Portrait Earl Howe
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My Lords, the Government are committed to reducing health inequalities, to ensuring equity and fairness across the health service, and to improving the health of the most vulnerable in our society. On top of the pre-existing general public sector equality duty, for the first time the Secretary of State will have a specific responsibility to,

“have regard to the need to reduce health inequalities”,

whatever their cause. This duty will be backed by similar duties on the NHS Commissioning Board and clinical commissioning groups. Taken together, these duties will ensure a focus on the reduction of health inequalities throughout the system, with special consideration paid to outcomes achieved both in relation to NHS services and to public health.

While many noble Lords seek to amend these new duties, we believe that they are right as they stand. The duty will not be an add-on or an afterthought. The Secretary of State, the Commissioning Board and clinical commissioning groups will be required always when carrying out any and all of their functions to have regard to the need to reduce inequalities. I should also point out here that the duty is purposefully non-specific. Amendments 21, 22, 23, 25, 27 and 27A all aim in different ways to strengthen the wording of the Secretary of State’s duty. While I fully accept that the reduction of health inequalities must be a priority for the Secretary of State, it must also be recognised that the causes of health inequalities and the remedies to them are complex and multidimensional and require a multisector approach. Factors such as poverty, education, employment and culture require solutions which extend far beyond the Secretary of State’s or the Department of Health’s remit or capabilities. The duty on the Secretary of State must recognise the nature of the challenge we face in reducing health inequalities, and it must be deliverable. We should hold the Secretary of State to account only for the things that he is responsible for. The duty in the Bill is drafted with these factors in mind.

For the same reasons, I am afraid that I cannot accept attempts to amend the wording of the duty to “act with a view to” or “seek to reduce”. While I understand the noble Lord’s attempts to make the duty as strong as possible, “have regard to” captures the intention of the legislation; that is, that the Secretary of State must consider the need to reduce inequalities in every decision that he takes about the NHS and public health. The approach that the unamended clause sets out is the right way to achieve this. As it stands, the Secretary of State would have to have regard to the need to reduce inequalities in any decision that he made. Contrary to what some have thought, having regard is a strong duty which shows the Government’s commitment to the reduction in health inequalities. The duty to “have regard to” has established meaning and has been used in other important legislation, such as the duty to have regard to the NHS constitution in the Health Act 2009. The courts can and do strike down administrative actions in cases where decision-makers have not had regard to something in contravention of a statutory duty to do so. For example, they have struck down decisions of public authorities for failure to have due regard to their equality duties. The courts have said in relation to public sector equality duties that the duty to have due regard must be exercised with rigour and an open mind—it is not a question of ticking boxes. The duty has to be integrated within the discharge of the public functions of the authority. It involves a conscious and deliberate approach to policy-making and needs to be thorough enough to show that due regard has been paid before any decision is made.

Perhaps I could clarify for the benefit of the noble Lord, Lord Patel, and the noble Baroness, Lady Murphy, that the duty in Clause 3 already applies to public health functions. The expression,

“functions in relation to the health service”,

covers both NHS functions and the Secretary of State’s public health functions. “The health service”, as that term is used in the 2006 Act, is not limited to the NHS.

Amendment 27, tabled by my noble friend Lady Williams, would have the effect of making the Secretary of State and the Department of Health responsible for reducing inequalities generally, beyond those relating to health. We cannot accept the amendment because there are many areas, such as wealth inequality, which are rightly not within the department's responsibility, and therefore to place a duty on the Secretary of State for Health to reduce these would not be practical.

Amendment 27A, tabled by the noble Baroness, Lady Thornton, would specify that the Secretary of State’s duty in reducing inequalities should be in relation to health status, outcomes achieved, experience and the ability to access services. The amendment is modelled partly on the wording of the Commissioning Board’s and CCGs’ inequality duties. While I agree with the intention behind the noble Baroness’s amendment, I can reassure her that the reference to “benefits” in the unamended clause already covers these aspects and so the amendment is unnecessary. The reason that the Secretary of State’s duty talks of benefits that people can obtain from the health service is that it includes public health as well as the NHS. The Secretary of State's duty is deliberately broader than the duty of the board and CCGs.

Amendment 29, tabled by the noble Lord, Lord Warner, aims to ensure that promoting patient choice is not given a greater priority than reducing health inequalities. I understand that some people have concerns that greater choice and competition could exacerbate inequalities, and I am aware that there are particular concerns that choice could benefit the better-off at the expense of others. However, our proposals on choice are intended to ensure that all patients are given opportunities to choose. We do not believe that the assertion that the better-off will benefit more from choice is borne out by the evidence. Indeed, recent evidence suggests that choice has the potential to improve equity. For example, some noble Lords may have seen the study published recently by the Centre for Health Economics at the University of York, which found that,

“increased competition from 2006 did not undermine socio-economic equity in health care and, if anything, may have slightly increased use of elective inpatient services in poorer neighbourhoods”.

So I do not believe that there are any grounds for thinking that improving choice and tackling health inequalities are incompatible. They should be mutually reinforcing.

Amendment 31, tabled by the noble Baroness, Lady Thornton, would introduce wording to ensure that if the duties placed on commissioners or regulators came into conflict with any other duty, the duty to reduce inequalities would prevail. I fully share the intention of making sure that these organisations do not ignore the goal of reducing inequalities. However, the inequality duty must already be complied with when bodies are exercising all their other functions. Therefore, I cannot agree that other duties placed on commissioners or regulators would conflict with their general duty to have regard to the need to reduce inequalities.

Amendment 32, also tabled by the noble Baroness, Lady Thornton, seeks to place on the Secretary of State a duty to publish evidence about the extent to which inequalities have been reduced annually. I fully agree that the NHS and the Secretary of State should be accountable for their efforts to reduce inequality. Clause 50 already places a duty on the Secretary of State to report annually on the NHS. Since tackling inequality will be such an important legal duty throughout the NHS, we have every expectation that inequalities will be a key reporting theme in the Secretary of State’s annual report.

Amendment 33, tabled by the noble Baroness, Lady Greengross, would place a duty on the Secretary of State to give particular regard to certain factors and characteristics when having regard to inequalities. Amendments 120B and 190B, tabled by the noble Baroness, Lady Thornton, would amend the Commissioning Board’s and clinical commissioning groups’ inequality duties, in new Sections 13G and 14S of the 2006 Act, to include the same list of characteristics and factors. I hope that I can persuade the noble Baronesses that there is no need for these amendments. First, it is unnecessary to prescribe the characteristics and factors to be covered by the Secretary of State, the Commissioning Board and the clinical commissioning group duties. The current, unamended duties would already cover health inequalities arising from any characteristic or factor. On top of this, as we have already discussed, the Secretary of State and the NHS are already bound by the general Equality Act 2010. Section 149 of that Act lists the characteristics covered in paragraphs (a) to (i) of the amendments. Therefore, the Secretary of State and NHS bodies will already have to give specific consideration to these characteristics. In not being specific in the duty on the Secretary of State, the Commissioning Board or CCGs, we are keeping the duty with regard to health inequalities as broad as possible, so that no characteristics which drive health inequalities are inadvertently omitted.

As the noble Baroness made clear, there are two new factors not listed in the Equality Act but proposed by the amendments. These are geographical variation and socioeconomic variation. However, it is unnecessary to specify these factors either. They are already wellestablished dimensions of health inequalities and will be taken into account under the duties on the Secretary of State, the NHS Commissioning Board, and CCGs. They are also already specified in the NHS outcomes framework, subject to data considerations.

Apart from being unnecessary, the amendments are also in a real sense undesirable. While I am sure that this is not the intention, their effect would be to give pre-eminence or priority to certain characteristics or factors. We are dealing here with the perennial problem of “the list”; by implication, anything not on the list is less important. Instead, the Government are committed to ensuring that all dimensions of health inequalities are encompassed by the proposed duties, a principle that I am sure all noble Lords can agree with. All factors leading to health inequalities should be considered, with the weight given to them depending on particular circumstances.

Health and Social Care Bill

Baroness Thornton Excerpts
Monday 7th November 2011

(13 years, 7 months ago)

Lords Chamber
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Baroness Jolly Portrait Baroness Jolly
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My Lords, given the hour, I shall be brief. I understand exactly why the noble Baroness, Lady Gibson, has tabled the amendment. I come from the south-west and my GP practice is 25 miles from where I live. The hospitals are 25 or 50 miles away. The noble Baroness and I share that sort of background. The amendment would work in the south-west, the north-west, the north-east, or even north-east Lincolnshire. We have factors of distance, sparsity and rural poverty which are often hidden in poorly measurable clusters.

Before I came here I had a view about policy and legislation being made in a bubble in the south-east and being very metropolitan-based. I had hoped that when I arrived here I would find to the contrary, but I confess that I have not. For a while I was linked with a Defra team and corresponded with a Defra Minister about rural-proofing legislation. It is fair to say that he was not hugely optimistic, but someone really needs to say, “Would it work in a rural area?”. My noble friend Lord Greaves has already started this job on the Bill and has tabled an amendment—and I fear there may be more—about district councils. They play a hugely vital part in areas of rural England that have not become unitary authorities. In one or two areas of the Bill—perhaps in a few more—there are instances where district councils need to be factored in.

Perhaps the Government should have some sort of rural policy champion—I hesitate to use the word tsar. I should be grateful if the noble Earl would give us his assurance that that will happen for this Bill.

Baroness Thornton Portrait Baroness Thornton
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My Lords, my noble friend Lady Gibson is to be congratulated. I particularly indentify with her remarks about dispensing chemists. As she knows, I supported her on this when I was on the other side of the House, and the issue is close to my heart. She and the noble Baroness, Lady Jolly, have raised a very valid issue and I look forward to hearing the Minister’s remarks.

Earl Howe Portrait Earl Howe
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My Lords, the amendment tabled by the noble Baroness, Lady Gibson, and all the amendments in this group, highlight the importance of ensuring that neither rural nor urban areas are affected by health inequalities. I quite understand the noble Baroness’s concerns—especially given that rural areas have unique circumstances that affect their health needs, such as a diffuse population and long travelling times for patients.

I therefore acknowledge that some significant issues face rural and urban areas, as was highlighted by the Marmot review. In particular, there are concentrations of shorter life expectancy and greater illness, and these tend to occur in some of the poorest areas of England, most of which are urban areas of deprivation. There are particular challenges with the provision of services in rural areas due to the higher cost of delivering services in more locations and the greater sparsity of rural communities.

However, although I am very sympathetic to the noble Baroness’s intentions, I do not feel that the amendments are the most effective way to achieve her aims. Existing reference to “England” or “its area” in the Bill already includes every type of population, including rural and urban populations. The responsibilities for commissioning are absolute across all the communities and individuals for whom they have responsibility. There is no discrimination between different areas. That principle runs throughout the legislation. Moreover, the fundamental and unique change we are making to commissioning is to give local GPs responsibility for securing services for their patients. That vital principle, above all others, will make a decisive break from the past by ensuring that the needs of much smaller groups of patients can be taken into account by the commissioners.

A CCG will be exercising its statutory functions appropriately only if it is meeting the reasonable needs of all the people for whom it is responsible, not just those in particular demographic areas. The guidance on commissioning which the board must issue under the power in new Section 14Z6 could, of course, cover issues relating to commissioning in rural and urban areas.

Although the noble Baroness’s amendments are unnecessary, they could also be damaging. That is because there is the potential under some of the amendments, however inadvertently, to limit the scope of the responsibilities which the Bill places on CCGs. Amendments 188 and 114 could limit the effect of the scope of the duty on reducing inequalities to a duty only in relation to reducing inequalities and access between rural and urban areas. That would not include the duty to tackle the variety of factors which can affect a person's ability to access the care that they need, such as socioeconomic background and ethnicity. The changes proposed to the Secretary of State's duty in new Subsection 1B are particularly problematic in their impact. The Secretary of State may no longer have regard to the need to reduce inequalities between the people of England but only between people in urban and rural areas. Similarly, Amendment 190 could limit the duties regarding reducing inequalities in outcomes to inequalities in outcomes between patients in rural and urban areas only. So I have concerns about the limitations that the amendments may impose.

Despite all that, I hope that I can reassure the noble Baroness that the Bill adequately provides for her worthy intentions—due, in particular, to its coverage of the whole of England. With that in mind, she may consider withdrawing the amendment.

EU: Economy

Baroness Thornton Excerpts
Wednesday 2nd November 2011

(13 years, 8 months ago)

Lords Chamber
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Earl Howe Portrait Earl Howe
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The rules as regards any qualified private providers will remain exactly as they are now. There must be absolute clarity as to when services are being provided by the NHS and when they are not.

Baroness Thornton Portrait Baroness Thornton
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My Lords, perhaps I may press the Minister, following on from the question of the noble Baroness, Lady Jolly. I looked at the NHS brand guidelines website and it is most specific about the colours, size, margins, borders and even communication principles. It is silent, however, about who cannot use the NHS logo. It has a list of organisations which can use it but is silent about who cannot. Given that we may be heading towards a world with a multiplicity of providers, will the Minister undertake to look at the NHS brand guidelines with a view to making it clear under what circumstances the brand may or may not be used?

Earl Howe Portrait Earl Howe
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I will, of course, look at that point. However, the NHS logo is considered to be the cornerstone of the NHS brand identity. The letters NHS and the logo type are trademarks managed by the branding team at the Department of Health on behalf of the Secretary of State for Health, who technically holds the trademark. They are extremely well recognised and trusted, and use of them is very carefully controlled indeed.

Health and Social Care Bill

Baroness Thornton Excerpts
Wednesday 2nd November 2011

(13 years, 8 months ago)

Lords Chamber
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Earl Howe Portrait The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
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My Lords, before we move further forward with our debate, I hope that noble Lords will find it helpful if I make a very brief intervention. I am aware that a number of noble Lords wish to speak and I have no wish to prevent that. The Committee must, of course, proceed as it sees fit. However, I felt it might be useful to those intending to speak if I indicated now rather than later what the Government’s preferred course is in relation to this group of amendments. Some noble Lords will be aware that the Government regard the amendment tabled in the name of my noble and learned friend Lord Mackay and the noble Lord, Lord Kakkar, as having particular merit in the context of this debate. Notwithstanding that, and having spoken to a number of noble Lords during the past few days, including my noble and learned friend, it is my view that the best course for this Committee would be for none of the amendments in this group to be moved today, and instead for us to use the time between now and Report to reflect further on these matters in a spirit of co-operation. I shall, of course, say more when I wind up the debate but it may assist the Committee to know that that is the position that I shall be taking.

Baroness Thornton Portrait Baroness Thornton
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In the spirit of co-operation across the House it might be useful if I outline the position of these Benches, too. During the past few days I have said to anybody who would listen to me that this is the position in which I thought we probably ought to end up. Those who have been sitting with me on the Long Table can bear testament to that. The reason I added my name to the amendment of the noble Baroness, Lady Williams, is because I feel strongly that that is the right way forward. I am very pleased to hear that the noble Baroness has not resiled from her position on that. I have talked to several lawyers and consider that the amendment in the name of the noble and learned Lord, Lord Mackay, may address political issues but does not fully address the legal issues concerning the responsibility of the Secretary of State.

I have what I can assure noble Lords is a sparkling 10-minute speech, but I do not intend to make it now. However, I may save it for a later occasion. I think this is a good solution if other noble Lords agree with it. I look for an assurance from the Minister about how the discussions on this matter should proceed. We have a record on this Bill of cross-House discussions involving all the people with an interest and expertise in matters relating to it. In that spirit, I wish these amendments to be withdrawn so that not only our lawyers but our medical experts, and, indeed, the Constitution Committee, can be persuaded to have another go at this issue. Towards Christmas we may find a solution that suits us all. If not, I may instead have to make my 12-minute sparkling speech on Report. I hope that the House will feel that this is a good way forward.

Lord Laming Portrait Lord Laming
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My Lords, it is clear that around the whole House it is felt that the constitutional position of the Secretary of State is of immense importance. The House must give careful thought to that issue in order that we get it right, because the National Health Service is important to every citizen, as we heard earlier during our consideration of a Question. What the health service stands for, how it carries out its responsibilities and where responsibility and accountability rests are of great importance.

The House is indebted to all those Members who have put their names to the amendments. They are thoughtful amendments that represent the best interests and work of this House. It is a great credit to those who have put their names to the amendments that they are happy to consider withdrawing them today, because it is important that the House should not take precipitous action, that we accept the thoughtful response from the Minister and that we give plenty of time and opportunity to try to resolve this. There is actually a shared commitment around the House, and I therefore have every confidence that the House will reach agreement. I very much hope that noble Lords who have tabled these amendments will accept this opportunity to meet with the noble Earl and resolve this matter before the next stage of the Bill.

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Lord Greaves Portrait Lord Greaves
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My Lords, I am not going to reveal all my researches and enlighten the Committee on the meaning of “ultimate”, except to say—

Baroness Thornton Portrait Baroness Thornton
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Perhaps I may say to the noble Lord that I very happily follow him.

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Earl Howe Portrait Earl Howe
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I am grateful to my noble friend. I apologise to the Committee. I had thought that it would be helpful if I commented on each amendment for the sake of the record so that, going forward, the Government’s view of each amendment would be clear.

Baroness Thornton Portrait Baroness Thornton
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The reason I did not make my 12-minute speech was that we are now going to go into a period of consideration. I respectfully say to the Minister that we could start the whole debate all over again if he continues telling us what the Government do or do not believe on this because that is presupposing, and possibly pre-empting, the discussions that we are about to have. The noble Lord may find it useful, but we have had a lot of this discussion. We have now, I thought, agreed to move into discussions outside the Chamber.

Earl Howe Portrait Earl Howe
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I shall, of course, be guided by the Committee. If it is the wish of the Committee that I do not explain the Government’s view, then I will not do so. With apologies to those noble Lords whose questions I am not going to answer now—

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Lord Beecham Portrait Lord Beecham
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My Lords, I rise to move this amendment in my name and those of my noble friends Lady Thornton and Lord Hunt of Kings Heath. As we make steady progress through this Bill, your Lordships will encounter many amendments more elegantly drafted than this one, I have to admit. Given the evident affection in which lawyers are held in your Lordships’ House, I trust that this member of the junior branch of the profession will be forgiven for the drafting of this amendment, especially as I was not responsible for it—

Lord Beecham Portrait Lord Beecham
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But I did subscribe to it. There is a sort of collective responsibility on these Benches, too.

This is a probing amendment—it could hardly be anything else in the circumstances—that tries to deal with what actually constitutes the health service. Of course, this phrase runs through the Bill but there is not within the Bill a definition of what constitutes the health service, let alone “a comprehensive health service”—the words used in Clause 1, which we will be returning to on Report. The amendment seeks to add to Clause 1(3) and the intention is to reflect Section 3 of the 2006 Health Act, which laid out clearly, to a reasonable extent at any rate, the scope of the Secretary of State’s duties. The Secretary of State was obliged to,

“provide throughout England, to such extent as he considers necessary to meet all reasonable requirements”

broadly six categories of service, amplified in Schedule 1 to the Act by more detailed requirements around medical inspection for pupils at schools and issues of that kind.

It clearly is impossible to lay down in legislation everything that might be brought within the purview of the Secretary of State or indeed any other body for the purposes of defining precisely what a national health service should be and what would constitute a comprehensive health service. Clause 10 in any event transfers some of those responsibilities to commissioning groups, as the noble Lord, Lord Marks, has pointed out, but it is not entirely clear from the clause, to put it mildly, what functions will be included in their responsibilities.

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Moved by
9: Clause 2, page 2, line 12, after “service” insert “by providing services or making arrangements for others to provide services”
Baroness Thornton Portrait Baroness Thornton
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My Lords, I will also speak to Amendments 10 and 14. The purpose of these amendments is to strengthen the responsibilities of the Secretary of State for improving quality by changing the requirement to act with a view to reducing inequalities to providing services or making arrangements for others to provide services that ensure an improvement in quality. Furthermore, in the light of Clause 1 removing the Secretary of State’s role in providing services—although we still have that matter to resolve—it probes the extent to which the Secretary of State might be able to effect an improvement in the quality of services.

In general, we would welcome and support an explicit duty being placed on the Secretary of State to improve quality—of course we would. The grouping of these amendments has two components. First, it makes the point that quality and inequality affect communities as well as individuals, so planning must be on a geographically defined basis. Secondly, there are amendments designed to make the Secretary of State more directly rather than indirectly accountable—that goes back to the Clause 1 argument again. Amendments 9 and 10 tighten up the Secretary of State’s duties. As amended, the provision would state that the Secretary of State must exercise the functions of the Secretary of State in relation to the health service by providing services or making arrangements for others to provide services to secure continuous improvement in the quality of services provided. This mirrors the changes that we have argued for in relation to Clause 1, to make the Secretary of State more directly responsible rather having responsibility at one stage removed.

As I am sure the noble Baroness, Lady Finlay, will explain to the House, the amendments in her name are also important. This is the first time—but certainly not the last—that the idea is introduced of responsibility for an area-based population. The amendments acknowledge that quality and inequality affect communities as well as individuals. We support this idea of area-based responsibility and will later seek clarification on how basing some commissioning on GPs can be reconciled with the need to plan for geographical populations. Indeed, Amendment 14 is on the same theme, making the Secretary of State directly responsible and going back to that formulation of provision as opposed to being one step removed. As amended, the provision would say that in discharging the duty under subsection (1) of the proposed new Section 1A of the 2006 Act, the Secretary of State must either provide services that ensure, or make arrangements to ensure continuous improvement in the outcomes that are achieved. Actually, the amendment is defective because the word “must” has to be left in.

Lord Mawhinney Portrait Lord Mawhinney
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I am extremely grateful to the noble Baroness, but she skated over what an area-based population is. Presumably, if the Secretary of State has responsibility for individuals he has responsibility for a lot of individuals who happen to live cheek by jowl to each other. I am sure that it would be helpful to the Committee—and it would certainly be helpful to me—if she told us what an area-based population is or might be.

Baroness Thornton Portrait Baroness Thornton
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The amendments that open the debate are in the name of the noble Baroness, Lady Finlay, so I suspect that she will also take the opportunity to explain that to the Committee. However, I think that we will have several debates as we move through the Bill that are about the concerns that some of us have if the commissioning of services is based on GP lists and not on a population in an area. What this probing amendment seeks to do is to help to open up that discussion about how you make sure that there are not people in an area who may not be on a GP list and who fall through the cracks in terms of health provision in that area.

This series of amendments seeks to do two things. One is to raise the point about equality and inequality as it affects communities as well as individuals. For example, the provision of family planning services in an area affects an area as well as the individuals who make use of the services, and you would indeed plan those services. That may not be a good example because of course that is public health, but I think that the Minister will see that you have to look at how you plan services in terms of not only the individuals but the needs of an area.

Lord Newton of Braintree Portrait Lord Newton of Braintree
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I am sorry to interrupt, and this may be another question for the noble Baroness, Lady Finlay, but what is a primary care trust if it is not concerned with the population of the area as that primary care trust is defined? This all seems to me like gobbledegook.

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Baroness Thornton Portrait Baroness Thornton
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My Lords, it is about the people in the area—but of course primary care trusts are going to be abolished by this Bill.

Lord Newton of Braintree Portrait Lord Newton of Braintree
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The noble Baroness said that this was the first time that we had had area-based planning, but a primary care trust is an area-based entity, planning for the population of an area.

Baroness Thornton Portrait Baroness Thornton
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I think that the noble Lord misheard me. I said that it was the first time that we had discussed this in the process of this Bill. I beg to move.

Baroness Finlay of Llandaff Portrait Baroness Finlay of Llandaff
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My Lords, I shall speak especially to Amendments 10A, 10B and 11A, and address my remarks principally to Amendment 10A, whose aim is to avoid fragmentation and inequity through a loss of contiguous, coterminous and comprehensive area-based structures for healthcare resource allocation planning, commissioning and service co-ordination. The amendment would ensure that the sensible changes that were just agreed today over GP contracts for this year are carried forward into GP consortia arrangements. The Secretary of State, Andrew Lansley, himself discussed issues around area-based practice at the congress for the Royal College of General Practitioners last month, and had a fairly extensive and open discussion with the GPs there on this topic.

I move to the Bill as it stands. I hope that with some of the background discussions that have been happening, my amendment will not just be dismissed and will be quite seriously considered, because it might solve a problem.

In the Bill, the new commissioning consortia’s duty—

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Baroness Thornton Portrait Baroness Thornton
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My Lords, this has been a very worthwhile discussion. As I said at the outset, there are two issues here. I am grateful to the noble Earl for reassuring us about the issues to do with quality, which he has done very satisfactorily indeed. I should give the noble Baroness, Lady Finlay, a vote of thanks. I knew that she would explain the issues about area-based clinical commissioning groups much more clearly than I. Moreover, the noble Lord, Lord Newton, put his finger on it when he asked whether the clinical commissioning groups will be structured on the basis of clearly defined geographical areas contiguous with each other and inclusive of the entire population. I think the noble Earl said “yes” to that question.

I am less happy about something that I think we will return to, which is how people who already fall through the gaps in care and access to primary care will be treated and whether their situation will be worse. That is because right from the outset I said that what we had to do was apply what is in this Bill to patients and conditions to see how it works for them. In Kingston at the moment, for example, a GP practice has been able to deregister 48 people with mental illnesses who live in a home. They have been scattered among GPs throughout the area. I think that that is very unsatisfactory and there does not seem to be any way of challenging the decision. It worries me that if we are establishing clinical commissioning groups that will have even more independence to take those kinds of decisions, things will get worse for those who need primary care rather than better.

I will not press any of the amendments tabled in my name, but we will return to this issue. I beg leave to withdraw the amendment.

Amendment 9 withdrawn.
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Lord Mackay of Clashfern Portrait Lord Mackay of Clashfern
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I just wanted to say a word or two about the drafting involved in this. The noble Lord, Lord Williamson, pointed out that the opening clause, which is the foundation of the health service, states:

“The Secretary of State must continue the promotion in England of a comprehensive health service designed to secure improvement … in the physical and mental health of the people of England, and

(b) in the prevention, diagnosis and treatment of illness”.

That is precisely the phrase that is the subject of the amendment, but it comes earlier in the Bill. I cannot believe that when the people who put the health service together in 1946 used that phrase, they did not have in mind that physical and mental health involved the idea that if there was illness, it could be either physical or mental. If we are to change an exactly similar phrase later in the Bill, consideration needs to be given as to whether we should do it at the beginning which is, after all, in many ways the most important place.

I have every sympathy with all that has been said, and I am sure that it is right that we take serious account of it. We must remember the point made by the noble Baroness, Lady Murphy, about the need for integration of treatment for mental illness along with physical illness. Anything that separates them might not be conducive to progress. I have every sympathy with the proposal.

Baroness Thornton Portrait Baroness Thornton
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My Lords, I congratulate the noble Baroness, Lady Hollins, on bringing forward the amendments and all those who have spoken in what I think has been an extremely useful debate. All those months ago, we had all-Peers meetings about this and many other issues. I am sure that the quality and comprehensive nature of the amendments owes something not only to talent and expertise but also to the fact that the experts in the House have been working with many organisations over a long period. I congratulate everyone on the quality of the debate and the amendments.

The amendments approach the Bill holistically—I do not really like that word. They concern the Secretary of State's responsibilities, the duties of the Commissioning Board and the duties of the clinical commissioning group—the triggers, the levers that may make this a reality. Because of that, I am very attracted to them. It is also important that they express the expectation of parity of esteem between mental and physical health services. As has been said, my Government and this Government have certainly made progress on this issue. I look forward to hearing the Minister’s comments, and I hope that he will find some way to recognise the support for the amendments across the House.

Earl Howe Portrait Earl Howe
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My Lords, I agree with the noble Baroness, Lady Thornton, that this has been a debate of very high quality, covering a topic of huge importance. All the amendments deal with the same matter. Each seeks to amend the duty of quality to include an explicit reference to the prevention, diagnosis or treatment of physical and mental illness. Amendment 11 does so for the Secretary of State; Amendment 105 applies to the NHS Commissioning Board; and Amendment 180 applies to clinical commissioning groups.

I completely share the noble Baroness’s concern that we should never forget mental health in the drive for improving quality—quite the contrary. The noble Lord, Lord Patel of Bradford, and many others, mentioned parity of esteem between mental and physical health and the need to end the dualism in thinking that has in the past hindered an holistic approach to care. Noble Lords have expressed the concern that the Bill is wrongly silent in not referring explicitly to mental illness. I hope that I can successfully plead not guilty to that charge. First, I reassure all noble Lords on the central point of drafting, which is that all references to illness already include both mental and physical illness. The term illness is defined in Section 275 of the National Health Service Act 2006 as including mental disorder within the meaning of the Mental Health Act 1983. As a result, references to the prevention, diagnosis and treatment of illness would already apply to both physical and mental illnesses without the need for those additional words. The definition is already there. Therefore, the signal mentioned by the noble Lord, Lord Rooker, is already there.

The new duties placed on the Secretary of State for Health, the NHS Commissioning Board and clinical commissioning groups continuously to improve quality as defined by the noble Lord, Lord Darzi, already apply to the provision of both physical and mental health services. That is not to say—and I would not seek to suggest—that such services need no improvement. The noble Lord, Lord Patel, was quite right to draw attention to variations in mental healthcare around the country, despite the significant additional resources that have been directed to mental health services in recent years.

I fully agree that the National Health Service must look holistically at both the physical and mental needs of the patients whom it is there to serve. That is why the NHS outcomes framework, which we published last year, seeks to drive better health outcomes for those with mental illness. That is where the difference will lie in future. For example, Domain 1 of that framework, which focuses on preventing people from dying prematurely, includes a specific indicator on premature mortality in people with serious mental illness. Domain 2 of the framework focuses on enhancing the quality of life for people with long-term conditions, regardless of whether these are physical or mental health-related. However, to guard against the risk that there might be an overriding focus on physical health, there is also a specific indicator looking at the employment of people with mental illness. Clinical experts, including the Royal College of Psychiatrists, agree that this is an important outcome for people with mental illness and one that the NHS can make a significant contribution to improving. Finally, Domain 4 of the framework focuses on:

“Ensuring that people have a positive experience of care”,

including a specific indicator to capture the experience of healthcare for people with mental illness.

Health: Funding

Baroness Thornton Excerpts
Tuesday 1st November 2011

(13 years, 8 months ago)

Lords Chamber
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Earl Howe Portrait Earl Howe
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My Lords, the chief executive-designate of the NHS Commissioning Board is Sir David Nicholson, who is currently chief executive of the NHS. He is not the gentleman to whom the noble Lord referred. He currently runs the NHS. Professor Malcolm Grant, to whom I think the noble Lord was referring, will be chairman of the NHS Commissioning Board Authority, in a non-executive capacity.

Baroness Thornton Portrait Baroness Thornton
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My Lords, I think it is time that we brought Scotland, Wales and Northern Ireland into this Question, since they are actually part of the Question. So, on behalf of the rest of the UK, it is my understanding that essentially the same responsibilities and powers rest on the Secretary of State in England and the Ministers of Health in Scotland and in Wales. My question to the Minister is how do the Government intend to reconcile, manage and co-ordinate accountability to patients on cross-border concerns?

Earl Howe Portrait Earl Howe
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My Lords, the accountability is currently, as the noble Baroness will know, fairly complicated. Patients who are resident in England are the responsibility of their local PCT and patients with a Welsh GP are the responsibility of the Welsh local health board. That leads to an anomaly where patients who are resident in England but who have a Welsh GP are the legal responsibility of two commissioners, while patients resident in Wales with an English GP are not the responsibility of any commissioner. The situation is much clearer in Scotland because patients resident in Scotland but registered with an English GP are the responsibility of Scotland, and that is very clear. None of that will change as a result of the Government’s reforms.

NHS Commissioning Board Authority (Establishment and Constitution) Order 2011

Baroness Thornton Excerpts
Tuesday 1st November 2011

(13 years, 8 months ago)

Lords Chamber
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Moved By
Baroness Thornton Portrait Baroness Thornton
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That a Humble Address be presented to Her Majesty praying that the order, laid before the House on 15 September, be annulled (SI 2011/2237).

Baroness Thornton Portrait Baroness Thornton
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My Lords, in moving the Motion on the NHS Commissioning Board Authority (Establishment and Constitution) Order 2011, I will also speak to the NHS Commissioning Board Authority Regulations 2011.

These statutory instruments were laid before Parliament on 15 September, and the date when they expire is therefore 10 November. However, the NHS Commissioning Board Special Health Authority website says that it was,

“established on 31 October 2011”,

and plays,

“a key role in the Government’s vision to modernise the health service”.

Technically speaking, the NHS Commissioning Board has not jumped the gun by broadcasting its existence before the parliamentary process has been completed. However, given the whole way in which the change agenda for the NHS is progressing, there is an extent to which I feel our views may not count for very much at all, and may count for less as time goes on.

I would like the Minister to clarify whether there was a period of consultation before the order was laid, because I can find no evidence of it. I am aware that there was a statutory period of consultation with the staff unions during the summer under Section 28 of the National Health Service Act 2006. I am also aware that there was a consultation on the White Paper published last year. However, I am not aware that the decision to establish a shadow authority was taken or mentioned during that consultation.

The Explanatory Notes to the statutory instruments make play of the fact that the Future Forum said in its deliberations that the NHS Commissioning Board should be established as soon as possible. However, I do not regard the deliberations of the Future Forum as a substitute for a properly managed consultation involving all the bodies that have an interest in this matter. The Future Forum is a body with no official or statutory status or accountability to Parliament. Its members have not been appointed through the Nolan procedures and do not even need, for example, to register their interests. Praying them in aid of an order before Parliament is slightly odd.

The procedure for putting in motion important statutory instruments such as this should not be treated in a cavalier manner. Indeed, it is so important that there was an exchange of letters between the noble Lord, Lord Goodlad, the chair of the Merits of Statutory Instruments Committee, and the Leader of the House, the noble Lord, Lord Strathclyde, last summer when a matter of consultation was clarified. In answer to a question from the noble Lord, Lord Goodlad, about the consultation procedures, the Leader of the House said:

“The Government recognises the best practice established by the Code of Practice on Consultation and will continue to observe it wherever possible”.

I am concerned as to whether the code of practice was adhered to in this case, and if not, why not.

This order outlines how the proposed new commissioning architecture for the NHS might be delivered, so it is of huge importance. I would like some assurance from the Minister that, as we move forward with other orders pertaining to the Bill, proper consultations will take place.

Today, as the NHS Commissioning Board commences a period of shadow running before becoming fully operational, the emergent commissioning architecture has become far more complex. The paper developing the NHS Commissioning Board offers some insights as to what a very complex organisation is being developed. Between the NHS Commissioning Board at one end and the clinical commissioning groups at the other, the variety of commissioning support agencies is growing exponentially to include regional—I think I need to amend that to subnational—arms of the NHS Commissioning Board, PCT clusters, commissioning support units, clinical senates, special clinical networks, health and well-being boards and trustees of clinical commissioning groups. Public Health England, local health improvement boards, regulators such as Monitor and the Care Quality Commission, the National Institute for Health and Clinical Excellence, local GP councils, third sector suppliers, and individual practices that are enrolled as clinical commissioning group members can also be added to this list. Indeed, patients too are becoming commissioners, as they wield personal health budgets.

This is presumably the structure to be delivered by the shadow board. I do not object to being properly prepared for these huge changes—that is very wise. However, there are some very important questions to be considered about the statutory instruments before us today. Can the Minister confirm what the timetable is, subject to the passage of the Bill? My understanding is that October 2011 is the start date for the board in shadow form as a special health authority, although the word “shadow” appears nowhere that I could find on the website. Given that the board has already recruited its chair—a matter that I will return to in a moment—can the Minister tell the House how and when other board members will be recruited, and whether the Department of Health will be using the same company of head-hunters that recommended Professor Malcolm Grant? Can he confirm that another five board members will be appointed? I am asking because I am not clear from Regulation 6 of the NHS Commissioning Board Authority Regulations, on the suspension of non-officers, as to whether that includes the chairman. I can see that it deals with the situation of the suspension of the chairman, but I am unclear as to how the chairman might be suspended in the first place, and by whom.

If the shadow board is to run from October 2011 to October 2012, I gather that at that point it transmogrifies into an executive non-departmental public body responsible for planning for 2013-14. I ask the noble Earl: is that it then? Is that the status of the quango being created to run this part of the National Health Service? We know that strategic health authorities and PCTs will be disestablished in April 2013.

I have a series of questions arising from the timetable, and I am sure other noble Lords will have as well. I am going to limit myself to two main themes, accountability and cost, after which I will have a few questions about the appointment of Professor Malcolm Grant. What powers does the NHS Commissioning Board have at this point and what budget? How many people are employed by it at present, how many will be employed by it eventually and at what cost? We know that the board will be responsible for £100 billion of taxpayers’ money. When will they start disbursing that funding and what accountability measures will have been established before April 2013, or indeed before October next year? Am I right in thinking that from yesterday the board has been established as an independent statutory body with some accountability, such as the authorisation of clinical commissioning groups? If this is indeed the case, does the new board have control of the budgets that develop the clinical commissioning groups? How will it disperse that funding? Who will be responsible for the strategic health authorities and PCT boards and their continuing delivery of healthcare in their areas? Who will be responsible for the delivery of the Nicholson challenge while Sir David Nicholson is busy, presumably, with all of the above?

I turn now to the appointment of Professor Malcolm Grant, whom I know from my work with academic organisations in the past. I have the highest respect for his current position as the head of University College London, but I think he was put in an impossible position by the Department of Health. I have now read the transcript of his interview with the Health Select Committee, where he was approved only by the casting vote of the chairman. It seems clear to me that Professor Grant had been told that it was a rubber stamp exercise and that he did not expect to be cross-examined in the robust way in which the Health Select Committee proceeded to question him—a way that we all know and cherish, particularly when a Select Committee may suspect that it might be being taken for granted.

It is unfortunate that Professor Grant was unable to explain why or if he had a passion for the National Health Service. He said:

“I find it difficult to demonstrate because I am not a patient of the NHS”.

Will the Minister take this opportunity to clarify exactly what was meant by that remark? It has had negative media coverage because it has been interpreted as meaning that Professor Grant does not use the NHS at all. That is most unfortunate.

According to the record, Professor Grant instead pointed to his 37-year marriage to a central London practice GP as his experience of the NHS. I am married to a world expert on internet safety, but it has given me neither a passion for nor a particular knowledge of IT and the internet. Much as I support my husband in his work, I am not at all sure that it is good practice to use that in a job interview. However, it raises a separate question: did the department take legal advice about whether Professor Grant’s GP wife makes him a relevant person in terms of conflicts of interest? Given that GP primary care will be dealt with directly by the NHS Commissioning Board, which I understand is to have responsibility for GP contracts, will Professor Grant have to exclude himself from any discussions and decisions that might be to the advantage or disadvantage of GPs? What a curious state of affairs that would be. In fact, the whole episode is curiouser and curiouser.

I agreed with Professor Grant in his remarks to the Select Committee about the health Bill, which he thought was completely unintelligible. I suspect that the Minister may not. I look forward to the Minister’s remarks because I know that I will be wiser as a result. I beg to move.

Lord Warner Portrait Lord Warner
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My Lords, I agree with everything my noble friend has said. In particular, I would like to know when the shadow becomes substance.

It is unfortunate that we are considering these statutory instruments before we have had a chance in Committee to discuss the clauses of the Bill relating to the NHS Commissioning Board. I shall try not to trespass on the ground that we will undoubtedly cover in the Bill, but there will inevitably be some overlap.

The board’s main role is to ensure a coherent and effective commissioning system as a proper counterbalance to the NHS’s historical dominance by provider interests. In considering these statutory instruments, it is important that we are clear that this is its main role. If it is to succeed in using commissioning to improve patient health outcomes, not only individually but across populations, it will be vital that the board is not sidetracked by being given other roles that Ministers cannot find other homes for. We will discuss these issues further, but can the Minister give some assurances today that we will not end up with a situation in which the board’s empire continues to grow and its membership may not be the most effective to deal with the range of circumstances and problems that it has to deal with? Can he give an idea of the scale of the board’s budget and staffing issues?

I always travel optimistically when I see a government department produce an impact statement and I always hope that there might be the odd number or two in it. However, in these statutory instruments, the numbers are conspicuous by their absence. I would therefore like to explore with the Minister what the scale of the board’s budget and staffing will be.

It is very difficult to judge whether the governance arrangements for the board in regulations such as these are satisfactory without knowing a lot more about the scale of the operations. Could the Minister give us more information about what he anticipates the budget of the board will be in its first year of operation? Again, we are less than certain precisely when that first year of operation will be, but for argument’s sake let us fix on either 2012-13 or 2013-14—I personally do not mind which. I would like to know what he thinks this body will be responsible for in cash terms and to have some idea of what he thinks its running costs will be. We will certainly be coming back to this issue as the Bill progresses in Committee, but it would be helpful to have some idea of the scale of this body’s operation before we can judge whether the provisions in the regulations on membership of the board and the way in which it is going to be run are adequate.

This request for numbers is not just a matter of idle curiosity on my part. It relates to the question of what is the most appropriate size for this board and its committee structure. From what we have learnt so far, the board seems likely to have responsibility for spending at least £80 billion a year. I have heard figures of up to 5,000 staff being bandied about as the possible number of people that the board will employ. With an annual expenditure of this size, my first question to the Minister is: is it right to be thinking about having a board with only five non-executive members? How does this compare with a FTSE 100 company with a similar turnover? With such a turnover each year, what is likely to be the scale and nature of the committee and sub-committee structure that the board requires? Is there a danger that, with only five non-executives, the board will end up with committees or sub-committees taking decisions on large sums of public money where board non-executives are in a significant minority in those decision-making committees? Certainly at first blush, the governance structure for the large sums of public money that this board will be disposing of looks potentially weak compared, for example, with a big local authority. Are the Government sticking with five non-executives or do they contemplate having a larger number of non-executives on this board?

Having made this comparison with local government, I will turn to the issue of the board and its committees meeting in public. As I understand the regulations, there is no requirement for the board or its committees to meet in public other than when the board presents its annual report. Given the sums of public money likely to be involved, this seems to me totally unsatisfactory. As someone who was a chief officer in a big local authority for six years, I thought it was good for my soul to have to argue my case in public. I think most members of elected local authorities accept that their way of having to account for large sums of public money is to talk about how it is going to be spent and to account for it in a public arena. I cannot see why this board should not be required, as a matter of course, to meet in public and conduct its discussions in a transparent way, except where perhaps personnel or commercial issues are involved. Can the Minister say why the regulations do not require this, when the Government themselves tend to make rather a song and dance about how they prefer there to be much more transparency in public bodies?

Finally, I turn to the issue of board competence and training. I was a little startled to learn of some of the answers provided to the Health Select Committee by the Government’s candidate to chair the board. Of course, there was a refreshing honesty, as my noble friend has said, about the way he described the Bill as “completely unintelligible”, and many Members of this House seem to agree with him, judging by the number of amendments that they have put down. However, more puzzling was his understanding of the board’s relationship with the Secretary of State under the terms of the mandate provisions in Clause 20 of the Bill. He seemed to believe that the Secretary of State would hand over the mandate for two or three years and then leave things to the board. Clause 20 makes it absolutely clear that the Secretary of State can issue a fresh mandate before the beginning of each financial year as well as modify it, particularly when there are exceptional circumstances. The Secretary of State also has extensive powers in Clause 17 to issue regulations that lay down standing rules on how the board conducts its affairs. Can the Minister tell us more about the arrangements for induction training of non-executives and their chair, so that there is no misunderstanding on the part of the non-executives about what the board can and cannot do?

I could go on because there were many other issues that were raised, but I will save those for Committee. In conclusion, I regard these regulations as looking somewhat feeble for a body operating on the scale that the Government seem to envisage and in such a complex environment. We will come back to some of these issues in Committee. In the mean time, I would welcome the Minister’s answers to my questions.

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Earl Howe Portrait Earl Howe
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My Lords, yes. There are clear rules surrounding conflicts of interest and the NHS Commissioning Board will be no exception to the rules that already exist for public bodies.

Baroness Thornton Portrait Baroness Thornton
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My Lords, I thank the Minister for that very comprehensive answer to the debate. I also thank all noble Lords for their contributions to what I think was a very worthwhile discussion. I particularly thank my noble friends Lord Warner and Lord Turnberg. The questions put by my noble friend Lord Warner were, of course, as forensic as I would have expected. I did wonder about the lack of an impact assessment being attached to the order and regulations.

In response to the noble Baroness, Lady Barker, I did not object to the fact that the chair has been appointed in advance. Indeed, I completely took the point that it is happening at almost exactly the same stage in the passage of the Bill as occurred with the appointment of the chair of the CQC. However, my concern relates partly to the lack of consultation. We conducted a consultation at every single point of the CQC being set up. We carried out a statutory consultation right the way through the establishment of that body. The fact that the Government were not bound to have a consultation prior to the establishment of this authority is not an excuse for not doing so. This authority will lead to the establishment of a board which will spend £90 billion or £100 billion of taxpayers’ money. Therefore, it seems important to have a consultation at every point, partly because the more that people understand organisations, the more that helps to build support for them.

The noble Lord, Lord Willis, is quite right to raise the issue of research. These Benches certainly support that, if that is not the kiss of death.

The noble Baroness, Lady Finlay, raised a crucial point about conflicts of interest. I am not at all sure that the Minister answered my question about legal advice on the position of the wife of the new chairman of the authority being a GP but I am quite happy to let him write to me about that. On that basis, I beg leave to withdraw the Motion.

Motion withdrawn.

Accidents: Costs

Baroness Thornton Excerpts
Monday 31st October 2011

(13 years, 8 months ago)

Lords Chamber
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Baroness Thornton Portrait Baroness Thornton
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My Lords, I welcome the fact that the revised blueprint of Healthy Lives, Healthy People now includes accidental injury prevention. Can the Minister confirm that that would therefore be a new responsibility added to those that public health authorities will be taking up? Has that been costed and will extra funding be available for local authorities and the new public health authorities to deliver on it given that, if they are successful, they will be saving a great deal of money?

Earl Howe Portrait Earl Howe
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As the noble Baroness knows, much will depend on the priorities that individual local authorities set. This is subject to further engagement because it is early days, but accidental injury prevention is listed as one of the areas that local authorities could focus on. To my mind, they should be warmly encouraged to focus on accident prevention as there are so many levers at their disposal to make a difference in this area.

Health Authorities (Membership and Procedure) Amendment Regulations 2011

Baroness Thornton Excerpts
Monday 31st October 2011

(13 years, 8 months ago)

Grand Committee
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Moved By
Baroness Thornton Portrait Baroness Thornton
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That the Grand Committee do report to the House that it has considered the Health Authorities (Membership and Procedure) Amendment Regulations 2011.

Baroness Thornton Portrait Baroness Thornton
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My Lords, I beg to move that the Grand Committee should consider these regulations, SI 2011/2200. I thought that it would be worth while to have a discussion about these regulations—which I think have now technically come into force—because they will be used, as far as I can see, to establish at least two of the bodies which we know about arising out of the Government’s legislative programme. Indeed, my first questions are: how many more, which and when?

The first instrument concerns the establishment of the NHS Commissioning Board as a special health authority as a result of the legislation that is before the House right now and which we will be discussing in the Chamber tomorrow. The second instrument concerns the establishment of a research organisation as a result of the Public Bodies Bill and the proposed abolition of the Health Protection Agency and the Human Fertilisation and Embryology Authority. I think that the order will also be discussed in due course.

My first question to the Minister has to be this: do the Government have further proposals to use this legislation in order to set up more and new special health authorities, and if so, which ones, where and when? Will we see orders, for example, to establish special health authorities for the new sub-national bodies that David Nicholson keeps referring to? Will those bodies have formal status in legislation and will that be done by order?

I turn now to the substance of the regulations, and while I am not going to take very long, I have some questions to ask. One of the key issues is the removal of the restriction that prevents chairs, non-officers and officer members of strategic health authorities from being appointed to more than one strategic health authority at a time, a rule which I think is entirely reasonable. What has changed so much that a chair could or might want to serve, or indeed where it might be desirable for them to serve, on a special health authority as well as a strategic health authority? Do the Government propose to establish so many special health authorities that that could become a problem? For example, would it be possible for someone to be the chair of a strategic health authority that exists now, a member of another strategic health authority and a member of a special health authority as those bodies emerge? Apart from anything else, I would like to know whether those individuals would be paid for doing all those different jobs, and how much that is likely to cost. Is that envisaged as the purpose of this order?

Moving forward, what happens to the strategic health authorities in this process? Where are all the authorities going to be? Are they going to be sucked up into the sub-national bodies, and are they therefore going to be special health authorities? Is that going to be done slowly or will it all happen in one go in 2013? How will the new chairs and members of special health authorities be appointed, and by whom? Will there be an independent element in what happens in the appointments procedure—will it be open to public scrutiny or will it just be done by the Secretary of State? Will that be on the public record? How much will they be paid, for how many days and what will their jobs involve? Does the Minister expect or envisage that there may be a clash of interests as this policy develops?

As we head towards 2013, special health authorities—these sub-national bodies or whatever they are to be called—may bring forward and carry out the work of the national Commissioning Board. What will happen in those areas where you have members on the sub-national bodies and on the strategic health authorities? There may be discussions between the two about where the policy goes and there may be clashes of interest. I am thinking about things like the developing role of commissioning and the clinical commissioning groups, and the role and powers that strategic health authorities have had in the past to drive forward, for example, stroke strategies or support for cancer networks. Where does the Minister see those? What happens if somebody who had responsibility for them in a strategic health authority now serves on one of the other bodies and there is a clash of interest over where the resources are going and how they will be supported? How could that be resolved? I am thinking in particular about things like failure regime, reconfigurations, training and workforce planning. As the Minister knows, that is an important role of strategic health authorities. Who will be the arbiter if there are those sorts of clashes of interest about the new structures as they move forward? Would it be the Secretary of State or the NHS Commissioning Board?

There are a variety of questions, some of which it may not be possible to answer now, but which will have to be looked at as we move forward and if the proposals to establish more of these special health authorities are carried through with the different roles. I beg to move.

Earl Howe Portrait The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
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I am grateful to the noble Baroness for tabling this debate on the Health Authorities (Membership and Procedure) Amendment Regulations, and I welcome the opportunity to respond. As she pointed out, we will gather in Committee several more times this week to review the impact of a number of pieces of legislation introduced by the Government and challenged by the noble Baroness.

I believe that the combination of these statutory instruments provides security to hard-working NHS staff to maintain the continuity and quality of services that patients need at a time of considerable pressure. We cannot forget that the NHS has been challenged to make up to £20 billion in savings over the next three and a half years, which will be reinvested back into front-line patient care. Alongside this, we are seeking to move to a more autonomous and locally accountable patient-centred NHS, focused on improving outcomes for patients. That is the background although—in reply to the points made by the noble Baroness at the beginning of her speech—I make it clear that this order has nothing directly to do with the establishment of the two special health authorities, the NHS Commissioning Board Authority and the Health Research Authority, as special health authorities. We will debate both tomorrow.

The effect of the Health Authorities (Membership and Procedure) Amendment Regulations 2011 is to allow the clustering of strategic health authorities and to provide greater flexibility among the non-executive and executive community to take up other board level posts in the health sector during the transition period. The 10 strategic health authorities have been clustered into four: NHS North of England, comprising North East, Yorkshire and the Humber and North West; NHS Midlands and East, East Midlands, East of England and West Midlands; NHS South of England, South West, South Central and South East Coast; and NHS London, which will simply encompass the existing strategic health authority.

That does not change the current structure of the NHS. There are still 10 strategic health authorities with the same boundaries which exist as legal statutory bodies. We have just simplified the governance of the strategic health authorities in order to sustain structural stability and reduce management costs. To do that, the Government are using powers that exist in legislation previously scrutinised by your Lordships' House. The correct procedures were followed in making appointments to the new clusters which complied with both the Commissioner for Public Appointments’ code of practice and employment law, as appropriate. The posts are time-limited and will be disestablished when strategic health authorities are abolished—if the Bill goes through the House and becomes law—on 31 March 2013.

Each cluster board now comprises a chair, up to eight non-executive directors, four executive directors with voting rights and up to five other non-voting executive directors who lead and scrutinise the decisions of each of the constituent SHAs within the cluster. Clustering SHAs, as we have already done with PCTs, supports the delivery of the £20 billion NHS efficiency savings through significantly reducing the cost of NHS administration—a commitment of both this and the previous Government. The creation of SHA clusters is a step towards that. PCT and SHA management costs increased by more than £1 billion since 2002-03, a rise of more than 120 per cent. It would not be possible to make savings on the scale required while retaining the administrative superstructure of PCTs and SHAs.

In addition to the pressing needs that I have outlined, the Government have a responsibility to ensure that the transition to the new system of working in the NHS—subject to the passage of the Bill—supports the integrity of the health service, as well as continuity of accountability and minimised disruption to those working hard to deliver and maintain high-quality services on the front line.

In the current system, SHAs have a key role to play in ensuring the quality and safety of services, in driving performance and delivery, including safeguarding the cash limit and in responding to the QIPP challenge. SHA managers have done a commendable job in delivering that agenda. That is in part why the Government's response to the Future Forum report extends the life of SHAs to the end of March 2013. Until then, SHAs will retain their statutory responsibilities and remain accountable for delivery and transition. Given the context of major change, with new leadership starting to take up roles in the system, it is critical that strong SHA leadership teams continue in place to provide the right focus on delivery and ensure effective accountability.

Clustering provides resilience and alignment for the future. Already, a number of senior posts in SHAs are either not filled or are being covered through interim arrangements. That is not sustainable for a 17-month period, and the position is likely to deteriorate further over time. The risk posed by SHA atrophy is therefore too great, and clustering for greater collective resilience over the next 17 months is an essential response.

Sir David Nicholson has announced that the initial sub-national arrangements of the NHS Commissioning Board will mirror the geographical footprint of the SHA clusters. To give the board a greater sense of having a stake in the future, there is a strong argument for moving early to future geographical footprints. The Government are moving swiftly with those arrangements, drawing on the lessons learnt from PCT clustering, which show that once a decision to cluster is made, it is better to implement the changes quickly. It is also important to embed these arrangements before winter to reduce the impact of the extra operational pressure that the health service is put under at this time.

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My noble friend Lady Jolly asked about the management cost savings that we expect from the changes. She asked whether we had factored in risk. The reduction in the number of non-executive posts will result in savings of around £367,000 per year. It is worth pointing out that the overall calculation is difficult because some people who were members of SHA boards and who have not been accommodated on the cluster board have reverted to roles within SHAs, so although they are not any longer on an SHA board, they are still performing useful tasks at a managerial level. Therefore, it is not possible to correlate the drop in the number of board members with a saving. However, we are clear that annual savings of a significant amount will be achieved from this exercise.
Baroness Thornton Portrait Baroness Thornton
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I thank the Minister, and everyone else, for taking part in this short but extremely useful debate. The Minister started out in his introduction by saying that this is all being done in the context of the £20 billion Nicholson challenge. However, I am certainly not convinced that setting up double structures will help the delivery of that particular challenge. I accept that there has to be some clustering of strategic health authorities because, as the Minister said, the clusters are a response to atrophy and, I would add, demoralisation among the staff. On the one hand, everyone who has spoken said what valuable institutions strategic health authorities are and what a valuable job they do. On the other, there is an acknowledgement from the Government that there is a danger of atrophy here. As the noble Baroness, Lady Jolly, said, that poses risks. Those risks need to be addressed.

I will read what the Minister said, but I am still unclear whether the clusters will cease to exist in 2013 or whether they will become the national Commissioning Board’s sub-national instrument for delivery. Perhaps we will need to address that question tomorrow when we look at the NHS Commissioning Board. The issue of conflict of interest is potentially real and the Government will need to think about it as the process moves forward. When two mechanisms are in place for delivering healthcare in an area, conflicts of interest will need to be looked at. The noble Baroness, Lady Williams, raised some important points, particularly about HealthWatch. As I listened to her I thought, “I wish I had thought of that myself”—as I usually do when she speaks.

I am still not sure about the accountability of the national Commissioning Board. We will address its accountability at a national level, but I am also worried about the accountability and transparency of the clusters were they to become the sub-national boards for the national Commissioning Board. That is a bigger issue than we can possibly deal with here, but I am adding them, as it were, to the agenda of issues to be addressed as we move forward.

Motion agreed.