Healthcare (International Arrangements) Bill

Debate between Baroness Thornton and Lord Butler of Brockwell

Committee: 2nd sitting (Hansard): House of Lords
Thursday 21st February 2019 Lords Chamber

[Baroness Thornton (Lab)]

My Lords, this has been a very powerful and useful debate to have as a precursor to the one we are about to have, where we will again address the nature of the powers in the Bill. I enjoy it very much when noble Lords such as the noble and learned Lord, Lord Hope, use the words “rather unfortunate”. Of course, in House of Lords-speak, which the Minister will become accustomed to, it is a very serious thing to say of a piece of legislation that its drafting is rather unfortunate. I want to say how much I appreciated the interventions from the noble Lord, Lord Butler, and the noble and learned Lord, Lord Mackay of Clashfern, to whom I always listen most carefully.

My noble friend Lord Foulkes referred to discussions that may take place outside this Chamber on whether statutory instruments should be referred back, but actually we know from the past that, when your Lordships become exercised about a statutory instrument, we see threats in the press about our existence and, “How dare they!”. That is a serious problem, so I think there is an issue that we need to address that is broader than just this Bill.

[Lord Butler of Brockwell]

It seems to me that the situation is exactly the same with amendments to primary legislation. Governments will often put pressure on their Back-Benchers to support it, but very often the Government are defeated on amendments and legislation is thereby improved. I cannot see why the same thing should not happen with statutory instruments.

[Baroness Thornton]

The noble Lord and I absolutely agree about that, and the noble Lord is quite right. I am not saying that one would bow to that pressure at all. Your Lordships’ House has a proud record of persuading the Government to change both statutory instruments and primary legislation with regard to the powers that they have.

I shall say one final thing. It is not the case that these issues were not raised by my honourable friends in the House of Commons; in fact, they were. Indeed, the Delegated Powers Committee’s first report on the Bill was quoted extensively in Committee in the Commons; unfortunately, the votes were not there to carry its effects through. We might think about changing that at a later stage in the Bill.

Health and Social Care Bill

Debate between Baroness Thornton and Lord Butler of Brockwell

Tuesday 13th December 2011 Lords Chamber

[Baroness Thornton]

My Lords, we have yet again leapt to a larger group, and I know that the noble Lord, Lord Clement-Jones, will get his turn, although possibly not until after dinner. We have moved on to a large group of amendments that concern pricing and the setting of tariffs. Many other noble Lords have tabled amendments in this group, as indeed has the Minister. I do not intend to make a long speech, but I will address the issue of pricing.

On reading the Bill you would think that having a tariff in the sense of a complete list of NHS services with all the prices and currencies set out was just around the corner, but I suggest that that is a bit of a myth. Even well developed healthcare systems that are much more market-orientated than our NHS are still a long way from such a state; we are years or perhaps decades away from that condition. For a start, for many services there are no data—not just bad or incomplete data, but none. Getting the datasets defined, collecting the data, then making the analysis, road-testing and rollout will take time. The Minister might like to tell us just how large the team in the Department of Health working on this task is, because I have to say that I heard that it is small and getting smaller as the cuts bite. But, of course, there is always KPMG or McKinsey to step in. Apart from anything else, it seems that this Bill is intent on creating a lot of jobs for lawyers and now, we see, for accountants too.

We are in the midst of a major argument about how relevant different types of currency and tariff might be, with some suggesting that returning to block payments might be better, in the interest of integration, stability and cohesion. This has been stamped on by the operating framework but that does not mean that it will not happen. Using choice and the right financial incentives to drive change in the system is the new orthodoxy. Some are trying to find out how different currencies, uses of penalties and fines and even bonus payments can reward good outcomes and deter bad. This has now extended to how to incentivise integration. These are all problems for which we would like to have answers. We are years away from a system where all these levers are available in the way that the Bill likes to suggest that they are.

In mentioning the framework, we should point out that the re-emergence of price competition shows the need for some communication between the chief executive and the Secretary of State.

Who, then, sets the prices? The arguments are well balanced. My noble friend Lord Warner argues in his book that it should be the national Commissioning Board. He is not in his place at the moment, but I have read his book. However, the national Commissioning Board is in the ludicrous position of also being the commissioner of local services. Monitor may also be compromised, as it is aligned to providers. So we return to the role of the Secretary of State. In any event it must surely be for the Secretary of State to determine the strategic approach, namely the global uplift or reduction. Our priorities for a system as determined by the Secretary of State also need translating so that the incentives are aligned to the desired outcomes, something the NHS has not always been good at. If the Secretary of State determines the approach within the strategy, then we may need genuine independent input into the detailed work of pricing and tariff. At the very least, a full list of the proposed tariffs should be published along with all the data and the analysis, so that the big brains of people at organisations like the King’s Fund and the Nuffield Foundation can tell everyone what is wrong.

Widespread consultation before any major change is a good idea, as is road testing changes before inflicting them and all the suffering of the unintended consequences that may arise. In the end, we think that the Secretary of State must make the strategic decisions in this crucial part of the economic architecture. It cannot be handed over to a quango.

The details of the amendments in my name and the name of my noble friend are as follows. Amendment 277B would insert a new clause which would place a duty on commissioners as to the continuous improvement in terms of cost, value for money and the needs of patients. It would also encourage co-operation with health and well-being boards, patients and the public. It would allow the Secretary of State to issue guidance, via regulations, including in relation to whether,

“competition for the provision of a service may or may not be appropriate”,

and in relation to,

“the circumstances for use of tenders as a result of a service review”.

Noble Lords who were here this morning—which now seems like a long time ago—may remember that, when I explained the overall purpose of our amendments to reconfigure Part 3 of the Bill, the setting of prices was part of that.

Amendments 288J and 289 are about setting a national tariff: they would make it a matter of policy for the Secretary of State, and not a matter for Monitor. Amendment 291B would ensure that regulations relating to the national tariff must state how the prices and methods were determined and how any proposed changes to the national tariff,

“will be subject to proper evaluation and testing” ,

as well as dealing with evidence of consultation between the Secretary of State and Monitor. As the national tariff should not vary in relation to different descriptions of provider, Amendment 292ZC would deal with that issue and the issue of a preferred provider. Monitor should also have no powers over commissioners—in this instance, in relation to the tariff—as commissioners are regulated by the board. We oppose the question that Clauses 116 to 121 stand part of the Bill, because we believe that the Secretary of State should set the national tariff: if the Secretary of State were to set the national tariff, then those clauses would be unnecessary. Once more, as you can see, we are reducing the size of this part through our amendments.

Amendment 294LA would insert a provision that regulations must be laid to issue “guidance on the circumstances” in which there can be local modification of prices. That decision should not be for commissioners and the providers of healthcare services alone. Amendment 294LB would provide that any local modifications of prices would occur with the approval of both Monitor and the board. Amendment 294LC also concerns local modifications of prices: it would ensure that if they were approved, Monitor would have to notify the relevant health and well-being boards. Amendment 294MA deals with situations in which a provider fails to reach an agreement with a commissioner about local variation of prices: in such circumstances it would allow Monitor to authorise such changes only,

“with the consent of the Board”.

Amendment 294MB would ensure that no modification of prices could happen,

“without the consent of the Secretary of State”.

In the area of the setting of prices we are perfectly happy to acknowledge that this may not be a perfect set of amendments. But we think that the very important matter of who sets the prices, and where the accountabilities lie, needs to be discussed. I beg to move.

[Lord Butler of Brockwell]

My Lords, I shall speak to Amendments 288H and 291A, in my name and the names of the noble Lords, Lord Newton of Braintree and Lord Turnberg. The amendments are related. Like other amendments in this group, they relate to the tariff—that is, the remuneration which a healthcare provider receives for a healthcare service. The amendments to which I am speaking are designed to facilitate the introduction of new treatments made possible by the development of new technology. When an innovative treatment requires a new procedure code or an updated healthcare resource group classification, a new code can take up to three years to be implemented and a new healthcare research group can take up to six years to develop. Meanwhile, NHS trusts cannot be remunerated for potentially useful and cost-effective improvements made possible by new technology.

In Germany, an intermediate step has been developed, under which providers can apply for an on-top payment while a new code is being developed. This is known in Germany as the NUB system, although I hope that noble Lords will not ask me to say what NUB stands for. These amendments provide for a similar “innovation tariff” to be provided in the United Kingdom, to allow for providers to be remunerated for an innovative procedure on a temporary basis while a new procedure code or healthcare research group is being developed.

These amendments are in line with the Government’s Strategy for UK Life Sciences, which was published last week, but are not already covered by it. I hope therefore that the Minister will give sympathetic consideration to the introduction of arrangements of this sort to facilitate the introduction of health improvements made possible by new technology.