Health and Care Bill

Baroness Walmsley Excerpts

Committee stage
Friday 4th February 2022 Lords Chamber

[Lord Bethell (Con)]

I will also speak briefly in support of the register for social care workers, and I very much echo the words of my noble friend Lord Young. During the pandemic, we faced a huge challenge in identifying who social workers were. That meant that we struggled to distribute PPE, to get testing to the right people, to allocate and reallocate responsibilities when we tried to move away from itinerant service, and to create the vaccine prioritisation list. In the longer term, the question of the education of social care workers is absolutely essential, and a register is imperative to do that. In contrast with the NHS, the lack of a register of social care workers is a real impairment to the modernisation of social care working. For that reason, I ask the Minister to say a little more about his consultation and think very carefully about a mandatory register.

[Baroness Walmsley (LD)]

My Lords, last week, when we debated the call for a separate list of properly qualified cosmetic surgeons, I received a briefing from the GMC about the forthcoming new system of professional regulation. I asked the Minister when this would be forthcoming, but I fear that he was not able to give me a clear answer. This matter has been hanging around for a very long time, but, when I scrutinised Clause 142, I saw that there was another problem: in future, the regulation of healthcare professionals can be made through secondary legislation—and whether this would be agreed by the negative or affirmative procedure is not clear.

The Explanatory Notes make clear that subsection (2)(e) —the powers to remove certain professions from regulation—

“includes the currently unenacted provisions concerning social care workers”.

Like the noble Lord, Lord Young of Cookham, I want to ask the Minister about this, because many noble Lords, including me, have been asking that social care workers have the opportunity to obtain qualifications that would provide them with registration and a career path to better pay and conditions—but this sounds like the opposite to me. Perhaps the Minister can explain this and tell the House when the new regulatory system will be ready. The 2017 report of your Lordships’ House’s Select Committee on the long-term sustainability of the NHS said:

“The current regulatory landscape is not fit for purpose. In the short term, we urge the Government to bring forward legislation in this Parliament to modernise the system of regulation of health and social care professionals”—


I emphasise “social care professionals”—

“and place them under a single legal framework as envisaged by the 2014 draft Law Commission Bill.”

That was five years ago.

I have also received a briefing from the Health and Care Professions Council. It appears from this that the HCPC has a rather different view from the GMC: it wants the new professional regulation of health and care professionals to be collaborative and innovation focused. It believes that the current system is “siloed”, and it is looking for multiprofessional regulation, which, it believes, better reflects current working practices in the NHS. I am not an expert in this matter, so I express no opinion on that, but I am looking for some clarity from the Minister on which direction the new regulation system will take and the evidence that this will be better than before and contribute to better quality and safety of care for patients. I would also like to know when it will happen, because Clause 142 appears to me to open the door to a fight between different regulators, which would not be helpful.

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Kamall) (Con)]

I thank all noble Lords who spoke in this debate. As a number of noble Lords have acknowledged, the case for reforming professional regulation has long been acknowledged, and stakeholders have long expressed concern that having nine separate professional regulatory bodies is confusing for the public. So our response in 2019 to the public consultation on regulatory reform reflected the desire for fewer regulatory bodies to deliver benefits to the professional regulation system.

In the 2020 consultation Regulating Healthcare Professionals, Protecting the Public, we committed to a review of professions that are currently regulated in the UK to consider whether statutory regulation remains appropriate for these professions. A consultation seeking views has been published, and it will close at the end of March this year. We also commissioned KPMG to carry out an independent review of the regulatory landscape, and it submitted its report at the end of last year. Officials and others are now poring over the findings to consider how best to respond. However, as with any use of Section 60, a public consultation will be carried out on any legislation made under these powers, and this would face scrutiny through the affirmative parliamentary process.

On the core criteria and principles, the professions protected in law must be the right ones, and the level of regulatory oversight must be appropriate and proportionate to the risks to the public. This is why we have sought a number of views on the criteria for determining whether statutory regulation is appropriate. As I said, we will wait for the outcomes.

These proposals have been developed in partnership with the devolved Administrations, and we will continue to work in partnership with Scotland, Wales and Northern Ireland in taking forward any proposals for using these powers. This will also be subject to affirmative parliamentary approval.

Clause 142 provides additional powers that would widen the scope of Section 60 of the Health Act 1999 and enable the Privy Council to make additional changes through secondary legislation, as was acknowledged. Subject to consultation, we are aiming to enable the professional regulatory landscape to become more streamlined and work more flexibly. We think that this clause will make it easier to ensure that the professions protected in law are the right ones and that the level of regulatory oversight is proportionate to the risks to the public. The Government keep the professions subject to statutory regulation under review. As I said, as part of our work to reform healthcare professional regulation, we are continuing to consult.

As I said, any secondary legislation made using the new powers would be subject to Schedule 3 of the Health Act 1999, public consultation and the affirmative parliamentary procedure, thus ensuring that there is clear parliamentary scrutiny and transparency in relation to any changes made by secondary legislation in this area.

I also refer back to the questions on the social care register, which I discussed at length, both before and after the recent Oral Question. When I spoke to officials about why the register cannot be compulsory, they said that this was fair, given the demographics of some of the people in the skilled sector, who quite often have some suspicions of authority and a lack of trust—we have seen that with vaccine take-up, for example—and so there were concerns about making it compulsory at this stage. It is voluntary. They want to understand the range of qualifications across the sector. There are a number of different qualifications, and, in professionalising the sector better, they want to make sure that they are consistent at all the various levels in our education system—levels 2, 3, 4, 5, 6 and upwards—to make sure that those qualifications are mutually accepted and recognised to make social care an attractive career and vocation.

For these reasons, I ask that Clause 142 stand part of the Bill.

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[Lord Willis of Knaresborough (LD)]

My Lords, I first apologise for not being present at Second Reading. It is unusual for me not to be there when a health Bill is being discussed, but I have had a lot of personal family problems.

Never, in the years I have been in both the Commons and the House of Lords, have I been as proud of a committee as I have been chairing the one on sport and recreation. I thought the committee would look very narrowly at sport and recreation and what could be done for them, but it ended up with a set of proposals that are quite revolutionary, which state something really quite different about the way forward, not only for sport and recreation but for the NHS itself. I am deeply indebted to the noble Lord, Lord Moynihan, for his leadership as our special adviser and for his membership of the committee, and of course to the noble Baroness, Lady Grey-Thompson, and the noble Baroness, Lady Morris, who is not here today, whose experience of working in the Department for Education was invaluable. As we heard earlier in the debate, that department has a crucial role to play in developing some of these key policies.

Like the noble Baroness, Lady Grey-Thompson, I would have preferred for this proposed new clause to be debated as a separate entity, but perhaps it was fitting that it was grouped with amendments that have a common theme, because despite the disagreements between various parts of the House on the previous set of amendments, they are all based around the same issue of how we get a healthier nation. It was incredibly rewarding to see that.

It might seem quite obvious that during the Health and Care Bill in the House of Lords we should be talking about health matters and improving health, but I have to say that, together with the 2012 Bill, so much of this legislation is about shifting the chairs again; it is not about looking at the future health of the nation. There will be marginal improvements from the bureaucratic changes in the Bill, but I was looking at what we can do to make a fundamental difference, and we will not do that until we change the fact that, as the noble Lord, Lord Stevens, said in that debate, the NHS is currently a repair-and-maintain service. It cannot go on like that because the money will run out and the number of people serving it will run out. We have to change it to a prevent-and-improve service, and that is what the new clause proposed by Amendment 297C is about.

It proposes just a minimum of reorganisation: for instance, simply moving sport from DCMS to the Department of Health is not a massive reorganisation. With moderate investment—nowhere in our report do we spend time talking about massive investments to get change; this is really about changes of attitudes—it has the potential to change the way in which the NHS operates to a very different mode of making sure that people do not get ill, as the noble Lord, Lord Stevens, quite rightly said. Indeed, the previous amendments were all about that too. Those amendments rounded on obesity and childhood obesity, and that is an area that we should be tackling; there should be masses of things in this Bill which are about supporting that, not just the odd one or two. Making people active from the cradle to the grave, or near the grave, seems to me the right thing to do.

Other amendments in this group rightly observe that what people eat and drink is related to their health outcomes. Given the alarming levels of obesity we have heard about this morning, I am very supportive of some of those, and particularly what the Government are doing in advertising. I fully support their approach, though clearly it is not a once-and-for-all idea.

How is it possible that the UK is world-leading in elite and professional sports, that 3 billion people across the world watch our Premier League matches in over 187 different countries and that, as the noble Baroness, Lady Grey-Thompson, has consistently said, at Olympics after Olympics we are near the top of the league in terms of our elite activities, yet for decades we have failed at grass-roots level to get more people from more diverse backgrounds to be more active, despite all the investment that successive Governments have made?

With one-third of the adult population at the moment getting less than 150 minutes of moderate activity each week; with schoolchildren doing consistently less activity both at school and at home; with PE marginalised in the school curriculum and no longer inspected by Ofsted while, as we heard in our evidence, many primary school teachers get less than three hours’ training in a three-year degree course, which is shameful, so physical literacy in most of our primary schools means nothing, frankly, because it does not appear on the league tables; with access to facilities ever more difficult; with local authorities closing swimming pools and leisure centres to save resources; and with transport non-existent for large parts of the day for large swathes of the community, we have become one of the most lazy, inactive nations in the modern world. Those sections of the population with the poorest diets and the worst levels of deprivation are, not surprisingly, the least active, too, and of course the pandemic has disproportionately affected all the target groups.

My colleagues and I sought in our report not to blame Governments, local authorities or sports and recreation providers, who have worked hard to maintain facilities. This is not a party-political amendment at all; all the groups on the committee were totally united. All the empirical evidence that we looked at shows the huge benefits from being active: improving learning at school; improving mental health; building up resilience and resistance to disease; and, above all, making people happier and more positive in life.

What is more, investing in active lives, as the Health Foundation research demonstrated, would save countless billions of pounds of future NHS spending by placing sport, physical activity and well-being at the heart of government within the Department of Health; by establishing in law an office for health promotion, sport and well-being to replace the Office for Health Inequalities and Disparities—whatever that means—with the same personnel as initially proposed by the Prime Minister himself; by making the Minister for Public Health, Sport and Wellbeing responsible for preparing the national plan that the noble Lord, Lord Moynihan, has so ably proposed, a plan that is at the centre of government policy in New Zealand, Australia, Norway and Sweden; by ensuring that the school curriculum places physical literacy alongside numeracy and literacy as a core subject; by making it mandatory for local authorities to provide active-life facilities; and by ensuring that the duties of care and safeguarding, so brilliantly articulated in the earlier review by the noble Baroness, Lady Grey-Thompson, are actually given legal enforcement status, years after they were proposed. We can begin by addressing the physical well-being of this nation. There need be no massive new bureaucracies. Using existing organisations, centralising policy and using the office for health promotion would be a game-changer.

If the noble Earl, Lord Howe, is a supporter of the levelling-up agenda, and I am pretty sure that he is a strong supporter, how better to make his mark than by supporting this amendment? It goes right to the heart of those government policies. If you are going to level up, level up at the start and make sure that we have an active nation.

[Baroness Walmsley (LD)]

My Lords, I regret that I cannot follow the edict of that late, great Liberal Democrat, Nicholas Parsons, and speak for only one minute. The Committee knows that it is my habit to speak very briefly, but unfortunately I cannot do that on this occasion, although I will do my best. It is my duty as a member of the APPGs for health, obesity and a fit and healthy childhood to scrutinise this legislation and the large raft of amendments that have been made to it.

The intention of Clause 144 is of course to reduce the rise in childhood obesity, an objective with which we all agree. An early attempt to do this via legislation was the UK soft drinks industry levy, the so-called sugar tax, which was introduced in 2018. Before the levy was introduced, it had already resulted in over 50% of manufacturers reducing the sugar content of their products after it was announced in March 2016, the equivalent of 45 million kilograms of sugar every year. That was the intention: to reformulate, not to raise tax. Since then it has continued to be highly effective in encouraging reformulation. In the 12 months following its introduction, the consumption of soft drinks rose by 7.7% as people chose healthier options, so neither the food industry nor the TV advertising industry suffered at all.

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I say to the Minister that these amendments are effective and are required. They not just give people information so that they can make informed choices but, as the Canadian example shows, reduce the amount of alcohol that people purchase. They are vital now that we have a real understanding of the economic, social and health effects of a lack of investment in treatment services. If they are invested in, they can bring not just economic but social and health impacts.

[Baroness Walmsley (LD)]

My Lords, I have been in this House for 22 years and I have been asking for this for at least 20 of them. It really is time that the Government got on with it. At the time, I was told that most wine comes from abroad and we cannot legislate for what is put on the labels, but it cannot be impossible to put information on the shelf labels or online. If people do not know what they are putting inside their bodies, they cannot moderate it.

[Lord Sentamu (CB)]

My Lords, I support this amendment. I will tell a true story of a teetotal preacher who harangued his congregation that nobody should be drinking because it is dangerous, damages our health and damages everything else. “Alcohol should be banned,” he said, “and the best thing to do is go and drown it in the river.” Unwittingly, he then said, “Our final hymn is ‘Shall We Gather at the River?’ The beautiful, the beautiful river.” He did not see the contradiction in what he said. This amendment is full of clarity, clarifying areas that need to be put fairly clearly. The obligation that it puts on the Secretary of State and, incidentally, all of us is very clear. Because of the real danger in what overdrinking does to a lot of people, I say: no, we shall not gather at that river, that beautiful, beautiful river.

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[Baroness Walmsley (LD)]

My Lords, I certainly support these three amendments so ably introduced by the noble Lord, Lord Hunt, and the noble Baroness, Lady Cumberlege. The beauty of their presentations is that they not only outlined the terrible suffering that can be caused by the things we are discussing but came up with very reasonable solutions to make the situation better. That is what we always try to do in your Lordships’ House.

My noble friend Lord Storey put down Amendment 297E in this group. Because he was unable to make it today, I do not intend to speak to it. I do not think that would be appropriate in case he wishes to bring it back on Report. I think he would be happy to support all three of the other amendments, in particular Amendment 268 from the noble Lord, Lord Hunt.

I was interested to hear the noble Baroness, Lady Hodgson of Abinger, say just now that clinical negligence costs £2.26 billion per year. That is about the same as the whole budget of the Ministry of Justice and, as a result, hardly anybody can get legal aid these days. That is a very good reason why we should look carefully at the performance of NHS Resolution. There is clearly no incentive for the NHS lawyers to get things through quickly, because they are being paid anyway. The fact is that there is no equality of arms; I have said this on this subject before. It should be a principle of justice in this country that there is equality of arms, but in this case there is not—so I very much support the noble Lord, Lord Hunt.

[Baroness Wheeler (Lab)]

My Lords, this is an important group and there is little to add to the expert contributions on the amendments, which have been spoken to so comprehensively. We have always championed the need for patients’ voices to be heard and listened to in the care and treatment they receive, and are doing so in pressing for the patient voice to be properly embedded in the new structures established under the Bill.

When appalling safety incidents occur, such as those so graphically spelled out in the First Do No Harm report from the noble Baroness, Lady Cumberlege, we need not only to ensure that there are effective systems to make sure that victims receive the care, treatment and proper financial compensation needed but to enable the NHS to acknowledge and learn from what has happened, both to prevent further harm and to promote future patient safety.

In opening this group, my noble friend Lord Hunt made a strong case for an urgent, expert-led review of the 40 year-old Vaccine Damage Payments Act in the light of major developments and growth in vaccine usage and, of course, huge gains in population health and ill-health protection as a result. But the small numbers of individuals and their families who sustain serious injury or adverse reactions to vaccines—now to the fore as a result of the highly successful Covid vaccination programme—need legislative protection and a scheme that is up to date, fit for purpose, properly resourced and based on compensation levels and criteria that fully reflect the needs of today’s victims.

I am sure the noble Lord, Lord Storey, would have made an equally strong case for the repeal of the NHS Redress Act, a slightly younger 16 year-old scheme for adverse health incidents, which is out of date and also not fit for purpose.

The noble and learned Lord, Lord Mackay, led an expert and informed debate in Grand Committee last December on the NHS clinical negligence scheme and its ever-escalating costs, which is reflected today in my noble friend Lord Hunt’s Amendment 268 and its call for a major review of the scheme, including consideration of the Law Reform (Personal Injuries) Act and repealing its Section 2(4).