Health and Care Bill

Baroness Walmsley Excerpts

Committee stage
Wednesday 9th February 2022 Lords Chamber

Moved by

[Baroness Walmsley]

295: After Clause 148, insert the following new Clause—
“Ambulance response times: local reporting
(1) The Secretary of State must, not later than 31 July 2022, make regulations which require ambulance trusts in England to publish the following information on the internet within two weeks of the end of each month—(a) category 1, 2, 3 and 4 ambulance response times for the trust area for the previous month broken down by—(i) integrated care system area, and(ii) postcode, and(b) for all incidents where the relevant response time was missed by a margin set out in the regulations, a detailed explanation of why that target was missed.(2) In this section—“ambulance trusts” means ambulance trusts whether they are NHS trusts or NHS foundation trusts;“category 1, 2, 3, and 4 ambulance response times” has the meaning given in the NHS England Ambulance Response Programme.(3) Regulations under this section may make such incidental or transitional provision as the Secretary of State considers appropriate.(4) Regulations under this section must be made by statutory instrument and are subject to annulment in pursuance of a resolution of either House of Parliament.”Member’s explanatory statement
This amendment would require ambulance services to provide more accessible and localised reports of ambulance response times.

[Baroness Walmsley (LD)]

My Lords, I hope the Government Chief Whip will send the memo round.

Last Tuesday, my noble friend Lady Barker introduced a Question for Short Debate about ambulance response times. In introducing the debate, she looked behind the distressing headlines about people with life-threatening illnesses waiting too long, sometimes fatally, for an ambulance. She outlined the underlying factors important in identifying the problems and solutions for our ambulance services.

The NHS has set out national targets for a seven-minute average response time for life-threatening incidents. However, the average has been rising and was over nine minutes in December 2021. Targets for less serious incidents have also been rising. This amendment would put in place just one of the potential solutions to the ambulance crisis, which my noble friends Lady Barker, Lady Brinton and Lord Scriven referred to in that debate. It would set up a system for ambulance trusts to collect data about ambulance response times by integrated care system and by postcode. They would also have to publish information about where response targets were missed. In any situation that requires corrective action, it is vital that we know where we are starting from, and transparent and detailed data collection and publication does exactly that.

During the debate, my noble friend Lord Scriven suggested that in order to understand why ambulance services are so hard-pressed, we need to look up the line to primary care services. He was, of course, correct: many urgent cases occur because patients have been unable to get a GP appointment, despite the fact that GPs tell us they are now carrying out more consultations than ever through triage telephone consultations.

The problem is caused by the shortage of GPs, particularly in some areas. We have been promised 5,000 more GPs but that has not been achieved. My noble friend also mentioned the lack of community mental health services, and in some cases the almost complete absence of child and adolescent mental health services that often lead to a mental health crisis resulting in the patient calling an ambulance.

Another major issue is caused by problems downstream. Paramedics have to wait outside hospitals to hand over their patients to A&E staff, meaning that they cannot go out to another case. It is incredibly frustrating and demoralising for them. Sometimes paramedics have to leave a serious case in the hands of a family member in order to go to an even more serious case elsewhere. It is well known why ambulances are piling up outside A&E: there are no free beds because the patients already inside cannot be transferred to a bed in the main hospital or discharged. The main hospital cannot discharge patients because of the lack of social care elsewhere, and so it rolls on. These delayed transfers of care are the result of serial underfunding of social care and poor workforce planning. The problems are both upstream and downstream, but we cannot solve all those with one amendment. However, I hope the Minister will accept that collecting and publishing data on a very detailed basis will at least help.

The detail is important. During the debate my noble friends referred to the fact that there is enormous regional variation in ambulance response times. My honourable friend Helen Morgan, MP for Shropshire North, collected a worrying set of data in her very rural area, where four ambulance hubs have recently been closed. Her constituents are rightly horrified about this. Ambulance services in Cornwall have also recently shown unacceptably long waiting times, even for category 1 cases where lives are at stake.

Collecting the data referred to in this amendment would certainly help to identify the specific issues in areas such as these so that action can be taken. It may be harder to serve very rural areas, but residents in those areas deserve as good a service as anyone else. Better data plus better workforce planning, which we are dealing with under another amendment, would ensure that the resources available are adequate to take account of geography and other factors. I beg to move.

[Baroness Merron (Lab)]

My Lords, I thank the noble Baroness, Lady Walmsley, for presenting this amendment. I too take the view that ambulance services play a significant role in our National Health Service, particularly in the redesign of care pathways to reduce pressure on hospitals and provide better care to patients. If that can be at the right time, in the right place, that produces the greatest benefits.

The amendment in the name of the noble Baroness, Lady Walmsley, sets out the case for a more rigorous and accessible reporting system for ambulance services on response times. As your Lordships’ House debated just last week, and as the Minister acknowledged, at present performance is below what is acceptable. I am pleased that under the amendment, the method for introducing regulations would be subject to proper review by Parliament. On the specifics, it is welcome that there is a requirement of the use of data already captured by ambulance control and dispatch systems, specifically requiring analysis by integrated care system area and by postcode. This would provide a valuable source of further evidence about inequalities in care provisions which would mean that it was possible to identify and address them.

On the proposed requirement for the recording of explanations for all incidents where the relevant response time target was missed, it would of course be important to ensure that any extra recording of data in an emergency care environment did not add to existing pressures. I look forward to the Minister’s response.

[Baroness Penn (Con)]

I thank the noble Baroness, Lady Walmsley, for bringing this short but important debate before the Committee.

The Government fully recognise the importance of ambulance response times and of patients receiving the help they need when they need it. Like other emergency care services in the NHS during the pandemic, ambulance trusts have come under significant pressure, answering almost a million 999 calls in December alone —an increase of 22% on the year before. That is why we have put significant support in place to help ambulance trusts at this time. I will not go into the detail, which we covered in the debate last week. Instead, I will respond to the specifics of the amendment.

It is the Government’s view that it is right that reporting happens at the level of ambulance trust region. Trusts are commissioned to meet response time targets at a regional level, not at a more granular part of their operating area such as postcode or integrated care board area. It is inevitable that there will be variations in response times within regional footprints from month to month. However, the existing ambulance response time standards already include a mechanism to performance-manage significant variation or long waits for ambulances. All ambulance response time categories include a 90th centile response time standard to measure the “tail” of ambulance response times. This means that trusts are measured on the response to every call they receive and cannot favour some parts of their region over others to game response time targets. Reporting response times down to a postcode level would require a massive expansion to existing reporting that would not be reasonably deliverable.

I also reassure noble Lords that the service transparently provides clinical outcomes data. These indicators were introduced in 2011 and provide detailed information on clinical outcomes for cardiac arrest, heart attack, sepsis and stroke patients. While the Government acknowledge the challenges to ambulance response times and are working hard to address them, for the reasons I set out, I hope the noble Baroness feels able to withdraw her amendment.

[Baroness Walmsley (LD)]

I thank the noble Baroness, Lady Merron, and the Minister for their responses to this proposition. I still think that somewhat more granular collection of data would be really helpful, because a region is a very big area and there are all kinds of factors that affect how quickly ambulances get to people who need them. It is particularly important in the case of category 1 incidents, where life is at stake and interventions can have the most amazing results, if only they get to the patient within 40 minutes, say, in the case of stroke.

So, it is vital that we get that granular information. I accept what the Minister said about the additional money that has been provided, but as I and my noble friends have said, the problems are both sides of the ambulance: downstream and upstream. It is a systemic problem, and it needs to be looked at as a whole. Having said all that, I beg leave to withdraw the amendment.

Amendment 295 withdrawn.

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[Lord Kakkar (CB)]

My Lords, I support the intervention by my noble friend Lord Patel. In so doing, I declare my own interest as a registered medical practitioner. The issue is a complicated one. There is no doubt that the work of the HSIB is critical to ensuring that we can continue to drive patient safety at the heart of clinical practice.

The safe space is essential for a number of reasons that have been clearly recognised and, indeed, described in this debate. One of the most important features attending the safe space is a recognition of the fact that modern clinical practice is very complicated. It is a question not only of medical practitioners but of a broader team of healthcare practitioners who come together to deliver care, all of them recognising the opportunity for them to contribute to ensuring that lessons are learned where intervention, clinical practice and, indeed, broader health service intervention have failed individual patients in the system.

It is also complicated because there are other bodies that play an important role, such as the ombudsman and coroners, but I believe an infringement of that safe space has the potential to truly undermine the capacity for all involved in the delivery of healthcare to learn from individual experiences, and from system failures more broadly, to ensure that mistakes and inadequacies in the delivery of clinical care and practice are not repeated and that we can continue to improve and deliver higher-quality and safer care for all patients.

The question is how these tensions and inconsistencies are addressed in the Bill. It is important for Her Majesty’s Government to be able to reassure people that the safe space is not undermined; that all healthcare professionals are able to contribute in an open, transparent and confident way to investigations that are established; and that in so doing they can feel confident not only with regard to their own position—of course, their first duty must be to those who for whom they have the privilege to care—but that they can ensure that all others, as part of the team delivering services, are able to come together to contribute to those investigations.

Certainly, it would be wrong to undermine the position of the ombudsman—that would be detrimental. A loss of confidence in the ombudsman service would be a detrimental consequence of this particular Bill. But we have also heard that the coroners’ process is increasingly adversarial, and that undermines confidence. It would undermine confidence in the work of the investigative body if that anomaly were to continue as part of the passage of the Bill.

Ultimately, the focus must be on the interests of patients, and, as currently drafted, the Bill fails to achieve that critical interest. I hope that Her Majesty’s Government will consider amendments in this group and determine how these tensions and inconsistencies can be resolved, ultimately for a purpose that I think all Members of your Lordships’ House agree on: namely, ensuring that we can continue to improve the delivery of our services and health system to ensure not only the highest quality but the greatest safety for all patients attending our healthcare institutions.

[Baroness Walmsley (LD)]

My Lords, from these Benches we welcome the fact that the HSSIB is to be put on a mandatory footing. The intention of the legislation is to create a safe space in which to shine a light on systemic failures in the NHS, and to learn lessons rather than apportioning blame.

The key to the success of this work is the independence of the body and the confidence of both patients and the workforce, so that those providing evidence can give a full and candid account of what happened. Whistleblowers in particular must be protected because there is substantial evidence that, in the past, they have been penalised for being public spirited—that must not continue. My noble friend Lady Kramer’s Amendment 309A would address that situation, and I support her.

However, there are some concerns. We support Amendment 308 because pre-appointment scrutiny is an element of the most significant public appointments. The chair and chief investigator of the HSSIB are posts that protect and safeguard the public’s rights and are vital for the reputation and credibility of the organisation. So I hope that the Minister will accept the amendment.

We support Amendment 308A because there is widespread recognition that the ability to do financial planning over a long funding cycle is valuable for all organisations. The Institute for Government has confirmed that multiyear allocations provide certainty and stability, which is what we want for the HSSIB. Sufficient resources are essential for it to carry out its job; however, if the Secretary of State were to direct the organisation to carry out an additional investigation, it would be only right that appropriate resources were allocated.

Amendment 319, in the name of the noble Baroness, Lady Young of Old Scone, would limit the Secretary of State’s power to direct the organisation to carry out a specified inquiry and report by a particular date. I agree that this could compromise the independence of the organisation, so I look forward to hearing from the Minister why the Government feel that this power is justified.

Amendment 310A, in the name of the noble Baroness, Lady Young, and several other amendments in this group would restrict the powers of the Secretary of State to allow information to be disclosed and would restrict other people, such as coroners, in obtaining information given in confidence. We support these amendments: coroners should not expect the HSSIB to do their work at the expense of risking its own work.

A case has been made by the Parliamentary and Health Service Ombudsman for it to be allowed to have information. As my noble friend Lady Parminter has pointed out, the PHSO does not apportion blame; instead, it identifies systemic failures. It is concerned with systems, not individuals. Amendment 311 from the noble Baroness, Lady Neuberger, would provide a complete iron curtain on the disclosure by PHSO of any information originating from HSSIB, unless there is a High Court ruling. The PHSO has a constitutional duty to achieve justice for patients failed by the NHS.

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[Baroness Walmsley (LD)]

My Lords, I added my name to Amendments 229 and 230 from the noble Lord, Lord Patel, to limit the Secretary of State’s powers in Part 3 of the Bill to transfer or delegate functions. Part 3 as it stands would give the Secretary of State a wide range of powers to abolish or modify the functions of a body without primary legislation. That goes to the heart of the matter. I share the concerns of the Constitution Committee. In the absence of proper parliamentary scrutiny, it is necessary to narrow the scope of these powers. To this end, the two amendments would remove from scope the power to abolish a function of the body, the power to change the purpose or objective of a body and the power to change the conditions under which the body works.

The amendments go to the heart of what the Government are trying to do in Part 3. We will come to the wholesale removal of Part 3 in the next group but, for now, will the Minister explain why these powers are needed, why they need to be so broad in scope and why the Government are so frightened of Parliament that they do not want to give Peers and MPs an opportunity to make a judgment on their justification? It would be helpful if the Minister could say how it is anticipated these powers will be used. Give us some examples, please.

I also support Amendment 318 in the name of the noble Lord, Lord Warner. The Minister may recall that at Second Reading and at the beginning of Committee stage, five exhausting weeks ago, I expressed similar concerns about the ability of the NHS to cope with this wholesale reorganisation at this time. The NHS has been in crisis for the last two years and the noble Lord, Lord Warner, has laid out clearly the extent of the backlog—as far as any of us know about it. There is a big difference between 30% and 80%. The Secretary of State himself makes it clear that he knows that the backlog will go up before it comes down again. We have what we call “the dark backlog”; we do not know how many people are going to come forward.

There is also the issue of the pre-emption of Parliament, as the noble Lord, Lord Warner, suggested. A lot of these bodies have been set up and we do not know whether Treasury rules have been broken by the expenditure of money in their setting up. Perhaps questions will be asked about that. I hope that the Minister will bear in mind what the noble Lord, Lord Warner, said in conclusion. The amendment is not intended to destroy the Bill, but to delay it to a point when the NHS can cope with it, without damage to patients.

[Baroness Merron (Lab)]

My Lords, this is a mixed group of amendments and it has been extremely helpful to hear from noble Lords about the various aspects. I thank the noble Lord, Lord Clement-Jones, for introducing the group.

Amendment 227 is about the powers to merge NHS Digital and NHSX into the new transformation directorate of NHS England. It would also allow the health and social care information centre to be swept up in the changes. This amounts to the abolition of the health and social care information centre and I look forward to hearing from the Minister about the implications for the integrity of patient data and what safeguards might be applied.

I draw the Minister’s attention to the article in the Health Service Journal on 8 February entitled “Revealed: How NHSE’s New Transformation Directorate Will Operate”. It sets out how this new transformation directorate will function and how all the appointments have already been made despite Parliament having not yet completed its deliberations. It would be helpful to hear from the Minister on this point.

Amendment 228 modifies the power to transfer functions. It has already been argued that this power function should not be given so lightly. The amendment emphasises that point.

In the previous debate, we heard some excellent contributions about patient data and the need for safeguards but also about the need for public confidence in the systems, process and governance. It is far from clear that the changes to allow the Secretary of State to take powers in this complex and contested territory are at all wise.

I thank the noble Lord, Lord Patel, for Amendments 229 and 230, which seek to limit the scope of the powers of the Secretary of State. Since we continue to oppose these additional powers of the Secretary of State altogether, we certainly acknowledge the need to limit that scope, as defined within the amendments.

Amendment 318 is in the name of the noble Lord, Lord Warner, who has set out the scale and the reality of the challenge of waiting lists and how that affects the wisdom or otherwise of the Bill and its timing. I emphasise that we are now talking about reducing numbers on a waiting list to below 1 million, but that is not only due to Covid. The NHS went into the pandemic crisis of waiting lists with a pre-existing crisis of its own. It is important that the Minister addresses the fact that this has been going on for some time. Just how long it will really take for the recent recovery plan to reduce the length of the waiting lists for hospital treatment below 1 million is far from clear. As we have heard, this amendment rightly highlights the points about the pre-emption of Parliament and the fact, which we have raised on several occasions, in the Chamber and in meetings, that appointments have already been made ahead of Parliament coming to a conclusion. That remains a matter of concern, as the Minister is well aware.

The remaining amendments in this miscellaneous group are those from the Government, which are consequential on obligations and relations with the devolved Administrations. We were advised by the Minister that these would be forthcoming, somewhat late on in consideration of the Bill. We thank the Minister for advising us, but we cannot support these amendments as our position relates to the original clauses to which they relate, as they are not ones with which we find favour. I hope that the Minister will reflect and respond on the points raised in this debate.

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[Baroness Walmsley (LD)]

My Lords, the 2012 Act removed certain powers from the Secretary of State, and Jeremy Hunt, the former and longest-serving Secretary of State, says that he never felt the lack of them. He had all the levers he needed to carry out his role of ensuring that the mandate and the five-year forward view were carried out and responsible to Parliament. However, Part 3 of the Bill puts a whole lot back—and more. These powers appear all over the Bill but particularly in Part 3, and we have spent the last five weeks pushing back against most of them.

There is a real danger that, if the Secretary of State were to use these powers, it could threaten the stability, proper management and operational independence of key parts of the NHS. The Constitution Committee raised serious concerns about the range of Secretary of State powers and concluded that the new powers

“could alter the balance between the Government’s constitutional responsibility for the provision of health care and providers’ ability to … respond effectively to local needs.”

I make no apology for the fact that I have quoted this section of the committee’s report before. It applies to so much of the “We know best” power grab that it bears repeating.

If the Minister wishes to abolish, change or transfer functions between arm’s-length bodies to this extent, it should be scrutinised by Parliament. Should it be necessary and appropriate in the future to make these changes, the Secretary of State should find another piece of primary legislation in which to do it. But to take these overreaching powers with no indication of how they will be used—or why—is going too far.

[Lord Kamall (Con)]

I thank both noble Baronesses for bringing this debate before the Committee. The proposal is to remove Part 3 of the Bill entirely. I understand that the noble Baronesses are principally concerned to prevent Health Education England, NHS Digital, the Health Research Authority and the Human Fertilisation and Embryology Authority from being abolished as a consequence of this power.

I clearly understand the concerns in this debate, but I stress that this is not a power to take away services currently being performed by arm’s-length bodies. The power is to enable the transfer of functions between arm’s-length bodies, and the delegation of the Secretary of State’s functions to arm’s-length bodies, to improve consistency and coherence in the arm’s-length body landscape. There is no free-standing power simply to abolish an arm’s-length body contained in this clause, and it is not the Government’s primary intention to use this power to abolish bodies. The only circumstances where a body may be abolished under this power is where it is, as the result of transfers of its functions to other bodies, effectively rendered redundant. To not have the power to abolish such bodies in these circumstances would effectively leave shell arm’s-length bodies with no significant functions, which would weaken the efficiencies we are seeking to create.

I reassure the noble Baronesses that all proposals will be considered through a full and extensive engagement and consultation process. Regulations providing for transfers under this power will be subject to the affirmative procedure. This ensures that Parliament can scrutinise the use of this power, including any necessary amendments made to primary legislation. This would follow on from a consultation with the relevant parties.

The Secretary of State must, at a minimum, consult the arm’s-length bodies and devolved Governments to which the transfer relates. Additional stakeholders whom it may be appropriate to consult will vary depending on the nature of the transfer of functions contemplated. The Bill therefore provides that such other persons as the Secretary of State considers appropriate should also be consulted, which is in line with the department’s and the Government’s commitment to engaging with stakeholders.

We have set out the principles of engagement and consultation with the devolved Governments through a memorandum of understanding, which has been negotiated and is close to agreement. This will sit along- side the legislation and provide the opportunity for the devolved Governments to be involved at a formative stage of policy development. In addition, the principle of Amendment 231C, which we have just discussed, is a requirement for the relevant devolved Governments’ consent to be given to transfer any functions that are within their legislative competence or that modify functions exercised by the devolved Government.

Although the majority of the arm’s-length bodies and functions within the scope of the power relate to reserved matters or apply in England only, certain bodies have functions that meet the criteria laid out above. We all know that the arm’s-length body landscape is complex, and this power will ensure that there is a transparent process throughout, including formal consultation, so that any relevant arm’s-length bodies and devolved Governments, and Parliament, will have the opportunity to scrutinise any plans for its use. I hope that that has given some assurance, and for these reasons I ask the noble Baroness to withdraw her opposition to the clause standing part.