Sustainability and Transformation Plans

Baroness Walmsley Excerpts

Thursday 26th January 2017 Lords Chamber

[Lord O'Shaughnessy]

I thank the noble Lord for that question. STPs are voluntary groupings of all the relevant people—whether that is at the acute level, in primary care or local authorities—coming together under leadership to create the changes. Those then turn into operational plans that are delivered by individual hospitals, primary care settings and so on.

[Baroness Walmsley (LD)]

My Lords, these plans were supposed to have got under way last October. Have any of them actually started transforming services in their area, or are they still too busy figuring out how to balance the books?

[Lord O'Shaughnessy]

All 44 sustainability and transformation plans have now been published and are being scrutinised by NHS England, which is helping to ensure that they are as successful as possible. Operational plans will then come forward from April 2017 onwards.

Health Service Medical Supplies (Costs) Bill

Baroness Walmsley Excerpts

Committee: 2nd sitting (Hansard): House of Lords
Wednesday 25th January 2017 Grand Committee

[Lord Warner]

In response to the noble Baroness’s point, I would not claim to have actually considered the detail of what level of pricing we will use. My point in this amendment is to try to establish the principle of a trigger mechanism, and I am happy to be advised on ways of improving it.

[Baroness Walmsley (LD)]

My Lords, the noble Lord, Lord Warner, is right that we need to have a trigger mechanism. This is gold-plating, and not very effective gold-plating. As the noble Baroness, Lady Finlay, just said, it will produce an absolute mass of information. The question is how to find, among that mass of information, situations where there is malpractice, abuse or unwarranted price rises. It is the same sort of argument as we had when the police wanted to collect everybody’s internet information. Really, it is like looking for a needle in a haystack. It is much better to have it targeted, where there is a reason to believe that there is something going on.

How will the department identify from this mass of information those situations that it needs to investigate further? Will it apply some sort of algorithm to the information at any point along the production or distribution line when there is an increase of more than a certain percentage or a certain percentage related to the average—or what? How is it going to be done? These companies have quite enough to tackle with Brexit coming along the track and do not need a further burden such as this.

[Lord Young of Norwood Green (Lab)]

I am not an expert in this area, but I am puzzled. If it is that difficult to identify, how come the Times managed it in its expose? It did not seem very difficult or complex. The Times found drugs that had come out of patent and were available on a generic basis and for which the company that bought the patent increased the cost by staggering amounts. You do not have to be Sherlock Holmes to alight upon that. I do not know which way to go on this debate. My noble friend worries about fishing expeditions, and he is right, but I am even more worried about the NHS being ripped off for inordinate amounts of money by people whose corporate responsibility polices omit the word “ethics”. I asked once before why none of the current audit processes inside the health service exposed this until the Times brought it to public attention. There may be a mass of information, but I would have thought that these things could quite easily be identified. I may be wrong because, as I said, I am not an expert in this very complex area, but those points need to be answered. The problem was identified. We have this Bill because we know that the current system is not working. Even though people in the various systems in the NHS were reporting their concerns, no action was taken for quite a long time. It certainly justifies the legislation. The Delegated Powers Committee expressed its concerns about whether the legislation is right, and I do not profess to be qualified to rule on that, but my major concern is about the ability of some companies to rip off the NHS.

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Moved by

[Baroness Walmsley]

49: Clause 6, page 7, leave out line 9

[Baroness Walmsley]

My Lords, the next two groups of amendments relate to the concerns expressed by the Delegated Powers and Regulatory Reform Committee in its 12th report of the 2016-17 Session. Amendments 49 and 51 refer to Clause 6, which inserts a series of new sections into the NHS Act 2006 authorising the Secretary of State to disclose information provided by suppliers of health service products. New Section 264B(1) lists the bodies to which information may be disclosed. It also allows the Secretary of State to prescribe in regulations further persons to whom information may be disclosed. We have already heard from the noble Lord, Lord Hunt, about Parliament’s inability to have much effect on that.

There are two powers: a specific power to prescribe bodies which appear to represent manufacturers, distributers and suppliers of health service products and a general power to prescribe any other person. In his Amendment 50 the noble Lord, Lord Hunt of Kings Heath, has attempted to place in the Bill the specific organisations that represent UK producers. This is reasonable enough, although I know that Ministers hate having lists in Bills. However, it is the general power that the Delegated Powers Committee objects to. As the noble Lord, Lord Lansley, said a few minutes ago when talking about Amendment 32, disclosure under new Section 264B may involve confidential and commercially sensitive information, even though the purposes for the disclosure are limited by subsections (2) and (3). The committee felt the general power to be inappropriate. No explanation of the need for this power was provided to the committee in the memorandum.

Amendment 49 therefore seeks to delete the general power in subsection (1)(l) of new Section 264B to enable the Minister to justify why the Secretary of State would need such a broad and wide-ranging power. Amendment 51 is consequential. Can the Minister say why it is not feasible to specify in the Bill the further bodies to which information may be disclosed, or even the groups of people or organisations? After all, in subsection (1)(k)—in lines 7 and 8—the Government specify representative bodies of producers. Why not specify other groups at the end of the subsection? This appears to me to represent a power too far, and the committee feels the same. What is this power for and how is it to be used? I beg to move.

[Lord Hunt of Kings Heath]

My Lords, I have a little list, which is a bit bigger than the Minister’s list.

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[Lord O'Shaughnessy]

I thank the noble Baroness, Lady Walmsley, and the noble Lord, Lord Hunt, for these amendments. As both have set out, it is clear that they have been tabled in response to the report of the Delegated Powers and Regulatory Reform Committee. I am very grateful to the committee for its consideration of the Bill and for providing its report. The committee has concluded that the general power in new Section 264B(1)(l) to describe in regulations any other persons to whom information may be supplied is too wide and not justified at present. I assure noble Lords that I am considering these comments very carefully, and the views expressed by the noble Baroness, Lady Walmsley, and the noble Lord, Lord Hunt, have been helpful in explaining the issues.

The amendment in the name of the noble Lord, Lord Hunt, would put in the Bill the industry representative bodies to which the Secretary of State can disclose information. The Government would prefer to prescribe these bodies in regulations and have done so in the illustrative regulations—albeit the current version includes only a limited number of such bodies and they are given purely as examples rather than as an attempt to be exhaustive. By prescribing a large number of representative bodies in primary legislation we would, as I think the noble Lord, Lord Hunt, admits, lose the flexibility to be able to add new representative bodies, if needed, in regulations.

In its report, the DPRRC was satisfied with the way the Bill was drafted in this area, and it considered the power to prescribe bodies that appear to the Secretary of State to represent manufacturers, distributers or suppliers to be a specific power. The committee thought, however, that the general power to prescribe any other person was too general and suggested that the Government limit the kinds of bodies to which disclosure may be made, as is done with the power to prescribe representative bodies. Like the DPRRC, I believe that the power to prescribe representative bodies is sufficiently specific, while still allowing some flexibility. However, we are giving serious consideration to the general power.

As noble Lords are aware, there is a balance to be struck between ensuring clarity in primary legislation and, at the same time, giving sufficient flexibility to enable arrangements to change in response to external changes to ensure that, in the future, we have flexibility to work with the right stakeholders without requiring primary legislation to do so. I once again reassure the Committee that I am considering these recommendations very carefully and will respond to the DPRRC shortly. I expect, subject to the appropriate procedures, to bring forward proposals on Report. On that basis, I ask the noble Baroness to withdraw her amendment.

[Baroness Walmsley]

My Lords, I am most grateful to the Minister, and I look forward to, I hope, being copied in to his reply to the committee. I certainly understand what he said about the representative bodies being in regulations and that it is just an illustrative list that we have before us. If the list is in regulations, it is much easier to add a new representative body. It is reasonable to assume that, some day, perhaps one or more new bodies may be set up. However, the general power is another animal altogether. I look forward to hearing from the Minister after he has considered the matter. I beg leave to withdraw the amendment.

Amendment 49 withdrawn.

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Moved by

[Baroness Walmsley]

58: Clause 7, page 9, line 18, at end insert—
“(5A) Any penalty provided for under subsection (5) may be—(a) a single penalty not exceeding £100,000, or(b) a daily penalty not exceeding £10,000 for every day on which the contravention occurs.(5B) Welsh Ministers may by regulations increase (or further increase) either of the sums mentioned in subsection (5A).”

[Baroness Walmsley]

My Lords, I will speak to Amendment 58 and to the other amendments in the group. This group also reflects concerns expressed by the DPRRC in relation to Clause 7, which deals with information to Welsh Ministers. The substantive amendments are 58, 61 and 66; the others in the group are consequential.

New Section 201A of the NHS Wales Act 2006 will enable Welsh Ministers to require information from producers of health service products to be used in Wales. Subsection (5) of the new section allows regulations to be made for the payment of a penalty if a person contravenes these regulations. Noble Lords may have noticed that there are no equivalent provisions in Clause 6, which inserts new sections into the NHS Act 2006. There is no need, because the original Act already enables regulations to provide for the payment of penalties. However, if we look back at these provisions in the NHS Act 2006, we notice that there are some differences between the penalty sections there and those in the Bill. Specifically, under the NHS Act 2006, there is a limit on the penalty that can be imposed—I think that that is what we have been given in the illustrative regulations. Secondly, any increase in the penalty must be done by affirmative order. In Wales, we have no limit and no affirmative order.

Amendment 58 puts limits on the penalties in this Bill in line with those in the NHS Act 2006, and Amendment 66 changes the relevant bit of the NHS (Wales) Act 2006 so that regulations under new subsection 5B in Amendment 58 would have to be made by the affirmative order procedure. This provides us with consistency, because the provisions in the two pieces of legislation would be similar. I am not wedded to the actual penalty limits that I have laid down, but they are the same as those specified in Section 265 of the NHS Act 2006, so they would be consistent. However, as in this case they would apply to a narrower range of people, it may be appropriate to have a different limit. The main point is that there should be a limit.

Amendment 61 deals with a different issue but reflects what I was trying to do in Clause 6 with my Amendment 49 in the last group. It relates to new Section 201B of the NHS (Wales) Act 2006 on disclosure of information. As with Clause 6, the bodies to whom information can be disclosed are not specified in the Bill. Instead, these can be prescribed by Welsh Ministers. Since there has been no information as to why it is not feasible to specify these further bodies to whom confidential, commercially sensitive information can be disclosed, can the Minister explain why not? Surely it should be possible at least to limit the kinds of bodies to whom disclosure may be made. It seems to me to be a flexibility too far and beyond what is really necessary to ensure the purposes of the Bill. The Delegated Powers Committee regards it as “inappropriate”. Can the Minister convince us of the need for this very broad power?

[Lord O'Shaughnessy]

My Lords, I am grateful to the noble Baroness, Lady Walmsley, for her sharp eyes and even sharper suggestions with regard to these amendments, which are again in response to the report of the Delegated Powers and Regulatory Reform Committee. The committee concluded that the power in Clause 7, which enables Welsh Ministers to make regulations that make provision for payment of a penalty if a provider of pharmaceutical or primary medical services contravenes regulations requiring them to record and provide information about health service products that are required for the health service in Wales, should be consistent with similar provisions in the 2006 Act.

In particular, the committee recommends that the maximum penalty that may be imposed under what would be Section 201 of the NHS (Wales) Act 2006 should be set out in the Bill and that there should be a power to increase this maximum by regulations made subject to the affirmative procedure, as the noble Baroness set out. I assure noble Lords that, as with the previous set of amendments, I am considering these comments very carefully; the views expressed by the noble Baroness have been very helpful in highlighting the issue, for which I am grateful.

Noble Lords will understand that these provisions relate to the powers of the Welsh Ministers, and it is therefore necessary for me to seek the views of Ministers in Wales on this matter. However, I acknowledge the concern that, as drafted, the Bill does not impose a limit on the penalty which may be imposed by Welsh Ministers. Noble Lords will appreciate that, in the case of penalties, the powers in relation to Wales are different from those in relation to the UK as a whole, in so far as Welsh Ministers will be able to impose penalties only on providers of pharmaceutical and primary medical services. In contrast, the 2006 Act allows for penalties to be imposed on manufacturers and distributers, and the size of any penalty should reflect this. It would therefore be disproportionate if the level of maximum fine allowed for in the 2006 Act were to be replicated in the NHS (Wales) Act. I accept, however, that the framework governing the maximum size of any penalty and increasing that maximum should be the same.

Turning to the amendment which would remove the provisions allowing Welsh Ministers to disclose information to persons prescribed in regulations, this is a matter which I understand Welsh Ministers are content to reconsider in light of the DPRRC’s recommendations. I reassure the Committee that I accept the recommendations of the DPRRC regarding limits being placed on the penalties that can be imposed by Welsh Ministers and the need to specify in the Bill the further bodies to which Welsh Ministers may disclose information. I will respond to the DPRRC in due course with proposals once I have discussed them with Ministers in Wales. I intend, subject to the appropriate procedures, to bring forward proposals on Report.

As these will be my final remarks in Committee, I thank all noble Lords for a constructive and informative debate. It has been important to be able to draw on the wisdom of so many former Ministers in making sure that the Bill is properly scrutinised and best equipped to carry out the purposes we have set for it. I have committed to consider many of the issues raised before Report on 7 February, not that far away, and I will be holding as many meetings as I can in the short time available to aid that process. My officials and I are available to noble Lords should they have any other questions or concerns about the Bill, and I look forward to bringing forward any necessary proposals on Report. To conclude on this group, I ask the noble Baroness to withdraw her amendment.

[Baroness Walmsley]

My Lords, I am most grateful to the Minister for his assurance that these matters will be considered before Report. I look forward to hearing the result of his considerations. I am very happy to beg leave to withdraw the amendment.

Amendment 58 withdrawn.

NHS: Debt

Baroness Walmsley Excerpts

Monday 23rd January 2017 Lords Chamber

[Lord O'Shaughnessy]

It is certainly the case that one part of the system impacts on the other parts, whether that is primary, secondary or social care. There is no denying that and I do not seek to do so. On the picture the noble Lord paints of worsening deficits, in fact, the picture in 2016-17 is considerably better than it was in 2015-16. It has been helped not least by the sustainability and transformation plans. We are putting £1.8 billion into trusts, 95% of which have accepted control totals to get a hold of that financial sustainability. Extra funding is going in. There is a big increase this year for the NHS budget, which will help, as will the extra money for social care; but of course the challenges are there.

[Baroness Walmsley (LD)]

My Lords, is the Minister aware that 96% of hospitals say that they employ fewer registered nurses than they themselves have planned for safe staffing of the wards, and some of them employ more healthcare assistants than they had planned for? What does the Minister say to those who suspect that hospitals, in an attempt to deal with their deficits, are employing too few registered nurses for safe staffing of the wards and/or putting less qualified people on the wards?

[Lord O'Shaughnessy]

Clearly, trusts have a responsibility to make sure that they have the staffing right. There are more nursing places available and more coming through training, as we talked about in the House the other day. There has been a general uplift in staffing numbers because of the safety requirements post Francis, especially as we seek to leave the European Union, which will mean that that source of nurses and staff in general will change. We have to train more of our own staff, which is why we are increasing the number of doctor and nurse training places.

Health Service Medical Supplies (Costs) Bill

Baroness Walmsley Excerpts

Committee: 1st sitting (Hansard): House of Lords
Monday 23rd January 2017 Grand Committee

[Lord Warner (CB)]

My Lords, Amendment 1 is in my name and those of the noble Lord, Lord Hunt of Kings Heath, and the noble Baroness, Lady Walmsley. First, I welcome the Minister to his first health Bill as a Minister. I am sure that the noble Lord, Lord Hunt, will have a great deal of sympathy with his position of having copped the Committee stage of a Bill in which he had had no previous involvement, because I did exactly the same to him when I left office and left him with the Mental Health Bill—having made, of course, an extremely brilliant speech at Second Reading to introduce the Bill.

I sympathise with the Minister’s position, but that does not mean that we will not probe forcefully on a Bill that is definitely a curate’s egg which does not seem to have left the Commons in as improved a state as it might have done. I am afraid that earlier this morning I separated Amendment 1 from Amendments 2 and 4. I hope that that has not caused too much trouble. I wanted to focus in this amendment on life sciences and the PPRS scheme and on their importance.

Amendment 1 is very straightforward. At the start, the Bill lays a clear duty on the Secretary of State, in discharging the Bill’s provisions, to have regard to supporting a flourishing UK life sciences sector and ensuring that patients have speedy access to NICE-approved new medicines and treatments—a subject to which I think we will come back on a number of occasions. As I made clear at Second Reading, the Department of Health Minister with responsibility for the pharmaceutical industry does have to balance a number of factors, and not just get the cheapest drugs for the NHS. This is what I had to do when I had those responsibilities, and the position is the same today, as I understand it. These factors involve the safety and value for NHS money of medicines, but they also involve helping the UK life sciences industry to grow and flourish and securing speedy access for patients to new drugs that have been approved by NICE.

It is clear that the Government have not done a spectacularly good job with their consultation on the Bill in showing that they understand this balancing act. They certainly have not convinced the pharmaceutical industry—hence this amendment at the start of the Bill. Suspicions have understandably been raised by the inclusion of elements in the Bill that were not in the 2015 consultation on the Bill, including enforcement powers for future voluntary pricing schemes that operate outside the statutory scheme. There is also the issue that the range of products covered by the Bill seems to have been extended, along with the disproportionately bureaucratic information requirements that have now found their way into the Bill.

We will come to many of these issues later, but I will focus here on safeguarding life sciences and the PPRS. Why is this so important? I will start with the life sciences issue. The pharmaceutical industry invests more than £4 billion a year in R&D—more than any other sector. It employs 62,000 people, with a geographical spread that is well outside London and the south-east. Pharmaceutical manufacturing employees have the highest gross value added of any high technology industry, at more than £330,000 per employee. One in four of the world’s top prescription medicines was discovered and developed in the UK. It is a very important and powerful industry for this country.

All this will be put at serious risk by Brexit, as the Prime Minister seems to recognise in the new industrial strategy that she announced today. We know the UK will lose the EMEA through Brexit, but Brexit also poses many other risks to the UK life sciences industry, which could lose market access for its products and see a flight of researchers and research. At such a time the last thing the sector needs is a piece of ill-considered legislation imposing unnecessary regulatory burdens—again, something the Prime Minister said in her industrial strategy that she wants to reduce.

As I made clear at Second Reading, I am not saying that the Government should not act to prevent the NHS being blatantly ripped off under the statutory scheme when a branded good comes off patent, as happened with Flynn Pharma and a Pfizer anti-epilepsy drug. The ABPI has never challenged action in cases of this kind. However, the broad wording of the Bill goes well beyond closing this loophole. It gives the Government the power in the statutory scheme to replace a list-price discount system with one in which a company repays the Government a percentage of net sales, with as yet no clear indication of what this level will be. The industry’s concern is that this will create a precedent that could be easily applied to the voluntary PPRS scheme. Ministerial assurances that this will not happen are simply not the same as legislative safeguards. My reading of the Bill is the same as the ABPI’s, namely that this legal precedent could enable a future Government to unilaterally apply the same approach to the voluntary scheme when a PPRS period ends. This would end a negotiated way of setting prices and encouraging research and innovation that has worked well for industry and successive Governments for more than 50 years.

The second leg of Amendment 1 covers the issue of speedy patient access to new drugs. We will come to this matter later on other amendments so I will say little now, except to remind the Committee that we already have a poor record on the take-up of new approved medicines. For every 100 European patients who can access new medicines in the first year they are available, just 15 UK patients have the same access. Even when NICE has approved drugs and treatments, NHS take-up still lags behind. The first page of Friday’s Times showed the sector’s concerns, with one-fifth of new drugs being rationed and drug companies now openly saying they will no longer launch new drugs early in the UK. Whatever we do with other parts of this Bill when we come to them, I urge the Government at this time of great uncertainty for UK life sciences to put at the beginning of this Bill a statement of intent and reassurance of the kind embodied in Amendment 1. I beg to move.

[Baroness Walmsley (LD)]

My Lords, I support this amendment and compliment the noble Lord, Lord Warner, on his comprehensive introduction of it. I have no intention of repeating everything he said. However, I have a few points. I, of course, support the Government’s intention to try to make sure that the health service is not ripped off, but point out that a very large fine has just been imposed on Pfizer by the competition law regulations in relation to the case mentioned by the noble Lord, Lord Warner—so even without this Bill, that is working and we must bear that in mind.

What I am particularly concerned about is the potential effect on the life sciences sector, particularly—as the noble Lord, Lord Warner, said—in the light of Brexit. There are dangers to our markets and to our researchers. Our research is going elsewhere and researchers from other EU countries coming to us are all in danger because of the Prime Minister’s determination to take us out of the single market and the customs union, which I do not believe is what the public voted for.

The particular issue that concerns me is that although we were told in some of the meetings we had that there had been consultation and there will be more consultation before elements of the Bill are implemented, parts of the industry tell us that they are very concerned that they were not consulted. They do not feel that the level of consultation before the Bill is implemented is anything like good enough. We have to support our life sciences industry. We are very good at life sciences. It is one of the things that we can lead—and have led—the world on, but we must make sure that it is not in danger.

The other point is on access to treatments—not just drugs but other treatments. I am told by GPs that rationing is already in place, either by these referral management companies—private companies—that are being placed between the GP and his or her recommendation and the consultant, or by the consultants having pressure put on them to refuse consultation over certain patients referred to them by GPs. We already have rationing and we need to make quite sure that we are not affecting our pharmaceutical industry. We must ensure that our industries involved in research, medical implements, treatments, machines and devices and all those things that we are so good at inventing are not damaged by the Bill. It is really important that we have a statement of intent in the Bill. It will place on the Government the responsibility to make sure that they consider this terribly important sector. I have not had a chance to read the industrial strategy yet, but I would be surprised if the money follows the intent. I do not think that we will be able to look to that for any comfort, so we need this amendment.

[Lord Young of Norwood Green (Lab)]

My Lords, I hesitate before speaking about this amendment because I do not profess any particular knowledge of this area. I have not participated before on the Bill because I have been ensconced in dealing with the delights of HS2, but I have a couple of points to make. I am certainly sympathetic to the amendment, but something the noble Baroness, Lady Walmsley, said worried me. She said that even without the Bill, action is being taken. That does not mean that we do not need the Bill.

My first point is that it took quite a while for this to be exposed. It took the campaign from the Times to bring this to the forefront. Surely one of the questions we ought to be asking is why this was not exposed through the audit processes of the NHS in the first place. These were not small increases: they were staggering. One epilepsy drug that started off for a few pounds went up to something like £67. They were staggering increases—so that is one question for the Minister.

There are clearly differences of opinion about how effective the Bill is at getting the balance right, and that will be tricky. I can understand that listening to the arguments today. Nobody wants to stop the innovative, essential approach of successful British drug companies. That is on one side. But on the other, we have to ensure that the health service and the cost of drugs are protected.

A letter to the Times on Saturday caught my attention. It talked about the importance of clinical pharmacology and focused on the safe, effective and economic use of medicines. A recent report by PricewaterhouseCoopers stated:

“Each £1 spent to hire additional clinical pharmacologists has the potential to reduce NHS costs by almost £6”.


Apparently, there are only 72 clinical pharmacologist consultants working in the NHS. The British Pharmacological Society recommends that it needs a total of 150 by 2025. Without urgent action, therefore, the impact of waste is set to increase, and that surely ought to give us cause for alarm. Again, I am only giving notice to the Minister; he might not be able to give me all the answers to these questions.

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[Baroness Walmsley]

My Lords, I am in favour of this group of amendments. The Government plan to introduce new regulations and duties on the industry at a very difficult time, so the Minister cannot be surprised that the industry is concerned and that parliamentarians would like to take the opportunity to hold the Government to account based on what happens after the Bill becomes an Act.

For some of the things that we have been talking about, I have been told that the Government already have powers but have not used them—they are just refining and clarifying them and making them more proportionate. Of course, that makes the industry worry that they are planning to use them, even though they are not saying so. We need to know what will happen to all these issues of availability, access, proper supply and cost to the NHS once the Bill has passed. In the interests of transparency and post-legislative scrutiny, will the Minister accept that the Government should report back to Parliament?

[Lord Warner]

My Lords, I have added my name to Amendment 14, but I also support in principle Amendments 9 and 10A in this group. Each of these amendments does something slightly different and they need some consolidation. They are, however, a reflection of a deep sense of unease over where the Bill is taking us and a strong wish to monitor its consequences. The Government are imposing a lot of requirements on the industry for information. The quid-pro-quo is that we would like a lot more information from the Government on how this has worked in practice.

There seem to be three features that that kind of reporting back should cover. The first is the scale of payments made; the second is the use to which the money has been put; and the third is the impact of the Bill on the access to new medicines of NHS patients. It would not be right to try to draft this off the tops of our heads, but it would be helpful if the Government would accept that there should be some kind of monitoring of key issues around the Bill that are then reported back to Parliament and the public on a regular basis—let us say annually—and if we could get together with the Government to help draft something for Report in this kind of territory.

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[Baroness Walmsley]

My Lords, I think you only want to modernise something when you are planning to use it. Therefore, I hope the Minister can understand the level of suspicion and worry that we have been hearing from the sector. I understand that the Government want to make the penalty for not complying with the information requirements more proportionate—that is fair enough. But if the Government are not planning to use those powers then why do they want to make that small but fairly significant change?

I am not aware of any competition law action against companies providing medical supplies to say they have abused the system or overcharged. I am aware that an awful lot of the companies producing medical supplies are fairly small and would fall below the £5 million level and therefore not be affected by this. However, some companies that provide a lot of equipment and supplies do come within the scope of what the Government are trying to do, but they are, in fact, very competitive. It is a very competitive market already and, as far as I know, the prices charged are affected by competition. Therefore, to my knowledge, the NHS is not being ripped off. I have asked the Minister whether he has any evidence to the contrary. I have not heard anything yet, but perhaps he will be able to give us something this evening.

[Lord O'Shaughnessy]

I thank noble Lords for the debate on Clause 5. I am also grateful for the tour d’horizon or history lesson on how this has all come about. It feels as though it has slipped through many nets, for which there are multiple responsibilities around the room.

I will first address the point about consultation. Noble Lords will appreciate it when I say that, personally, I have not had the chance of undertaking that consultation but it is something that I am committed to doing. Whatever has gone before, I can at least give the reassurance that I will meet the relevant bodies in the next few weeks and discuss their concerns ahead of Report. At least in a forward-looking way, I can provide that reassurance.

As everyone has stated, the critical point here is that the 2006 Act gives the Secretary of State the power to control the price of medical supplies and to collect information about medical supplies. What Clause 5 does is to ensure that the same enforcement and territorial extent to provisions apply to controlling the cost of medical supplies and health service medicines. It does not give the Secretary of State any new powers to control the price of medical supplies. There are currently inconsistencies in the enforcement and territorial extent provisions. For example, a contravention or a failure to comply with the current provisions in the 2006 Act for medical supplies can result in a criminal offence. By contrast, the equivalent penalty for medicines is a civil financial penalty. Clause 5, therefore, aligns the enforcement provisions for medical supplies with those for medicines and, in so doing, makes them more proportionate, as the noble Baroness, Lady Walmsley, has pointed out.

With respect to the territorial extent, the power to control the prices of medical supplies in the NHS Act 2006 currently extends only to England and Wales. Clause 5 would extend the power to control the prices of medical supplies to Scotland and Northern Ireland. That would be consistent with the territorial extent of the powers to control the costs of health service medicines. That is an important point.

A number of noble Lords asked why the Government need the powers to control the prices of medical supplies when they do not currently use them nor have ever used them. That is a perfectly reasonable question to raise and one that occurred to me, too. We do not have any immediate concerns about the pricing of medical supplies. It is true that the market for medical supplies is very different from the market for medicines. It is innovative and competitive, and new medical supplies are generally faced with competition much more quickly than is the case for new medicines. However, I remind noble Lords that until recently we did not think that we needed the powers to set the price of unbranded generic medicines. We thought that competition in the market was working well and keeping prices down. When we realised that the market was not functioning as well as we thought with respect to certain products, and we were faced with companies charging unreasonably high thresholds where they had no competitors, we realised that we did not have sufficient powers to intervene when needed. That is of course one of the reasons for the Bill.

A question was asked about thresholds and when such a provision could be triggered, which is a reasonable question. The two examples I can give are when we had evidence from existing data that there may be an issue with pricing—for example, the reimbursement price that we set in primary care is increasing without an obvious reason—or when there is effectively a bottom-up complaint where patients, clinicians, commissioners or industry raise concerns because it is not obvious what is driving a price rise. I want to minimise the need for future primary legislation on medical supplies pricing controls. The Government should have the ability to intervene, but only when the market is not working well. Whether it is for medicines or medical supplies, it is right that those powers exist but are used only when necessary and proportionately. On that basis, I ask the Committee to agree that Clause 5 stand part of the Bill.

--- Later in debate ---

Recent examples of overpricing for specials have come in, for example, from Surrey Downs clinical commissioning group, which recorded in November 2016 that a patient was dispensed an oestrogen implant pellet at one pharmacy for 38p, while in the same month another local patient was dispensed an identical pellet in another pharmacy for £370.59. That seems an unbelievable discrepancy in pricing. Similarly, a tablet to be taken daily for bronchitis was dispensed for one patient at the price of £46.20 a packet and in another pharmacy at £271.17 a packet—again, a vast difference. I have tabled this amendment, and I intend to take it further, because I just do not understand why NHS money is potentially being spent unnecessarily, simply because there is no requirement to seek competitive quotes. I beg to move.

[Baroness Walmsley]

My Lords, I hope that the Minister will accept the common-sense amendment of the noble Baroness, Lady Finlay. The amounts of money that the NHS would save on specials may not be in their billions but, as my granny used to say, “Look after the pennies and the pounds will look after themselves”. I am sure that other noble Lords will have heard that from a couple of generations back. It seems crazy if there is no opportunity for the Government to stop this. It sounds like exploitation to me and a fairly simple change to the Bill could stop it in its tracks.

[Baroness Wheeler]

My Lords, we very much support the intention behind this amendment and commend the noble Baroness, Lady Finlay, for her determined and dogged campaigning in highlighting this issue and trying to persuade the Government to recognise the problem. In a Bill designed to close loopholes, this is a particularly important one to address. At the same time, it would obviously save the NHS a substantial amount of money. A BBC investigation six years ago estimated a potential saving of £70 million a year just for England, so it is hard to see why the Government should not want to take urgent action now.

We have heard from the noble Baroness, and from the excellent work undertaken on this issue by the British Association of Dermatologists and other organisations, of the overall costs and substantial savings that could be made on unlicensed medicines. Addressing this issue would be to the benefit of the NHS and the many patients in community and primary care who are denied access to special order medicines because of the way in which the current procurement system operates. The anomaly is that if they were in hospital, they would have stood a good chance of being given the drug.

We have also heard how the current system can result in some suppliers charging hyperinflated costs for specials, particularly when chemists do not buy direct from a specials manufacturer but via a wholesaler which adds its costs to the price. This results in the NHS having to pay the chemist the wholesalers’ rather than the manufacturers’ price, because there is no price tariff on the unlicensed specials. Moreover, prices for specials in the primary care sector are set by reference to the Association of Pharmaceutical Specials Manufacturers, which covers private companies that generally manufacture only smaller and therefore much more expensive quantities of drugs. The whole system, which has one much cheaper and cost-effective system for hospitals and another for community and primary care, surely needs to be urgently addressed.

I ask the Minister whether consideration can be given to the Competition and Markets Authority being asked to investigate suppliers. Why have the Government not looked at and learned from the Scottish system, which takes a whole-market approach in the way that the noble Baroness proposes should operate here? We understand that the Government have proposed a six-month review of the existing and proposed arrangements, but we do not feel that this adequately recognises the urgency and scale of the problem. In the Commons, the Minister, Philip Dunne, acknowledged that the Government have existing powers to address the issue, so why is it not being addressed?

The amendment contains the important provision to require NHS England, as part of its tariff-setting processes, to seek prices from the NHS as well as private manufacturers—the whole market—and we fully support this. If the Minister would at last take the important step of recognising and acknowledging the problem, then work could commence on the procurement process required to bring the new system into effect.

--- Later in debate ---

[Lord Warner]

My Lords, I too am sympathetic to this amendment. I have a linked amendment, Amendment 33, which is about introducing a trigger before information is required. Both amendments, I think, are intended to curb the enthusiasm of Secretaries of State to intervene in a market situation where things are working reasonably well. So I have every sympathy with the amendment of the noble Lord, Lord Lansley, and I hope that the Minister will consider it sympathetically.

[Baroness Walmsley]

I too have a great deal of sympathy with the amendment, but I just wonder what the definition would be of an “open and competitive” process—perhaps it would be defined in regulations. Does the noble Lord agree?

[Lord Lansley]

That is a helpful suggestion. It might not necessarily be defined in regulations, but one might contemplate that the Secretary of State would issue guidance as to what constituted such a process.

Mental Health and NHS Performance Update

Baroness Walmsley Excerpts

Monday 9th January 2017 Lords Chamber

[Lord Hunt of Kings Heath (Lab)]

My Lords, I am very grateful to the Minister for repeating the Statement, and welcome him to the Dispatch Box.

Of course we welcome any announcement that will help to improve mental health services in this country, as indeed we welcomed such announcements exactly 12 months ago, when the then Prime Minister made similar promises. But it seems that the more Prime Ministers promise, the less the NHS delivers. I remind the Minister that the Government’s record actually shows that we now have 6,600 fewer nurses working in mental health than were inherited. We have also seen a large reduction in mental health beds. I remind him of the report and analysis by YoungMinds just before Christmas, which showed that local children’s mental health budgets were raided in order to plug funding gaps elsewhere in the NHS. The survey revealed that when clinical commissioning groups were asked whether the extra £1.4 billion pledged over five years in 2015 for child and adolescent mental health services was going to be spent on CAMHS, nearly two-thirds of CCGs that responded said they used some or all of the money to backfill cuts or spend on other priorities. This has been replicated on a number of occasions when it comes to pledges made by the Government in relation to mental health. The fact is that they simply cannot guarantee that the NHS will deliver. What certainty do we now have that the pledge made today by the Prime Minister is going to be implemented, given the lamentable record of NHS England and the NHS in responding to similar pleas in the past? Why did the Prime Minister refuse to say this morning that she would ring-fence this money to ensure that it indeed went to the services that she said it had to go to?

I turn to the winter crisis. This morning the Secretary of State said that things have been falling over in only a couple of places, but the reality is that one-third of hospitals declared last month that they needed urgent help to deal with the number of patients coming through the doors; we know that accident and emergency departments have turned patients away more than 140 times; 15 hospitals ran out of beds in one day in December; and several hospitals have warned that they cannot offer comprehensive care. We know that we are going back to the dreadful days of the 1990s, with elderly patients left languishing on hospital trolleys in corridors, sometimes for over 24 hours.

Whatever the labels that charities use, whatever the semantics, the Government cannot deny that the NHS is facing a severe winter crisis, the culpability for which lies firmly with the Government. Does the Minister agree that it was a monumental error to ignore the pleas for extra support for social care in the Autumn Statement? Will he now support calls for the £700 million of social care funding allocated for 2019 to be brought forward to help services to cope this winter? Will he urge the Chancellor and his right honourable friend the Prime Minister to announce a new funding settlement for the NHS and social care in March’s Budget?

I listened with great care to the remarks the Minister made on the four-hour A&E target. The implication is that the Government are running away from the target and are now going to use different definitions for who is going to be expected to have that target met and who is not. I remind the Government that in 2010 they inherited a 98% rate for the four-hour target being met, which the NHS had achieved. Under his Government, the NHS has reduced its achievements in A&E consistently, year after year. As far as I can see, the Secretary of State’s weasel words today about the four-hour target show that the Government are now admitting that they will never achieve that target again. What are the Government doing? We know they are going to change the target and the definitions. On that subject, what guidance has the Minister taken from the Royal College for Emergency Medicines that the so-called new standard is actually appropriate?

I turn to the deaths of two patients at Worcestershire Royal Hospital. They had been waiting on hospital trolleys. Will Ministers lead an inquiry into those deaths? Are they aware whether these were isolated incidents? When does the trust intend to report back on its own investigation?

I have been reading today the draft Herefordshire and Worcestershire sustainability and transformation plan, which Ministers point to as a solution to all their problems. The problems of the Worcestershire acute trust have been known for many years—it simply does not have the capacity to deal with the flow of patients into that hospital—yet the sustainability and transformation plan actually plans for fewer beds in that trust over the next three to four years. How on earth can the Government justify reducing the number of beds in that trust when it is under such tremendous pressure because of a lack of capacity?

There is no doubt that much of the current crisis could have been avoided. Hospital leaders, council leaders, patient groups, MPs across the Commons and noble Lords all urged the Chancellor to give the NHS and social care additional resources in the Autumn Statement, but those requests fell on deaf ears. We now see the dismal consequences. The Government need to do very much better.

[Baroness Walmsley (LD)]

My Lords, I also welcome the Minister to his first appearance in his new role. I add thanks from these Benches to all the health and care staff who gave up their Christmas holidays to care for patients.

We welcome the Prime Minister’s attention being turned to mental health, and the emphasis on the roles of schools and the workplace. The NHS of course cannot do the job alone. However, many people are not getting mental health treatment, getting it late, not getting the right treatment or getting it many miles from home, which prevents their families and friends supporting them. As the noble Lord, Lord Hunt, said, the money is not getting through to front-line mental health services, despite the £1.4 billion secured from the previous Chancellor by my right honourable friend Norman Lamb when he was coalition Health Minister. Why is that?

Is it not true that if there were not a shortage of funding for other services, CCGs would not be tempted to raid the mental health budget? That is what they are doing. FOI requests by Young Minds, as has been mentioned, show that half of CCGs are using money allocated to children’s mental health to prop up physical health services, which are also in crisis. That is wrong. A recent survey of child and adolescent psychiatrists show that a whopping seven out of 10 of them thought that mental health services for children and young people were inadequate. By any calculation, that is a national disgrace.

Will the Minister ring-fence the money that has been promised to mental health and improve transparency with the publication of the mental health dashboards, which are meant to show how much is being spent on mental health services in every area and on what services? The £1 billion that has already been announced for adult mental health is back-loaded to the end of the Parliament. Will the Government bring it forward to deal with the current crisis? Will they at last acknowledge that there must be a cross-party discussion about how to raise the money needed for health and social care? Will they ensure that the lessons learned in Manchester about integration are spread to other areas? That could save money and provide better service. Will the Government provide more funding for social care? As the noble Lord, Lord Hunt of Kings Heath, has said, without that, nothing will improve.

To return to mental health, I acknowledge that funding is not the whole story. The main point of the report from the values-based CAMHS commission, chaired by my noble friend Lady Tyler of Enfield, was that there needs to be a shared set of values and a shared language across all those involved with children and young people’s mental health, thereby enabling the system to have widespread change and a far more joined-up response to mental health issues. Does the Minister agree with that? How could it be achieved?

[Lord O'Shaughnessy]

My Lords, I thank noble Lords for their kind welcome. First, on mental health, which is clearly the subject of the Prime Minister’s Statement today, I think this is a good news day for mental health services. We know that this part of the system has suffered from not being seen by some people as as important as physical health. We have now legislated for parity of esteem, but of course parity of esteem comes about through practice, not just through law, and part of that is about a series of changes to ensure that this is a high-quality system that is available not just for some but for all.

With regard to performance, there is a lot of strength within the system. My predecessor, my noble friend Lord Prior, whose abilities I pay warm tribute to, would always say that there is lots of innovation and quality in the health service. One of the challenges that we face is diffusion. Part of the purpose of the strategy today is about taking best practice and moving it around the system. There is good practice. We have fantastic dementia diagnosis rates, the IAPT system is being copied by other countries and we have a record number of psychiatrists.

As someone who has spent the best part of 15 years working in schools, I think we finally have recognition that something significant and serious is going on with our young people that needs a new approach. With the promise of a Green Paper on children and young people’s mental health, I am optimistic that we have an opportunity to deliver what the noble Baroness said—getting everyone who cares about this subject around the table and making sure that we deliver the kind of strategy that is going to do two things. The first is to help schools and young people to identify mental illness where it exists and to access treatment; the second and, arguably, more important, is to build resilience so that young people are better able to resist the various pressures that they are under and to stay in good mental health, because that is our ultimate goal.

There is £1 billion to implement the plan. It is reasonable to ask how it will get to the front line; clearly, this money should not be being diverted to other services. The noble Baroness said that transparency was critical here. CCGs need to report in a much more detailed, open and honest way about where that money is being spent, so that we can ensure that it is going to front-line mental health services.

There is a challenge every winter; that is not unique to this Government. The Statement pays tribute to the incredible work of the staff in the NHS and social care system, and I add my voice to that. They are working at an extraordinary level and under a lot of pressure. Clearly, unacceptable things are going on, such as trolley waits of more than 12 hours. The key is being prepared and, where there are problems, working out what to do about them. The NHS has been well prepared for this winter, with £400 million going into preparedness plans, which it has tested to ensure that they are robust. Although I have been in the department for only five days, judging by the interest, passion and application of Ministers and officials, I can say that a close eye is being kept on this not just in the department but in NHS England and NHSI. As we say in the Statement, we will continue to support trusts to deal with challenges, particularly in fragile areas—some of which, as the noble Lord, Lord Hunt, said, we have known about for some time. Help is going in.

On social care, there was more money in the Autumn Statement, which I am sure was welcome, and a change to front-load the precept, which will make a difference, and we have the better care fund, so funding is increasing. However, more people are accessing the service, and we know why: because of the demographic pressures. Since 2010 there are now some 1 million more over-65s, so the system needs the extra support the Government have provided. The noble Baroness was quite right when she talked about integration. One opportunity that we have in the five-year forward view through the sustainability and transformation plans is the creation of much better integrated systems which focus not simply on the number of beds, although that is important, but on delivering the best outcomes. As we know, lots of people in hospitals would be better cared for if they were in the community or at home. One challenge that we face is ensuring that those patients who would be better treated in that environment have the opportunity to move out, freeing up those beds for those who need them.

We are committed to the four-hour target, as my right honourable friend outlined in the Statement, and have delivered many more doctors and nurses to ensure that we can deliver a high-quality service. We are dealing with 9 million more visits to A&E every year than we were in 2000. We need to ensure that we are delivering a service which continues to provide the best quality care in whatever setting is most appropriate, and never lose sight of the fact that A&E is there for a specific purpose, particularly for the support of the most vulnerable. About a quarter of A&E admissions are from the over-65 age group, which is growing, so this will get more challenging.

On the specific issue in Worcestershire, it is of course a terrible tragedy. The trust and NHS Improvement are investigating, and I do not think it would be appropriate for me to comment at this time, other than to say that we will be watching very closely what happens as a consequence of those investigations. Plans are already in place to support the trust and ensure that it can improve, but it is not appropriate for me to comment on the specific deaths that occurred.

We know that additional resource is not just about money; it is about service configuration and how we deliver a better service. We are providing £10 billion more in real terms to the NHS over the course of this Parliament. That is what we were asked to deliver, and that is what we are delivering, in concert with NHS England. It is the responsibility of everyone within the system to ensure that we deliver the best possible service.

Health Service Medical Supplies (Costs) Bill

Baroness Walmsley Excerpts

2nd reading (Hansard): House of Lords
Wednesday 21st December 2016 Lords Chamber

[Baroness Walmsley (LD)]

My Lords, I thank the Minister for his explanation of the Bill. However, while I have no problem with the Government’s intention of closing the loopholes identified in the statutory scheme for medicine cost regulation, aligning schemes and ensuring that medicines are reasonably priced and affordable to the NHS, I do have quite a lot of questions. I also share the concerns raised by the noble Lords, Lord Warner and Lord Lansley.

My first question is whether this is the right time to make these changes, with Brexit on the horizon. Some of the Bill’s provisions add further uncertainty to what is already a very uncertain time for the businesses affected by them. If trade between the UK and other EU countries becomes subject to customs duties, import VAT and border controls, it will increase costs to the life sciences industry and drive up costs to the NHS. This will certainly impact on patients. As the Minister has acknowledged, the life sciences industry is very important to our economy, and these changes could impact upon it very adversely.

There is no doubt that the medicines bill has risen over the past five years, but what evidence is there that this is just because of unreasonable price rises in the pharmaceutical sectors that are not currently controlled, such as generic medicines? We have heard a lot about increased demand in all areas of medicine and care, and this is usually attributed to greater longevity and a general increase in medical advances to treat more conditions better. So why do the Government think that the rise in the medicines bill is any different? Yes, of course, like other noble Lords I have heard of one or two particularly outrageous cases of enormous unexplained price rises in generic medicines, and this is suspiciously like profiteering. But is it really necessary to go as far as this Bill does in order to deal with just a few very unethical cases? I am a little surprised that the Government are acting before we see whether the current cases under competition law are actually going to deliver the right result. As I said, I accept there is a loophole for generic medicines sold by companies in the voluntary scheme, but what is the extent of the use of that loophole? How much is the NHS losing, and how much are patients suffering because of profiteering?

Clause 1 provides the Government with a much stronger enforcement mechanism for obtaining the payments rightly owed, but does this constitute an amendment to the current PPRS, and if so, does it require the agreement of all those involved in a future scheme? Will there be any discussion with companies that propose price rises? There are many reasons why prices sometimes rise, apart from a desire to make more profit. There should be some mechanism for finding out whether the price rise is justified and reasonable, rather than someone in the DoH just making an arbitrary judgment.

We have concerns that the traditional appraisal methods and notions of cost-effectiveness are no longer suitable for some modern medicines, especially for very innovative new drugs which will be suitable for only a very small population of patients. The NHS has been slow to respond to these changes and I would not want to think that the Bill could make things worse.

There is a need for much more clarity about Clause 3. The payment mechanism, which really amounts to a tax on net sales, will, we understand, be set somewhere between 10% and 17%, so it seems reasonable to ask how the Government will assess the impact of their chosen level on the availability of the medicine concerned. Will we know what percentage the Government plan to choose before the Bill completes its passage through your Lordships’ House? We would not want its unintended consequence to be shortages of certain useful medicines.

As we have heard, Clause 5 brings medical devices within the scope of price regulation. Is there really any evidence that there has been price abuse among suppliers of medical devices, as we have heard there is in relation to pharmaceutical items? With these items it is vital that there is a range of products for patients to choose from, as something that suits and works for one patient may be very uncomfortable for another. That is why driving down the cost of products will not necessarily save money in the long term. If a patient cannot get on with his or her life and contribute to society, an unsuitable but cheaper product could cost the economy more money in the long run.

Companies have told us that this section of the Bill is vague and does not make the Government’s policy intentions clear, so they need more reassurance. Nor are those intentions adequately covered in the Explanatory Notes or the impact assessment accompanying the Bill. That has prevented companies fully understanding how the provisions will affect their business. It is not very reassuring for the Government to say that they do not intend to implement all sections of the Bill immediately, because this uncertainty makes it impossible for businesses to plan when their main customer might be able to hold them over a barrel on price at some unknown time in the future. I certainly could not run a business in that sort of climate. Unsurprisingly, businesses are very concerned about this. Some clarity was offered during the Bill’s passage through another place, including, as I have just mentioned, the fact that the Government have no immediate plans to use the powers, but they could decide to use them at short notice at any time in the future. That provides the very uncertainty that investors hate and it is very bad for business.

Clauses 6 and 7 concern data collection. It seems very strange to me that the National Health Service Act 2006 already contains the power for the Government to require medical technology suppliers to provide them with information, and the Government have said that the Bill will clarify and modernise those powers. We have heard from officials that the penalty for non-compliance will be changed from a criminal to a civil one, which will be more proportionate to the offence. However, as these powers have not been used to date, the fact that the Government are making these changes suggests to some that their use may be planned in the not-too-distant future, and that brings more uncertainty.

One can understand the Government wanting and needing information in order to ensure that the reimbursement system works effectively, but the new provisions go a lot further than the current requirements and may put a very heavy administrative burden on companies. We have been told by officials that the intention is to make this burden as light as possible, and that is good, but how will this be done when, I understand, separate information will be required for every product throughout the whole supply chain, even for those outside this country? Companies tell me that currently they do not collect all the information the Bill requires and they would find it very difficult to do so. Is all this information really necessary to achieve the Government’s intentions in the Bill?

There is an issue about consultation. Some suppliers are claiming that the Government’s statement in another place that there has been extensive consultation is simply not true. They were not consulted. Only a few large trade organisations were consulted. We really need from the Government a clear commitment to proper consultation before these regulations are finalised and implemented. It is essential that the Government proactively engage with the entire industry before bringing forward legislation such as this.

I believe in evidence-based policy and that the Government should always be transparent in their intentions when they make changes, as mentioned by a previous speaker. However, at the moment that is not the case. If the powers are to be used, they should say so, and then there should be proper engagement and consultation with the businesses affected. It is in the interests of the companies affected that they work with government to support consumers and the NHS. After all, that is what they do; that is their business. The Government are asking for clarity from NHS suppliers about costs throughout the supply chain, so should not suppliers be able to expect clarity from the Government in return?

My primary concern is that any increase in payments by manufacturers and suppliers to the Department of Health should be put to use in improving access to new medicines and ensuring that existing medicines are provided in a timely way to all patients who need them. So far, I have not been assured by the Minister that this is what will happen to any increased payments. I wonder whether he is willing to do that today—after all, it is Christmas.

We need to see this Bill in the wider context of the struggle of the NHS and social care to provide services in the light of rising demand and costs. Apart from their efforts in this Bill to control costs, the Government have ignored that. The recent Statement announcing a small amount of additional money for social care, and the allowance of a raised local authority precept, will not bring money into the deprived areas that need it most. Until this is dealt with, measures such as those in the Bill are only scratching the surface of the problem.

Finally, I join the noble Lord, Lord Lansley, in paying tribute to the noble Lord, Lord Prior. It has been a great pleasure to work with him. He has always been very patient and courteous with us in this House in answering our questions. I also thank the noble Baroness, Lady Chisholm of Owlpen, who I understand is also moving on. I wish them both a very peaceful and restful Christmas and extend that to other noble Lords and to the Bill team. I look forward to working with whoever it will be in the new year as we move on to the Committee stage of the Bill.

HIV Diagnosis: Clinical Guidance

Baroness Walmsley Excerpts

Thursday 1st December 2016 Lords Chamber

[Lord Prior of Brampton]

My Lords, I am very happy to arrange a meeting of that kind. We are expecting an announcement very soon on the PrEP issue and it may be worthwhile having that meeting after that announcement.

[Baroness Walmsley (LD)]

My Lords, a high percentage of people living outside London compared to those in it are unaware of their HIV infection. It is 24% compared to 12% in London. Are the Government doing anything in the regions to replicate the good practice that we are beginning to see in London, so that that situation disappears?

[Lord Prior of Brampton]

My Lords, I think more is done in London simply because there is a greater incidence of HIV there. I was not aware of the difference between those two figures—the 12% and 24% which the noble Baroness referred to. I should like to look into that point and write to her.

Social Care

Baroness Walmsley Excerpts

Thursday 1st December 2016 Lords Chamber

[Baroness Walmsley (LD)]

My Lords, this has been an excellent debate with many thought-provoking speeches, including, in particular, that of the noble Baroness, Lady Pitkeathley, in introducing the debate and that of the noble Baroness, Lady Cavendish.

Yesterday morning, there was a story on Radio 4’s “Today” programme that neatly illustrated how problems with social care affect the whole health and care system. The story was about ambulances and the fact that in the past year 500,000 extra hours were spent by ambulance crews waiting outside A&E departments, unable to discharge their patients, while other serious and urgent cases stacked up awaiting their arrival. The head of emergency medicine for the NHS gave an account of new ways of working that may help put a sticking plaster on the problem. However, the story illustrates very clearly the interaction between the various parts of the health and care system.

Of course, the reason ambulance crews have to wait so long is that A&E departments are full, unable to move their patients to beds in the wards because they are full too. One of the reasons that the wards are full is the delays in discharging patients to appropriate care in care homes or their own homes with a suitable package of help—and we know that people go to A&E, where the lights are on, because they cannot get an appointment with their GP. Nearly 570,000 bed days were lost in acute hospitals during the second quarter of 2016-17 as a result of delays in discharging patients, with problems in arranging social care now the main reason given by hospitals for these delays. This comes at a cost to the NHS of £820 million a year. The story illustrates why we need to sort out social care, apart from the need to ensure that elderly and disabled people get the care they need in a timely and dignified way.

The Care and Support Alliance of 90 charities points out that, as well as relying on help with everyday tasks such as washing, dressing and eating, social care plays a vital role in supporting recipients and their carers to move into, or stay in, employment, and in preventing avoidable expenditure, particularly in other parts of the health service. The charity Sense, which works for deafblind people, points out that in the past year alone 11.4% fewer people with sensory impairment were able to access services. This has greatly curtailed their community involvement and life chances.

The whole system is like a pack of dominoes that will fall with a great clatter unless something is done. That is why I, along with others who have spoken today, was shocked and horrified that, despite all the evidence that has come forward about the dreadful state of care funding, the Chancellor said not one word about it in the Autumn Statement and provided not one extra pound. The interoperability of all parts of the system of health and social care indicates strongly the need for a cross-party consensus on how we fund it in this country—I welcome the support on that from the noble Lord, Viscount Hanworth. While I look forward to the report of your Lordships’ ad hoc Select Committee on sustainability in the NHS, chaired by the noble Lord, Lord Patel, we need to go much further, as my right honourable friend Norman Lamb has so often proposed. We need to look at all the options: insurance schemes, the German scheme, the Japanese scheme, general taxation and national insurance.

The nearest thing we have to an independent commission is the King’s Fund and the Nuffield Trust, which work together and with others to inform the debate. Since the disaster of the Autumn Statement they have said that they now expect a funding gap of at least £2.4 billion in social care next year. That means that the intense pressure on services will continue to grow, increasing the burden on older and vulnerable people, their families and their carers, as the noble Baroness, Lady Farrington, has told us.

In its recent report on the sector, the CQC said that social care is at a tipping point. The CQC does not often use such language, but it should know, since it inspects all the services. However, it did report that 72% of settings were good or outstanding, and that is a credit to all those working in the sector who do their very best for the service users despite all the problems. The facts, however, are dismaying. Following multiple cuts to local authority funding over the past six years, 26% fewer older and vulnerable people are receiving services, while demographics mean that demand is rising. Because the potential for most local authorities to do any more within existing resources is limited, my colleagues in local government tell me that they will soon struggle to meet even basic statutory duties.

As we have heard, companies providing places in care homes are handing back contracts to local authorities because they cannot provide adequate care—the sort of care they want to give—with the funding that they get. Some are concentrating on self-funders. Indeed, self-funded service users are subsidising state-funded users in some places, and I agree with the noble Baroness, Lady Browning, that that is not fair. The national minimum wage—I still refuse to call it a national living wage because one cannot live on it—is putting enormous pressure on already small margins. Aside from the quantity of care available, good-quality care matters for many reasons, not least of which is that good care homes, working with their local GPs and community pharmacies, keep people out of A&E and other hospital departments.

Domiciliary care fares no better. Fifty-nine councils have had home care contracts terminated, affecting nearly 4,000 people. Three large national domiciliary care providers with multiple contracts have withdrawn from the market or are planning to do so. The critical condition of home care services threatens to undermine policies to support people at home, which, as we have heard, is where most people prefer to be, near their families and friends who can often help with care and are happy to do so within their capabilities. An estimated 1 million people now have unmet needs for care and support in England and research on disabled adults suggests that at least two in five are not having their basic needs catered for.

The new 2% precept increase that local authorities are allowed to raise does not help deprived areas where the majority of care users are state-funded and low council tax receipts from low-value properties will not raise anything like the amount of money needed. In those places, the potential for cross-subsidy from self-funders is minimal too. Besides, the precept, if fully applied overall, will raise only two-thirds of the cost of the increase in the national minimum wage in a sector where most employees are on that level of pay. At the same time, the Government have delayed until 2020 the implementation of Part 2 of the Care Act 2014, which introduces a cap on care costs and changes to means testing. These are reforms proposed by the Dilnot commission in 2011 and this breaches a Conservative Party manifesto commitment. So can the Minister say when it will happen, since many people are now doubtful as to whether these reforms will ever see the light of day?

The King’s Fund believes that our starting point for reform should be the Barker commission recommendation of a new settlement for health and social care, based on ending the historical divide between the two and moving to a single budget and single local commissioning of services. I agree with that, but there is also a very large elephant in the room, and that is the looming Brexit. We spoke about this at length in last Thursday’s debate. A damaged economy, resulting in a lower tax take, and uncertainty about the future of the many thousands of care staff who come from other EU countries cast an enormous shadow across an already staggering system. When will the Government do the right thing and offer them certainty?

It cannot be right that the care and support received by older and disabled people increasingly depends on where they live and how much money they have—a postcode lottery—rather than on their real needs. Although additional funding is badly needed in the short term, in the long term reform is what is required. The only game in town on that front at the moment is the sustainability and transformation plans, funded by the Better Care Fund, but there is evidence that, first, the emphasis is on sustainability rather than transformation and, secondly, that local authorities, patients and care providers are the last ones to be consulted on the plans. How can services be integrated when crucial parts of the system are not being properly consulted and funds that should be used to develop and pilot new ways of working are just being used to prop up budgets in deficit?

As the King’s Fund said:

“England remains one of the few major developed countries that has not reformed the way it funds long-term care in response to the needs of an ageing population … A number of commissions and reviews have been set up over the years and made recommendations about how to place social care on a sustainable footing. However, successive governments have failed to grasp the nettle”.

I am a gardener and I know the value of nettles: they support wildlife and you can even make nourishing soup out of the small leaves at the top of the plant. So will the Government grasp the nettle, because they may find it good for them?

Health and Social Care

Baroness Walmsley Excerpts

Thursday 24th November 2016 Lords Chamber

[Baroness Walmsley (LD)]

My Lords, I, too, thank the noble Baroness, Lady Finlay of Llandaff, for introducing this debate. I note with interest that not one speaker thinks Brexit will be good for health and social care. The tragedy of the vote on 23 June—by 37% of the electorate—is becoming more apparent every day, not least yesterday, following the Autumn Statement. The OBR has reacted to the statement by giving us an independent assessment of where we are now and where we are likely to be, as a nation, as a result of the actions of this disastrous Government, who cannot even stand up for their own judges, let alone stand up to their own right wing.

The Government say that we have a £220 billion Brexit black hole and will have rising unemployment, lower wages and higher inflation, resulting in lower living standards. The projected fall of £8.2 billion in tax receipts over the next two years will seriously impact on our public services. That fall is enough to fund more than 330,000 nurses.

It was shocking that there was not a single mention of social care in yesterday’s Statement from the Chancellor, despite the £1.3 billion hole in social care budgets needed by 2020 simply to stabilise the system, let alone deal with rising demand and reverse the fall in the number of people able to squeeze through the rising eligibility barriers for care. More than two-thirds of acute hospital trusts are in serious deficit and this figure is projected to rise. These are the real effects of Brexit on our national treasure. We cannot pay for the staff we need in the NHS and social care if tax receipts are falling unless the Government make different choices.

Our public sector workers have not had a decent pay rise in years and are promised in the coming year less than expected inflation—in other words, a real-terms pay cut. That is why we on these Benches called for the Chancellor to announce £4 billion extra for the NHS and social care yesterday and a decent pay rise for public sector workers—but he did not. Instead, we will be spending much more than that on additional civil servants charged with getting us out of the EU. You could not make it up.

In addition to that situation, since 23 June there has been enormous uncertainty, as we have heard from other speakers, among providers of health services and social care about whether they will be able to retain the staff from EU countries already here and recruit new ones in the future. The current staff from these countries are valued and essential to the operation of health and social care, and yet the Government refuse to give them any reassurance. Thirty thousand doctors, 55,000 nurses and others, 90,000 care workers and goodness knows how many medical researchers from the EU are currently working in the UK. Without them, the NHS and care services would fall over and our research efforts will be damaged. EU funding supports many of our medical research programmes and I am very concerned that without it, after Brexit, UK patients will no longer benefit from clinical trials and early adoption of the cutting-edge treatments that they bring.

Others have picked up their own areas of concern about the health and social care workforce but I should like to mention two groups: midwives and people supplying medical equipment. In April this year there were 1,192 full-time-equivalent midwives from other EU countries working in the NHS in England, according to figures from NHS Digital. In London alone, 16% of the NHS midwifery workforce was from elsewhere in the EU—674 full-time equivalent midwives. At University College London Hospitals NHS Foundation Trust, 32% of the midwifery workforce was from the EU. Outside London, in both Basildon and Thurrock, and in Walsall, more than 10% of midwives were from other EU countries.

On the latest calculation, the NHS in England is already short of around 3,500 full-time midwives. Without EU midwives, that shortage figure would be over 4,500. We need more midwives, not fewer. The Royal College of Midwives believes that any policy that could see EU midwives blocked from continuing to be able to work in the NHS post-Brexit would be very damaging for maternity services across the country and truly catastrophic for London. Can the Minister tell us what plans the Government have in their negotiations to protect our maternity services?

The information I have just mentioned concerns the proportion of the current midwifery workforce coming from the EU. It does not take account of how many join or leave in any one year. It is important to consider this churn because, even if existing EU midwives were able to stay, any who then returned to their home country might not be easily replaceable. The latest figures available on that churn, from September 2014-15, show that during that period 189 EU midwives left NHS employment and 248 started—a welcome increase. Simply allowing existing EU midwives to stay without taking any account of allowing new ones to come would lead to a fall in numbers. In summary, the NHS in England has been short of midwives for years. We need all the midwives we can get; currently well over 1,000 of those we have are from other EU member states. We need them.

Turning to my other concern, many people working in health and social care are involved in the provision and support of medical devices for their patients. Brexit will pose problems for them, too. At present the UK is closely involved with EU regulatory bodies in licensing about 150,000 medical devices. Licensing by these EU bodies ensures that patients receive safe and appropriate medical equipment. It also means that the businesses responsible for their research, development and sale can trade easily within the EU, and with other countries, based on EU-wide approval. There are thousands of jobs in these businesses and they affect millions of patients.

Many EU countries value UK expertise in the regulatory field and much of the approving of medical devices for use across the EU is done here in the UK. Casting us adrift from this EU-wide process and creating a wholly separate regulatory process will weaken the process of approving innovative medical devices and create barriers for businesses working to develop them.

Who knows what the results of negotiations will be, but it would make sense to continue the regulation of medical devices on an EU basis. However, that will not be possible if the EEA, EFTA or customs union models are rejected. What we do know is that creating a “bespoke” regulatory process as part of a hard Brexit will make it more difficult to develop and get approval for the kind of medical devices that will assist those working in health and social care to support patients properly, and in many cases to help them live their lives as independently as possible. That includes patients of all ages with chronic conditions, elderly people, people with disabilities and people with learning difficulties.

Creating our own bureaucracy for regulating medical devices will be costly and at the expense of direct support for people who may benefit from them. Why spend the money on new bureaucracy rather than on more prostheses, heart pacemakers, computerised blood sugar regulators, mobility aids and much more? In addition, failing to maintain EU-wide systems will threaten their future development here in the UK. If we are to leave the EU, the UK businesses that are researching, developing and promoting medical devices would clearly prefer a new arrangement in which the system remains EU-wide, even if that means a loss of sovereignty and the need to pay a share of the costs of EU-wide regulation. If the Government are determined on a hard Brexit to appease their right wing, however, this important UK industry will suffer, work will move to the EU, and those working in the health and care sector will find that the changes have been detrimental to their patients. There could be huge and unnecessary costs for the supplying of medical devices if there are not, at the very least, long transitional arrangements allowing issues such as labelling to be addressed. Will the Government’s industrial strategy take account of this important health-related industry?

The process and consequences of Brexit will cost this country millions and have already cost us trillions of pounds because of the fall in the value of the pound. What will the Government do to minimise the negative effect of Brexit on the health of the nation?

Mental Health: Children and Adolescents

Baroness Walmsley Excerpts

Wednesday 16th November 2016 Lords Chamber

[Lord Prior of Brampton]

My Lords, there is no doubt that whether it is housing for young people or loneliness for old people, many factors affect people’s mental well-being. The noble Lord may be interested to know, as I know that his particular interest is in looked-after children, that we have set up an expert working group to look particularly at that case. Interestingly, 85% of the local transformation plans that have been developed single out looked-after children as a group that requires special attention.

[Baroness Walmsley (LD)]

My Lords, I welcome the mental health dashboards, which allow people to hold their local clinical commissioning group to account for how much it spends on mental health, including on children, and on the quality of the services that it provides. However, can the Minister say how those dashboards are being publicised, and whether there is any way in which local people can benchmark the performance of their local CCG compared to others across the country?

[Lord Prior of Brampton]

My Lords, transparency is critical to this and every CCG will have its improvement assessment framework. Unless I am badly mistaken, they will all be in the public domain and it will be possible to look at the relative performance of each CCG. NHS England will also produce its own matrix and integrated dashboard, which will have all the key information about funding, the numbers of people accessing mental health provision and the improvements that those people achieve once they are in the system.