NHS Future Forum

Baroness Wheeler Excerpts

Thursday 15th September 2011 Lords Chamber

Moved By

[Baroness Wheeler]

To call attention to the extent of the implementation of the recommendations of the NHS Future Forum in the Health and Social Care Bill; and to move for papers.

[Baroness Wheeler]

My Lords, this is an important debate. It is the first opportunity for the House to discuss the NHS following the First Reading of the Health and Social Care Bill last week. It takes place in the context of the continuing debate, controversy and deep unease over key aspects of the Bill, its incoherence and complexity even in this, its fourth iteration.

When the Future Forum report was published in June, hope sprang eternal among the many critics of the original Bill—patient groups, specialist groups for patients with long-term conditions, medical and other staff, trade unions, carers and Members across both Houses—that the report and the Government’s response to its core recommendations signified a major change of approach and strategy. My noble friend Lord Darzi was among those who recognised this change in the language and approach of the Future Forum and the Government’s response, welcoming the stated main thrust that the quality of service and care should remain the organising principle of the NHS.

We on these Benches welcomed the Future Forum report in the context that it had not covered all aspects of the Bill. We pay tribute to the work that the forum undertook in the eight weeks that it had to consult, deliberate and produce its report. My noble friend Lady Thornton, in response to the Minister’s Statement on the forum on 14 June, recognised that the Government’s proposed changes in response to the forum were indeed significant. Crucially, however, she urged Members across the House not to suspend their critical faculties but to wait for the publication of the revised Bill to ensure that the rhetoric was matched by the reality. We now have the reality before us. Three months on from the Future Forum report, fundamental questions remain about the post-pause Bill. Even after the Committee stage and Third Reading in the House of Commons, we are still no clearer about why this massive upheaval is needed. What is the Government’s future vision for the NHS? Who will be responsible and accountable for making decisions that will benefit patients and improve the NHS?

At the heart of the continuing problems are two issues that are fundamental to the ethos of an NHS that is free at point of need and provides a national public service. First, there is the importance of the Secretary of State having a continuing duty to ensure that we have a comprehensive NHS. Secondly, we must address the real concerns over Part 3 of the Bill, which places competition at the heart of the NHS and sets up an economic regulator that still has substantial powers to promote competition in the NHS. The Future Forum was clear on these issues and the recommendations are welcome and straightforward. However, the amendments to the Bill do not reflect that or translate the Future Forum’s intentions into legislation.

The Commons deliberations have failed to resolve the issue of the Secretary of State’s duty and role in relation to the NHS. Indeed, as the noble Baroness, Lady Williams, said in her recent Observer article, “confusion thickens”. My honourable friends in the other place, supported by authoritative legal opinion, have underlined that if the Bill becomes law then the duty to provide a National Health Service would be diluted and lost. The Government argue strongly for greater freedom for clinical commissioners from political interference. However, as the noble Baroness, Lady Williams, has said,

“to throw out accountability in order to tackle petty interference is to undermine democracy itself”.

The health professionals remain deeply concerned, as seen in the letter in last week’s Times from the BMA, the royal colleges of nursing, GPs, midwives and psychiatrists, and the governing bodies for the physiotherapists and occupational therapists. They warn that the new Bill will destabilise the NHS and requires further significant amendments. They say:

“Though the language may have changed, the Government remains committed to opening up the NHS further to market forces as a priority”.

The Patients Association sums up the ever increasing complexity of the Bill and the NHS structure when it says:

“It is unclear how the original commitment from the Government to streamline the NHS and remove bureaucracy will be met by current changes—one layer of bureaucracy being replaced by another”.

How does a Bill which adds more layers and bodies—increasing the number of statutory bodies from 163 to 521—substantially increases costs and fails to provide a clear rationale why it is all necessary succeed in improving quality of care and promoting integration?

At one of the many excellent seminars that noble Lords have had on the Bill at its various stages, we were promised by the Under-Secretary at the Department of Health an organigram of the proposed new NHS. That was perhaps a rash promise in view of the sheer number of organisations it has to include, but its production would at least help us to try to understand how the reforms will work as a whole and how they stand some chance of improving the quality of patient care. We know that there is a very real risk that the increased complexity added to the NHS structure will slow down or prevent decision-making, either through more bodies becoming involved in decisions or where it is not clear which organisation is ultimately in charge. How do these reforms support effective and speedy decision-making?

After the forum report publication, David Cameron said, “We have listened, we have learned and we are improving our plans for the NHS”. Nick Clegg was beside himself with joy when he declared a great victory for his party, with 11 out of 13 demands for change laid down by the Liberal Democrat conference being achieved. However, the reality is that the scorecard result is far more modest, as a number of prominent Liberal Democrats have recognised. The Future Forum made important recommendations which have not been dealt with by government amendments to the Bill, and which the Government have consistently blocked Labour, and a few Lib Dems, from amending.

In passing, as a former chair of the Labour Party conference committee in charge of the conference’s agenda programme, I have been following with interest the attempts to block debates and votes on the NHS at next week’s Lib Dem conference. For what it is worth, in my experience, keeping issues off the agenda usually results in the people affected going straight to the media and getting even more coverage than they would have had anyway, so I shall watch developments with interest and be very thankful that I am not the one defending that position on the conference platform.

In respect of the Future Forum report, I place on record for the avoidance of doubt that, of course, we recognise that the Government have acted positively on a number of its recommendations, including the change to clinically led commissioning and clarity on the wider input from health professionals. They have also clarified some of the accountability issues of clinical commissioning groups and have recognised that the timetable for reform could not be achieved. However, many concerns and issues remain in these areas and we will pursue them as we deal with the Bill clause by clause in the coming weeks.

I return to the second major area of concern: competition and the role of Monitor. The forum raised strong concerns about promoting competition as an end in itself. Recognising the problems with the original Bill, the report recommended that it should be changed to make it very clear that Monitor’s primary duty is not to promote competition but to ensure the best care for patients. Specifically, it recommended that Monitor’s powers should,

“promote choice, collaboration and integration”.

This is still missing from the Bill. The Government have also ignored the spirit of the Future Forum recommendations that sought a greater balance between competition, and co-operation, collaboration or integration. Compare and contrast the 90-odd clauses of the Bill on the regulatory regime for competition with the woolly references to organisations having to,

“act in an integrated way”,

with no definition of integration.

The Bill remains as lopsided as ever and, for a Health and Social Care Bill, there is actually precious little about social care. However, that is a whole debate in itself.

The Future Forum further recommended that the Bill be changed to clarify that Monitor be a sector regulator for health, not an economic regulator. While the duty to “promote competition” has been removed, it has been replaced with a new duty of “preventing anti-competitive behaviour”. This flipping of the language does not substantially affect how Monitor carries out its duties, its cost and its reach across the whole NHS.

Moreover, although the Bill moves away from referring to economic regulation, Monitor is still to be given sweeping pro-competition powers, including concurrent powers with the Office of Fair Trading under the Competition Act 1998 and the Enterprise Act 2002. These powers, alongside the power to license every provider to the NHS, have not been changed by the amendments. Monitor therefore remains an economic regulator in all but name. How will the Government address these concerns and issues? How will the issue of the role of the Secretary of State and the role of Monitor be resolved so that the service does not face constant legal challenges in the future about who is ultimately responsible and accountable for decisions, or about how commissioning has been undertaken and contracts awarded?

There are other issues. On transparency, the Future Forum recommended that all providers of NHS-funded services should hold their board meetings in public. The Government rejected this recommendation in their response to the Future Forum. This means that decisions about NHS services will be made in private, and could be marked “commercial in confidence”. The Government have similarly failed to bring greater transparency to clinical commissioning groups and foundation trusts by allowing substantial loopholes and leeway. There is a get-out clause for CCGs that want to avoid meeting in public. The wording of the Bill states,

“except where the consortium considers that it would not be in the public interest to permit members of the public to attend a meeting or part of a meeting”.

Foundation trusts can exclude members of the public from a meeting for special reasons with no explanation about what these are. This leaves this clause open to abuse.

There is also the important issue of the private patient cap and cherry picking by private providers. Professor Field, the Future Forum chair, admitted that the issue of the private patient income cap was not looked at by the forum and stated that,

“the feeling was that the private patient cap should actually stay”.

The Government have tabled no amendments to the clause abolishing the private patient cap. The implications of the abolition of the cap and increasing financial constraints that the service is operating under are already beginning to be seen. The Government’s amendments on cherry picking in the Bill only require that a provider be transparent in how it chooses its patients, and do not deal with preventing providers from picking the easiest and most profitable patients. All in all there is a very mixed and confused picture of implementation and translation into the Bill of the forum’s recommendations.

Finally, I come back to the Future Forum itself, as we now learn that its work is to continue with listening exercise mark 2—this time on education and training, integrated services, public health and information. Can the Minister give us more details of this? How does he envisage that this work will be fed into the Bill and what impact it will have on its parliamentary passage? Are we to have further amendments to, for example, the integration and information clauses? How long do the Government envisage the role of Future Forum continuing? Is it to be a permanent listening body—another body to be placed on the much awaited organigram? If so, when will the normal rules of public appointments and declaration start to apply to its membership? Are we to have further “pauses”?

Noble Lords will recognise that I set great store by getting the promised organigram. I am really looking forward to receiving it. When it comes, I will be asking myself three key questions. First, is this the structure to take the NHS forward into the future and provide the integrated care pathways that people with long-term conditions must have? Secondly, how will this help the NHS to deal with the Nicholson challenge of £20 billion savings over five years? Thirdly, will it now be easier for patients to find their way through the system and be clear who has responsibility for making decisions about their care? I think I already know the answers.

--- Later in debate ---

[Baroness Wheeler]

My Lords, this has been an excellent debate. I thank all noble Lords for their contributions, particularly the update from the noble Baroness, Lady Jolly, on the Liberal Democrat conference programme. As noble Lords have said, this is a timely debate; it is a precursor, an overture or a limbering-up for the debates that we are about to have. I am sure that we are all looking forward to that in the coming weeks. With that, I beg leave to withdraw the Motion.

Motion withdrawn.