Health and Social Care Bill

Baroness Wheeler Excerpts

Thursday 8th March 2012 Lords Chamber

[Baroness Wheeler]

My Lords, with an additional 68 government amendments tabled at the end of last week on the issue of HealthWatch England and the now much altered healthwatch organisations, it is somewhat of a challenge to work out exactly what the Government want from HealthWatch England and local healthwatch organisations. Why has not the Government’s time since Committee stage been spent on trying to address the issues and concerns raised by noble Lords which would ensure that HealthWatch England and local healthwatch organisations have the real status and authority to do the job that we all recognise is required of them? Instead they have concentrated on compiling one of the most confusing additional sets of amendments that we have seen on this Bill, which will seriously undermine the ability of both the national and local organisations to act as an effective and robust watchdog for patients and the public.

The new local arrangements for healthwatch organisations provide a plethora of contradictions and confusions and we shall discuss those under a later group. Sadly, none of that addresses the continuing concern across the House and among key patients’ groups and organisations about the HealthWatch-CQC relationship. Fortunately, Amendment 223A, from the noble Lord, Lord Patel, my noble friends Lord Harris, Lord Whitty and myself does. Those noble Lords have all made a coherent and powerful case for the amendment and for ensuring that HealthWatch England is independent. The amendment provides for a body corporate, with clear primary duties to represent the interests of patients and users of the National Health Service and of social care services, independent of any provider or regulator of those services. As well as powers to provide information and advice on the views of patients and standards of quality of care, the amendment provides HealthWatch England with powers to investigate complaints made by or on behalf of a patient or user of a local healthwatch organisation and to raise and investigate complaints relating to wider issues affecting patients or users in general.

The Government have said that they want to see HealthWatch England with genuine operational independence from CQC. However, attempts to do that by, for example, providing the majority membership of HealthWatch members on the HealthWatch board, or reassurances after the last debate in Committee in terms of HealthWatch England being able to speak out publicly in certain circumstances, even if their views conflict with its host body or government, miss the point. None of these small steps gives the unequivocal reassurance of independence that a robust patients’ watchdog, acting in the interests of patients, must have. In the new market-dominated system that we will soon have, independence and a collective voice for patients is more vital than ever. In the end, it will come back to how the proposed measures will play out in practice and how conflicts of interest between HealthWatch England and the CQC, or indeed healthwatch organisations in the local authority, will be dealt with.

Most important of all is the issue of public perception, understanding and confidence in the independence of HealthWatch. It is important that HealthWatch is seen to be credible and truly independent, able to challenge and to scrutinise the work and decisions of the regulators, both CQC and Monitor. The niceties of whether there is a majority of HealthWatch members on the board, whether they can combine or exchange data and whether they are part of an organisation that the Secretary of State keeps under review will escape a patient, carer or representative who, for example, makes a complaint about how CQC has investigated care in a residential home, only to find that the body investigating the complaint or championing improved quality of care on behalf of patients is a committee of the CQC itself.

I hope that the noble Baroness will address these concerns: in particular, points that were repeatedly made about how the culture clash between healthwatch and the CQC will be addressed and managed; how we will stop CQC—in the words of the noble Lord, Lord Patel—“suffocating” HealthWatch England; how the potential serious conflict of interest will be dealt with; and how public faith, trust and confidence in healthwatch can be achieved under the relationship with the CQC, particularly in light of that body’s major organisation and resource problems so starkly highlighted in the Department of Health’s recent CQC performance and capability review.

In the debate on the duty of candour, the Minister referred to the CQC as an organisation that was remote from patients. We need an independent HealthWatch England and we need local healthwatch bodies that everyone can rely on to be genuine patient representatives. I am afraid that the Bill gives us neither.

[Baroness Northover]

My Lords, this has been another excellent debate. I listened very carefully—as I did before—to the views expressed. Overall, there is clearly complete agreement on all sides of the House that the voice of patients and the public should be at the heart of the NHS. As the noble Lords, Lord Patel and Lord Harris, and the noble Baroness, Lady Masham, and others indicated, the history of how previous Governments tried to implement this is tortuous. The recent past has borne witness to a number of attempts to do it, and noble Lords referred to some of the problems. No attempt—not even Community Health Councils—managed to fulfil the worthy intentions of its architects, and we went from one to another.

As the noble Lord, Lord Patel, recognised—I appreciate his words—we seek here to take the strengths from past attempts, build on them and ameliorate the weaknesses as we develop our proposals for HealthWatch England. In the light of the comments of the noble Lord, Lord Harris, and as the noble Baroness, Lady Murphy, emphasised, it is worth remembering one of these previous attempts: the Commission for Patient and Public Involvement in Health. It was established in July 2003 and operated nationally and regionally, following regional government boundaries. Within five years it had been abolished after being seen to lack clout, to be too bureaucratic and too top-down for the public and those on the ground. Perhaps I may again remind the House of the judgment from the Health Select Committee’s 2007 Report into Patient and Public Involvement in the NHS, which stated:

“The evidence we received was overwhelmingly critical of the Commission”.

We are convinced that trying to recreate the commission is not the best way forward, and instead propose that HealthWatch England should be a statutory committee hosted—that was a very good description from the noble Lord, Lord Patel—by the CQC, which is a far more viable option.

I am well aware that this proposal has met with concern.

--- Later in debate ---

[Baroness Wheeler]

My Lords, on behalf of these Benches, I want to express our concern and exasperation at these cobbled-together, last-minute changes to the status and organisational arrangements for local healthwatch. We are utterly opposed to depriving local healthwatch of its statutory status. It is hard to see the logic behind the new approach, even for those of us who are supportive of the local development of social enterprises.

The noble Baroness has not explained why this last-minute change is taking place 14 months into the consideration of the Bill. Why was this new approach and dramatic change not spelt out and included in the consultation that the Government have conducted since Committee stage on healthwatch membership? Why such a fundamental change of direction at this late stage?

The Government’s argument is that the new arrangements will provide local authorities with the flexibility that they need in establishing healthwatch organisations and facilitating their networking with other local community organisations. In practice, this means that not only will each local healthwatch be very different, and it will take more than the proposed national kite mark to provide them with any joined-up coherence, but they will all develop at a very different pace as local authorities take time to decide on the form of structure, and then draw up and implement their commissioning arrangements, or further subcontracting arrangements, if they want to make things really confusing, and so on. This is hardly the smooth transition from LINks organisations to the proper and coherent structure of patient representation at local level that we need. Like so much in this Bill, what could be simple and straightforward is made fragmented and complicated and requires detailed explanation. The Government also make strong play of local healthwatch organisations having a statutory function through a seat on health and well-being boards, through making a contribution on that board and the statutory joint strategic needs assessments and the joint health and well-being strategy. healthwatch will also have statutory status through the statutory health and well-being boards’ ability to refer back to the NHS Commissioning Board plans that do not meet the needs of the local communities. So we have a second-hand, reflected statutory authority by participating in bodies that have statutory status.

It is interesting, too, that with clinical commissioning groups the Government have repeatedly argued that the Bill was needed to enable CCGs to be statutory bodies in their own right. Now we see exactly the opposite argument when it comes to patient representation.

Finally, there is the relationship of local healthwatch with the local authority, where there is again huge potential for conflict of interest, and concern that even the well intentioned authorities facing severe budget cuts could struggle to find the required funding for healthwatch organisations. Government amendments to address this and potential conflicts of interest by requiring local authorities to,

“have regard to ... any Secretary of State guidance on this matter”,

do not provide the safeguards that would be needed to ensure that patients, their carers or representatives should be able to expect if they are concerned that their complaint about a social services department is channelled through a non-statutory body funded and linked to the local authority itself.

As with the rest of the Bill, these are complicated structures understood and supported by no one, with details fleshed out at the last minute and sprung upon the House, in effect, only three working days before we are due to consider them, and with no opportunity for consultation on such fundamental change. Arguably most important of all is that it is impossible to see, among all these amendments, how these local organisations will relate to national healthwatch. Perhaps the kite marks are designed more to help HealthWatch England recognise who it has under its umbrellas than to assist local organisations networking with each other.

I hope that even at this late stage the Minister will acknowledge the concern, confusion and demoralisation, particularly among key patient organisations and groups, at the last-minute decision to change the status of local healthwatch organisations. I hope that she will agree to withdraw these amendments and instead restore statutory status to local healthwatch, enabling them to be organisations that everyone can rely on to be genuine patient representatives, fully trusted and supported by patients and the public.

[Baroness Northover]

Again, my Lords, what shines through is a great commitment to public and patient involvement at a local level; the only dispute is over the form of that. Again, noble Lords are familiar with the fact that various models have been tried, and I emphasise once again that we are seeking to build on the strengths of what has worked and mitigate some of the problems that have been encountered.

My noble friend Lady Jolly has tabled Amendments 234 and 235, the result of which would be to replace references to “people” with “local people” in Section 221 of the 2007 Act and insert the definition of “local people”. We talked about the difficulty of organisations— LINks in particular—reaching groups that were defined as hard to reach. The definition in my noble friend’s amendment says that when carrying out its functions, local healthwatch has to be representative of people who live in the area, service users and people who are representative of the local community. That applies to people of all ages and emphasises the need for local healthwatch to champion the views of the whole breadth of the local community. I am therefore grateful to my noble friend for this contribution, and I am happy to support her amendments.

Although I am sympathetic to the sentiment behind my noble friend Lady Cumberlege’s Amendments 232, 236 and 237, I hope I can reassure noble Lords that, as corporate bodies, local healthwatches will have the flexibilities to make their own arrangements for securing staff, accommodation and so on, so the local authority should not have to make such arrangements on their behalf. There is no need for express provision on payment of expenditure because the legislation requires local authorities to make arrangements to ensure that the relevant activities can be carried on in their area. Necessarily, that means providing adequate funding to enable the functions to be carried out. This is an important point that I hope reassures noble Lords: the statutory functions must be delivered, and that is a protection of these bodies.

My noble friend Lady Cumberlege is quite right about local healthwatches working out their own priorities and work, and they will no doubt be doing that in conjunction with what is found to be good practice around the country, information coming from HealthWatch England and so on. I assure my noble friend that staff are there to help to facilitate such work, not to dominate it. My noble friend Lady Jolly is right: local healthwatch is a partner with local authorities—the eyes and ears, as the noble Baroness, Lady Murphy, and others have said.

My noble friend Lady Cumberlege was concerned that government amendments would damage local healthwatch’s independence. I do not agree: the amendments do not dilute in any way the statutory functions of local healthwatch, including the ability to give advice to local authorities among others. In response to concerns that local authorities may try to suppress local healthwatch, we specifically brought forward Amendment 236E giving the Secretary of State the ability to publish conflicts of interest guidance that both local authorities and local healthwatch would have to have regard to.

The noble Lord, Lord Harris, raised a number of issues. He regretted the fact that yesterday he was not at the seminar that I mentioned. I regret that he was not there. It was interrupted by a couple of votes, but I am sure that he would have engaged with those who were speaking there. That would have helped to inform everybody. All Peers were invited and some from his group attended. I see a few shaking heads.