Health and Care Bill

Baroness Wheeler Excerpts

Lords Hansard - Part 1 & Report stage
Tuesday 1st March 2022 Lords Chamber

[Baroness Walmsley (LD)]

My Lords, I, too, am a member of Peers for the Planet and I congratulate the noble Baroness, Lady Hayman, and the noble Lord, Lord Stevens, on their engagement with the Government and thank them for taking their concerns on board.

I have previously raised the fact that a big way in which the NHS can reduce its emissions is by having energy-efficient buildings, and I should like reassurance that any new buildings and refurbishment of the NHS estate will involve highly insulated and low-energy buildings. There are so many things that the NHS can do by using low-energy lighting, reducing microplastics, using compostable single-use plastic or not using plastic at all and using microwaves to deal with clinical waste, because they are much more energy efficient. How will all this be reviewed after the Bill has passed? Will there be any reporting back on how well the NHS has been able to respond to this challenge?

[Baroness Wheeler (Lab)]

My Lords, I thank the Minister and welcome these government amendments in response to the key concerns raised in Committee about the crucial importance of including the NHS’s duties on climate change and working towards net-zero emissions in the Bill, and the excellent supportive speeches today.

The amendments take on particular significance in the light of the stark warning in today’s UN report that climate breakdown is accelerating rapidly and there is only a brief and closing window of opportunity to minimise its catastrophic impacts. The duties rightly go across the roles of NHS England, integrated care boards, NHS trusts and NHS foundation trusts in relation to the Climate Change Act 2008 and the Environment Act 2021, and address the need for those bodies to have regard to the need to contribute towards compliance with government climate change and environment targets. Of particular importance is the duty of each body to adapt to current or predicted impacts of climate change and, in Amendment 7, recognition of the importance of NHS England guidance on how the climate change responsibilities are to be discharged within the promised 12 months of Royal Assent.

My noble friend Lady Young sought reassurance that the guidance on procurement will cover not just the need for the NHS supply chain to reduce emissions but also include the key environmental targets. I hope the Minister will be able to reassure her on that.

Strengthening the law to integrate an active response to climate change through every layer of the NHS has been welcomed by the UK Health Alliance on Climate Change, representing more than 900,000 healthcare professionals. Noble Lords made clear in Committee that omitting sustainability requirements from the Bill would have been a missed opportunity to enshrine and enforce the NHS’s historic commitment to reaching net-zero targets by 2040, and we are pleased the Government have recognised that.

As we heard from all speakers, the NHS has made huge progress, but this is just the start and there is much more to do. The amendments reinforce the importance of action in those areas, particularly for the new bodies and processes the Bill creates, and that progress will need to be managed, delivered, tracked and reported at every level.

My noble friend Lady Young’s point, reinforcing that guidance on duties across NHS bodies must include not just climate change but also the improvement of the natural environment, is well made. I look forward to the Minister’s response on that.

In relation to reporting, raised by the noble Baroness, Lady Walmsley, I understand from the contributions of the noble Lord, Lord Kamall, in Committee that progress is being made. He referred to NHS England’s green plans, and we are told that every NHS trust and interim care system is expected to have prepared a green plan and had it endorsed by its governing body. For trusts, the deadline for submission to ICSs was 14 January, so it would be good to know how they have done so far and how many trusts have submitted such plans. The next stage is for ICSs to develop “consolidated system-wide plans” by the end of the month, which will be

“peer reviewed regionally and published”.

Are we confident that ICSs will meet that deadline, and what is the expected assessment and timescale for ICSs to report back to NHS England and, subsequently, more widely on this vital issue?

[Baroness Penn (Con)]

My Lords, I thank all noble Lords for their welcome for the government amendments, and for setting the challenge for the Government that there is always more to do.

I agree with the noble Lord, Lord Stevens, on the additional points that he set out about the importance of decarbonisation, not just for the climate but for health, security and humanitarian reasons. I reassure the noble Baroness, Lady Young, and others, that I did not say that decarbonisation was there to exclude other issues; it is just that that particular point related to that.

I say to the noble Baroness, Lady Hayman, that it is a pleasure to work with her on these issues when we look at Bills, including the Financial Services Bill as it went through, but I have noted her and other Peers’ points about the reactive or proactive nature of the Government’s approach to these issues in legislation.

I can provide the noble Baroness, Lady Young, and others, with the reassurance that they seek that the NHS will have to have regard to wider environmental objectives in developing the guidance, and this includes, for example, biodiversity. That applies to procurement and any other guidance NHS England issues to the system using the new power. In my examples, I mentioned enhancing biodiversity and adapting to climate impacts, so I hope I was not inadvertently too narrow in how I spoke to the amendments.

The noble Lord, Lord Scriven, is right that decisions are being made all the time that will have a longer-term impact, so although I cannot go further than the 12-month commitment, I am sure that the NHS will want to work as fast as it can to bring out the guidance within that.

The noble Baronesses, Lady Walmsley and Lady Wheeler, asked about reporting, both on how the NHS will fulfil its obligations under these duties, and specifically under the green plan. NHS England will report on carbon emissions and progress against its wider objectives. The noble Baroness, Lady Wheeler, asked me a number of more specific questions; if I have not addressed them, and those asked by other noble Lords, I will seek to write after today.

Medical Abortion Pills

Baroness Wheeler Excerpts

Thursday 10th February 2022 Lords Chamber

[Lord Kamall (Con)]

I think the noble Lord is being slightly unfair. It is a complicated issue and not as simple as people make out. The noble Baroness said that we should be aware of dangers. These are the issues that we considered during the consultation. Whatever we do, we will be criticised— rightly so—but we want to make sure that when we make a decision it is the right decision.

[Baroness Wheeler (Lab)]

My Lords, RCOG data has shown that complications related to abortion have decreased since the telemedicine for EMA service was introduced. The college has warned that failure to make it permanent could lead to more women accessing an illegal abortion. NICE has recommended the service as best practice, so does not its future urgently need to be secured by making it permanent? It does not have to be temporary.

[Lord Kamall (Con)]

As I said, we are looking at the consultation carefully and considering all views. If we made it permanent, there would be lots of criticism, which we have to be aware of and make sure that we have the answers for. If we continue to expect it to be temporary, there will be plenty of criticism. Whatever we do, we will be damned, but we are going to try our best.

Health and Care Bill

Baroness Wheeler Excerpts

Lords Hansard - Part 1 & Committee stage
Wednesday 9th February 2022 Lords Chamber

[Baroness Wheeler (Lab)]

My Lords, very briefly, we welcome the Government’s proposals on mandatory disclosure of payments, a companion piece to the previous debate that we had, as has been pointed out.

As noble Lords have always stressed, greater transparency is highly desirable and a very good thing. I am grateful to the Minister for listening to the voices of stakeholders and parliamentarians on this. Indeed, nine out of 10 medical professional bodies think that patients have a right to know if their doctor has financial or other links with pharmaceutical or medical device companies and they support stronger reporting arrangements, as contained in the amendments. I am grateful for the briefing I have received from the ABPI, which, as we have heard, also supports mandatory disclosure.

I also note that Amendment 312D refers specifically to the consultation with the devolved Administrations in Scotland, Wales and Northern Ireland and to obtaining the

“consent of the Scottish Ministers, the Welsh Ministers or the Department of Health in Northern Ireland … before making provision within devolved legislative competence in regulations relating to information about payments etc to persons in the health care sector.”

We would welcome the Minister reassuring us that full consultation is under way and setting out the timescales involved.

On Amendment 284, the non-government amendment leading this group, the intention of the amendment and the arguments put forward by noble Lords are extremely persuasive. The requirement for companies involved in the production, buying or selling of pharmaceutical products or medical devices to publish any payments made to teaching hospitals, research institutions or individual clinicians is a sensible measure that would complement the Government’s package, and I await the Minister’s thoughts on it, including on the one glitch underlined by the noble Baroness, Lady Cumberlege, on moving from “may” to “shall”.

[Lord Kamall (Con)]

My Lords, I thank all noble Lords who took part in this debate, especially my noble friend Lady Cumberlege for her work on the independent review of medicines and medical devices, and other noble Lords who were involved in that. I know that she worked tirelessly to make sure that patients and their families have been heard and I pay tribute to her and her team. I also thank her for her lobbying—or reminding—me of the pledge that I made when I first became a Minister on championing the patient.

I welcome my noble friend’s amendment to increase transparency and promote public confidence in the healthcare system. The Government fully support the intention behind the amendment. That is why I will be moving Amendments 312B, 312C, 312D, 313B, 313C and 314ZB in my name. Before I do so, let me answer some of the questions.

All these amendments relate to the transparency of payments made to the healthcare sector. The Independent Medicines and Medical Devices Safety Review led by my noble friend Lady Cumberlege listened to the brave testimony of over 700 people to understand where improvements needed to be made to make the healthcare system safer for all patients, especially women. The Government have given the review deep consideration and accepted the majority of its nine strategic recommendations and 50 actions for improvement.

To improve transparency, the review recommended that

“there should be mandatory reporting for pharmaceutical and medical device industries of payments made to teaching hospitals, research institutions and individual clinicians”.

The amendments deliver on this recommendation by enabling the Secretary of State to make regulations requiring companies to publish or report information about their payments to the healthcare sector. The clause covers any person performing healthcare as part of their duties, benefiting patients and building on initiatives by regulators and industry. I hope that partly answers the questions raised by the noble Lord, Lord Stevens.

The amendment also allows for the Secretary of State to make regulations requiring that the information be made public and make further provision about when and how the information must be published. This could include requiring self-publication or publication in a central database. That ensures that we can adapt the system to improve reporting as necessary. To ensure that companies fulfil the obligation, requirements introduced by the regulations can be enforced using civil penalties.

There are benefits to this duty applying UK-wide, aligning with the approach taken by the pharmaceutical industry with its Disclosure UK system. As the noble Baroness, Lady Wheeler, referred to, the clause contains a statutory consent requirement, so we will work closely with the devolved Governments to develop regulations following the passage of the Bill. We will also work with patients, industry and healthcare providers to create a system that enhances patient confidence while maintaining a collaborative, world-leading UK life sciences sector.

A question was raised about the issue of “shall” versus “may”. The Government have not tabled these amendments in bad faith; we would not have tabled these amendments if we did not intend to work with them. It is the intention of my right honourable friend the Secretary of State to bring forward regulations under the clause to make sure that there is transparency. If that is not reassuring enough, perhaps between this stage and Report there can be some conversations to make sure that noble Lords are assured. It is for these reasons that I ask your Lordships’ Committee to support these amendments.

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[Baroness Walmsley (LD)]

My Lords, there is considerable merit in an independent dispute resolution service. I will be very brief, because I believe that at the heart of this is the following: for over two decades, this country has been a signatory to the UN Convention on the Rights of the Child, which recognises that a child has its own rights, independent of its parents. So I was very pleased to hear the noble Baroness, Lady Finlay, refer to the best interests of the child, which will be based on their rights under the convention.

[Baroness Wheeler (Lab)]

My Lords, I thank the noble Baroness, Lady Finlay, for this amendment and other noble Lords who have contributed to this highly emotional and compelling debate about the welfare, care and medical treatment of critically ill children. I also thank Emma Hardy MP for ensuring that this key issue was debated in the course of the Bill’s passage through the Commons and the work that she, other MPs and noble Lords have undertaken with parents and medical staff to help build and develop the framework that is set out in the amendment where care and treatment are disputed: Charlie’s law, in memory of Charlie Gard.

The amendment seeks to mitigate conflicts at the earliest stages, provide advice and support, and improve early access to independent mediation services to prevent the traumatic and bitter legal disputes that we have all seen all too often. Noble Lords have highlighted these, as well as the benefits that the step-by-step processes set out in the amendment would provide for parents and doctors, which are of course central to the consideration of the child’s welfare and best interests. In particular, providing families with access to legal aid if court action takes place would, as the noble Baroness, Lady Finlay, pointed out, ensure that they do not have to rely on raising funds themselves, or on the financial support of outside interests.

Today’s debate has been powerful but has also demonstrated the difficulties with trying to address and resolve such deeply complex issues within the context of an already overloaded and skeletal Bill. Like other noble Lords, I have received the excellent briefing from the Together for Short Lives charity, which does such remarkable work on children’s palliative care to support and empower families caring for terminally ill children. While supportive of much of the amendment, the charity has what it terms “significant reservations” about proposed new subsection (4) on the issue of amending the court’s powers in relation to parents pursuing proposals for disease-modifying treatment for their child after the final court decision.

So, while there is obviously considerable support for the measures set out in the amendment, as we have heard today, the reservations about this and other provisions in the amendment, from Together for Brief Lives and other organisations, emphasise the need for the continued dialogue and discussion that we are not able to have today but which noble Lords have made clear is needed. This has been an excellent debate and I hope the Minister will be able to find supportive ways of taking this vital issue forward.

[Earl Howe (Con)]

My Lords, the noble Baroness, Lady Finlay, has brought a vital and sensitive debate before the Committee, for which I for one am very grateful. At the heart of each of these difficult cases is, as she said, the well-being of a child, and that principle has to remain uppermost in everyone’s mind. While the views of parents and guardians are routinely considered in everyday care, occasionally difficult disputes will arise. When they do, we should carefully consider how best to protect the interests of the child. I will start by saying that I fully agree with the noble Baroness that any failure to listen to the concerns of parents or a guardian would be bad practice.

However, I have a concern about the practical impact of this amendment. In cases of the care of children with life-limiting illnesses, the amendment would place the views of parents and guardians above those of clinicians and—let us be clear—the courts, which have a statutory obligation to act in the best interests of the child. Establishing a default presumption in favour of the parents’ views would fundamentally change the current balance. It would move away from the impartial assessment of the individual child’s best interests being paramount based on all the evidence in each specific case.

I understand the view that parents know what is best for their child and their wishes should be paramount. Sadly, though, I am afraid that I cannot fully agree with the proposition advanced in the amendment. It is sometimes the case that desperate parents in these tremendously difficult circumstances are subject to the flattering voice of hope and, as a result, are not acting in a way that is necessarily in the best interests of their child.

To protect the child, it is right that when every effort at resolution has been unsuccessful there is recourse to a judicial process that can impartially assess all the evidence as to what treatment is best for the child. I also fear that it would be difficult for a clinician to determine, in the wording of the amendment, “anyone else” who has an interest in a child’s care. In considering the provisions of the amendment, I note that a child’s medical data can already be provided to parents following a subject access request, so we do not feel that legislation here is necessary. I absolutely agree that specialist palliative care teams should be part of the multidisciplinary team for any child or adult with a complex life-limiting illness; their involvement is an integral part of good practice, and I would expect referrals in such situations. However, I do not agree that it is necessary to put that into law.

Let me say something about mediation. I listened with care to my noble friend Lord Balfe. We know that mediation can and often does play a vital role in facilitating better communications and creating a space where voices on both sides of a dispute can be heard in a non-adversarial way. Unfortunately, that does not provide a solution in every dispute. The Government are supportive of the many excellent mediation schemes already available, including through charities and the private sector. We agree that parents and clinicians should be able to access such schemes where they wish to do so. However, we are not convinced that legislation is the answer to these thankfully rare but nevertheless tragic cases.

The current lack of statutory prescription means that mediation can be tailored specifically to meet the individual needs of families and their children, clinicians and hospitals, reflecting the unique circumstances of each case. There is currently a wide range of work and research into avoiding such protracted disputes and improving the approach to managing conflicts, with the aim of promoting good, collaborative relationships between parents and healthcare professionals to seek resolution without lengthy and costly legal battles. Furthermore, on those rare occasions where disputes are heard before a court, the amendment seeks to extend legal aid. Legal aid is already available for best interests cases, albeit subject to a means and merits test.

I understand the strong views on the amendment across the Committee. I understand that these issues are ethically charged and I take them seriously. However, I also believe that the current approach properly balances the views of parents and guardians with those of clinicians and, above all, with the paramount importance of the best interests of the child in question. The sensitivities around this subject are acute but I hope that what I have said has clarified why I do not feel able to accept what I know is a well-intentioned amendment.

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[Baroness Walmsley (LD)]

My Lords, I was going to speak for two minutes but now I am going to speak for only half a minute. I have one question for the Minister. I know that his department has a small team developing the National Dementia Strategy. Can he can tell us whether any additional capacity is being planned to add to that small team doing this important work? Frankly, without a national strategy, the new ICSs will not be able to measure their performance in their dementia care plans against a national standard. The matter is urgent, because the position of people living with dementia has worsened during the Covid-19 pandemic and, while we are trying to tackle the backlog of treatments for patients with physical health needs, we must not forget those with dementia.

[Baroness Wheeler (Lab)]

My Lords, I thank the noble Baroness, Lady Greengross, for tabling her amendments, which ensure that we consider dementia care in respect of this Bill and return to recognising the impact that the social prescribing of music and arts can make to dementia sufferers, particularly for patients at the onset of symptoms—although I also heard what my noble friend Lord Winston said about the research needed on this issue. Noble Lords have on many occasions stressed their strong support for Music for Dementia and Singing for the Brain, and it would be good to hear from the Minister what progress is being made. We have also had extensive debates on the importance of social prescribing, and of the arts across health and social care settings, so, again, I think we do not need to repeat what has been said.

On Amendment 291, the key thing is the call for the duty to be placed on each local authority and integrated care system to implement the National Dementia Strategy for their own areas. It is a timely reminder of the need for the promised National Dementia Strategy: can the Minister provide a publication date for it, and update the House on its progress and on the increased funding that the Government have promised will be provided for the implementation of the dementia care plan?

My noble friend Lord Hunt’s Amendment 297D is a stark reminder of the Joint Committee on Human Rights’ concerns over the visiting bans operated in some care homes before the pandemic, following relatives’ complaints about their loved ones’ treatment and standards of care. As the noble Baroness, Lady Brinton, stressed, we know that during the pandemic itself the ban on outside visits of relatives and friends caused huge anxiety and suffering among residents and their families alike, and it is very welcome that visiting rules have now been eased, although the need for maintaining PPE, testing and infection control routines and constant vigilance continues.

Covid-19: Lockdowns

Baroness Wheeler Excerpts

Wednesday 9th February 2022 Lords Chamber

[Lord Kamall (Con)]

The noble Baroness makes some important points about the meta-analysis in the paper. Undue attention has been given to one paper out of 34 studies. While I am answering the noble Baroness, I will refer to an earlier question. In academia there is a huge debate about meta-analysis in all sorts of fields. The question is what other research should be analysed with meta-analysis. This continues to be an issue of debate among academics in many disciplines.

[Baroness Wheeler (Lab)]

My Lords, I want to follow on from what the noble Lord, Lord Patel, said. The World Health Organization’s authoritative and in-depth research shows the effectiveness of large-scale social distancing measures and movement restrictions—ie lockdown—in slowing down Covid-19 transmissions because they limit contacts between people. Is it not far better to work on the basis of this evidence, as well as our own much-respected evidence from the CMO and his team, rather than a non-peer-reviewed paper from an American think tank?

[Lord Kamall (Con)]

Once again, the noble Baroness makes the point that this paper has not been peer-reviewed. That is an important consideration. The Government were quite clear that they introduced measures including lockdown—in the face of some opposition, but with the support of the Benches opposite—because, on the balance of epidemiological and other evidence, it was important to prevent and reduce the risk of transmission of the disease.

Health and Social Care Act 2008 (Regulated Activities) (Amendment) Regulations 2022

Baroness Wheeler Excerpts

Tuesday 8th February 2022 Grand Committee

[Baroness Brinton (LD) [V]]

My Lords, first, I thank the technical wizards who have mended the problem with the link to the Grand Committee so that I can contribute remotely. This sort of thing happens only very occasionally, and the smoothness with which most of the business goes on is extremely helpful. I am very grateful to them.

The Explanatory Memorandum says that these regulations are to ensure protection from Covid, and the Minister has explained why there is a requirement to extend the deadline for the department to carry out a review of the CQC regulations. However, why are a further three years needed? Perhaps he can explain how there will be accountability between now and then to enable the House and Parliament to see the progress. Given that we are talking about three years, will he undertake to provide your Lordships’ House with an interim report on progress? If it takes the full three years, can that be on an annual basis?

Finally, and perhaps most importantly, can the Minister outline how the review fits in with ongoing reforms such as the Health and Care Bill, which will come to the end of Committee tomorrow, and other social care reforms? Will it keep pace with all those new developments?

I want to add one other item. The Minister knows that, when we had the Statement in the Chamber last Thursday, I asked him why care homes had not yet received the details of the change of rules about the compulsory vaccination of staff. He kindly said at the Dispatch Box that he did not have the answers to hand but would write to me and my noble friend Lord Scriven, who also asked questions about this that day. I do not appear to have had anything. Given that this covers care homes and keeping patients safe, I wonder whether I can ask again.

On Wednesday afternoon, the director-general for adult social care wrote to providers of CQC-regulated adult social care activities about the removal of vaccination as a condition of deployment. Unfortunately, the problem is that it specifically excludes care homes. I believe we know that the problem exists in regulations that need to be revoked, but can the Minister explain to the Grand Committee exactly what the problem is? Clearly, reading that letter from the director-general at face value, care homes are sitting in a limbo which no other parts of the NHS or the wider settings for care are in, in that they should be applying compulsory vaccination.

The Minister said on Wednesday that the intention was quite clear. Unfortunately, this affects care homes, because it is to do with employment law. I know that some care homes have already been approached by staff they had to sack, asking whether they can have their jobs back, while they are still waiting to hear formally from government about when the revoking of the regulations will come into force. I hope the Minister can answer my question on this.

[Baroness Wheeler (Lab)]

My Lords, I thank the Minister for introducing this SI on Care Quality Commission registration, somewhat at the 11th hour before the current 2014 regulations run out on 31 March 2022. Of course, we fully support their extension beyond that date so that all providers of health and social care in England will continue to be required to register with the commission and to comply with the high patient safety and care quality standards it sets.

The SI is very brief and to the point, with the proposed extension to 31 March 2025 the only amendment to the 2014 regulations, and the activities regulated by the CQC and the fundamental standards with which all CQC-registered providers must comply all unamended and unchanged.

Like the noble Baroness, Lady Brinton, I fully understand the impact of the pandemic on the CQC’s capacity to undertake the full range of its work, but the Minister needs to explain why the extension of the regulations is for another three years, to 31 March 2025. Why so long? The Explanatory Memorandum says the extension is to

“allow the Government to review the 2014 Regulations to determine”

whether the scope of its current regulated activities

“is still proportionate to ensure that regulated activities are delivered safely to a high standard.”

The CQC’s role as regulator and the fundamental standards that it sets to ensure high-quality care are crucial. According to the Minister proposing the SI in the Commons on 26 January, time is needed

“to reform and consider the regulations more fully”.—[Official Report, Commons, 26/1/22; col. 8.]

This is a major review being undertaken by government, and we need to know much more about its extent and purpose. Why are three more years necessary to undertake this review? Can the Minister explain why, given its vital importance, the review cannot be undertaken in a shorter timeframe? What are the timescale, scope and terms of reference of the review? How are all stakeholders, including providers and patient organisations, to be consulted and involved?

As the Minister knows, under the Health and Care Bill currently in your Lordships’ House, the CQC is to take on the not inconsiderable additional duties of reviewing and assessing ICBs and the performance of local authorities in the delivery of adult social care. To what extent will consideration of the impact of this extended role be included in the review, including the significant additional resources that the CQC will need to undertake these new areas of responsibility?

We are less than two months away from when the current regulations expire, and we fully recognise the urgent necessity of this SI to ensure that the CQC’s vital role and that work will continue. I also look forward to the update that the noble Lord will provide on the questions raised by the noble Baroness, Lady Brinton, about care homes and last week’s decision on the mandatory vaccination of staff.

[Lord Kamall (Con)]

My Lords, I thank both noble Baronesses for their questions and I must say how grateful I am that we were able to find a way for the noble Baroness, Lady Brinton, to join us after a technical fault. I turn now to the questions asked and, if I do not have the answers, I will commit to writing to the noble Baronesses.

The noble Baroness, Lady Brinton, asked why it had taken time to lay these amending regulations to extend the date of expiry of the regulations. They came into force in 2014 and a further amendment was made in 2015 to include an expiry date for them. Once it was identified that the 2014 regulations needed to be amended to extend the expiry date, the department took the appropriate action to make the necessary change. However, to make that change there was a long lead-in time, involving a consultation process and securing parliamentary dates to debate the amendment. The department is aware that, since the 2014 regulations came into force, there have been a number of changes in the health and care sector, and any wider review will be subject to a public consultation.

The noble Baroness, Lady Brinton, also asked about vaccination as a condition of deployment policy in adult social care settings. Let me turn, first, to her specific question. After the debate the other day, the noble Lord, Lord Scriven, told me that he needed to clarify a question he asked of me. He very kindly emailed me, clarifying that what he had said in the Chamber was not necessarily absolutely correct, and I sent his email on to my officials. I am sorry, I had not realised that a response had not been given. All I can do is apologise, go back to the department and make sure that we get an answer to him as soon as possible. That is why, to be perfectly frank, I am not in a good position here, because I really did think that this had been dealt with, and I apologise for that.

The noble Baroness, Lady Wheeler, asked several questions about the department’s intention to carry out a post-implementation review of the 2014 regulations. The department intends to carry out such a review and is currently working with the CQC to develop the review questionnaire, which will be shared with health and social care providers. The department is in the early stages of undertaking work to carry out the review, and we have already started working with the CQC. Once we have the responses to the questionnaire, we will publish a post-implementation report setting out the department’s findings.

The noble Baroness, Lady Brinton, also asked about VCOD. One of things we should stress—I know all noble Lords agree on this—is that patient safety is key. We always put the safety of vulnerable people first. I am very grateful to noble Lords for their support for the VCOD policy.

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I am afraid—and I really apologise for this—that I do not have the best answers for this at the moment. I will have to write in more detail to the noble Lords who asked questions.

[Baroness Wheeler (Lab)]

My Lords, I thank the Minister for his response. Specifically on the review into the CQC’s work, I did ask for the terms of reference. I know there is going to be a consultation and a questionnaire, et cetera, and I would like to know what the terms of reference are: the timeframes and the scope of the review, and how stakeholders will be involved—I hope it will be not just by a questionnaire.

[Lord Kamall (Con)]

The noble Baroness asks a very reasonable question. I think what I will have to do is look at Hansard and respond to her detailed questions, and also share a copy with the Library, because I do not have the detailed answers with me today.

Vaccination: Condition of Deployment

Baroness Wheeler Excerpts

Thursday 3rd February 2022 Lords Chamber

[Baroness Wheeler (Lab)]

My Lords, I thank the Minister for the Statement and welcome the Secretary of State’s decision to end the requirement for vaccination as a condition of deployment. Vaccines are safe, effective and the best defence that we have against the virus, and, whether compulsory or not, it remains the professional duty of all NHS and care workers to get vaccinated, as it is the duty of us all in order to protect ourselves, our loved ones and our society from the greater spread of infections and hospitalisations.

The debate over this policy has always been about whether the state should mandate the vaccine for health and care staff or whether it should take a voluntary approach. It is not a discussion over the need to get vaccinated, the arguments for which are overwhelming and one-sided. Since our support for mandatory vaccination in December, we have seen a significant increase in vaccinations among NHS and social care staff, with tens of thousands more staff now protected. I thank NHS and social care managers who have worked tirelessly to persuade hesitant staff of the need to get vaccinated. I also thank the royal colleges and the health unions for all the work they have done to encourage vaccine take-up by their members, despite their misgivings about the mandate policy.

Clearly, things have now moved on in terms of both our overall levels of infections and our understanding of this latest omicron variant. It has also become clear that to follow through with this policy could see tens of thousands of staff being forced to leave their roles at a time when our health service is already desperately understaffed and overstretched. However, with 5 million people in the UK still to have their first jab, we cannot take our foot off the pedal in getting the message out. Strenuous efforts must now also continue to persuade those staff who are still hesitant. What plans do the Government have to achieve that?

In the light of Monday’s decision, I ask again: when will the Government take action to make all workers eligible for sick pay to enable them to do the right thing and isolate when they need to without the fear of being unable to feed their families? One in five care homes still do not pay their staff full wages to isolate. Why have the Government still not sorted this? Is it not an essential requirement for being able to learn to live well with Covid?

Technically, the next stage is the Government’s consultation on ending vaccination as a condition of deployment in health and social care settings—that is now under way—and then bringing forward the necessary statutory instruments to revoke the regulation for Parliament’s approval. Can the Minister explain the process and timescales for this? I understand that the Secretary of State has also promised to strengthen the guidance on staff’s duty to be vaccinated. Can the Minister say more about that?

We know that NHS Providers and the NHS Confederation have expressed their concern and frustration at managers having to have such a significant 11th-hour policy change, just three days before the deadline for first jabs, after all the hard and complex work that had gone into meeting the deadline. Can the Minister explain why the decision was not made earlier given, in particular, the growing concern in the NHS and social care about escalating job losses and staff vacancies? These organisations and the many staff who have strongly advocated the mandatory policy fear that the change may have a serious impact on the wider message for staff, and the population as a whole, on the importance of being vaccinated. Can the Minister say how this is to be combated?

Finally, I want to ask some practical questions about next steps. Have the Government instructed employers not to proceed with plans to implement mandatory vaccines from today, including the issue of pre-dismissal notices? What advice has been given to employers on how to approach all this? What will happen to the thousands of staff dismissed from their roles in social care settings last autumn? How will the Government’s decision impact on their approach to other vaccination programmes for health and social care staff, such as in relation to flu jabs?

Health and Care Bill

Baroness Wheeler Excerpts

Lords Hansard - Part 1 & Committee stage
Monday 31st January 2022 Lords Chamber

[Lord Davies of Brixton (Lab)]

I was going to oppose the question that Clause 80 stand part of the Bill, but I thought the order of speakers was going to be somewhat different. I am sorry—I am looking to my Front Bench for guidance.

[Baroness Wheeler (Lab)]

My noble friend wrote to the Table Office and said that he did not want Clause 80 to stand part and that he wanted Amendment 217, which I shall be moving, to start this group, as it did originally.

--- Later in debate ---

Moved by

[Baroness Wheeler]

217: After Clause 80, insert the following new Clause—
“Social care needs assessments
(1) A social care needs assessment must be carried out by the relevant local authority before a patient is discharged from hospital or within 2 weeks of the date of discharge.(2) Each integrated care board must agree with all relevant local authorities the process to apply for social care needs assessment in hospital or after discharge, including reporting on any failures to complete required assessments within the required time and any remedies or penalties that would apply in such cases.(3) Each integrated care board must ensure that—(a) arrangements made for the discharge of any patient without a relevant social care needs assessment are made with due regard to the care needs and welfare of the patient, and(b) the additional costs borne by a local authority in caring for a patient whilst carrying out social care needs assessments after a patient has been discharged are met in full.(4) The Secretary of State must publish an annual report on the effectiveness of assessment of social care needs after hospital discharge, including the number of patients readmitted within 28 days.”Member’s explanatory statement
This amendment would create protections for the provision of social care needs assessments. It includes requiring an assessment to be carried out either before a patient is discharged from hospital or within two weeks of discharge; and requiring ICBs to agree a process for the provision of assessments.

[Baroness Wheeler (Lab)]

I am sorry about the confusion and I thank my noble friend Lord Davies for helping to clear it up.

Amendment 217 seeks to tighten up important safeguards for patients and their carers by adding a new clause after Clause 80. Clause 80 repeals current provisions under the Community Care (Delayed Discharges etc.) Act 2003 and regulations for hospital discharge, and paves the way for the discharge to access approach used particularly during the pandemic. I thank my noble friend Lord Davies for allowing me to move this amendment and not opposing the question that this clause stand part. I know he will want to speak at some point during the debate.

We know that during the pandemic the discharge to access approach led to some very welcome and innovative practices in getting patients out of acute settings in hospital into safer environments. The approach also led to tragedy, when untested patients or patients with Covid were transferred into care homes, causing the rapid spread of infection and, sadly, hundreds of deaths that could and should have been avoided. Evidence from key stakeholders to the Commons committee dealing with the Bill reflected a very mixed experience of this new process. In some areas the perennial and disruptive issues around delayed transfer had eased and the process was working relatively well, while others sought much tougher safeguards or the end to the discharge to access process altogether.

Amendment 217 seeks to ensure the vital safeguards needed, which are particularly important since Clause 80 repeals key provisions but is not exactly clear on what replaces them. We are therefore seeking to add a new clause after Clause 80, ensuring that social care needs assessments take place by the local authority either before a patient’s discharge from hospital or within two weeks of discharge. It also requires the ICB to agree a process for the assessments with the local authority.

The amendment covers the need to have due regard to the care needs and welfare of the patient and ensures that the NHS meets in full local authority costs of caring for a patient while a social care needs assessment is taking place if the patient is discharged without one. It provides for the ICB to agree the social care needs assessment process with the local authority, including timescales and reporting on any failures, and the remedies and penalties that would apply if assessments were not carried out in the required time. We also call for monitoring and reporting to Parliament annually by the Secretary of State on the effectiveness of social care needs assessments after discharge, including information on patients who have had to be readmitted after 28 days.

Our amendment fully complements the remaining important amendments in this group, which seek to ensure effective safeguards before and during the hospital discharge process for carers as well as their loved ones under Clause 80, and for young carers under Clause 148. We fully support Amendment 219 providing an “NHS duty to carers” and ensuring that

“their health and wellbeing is taken into account”.

We support Amendment 221 on protecting carers’ rights and ensuring full consultation with them before discharge as well as consideration of their needs in terms of safety, information, services and support. We support Amendment 225 on the definition of carers, which restates the current and hard-fought-for legal rights of carers and young carers under the Care Act 2014 and the Children and Families Act 2014, including those relating to the parents and carers of disabled children. We also support Amendment 269 on the important right of young carers to needs assessments under the Children Act 1989 and the essential need for local authorities to consider the appropriateness of discharging a patient from hospital into the care of a young person.

Like other noble Lords, I am very grateful to the excellent briefings from Carers UK and from young carers. I look forward to the contributions of noble Lords. On hospital discharge, we know the original discharge to access guidance was twice published without any reference to carers. I suppose we must be grateful that the two paragraphs that have subsequently been added reinstate the Care Act Part 1 references and provisions for carers.

But this is not enough to maintain and protect the hard-fought-for rights of carers. Hospital discharge can be one of the most difficult points in the care system for both existing and new unpaid carers, who are often taking on caring responsibilities without the right information and support or consideration of the impact on the carer as well as the loved one. Indeed, this can be the most traumatic time for new carers other than, of course, the shock of, and coming to terms with, their loved one’s sudden illness or disability. I can certainly endorse that from my own experience and my discussions with many other carers I meet. I know that carers still have many serious concerns about the current guidance and I will leave it to my noble friend Lady Pitkeathley to vent the anger and frustration that is felt over some aspects of the guidance.

Amendments 221 and 225 seek to retain carers and young carers’ current and legal rights under the Community Care (Delayed Discharges) Act 2003—which contains a direct requirement to identify and consult the carer before issuing a discharge notice—and other key legislation, including the Children Act and the Children and Families Act, relating to young carers and parent carers of disabled children. I have added my name to Amendment 225. I feel particularly strongly about the need to include a definition of “carers” in the Bill and to stop the Government in particular but also the media and others using “carers” when, in fact, they are referring to care workers and not unpaid carers. As Carers UK says, absolute clarity and getting the terms right means a great deal to carers, especially when they have so few concrete rights. The two roles are not the same; they are different. There is huge frustration on this issue among carers as it feels as if we are going backwards rather than forwards. I want to know from the Minister what the Government are going to do to address this situation.

On young carers, with recent research showing that there could be as many as 800,000 children providing regular care, Amendment 269 from the noble Lord, Lord Young, to which my noble friend Lady Merron has added her name, takes on even greater importance to ensure that arrangements for discharging patients without a care needs assessment do not unduly impact young carers. It would also ensure that assessments by councils include consideration of whether it is appropriate for a younger carer to provide care. As well as that, support services must be in place for the safe discharge of the parent. We know that caring for parents, siblings and other relatives will have a significant impact a young carer—on school attendance, exam results and on their well-being and future careers. Every classroom in the country is likely to have at least one carer, and we must ensure that they are fully supported.

This is an important group of amendments and I look forward to the debate in the hope that the Minister will recognise the need for the important issues outlined in the amendments to be included in the Bill. To remind noble Lords, at the height of the pandemic, there were an estimated 13.6 million unpaid carers in the UK, 1.4 million of whom provide more than 50 hours of unpaid care a week. They are more than twice as likely to be in poor health than those without a caring responsibility, and 72% of carers did not have a break from caring during the pandemic and are exhausted and worn out. Carers deserve better than this—there is much to do. These amendments would at least ensure that their existing legal rights are protected and built on. I beg to move.

--- Later in debate ---

[Lord Kamall (Con)]

I thank the noble Lord for his question. The goal is to make sure that the NHS and local authorities work better together. The noble Lord talks about resources. One of the reasons for the levy—whatever one thinks of it—is to help plug that gap and to make sure that there is more money going into social care as well.

Turning to the points made about the term “carer”, we believe that the term is used to capture the whole spectrum of carers, including children and adults who care, unpaid, for a friend or family member. By not imposing a statutory definition, we avoid inadvertently excluding groups, and ensure that ICBs and NHS England promote the involvement of all types of carers and representatives.

Turning to the last amendment in this group, existing legislation already requires local authorities to carry out an assessment of need for all young carers upon request or on the appearance of need. This assessment must consider whether it is appropriate or excessive for the young carer to provide care, in the light of the young carer’s needs and wishes. Indeed, as some noble Lords have said, sometimes what happens is that the hospital may decide it is appropriate but those who are supposed to be doing the caring at home do not feel they have the ability.

We hope that under this, as part of the discharge planning, the current discharge guidance can set out any considerations that should be given to young people in the household who have caring responsibilities. We want to strengthen current processes in respect of young carers too. We are also working with the Department for Education to ensure that protections for young carers are reflected in the new guidance, including setting out where young carers should have a needs assessment arranged before a patient for whom they provide care is discharged, or as soon as possible afterwards.

Given the comments from noble Lords, especially the noble Baroness, Lady Pitkeathley, and the noble Lord, Lord Warner—sorry, I should say, General Pitkeathley and Major Warner—clearly there are still some concerns over how this will work. It would be worthwhile having some more conversations on this issue to better understand how we see integrated care working, where there may well be gaps in our understanding and whether we can help to close the gaps between the two sides.

[Baroness Wheeler (Lab)]

My Lords, it has been an excellent debate and I thank all noble Lords for their contributions, all strongly supporting this important group of amendments, which would ensure that the needs of both patients and carers were fully taken into account in the discharge process and that Clause 80 does not just wipe away carers’ rights—legal rights that have been hard-fought for. Although I am pleased that the Minister talked about further guidance being developed and co-produced, I cannot see how that will address the problem of replacing carers’ rights, which are being taken out of this Bill and need to be included in it.

I am also a bit disappointed that the Minister did not respond to my noble friend Lady Pitkeathley or give her the reassurances that she was seeking over the deep concerns about the expectation in the current guidance that unpaid carers will need to take on even more unpaid work. She made her views quite clear on this: it is paid work that unpaid carers need, not to be forced on to or to stay on benefits. They can take up jobs only if they get the care and support that is needed in the home or from the services that they need.

Noble Lords have made it clear that the discharge to assess model has to be matched with proper funding and community and healthcare services. The noble Baroness, Lady Hollins, reminded us of the importance of this in respect of the carers of people with learning difficulties, who face particular problems in caring. It is also overwhelmingly clear that noble Lords strongly support the establishment and the carrying forward into the Bill of existing carers’ rights.

I hope the Minister will meet urgently with my noble friend Lady Pitkeathley, Carers UK and others involved in these amendments, both to address the fundamentally wrong assumptions in the guidance about the role of unpaid carers and to ensure that their existing hard-won legal rights that have been taken away will be included. He also needs to provide the evidence called for by my noble friend on the overall assumption the Government are making that the discharge to assess process is better for carers than the existing rights that they have; it is not. This is a key issue that we will return to on Report, so I hope some action will be forthcoming from the government discussions between now and then.

On my own amendment, I would like to have heard a lot more reassurances about the timescales and timelines involved in the discharge process. I thank the noble Baroness, Lady Altmann, and in particular the noble Lord, Lord Scriven, for his support, and for explaining why this issue is important and how, practically, it would work with local authorities. On young carers, I particularly thank the noble Lord, Lord Young, and everybody who has participated in that.

I remind the Minister of the point from the noble Baroness, Lady Meacher: in the discharge process and in the assessments of carers it is really important that the question be asked whether they are able to care and whether they want to care. I would like the Minister to take up that issue. I know that carers feel strongly about this, but quite often, even if they are asked, no notice is taken and they just have to get on with it and nothing else happens. I would particularly like to see a response to that.

On those few points, I beg leave to withdraw my amendment. I hope the Minister acts quickly to meet carers and their representatives.

Amendment 217 withdrawn.

Covid-19: Antiviral Pills

Baroness Wheeler Excerpts

Monday 31st January 2022 Lords Chamber

[Lord Kamall (Con)]

At the moment, they are available to anyone in an at-risk group and unable to have a vaccine. In addition, we have started a new trial to get more data—called the PANORMIC trial—including anyone over 50 who has tested positive through a PCR test and anyone in an at-risk group between 18 and 49 who catches Covid. The difference between vaccinations and antivirals is that vaccinations are there to stop someone getting Covid, or to make sure that they do not suffer the worst symptoms, whereas antivirals are given to anyone who has tested positive.

[Baroness Wheeler (Lab)]

My Lords, we welcome the news over the weekend about high-risk patients getting the Paxlovid antiviral drug from 10 February through the NHS if they test positive. There are also very positive results about the Molnupiravir drug, which has already been rolled out to high-risk patients through the Oxford University study. The British Liver Trust, Kidney Care UK and Cystic Fibrosis Trust are leading urgent calls for people suffering with these very vulnerable conditions to sign up to take part in the on-going clinical trials, which are essential in gathering further evidence and information. What action are the Government taking to ensure that doctors and patients have the latest information about the drug and the trials and to combat the ill-informed and dangerous antiviral scepticism that we know will be forthcoming?

[Lord Kamall (Con)]

I thank the noble Baroness for her question and for making people aware of the PANORAMIC study. One of the things that we are trying to do is look at the communication programme. If we look at the antiviral taskforce, we are looking at a number of different communication channels. For example, tomorrow morning, I believe, I will be co-chairing a webinar with many black and minority ethnic groups and activists to see how we can roll out and get their support in rolling out to those communities. We are looking at a number of different channels and particularly working with a lot of the charities which specialise in things such as chronic kidney disease, liver disease—I have a long list of conditions, which I will not read out now.

Social Care Sector: Private Equity

Baroness Wheeler Excerpts

Thursday 27th January 2022 Lords Chamber

[Lord Kamall (Con)]

The noble Lord makes an important point about the level of debt, but I am sure he is aware that a number of private companies operate with levels of debt. As we saw in the financial crisis, the issue is whether that debt is sustainable. The noble Lord, Lord Sikka, who is an accounting standards expert, understands all of the issues around IFRS 9 and all of the downsides to that when sufficient provision is not made for debt.

[Baroness Wheeler (Lab)]

My Lords, the Minister’s predecessor in this role repeatedly told the House that there was nothing wrong with the business model for the care home sector, despite record numbers of closures—particularly of small, independent homes, which are the backbone of residential care—and the dire financial problems that they face, with councils unable to pay going rates for staff pay and residents’ fees. This is all compounded by the pandemic. The Centre for Health and the Public Interest estimates that around £1.5 billion leaks out of the health system each year, listed as

“dividend payments, net interest payments out, directors’ fees, and profits”.

Should this not all be going to front-line patient care?

[Lord Kamall (Con)]

We believe that the quality of care that patients receive is really important—

Health and Care Bill

Baroness Wheeler Excerpts

Lords Hansard - Part 1 & Committee stage
Wednesday 26th January 2022 Lords Chamber

I do not believe that Parliament is unable to grasp technically complex matters, nor to understand them, when illustrated by examples given by a Minister at the Dispatch Box introducing a regulation. I suggest that that is what the Government should do instead of publishing a document; they should explain and give examples. It is patronising to Parliament to suggest that it cannot grasp these issues. The Government have gone too far. It is a power grab and I suggest that the Government withdraw and do exactly what my noble friend Lord Sharkey suggests.

[Baroness Wheeler (Lab)]

My Lords, I thank the noble Lord, Lord Sharkey, for opening this important group and moving Amendment 106, to which my noble friend Lady Thornton added her name. As he explained, the substance of this amendment was singled out by the Constitution Committee and highlighted by the Delegated Powers and Regulatory Reform Committee. I reinforce the Constitution Committee’s endorsement of the DPRRC’s recommending the removal from Clause 20 of the imposition of legal liability merely by publishing a document. We agree with the two committees that this is a necessary amendment, and I look forward to hearing from the Minister how these concerns will be addressed.

Somewhat paradoxically, Amendments 143 and 144 strengthen the powers of NHS England in its quest for top-down management and imposition. However, they sit within the wider context of describing how NHS England would be able to give directions to integrated care boards under Clause 20 and improve these provisions, so we support them.

The remaining amendments on NHS Continuing Healthcare underline how vital it is to address this urgent issue, although it is not central to the intentions of the Bill. I thank the noble Baroness, Lady Greengross, for ensuring this focus in the debate and for Amendments 133 and 139, which ensure that this crucial issue is specified under the ICB’s duties and included in its annual report and performance review accountabilities.

Today, we heard in detail about the widespread concern about and scale of the problems with the way in which the NHS Continuing Healthcare scheme works and is funded, and the arguments it leads to about who pays for what, as a shared responsibility between the NHS and local government. Patients and their carers feel they are the sideshow, not the central focus of concern, and are deeply traumatised and upset by the whole experience.

As a carer of a disabled adult myself, like my noble friend Lady Pitkeathley, I know, from meeting many other carers and their loved ones, their deep concern about this. The three things that cause most concern and upset, which one hears time and again, are, first, the huge problems with inadequately funded social care packages—or their absence—to meet basic care needs, and deep worries and anxieties about how the care cap will operate; secondly, the trauma of the discharge-from-hospital process for carers and their loved ones, which we will discuss later; and thirdly, NHS Continuing Healthcare, the postcode lottery of whether your loved one receives it or not, the huge bureaucracy around the application and allocation process, the long wait for a response and being stuck in the middle of an NHS local authority fight over funding. As the noble Baroness, Lady Finlay, stressed, there is an urgent need to tackle the accountability gap in this process.

NHS Continuing Healthcare is the absolute manifestation of what our Economic Affairs Committee report on the “national scandal” of social care funding called the “condition lottery”—in other words, the wide disparity between health conditions for which people receive healthcare that is free at the point of use and those for which users usually have to make a substantial contribution with “catastrophic costs”, in the committee’s words. As we heard today, dementia is the condition most cited in this regard, but many of us know of cases where people with motor neurone, Parkinson’s and other degenerative diseases have struggled to get NHS Continuing Healthcare funding, either for home care or support in residential homes.

We support Amendment 161, which ensures that the Care Quality Commission reviews must include this issue. However, I am unclear—and may well learn in a minute from the Minister—what role the CQC currently has in looking into all continuing care matters which traverse NHS and local authority boundaries. However, we support its involvement.

The amendment would also ensure that the CQC reviews include looking in depth at how NHS Continuing Healthcare is working under each ICB. That will mean that at last we can begin to develop the much needed strategic overview of this crucial area for thousands of people in desperate need of care and support.

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

My Lords, I thank the noble Lord, Lord Sharkey, and the noble Baronesses, Lady Finlay and Lady Greengross, for bringing this group of amendments.

I understand the intention behind Amendment 106, on payment to providers, which is to remove new Section 14Z48 in its entirety, but the section will allow NHS England to specify the circumstances in which an ICB is liable to make payments to a provider for services commissioned by another ICB.

The Government are committed to ensuring that delegated powers in the Bill use the most appropriate procedure, so that Parliament has due oversight of their use. We recognise that the Bill contains a significant number of guidance-making powers and powers to publish documents. However, we believe that they are appropriate because, as the noble Baroness, Lady Walmsley, said, they reflect the often complex operational details and the importance of ensuring that the guidance keeps up with best practice, especially as the system flexes and evolves. I understand the noble Baroness’s point about Parliament, but the issue here is whether, every time the system flexes, Parliament has to have another debate. The ICBs will be reading the guidance, not Hansard, and the guidance should reflect that.

Nor is it our intention to interfere unduly in the financial affairs of ICBs. Instead, the intention is to resolve specific circumstances, such as emergency services. The legislation makes it clear that each ICB has to arrange for urgent care services to be available for all people physically present in the area, not just for the people who are its core responsibility by virtue of their GP registration. I am sure noble Lords will agree that it would be neither fair nor in the best interests of promoting an efficient health service for the ICB to both arrange and cover the cost of all additional emergency treatment brought by visitors to the area, particularly in areas with high visitor numbers. A number of noble Lords referred to that principle in debates last week.

Instead, this provision allows NHS England to mandate a different payment rule for those services, ensuring that, where necessary, the ICB where a patient is registered will pay, rather than the ICB where they receive treatment. This ensures that the financial impact is felt in the right commissioning organisation and eliminates the risk of some ICBs having unreasonable financial demands placed on them—for example, during the holiday season.

The wording of this provision replicates almost exactly the National Health Service Act 2006 as amended in 2012, but it is updated to reflect the new ICB structure. As my noble friend Lord Howe mentioned to me, we had a massive debate about this 10 years ago, but the provision seems to have worked effectively in the CCGs, and we wish to continue that with the ICBs.

Amendments 143 and 144, in the name of the noble Baroness, Lady Finlay, are about NHS England directing ICBs. I understand the interest in ensuring that NHS England has the necessary tools to intervene in ICBs where necessary. However, we believe that NHS England already has sufficient powers to direct ICBs. NHS England already has certain powers to direct an ICB under Section 14Z59(2), and powers to intervene over ICBs in order to prevent failure and to ensure that the lines of accountability from ICBs through NHS England to Parliament are strong.

However, this power has a threshold in that it can be used only if NHS England deems an ICB to be failing to discharge a function or at risk of failing to do so. The threshold removes the possibility of NHS England overdirecting the system while retaining the power for use if necessary. This balances the need to prevent failure and to support accountability with allowing ICBs the autonomy they need to operate effectively.

Amendments 133, 139 and 161 expressly require that ICB annual reports and NHS England performance assessments of ICBs include specific consideration of commissioned services, including NHS Continuing Healthcare, which noble Lords have spoken about, and that the CQC reviews of ICSs include specific consideration of that. We agree with the principle, but we believe that it is already covered in the Bill. NHS England already has a key role in overseeing ICBs. For example, the Bill requires NHS England to assess the performance of each ICB every year, and ICBs are required to provide NHS England with their annual report. These reports will include an assessment of ICB commissioning duties, which would encompass any arrangements for NHS Continuing Healthcare.

In addition, as noble Lords are aware, Clause 26 gives the CQC a duty to assess integrated care systems, including the provision of relevant healthcare and adult social care within the area of each ICB. This would include the provision of NHS Continuing Healthcare. We intend the CQC to pilot and develop its approach to these reviews in collaboration with NHS England, but also with other partners in the system. This should ensure that the methodology does not duplicate or conflict with any existing system oversight roles.

With this in mind, we believe that these amendments are not necessary, because commissioned services, which we would expect to encompass NHS Continuing Healthcare, are already included in these clauses. I hope that I have been able to somewhat reassure your Lordships. For these reasons, I ask noble Lords not to press their amendments.