Health and Social Care Bill

Baroness Williams of Crosby Excerpts

Wednesday 30th November 2011 Lords Chamber

[Baroness Thornton]

My Lords, I also speak to my other amendments in this group. Over supper my noble friend reminded me that the late lamented Lord Carter, a previous Government Chief Whip, used to say to Ministers and others that if we needed to save time, the thing to do was to speak only from every other page and see if anybody noticed. What I intend to do is to try and speak from every other paragraph.

These issues deal with the serious potential conflicts of interest that GPs will face in their new role as commissioners of health services. When this group of amendments first started out it contained only two amendments but it has now, quite rightly, grown substantially to address the major concerns of transparency, integrity and patient confidence and the issue of trust that must be addressed in their new role. In passing, I would say that the publication of the Government’s recent draft guidance on commissioning, Developing Commissioning Support: Towards Service Excellence, in effect decrees that by 2016 the real work of CCGs will be outsourced, presumably to large private providers, which makes me start to question what is left for CCGs to worry about. However, the issue that these amendments deal with is a fundamental issue of the Bill.

We all have high regard for our GPs and we trust them as experts and advisors. We know from the evidence that they do a cost-effective and good job. Our national system of GPs may be quirky, half in and half out of the NHS, but it works. At its best, it is the very best system in the world.

We are concerned that the Bill endangers the trust that patients have for their GPs and, essentially, these amendments seek to explore and to test that. GPs are going to be decision-makers across the whole breadth of commissioning, making decisions about priorities and standards, things that may often be unpopular, and reconfigurations of service. They will handle huge amounts of money, own budgets and get bonuses for good financial performance. So patients need to be assured that they can continue to trust their GP and that their GP will always act in the patient’s best interest. This concern has been flagged up by the BMA and the Royal College of General Practitioners, so I hope that the Minister can tell the House how we will be able to protect the image and reputation of our GPs after the first CCG goes wrong. Amendment 156 starts with the obvious necessary safeguard that providers of primary medical services who have a direct or indirect financial interest in the provision of services that a CCG is required to provide must not be members of the CCG. Amendment 161 is also key in requiring the Secretary of State to issue guidance which must be incorporated into CCG constitutions on how conflicts of interest must be dealt with by consortia as part of their decision-making. Transparency and clarity about how potential conflicts of interest would be managed is essential if the confidence of the public is to be maintained.

Openness and transparency are supported by Amendment 176A, requiring CCGs to maintain a publicly accessible register of all potential conflicts of interest of individuals involved in any part of their commissioning process. Taken together, Amendments 176A and 224 reinforce this, and call for regulations to stipulate that no provider should be a member of a CCG if they have any financial interest in the provision of any service the CCG is required to commission; in other words, open book accounting.

We do not think it is enough, as Amendment 228 proposes, for a CCG member merely to declare their financial interest in a commissioning decision being taken by their CCG, or absent themselves from decision making on that provider. We expect our councillors to operate under this regime. We should expect other people responsible for public money to do the same. Indeed, this transparency and openness, and the declaration of interests, should be extended to their families, in the same way that it is for other public servants.

Finally, I want to underline that we recognise that extending GP commissioning and setting up CCGs has the potential to give GPs freedom to innovate, improve services and use commissioning to develop new models of care in the interests of the communities they serve. The safeguards against conflicts of interest proposed in these amendments are not designed to shackle CCGs. As I have said, the Department of Health commissioning guidance already does that. The safeguards will ensure that they abide by the reasonable rules, regulations and codes of practice that we would expect of any statutory body responsible for taxpayers’ money worth millions of pounds.

The public needs to be assured that robust governance arrangements are in place for commissioning consortia, and that conflicts of interest will be managed effectively. I beg to move.

[Baroness Williams of Crosby]

My Lords, I have a great deal of sympathy with the intention behind this amendment. Noble Lords will remember that from the very beginning of the discussion about this Bill, there has been a great deal of concern about the conflict of interest that could so easily arise. Many of us recognise that the relationship between patients and general practitioners crucially depends upon that relationship being one of trust. The same will apply, if the commissioning groups work well, to the relationship between them and the patients who are within the practices of which they are part. So I sympathise very much with what the noble Baroness, Lady Thornton, has proposed, and also with what the noble Baroness, Lady Finlay, has proposed in Amendment 161.

Our concerns on this side of the House are not with the whole motivation behind this. We believe that that is extremely important and we completely share it. It is our feeling, rather, that the remedies are not adequate to the scale. We feel, for example, that one of the weaknesses of both amendments is the lack of any effective sanctions against those who breach what would be a relationship of trust. At the moment there is not provision within the Bill for effective sanctions, which can be used to ensure that these high-minded and perfectly proper principles are lived by.

The Nolan principles have been very effective in local government—as we all know—and increasingly effective in national Government. There are references to those in the course of the Bill, but there is no specific determination that members of the partnership groups or the CCGs would be dealt with, if they were in breach of the requirement that they should not ever put their own interests ahead of those of their patients.

I suggest to the noble Baronesses, Lady Thornton and Lady Finlay, and her associates in moving these various amendments, that they would look at the amendment we have put down—and I suggest this with due humility—which effectively brings into practice powerful sanctions. We believe these will be effective in ensuring that this relationship of trust is upheld, and also that powerful requirements lie on every CCG, as well as on the board itself, that it would be absolutely clear that all interests must be declared publicly.

These will ensure that once people’s names are on the register, and they have made a declaration of the appropriate kind about their own interest never being put forward as the reason for a decision, there are then effective measures that will enable the whole issue to be dealt with in detail, with appropriate requirements of sanctions and of effective punishment for those who breach them. We believe this to be absolutely central to the working of the clinical commissioning groups and to the whole relationship of doctors to their patients.

So, with those few words, I hope I can persuade the noble Baronesses, Lady Thornton and Lady Finlay, to have a look at the proposals that we have put forward, which, I am pleased to say, have at least to some extent the support of the noble Baroness, Lady Finlay.

[Baroness Finlay of Llandaff]

My Lords, I certainly support the amendments tabled by the noble Baroness, Lady Williams, who has just spoken, and they go further than the amendments to which I have added my name. I would just draw the attention of the House to the conflicts of interest guidance from the General Medical Council, which makes it quite clear that doctors,

“must be honest in financial and commercial dealings with employers, insurers or other organisations or individuals”.

It goes on to say:

“If you have a financial or commercial interest in an organisation to which you plan to refer a patient for treatment or investigation, you must tell the patient about your interest”.

I would also remind the House that the ultimate sanction is to be struck off, and that if you are struck off, you lose your livelihood. I have a concern that when it comes to the implementation, warnings may actually be issued rather than stronger sanctions taken against those who might breach such guidance, because this is guidance, and it is therefore subject to interpretation.

This whole group of amendments has really gone to the heart of the problem of conflicts of interest, both for the individual general practitioner, who would be on a clinical commissioning group, but also their families and all those others around. It may be friends of theirs, who they know really well, with whom they are inclined to place some commissioning contract, or enter into some arrangement. There is a really fine line between having a personal interest, and going to that person because professionally you think that they are the best person to do the job.

Of course, I will say as a doctor, we all know the doctors that we would like to be referred to, and we all know the people who we want to work with in our teams. That is human nature. It is a mixture of competence and attitude, but there is also something about having a shared set of values, and so on, because you tend to gravitate towards people who share the same set of values as yourself. The highest principles and values would of course fall, I would hope, outside of the conflicts of interest, but financial interest is a really difficult one.

While I would suggest that none of these amendments are absolutely perfect, this group of amendments illustrates the fact that we need to come back to this at Report with a definitive amendment that really crystallises the whole problem around conflict of interest in commissioning.

--- Later in debate ---

My Amendment 167BA makes the same point in respect of the dissolution of a clinical commissioning group. My Amendment 220ZC will also provide for patients covered by a clinical commissioning group to be consulted in any proposed dissolution. Amendment 167D relates to property transfers in the event of a dissolution or variation of the constitution of a CCG and again requires the board to consult before a property transfer can take place. Finally, my Amendment 165 provides that when a clinical commissioning group is granted an application, it is wholly committed to assume the duties under Section 3 of the NHS Act 2006.

[Baroness Williams of Crosby]

My Lords, I congratulate the noble Lord, Lord Hunt, particularly on Amendment 160A. The idea that patients whose GPs are serving on the Commissioning Board, or are part of a commissioning group which represents that board, should be consulted and we should hear what their own experiences have been, is innovative and interesting. He should be congratulated on putting it forward. It means involving patients as individuals in their own assessment of the service that they have had. Time and again the Bill reflects the demand that that should happen—no decision without me, and so on. This actually makes that real. It gives the words flesh, and I congratulate him on that. It is quite an exciting idea and I hope that it is one that will commend itself to the Government, given the Government’s wish to involve patients.

I am not so happy about Amendment 163B. I fear that the opposition Front Bench has not taken on board as much as I hoped that it might the idea that regulations should not go straight to Parliament, even if they are affirmative, but should go by way of the Health Select Committee. The noble Lord will be familiar with the argument—that the Health Select Committee has a huge range of expertise and knowledge. As a former Minister he will know—as well as I or the noble Baroness, Lady Thornton, knows—that the regime of regulatory scrutiny is not very effective. If there is an individual Member of Parliament in another place who knows a great deal about it and is concerned about it, you can have a real debate and that real debate can affect the outcome with regard to regulation. However, nine times out of 10, there is no great debate. In the case of the negative resolution procedure, there is often no debate at all.

I fear that this is a very weak safeguard for the huge amount of regulation that is built into the Bill. I therefore hope that I might commend to the House, and not least to the opposition Front Bench, the idea of looking again at the proposal, which is also radical and new. It is an idea that really ought to commend itself to those of us who believe strongly in accountability to Parliament and in the need to strengthen Parliament’s power vis-à-vis the Executive across the whole world.

[Lord Hunt of Kings Heath]

My Lords, perhaps I can come back to that. On Amendment 160A, I am grateful to the noble Baroness for her support. I am not even sure that I got it right. I am also trying to get at the fact that so much is happening now without any consultation. The CCGs are essentially being decided by the system and then at some stage there will be a formal application process. I am long enough in the tooth in the health service to know about NHS consultation. Frankly, we all know that the traditional NHS consultations make the decision and then consult. I fear that, with CCGs, this is what is happening. While I welcome the support for the involvement of the public in a formal application, I find it perplexing that so much is now being decided and that the public are not involved at all.

I listened to the noble Earl before supper talking about this being bottom up. That is not what is happening. I do not think that he understands quite how much this is being driven by the centre. It is quite extraordinary. You can call it guidance, but putative CCGs are being given such clear steers about what will be acceptable. I feel that we will reach a situation where, at some point, it will all be a done deal and the consultation will simply not be realistic.

On the noble Baroness’s comments about making the regulations affirmative, I accept that, even if they are affirmative, there is a limit to what parliamentary scrutiny can provide—although that does provide some safeguards. I would be interested in debating the idea of giving the Health Select Committee a role, although excluding your Lordships’ House from it would be a problem. I say to the noble Baroness that I think it a pity that the House did not adopt my suggestion about a mandate for a kind of national policy statement approach. There is an argument for having a more interactive debate, if you like, about some of these matters. I very much take to heart her constructive comments on this and the Select Committee role. It could be a very useful debate for the future.