Health and Social Care Bill

Baroness Williams of Crosby Excerpts

Monday 19th March 2012 Lords Chamber

[Lord Deben]

For exactly the same reason that the National Health Service does.

[Baroness Williams of Crosby]

My Lords, what the noble Lord, Lord Deben, said is well worth listening to, but I shall add one other important factor before I come on to the amendment moved by the noble Lord, Lord Owen. As the noble and learned Lord, Lord Mackay of Clashfern, pointed out—and it is a crucial factor in our discussion—the risk register that was drawn up in autumn 2010 took no account of the changes made by your Lordships’ House. It could not because it could not foresee the future. That means that the risk register of 2010, the transitional register to which the chairman of the tribunal referred, is almost useless in enriching and informing the debate we are having in this House. Therefore, far from being helpful, it will in many ways be extremely misleading because it will confirm the incorrect beliefs of many members of the public who have not understood what has happened in this House. You only have to read the newspapers to see how widespread is the total ignorance of what we have done here, whether we talk about competition, training or constitutional change. That is the crucially troubling aspect of what we are discussing. It leads the general public and Members of this House and elsewhere back to an out-of-date and anachronistic finding.

I have one more thing to say about the amendment moved by the noble Lord, Lord Owen. The House needs to recognise that he has made a very substantial change of great importance in it: he has accepted that there will be a Third Reading in this House. He has accepted that the outcome of the Third Reading will be binding upon everybody in this House and beyond because it will be part of the system of law. What he has asked for is more time and opportunity to have the finding of the tribunal discussed in this House. In that, he is absolutely correct. I do not believe that we have gone anything like sufficiently far in trying to accommodate that reasonable request because there is time left in this Session of Parliament. It ought to be possible to transfer a day or two from the Scotland Bill to the health Bill so that it could be properly discussed; or there is something that the noble Lord indicated he would accept, which is a very narrow redaction of anything in the risk register that would be seen as desperately dangerous to public trust in the NHS.

My view is a rather curious one. It is that the noble and learned Lord, Lord Mackay, is right in pointing to the real dangers of treating the risk register as a source of knowledge and truth, but I also believe that the Government should have gone further in trying to find time somewhere, if necessary—dare I say it?—even taking a day off the sacred Easter Recess to enable this House to discuss in detail what is coming out of the chairman of the tribunal’s decision on the risk register so that we can get it straight.

[Lord Wilson of Dinton]

I add my support to what the noble Lord, Lord Fowler, and others who have spoken against the Motion said. I am deeply concerned about the implications of the Motion for the Civil Service.

Every day in government, Ministers consider policy issues and depend on the Civil Service for advice. Anyone who has been a Minister understands the private space in which civil servants give their best advice. There is a major public interest in advice being given without fear of it becoming part of the political arena, in the press or in Parliament. If risk registers are published, the very act of publishing them will draw them into the public arena and politicise the advice. This is not about lying, or about being dishonest in any way, but the duty of civil servants is to the Ministers they serve and to the Government of the day. They have a job to do and they must do it to the best of their ability, but they must do it in a way that does not cause difficulty for the Government.

It is in all our interests that risk registers are honest and look at the worst case, and put it in terms that leave the Minister in no doubt about the risks that are being taken. If those documents are going to appear in the public arena, they are bound to be sanitised in some form. Advice will either be put in a way that does not fully expose the dangers, or worse still it will not be given. There is a real risk that important advice will be driven off the paper into oral remarks, which are not what the Minister needs. The Minister needs a document that he or she can read after the meeting, and ponder and mull in the stillness of their own room. If we push these documents into the political debate, we will lose a crucial part of the role of the Civil Service. If we do it a lot, over time there is a real risk that Ministers will want around them civil servants who are themselves political, because they have become part of the political debate.

This is a very dangerous pressure to put on the constitution. I understand the worries about the Bill, but this is not the right way to attack it. It would be a dreadful mistake if this House were, in the heat of the moment, to set a precedent that affected the Civil Service in its ability to serve the Government of the day.

Across all parties there is an understanding about the need to observe the conventions under which the Civil Service operates. I appeal to the House not to add its weight to this issue of the risk register in a way that might do damage, because the damage would be not only to this Bill and this department. Whitehall is watching; it is really concerned about this issue, and if this goes the wrong way it will have implications and reverberations across government in ways that I am sure this House would not want. I urge the House not to support the Motion.

--- Later in debate ---

[Earl Howe]

My Lords, this is an important topic. The noble Baronesses, Lady Finlay and Lady Hollins, have eloquently set out the important role that emergency care services play for all of us, and I could not agree more.

The Government are clear about the need to strive continuously for improved quality of urgent and emergency care. The move to clinical quality indicators for A&E and ambulance services will ensure a better reflection of the quality of the services that patients receive, rather than encouraging an isolated focus on time factors. Furthermore, the introduction of the NHS 111 service supports the commitment to develop a coherent 24/7 urgent care service in every area of England that makes sense to patients when they have to make choices about their care.

I hope that I can reassure the noble Baroness about how clinical commissioning groups will be supported in commissioning high quality emergency care. The NHS Commissioning Board will produce commissioning guidance, and also may produce guidance on the exercise of CCGs’ duty to obtain advice under new Section 14W. Both of these will reinforce the importance of effective and informed commissioning of emergency care. We have had many debates about clinical advice for commissioners during the course of our deliberations and, as I have previously mentioned, we anticipate that the clinical senates and networks that the Board will host will provide a resource of expertise, including in urgent and emergency care, on which CCGs can draw to inform their commissioning decisions. Equally, in order effectively to discharge their own duties with regard to obtaining appropriate advice, the NHS Commissioning Board would also need to take advice from a range of experts in order to assist them in producing such guidance. I understand that the College of Emergency Medicine has already engaged in useful conversations with the Commissioning Board Authority about how such engagement could work as it moves forward.

I reiterate the framework within the Bill for ensuring the accountability of CCGs in relation to the discharge of their duty under new Section 14W. CCGs must demonstrate, as part of authorisation, that they have the competence to carry out their functions effectively, and they will be held to account on that. As part of the authorisation process, the NHS Commissioning Board would need to be satisfied that a CCG can effectively commission the full range of services that its populations are likely to require, which of course would include urgent and emergency care services. It would also need to be satisfied that a CCG had the appropriate mechanisms in place to ensure that it could discharge its duty to obtain the appropriate level of advice in relation to these services. I also reassure the noble Baroness that the performance assessment of CCGs by the NHS Commissioning Board will look in particular at how they have discharged their duty to obtain advice.

The noble Baroness suggested that we should mandate that an emergency care specialist should have a seat on the CCGs’ governing body. As your Lordships are aware from our previous debates on membership following the NHS Future Forum report, we committed to use regulations to specify a minimum membership for CCG governing bodies. We plan to specify that each body should include at least two lay members, at least one registered nurse and at least one secondary care doctor. This secondary care doctor may well be an emergency care specialist, or a CCG may choose to add additional specialists to its body should it wish to do so—there is nothing in the Bill to prevent that. However, in terms of going further and specifying that an emergency care specialist must sit on these bodies, I am afraid I cannot go that far.

The NHS Future Forum’s report states that it would be unhelpful for CCGs’ governing bodies to be representative of every group. We agree with that. The prime purpose of a governing body should be to make sure that CCGs have the right systems in place to do their job well. It is these systems that will ensure that they involve the appropriate range of health and care professionals in commissioning. Requiring a bigger group of professionals on the governing body itself would not mean that a broader range were involved in designing patient services; it would just lead to governing bodies that were too large and slow to do their job well.

Turning now to the noble Baroness’s points about integration and competition in the context of emergency care, I agree with her about the importance of integration, and the Bill contains strong provisions to encourage and enable the delivery of integrated services. I reassure her again that choice and competition will not prevent the delivery of integrated services where these are in patients’ interests. Additionally, it will of course be for commissioners to decide where to make use of choice and competition in order to best meet their patients’ needs, and it is clear that this would not always be appropriate. Emergency care is a good example of a service where we would not expect to see competition.

I take this opportunity to respond to related concerns from the noble Baroness, Lady Hollins, who asked about the basis for competition. The Bill is clear that competition will not be pursued as an end in itself and that competition will always be on quality, not price. We made amendments in another place to ensure that this would be the case by removing the ability of Monitor and the board to set maximum prices rather than fixed prices. I hope that that answers the noble Baroness’s question on this point.

The duty on CCGs to obtain advice is deliberately wide-ranging in scope purposefully so as to ensure that it covers the full spectrum of services that CCGs will commission. I draw noble Lords’ attention to the language of new Section 14W: the advice must be drawn from people,

“who (taken together) have a broad range of professional expertise in … the prevention, diagnosis or treatment of illness, and … the protection or improvement of public health”.

That is very inclusive and it echoes the approach taken in Section 3 of the NHS Act, which the Bill amends, to establish the fundamental commissioning responsibilities of CCGs.

Noble Lords will wish to note that the interpretation—

[Baroness Williams of Crosby]

I am grateful to my noble friend for giving way. I want to ask one question. I recently met a group of general practitioners who claimed that they were too busy to be able to go out and find advice. Is there any central point, perhaps in the cluster or on the Commissioning Board, to which very busy GPs could go to get some idea about where they might obtain advice on, let us say, an unusual condition?

[Earl Howe]

I reassure my noble friend that there will be no shortage of advice available to CCGs once they are up and running, not only from the NHS Commissioning Board centrally—she will know that a programme of work is in hand on the part of NICE to produce quality standards that will underpin the commissioning guidance—but also from the clinical senates, which will fall under the wing of the board. We envisage that those senates will be a resource on which clinical commissioning groups can draw, not least in the area of less common conditions. We are very conscious that the quality of commissioning needs to be improved in many areas, and this is our answer to that. My noble friend has put her finger on an issue that is of central importance if the new duty to improve quality is to become a reality across the system.

Noble Lords will wish to note that the interpretation section of the NHS Act 2006 states that illness includes any disorder or disability of the mind,

“and any injury or disability requiring medical or dental treatment or nursing”.

We are absolutely clear that this covers cases relating both to physical and mental health requiring urgent and emergency care. This definition will apply to the duty to obtain advice in the new Section 14W. I hope I have been able to reassure the noble Baroness that CCGs will absolutely be expected to ensure that they obtain appropriate advice in order effectively to commission emergency and urgent care services; that they will be held to account for doing so; and that the current duty is deliberately drafted to ensure that it covers the full spectrum of services which CCGs will be expected to commission, including emergency and urgent care services. On this basis, I hope that she feels content to withdraw her amendment. I would, however, like to take this opportunity to thank the noble Baroness for our recent conversations on this topic, along with the College of Emergency Medicine.

My right honourable friend the Secretary of State and I both recently met with the college and found these meetings useful in exploring how we can ensure that we make the most of the opportunities presented by the new system in relation to improving the quality of emergency care. We look forward to constructive discussions with the college and with the noble Baroness as we move on to implementing the new arrangements.