NHS: Annual Report and Care Objectives

Baroness Williams of Crosby Excerpts

Wednesday 4th July 2012 Lords Chamber

[Earl Howe]

The noble Lord asked me a number of questions and I will do my best to answer them. First, on education and training, the news is that on 28 June Health Education England was legally established as a special health authority and held its first board meeting. From October this year, Health Education England will start to provide national leadership and oversight to the new education and training framework in England. It will take on, as the noble Lord knows, its full responsibilities from April 2013. The chair, Sir Keith Pearson, and the chief executive, Ian Cumming, have been appointed. Both are men of very high calibre, as I am sure the noble Lord knows.

On the matter of clinical senates, the plans for those will develop over the summer. My advice from Sir David Nicholson is that he should be able to provide further and better particulars in the autumn on how they will look. The noble Lord is absolutely right that they will play an important part in helping to advise not only commissioners in the health service but also the local education and training boards about configuration.

On specialised services, the draft mandate emphasises the importance of driving improvements in the £20 billion of services commissioned directly by the board, including specialised services for people with rare or very rare conditions. One of our proposed objectives in the draft mandate asks the board to put in place arrangements to demonstrate transparently that these services are of high quality and represent value for money. Objective 21 is the crucial one to which I would refer the noble Lord.

On the question about the Advisory Group for National Specialised Services, we will be making an announcement about AGNSS as soon as we can. There is work in train at the moment to look at exactly how AGNSS’s work, which of course is very valuable, can be transposed into the new system. Unfortunately, I do not have any definite news for the noble Lord at the moment.

As regards assistance for foundation trusts, the noble Lord asked about the foundation trust pipeline. I would refer him to page 28 of the Secretary of State’s annual report. Broadly speaking, however, apart from a few financially distressed trusts, some of which I have already referred to, we believe that the great majority of NHS trusts will be ready to take on foundation trust status either in the spring of 2014 or fairly soon thereafter. We have no reason to think that the timetable we discussed during the passage of the Bill has slipped materially.

[Baroness Williams of Crosby]

I add my appreciation to that of my noble friend Lady Barker to the Government for putting so much information before Parliament and for inviting Parliament to help work out some of the massive changes that will be required to enable the NHS to deal with the problems confronting it. I also welcome my noble friend the Minister’s comments making it clear that a level playing field now exists between the NHS and the private sector, contrary to widespread views that the NHS is coming to a messy end.

I have one important question for my noble friend which echoes in some ways the question asked by the noble Lord, Lord Walton of Detchant. It concerns the issue of primary care which he was discussing with the noble Lord, Lord Hunt. Clearly, a reconfiguration of health will be heavily dependent on the ability of the primary care sector to deal with a great many of the issues that come before it and to pass them on to the community or ancillary professions wherever possible in order to avoid unnecessary attributions or referrals to hospital. In that context there is one very disturbing issue which we have to address and on which I would particularly welcome the Minister’s comments. He will know, as most of us in the House who are concerned with the health service will know, that there has been a much more rapid increase in the number of young men and women trained for consultancy than for general practice—the figure is something like three times the increase for GPs in the past five years. Given that there is in general practice a very rapidly rising proportion of young women, there is an issue of maternity care and the necessary reduction in hours associated with many young women GPs. I say that with the recognition that it creates some problems. I think that most of us in the House would agree that their quality is equal to that of the men but often they do need periods of shorter service.

Finally, there is the very serious problem of the substantial bulge in GP retirement that is coming up in the next couple of years, as the Minister will know. My question echoes that of the noble Lord, Lord Walton, in terms of training and education. What provision is being made to encourage young men and women to go into general practice; is adequate provision being made to train them; and are there incentives for them to enter into the profession in that capacity?

[Earl Howe]

As so often, my noble friend has alighted on a real issue and I am grateful to her. She is right that we are not seeing enough trainee doctors going into general practice. The previous Government and we have had informal targets for new GPs. We have not met those targets for a few years now. It is a matter of concern and we are working very closely with the universities, the Royal College of GPs and others to see how the numbers can be rectified. It is not just a numbers game because, as she rightly alluded to, we should increasingly be seeing a better sharing-out of responsibilities in the community between not only GPs but community nurses, practice nurses, midwives, health visitors and others. There is quite a lot of work to be done there.

My noble friend is right about women GPs, and headcount numbers in that context are not always the most reliable indicator of the workforce number. This is part of the reason why we set up Health Education England, because with the advice of the Centre for Workforce Intelligence, the body that advises the Government on long-range forecasts of workforce needs, and the input from local providers—primary care providers, not just hospitals—of what they see as their needs into the future, we ought to get a much better handle on long-term needs for the different professional disciplines.

I do not at all brush aside this problem. I hope my noble friend realises that this is a real issue and we are grappling with it. Actually the NHS has grappled with it for a number of years, partly unsuccessfully, but we hope to do better with the new configuration that we have debated so often.

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.

Health and Social Care Bill

Baroness Williams of Crosby Excerpts

Tuesday 13th March 2012 Lords Chamber

[Earl Howe]

My Lords, if the clinical physiologists feel as the noble Lord, Lord Walton, says they do, I would simply urge them to read what I have said about the merits of assured voluntary registration. It is true that this issue has been on the table for a number of years. The difference between the start of that debate and the point that we have now reached is that there is more than one option on the table. Assured voluntary registration did not exist 10 years ago, but it is now about to become a reality. We come back to the basic point that regulation in itself is not a panacea. Those who think it is need to examine those cases where failures of care and services have taken place. It is much more about upskilling people, making sure that employers are aware of their responsibilities and ensuring proper supervision in the care setting.

[Baroness Williams of Crosby]

The noble Lord, Lord Walton, raises the point that the physiologists may well feel themselves to be treated as a second-rate profession. One of the finest things about the Bill is the way in which it extends the whole concept of treatment to people beyond those who are registered members of the medical profession, to those who belong to professions ancillary to medicine. I wonder whether the noble Earl might take into account the fact that we really need to move towards equal status between people who are involved in the profession, including in the commissioning groups, where some of those who will be on the governing bodies will be people who are not themselves doctors, but who are crucial to delivering an integrated medical outcome. I think the noble Lord, Lord Walton, has made the point that registration has become, in a sense, almost a recognition of status. I see that point.

[Earl Howe]

I very much agree with my noble friend that we want to see a breaking down of silos, if I can put it that way, and a mutual respect and dependence appearing at commissioning level. I am not aware of any examples of clinical physiologists or perfusionists being involved in the commissioning of care. On the face of it, that seems unlikely, although not impossible; I would not rule it out. I take my noble friend’s point about our general wish to see a raising of quality not only in commissioning but also in the provision of care. It is a point well made.

Health and Social Care Bill

Baroness Williams of Crosby Excerpts

Tuesday 13th March 2012 Lords Chamber

[Lord Newton of Braintree]

My Lords, those who have been here will have realised by now that this is one of my “good boy” days. At the risk of seeming sycophantic, even beyond being a good boy, I support every word that my noble friend Lord Clement-Jones has just said. I will refer back in a moment to something the noble Baroness, Lady Thornton, said about former Ministers. This chunk of the Bill—Part 3—is largely about Monitor and includes a lot that the House has been pressing for in terms of increasing Monitor’s power to intervene and do sensible things in a sensible way. It also includes all the stuff about pricing and tariffs, which in my view need to be addressed now, not in four years’ time.

My main point concerns what the noble Baroness, Lady Thornton, said about former Ministers knowing about the problems caused by upheaval. We do. I became very much aware that the publication of a White Paper was the start of a process, not the end. Too often Ministers think that all they have to do is publish an edict and everybody on the ground will carry it out. These things take time, trouble and involve culture change. However—this is the point here—what is equally or even more damaging is year upon year of uncertainty, which is what this amendment seeks to bring about.

I have referred on a number of occasions to the merger/takeover proceedings in which I was involved last year with the health trust that I then chaired. That occurred partly against the background of Monitor and the competition matters that are being changed in this Bill for the better. The worst thing was the uncertainty for everybody involved—the way it was dragging on and nobody knew what the future was. Good people started to leave or think about whether they had a future with the organisation. It would be insane to go down this path and I strongly recommend that the House should not do so.

[Baroness Williams of Crosby]

My Lords, I fully understand the fervour and passion with which my noble friend Lord Clement-Jones spoke, because he feels very strongly that he, with the help of others, brought about a real change in Part 3. I make no pretence about the fact that I began by being totally opposed to Part 3. I was on public record as saying that I thought it was a very bad thing indeed, but very sweeping changes have been made to it, and on that I agree with the noble Lord, Lord Newton of Braintree.

However, I do not want to stop at that point. My noble friend said that we were at a watershed and I believe that we are. I pay tribute to the noble Baroness, Lady Thornton, and her colleague, the noble Lord, Lord Beecham, for tabling this important amendment, and I shall explain why. In this House, we have a great deal of trust in the Minister. Repeatedly and rightly, huge tribute has been paid to him throughout these debates for his understanding, his patience, his willingness to go a very long way to meet the needs and requirements of other people and, if I may say so, his permanent consciousness and awareness of why the British public love the NHS so much. More than virtually any other politician that I can think of, he has real empathy with what people want and expect from their health service and it is important to recognise that.

The noble Earl has punched—if I may say so politely—well above his weight. His weight is not, of course, that great but his punch is terrific. He has persuaded a great many of us—not, I suspect, only on this side of the House—with the elegant and generous way in which he has put forward compromises and concessions. Many of us have accepted these or, like the noble Baroness, Lady Greengross, decided to wait a little longer to see what might come out of what he said. That is an immense personal contribution.

We would be in a world of illusion if we did not recognise that outside this House and the other place, where my honourable friend Mr Burstow is doing his very best on the social care side, there is, as the noble Baroness, Lady Thornton, rightly said, massive distrust and disbelief in what we are trying to do. We have to address that or we can forget altogether about doing what the noble Lord, Lord Newton of Braintree, rightly said we need to do—to give the National Health Service some stability, some confidence and some sense that it has a future. This is the most labour-intensive public service. Our whole capacity for addressing the Nicholson challenge and the problems of an ageing and often chronically troubled society, and for delivering what most of us want and which is enshrined in the words that we wrote into the Bill at the very beginning of its passage in this House—the responsibility and accountability of the Secretary of State for a comprehensive health service free at the point of need—will go with the wind without the support and morale of the professional services, the staff and the public.

As Members of this House will remember, we owe a great deal to the noble and learned Lord, Lord Mackay of Clashfern, for the Conservative Party, we owe a great deal to the noble Baroness, Lady Thornton, and her team for the Labour Party, and we owe a very great deal to the Cross-Benchers for the steady support they have given to maintaining the stability and future of the National Health Service, which all of us recognise as probably the greatest single social achievement of this country since the Second World War.

What I like very much about the amendment is the second section, where the noble Baroness, Lady Thornton, and the noble Lord, Lord Beecham, point to the need for consultation before there is a move towards bringing Part 3 into full effect—I would go wider and say before bringing into full effect the Bill itself. It is vital that, when the Bill has completed its passage, the Government and the Department of Health in particular seek to hold a wider consensual discussion, bringing in the main bodies but also the main people who have been involved in the Bill, regardless of whether they stood for or against it, in order to give the National Health Service the foundation it needs to address the huge scale of the problems it faces.

Health and Social Care Bill

Baroness Williams of Crosby Excerpts

Thursday 8th March 2012 Lords Chamber

[Baroness Williams of Crosby]

Before the Minister concludes, perhaps I may press him on what is implicit in Amendment 220B, although I shall not move it. If, for example, the governors were to oppose a figure of more than 5 per cent, and the figure were greater than appears to be proper in the light of health services, what steps would be available to ensure that health services are protected?

[Baroness Northover]

As we are on Report, perhaps noble Lords will allow the Minister to develop his argument and then put brief questions in the light of what he said—otherwise he will lose his train of thought.

Health and Social Care Bill

Baroness Williams of Crosby Excerpts

Tuesday 6th March 2012 Lords Chamber

[Lord Warner]

I speak to Amendment 164 in my name, which is in this group. It returns to the issue I raised in Committee: the need for Monitor to produce an early report on the barriers to entry for new providers of services to the NHS. Although he had sympathy with what I was trying to do, the Minister did not like my previous amendment, which would have required Monitor to produce a report within 12 months of Royal Assent on barriers to NHS entry to new providers. I think that he accepts that there are barriers to entry for new providers which we need to tackle. In this amendment, I have added the words “identifying and” to the requirement in Clause 61(3) for Monitor to prevent anti-competitive behaviour.

I recognise that many people in this House and in the Commons do not share my view on the virtues of competition when used selectively for patient benefit. I will not go over all the ground again, but I think there is good evidence—the noble Earl cited some of it in an earlier discussion—that that has proved beneficial to patients. Moreover, the UK is almost unique in large advanced healthcare systems in enshrining monopoly public providers of hospital services, with little challenge to their efficiency or effectiveness. These NHS monopolies have been very good at erecting barriers to entry for newcomers and ensuring—if I may put it as unkindly as this—a quiet life for monopoly incumbents.

We should be concerned about this. Only last week there were some startling statistics in the Health Service Journal about non-foundation trusts’ poor performance in achieving savings requirements in line with the Government’s targets. I have no problems with the Government setting those targets for non-foundation trusts to improve their efficiency. None the less, however we frame the competition provisions in this legislation, we have to face the fact that it is extremely difficult for new entrants to dislodge incumbents in many of these services where the performance is poor. That is why in my view Monitor should, after the Bill receives Royal Assent, quickly identify clearly existing barriers to entry so that they can be dismantled in the public interest. The Co-operation and Competition Panel has already identified some of the barriers for new entrants to the NHS market—and, again, I make no apology for talking about an NHS market. It is important that we see healthcare, in part, as a market where new providers can provide better services and different types of services more effectively.

I hope that the Government will look sympathetically at this modest amendment to try to get Monitor on the case of identifying barriers to entry.

[Baroness Williams of Crosby]

My Lords, I have two amendments in this group, Amendments 163C and 166B, which also stand in the name of my noble friend Lord Marks. However, before I address those relatively short amendments, I should like to say a word or two about the broader issues that we have been discussing. I begin by perhaps giving a little comfort to the noble Baroness, Lady Thornton, by saying that my understanding is that we will be discussing the whole issue of the relationship of Monitor to foundation trusts later in the proceedings. Our amendment on this matter, which is not far removed from hers, addresses an amendment to the government amendment on this issue, which itself comprises a considerable advance in the position that we have had up till now. I shall not try to get into that debate because it is complicated and I think that it would be better conducted a little later in the light of the various proposals.

I want to say a word about competition, and it is appropriate to do so given that the noble Lord, Lord Warner, has just been speaking. He has always spoken with some courage on this issue, which I recognise is not exactly popular with his party. However, I say quite directly that I feel very strongly that we have allowed the issue of competition to become quite different from the reality that we have encountered in the Bill, in this House and from the argument that is going on outside. That is because we have tried to treat competition as an absolute—either we have a competitive market for the National Health Service or we have no competition at all—and we all know that to be false.

We all know that there is a role for competition but the argument is about how limited it should be, what it should be addressed to and whether it is then balanced by, for example, equally strong duties in relation to co-operation, integration and the bringing together of services. I think we all recognise that competition can make a significant contribution in innovation and bringing in new ideas. For example, we have only to look at the recent developments in the treatment of stroke victims and victims of heart conditions to see that there has often been an innovatory role for the private sector. However, many of us also believe, as I certainly do, that the National Health Service should continue to be primarily a public service, that it should be available free of charge and that it should be accessible to all. Therefore, competition must exist but essentially it must be balanced by other considerations which, in the case of what we have been discussing recently, are clearly of great significance—particularly the role of the integration of services and the role of co-operation, which in terms of our main priorities, including the care of the elderly, are absolutely central and crucial.

--- Later in debate ---

[Baroness Thornton]

In response to that last remark, it depends on whether Monitor decides it is collusion or collaboration. That is the key point. We suggested that that was a problem right at the very beginning of the Bill—how you distinguish between collaboration and collusion and what you do about that. I do not think we are any closer to finding the answer.

I turn to remarks that were made during the course of this very useful if diverse debate. I want to take one moment to say something to the noble Baroness, Lady Williams, and her colleagues and to the noble Baroness, Lady Murphy, about the fact that they feel misrepresented in social and other media. Indeed, as politicians it goes with the territory that you may be misrepresented from time to time. I have the greatest respect and admiration for the noble Baroness, Lady Williams, and she knows herself that that is where you are when you are in politics.

However, the noble Baroness herself wrote in an article in the Guardian on 13 February about dropping the chapter on competition, and in a letter that the noble Baroness and her leader wrote to their own MPs and Peers, they set a high bar for how Part 3 of the Bill might be made safe. It is just and proper that everybody will be looking at the noble Baroness and her friends to see and test whether they have succeeded and met their own aspirations. At the moment, I think that that is open to question. I do not think that it has been achieved. I know that that might be painful, but that is the case.

We have had some thoughtful amendments and contributions. As usual, the noble Baroness, Lady Finlay, in her amendment and questions put her finger on a very important issue that the Bill needs to address even at this late stage. I had a great deal of sympathy with the amendment of the noble Baroness, Lady Cumberlege. I rather hoped that she would get a more positive response than she did and I am sorry about that.

[Baroness Williams of Crosby]

The noble Baroness is perfectly entitled to say what she had said. I accept that fully and I am sure that she said it in all sincerity. But the difference between us is that I believe that the Government have moved a long way, particularly because of the Minister. I believe that that culmination of changes will enable us to bring about an improved NHS. I may be proved wrong. I freely accept that I may be proved wrong. But I believe that the changes that have been made are so far reaching that we can make the NHS better than it is today. I know that the noble Baroness, who herself has been responsible in her attitude towards the Bill, would wish to see that, even though she may not think that this is the way to do it.

[Baroness Thornton]

I am not sure whether this is the way to do it. We disagree. I do not think that the Liberal Democrats have achieved it, but there we are. As the noble Baroness said, history will see who is right and who is wrong.

I am extremely pleased to see that the noble Baroness, Lady Meacher, has transferred her attention from the Welfare Reform Bill to this one. She is quite correct that it is impossible to stop the negative impact that has been observed in the studies that she referred to. She is completely right about that. This whole debate illustrates the problem: half of the Bill seems to be there to mitigate the damage that the other half does. What used to be, for example, a clear duty to co-operate—and it was a simple duty—is now dense and complex.

Turning to our Amendment 163B, I should like to say to the noble Baroness, Lady Murphy, that it does not rule out the economic regulator function. That amendment does not seek to do that, so I hope that the noble Baroness, with that reassurance, might support our amendment. We seek to clarify and put beyond doubt that Monitor should have that function. We seek to do it in the first part of the Bill. We want Monitor to keep its current role. We believe that there should be two bodies and that it is difficult for Monitor to do both jobs at once, but it is important at this point of this first part of the Bill that we make it completely clear. Where the Bill says that Monitor should be the,

“Independent Regulator of NHS Foundation Trusts”,

we need to make it completely clear that it will continue to do that job.

We are not trying to weaken the role of Monitor. We think that foundation trusts are facing huge risks and huge reorganisation. They need the support that Monitor will offer them. I suspect that the Francis report, as I said earlier, will indeed have something to say about the strength and importance of Monitor as a regulator of foundation trusts. We would like this to be in the Bill because it makes it completely clear that this is an important job that Monitor does and that it should keep doing that job for the foreseeable future. I wish to test the opinion of the House.

--- Later in debate ---

Moved by

[Baroness Williams of Crosby]

166B:After Clause 61, insert the following new Clause—
“Secretary of State’s guidance on duty under section 61(9)
(1) The Secretary of State may, for the purpose of assisting Monitor to comply with its duty under section 61(9), publish guidance on—
(a) the objectives specified in the mandate published under section 13A of the National Health Service Act 2006 which the Secretary of State considers to be relevant to Monitor’s exercise of its functions, and(b) the Secretary of State’s reasons for considering those objectives to be relevant to Monitor’s exercise of its functions.(2) In exercising its functions, Monitor must have regard to guidance under subsection (1).
(3) Where the Secretary of State publishes guidance under subsection (1), the Secretary of State must lay a copy of the published guidance before Parliament.
(4) The Secretary of State—
(a) may revise guidance under subsection (1), and(b) if the Secretary of State does so, must publish the guidance as revised and lay it before Parliament.”

--- Later in debate ---

[Lord Warner]

My Lords, I shall speak also to Amendment 214G which stands in my name. The amendments arise from our debate in Committee about what we then described as a “pre-failure regime”. The argument that I was trying to sustain, with helpful support from different parts of the Committee, was that it would be better for Monitor to get engaged when it could see failure coming at it down the track rather than waiting for the train crash to occur and use the health special administration procedures that were provided for in the Bill.

My amendment then was probably technically defective but it served the purpose of raising the issue. The Minister was not so off-putting that I thought that I would not have another go at this, so, with the help of the noble Lord, Lord Patel, and the noble Baroness, Lady Williams of Crosby, I put down Amendment 217, which is in this group. Following that, the Minister engaged with me in some rather helpful and fruitful discussions and the results of those discussions were Amendments 196ZA and 214G. In my enthusiasm for tabling these amendments I completely forgot to remove Amendment 217, which is why it is still on the Marshalled List. I assure the Minister that I have no intention whatever of moving Amendment 217.

The nub of what is in Amendment 196ZA is that it provides for Monitor when it can see that a licence holder’s conditions are likely to be imperilled by a current configuration of health services in the wider health economy—not just within that licence holder’s own individual trust. It can draw the attention of commissioners—the national Commissioning Board and clinical commissioning groups—to those risks which it can foresee and it has to give its reasons for doing so. But rightly in my view and, I believe, that of the Government, it puts the onus on the commissioners to do something about it. It does not require a top-down intervention, but it flags up very seriously to the commissioners that a problem is looming and they need to do something about it. Just to give more force to that, each financial year Monitor will publish a list of the notifications that it has issued in that financial year, putting commissioners on notice that they have a problem, that they need to do something about the reconfiguration of services and that they need to take some action to ensure that there are sustainable NHS services in that part of the country.

I pay tribute to the civil servants at the Department of Health because they have done something rather ingenious that I never even thought of in Amendment 214G, which is to take an application by a service provider to Monitor to secure some adjustment in the price paid for particular services to make Monitor think about whether there is anything more significant behind that application and whether there is a risk to the sustainability of services in a particular area. If it does consider that that is necessary, it can again notify the commissioners of its concerns about the need to consider service reconfiguration in that area.

These two amendments, which have been given a lot of technical help by the Department of Health and a lot of support from the Minister, meet my concerns and, having talked briefly to the noble Baroness, Lady Williams of Crosby, I believe that they also meet hers. There is an adequate set of arrangements to put commissioners on notice that failure may be looming so that they can take action under their responsibilities. Just to make sure that they do, each year there will be a list of the notifications that Monitor has issued so that it is on the public record that Monitor has spotted that there is something of concern and has required commissioners to take action.

That meets my concerns and I think that it meets the concerns of the noble Baroness, Lady Williams of Crosby and the noble Lord, Lord Patel. In order to table the amendment in time for today’s debate, I did not have time to collect the signatures of my partners in crime on Amendment 217, but I have every reason to believe that they would be satisfied with the Government’s response to our concerns.

With regard to subsection (5) of Amendment 217, which I have mentioned to the Minister, I think it would be a good idea if the Government were to consider assembling a group with expertise to help local people to reconfigure their services. It is often difficult for people at the local level to think through how they might reconfigure services to make them sustainable. I do not suggest a top-down approach but some sort of panel that could help local people and facilitate the reshaping and redesign of services. That would be a helpful way of proceeding. It might help a lot of people to get through the difficult task of reshaping services when the need arises. Without further ado, I beg to move.

[Baroness Williams of Crosby]

My Lords, my intervention will be extremely short. I am delighted that the noble Lords, Lord Warner and Lord Patel, put down this proposal for what one might describe as precautionary failure. We were very concerned that there might be no regime that would enable services to continue because one had seen in advance the possibility of a particular place getting into a great deal of trouble. This is a very satisfactory proposal to put before the Government to deal with the continuation of health services for an area, even when those services get into difficulties.

I also strongly commend the proposal of the noble Lord, Lord Warner, about the small group of local people. That has one great advantage: that small group will then become part of what one might describe as a lobby for a sensible outcome, for a proper reconfiguration or change in the structure of services. That is very important. Otherwise, you almost invariably get very powerful local opposition to any substantial change and no natural constituency of people who support it. This is an imaginative idea. I am pleased to be associated with the amendment of the noble Lords, Lord Warner and Lord Patel.

[Lord Patel]

My Lords, I support the amendment. The noble Lord, Lord Warner, and the noble Baroness, Lady Williams of Crosby, have said all that needs to be said. I had my name to Amendment 217. To relieve the anxiety—if they had any—of the noble Lord, Lord Warner, and the Minister, I will not move that amendment either. I strongly support Amendment 196ZA.

Health and Social Care Bill

Baroness Williams of Crosby Excerpts

Wednesday 29th February 2012 Lords Chamber

Moved by

[Baroness Williams of Crosby]

75: Clause 24, page 29, line 23, at end insert—
“( ) The Board must exercise its functions under this Chapter so as to ensure that every person resident in England has access to all services provided by a clinical commissioning group.”

[Baroness Williams of Crosby]

In replying to the last group of amendments the Minister referred to the fact that concern was expressed in many parts of the House about those issues. I am pleased to say that exactly the same is true of this group. Voices from the Cross Benches and from Labour as well as from the Conservative Party have been raised to address the need to ensure that CCGs always cover every resident individual so that we can ensure that the services of clinical commissioning groups are available to all the residents of the United Kingdom—or more precisely of England, although one could extend it to the United Kingdom.

One concern which has been expressed in the House on several occasions is whether, for example, people who are homeless or belong to Travelling groups, such as Gypsies or Didicois, would strictly be covered by the clinical commissioning groups given that there is not total coterminosity as there was in the old National Health Service. The purpose of Amendment 75, in particular, and the related Amendment 94 is specifically to ensure that nobody resident in the United Kingdom is simply left out of the new machinery. It is very important that this should be so as the people likely to be left out tend to be the most vulnerable members of society—the ones who slip through the cracks, if I can use that phrase. I am delighted to see that the noble Lord, Lord Laming, seems to share that view.

[Lord Mawhinney]

Can the noble Baroness tell us whether this amendment would also encompass illegal immigrants?

[Baroness Williams of Crosby]

The phrase used, which I think is also used in other parts of the Bill, is “resident in England”. It is not for me but for others, particularly the immigration tribunal, to judge whether somebody who is an immigrant to this country counts as a resident, but I would assume that if he was an illegal immigrant he would not be. If he or she were here except as an asylum seeker then clearly they would be covered by the amendment, which does not purport to set out a new set of immigration regulations. It would be inappropriate for the health service to do that. Therefore, let me turn back for a moment to Amendment 94 as well.

[Lord Patel]

Surely, my Lords, if they are illegal immigrants who happen to be sick or seriously ill we would treat them, would we not?

[Baroness Williams of Crosby]

Let us hope so. I simply wanted to suggest that there is nothing about the status of illegal immigrants in this amendment. Of course I share the view, which is accepted, that people who need treatment—and later we will discuss the amendment on HIV—should have access to emergency care, for example. That has always been true. However, this amendment relates precisely to clinical commissioning groups and therefore attempts to set their responsibility in terms of normal residency in the United Kingdom—not nationality, but residency. That seems appropriate.

Amendment 94 tries to do its very best to ensure that this is an absolutely total requirement. Together, Amendments 75 and 94 relate responsibilities not just to the clinical commissioning groups but, crucially, to the national Commissioning Board itself. Ultimately, it will be for the national Commissioning Board to ensure that anybody who is “resident in England” will be covered by all the services available to a clinical commissioning group. The crucial point of principle is that we are not talking here, as we might in some other countries, about emergency care only as a last resort. We are talking about all the services that clinical commissioning groups provide, and we are indicating that that should cover all residents of England. So this is an important group of amendments.

I will not move on to talk about some of the other amendments in this group, which concern themselves with the structure of governing bodies or CCGs. I am sure that the noble Lord, Lord Hunt, or the noble Baroness, Lady Thornton, will address those issues. In some ways they are slightly different; it is rather surprising that they are in the same group, because they address very different issues.

Because time is always shorter than we need for discussions on the Bill, I will not say a great deal more about this. I think that the whole House will agree that it is right and appropriate that there should be an ultimate duty on the board to ensure that every clinical commissioning group makes available the services that it provides to those who are members of it for everyone who is resident in the area, and that the board ensures that that happens across the whole of the nation. I beg to move.

[Baroness Cumberlege]

My Lords, my two amendments have also been grouped with this one. In our debate on 13 December, I explained why I felt so strongly that the evidence from patients gained by the work of local healthwatch and HealthWatch England should inform local commissioning. I have since had two very helpful meetings with my noble friends Lord Howe and Lady Northover about local healthwatch and its role. I think that we are moving in the right direction, although there seem to be some outstanding concerns.

Among my serious concerns, and the reason why I brought this amendment back, is that I feel we are not making commissioning robust enough. The process must be founded on evidence. Local healthwatch offers independent local evidence gathered through the unique statutory function of enter and view. This is evidence straight from the experience of patients lying in wards or sitting in mental health units, as well as those who can fill in surveys. Surveys are useful but do not necessarily reflect the views of the most vulnerable, people who may not be able to fill them in due to frailty, language difficulties or other reasons.

The amendment also relates to the experience from HealthWatch England. If the local healthwatch has not done work on a particular provider but those in other areas have, that intelligence will be available to a CCG commissioner who is considering giving the contract to a new provider. It has been pointed out to me that Clause 182(6) already requires CCGs to have regard to those reports and recommendations, and that is very valuable. However, this means only that if local healthwatch produces relevant reports and recommendations, the CCG will have to have regard to them.

It could be that those reports and recommendations arrive at the wrong point in the commissioning cycle or do not arrive at all. Then the CCG will not have an opportunity to have due regard to them. They will be commissioning from providers without evidence from patients of their actual experience, which can come only from local healthwatch, with its responsibilities to enter and view. The amendment was laid to ensure that that could not happen. It was redrafted in response to my noble friend Lady Northover’s characterisation in Committee that if local healthwatch had an obligation to feed in such evidence, it would be too burdensome for a small organisation composed of volunteers. I am now suggesting that the responsibility should be with the CCG to take evidence from local healthwatch. It would be helpful if my noble friend could give assurances that CCGs will be guided to seek out from their local healthwatch evidence of the patient experience to inform their commissioning to the standard set out in new Clause 14Q.

We know that local healthwatch will have a seat on health and well-being boards, and that will ensure that the knowledge that local healthwatch has will influence commissioning. Again, I welcome the membership of a lay member. This will have an input into the strategic role of those boards, but how can it give them a say in commissioning when the health and well-being board does not actually commission health services? The board’s function is to explore opportunities to integrate services, and this is not the same as deciding whether the outcome of a good patient experience with provider A is better than with provider B. These decisions rest with the CCG under Clauses 140 to 145.

--- Later in debate ---

[Earl Howe]

On the first question from the noble Baroness, we fully anticipate that NICE will provide quality standards and guidance on services commissioned by CCGs and local authorities jointly. Typically, those are the kinds of service that the noble Baroness has spoken of, some of them in relation to less common and more complex conditions. Therefore, the commissioning guidance would reflect the NICE advice, and I hope that I can reassure her on that point.

Of course, I am willing to meet the noble Baroness between now and Third Reading, although I am not necessarily giving her the green light to bring this amendment back at Third Reading. I have explained that the Bill adequately covers the points of concern. Furthermore, I think that the amendment is flawed. We can achieve what she seeks through provisions already in the Bill and those that are not in the Bill that I have described.

[Baroness Williams of Crosby]

In moving the amendment, I asked the Minister for an unqualified assurance that all people resident in England would be covered by a clinical commissioning group, and I have to say that I think he gave me that assurance. However, I simply ask that between now and Third Reading, if any Member of this House comes forward with evidence of the exclusion from clinical commissioning groups of anyone resident in England, the Minister will give that careful consideration. I am sure he will. He has won the trust of this House and I take the assurance on the basis of that trust, but if there is a dispute over whether there is any exclusion I hope he will permit me to suggest that his door might be as ever open if any Member of this House wants reassurance on the basis of evidence brought before him. I beg leave to withdraw the amendment.

Amendment 75 withdrawn.

Health and Social Care Bill

Baroness Williams of Crosby Excerpts

Tuesday 28th February 2012 Lords Chamber

[Earl Howe]

Several things in the Bill are new. One is the duty to reduce health inequalities, which is very important in mental health. Another is the duty to promote integration of services. Again, we have had many debates on that and there are mechanisms that we propose to use to support greater integration of services.

I also believe that the worries about competition are misplaced. Competition is a tool that commissioners can use, or decide not to use, in the interests of patients. It is no more than that. The Bill does not change competition law or increase the scope for competition to be used in the NHS. It leaves the decision-making to commissioners on whether competition does or does not serve the interests of patients. There is a lot of misapprehension about what the Bill does, not just among those in the mental health world but more widely. I hope that that reassurance is helpful.

[Baroness Williams of Crosby]

I apologise to the Minister for being the cause of another late night for him. I apologise because, obviously, the Statement relates to some extent to the letter that I co-signed with the Deputy Prime Minister. I simply say, as have many in the House, that the Minister has shown amazing patience. Indeed, his door is always open; a number of us stumble our way through it and we are extremely grateful.

I shall say just two more things about the point raised by the noble Lord, Lord Crisp. First, a great deal of the concern that has been expressed in public was expressed before some of the very recent changes, which are not widely realised or well understood among the public or the media.

Secondly, it is probably fair to say that Chapter 3 has been the centre of much of the concern about the Bill. There are other things in it that many people will widely recognise and accept, not least the work on education, training and research. This is not yet widely known, even within the medical profession. It may be that there is a great deal to be said for making a further attempt to get across exactly what changes have been made to the Bill. I think that would carry with it a rather different attitude among the public and the media from what has existed in the past few weeks.

Health and Social Care Bill

Baroness Williams of Crosby Excerpts

Monday 27th February 2012 Lords Chamber

Moved by

[Baroness Williams of Crosby]

49A: Clause 22, page 17, line 38, at end insert—
“Patients’ interests to be treated as paramount
The Board must, so far as resources allow, exercise its functions on the basis that the interests of patients are paramount.”

[Baroness Williams of Crosby]

My Lords, owing to the need to make progress I shall speak briefly, but my noble friend Lord Marks of Henley-on-Thames will be speaking in greater detail about the amendment.

It is short, perhaps deceptively short, but it has real significance and is related in this group specifically to Amendment 94A. The government amendments respond to aspects of these amendments, too. Amendments 49A and 94A set at the very centre of the Bill, which has the full support of all of us who want to see the NHS thrive, that the interests of patients should be paramount. The importance of that phrase is that in every single aspect of what we try to do, it shall always be the case that this is the way in which we think—whether it is how CCGs operate or how foundation trust hospitals operate. This has emerged in our debates increasingly as the central concept—the one to which we should always refer back. That will give us the guiding light that we need for the Bill.

It is significant because, in many cases, patients can be very vulnerable. They can be vulnerable through lack of information and in some cases by not being consulted. They can be vulnerable, as the noble Baroness, Lady Hollins, has mentioned, through the lack of advocacy by people who understand the basis of the choices they have to make. This phrase about the significance and the importance of patients’ interests being paramount therefore also affects a recognition that where patients are vulnerable they need the help of counsellors, advisers and in some cases advocates, so the concept behind this covers those areas as well.

I want also to point out briefly that government Amendment 56 is helpful in spelling out the matters on which patients should be particularly consulted. I will not repeat them but the amendment is helpful in setting out very clearly issues of treatment and the way in which patients should be offered different forms of treatment and then to make choices among them.

I do not intend to keep the House. I shall conclude my remarks. Whatever side of the House we may be on, I hope very much that the concept of the paramountcy of patient interest will be something that all of us can support, understand and advocate with respect to the future of health services. I beg to move.

[Lord Marks of Henley-on-Thames]

My Lords, the reasons for Amendments 49A and 94A have been briefly—as she explained—and eloquently expressed by my noble friend Lady Williams of Crosby. One of the fundamental principles which the Government have assured us runs right through this Bill is that the NHS, as reformed by this legislation, will be committed to putting patients first. That is a critical matter for most of us in this House and the public at large. Why do I believe that this principle needs stating in the Bill? It is because the Bill introduces an entirely new structure for commissioning services, with commissioning by clinical commissioning groups within a framework established by the board to requirements and objectives set by the Secretary of State. However well understood here, this proposed structure is widely mistrusted outside this place.

I believe that a legislative statement that the commissioning process will put patients first is very important, both because it will enshrine in law this fundamental principle and because it will give the public an assurance that this is indeed the aim and purpose of the new commissioning process. My noble friend the Minister was kind enough to write to me in relation to this amendment to say that while he completely agrees that we must always put patients first, the Bill already provides for that and that there are “technical reasons” why our amendments should not be accepted.

The Minister is entirely right to point to the commitment to the comprehensive health service in the Bill and to the duties of the board and the clinical commissioning groups, now enshrined in the Bill, to promote the NHS constitution. I agree that those are powerful provisions. The NHS constitution is an important and extremely valuable document. It does indeed contain a commitment to putting patients first. At the back of the document in the expression of NHS values it says:

“Working together for patients. We put patients first in everything we do, by reaching out to staff, patients, carers, families, communities, and professionals outside the NHS. We put the needs of patients and communities before organisational boundaries”.

No one could fail to regard that expression of values as admirable, but it covers the whole sweep of NHS functions and is very general. The provisions that we seek by way of these two amendments are specific to the commissioning process. They will impose a binding obligation on the board and the CCGs of which they will at all times be aware. Moreover, our amendments are directed particularly at responding to what is probably the principal concern that members of the public have about these reforms: that the new commissioning process may lead to the marketisation of the NHS and that patients’ interests may be lost in that process. I do not believe that, but I do believe that these amendments would help make it crystal clear that this concern is unfounded.

The other problem we face is this: all the evidence, even that emanating from within the NHS, suggests that there is widespread unawareness of the very existence of the NHS constitution, let alone of the detail of its provisions. At the very least, therefore, given the emphasis that we are putting on the NHS constitution, it is crucial for the Government to make it quite clear that a great deal is expected of the board and of CCGs in the exercise of their respective duties under the Bill to promote awareness of the NHS constitution. In addition, the department should commit itself to an even wider, more effective campaign to publicise both the existence and the content of that constitution.

As to my noble friend’s second point, I regret that I do not understand the technical reasons which are said to require the rejection of these amendments. It is perfectly true that the NHS will always have to face resource constraints which may necessarily determine many, even most, commissioning decisions, but our amendments accept entirely that the paramountcy of patients is always subject to resource constraints. The board or a CCG must, so far as resources allow, exercise its functions on the basis that the interests of patients are paramount. Nor do our amendments, either expressly or impliedly, reduce the ability of commissioning groups or the board to prioritise the treatment of particular groups of patients where they think appropriate. They simply make the interests of patients in general paramount or, to use my noble friend the Minister’s phrase, make sure that commissioners put patients first.

The use of that word “paramount” in these amendments was modelled on the Children Act 1989 and the principle which runs like a golden thread through that legislation that the interests of children are paramount. That legislation has been widely applauded for embodying that principle, which firmly governs its interpretation and its implementation. It is precisely because it is embodied in the legislation itself that that Act is so well respected.

I still hope that my noble friend the Minister might reconsider whether he is not prepared to accept in this Bill the expression of the principle which he has so often expressed: that, throughout the commissioning process, the interests of patients must be paramount.

--- Later in debate ---

I am extremely grateful to them for their support in ensuring that the Bill is as strong as possible on this point.

[Baroness Williams of Crosby]

My Lords, I thank the noble Earl very much for the amendment, and I am grateful to him for what he had to say. I beg leave to withdraw the amendment at this point but hope very much that he will come back to it at Third Reading.

Amendment 49A withdrawn.

--- Later in debate ---

Emergency medicine acts as a portal. The vulnerable come in with their life stories. There is no pressure group to argue for patients who access emergency medicine because they are a completely heterogeneous group. Disease groups, such as those for neurological diseases, cancer, diabetes and so on, can argue for their patients but emergency medicine covers just about everybody. It has been estimated that, on average, a member of the population accesses an emergency department once every three years, compared to once every six years for out-of-hours primary care services. Therefore, I hope that the Minister will be able to reassure me that emergency medicine will be looked at in its totality and across the spectrum from primary to secondary care; and that commissioning will take into account that it is in a different position, with its constantly open access portal, from the other services in the NHS. I beg to move.

[Baroness Williams of Crosby]

My Lords, perhaps I may briefly intervene in the debate on this extremely important amendment. In countries like the United States, where there is no effective health system for those who cannot afford very substantial sums of money, emergency admission has become the last resort for such people. The noble Baroness, Lady Finlay, is right but we should take it one stage further. We know, from very recent reports on the difference between the likelihood of survival in an emergency situation between weekdays and the weekend, that out-of-hours provision is of substantially lower quality than that provided by regular doctors in a good hospital. This is very serious. One of the great mistakes made in the last contract for general practitioners was the almost complete transfer of out-of-hours work to private agencies which did not demand the same standards in respect of doctors, ranging from their ability to speak different languages through to experience of medical treatment. In consequence, we now have a troubling kind of medical roulette where a great deal depends on whether you get ill on Thursday or on Friday. The statistics are quite frightening, showing not a narrow but a very substantial difference.

Before the noble Lord, Lord Hunt, comes in—if he does—and before the Minister responds, I would like to raise two points. The first is about the degree to which the noble Lord believes we can begin to re-establish out of hours work to a higher level of quality broadly equivalent to that offered by general practitioners and other medical staff to patients who conveniently fall ill on Monday through Friday but not later or after that. Secondly, what does the Minister feel about the dependence of some groups in our community on emergency services, not because they want to use them but because they are not familiar with ways to establish their proper relationship with people who could look after them in difficult conditions? This goes back to one of the particular concerns of the noble Baroness, Lady Finlay, which is the impact of alcoholism on emergency entry. This is not just another amendment; it is a crucial one which points to a very troubling discrepancy which could grow worse if we do not succeed in addressing it.

[Lord Walton of Detchant]

My Lords, it would be difficult to overstress the crucial importance of this issue, which has been a matter of grave concern to the specialist medical community. People with less common conditions often require specialist services for treatment unavailable through generic NHS support. At Question Time today, I posed a Question to the Minister about the report of the National Audit Committee which had demonstrated the serious inequalities of neurological services throughout the United Kingdom. People with neurological conditions rely not only on skilled neurologists but on a specialist multi-disciplinary team of nurses, physiotherapists, occupational therapists, speech and language therapists and others to maximise their independence and quality of life. The Bill proposes that these services be commissioned at a local level by clinical commissioning groups which will be able to determine the size of the population for which they have responsibility and which, as matters stand, will have no duty to collaborate with other clinical commissioning groups in the commissioning of services. Grave anxieties have been expressed by the Rare Disease Consortium and by the Neurological Alliance, which is the only collective voice for more than 70 national and regional brain, spine and neuromuscular organisations working together to make life better for 8 million children, young people and adults in England with a neurological condition.

Health and Social Care Bill

Baroness Williams of Crosby Excerpts

Monday 13th February 2012 Lords Chamber

[Lord Beecham]

My Lords, I trust that my noble friend will not object if I claim at least parliamentary paternity of Amendment 21A—influenced, I must say, by the Faculty of Public Health and others interested in the public health dimension of the Bill. The Faculty of Public Health is a very respectable body, characterised, along with other opponents or critics of the Bill, by Mr Simon Burns, the Minister of State for Health, as zombies, a term that I cannot imagine emerging from the lips of the noble Earl. It is concerned about the degree to which the public health service and its interests and needs will be reflected in the structures that are being created. That interest is shared by the Health Select Committee.

The Health Select Committee also referred to its recommendation that the local director of public health should be a member of each clinical commissioning group. Having regard to the number of clinical commissioning groups, that is possibly asking a little much, although it would be sensible for clinical commissioning groups to consult the director or his representative from time to time in the course of their work. However, my noble friend is absolutely right to stress the importance of having a qualified public health professional on the national Commissioning Board. Public health is an enormously significant area of public policy, and we will discuss other aspects of it later this evening and subsequently during Report. The Health Select Committee was very clear that there should be a qualified public health professional on the NHS Commissioning Board and that the Commissioning Board should routinely take advice from qualified public health professionals when taking commissioning decisions.

The Government’s response to the Select Committee’s report is, to put it mildly, not very encouraging. While the board will be required to obtain clinical advice from a broad range of professionals, including those in public health—and the Government have stated their intention that there should be clinical and professional leadership on the board—they state explicitly that,

“it is an important principle … that it”—

that is, the board—

“should have autonomy of decision-making on matters such as its own membership and its structures and procedures, as far as possible, to determine how best to exercise its functions”.—[Official Report, 14/11/11; col. 514.]

That seems, frankly, to put an unnecessary degree of power in the hands of the national Commissioning Board. It again raises the issues of accountability that my noble friend dealt with so well earlier this evening. It is surely not acceptable to permit an organisation with this degree of power and influence—and, indeed, with the substantial resources at its disposal—simply to decide on its own membership, particularly when public health is not just a health service or Department of Health issue but goes much wider than that. It is important that those wider implications of the work of public health, which we will touch on later, are reflected in the board’s deliberations as a matter of course.

I hope that the Government will take the strong advice of the Health Select Committee and reconsider this position. I have no doubt that there will be a queue of other organisations wanting a place on the national Commissioning Board, but this is, in a sense, a unique function because of its reach into other areas of policy and administration, including, for that matter, other government departments. That voice, reflecting all those interests, is not likely to be represented directly in the way that other clinical interests probably will be in relation to the board. Therefore, I strongly support Amendment 21A, as well as the other amendments in the name of my noble friend. I hope that the Government will see their way to rethinking this matter and come back at Third Reading with a different position.

[Baroness Williams of Crosby]

My Lords, I agree strongly with the noble Lord, Lord Beecham. Public health has always been the Cinderella of the health services, yet it should not be. It is obviously crucial to the whole attempt to reconfigure services, and it is crucial to the emphasis on preventive health that we badly need if we are to stop things such as the very rapid increase in the incidence of diabetes in this country, especially diet-related diabetes. It is important that the public health service is seen by the whole of the public as central to the Government’s proposals for bringing services together. It is essential that we now publicly recognise the very great importance of the public health service and raise it to a level at least equal with other parts of the health service, including clinical commissioning groups.

As the noble Lord, Lord Beecham, said—I thought rather modestly—we accepted that it was too much to expect to have a public health officer on every commissioning group, although there is a very strong case for having one where a commissioning group is happy to have him or her. However, in the case of the board, which after all overlooks the whole CCG structure, it is absolutely vital that a public health officer should be present and should be able to put emphasis on preventive health. It would also be a signal to the health and well-being boards at the local level to follow that lead and themselves put a great deal of emphasis on preventive rather than only curative health.

I think that the noble Lord, Lord Beecham, should get the support of all parties in the House as he has put forward something perfectly sensible and moderate. What the noble Lord, Lord Hunt, was saying about this group of amendments is important, particularly on Amendment 21A, and I hope that the Minister listened very carefully, as I believe that he has a great deal of sympathy with the importance of public health. This will be a very important way in which to underline that in the manifesto.

It is fair to say that the board should make its own decisions on some of the membership, but I agree with the noble Lord, Lord Beecham, that the sheer significance for all the reforms of public health is such that this should be on the face of the Bill and that it should not be left entirely to the members of the board to decide on. There is plenty of room for them to reach their own decisions, but this involves the whole of the Government’s strategy. I very much hope that my noble friend will suggest that the Bill could carry this amendment in it.

--- Later in debate ---

[Baroness Williams of Crosby]

My Lords, I shall speak briefly to this group of amendments. We are very pleased that there should now be acceptance of the detailed suggestions of the Delegated Powers and Regulatory Reform Committee. That gives a much stronger underpinning to parliamentary accountability, which we appreciate.

I should like to ask my noble friend a couple of questions. At this hour of the night I may be misinterpreting some of the wording in the amendments but I should like to address two of them in particular. The first is Amendment 35, to which I have added my name. I simply want to ask a little more about the effect of this amendment on inclusivity. As my noble friend will know, there have been many attempts to make inclusivity part of the Bill, and from time to time we on these Benches have expressed concern on the issue. I should be grateful if he could explain the effects of the Secretary of State’s ability to have a commissioning group determine when a patient can be excluded from the overall effect of the directions under Amendment 35. I assume that that would be because they come under the board rather than the CCGs but my noble friend may be able to give me a slightly purer view of the exact meaning.

My second question relates to Amendments 137, 138, 139 and 140. What are the effects of the Secretary of State’s ability, as I understand it, to proceed with orders and regulations without that effectively being the case in the Bill? In other words, could the Secretary of State, in certain circumstances, simply override what is in primary legislation by passing orders and regulations or would he effectively have to fall back on regulations and orders at a later stage?

I apologise for asking these two questions at this late hour but they are asked in all good faith. I think it is important that the public and Parliament understand exactly what is intended by the amendments. Because they are rather complicated, I may have got it wrong but I hope that I have not.

[Earl Howe]

My Lords, on Amendment 35, Section 3 of the National Health Service Act 2006, as amended by the Bill, states that CCGs have responsibility for persons provided with primary medical services by a member of the group and persons usually resident in the group’s area who are not provided with primary medical services by a member of any CCG. Regulations under subsection (1D) enable the Secretary of State to specify that this would not apply for persons of a prescribed description, or in prescribed circumstances—for example, for persons registered with an English GP who were resident in Scotland. As currently drafted, these regulations would be subject to the negative procedure in Parliament. Following the recommendation of the Delegated Powers and Regulatory Reform Committee, the amendment would make these regulations subject to the affirmative procedure.

Amendments 137 to 140 are linked to Amendment 39. They would make clear that the Secretary of State is not able to delegate his function of making orders or regulations specifically relating to the provision of primary medical, dental or ophthalmic services and any functions relating to local or other pharmaceutical services to the NHS Commissioning Board, a CCG, a Special Health Authority or to such other persons or bodies as may be prescribed. The amendments would make it clear that the Secretary of State cannot delegate the function of making orders or regulations to other bodies under Clause 48.

If that short explanation represents an over-abbreviated one, I shall be happy to write to my noble friend after this debate, but I hope that that is helpful.

--- Later in debate ---

[Lord Hunt of Kings Heath]

My Lords, I shall speak also to Amendments 41, 46, 48 and 293.

On a number of occasions, the noble Earl has spoken about the mandate to be issued to the national Commissioning Board. In our debates we have given a great deal of focus to the relationship between the Secretary of State and the national Commissioning Board, and the role of the mandate. When the noble Earl has been pressed to say how the Secretary of State would be able to bring influence to bear in relation to particular issues, he has referred on a number of occasions to the role of the mandate and indeed to standing rules. There is no doubt that the mandate assumes considerable importance. My amendments are seeking to give Parliament a stronger role in scrutiny of the mandate.

I have taken as my reference point the procedure for national policy statements in relation to major infrastructure planning applications. The noble Earl will be aware that the Planning Act 2008 introduced a parliamentary procedure to deal with major infrastructure planning applications. Essentially, it goes back to the issues that have bedevilled infrastructure planning decisions in this country, which mean that very often when there are public inquiries into applications, much of the public inquiry debate has been around the principle of whether a particular infrastructure should be developed in the UK rather than actual local planning matters. The classic for me was the Sizewell B application, where I think there were roughly 300 days of public inquiry, of which only about 10 to 20 were concerned with local issues; the rest were concerned with whether nuclear power should be developed in the UK.

The Planning Act brought in a new procedure where it was accepted that issues to do with nuclear power—or High Speed 2, for instance, if it were not going to go through the hybrid legislation process—would be decided by Ministers because those are national decisions, and the local application would then be decided very much around the impact of an actual planning consent.

What is the connection between this and the mandate? It is the parliamentary scrutiny, because a national policy statement has to be debated in your Lordships’ House in Grand Committee, Members of the House having every opportunity to ask questions, and then brought before your Lordships in the Chamber where it is open for debate. My proposition is that the mandate is of such importance that a similar approach could be taken in your Lordships’ House and in the other place, providing a real process of questioning and debate. Although, ultimately, it is, in my view, a ministerial decision, I argue in Amendment 46 that such a process of parliamentary scrutiny and ministerial consideration followed by an affirmative order to approve the mandate would provide a robust approach that would give much more parliamentary comfort to the nature of the mandate between the Secretary of State and the national Commissioning Board.

I do not believe that the current provisions in the Bill allow for that kind of parliamentary scrutiny and I hope that at the very least the noble Earl might be prepared to take this back to see whether there are ways in which we could beef up parliamentary scrutiny of what all of us acknowledge is probably one of the most important processes between the Minister and the national Commissioning Board. I beg to move.

[Baroness Williams of Crosby]

My Lords, I shall address Amendments 38, 43 and 49 in this group but, given the lateness of the hour, I can reassure the House that I shall not be lengthy on any of them. My comments will follow fairly closely some of the matters raised by the noble Lord, Lord Hunt, and will therefore fit in well with our brief debate.

Amendment 38 in essence is the suggestion that the Secretary of State should issue regulations at least once a year. In addition, those regulations should be shown within an adequate timeframe of about two months to the Select Committee, presumably before they pass through the affirmative or negative procedure. This issue is quite close to the amendment addressed at the beginning of our proceedings by the noble Lord, Lord Hennessy. Members in the Chamber will remember that the noble Lord raised the issue within the context of our discussions on constitutional matters when he suggested that any regulations should be subjected to scrutiny by the Select Committee before proceeding to either the affirmative or the negative procedure.

Quite simply, the reason for this, which I think we all recognise, especially those of us who served for some time in another place, is that the negative procedure is extremely weak. Unless one or two Members of Parliament are particularly concerned about a matter, the regulations pass through with not much more than a nod from the House of Commons. In the case even of the affirmative procedure, unless one can organise a substantial group of people who are deeply concerned about the regulation, debates are not profound. Little scrutiny is offered and very often the procedure is little more than routine.

I am not so concerned about the first part of Amendment 38. I do not think that one should necessarily hold the Secretary of State to having to produce regulations annually, but I am very interested in the second part, which refers to passing it to the Select Committee for scrutiny, presumably of its merits, before it passes on to the fixed procedures. There is of course a fairly close parallel with the Select Committee on the Merits of Statutory Instruments as distinct from the older Select Committee on the vires of statutory instruments.

This is an interesting idea. I am one of those convinced that it is important to strengthen parliamentary accountability, not only on health but across the whole front. Therefore, Amendment 38 is well worth consideration. I hope that the Government will consider it carefully because it would be a substantial and interesting step forward. It would enable the regulation to be looked at carefully instead of in effect just being passed on the nod.

Amendment 43 is about the mandate, to which the noble Lord, Lord Hunt, has already referred. We on these Benches see the mandate as a first-class way for the Secretary of State to indicate his most important priorities for the health service for the coming year or so. As such, we put considerable weight on it. The issue that I should like simply to underline is that the role of the mandate is so important that I hope that in it the Secretary of State would be able to address the known priorities of the Bill, including such issues as the narrowing of inequalities and the proper provision of care for the elderly and those who are chronically sick. The mandate could be a very important instrument for setting before the House, and more widely the public, the goals that the Secretary of State hopes the health system would be able to prioritise.

Finally, Amendment 49 is also in the names of the noble Lords, Lord Warner and Lord Patel, both of whom are unable to be here as late as this. They have asked me to apologise on their behalf. The noble Lord, Lord Warner, is particularly interested in this amendment, which sets out in considerable detail the need for audited accounts and for the careful comparison of those accounts for the levels of performance and for comparison with one another. Given his substantial experience in the field of accountability for health issues, this deserves careful consideration. It would at least enable us to be closely concerned with differential performance in the health service and allow people to make a good judgment of the quality of the care being given. I therefore hope that the Government will look sympathetically at Amendment 49.