Local Authorities (Public Health Functions and Entry to Premises by Local Healthwatch Representatives) Regulations 2012

Earl Howe Excerpts

Thursday 7th February 2013 Grand Committee

Moved By

[Earl Howe]

That the Grand Committee do report to the House that it has considered the Local Authorities (Public Health Functions and Entry to Premises by Local Healthwatch Representatives) Regulations 2012.

Relevant documents: 15th Report from the Joint Committee on Statutory Instruments

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)]

My Lords, these regulations make provision for three things: first, for local authorities to take certain steps in the exercise of public health functions; secondly, the making and recovering of charges in respect of certain steps taken by local authorities in the exercise of their public health functions; and, thirdly, a duty on certain providers of health and social care services to allow local Healthwatch organisations or contractors to enter and view their premises. The regulations are affirmative and apply to local authorities in England only.

I start by explaining the mandatory aspects of the regulations. Part 2 sets out certain steps which must be taken by local authorities when exercising their own, or the Secretary of State’s, public health functions. These include the provision of arrangements for weighing and measuring children, health check assessments, sexual health services, a public health advice service for clinical commissioning groups and information and advice in relation to arrangements for protecting the health of the local population.

Although the regulations are primarily concerned with steps to be taken by a local authority in the exercise of its own functions, in some cases the regulations require the local authority to exercise a Secretary of State public health function—for example, arranging contraceptive services as part of local authority sexual health services. Regulation 2 ensures that the authority can exercise the Secretary of State’s ancillary powers to assist the delivery of that function, for example, exercising the power to commission those services from a third-party provider.

Regulation 3 requires local authorities to provide for the weighing and measuring of certain children in their area by reference to the age of the children and the type of school which they attend.

Regulation 4 imposes a duty on local authorities to provide health checks to be offered to eligible persons in their area, the relevant criteria being a person’s age and existing health status. Regulation 5 makes provision for the conduct of the health checks, including the dissemination of information about dementia to older persons.

Regulation 6 requires local authorities to provide open access sexual health services in their area. That general duty does not extend to offering services to persons undergoing sterilisation or vasectomy procedures, or to services for treating or caring for persons infected with human immunodeficiency virus.

Regulation 7 creates a duty on local authorities to provide a public health advice service to any clinical commissioning groups in their area in order to assist CCGs to commission health services. The range of matters which the advice service covers will be kept under review and agreed between the local authorities and the CCGs.

Regulation 8 imposes a duty on local authorities to provide information and advice to responsible bodies and other relevant bodies within their area in order to promote health protection arrangements against any threat to the health of the local population, including infectious disease, environmental hazards and extreme weather events. We expect the local authority director of public health, with Public Health England, to lead the initial response to most public health incidents at the local level. When performing this duty, the local authority will be exercising the Secretary of State’s duty as to protection of public health, as set out in Section 2A of the National Health Service Act 2006.

Noble Lords may find it helpful if I describe the context of these regulations. The Health and Social Care Act 2012 gives upper tier and unitary local authorities a new duty to take appropriate steps to improve the health of their populations and certain other public health functions. In general, the intention is to permit the greatest degree of flexibility to local authorities to shape services to meet local needs. But there will be certain circumstances where a greater degree of uniformity is required—for example, where services must be provided in a universal fashion if they are to be provided at all, or where certain steps are essential to the efficient running of the new public health system.

We have consulted widely on these mandatory functions and set out our conclusions in July 2011 in the document Healthy Lives, Healthy People: Update and Way Forward. We will also issue appropriate guidance to support local authorities in delivering these functions.

Turning to Part 3 of this instrument, Regulation 9 makes provision for a local authority to make and recover charges in respect of certain steps taken in the exercise of its duty as to health improvement. However, there are some circumstances where it is legitimate for local authorities to charge organisations—for example, for providing information and advice to local employers—and the regulations permit charging in such cases. The regulations also permit individuals to be charged for services that do not have the purpose of improving their health. This might include training in public health.

However, I should stress now that this regulation means that no individual can be charged for steps taken to improve their health, nor will local authorities be able to charge organisations or individuals for anything done in the exercise of the mandatory functions under Part 2 of the regulations. We have previously made clear our position on charging for health services: there will be no new charges during the current Parliament. Regulation 9 is entirely consistent with that commitment.

We have prepared guidance for local authorities which makes it clear that anyone who was receiving a health improvement service from the NHS free of charge will continue to receive it free of charge when responsibility for it transfers to local authorities. Conversely, the guidance also makes clear that the effect of the Act and these regulations is not to convert large swathes of existing activity that local authorities may charge for—such as leisure or social care—into health services that must now be provided free of charge.

On the regulations covering entry and viewing by local Healthwatch representatives, Part 4 imposes a duty on certain providers of health and social care services to allow authorised representatives of local Healthwatch or its contractors to enter and view certain premises owned or controlled by them. This gives local Healthwatch the ability to enter premises where health and social care services are being provided in order to observe activities and gather views from people who use those services. This will enable local Healthwatch to feed back evidence about the quality of care provided in a report with recommendations to providers and commissioners about how the quality of that care can be improved.

We are clear that local Healthwatch is not an inspectorate. It does not have the status of a regulator—that is the role of the Care Quality Commission. We need to avoid duplication of roles and confusion among service users or service providers as to the various roles and responsibilities within the system. We are giving local Healthwatch a role that is different from and complementary to that of the regulator. It is there to listen to the voice of patients, service users and residents on how their services can be improved.

--- Later in debate ---

That covers all the major points. I reiterate that in general terms, as the noble Lord, Lord Willis, has represented it, my party shares the consensus about how important these changes are in terms of public health. We welcome the regulations, but we think that the issues that have been raised with us and that I raised today should be addressed.

[Earl Howe]

My Lords, I am grateful to both noble Lords, my noble friend and the noble Lord, Lord Collins, for their comments and questions, and in particular their overall welcome to these regulations. Quite a number of questions and issues have been raised, and I will endeavour to cover as many as possible now, but if noble Lords will allow I will follow up this debate with a letter on some of the more detailed comments, when I have not got the answers readily to hand.

I was grateful to my noble friend Lord Willis for his constructive opening remarks and for putting these regulations into their fuller context. He is right to flag up the wider dimension that the context of these regulations opens the way to. I begin where he did, on public health research funding. I quite agree about the importance of maintaining that work. Currently, PCTs and strategic health authorities fund public health research from their local spending allocations, in particular paying for public health academic posts, located within academic and research institutions. I can tell him that, in finalising spending plans, officials from the department, from Public Health England and the NHS Commissioning Board are working together to identify and continue this funding for the coming financial year. As soon as I have further news on that front, I will be happy to share it with my noble friend. He can be sure that it is very definitely on everybody’s radar.

My noble friend went on to discuss Regulation 4, which relates to health checks. First, the requirement to offer a health check is to offer the check within five years of a person becoming eligible for it. However, a local authority could, if it wished, offer checks to non- eligible persons, if it considered it appropriate to do so. Local authorities have that freedom; all the regulations do is to lay down the minimum requirements.

Both noble Lords spent some time discussing sexual health services. Improving sexual health is clearly a key part of improving public health and well-being. Our view was, and is, that local authorities are particularly well placed to commission sexual health services, as they will also be commissioning services for other public health issues such as drug and alcohol misuse, weight management and quitting smoking. They are also best placed to make the wider links between sexual health and well-being, such as to education, leisure and family support. Clearly, they will also want to work collaboratively with commissioners of sexual health and HIV services that will remain in the NHS. During our consultation there was strong stakeholder support for local authority commissioning of sexual health services. While it is important to get the arrangements absolutely right—we are clear that there are some issues of detail that we need to resolve—there is broad support out there for the decision that we have taken on this front.

The new commissioning arrangements will allow each organisation—local authorities, clinical commissioning groups and the NHS Commissioning Board—to play to their own strengths and to commission high-quality services for patients. Local authorities will commission most sexual health services: they will be able to make the crucial links between sexual health and other public health services, as I have mentioned. Clinical commissioning groups will commission abortion, sterilisation and vasectomy because these services need to be governed by robust systems of clinical governance, which currently exist in the NHS. HIV treatment will be commissioned by the NHS Commissioning Board, which has specialist expertise in commissioning high-cost, low volume services such as HIV treatment. At a local level, the health and well-being board will bring commissioners together to ensure that there is no fragmentation or gaps in service provision, a concern that the noble Lord, Lord Collins, understandably raised.

As noble Lords will know, these commissioning arrangements were set out in a local government fact sheet on commissioning responsibilities which we published at the end of 2011. However, I emphasise that we have worked, and will continue to work, closely with colleagues in the NHS and local councils to make sure that local authorities and other commissioners experience a smooth transition to their new responsibilities. We intend to conduct a further consultation in 2013 on whether clinical commissioning groups are best placed to commission abortion services in the longer term.

The noble Lord, Lord Collins, mentioned comorbidities, as did my noble friend. A person with comorbidity— let us say HIV and another condition—should clearly receive treatment from the most appropriate source. The two services will often be under the same roof in practice but it is important to ensure that the commissioning of those services is joined up for such patients.

On the issue of charging—both noble Lords asked about this—the first point to emphasise is that an individual who was receiving a health improvement service from the NHS free of charge will continue to receive it free of charge when responsibility for it transfers to local authorities. The kinds of activity that local authorities can charge for are as follows: providing information and advice; providing services or facilities designed to promote healthy living; providing or participating in the provision of training for persons working in, or seeking to work in, the field of health improvement; and making available the services of any person or any facilities—for example, providing staff and facilities to enable a company to conduct public health research.

--- Later in debate ---

[Lord Willis of Knaresborough]

Will the Minister state categorically that, in the event of a major public health incident within a local authority area, it will be the director of public health who has the lead responsibility in co-ordinating a response to that event?

[Earl Howe]

We expect that that will be the case but it will depend on the nature of the incident and how big a public health emergency we are dealing with. We might find, for example, that if it is an emergency that covers more than one local authority area, a particular director of public health will take responsibility on behalf of all the local authorities. We would expect Public Health England to be on the scene for any major incident and to advise, but the central point is that there has to be somebody with ultimate responsibility for what goes on on the ground. Clearly, who that person is will depend on how major or minor the incident is and the nature of that incident. It would be open to the director of public health to delegate certain functions but, again, we would expect the director of public health to retain an oversight role to make sure that functions were appropriately performed.

The noble Lord, Lord Collins, referred to the important area of prevention. He expressed concern about local authorities investing in prevention work. I was grateful to him for what he told me about the work currently being done in London on HIV prevention. The mandate to the NHS Commissioning Board does not specifically cover prevention, but local authorities will want to undertake prevention activity because this will improve the health and well-being of their population and reduce costs. Sexual health services are also a preventive activity in their own right—for example, the provision of contraception to prevent unplanned pregnancy and the testing and treatment for STIs to prevent onward transmission.

On HIV, one of the public health outcome indicators is to reduce late HIV diagnosis, and prevention activity can clearly play a crucial role in that. We are aware that in London, in particular, councils will be working together to review arrangements for pan-London HIV prevention work. The noble Lord may well be aware of the work going on to underpin the current pan-London HIV programme. The current programme comes to an end at the end of March and this has been known by all the providers and voluntary sector organisations for some time. Therefore, a needs assessment of pan-London HIV prevention was undertaken in 2011. London Councils and the mayor’s office are absolutely sighted on the need for effective HIV prevention in the capital and urgent discussions are under way about taking this forward from April.

HIV services will continue to be commissioned by the NHS. More generally, local authorities will be able to enter into cross-charging arrangements if they wish. In London, we introduced secondary legislation last year to allow the Greater London Authority to undertake public health activity in partnership with the boroughs, and that was obviously designed to facilitate co-operation across boundaries.

The noble Lord asked how we would ensure that HIV treatment was standardised across the country and whether we were intending to publicise HIV prevention. Local authorities will certainly be able to run awareness and information campaigns, and they will be funded to do so. HIV treatment will, as now, be commissioned by the NHS and be informed by the existing standards and guidance.

My noble friend mentioned the letter from my honourable friend Anna Soubry, which stated that there are no plans to do anything on the regulation of public health specialists at present. He sought reassurance on the regulation of public health specialists being in place by the end of next year. During the debate on the Health and Social Care Bill we made the commitment to regulate non-medical public health consultants after conducting a consultation. That remains the case. However, the process will take 12 to 18 months to complete and so, at this point, I am reluctant to commit to a particular date for implementation. I should be happy to follow up that comment in a letter to my noble friend.

He also raised the issue of the interface between Healthwatch England and services providers. Part 4 refers to the duty on services providers to allow entry to local Healthwatch rather than Healthwatch England. If local Healthwatch representatives observe anything that might be unsafe or poor care of any kind, they can report those matters directly to the Care Quality Commission to investigate. I hope that that addresses an issue also raised by the noble Lord, Lord Collins, because it is clearly very important for local Healthwatch not only to have a hotline to the CQC where necessary but to co-ordinate its work, where relevant, with that of the CQC—exactly as LINks do at the moment.

The noble Lord, Lord Collins, asked me about local Healthwatch in the context of the Francis report, published yesterday. All I can say at this point is that, as the Leader of the House said yesterday, my right honourable friend the Secretary of State will be considering all the recommendations in Robert Francis’s report in detail over the coming weeks. Clearly, we will need to reflect very carefully on the implications of his recommendations and we will be providing an initial response next month.

Finally, the noble Lord, Lord Collins, raised the issue of local Healthwatch being able to enter and view premises and, in doing so, access all areas in those premises—for example, areas being renovated, kitchens and so on. Local Healthwatch representatives will be able to access communal areas but there are restrictions based on the privacy of residents or patients and the need to respect that, and on intruding on the provision of care while it is being delivered. The enter-and-view powers are activities for the purposes of Section 221 and relate to service improvements. These regulations support local Healthwatch’s role in that respect.

On the issue of the reasonableness of local Healthwatch’s enter-and-view activities, the service provider’s view has to be one that is held reasonably; otherwise the provider would be acting unlawfully. Regulation 13 requires local Healthwatch, when on any premises, not to act in a way that would compromise “effective provision of care” or the,

“privacy and dignity of any person”.

These terms bear their ordinary meaning and, in our view, they are clear. They have worked well on the ground so far. They are, of course, based on the 2008 regulations and we are confident that they will serve the new system well.

I am aware that there are several matters of detail that I have not covered but I shall, as promised, look carefully once again in Hansard at all the questions posed by both noble Lords and write accordingly.

Motion agreed.