NHS England: Health and Social Care Act 2012
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Lord Hunt of Kings Heath (Lab)
My Lords, I beg leave to ask the Question standing in my name on the Order Paper and draw Members’ attention to my interests.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, the Government have no such plans to amend the Health and Social Care Act 2012. We believe that the power and responsibility for commissioning services should be exercised by the healthcare professionals closest to patients. That is why we legislated through the Act to establish autonomous local clinical commissioning groups supported by NHS England, an independent and accountable national body.
Lord Hunt of Kings Heath
My Lords, that is a pity because the 2012 Act must be the most flawed piece of health legislation there has ever been. On the question of autonomy, first, can the noble Earl tell me why CCGs are not allowed to be autonomous and why they are subject to very overbearing, day-to-day control by NHS England? Secondly, because NHS England is discriminating against the funding of mental health services and against the precept of parity of esteem, why are the Government not intervening and telling NHS England to reverse its policy?
Earl Howe
My Lords, I do not accept that CCGs are subject to unreasonable controls from NHS England. It is the task of NHS England to support CCGs and hold them to account, and that is what I believe it is properly doing, not least through the outcomes framework. Ministers are not intervening on the question of mental health funding because funding is just one part of the story when it comes to parity of esteem. We have set NHS England a strategic objective to make measurable progress towards achieving true parity of esteem for mental health. NHS England is responsible for allocating funds to clinical commissioning groups, which are best placed to invest in services that meet the needs of their local communities. However, we will of course hold NHS England to account for that. What we must not do is to single out certain elements of the equation at this stage.
Lord Patel (CB)
Can the Minister say whether the Ministers in the Department of Health are happy that NHS England has recommended a 20% deflater to tariffs for mental health that destroys any possibility of achieving any kind of parity of esteem?
Earl Howe
My Lords, we are not happy with that and, as I have said in the House before, Ministers have made it very clear to NHS England that this decision is both surprising and unwelcome in view of the need to maintain parity of esteem. NHS England, the NHS Trust Development Authority and Monitor are addressing this issue vigorously and we have regular discussions with those bodies to ensure that mental health services do not suffer.
Baroness Armstrong of Hill Top (Lab)
My Lords, I wonder whether the Secretary of State now regrets supporting those aspects of the Bill—now an Act— that put him at a distance from interfering in the National Health Service and its agencies. Will the Minister nudge his colleague the Secretary of State to show that the level of micromanaging he is indulging in disempowers and disables the very people and organisations that his legislation put in charge?
Earl Howe
My Lords, it is important for me to point out that the Secretary of State is acting entirely and properly within his powers. He is under a legal obligation to keep the performance of NHS England under review. That is in the Act. He would not be doing his job if he was not keeping in touch with NHS colleagues and talking and listening regularly to feedback about how things are going. He is accountable to patients and to Parliament and I do not think the public would expect anything less.
Baroness Brinton (LD)
My Lords, given that many Ministers have spoken very clearly about the priority for parity of esteem for mental health and the answers that my noble friend the Minister has given to the noble Lord, Lord Hunt, and others, what more can the Government do if NHS England continues to refuse to allocate funding fairly for mental health?
Earl Howe
My Lords, as I have indicated already, we view funding as just one part of the story in achieving parity of esteem. However, we will hold NHS England rigorously to account for this and we have regular meetings to talk about that. We have set NHS England that strategic objective and we have singled out in particular action on crisis intervention, extending access to IAPT therapies and developing options around access and waiting time standards. Therefore there are a number of detailed issues that we expect NHS England to address.
Baroness Howarth of Breckland (CB)
My Lords, can I ask the Minister to draw attention to one other area? I was alarmed to read in a recent POSTnote —the very last paragraph of a document that is often very factually based and helpful to the House—that HIV/AIDS is likely to suffer from being commissioned by one group, delivered by another and overseen by yet another. I am quite sure that that is an area where we would want good co-ordination, and I hope that the Minister will ensure that it is properly monitored.
Earl Howe
The noble Baroness is right to draw attention to sexual health services as an area that needs to be joined up. We are very aware of that. The commissioning arrangements are as she has stated but we are as confident as we can be that in most areas of the country the services are joined up, even if commissioned separately. It is an area that we keep under review very closely.
Care: Older People
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Baroness Wheeler
To ask Her Majesty’s Government what response they intend to make to the findings of the Age UK report Care in Crisis on the impact of cuts to care for older people.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, social care is a priority for this Government, which is why we have allocated an extra £1.1 billion to councils this year to protect services. We are building on this by creating a £3.8 billion fund next year to join up NHS and social care services. Both health and social care need to work differently to respond to the needs of our ageing population, focusing on keeping people well and living independently for as long as possible.
Baroness Wheeler (Lab)
I thank the Minister for his response. Age UK’s report found that social care cuts between 2010 and 2013 have resulted in 168,000 older people no longer receiving help with essential tasks such as eating, washing and getting dressed. The Nuffield Trust recently put the figure over four years at 250,000 people who have lost state funding support. In the light of today’s developments, can the Minister please comment on what is now happening to the Better Care Fund and when does he expect to update the House fully on why the launch of the fund has been delayed? The Minister knows that the fund basically uses resources already committed to shoring up the existing reduced level of services and that there is no new money in it. We now learn that the Cabinet Office says that the fund lacks financial credibility, in particular as to how on earth local hospitals are to save money to move care into the community in the current climate of substantial cuts. How does the Minister think progress can be made on the transfer to community care amidst the chaos and confusion into which this policy has now fallen?
Earl Howe
My Lords, I can assure the noble Baroness that there is no chaos and confusion. As regards reduced numbers, which was where the noble Baroness started, the transformation in the service model that we are promoting focuses above all on prevention and is designed to enable people to live independently for longer, as I said earlier, so as to reduce the number of people who are dependent on formal care. Councils have told us that lower social care user numbers are partly due to the success of their core prevention work, but also due to increased use of re-ablement services for people who leave hospital to help them get back on their feet. As regards the Better Care Fund, there has been no delay there. We wanted to set aside enough time to make sure that all areas of the country have developed comprehensive plans for joined-up care. The better care plans start from April next year, as the noble Baroness is aware, and we have asked for early versions to be completed a year in advance so that we can review them, check their level of ambition and test how they will be delivered. That is what is happening now and we are broadly on track with the programme.
Baroness Uddin (Non-Afl)
My Lords, people with autism spectrum disorder often spend much of their lives dependent on their parents, who are likely to die before them. In the light of the evident local authority distinction between critical and substantial eligibility thresholds, how will the Government ensure that people with autism are supported into old age by a social care system that helps those with moderate needs to live independently for as long as possible?
Earl Howe
My Lords, the national eligibility threshold has been set at a level to reflect the most common current practice of local authorities. That will allow current practice in 98% of local authorities to continue as it does at present. The national minimum threshold will mean that people with autism, others who need care and carers will know what level of need is eligible for local authority care, no matter where they live in the country. I think most people welcome the element of the Care Bill that gave that certainty.
Baroness Barker (LD)
My Lords, one of the objectives of the Better Care Fund is to reduce demand on the NHS by improving preventive social care. Local authorities have sought to put more money into the Better Care Fund than the Government originally asked them to. Can the Minister say what the NHS’s response to the Better Care Fund proposals has been?
Earl Howe
The short answer to my noble friend is that it is too soon to say as the plans are currently in formation. However, the whole idea of the Better Care Fund is to enable joint working. It is an opportunity to make the best use of available resources and improve value for money through the collaborative redesign of existing services. The pay for performance element of the fund should incentivise local areas to make efficiencies and will provide initial evidence of the impact of the Better Care Fund on savings and outcomes.
Lord Patel of Bradford (Lab)
My Lords, the Minister will be aware that the Royal College of Psychiatrists carried out a recent survey which found that 11% of NHS trusts had cut specialist psychiatric teams that specialise in working with older people. A similar number of trusts are planning to disband their specialist psychiatric teams across the country. That is having a huge impact on older people who have to go all around the country for a specialist service. What assessment have the Government made in respect of those cuts?
Earl Howe
My Lords, as the noble Lord is aware, specialised services are the responsibility of NHS England. We have charged it in the mandate and through regulations to make sure that there is comprehensive specialised cover for mental health services and other services throughout the country. For less specialised services, we expect the parity of esteem principle to apply, and CCGs are being held to account by NHS England to achieve that.
Baroness Wilkins (Lab)
My Lords, what is the Minister’s response to the recent Nuffield Trust report, which warns that the Government are now “flying blind” in planning services for vulnerable older people because there is no way of assessing the true impact that social care cuts are having on their lives? Does he agree that the recent abolition of the Independent Living Fund, with no ring-fencing of the transferred resources, will only exacerbate the social care crisis?
Earl Howe
My Lords, the Government are not flying blind on this issue. Social care has remained a priority for us, which is why in every year since 2011 we have invested significantly from the NHS into social care, and with a health benefit, as I mentioned earlier. That has enabled councils to give relative protection to social care in implementing their savings. The noble Baroness shakes her head, but the figures are very clear. Spending on adult social care services has been protected to a much greater degree than other service areas. One cannot expect them to be wholly protected. Local authorities have reduced spending on other services by a good deal more than they have on adult social care services.
Baroness Wall of New Barnet (Lab)
My Lords, does the noble Earl accept that the real crisis in care for older people is the closure of many beds within local communities, which forces hospitals such as my own, Barnet and Chase Farm, to hold on to those people when they should not be in a hospital? They do not need medical treatment and are very vulnerable to hospital diseases. That is where the real crisis is. Barnet and Enfield is closing beds inside care homes, which affects not only the length of stay but the impact we have on older people, which bothers us greatly.
Earl Howe
My Lords, that kind of issue should be absolutely central to the planning that the health and well-being boards undertake, with both the NHS and social services working together to ensure that there are enough beds from year to year. It is difficult to make generalisations about this. The noble Baroness mentioned her own area, which she knows very well. I am concerned to hear that Barnet and Enfield is straining in that sense, but, if she would like to speak to me about this, I am of course ready to see her.
Care Bill [HL]
Earl Howe Excerpts(10 years ago)
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The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, I would like to place on record my thanks to all noble Lords for the spirit of collaboration and constructive criticism that has characterised our formal and informal discussions leading up to this moment. Your Lordships examined the Bill thoroughly when it started in this House, and made many excellent proposals as to how it could be improved. Many of these were taken up in the other place, and I believe that we now have a better Bill before us. Noble Lords’ suggestions have influenced not only the Government’s amendments but also the surrounding policy and our proposals for forthcoming secondary legislation and guidance.
In moving the Motion on the first amendments made in the other place, I hope noble Lords will think it convenient to consider a number of others, to which no amendments have been proposed. Many are small technical changes to clarify the provisions further and correct previous oversights. Amendments 1, 12 to 31 and 34 to 36 are minor and technical, and do three things. First, they ensure that cross-references to the Children and Families Act 2014 and consequential changes to it are accurately reflected in the Care Bill. Secondly, they include further definitions in the glossary at Clause 79(1) to ensure maximum clarity. Thirdly, they make further changes to fully reflect amendments in this House to remove the requirement for a transition assessment to be requested.
Amendments 2 and 3 relate to the issue of charging by local authorities and simply clarify the scope of the regulation-making powers, as I set out when we considered this on Report. They ensure that regulations can specify where local authorities do have the power to be more generous and contribute to the costs of an adult above the financial limit, as well as where they do not.
Amendment 4 clarifies that the regulation-making power at Clause 25(13) allows the regulations to specify cases where aspects of the care and support plan, including the personal budget, are not required. We have always been clear that there may be cases where aspects of care planning are not appropriate. An example is the inclusion in a personal budget of costs relating to the provision of reablement. This also reflects current practice and we intend to continue this arrangement through regulations.
Amendment 5 allows regulations to specify where certain costs do not have to form part of the personal budget, and thus do not count towards the cap on care costs. Again, it has always been the intention that some care and support provision, such as reablement, should be provided as a universal, free service and therefore should not be incorporated in the personal budget. This regulation-making power is limited to services that the local authority cannot make a charge for, or chooses not to. There is no way that this can apply to general care and support that the local authority can charge for.
Amendments 6 to 8 allow regulations to make provision for cases where a person with a direct payment has a period of fluctuating capacity, so that the local authority could or should, depending on the circumstances, continue with the original direct payment arrangements. This will provide continuity and prevent the direct payment having to be terminated.
Amendments 9 and 10 are technical amendments that address an uncertainty caused by a drafting omission. They make it clear that deferred payments, whether they are deferred charges or a deferred repayment of a loan, can either be paid back in whole or part.
I turn now to Amendment 32, which provides for a broad regulation-making power specific to appeals of decisions made under Part 1 of the Care Bill. This power gives us the flexibility to provide for a range of options depending on further work to ensure that we achieve the outcomes that people have told us are important to them. We will specify the details of the policy in regulations.
Given the changes introduced by the Care Bill, it is vital that individuals have confidence in the care and support system, and that they are able to challenge decisions without having to resort to judicial review. We held a consultation during the second half of last year on how best we could ensure this. Following this consultation, we have recognised the need for change. Amendment 32 will give us the scope to develop with stakeholders detailed proposals for an appeals system, keeping to the spirit of co-production that has characterised our work on other areas of the Bill.
This is an important and complicated issue and we need to make sure that we take time to get the detail right, drawing on experience from other sectors and ensuring that the changes are aligned with the broader changes to NHS and social care redress following the Francis report and the Clwyd review. We are working actively with our various partners and stakeholders to develop our policy on this, and we will consult further as part of wider consultations on regulations and guidance later this year.
As noble Lords may know, the Delegated Powers and Regulatory Reform Committee today reported on the amendments made in the other place to the Care Bill. It made two recommendations in relation to Amendments 32 and 46, which I am pleased to say the Government accept. Accordingly, I have today tabled Amendments 32A to D and Amendments 46A to E to give effect to those recommendations.
Addressing the first recommendation, Amendment 46B ensures that regulations made on the first exercise of the power in Amendment 32 establishing the care and support appeals process would be subject to the affirmative procedure. The remaining amendments respond to the concern of the committee as to the meaning of the reference to “modifying” an enactment. Our amendments spell out that the power is to provide that a provision of an enactment may apply with modifications. Similar amendments are made to similarly worded provisions elsewhere in the Bill to ensure consistency.
The amendments also ensure that where any regulations relating to the appeals process make provision that provides for a provision of an Act of Parliament—that is, primary legislation to apply with modifications—then such regulations must be made using the affirmative procedure. Again, in the interests of consistency, similar amendments provide that certain other regulations under the Bill—which might also provide for the modification of the application of an Act of Parliament —should be made using the affirmative process.
I turn to Amendment 33. Feedback from local authorities is that it would make sense for them to have the flexibility to be able to delegate functions relating to direct payments if they so wish. We agree, and have accordingly tabled an amendment to remove the prohibition around this.
Baroness Barker (LD)
My Lords, in view of the press coverage today, perhaps I could ask the Minister to confirm a point. When the Better Care Fund was announced, the intention was that projects would start in April 2015. Is that still the Government’s intention or has the timescale been put back? What seems to me constructive is the move to have more engagement from the NHS in setting up the projects under the Better Care Fund. One key aspect of the Better Care Fund on which it rests is ensuring that there are enough strong and appropriate providers of community services to ensure that older people get the care in the community that they need.
The noble Baroness, Lady Wall, put a question during our earlier exchanges that went straight to this matter. You cannot simply close spaces in the NHS and expect that somehow people will be provided—magically, at a stroke—with services in the community. I quite see why people have leapt on this as a story, but I struggle to see the substantive issue. I go back to a point that was made earlier: how many times have we stood in your Lordships’ House and talked about integration of health and social care as being a desirable end that will deliver better services? It seems to me that the NHS may be questioning some matters to do with budgets. That is not a case for undermining the Government’s whole policy.
Earl Howe
My Lords, I am grateful for the contributions of noble Lords. I will begin by clarifying that the Better Care Fund has not been suspended or delayed. My noble friend was absolutely right to say how important and long-awaited this initiative is. Successive Governments and leading health professionals have talked about joining up health and social care for a very long time. The Better Care Fund is a major step to making this a reality. It will be in operation from April 2015, which was always the intention. For the press to suggest that the scheme has been suspended is completely wrong.
The Cabinet Office implementation unit conducted a deep-dive review of the Better Care Fund in six local areas following the submission of draft plans. This was a small sample of the 151 plans across England and was based on initial drafts that have since been redrafted. The review found that the Better Care Fund is generating pace around service integration, but there are areas where improvement is needed. These include insufficient engagement with primary care and acute providers in the development of Better Care Fund plans and a lack of practical detail and clarity about how cashable savings will be released.
Since receipt of the Cabinet Office report, officials have worked with NHS England and the Local Government Association to improve the offer of support for local areas to address the issues that have been raised. To give councils the resources to start making progress immediately, the NHS will transfer an additional £200 million to councils in 2014-15 on top of the £900 million already committed. This funding will be used for social care with a health benefit and to prepare for the introduction of the Better Care Fund.
We are only half way through the planning and preparation process for the Better Care Fund and it is very premature to imply or state that the fund is in trouble—far from it. One would expect different areas of the country to progress at different rates; that has always been the case. Many areas of the country have been integrating services very successfully for a number of years, so it should not be surprising to anybody that some areas need to catch up. We are on the case, and so are NHS England and the Local Government Association. I am confident that, as I said earlier, we are broadly on track in this area.
“(ba) section (Human Rights Act 1998: provision of regulated care or support etc to be public function) (Human Rights Act 1998: provision of regulated care or support etc to be public function);”
Earl Howe
My Lords, I shall speak also to the other amendments in my name in this group. They respond to the excellent report from the Joint Committee on Human Rights and follow discussions that I have had with the noble Lord, Lord Low, and others. I am grateful to the Joint Committee and particularly to the noble Lord, Lord Low, who unfortunately is not able to be here today. I extend my thanks to my noble and learned friend Lord Mackay, my noble friend Lord Lester, the noble and learned Lord, Lord Hope of Craighead, and the noble Lords, Lord Pannick and Lord Warner, with whom I have had constructive meetings.
As has been said here and in the other place throughout the passage of the Bill, this Government need to send out a strong message to the sector not to allow abuse, neglect or harm. Our priority must be preventing harm, abuse and neglect happening in the first place.
However, Clause 48 as inserted by this House went too far. It applied the Human Rights Act to all provision of CQC-regulated social care. As the Joint Committee on Human Rights acknowledged, the Human Rights Act is not intended to cover entirely private arrangements. If Clause 48 became law, it would have been the first time that the Act applied directly to purely private arrangements where there is no state involvement. It could have led to other interest groups arguing that they should also be able to challenge private providers on human rights grounds in other spheres.
We still believe that much stronger deterrents are available. Many of the Care Quality Commission’s fundamental standards will include human rights dimensions. These standards will apply to all registered providers of health and social care, and failure to comply with them could be a criminal offence.
However, as I have just said, I am aware of the strength of feeling on this matter and that is why I am today prepared to offer a government amendment which I hope this House can support. The amendment would make it explicit that care providers who are regulated by the Care Quality Commission in England or by equivalent bodies in the rest of the United Kingdom, when providing care and support arranged or funded in whole or in part by local authorities, are exercising a public function for the purposes of the Human Rights Act. I hope that noble Lords will agree that this amendment meets the objectives of the Joint Committee on Human Rights. It makes it clear that providers of publicly arranged or funded care and support, both residential and non-residential, provided on behalf of a local authority to an individual, are bound by the Human Rights Act.
The Government were unable to accept the JCHR amendment as it was drafted for technical reasons. The Human Rights Act is an entrenched enactment which the devolved legislatures cannot modify, but its application should be the same across the UK. Government Amendment 11B therefore applies the legislative clarification to Wales, Scotland and Northern Ireland.
It is important to bear in mind that the scope of application of the Human Rights Act matters to lots of other people beyond the care sector. The Government believe that it is not appropriate to pick and choose which people or bodies are expressly made subject to the Human Rights Act. That is why I want to make it clear that this amendment would not set a precedent for any future occasions where there are perceived to be gaps in the coverage of the Human Rights Act. I hope that this amendment will be welcomed. I beg to move.
Lord Lester of Herne Hill (LD)
My Lords, I apologise to my noble friend for having missed the first few sentences of his speech. However, I heard the substantive part of it.
First, may I say on behalf of the Joint Committee on Human Rights, which met this morning, that the committee is absolutely delighted by how the Government have reacted to the problem that was raised in this House by the noble Lord, Lord Low, and many others, and which led to an amendment that—on reflection—was too strong? The amendment now tabled meets the problem admirably. The problem was created by an unfortunate decision of the Law Lords—by three to two—in the case of YL. As the Minister will know, the previous Government, like the present one, had been looking for an opportunity for that unfortunate judgment to be reconsidered in a suitable test case. However, no such case has arisen. The pity of it is that the whole point of the Human Rights Act was not to have a list of bodies that would be subject to the Act but to have a good, flexible test that would be fact-sensitive and would apply without the need for amendments of this kind. Unfortunately, no such test case has arisen where the matter could be properly decided, and therefore one has in a sense to use Elastoplast—sticking plaster—to deal with particular problems.
We quite understand the Government’s reservations about this being regarded as a precedent. As the Minister knows, ideologically there are some for whom the words Human Rights Act are almost anathema; that is why it required a certain amount of discussion to get to the present situation.
The Joint Committee sought clarification on just one matter. I do not think there is a problem; it is rather a matter of seeking confirmation that the Government intend the amendment to cover social care provided by a regulated provider and paid for by direct payments. It is not absolutely clear from the amendment that that is so. We think that it is so but is that correct? Do the Government intend the amendment to cover social care paid for by direct payments, provided that the care is purchased from a regulated provider? I am speaking extremely slowly, in order that others may be able to answer. No doubt others will want to say something about this amendment as well, but if that point could be confirmed in the Minister’s reply it would be very helpful. Nothing that I have said, however, should mask the delight we feel that this problem has been solved in this manner.
Earl Howe
My Lords, I am naturally very pleased by the welcome that these amendments have received from around the House. I should like to thank those noble Lords who have spoken for their extremely helpful remarks, not least the noble and learned Lord, Lord Hope of Craighead, and my noble friends Lord Lester and Lady Barker.
My noble friend Lord Lester asked me whether the amendment covers social care provided by regulated providers paid for by direct payments. The answer is yes, it does. The words used are: if the local authority pays “directly or indirectly”. “Indirectly” is to cover direct payments when the local authority provides the money to the individual who then goes to the regulated provider him or herself. I hope that clarifies the point.
The noble and learned Lord, Lord Hope of Craighead, asked me three questions. First, he asked whether the intention is that the list in subsection (3) of the new clause should cover all care paid for by all local authorities around the country. Yes, that is the intention: all relevant regulated care and support across England and the devolved Administrations is included in the list. It is our intention that the effect of this clause should be the same across the UK. We have worked very closely with the devolved Administrations to ensure that this is the case as far as possible. There is a potential source of confusion in the wording because in Scottish legislation social care is referred to in different terminology, but the net effect of what we are doing should mean that this applies in an even-handed way across the country.
The noble and learned Lord’s second question was: where a personal contribution is made towards the cost of care, will those situations be covered—that is, a situation where the public authority has arranged the care? Yes, the wording in new subsection (3)(a) in the new clause includes the words,
“paid for (directly or indirectly, and in whole or in part) by such an authority”.
In other words, even if the local authority funds only part of the care, it will be covered.
The noble and learned Lord also asked about the content of the care package and whether the fact that the local authority is providing the care means that those with learning disabilities and mental health issues are covered. All those who are receiving regulated care and support arranged by the local authority will be covered. That includes situations where the local authority itself is providing the care or support. That is the existing situation, the amendment does not change it and these people remain fully covered.
My noble friend Lady Barker asked whether the effect of what we are doing means that the provider is performing a public function. Yes, any provider covered by this amendment would be carrying out a function of a public nature in that instance. I hope that I have covered the questions as fully and clearly as noble Lords would wish, and I beg to move.
“(3A) After subsection (7) of that section insert—
“(8) Where the administrator recommends taking action in relation to another NHS foundation trust or an NHS trust, the references in subsection (5) to a commissioner also include a reference to a person to which the other NHS foundation trust or the NHS trust provides services under this Act that would be affected by the action.”.”
““(2) In subsection (4)(a)(ii) of that section, omit “or NHS trust”.
(3) In subsection (7) of that section, omit “or an NHS trust” and “or the NHS trust”.
(4) In subsection (8) of that section, omit “or an NHS trust”.”
Earl Howe
My Lords, I shall also speak to the other amendments in my name in this group. The trust special administrator regime is of course not revolutionary or new, but was set up by the previous Government in 2009 as a way of dealing with exceptional and intractable failure at NHS provider trusts. Your Lordships will also know that, since the addition of provisions for a single failure regime, which we have discussed previously, a foundation trust could be placed into special administration both for quality as well as financial failures, in the same way that an NHS trust could be. We are strengthening the regime through changes made in the Bill but this does not change the fact that it is only to be used in cases of significant failure.
There are various actions that could happen before the regime is even considered. For minor concerns at an NHS trust or foundation trust, the CQC will use its inspection reports and ratings to highlight concerns and to call for improvement. Breaches of fundamental standards could lead to a trust being prosecuted, or a penalty notice in lieu of prosecution. Where there are serious failings, the CQC will issue a new warning notice, requiring the trust to make significant improvement within a specified time. Monitor and the TDA also have a range of intervention powers; for example, Monitor is able to remove, suspend or replace foundation trust governors or directors. Monitor and the TDA can also place trusts into special measures, which includes partnering with a high-performing hospital, regular publication of improvement plans and a full leadership review.
Also, providers and their commissioners are expected to review the way that local clinical services are configured in the best interests of patients and in the context of quality and financial challenges. While a locally led service reconfiguration is not a panacea for all the challenges facing a provider, we would none the less expect options for reconfiguration to have been rigorously assessed. Ultimately, however, if it is impossible for a trust to turn itself around, it will be necessary to place it into the special administration regime, in order to safeguard taxpayer funding and the interests of patients. Trust special administrators would be appointed—and I make this point emphatically—only when all other suitable processes to develop sustainable, good healthcare have been exhausted.
That is the background to these amendments. I turn now to the amendments made in the other place. Amendment 41 would require any trust special administrator to consult formally other trusts, their staff and commissioners, who may be affected by his or her draft recommendations. This would match the extended remit of the administrator under Clause 118 with an express wider consultation requirement, ensuring that the final recommendations are informed by a proper understanding of the issues facing the entire local health system. Amendment 41 would also strengthen public and patient representation in the regime by requiring the administrator to consult local authorities in whose areas affected trusts provide services and local Healthwatch organisations in those areas. Amendment 43 is a minor and technical amendment. I hope that noble Lords will agree that the changes made in the other place further strengthen the regime and will offer the amendments their support.
I turn now to Amendment 41A tabled by the noble Lord, Lord Hunt, and Amendment 43A tabled by the noble Baroness, Lady Finlay. I hope that they will forgive me for addressing these amendments before they have been spoken to. The key underlying aim of these amendments is one with which I have complete sympathy, and I am grateful for the opportunity to make that clear in your Lordships’ House. It is absolutely the Government’s intention that essential services at other affected trusts should be respected during the process of trust administration just as much as the essential services at the failing trust. However, both amendments seek to achieve that aim by adding additional statutory objectives for the trust special administrator. I hope it will be helpful if I explain briefly why that is unnecessary and unworkable in practice.
Lord Mackay of Clashfern
I support the view that we ought not to have too many impediments to effective action. When this matter was first raised in this House, when the Bill was being considered, the amendment dealing with a special administrator came in very late and there was a certain degree of feeling that it should have been dismissed. But I am glad to say that the House decided to continue with it, and of course the matter has been carefully and fully considered in the other place.
The procedure for special administration may be needed quite urgently in some places in the not-too-distant future. I hope not, but there is a risk of that. Therefore, it is extremely important that we have an acceptable, effective service and provision in position to deal with the special administrator and his powers as soon as possible. I thank my noble friend and his colleagues for advancing to this extent.
Earl Howe
My Lords, this has been an extremely helpful debate. I first pick up a point emphasised by the noble Baroness, Lady Murphy. Trust special administration is indeed a last resort, which was why I took care to spell out the other steps that we might expect to have taken place before administration is even considered. But the previous Government realised, rightly, that we have to have a mechanism in statute designed to deal with long-standing and apparently intractable situations in provider trusts—and not just to have a mechanism of that sort, but one that provides a reasonably swift resolution to the problem of significant failure.
The previous Government provided for a defined statutory timetable for the TSA process and they were absolutely right to do that. Indeed, as the noble Baroness, Lady Finlay, generously acknowledged, her own amendment, had it been accepted, would allow other affected commissioners to consult the public further about the administrator’s final recommendations. Consultation would be through the usual NHS process, taking about 12 weeks. It would fall completely outside the timetable of the trust special administrator and the net effect of such a change would be to reverse the effect of Clause 118. The administration regime would not be creating a complete and timely solution to the problem. It would render the strict legal timetable for the regime ineffective and delay what would be an uncertain resolution very significantly. I hope that noble Lords will not wish to follow that part of the noble Baroness’s amendment. I was glad to hear her say that she would not be moving it.
The noble Baroness asked me whether the committee to be chaired by Paul Burstow on the guidance will continue. Yes, it will. The Government’s commitment in relation to a committee chaired by my honourable friend to review the guidance still stands. The guidance is still important for setting out in detail how the statute should operate. The Government believe that there is significant value in advice from the committee about the guidance. She was right to say that that process should give the public and patients confidence that this is not a set of guidelines dreamt up by Ministers and civil servants on their own.
The amendment of the noble Lord, Lord Hunt of Kings Heath, suggests that the guidance should be laid before Parliament. I need hardly say that that idea falls considerably outside what is usual practice. It is not usual practice to lay statutory guidance before Parliament in the way that the amendment envisages. However, in recognition of the keen interest of parliamentarians in both Houses, we invited my honourable friend Mr Burstow MP to chair a committee of MPs and Peers to consider the guidance. I hope that that mechanism will be sufficient for the kind of buy-in from patients and the public that I have referred to, and will command confidence.
The noble Lords, Lord Turnbull and Lord Hunt of Kings Heath, referred to the situation where commissioners or providers declined to accept the administrator’s recommendation. The noble Lord, Lord Hunt of Kings Heath, asked whether a clinical commissioning group has a veto. Each commissioner of services provided by the trust under administration and affected trusts has to give agreement for the draft and final TSA reports to go forward, but NHS England has a role—which is already in statute—in deciding whether to agree the TSA reports if not all the CCGs agree. I believe that that is right. We cannot expect or oblige every CCG to agree to the TSA proposals in every single case. There has to be a way of resolving any lack of unanimity and this is the mechanism that we believe is right.
Lord Hunt of Kings Heath
My Lords, perhaps the noble Earl will clarify that. If we take the case of south-east London referred to earlier, the trust special administrator would have produced its report, which the Lewisham CCG would not have agreed to, and so the TSA would not have had an agreed report. I suppose the risk is that NHS England or its regional office or a combination of local area teams would none the less have said that they would process the report, even without that agreement. As the noble Lord, Lord Horam, said, the eventual outcome was actually much better than the original recommendation by the trust special administrator.
Earl Howe
My Lords, that last statement is a matter of opinion. We will have to see how the situation pans out. I do not want to make any judgments here and now, but I think there is a difference of view about that.
However, if one or more commissioners does not support the administrator’s recommendations, under existing legislation NHS England can still agree them, if, in its view, the recommendations achieve the objective of the trust special administration. Under our amendments, NHS England has that same role, but its decision would also be in respect of whether the recommendations harm essential NHS services at other affected trusts, and would look at both the definition of essential service and the existence of any harm. NHS England can therefore take into account the views of the commissioner which did not provide support on the basis that it felt the recommendations damaged the essential services that it commissions, and it would then decide whether the argument is convincing.
The noble Lord, Lord Turnbull, took that situation to the extreme and asked what happens if complete stalemate ensues between CCGs. In what we believe would be the unlikely event that a CCG made a decision which amounted to a failure to discharge its duties to act consistently with wider NHS imperatives, there are powers of direction by NHS England to ensure that those duties are discharged properly—but I emphasise that that would be a drastic and unexpected situation.
This regime is about ensuring that the TSA works closely with and consults formally all affected commissioners and providers so that they can input into, agree, plan for and adapt to any recommended pattern of services. CCGs must act consistently with the duty of the Secretary of State and NHS England to promote a comprehensive health service. Given that duty, we would expect CCGs to work closely and constructively with a TSA to avoid what one might call parochial decision-making and to take into account broader considerations for the delivery of publicly funded services in the interests of patients and the taxpayer.
In the end, the NHS must do the greatest good for the greatest number of people. On occasion and in exceptional circumstances, where a TSA is appointed, commissioners and providers may need to see local service change as a means of improving NHS services in the local health economy. I hope that those remarks are helpful by way of explanation and background to these amendments.
“(5A) In section 65H of that Act (consultation requirements), in subsection (4)—
(a) after “trust special administrator must” insert “—
(a) ”, and
(b) at the end insert “, and
(b) in the case of each affected trust, hold at least one meeting to seek responses from staff of the trust and from such persons as the trust special administrator may recognise as representing staff of the trust.”
(5B) In subsection (7) of that section, after paragraph (b) (but before paragraph (ba) inserted by section 84(10)(a)) insert—
“(bza) any affected trust;
(bzb) any person to which an affected trust provides goods or services under this Act that would be affected by the action recommended in the draft report;
(bzc) any local authority in whose area the trust provides goods or services under this Act;
(bzd) any local authority in whose area an affected trust provides goods or services under this Act;
(bze) any Local Healthwatch organisation for the area of a local authority mentioned in paragraph (bzc) or (bzd);”.
(5C) In subsection (8) of that section, omit paragraph (e).
(5D) In subsection (9) of that section—
(a) after “trust special administrator must” insert “—
(a) ”,
(b) after “subsection (7)(b),” (but before the insertion made by section 84(10)(b)) insert “(bzb),”, and
(c) at the end insert—
“(b) hold at least one meeting to seek responses from representatives of each of the trusts from which the administrator must request a written response under subsection (7)(bza), and
(c) hold at least one meeting to seek responses from representatives of each of the local authorities and Local Healthwatch organisations from which the administrator must request a written response under subsection (7)(bzc), (bzd) and (bze).”
(5E) After subsection (11) of that section, insert—
“(11A) In this section, “affected trust” means—
(a) where the trust in question is an NHS trust, another NHS trust, or an NHS foundation trust, which provides goods or services under this Act that would be affected by the action recommended in the draft report;
(b) where the trust in question is an NHS foundation trust, another NHS foundation trust, or an NHS trust, which provides services under this Act that would be affected by the action recommended in the draft report.
(11B) In this section, a reference to a local authority includes a reference to the council of a district only where the district is comprised in an area for which there is no county council.”
(5F) In subsection (12)(a) of that section, after “subsection (7)(b)”, insert “, (bzb), (bzc) and (bzd).”
“(ba) in that paragraph, after sub-paragraph (7) insert—
“(8) Omit subsection (8).”.”
“(ca) in paragraph 17, in sub-paragraph (2)(a), for “paragraph (b)” substitute “paragraphs (b), (bzb), (bzc) and (bzd)”, (cb) in that paragraph, after sub-paragraph (4) insert—
“(4A) In subsection (11A)—
(a) omit paragraph (a), and
(b) in paragraph (b), omit “where the trust in question is an NHS foundation trust,” and “, or an NHS trust,”.”.”
“Integration of care and support with health services etc: integration fund
(1) At the end of section 223B of the National Health Service Act 2006 (funding of the National Health Service Commissioning Board) insert—
“(6) Where the mandate specifies objectives relating to service integration, the requirements that may be specified under section 13A(2)(b) include such requirements relating to the use by the Board of an amount of the sums paid to it under this section as the Secretary of State considers it necessary or expedient to impose.
(7) The amount referred to in subsection (6)—
(a) is to be determined in such manner as the Secretary of State considers appropriate, and
(b) must be specified in the mandate.
(8) The reference in subsection (6) to service integration is a reference to the integration of the provision of health services with the provision of health-related services or social care services, as referred to in sections 13N and 14Z1.”
(2) After section 223G of that Act (meeting expenditure of clinical commissioning groups out of public funds) insert—
“223GA Expenditure on integration
(1) Where the mandate includes a requirement in reliance on section 223B(6) (requirements relating to use by the Board of an amount paid to the Board where mandate specifies service integration objectives), the Board may direct a clinical commissioning group that an amount (a “designated amount”) of the sums paid to the group under section 223G is to be used for purposes relating to service integration.
(2) The designated amount is to be determined—
(a) where the mandate includes a requirement (in reliance on section 223B(6)) that designated amounts are to be determined by the Board in a manner specified in the mandate, in that manner;
(b) in any other case, in such manner as the Board considers appropriate.
(3) The conditions under section 223G(7) subject to which the payment of a designated amount is made must include a condition that the group transfers the amount into one or more funds (“pooled funds”) established under arrangements under section 75(2)(a) (“pooling arrangements”).
(4) The conditions may also include—
(a) conditions relating to the preparation and agreement by the group and each local authority and other clinical commissioning group that is party to the pooling arrangements of a plan for how to use the designated amount (a “spending plan”);
(b) conditions relating to the approval of a spending plan by the Board;
(c) conditions relating to the inclusion of performance objectives in a spending plan;
(d) conditions relating to the meeting of any performance objectives included in a spending plan or specified by the Board.
(5) Where a condition subject to which the payment of a designated amount is made is not met, the Board may—
(a) withhold the payment (in so far as it has not been made);
(b) recover the payment (in so far as it has been made);
(c) direct the clinical commissioning group as to the use of the designated amount for purposes relating to service integration or for making payments under section 256.
(6) Where the Board withholds or recovers a payment under subsection (5)(a) or (b)—
(a) it may use the amount for purposes consistent with such objectives and requirements relating to service integration as are specified in the mandate, and
(b) in so far as the exercise of the power under paragraph (a) involves making a payment to a different clinical commissioning group or some other person, the making of the payment is subject to such conditions as the Board may determine.
(7) The requirements that may be specified in the mandate in reliance on section 223B(6) include requirements to consult the Secretary of State or other specified persons before exercising a power under subsection (5) or (6).
(8) The power under subsection (5)(b) to recover a payment may be exercised in a financial year after the one in respect of which the payment was made.
(9) The payments that may be made out of a pooled fund into which a designated amount is transferred include payments to a local authority which is not party to the pooling arrangements in question in connection with the exercise of its functions under Part 1 of the Housing Grants, Construction and Regeneration Act 1996 (disabilities facilities grants).
(10) In exercising a power under this section, the Board must have regard to the extent to which there is a need for the provision of each of the following—
(a) health services (see subsection (12)),
(b) health-related services (within the meaning given in section 14Z1), and
(c) social care services (within the meaning given in that section).
(11) A reference in this section to service integration is a reference to the integration of the provision of health services with the provision of health-related services or social care services, as referred to in sections 13N and 14Z1.
(12) “Health services” means services provided as part of the health service in England.”.”
“The Health and Social Care Information Centre: restrictions on dissemination of information
(1) Chapter 2 of Part 9 of the Health and Social Care Act 2012 (the Health and Social Care Information Centre) is amended as follows.
(2) In section 253(1) (general duties), after paragraph (c) (but before the “and” after it) insert—
“(ca) the need to respect and promote the privacy of recipients of health services and of adult social care in England,”.
(3) In section 261 (other dissemination of information), after subsection (1) insert—
“(1A) But the Information Centre may do so only if it considers that disseminating the information would be for the purposes of—
(a) the provision of health care or adult social care, or
(b) the promotion of health.”
(4) After section 262 insert—
“262A Publication and other dissemination: supplementary
In exercising any function under this Act of publishing or otherwise disseminating information, the Information Centre must have regard to any advice given to it by the committee appointed by the Health Research Authority under paragraph 8(1) of Schedule 7 to the Care Act 2014 (committee to advise in connection with information dissemination etc).””
Earl Howe
My Lords, this group covers issues relating to health and care data. I will speak to Amendments 45, 49 and 50. The Government are fully committed to the principles of the care.data programme and to the core principles that underpin its use, namely: to promote transparency in the quality of health and care services while at the same time protecting privacy and confidentiality; to promote health and care research; and to better integrate health and care services.
The data collected across health and care in England are the envy of the world. The care.data programme offers the ability to link existing data securely and safely in order to produce information that can save lives, quickly find new treatments and cures, and support research to benefit all of us.
I say at the outset that, in my view, the care.data programme is very good news and offers a great deal to help improve our country’s health and care system. However, in order to realise its huge potential, patients and professionals must have absolute trust in the way that data will be protected and used together with an understanding of why collecting data on such a big scale is important.
Earl Howe
My Lords, this has been a very fruitful and excellent debate. I thank all noble Lords for their contributions. Before I address the amendments in the names of the noble Lords, Lord Hunt, Lord Turnberg and Lord Owen, I hope it will be thought to be in order for me to cover some of the questions that have been raised by noble Lords.
I start with the issues raised by the noble Lord, Lord Patel, who asked me a series of questions. First, he asked about the “one strike and you’re out” intention to which I referred. We believe that this will be a criterion that the Confidentiality Advisory Group, the CAG, will take into account in its advice to the HSCIC on the dissemination of data that might be used to identify an individual, so there is already scope for flexibility and common sense within this provision. We anticipate that the transparency of the information centre’s decisions to release data, which is provided for in the 2012 Act, would provide further safeguards and reassurances that a “one strike and you’re out” rule was being used appropriately—so there is flexibility. This is one matter on which NHS England in particular will want assurance as the engagement exercise proceeds, as will Ministers.
The noble Lord asked about accredited safe havens. I can commit that the Government will consult on proposals to introduce regulations before bringing forward any new regulations that would enable greater access to data for commissioning purposes, for example through accredited safe havens. As affirmative regulations, any such changes would be subject to debate in both Houses. Will personal identifiers be excluded from the collection? The information centre will of course need identifiers in order to be able to link health and care data from different settings. That is vital if it is to become the source of linked data that all sides seem to desire. Of course, this would be with the protections set out in the 2012 Act, to ensure that the information centre could release information that could be used to identify individual patients and service users only where there is a legal basis for it to do so.
The noble Lord, Lord Patel, also asked about effective links to the patient records standards board, to define the content of patient records. Following the department’s recent review of informatics governance arrangements, it has proposed a committee that will focus specifically on information standards: the so-called SCCI. That committee has oversight of the operational framework and supporting infrastructure to enable the appraisal and approval of information standards and collection across health and care systems in England. The committee will be the mechanism by which the patient records standards board will be able to engage with the delivery community and the wider system, in order to define and gain approval for the content of patient records.
The noble Lord, Lord Patel, suggested that there should be straightforward mechanisms for the personal opt-out. NHS England’s extension period and engagement processes do allow space and time for fuller listening, engagement and debate on that vital programme. As part of the process, I understand that a wide range of stakeholders—including the BMA, medConfidential, Macmillan and indeed the noble Lord, Lord Turnberg—are invited to regular advisory group meetings with the NHS England team. Those processes will be key to helping work through how best to provide reassurance and trust in the care.data programme, not least on how best to ensure that the opt-out process will work in practice and can be clearly communicated and understood by both GPs and patients.
The noble Lord asked whether I would assure the House that no changes to the law would be made to provide for access by commissioners to this kind of data without consultation. I can give that assurance. I can commit that we will consult on proposals to introduce regulations, as I have already mentioned.
The noble Lord asked whether I could say anything about secure data labs or fume boxes for handling data. Yes, I can say a little. I understand that the information centre is working to see how best it can implement this kind of technology. It is tremendously encouraging and could offer real potential benefit from the wealth of information held by the information centre without putting people’s confidentiality at risk. That is the potential benefit.
My noble friend Lady Brinton asked about the extraction of musculoskeletal data from GP records. I understand that NHS England and the information centre are working to ensure that musculoskeletal data will be included in the GP extraction.
The noble Lord, Lord Hunt, suggested that patients should not have to go to their GP to opt out—a point that he has made to me on more than one occasion in the past. This is mostly a matter for NHS England, but GPs, as data controllers, have legal responsibilities under the Data Protection Act for ensuring that all patients are aware of how their information is being used and shared. That does not relate just to care.data but to any use of data for wider purposes. They also have professional and moral objectives to ensure that their patients are informed about the use of their data.
Lord Hunt of Kings Heath
I do not want to delay the House and I am grateful to the noble Earl, but he will know that there is a widespread concern about the quality of GP practices in some parts of the country. The first report of the chief inspector of primary care within CQC contained some hair-raising concerns. The idea that one of those GPs will be responsible for protecting data in those circumstances fills me with gloom and despair. Clearly, something will go wrong. If this ever gets off the ground, which I doubt in current circumstances, something will go wrong and the whole thing will collapse again.
Earl Howe
At the same time, if anyone is going to come up with a better solution, now is the time. I have not heard one. In all seriousness, however, all GPs are well aware of the duty of patient confidentiality. I have never met a GP who has not been aware of that and conscientious about it.
The noble Earl, Lord Erroll, took us to the subject of the proposed European general data protection regulation, which is of considerable concern to the Government. We believe that clinical research is already highly regulated in the UK, so that the interests of privacy are effectively balanced against the value to the public that the research will deliver. The data protection proposals will, as I am sure he is aware, be subject to the co-decision of the European Parliament, the Council of the European Union and the 28 member states. Officials from the Department of Health are working closely with the Ministry of Justice, which leads on the negotiations with the EU on the UK's behalf, ensuring that stakeholders are engaged on key issues such as consent, the use of pseudonymised data, and when the legitimate interests of data controllers can be applied in order to process personal data.
We have also flagged up our concerns with MEPs on specific issues, including the narrowing of the exemption from consent generally and in relation to a rigid reliance on consent or pseudonymous data in order to process data. We strongly agree that we need to take a very firm position on research within the Council and are resisting all changes that would make the use of health data for research more problematic.
I turn now to the amendments themselves. In doing so, I not only thank the noble Lords who spoke to them, but particularly thank my noble friends Lord Lester, Lord Ribeiro and Lady Brinton for their supportive comments about the Government’s amendments and the Government’s position generally.
Amendments 45E and 45F would place Dame Fiona Caldicott’s independent advisory panel on information governance on a statutory footing to provide advice on information governance across the health and care system. It would require the Secretary of State and NHS England to have regard to its advice when making directions to the Health and Social Care Information Centre under Section 254(1) of the 2012 Act. The Secretary of State would also be required to have regard to its advice when making regulations to establish an accreditation scheme for private sector information providers. The amendment would also revoke directions made to the information centre by NHS England in 2013 to implement the care.data programme and to establish data services for commissioners.
Let me say immediately that we are sympathetic to the desire to see the oversight panel placed on a statutory footing. In an area as complex and important as information governance, it is essential that we have a source of clear, authoritative advice, available to all parts of the health and care system, which creates the right conditions for informed judgments to be made on the use of information, and on decisions to share or not to share. When the Secretary of State asked Dame Fiona Caldicott to chair the Independent Information Governance Oversight Panel, it was in recognition of her extensive knowledge and experience in this area. I agree with the noble Lord, Lord Turnberg, that Dame Fiona is uniquely well placed to lead the panel in providing strong, visible leadership to the health and care sector. It is our clear intention that the panel be best supported to do this. My department continues to work closely with Dame Fiona to ensure that the panel is equipped to deliver the role it has been charged with performing.
There may well be merit in establishing the panel in law and giving legal force to its advice on data sharing. I strongly feel, however, that on this important matter, so crucial to people’s privacy and confidentiality, to the safe and efficient operation of the health and care system, and to the research agenda, it is vital that we ensure the system of oversight, scrutiny and advice is robust and coherent. I undertake that we will explore with Dame Fiona Caldicott and all interested parties how best to achieve this, which may include using existing legal powers to establish an independent committee able to advise on data-sharing matters. Dame Fiona Caldicott has confirmed that she would explore options on existing legal powers to establish an independent committee and has noted the importance of considering further and clarifying the functions of the panel before doing so. I hope that those statements, as far as they go—and they are intended to be helpful—will reassure the noble Lord, Lord Owen, and other noble Lords.
I turn now to the directions made to the HSCIC by NHS England in 2013, covering the establishment of data services for commissioners and the implementation of the care.data programme, which would be revoked by this amendment. These directions, inter alia, describe the intended operation of the patient opt-out processes in the event that a patient objects to his or her information being shared. A key focus of NHS England’s engagement activity is to ensure that the opt-out process is implemented in a way that reflects the outcome of the listening exercise, and this will need to be reflected in the new directions to the HSCIC. As there will be new directions, it is not necessary and would be inappropriate to use primary legislation to revoke the current directions.
With those assurances and with a commitment to ensure that the oversight panel is supported to deliver its objectives—including a commitment to explore using existing legal powers to establish an independent committee to advise on data sharing—I hope that the noble Lord will see fit to withdraw his amendment.
It may be helpful to address Amendments 45C and 45D together as they cover very similar ground and, I believe, have similar intent. Amendment 45C would narrow the purposes for which the information centre may disseminate anonymised and certain other information under its general dissemination power. Government Amendment 45 provides that the information centre may disseminate information under its general dissemination power only for the purposes of the provision of health care or adult social care, or for the promotion of health. This amendment would replace the latter of these purposes with “biomedical and health research”, with the effect of curtailing dissemination for any other health promotion purpose. Amendment 45D seeks to define the health promotion purposes for which the HSCIC may share anonymised and certain other information under its general dissemination power in regulations.
I understand the concerns raised by some noble Lords that government Amendment 45 would allow commercial companies—including fast food and tobacco companies, for example—to access information under this provision for commercial gain. I hope I can offer reassurance that the scope of this provision will enable us to tap the potential of the wealth of data available for research, while explicitly preventing the use of such data for purposes that will not promote health.
“(ia) regulations under section (Part 1 appeals) which include provision that amends or repeals a provision of an Act of Parliament.”
Subsection (4) does not apply to a statutory instrument which contains regulations or an order within paragraph (e), (ib) or (l) of that subsection, if the regulations or order are within the paragraph in question only because they include provision that applies an Act of Parliament with modifications for the purpose of making saving, transitional or transitory provision.”
National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) (Amendment) (No. 2) Regulations 2014
Earl Howe Excerpts(10 years ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Thomas of Winchester (LD)
My Lords, I am grateful to the noble Lord, Lord Hunt, for initiating this debate and giving us the opportunity to talk about the new health service arrangements as they affect rare and very rare conditions. As other noble Lords have done, I shall range wider than the regulations—only briefly—because it is not often that this subject comes up for debate. The opportunity should not be missed to say something about those of us with a rare disease, in my case muscular dystrophy, and how it is faring as the new NHS arrangements are being put in place. I declare that interest.
All muscular dystrophies are rare diseases and some are very rare and there has been a great deal of uncertainty about how existing services for patients would fit into the way that services are commissioned, planned and delivered in the new NHS landscape. However, the situation was far from perfect before the changes. Some patients might not see a consultant for several years and many found it very difficult to access the right respiratory and heart checks, physiotherapy—especially hydrotherapy—and emotional and practical support. It was very much a postcode lottery. I had to discover for myself, 20 years ago, how helpful an exercise regime was, and this is now advised by healthcare professionals.
The new NHS set-up has provided not just a challenge but an opportunity to get things right from the beginning. The Muscular Dystrophy Campaign has worked closely with NHS commissioners on both a national and regional level and has achieved significant and encouraging progress in developing a dedicated neuromuscular standard through a specific annexe in the specialised neurosciences service specification. This has ensured that there are now more than 40 neuromuscular care advisers and specialist nurses funded by and embedded in the NHS, who provide invaluable support and advice to those with muscle-wasting conditions and their families. More are still needed, particularly to help guide patients and families through the transition from childhood to adulthood.
Another valuable initiative is Bridging the Gap, a Department of Health-funded project run by the MDC which began last July to help shape the future of neuromuscular services in England. This project brings together NHS commissioners, clinicians and health professionals through regional patient-led neuromuscular forums. Already it is bearing fruit, such as the development of GP online modules and emergency care plans, which it is hoped will improve the quality of care and support of people with neuromuscular conditions.
Clinical reference groups have been a positive step overall towards the effective commissioning of specialised services, although there are still problems. First, there is a disparity of CRG arrangements for rare diseases. Cystic fibrosis, for example, has its own CRG for children and adults and works well, but neuromuscular diseases are spread across three CRGs. I am taken with my noble friend Lady Brinton’s suggestion of there being a designated clinical lead so that everyone knows who to turn to. I believe that a one-off meeting has been arranged by NHS England to bring together these CRGs, but a long-term plan is also needed to work out how they will work together in the future.
Secondly, the main neuromuscular service specification prepared over the past three years, which covers children, transition and adults, mainly sits in the adult neurosciences CRG, which has adult-only expertise. It is a very welcome and recent step in the right direction that the paediatric neurosciences CRG has agreed to adopt the neuromuscular annexe of the service specification, but further work is needed here. I look forward to my noble friend’s reply.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, I am well aware that the noble Lord, Lord Hunt of Kings Heath, retains a keen interest in this topic, and I thank him for bringing it to the Floor of the House. I was naturally disappointed to hear that he feels that the new commissioning arrangements for specialised services which were put in place through the Health and Social Care Act 2012 are fragmented, and that the process for determining which services are considered to be specialised is unclear and lacking in openness and transparency.
Let me begin by emphasising that the Government continue to uphold the principle that no one is left behind, no matter how rare their condition, and that people with rare conditions should receive the same access to high-quality care as people with more common conditions. The Health and Social Care Act 2012 established the NHS Commissioning Board, now known as NHS England, and gave it responsibility for commissioning, among other things, specialised services. These services are prescribed in the regulations that the noble Lord has referred to. The arrangements for managing the commissioning of these services replace a system whereby 10 specialised commissioning groups and one national commissioner were responsible for commissioning both specialised and highly specialised services. Under that previous system, it became clear that there was variation in the range of services which some specialised commissioning groups were commissioning and the policies that were being applied to these services. This led to an inequity in access to services. Furthermore, the lack of standard contracts across the 10 specialised commissioning groups meant that the quality of services across the country was inconsistent.
All that has been replaced with a new system whereby one national commissioner is responsible for commissioning all specialised services for people with rare and very rare conditions. NHS England has developed standard service specifications and policies for commissioning these services, and these are underpinned by detailed identification rules that allow the commissioner of the activity, either NHS England or CCGs, to be determined. NHS England has implemented a robust process for developing and consulting on commissioning specifications and policies that includes public consultation. NHS England works with the 10 area teams responsible for the delivery of this work to ensure that highly specialised services continue to be commissioned in an effective way at the national level. I understand that all those involved in commissioning these services meet on a monthly basis to discuss any issues arising and how they might be resolved.
The noble Lord, Lord Hunt, raised the issue of the separation of functions carried out previously by AGNSS. I note his concerns that the system will be worse off without AGNSS. As a consequence of the 2012 Act, AGNSS ceased to have a role and its key functions have been picked up by other groups. From April last year, Ministers retained the power to decide which services should be commissioned, but NHS England became responsible for determining the number of centres and levels of funding in commissioning all specialised services. The prescribed specialised services advisory group has been established to provide Ministers with advice on whether services are specialised and should be directly commissioned by NHS England. NHS England worked with the former chair of AGNSS to consider how best it might receive high-quality clinical advice on highly specialised services. The Rare Diseases Advisory Group was set up by NHS England to provide it with this advice. The assessment of very high-cost drugs for patients with rare conditions was the final strand of AGNSS’s work which needed to be properly secured for the future. Ministers decided that NICE was best placed to offer this advice. I hope that that gives clarity to the arrangements that are now in place and the reasons why we considered this to be a compelling set of arrangements.
As I am sure noble Lords will acknowledge, the changes that were made through the Health and Social Care Act were extensive. With change being made on such a broad scale as this, one might expect that the processes for setting up the reformed commissioning arrangements will take a little time to settle in.
There are a variety of reasons for the trend in spending on specialised commissioning, which the noble Lord, Lord Hunt, mentioned, including increased demand for specialised services and increasing demand for high-cost drugs. NHS England is taking steps to address budget management and reviewing the opportunities to reduce costs while maintaining the quality of services, which I know it attaches great importance to doing.
I remain confident that these new arrangements will lead to high standards for all patients needing to access specialised services, wherever they live and no matter how rare their condition is. I listened with care to my noble friend Lady Brinton. The intention and ultimate effect will be to ensure that patients in need of specialised services receive consistent access to high-quality care, wherever they live, and that services are organised and delivered as efficiently as possible.
Our agenda is very much one of continuing improvement. Although I am aware of the concerns expressed by the Specialised Healthcare Alliance, neither I nor NHS England accepts the premise that the changes we have made are leading to greater fragmentation. However, I am grateful to noble Lords for drawing these issues to my attention. I assure noble Lords, not least my noble friend, that I share their wish to see joined-up, consistent services across the country. I can give an assurance, too, that I will monitor the provision of specialised services over the coming months.
The noble Lord, Lord Hunt, said that the process by which services for rare and very rare conditions are considered by PSSAG for commissioning nationally are unclear and lack openness and transparency. That concern was echoed by the noble Lord, Lord Walton. It may be helpful if I talk a little about the group and its role. The National Health Service Act 2006, as amended by the 2012 Act, requires that before making regulations setting out which specialised services are to be prescribed, and thus made the commissioning responsibility of NHS England, the Secretary of State must obtain advice appropriate for that purpose and consult NHS England.
PSSAG was established in 2013 as a Department of Health expert committee to provide this advice. Its role is to provide advice to Ministers on whether services are specialised and should be directly commissioned by NHS England rather than by clinical commissioning groups. The appointment of this group helps to ensure that the Secretary of State has appropriate advice when exercising functions under Section 3B of the NHS Act 2006. The group met for the first time in September 2013.
The noble Lord, Lord Walton, asked about the group’s terms of reference. It has working terms of reference, which are currently being further developed and will be signed off at a future meeting. As part of the exercise in advising Ministers, the group will also consider proposals for NHS England on the formulation of its service descriptions, which are used to explain what NHS England is providing under the different headings for the specialised services provided for in the regulations. The group will provide advice to Ministers on whether the service descriptions and any proposed changes are appropriate in respect of the prescribed service.
Evidence, supporting information and activity in respect of those services currently prescribed in legislation for direct commissioning by NHS England, along with any new services identified as potentially specialised and warranting commissioning by NHS England, are all made available to PSSAG from a range of sources. These sources may include clinical reference groups—CRGs—patient groups, clinicians, commissioners and members of the public. The proposals that the group considers are in large part generated by NHS England through its CRGs, which cover different areas of clinical practice. As PSSAG is still relatively new, the processes for enabling services to be referred to the group for consideration, and the annual cycle for considering whether services are specialised or not, are still being refined.
Health: Liver Disease
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Lord Brooke of Alverthorpe
To ask Her Majesty’s Government whether they will produce a strategy to reduce liver disease.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, improving outcomes for people with liver disease is a priority. Public Health England has a wide-ranging programme aimed at tackling its three major causes—viral hepatitis, alcohol abuse and obesity—through strengthening local action, promoting healthy choices and giving appropriate information to support healthier lives.
Lord Brooke of Alverthorpe (Lab)
My Lords, I gather from that that the Government are not prepared to consider introducing a strategy, which is a great pity given that liver disease is now the fifth biggest killer and we have some of the worst figures in the whole of Europe. How does the Minister see a more general approach, rather than a specific target in a strategy, producing a change in the terrible figures which we now see in the number of deaths, given that the deprived areas of the country where most of them occur, such as Manchester, had a reduction in the funding to commissioners and GPs for this purpose last month?
Earl Howe
My Lords, as the noble Lord is aware, NHS England is responsible for the overall national approach to improving clinical outcomes for people with liver disease. At the moment, it has no plans to produce a strategy specifically for liver disease, but it is adopting a broad strategy to reduce premature mortality, including mortality from liver disease. There is a major emphasis in the work being done by NHS England and Public Health England on prevention. They are supporting clinical commissioning groups and local authorities with a suite of tools to help them maximise the best possible outcomes for their local communities, such as local authority profiles. That can help local authorities and CCGs indentify the significance of liver disease in their area compared to the rest of the country, and the actions they could take to tackle it.
Baroness Gardner of Parkes (Con)
Can the Minister identify more clearly for me his definition of liver disease? He cited various things. Do his liver disease figures include the metastases from cancers, which are often a terminal condition? Are they treated separately or classified as part of the existing numbers?
Earl Howe
My Lords, there are over 100 types of liver disease, which together affect at least 2 million people in the UK. The main ones are derived from alcohol misuse, viral infection, being overweight and obesity, and there are conditions that are inherited as well as those which attack the immune system. As regards metastases, I would need to be advised but I would imagine that that falls under the general heading of “liver cancer”, which is certainly included in my remarks to the noble Lord opposite.
Baroness Billingham (Lab)
My Lords, given the sad news that we have had in the past 48 hours of the death of Elena Baltacha, one of our best young tennis players—I have no idea about the history of her illness, but I know it has gone on for many years—what is the availability of liver transplants? That is a question that will cross many people’s minds. It would seem to me that if it was available and she was a suitable candidate, that could have been looked at. Can the Minister give us any assistance on that?
Earl Howe
My Lords, I, too, learnt with great sadness of the death of Elena Baltacha, and was also unaware of the history of her medical condition. It is not appropriate for me to comment at the Dispatch Box on whether she should have received a liver transplant. However, I can say that transplant services are very active in this country. More and more liver transplants take place compared with a few years ago, and there are better techniques to ensure their tolerability in patients. If I can find out some more information, I will be happy to write to the noble Baroness.
Baroness Finlay of Llandaff (CB)
Do the Government recognise that a strategy needs to be far wider-reaching than health, given that alcohol abuse results in two-fifths of crimes being alcohol-fuelled and in a cost to society of £55 billion a year? That sum would be recouped in part if the unit price of alcohol was raised by 10%, which would help to decrease the binge drinking which results in young people ending up in liver units with fulminant end-stage liver disease.
Earl Howe
I agree with the noble Baroness that if we are to tackle liver disease we need to look as broadly as we can at the causes of alcohol misuse. We remain concerned about the wide availability of cheap, discounted alcohol and will soon take action to ban sales of alcohol below cost, where the price is equivalent to duty plus VAT. As regards minimum unit pricing, that remains a policy under consideration, but it will not be taken forward at the moment while we gather further empirical evidence. We do not want to launch a policy that may have unintended consequences.
Baroness Manzoor (LD)
My Lords, the incidence of liver cancer and liver disease is increasing significantly in young people, and it is the only cancer that continues to increase. Can my noble friend state whether there is a high-profile health education strategy that will help to tackle alcohol abuse and raise awareness among young people, who now talk about getting “preloaded” before they go out to drink alcohol, and which will highlight the issue of obesity? We need a high-profile health education campaign in that area.
Earl Howe
My Lords, as my noble friend knows, there is of course scope to include alcohol awareness in relevant lessons in secondary schools. However, I take my noble friend’s point. I am encouraged by recent figures which show a drop in binge drinking, but that is no cause for complacency. It still takes place, and too many young people end up in specialist care and sometimes lose their lives. That is very much on Public Health England’s radar.
Lord McConnell of Glenscorrodale (Lab)
My Lords, Elena Baltacha had a remarkable career—
Baroness Wheeler
My Lords, I, too, pay tribute to Elena Baltacha, who was a truly remarkable and very brave woman. One in five people in the UK is at serious risk of liver damage, but a recent government response shows that the Secretary of State has not met any external organisations to discuss liver disease since May 2010, and current Ministers have not met representatives of people living with liver disease since September 2012. Can the Minister commit urgently to remedying this situation, particularly as it is in such stark contrast to the 130-plus meetings the Government have had with the drinks industry?
Earl Howe
My Lords, liver disease is very much in the sights of my honourable friend the Minister for Public Health, as is evidenced by the document we published last week, Living Well for Longer, in which there is a whole section on alcohol and liver disease, and by what NHS England and Public Health England are doing to tackle them.
Mental Health: Young People
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Lord Patel of Bradford (Lab)
My Lords, on behalf of my noble friend Lady Goudie, and at her request, I beg leave to ask the Question standing in her name on the Order Paper.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, through our action plan Closing the Gap we are supporting schools to ensure that mental health problems are identified early, improving outcomes. Children’s mental health is a priority, and we have invested £54 million over the four-year period 2011-15 in the children and young people’s improving access to psychological therapies programme, known as CYP IAPT, to transform child and adolescent mental health services—CAMHS—improving young people’s access to the best evidence-based care.
Lord Patel of Bradford
I thank the noble Earl for that reply. Is he aware that the Royal Society for Public Health, together with the Prince’s Trust, published a report in this year’s annual Youth Index that showed an extremely high correlation between unemployment and mental illness among young people? In fact, a startling 40% of young people who were unemployed had signs of mental illness and were developing self-harm issues and even suicidal thoughts. Can the Minister say what the Government are doing about that report? Following on from the earlier Question, I suppose that the simple answer would be more jobs for unemployed people, but can the Minister say more about what the Department for Education is doing? Schools have a responsibility to introduce mental health and well-being classes formally within education but they are very reluctant to work with health services, particularly mental health services, to deliver that. Can the Minister say what is being done at a national level between the Department of Health and the Department for Education, as well as in encouraging local mental health services to work with schools?
Earl Howe
My Lords, I am aware of the study to which the noble Lord refers. It ties in quite closely with the findings of the Marmot report of a few years ago, which correlated quite closely the link between socioeconomic deprivation and children and young persons’ mental ill-health. Helping people, especially young people, get back into employment is a key priority for the Government. We know that young adults with mental health issues are underrepresented in the labour market. We aim to enable more young people with mental health needs to find and keep a job. There is an ongoing government programme to drive whole-system and cultural change, led by the Department for Work and Pensions. We are working with health and social care services to support young people to become economically active, not least through the CYP IAPT programme.
As regards schools, very briefly, schools can raise awareness of mental health through PSHE. Mental health is not a compulsory part of the curriculum. However, I note that the new national curriculum will see children aged five to 16 taught about internet safety in a sensible, age-appropriate way, which is a really important step to help children and young people understand some of the issues facing them.
Baroness Meacher (CB)
My Lords, I very much welcome the announcement of the increased investment in improved access to psychological therapies for children and young people. Can the Minister tell the House what percentage of children diagnosed with depression and anxiety and displaying serious conduct disorders will receive treatment as a result of the Government’s increased investment?
Earl Howe
Children with the conditions mentioned by the noble Baroness are most certainly eligible for CYP IAPT, not least cognitive behavioural therapy for emotional disorders, which include anxiety and depressive disorders. The programme covers services available to 54% of England’s population aged nought to 19—our target is 60%—and that is successfully giving children and young people improved access to the best evidenced care. NHS England is planning for a countrywide extension of the programme and the Government’s aim is that all of England should be involved by 2018.
Lord Mawhinney (Con)
My Lords, regarding my noble friend’s statement that £54 million has been made available over four years, although there will be plenty in the department and some in the NHS who know of this project, can he tell your Lordships’ House how information around the services paid for by this project are brought to the attention of young people themselves and their parents?
Earl Howe
My noble friend clearly has a close insight into this area because he is spot on in asking that question. CYP IAPT is rather different from the adult IAPT programme. It is a programme that aims to ensure that those working with CAMHS work much more closely with children and young people and with their parents and their families. The services have to enable children and their parents to have a say in designing the service that they receive, and they must also introduce and use regular outcome measures that help the child or young person and their parents and therapist to understand how well the child is doing. Therefore, involving the parents is absolutely integral.
Baroness Wheeler (Lab)
My Lords, a recent survey found that more than half of young carers reported having a mental health problem, including feelings of stress, anxiety and depression, eating and sleeping problems and risk of self-harm. What are the Government doing to support these dedicated young people? What guidance will be given in the Children and Families Act and the Care Bill on how local authorities should work with mental health services to ensure that young carers get the support they so clearly need and deserve?
Earl Howe
The noble Baroness is absolutely right and the pressures and strains on young carers have been well recorded. It is fair to say that compared with a few years ago, not least thanks to the efforts of the previous Government but also the work that we have continued, GPs and others working with families are much more alert now to the needs of young carers and can signpost them to appropriate support. The CYP IAPT programme is designed no less for young carers than it is for others.
Tobacco: Packaging
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The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con)
This is a just-in-time delivery, if I may say so.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, with the leave of the House I shall now repeat a Statement made earlier today by my honourable friend the Minister for Public Health in another place on standardised packaging of tobacco products. The Statement is as follows:
“With permission, Mr Speaker, I wish to make a Statement about the publication of Sir Cyril Chantler’s report on the standardised packaging of tobacco products.
Smoking kills nearly 80,000 people each year in England alone. One out of two long-term smokers will die of a smoking-related disease and our cancer outcomes stubbornly lag behind much of Europe. Quite apart from the enormous pressure this creates on the NHS it is a cruel waste of human potential. Yet we all know that the vast majority of smokers want to quit and, even more tragically, we also know that two-thirds of smokers become addicted before they are 18. As a nation, therefore, we should consider every effective measure we can to stop children taking up smoking in the first place.
That is why, in November last year, I asked Sir Cyril Chantler to undertake an independent review as to whether or not the introduction of standardised packaging of tobacco is likely to have an effect on public health, in particular in relation to children. Sir Cyril has presented his report to me and to my right honourable friend the Secretary of State, and we had the benefit of a personal briefing from Sir Cyril yesterday, in which he highlighted the key conclusions of his review.
Having reviewed Sir Cyril’s findings, I was keen to share this important report with the House without delay, as I recognise the significant interest that many Members have shown in this issue. I will of course place copies in both House Libraries. The evidence has been examined, the arguments for and against have been thoroughly explored and their merit assessed by Sir Cyril, who also visited Australia in the course of his review. I asked in particular that the report focus on the potential for standardised packaging to have an impact on the health of children.
It is clear that smoking is a disease of adolescence and we know that, across the UK, more than 200,000 children aged between 11 and 15 start smoking every year. In other words, around 600 children start smoking in the UK every day. Many of these children will grow up with a nicotine addiction that they will find extremely difficult to break. That is a tragedy for these young people, their families and for the public health of our nation. Sir Cyril points out that if this rate of smoking by children were reduced even by 2%, for example, it would mean that 4,000 fewer children take up smoking each year.
Sir Cyril’s report makes a compelling case that, if standardised packaging were introduced, it would be very likely to have a positive impact on public health and that these health benefits would include health benefits for children. The Chief Medical Officer, Dame Sally Davies, has read Sir Cyril’s report and sent me a letter with her initial views. Dame Sally said:
‘The Chantler review only reinforces my beliefs of the public health gains to be achieved from standardised packaging’.
I have placed copies of Dame Sally’s letter in the House Libraries. Importantly, the report highlights that any such policy must be seen in the round, as part of a comprehensive policy of tobacco control measures. That is exactly how I see the potential for standardised packaging to work in this country.
In the light of this report and the responses to the previous consultation in 2012, I am therefore currently minded to proceed with introducing regulations to provide for standardised packaging. However, in order to ensure that that decision is properly and fully informed, I intend to publish the draft regulations, so that it is crystal clear what is intended, alongside a final, short consultation, in which I will ask, in particular, for views on anything new since the last full public consultation that is relevant to the final decision on this policy. I will announce the details about the content and timing of that very shortly but would invite those with an interest to start considering any responses they might wish to make now. The House will understand that I want to move forward as swiftly as possible, and Parliament gave us the regulation-making powers in the Act.
Finally, I should like to pay tribute to the excellent job that Sir Cyril and his team have done in preparing such a thorough analysis of the available evidence on standardised packaging of tobacco products. I believe the report will be widely acknowledged both for its forensic approach and its authoritative conclusions. We want our nation’s children to grow up happy and healthy and free from the heavy burden of disease that tobacco brings. I commend this Statement and Sir Cyril’s report to the House”.
That concludes the Statement.
Earl Howe
My Lords, I am grateful to the noble Baroness for her welcome of Sir Cyril’s report. I share with her my admiration for the thoroughness with which he tackled a task in a short space of time, considering how much work he had to do.
Sir Cyril has produced a compelling report, and I urge noble Lords to take the opportunity to read it; it is extremely readable, as well as persuasive. As I said, he has made a compelling case on the public health evidence. However, to make robust policy in this area, it is essential that we follow a careful process. I understand the noble Baroness’s impatience to make progress on this issue, and we share that desire. However, we have to look at everything in the round if we are to make policy that is considered and well thought through. We have to give everybody who has a stake in the decision an opportunity to make their case. Therefore, I cannot stand here now and say that the Government will definitely proceed to make regulations. We must now take stock of Sir Cyril’s report and look at it alongside the other, non-health-related issues that need to be considered.
On that issue, we will hold a six-week consultation to ensure that our decision is properly and fully informed by any further relevant views and, very importantly, that it will be capable of withstanding the greatest scrutiny, including in the courts. The noble Baroness was absolutely right to mention the strong potential for matters of this kind to end up in legal action; the Australian Government are already in the courts on this issue. We want to be able to demonstrate to all stakeholders that the process has been fair and thorough and that we have moved at a pace that is reasonably rapid but which at the same time enables us to develop robust policy.
The consultation will include draft regulations for consideration. Far from this being a repeat of the previous consultation, it will enable people to look at the precise proposals that would be contained in regulations, if approved by Parliament. The timing of the consultation will be announced shortly and details provided on the Department of Health website. As to when we will bring in regulations, should the Government make a final decision to go ahead with standardised packaging, we would need to consider the timetable. However, our aim would be to make the regulations before the end of this Parliament. I hope the noble Baroness will accept that, far from kicking the issue into the long grass, as she put it, we have every intention of doing the opposite.
I believe that I have addressed most of the noble Baroness’s questions and points, but I shall write to her if there is something I have missed out.
Baroness Tyler of Enfield (LD)
My Lords, I strongly welcome Sir Cyril’s report, which is an extremely thorough piece of work. The central message from it is crystal clear and compelling; the introduction of standardised packaging would reduce the number of children and young people taking up smoking. I look forward to reading the draft regulations and the consultation, which I hope will be short. I would be grateful if the Minister would confirm that he talked about six weeks. Does he agree that, if the Government introduce this, we are going very much with the grain of public opinion? A new poll, issued today by YouGov, found that 64% of adults in Great Britain support or strongly support plain, standardised packaging, with only 11% opposed to the measure.
Earl Howe
I am very grateful to my noble friend. I confirm that we intend to have a consultation period of six weeks. That is as long as we think it needs to be to enable everyone with an interest, both for and against this measure, to make their views known and to enable us to factor in any considerations we may not yet have had an opportunity to consider. Although I have not seen the YouGov report to which my noble friend refers, I suspect she is absolutely right that public opinion is moving in the direction that Sir Cyril has advocated, and that we are going with the grain of what most people think. Most right-thinking people want children to be protected from the harms of tobacco. I hope that we will have public opinion behind us, should we decide to go ahead with this.
Baroness Finlay of Llandaff (CB)
My Lords, like the noble Baroness, Lady Tyler, I strongly welcome this report. It is an extremely readable, clearly laid out and very balanced review. I remind the House that it is 60 years since the original Doll and Peto observations that tobacco was linked to an early death. Their follow-up study, 50 years on, showed that those men who smoked only cigarettes and continued smoking had a life expectancy 10 years shorter than non-smokers. There is a long history behind this.
Looking at standardised packaging, it is worth noting that, as this report has highlighted,
“the pack has become the main promotional platform for the tobacco industry to recruit and retain customers”.
As has been said, the evidence from Australia is that plain packaging gives the impression that the cigarettes are lower in quality and less satisfying than those in the previously marketed packaging.
I would like to ask the Minister about standardised packaging, which comes from having listened to the debate in the other place after the ministerial Statement. I am concerned that there may be scaremongering going on over jobs. This type of standardised packaging is complex packaging and anti-counterfeit measures require complex design and printing techniques which this country is extremely good at. Our printing and packaging industry probably is one of the world leaders in developing really good types of packaging where anti-counterfeit measures can be included.
It is of concern that the term “plain” is still being used, which is completely different from complex standardised packaging. HMRC inspectors are clear that they can detect counterfeit standardised packaging more easily than the current commercial types of packaging when those are counterfeited. I seek reassurance from the Minister that the regulations will include the inability for the tobacco industry to do what is being done in Australia. One or two extra cigarettes are included as a loss leader for the same price as a packet of 20 as a promotional activity to make the packet more attractive. I also seek reassurance that the standardised packaging will be standardised on the outside; that there will be a standardised number of cigarettes inside; and that there will not be the ability to include tempting extra gifts, whether that is cigarettes or anything else. Does the Minister have any idea when the six-week consultation that he outlined will start and when the completion date is likely to be?
Earl Howe
The noble Baroness has raised a number of important points. As regards the effect on jobs, this is exactly the sort of question that we want people to address when responding to the consultation. If there are legitimate concerns about jobs, we want to hear about them. We want to understand exactly what the concerns consist of and whether they are robustly supported by evidence. The noble Baroness drew attention to the word “standardised” and asked me whether by that term we intended it as an antithesis to the word “complex”. I would rather say that standardised is the opposite of branded because it is the branding that is in focus here. As she will have seen from Sir Cyril’s report, he makes some very powerful points about the effect of branding. He said that,
“industry documents show that tobacco packaging has for decades been designed, in the light of market research, with regard to what appeals to target groups. Branded cigarettes are ‘badge’ products, frequently on display, which therefore act as a ‘silent salesman.’ Tobacco packages appear to be especially important as a means of communicating brand imagery in countries like Australia and the UK which have comprehensive bans on advertising and promotion”.
The word “standardised” is intended to signify a commonality of rather bland packaging, subject of course to European Union rules. I am sure that the noble Baroness is aware that the draft tobacco directive makes provision for a number of features to be included in the packaging; for example, 65% of the surface area of a packet of cigarettes will need to comprise of warnings. The minimum size of a packet of cigarettes will go up to 20 cigarettes and packets of 10 will be illegal. Other provisions are designed to prevent tobacco companies from using their packaging in whatever way to entice people to smoke, which includes free gifts and other features.
Baroness Finlay of Llandaff
Before the noble Earl sits down, may I remind him that I asked about the timescale?
Baroness Wall of New Barnet (Lab)
My Lords, I want to briefly add my congratulations on and support for the report, and to associate myself with the frustration that I think my noble friend on the Front Bench has portrayed. Many other people, including clinicians in my own hospital, are already seeing the effects of smoking on children as young as 11, which is very worrying.
I should like the noble Earl to think about two things. First, has the breadth and depth of the consultation been different from and wider than the previous consultation, which was not very long ago? Secondly, the noble Earl made a comment along the lines that we must make sure that we do not end up in litigation because we want to ensure the fairness of this. I must advise the noble Earl that consultation will never be strong enough to prevent litigation. We must do all we can to consult everybody, but we shall be waiting for ever if we wait for something that will prevent people pursuing litigation when they really do not want these things to happen. I am sure the noble Earl is aware of this, but please let this consultation not be so exhaustive that we include everything that will stop the courts taking up some of the issues.
Earl Howe
The noble Baroness makes a good point about litigation. My response is that if it comes to litigation, and of course we hope it will not, we will have the strongest possible defence against any accusation that we have somehow skimped or not taken account of evidence. In defence of the Government, I also point to the other measures we are taking to bear down upon the prevalence of smoking. The noble Baroness knows very well that we have had some excellent debates on smoking in cars, proxy purchasing of tobacco, and prohibiting the sale of electronic cigarettes to under-18s. I hope the good faith of the Government is not in doubt here and I share her wish to see progress made as swiftly as possible.
On the subject of the timetable, I did not make clear that while we believe that we have sufficient time to allow regulations to be introduced within this Parliament, we shall move to give both Houses our final decision on whether we are going ahead with this before the Summer Recess.
Abortion
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The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, it is right for me to begin by thanking my noble friend Lady Knight for her powerful contribution to this important and emotive subject. I express my appreciation to all speakers in this debate. A large number of points have been made and questions have been asked, so I hope noble Lords will forgive me if I do not manage to answer all of them. I undertake to do so, in so far as I do not cover the points in my speech, in a subsequent letter.
The Abortion Act 1967 sets out the terms under which abortion is legal. Since it was passed in 1967, there has been a long-standing tradition that any legislation on this issue is put forward from the Back Benches and is subject to a free vote. I was asked by the noble Lord, Lord Hunt, and others whether the law needs clarifying in the light of events and the statement from the Crown Prosecution Service, which my noble friends Lady Barker and Lady Tonge asked about, making changes to the law. Clarification of the law remains a matter for Parliament, not for government. I say to my noble friend Lord Patten that there is no scope for secondary legislation to amend the grounds on which abortion takes place. It would be a matter for primary legislation.
It is vital for everyone, regardless of their views on abortion, to be assured that the law on abortion is operating as Parliament intended. This is particularly important for clinicians directly involved in certifying and performing abortions who need to know that they are operating within the law and for women seeking an abortion who need access to safe, legal, high-quality abortion services.
The Chief Medical Officer has written twice to all doctors involved in abortion provision to remind them of the need to make sure that they work within the law at all times. It is also important for doctors to be able to explain and evidence their decisions and to record how they have formed an opinion on whether grounds for abortion are met. A number of noble Lords, including my noble friend Lady Knight, raised the issue of doctors forming an opinion on grounds for abortion without seeing or examining the woman. Since the Abortion Act 1967 was passed, the law has required that two doctors certify in good faith that there are lawful grounds for any abortion, and that must be based on understanding the facts of a woman’s case whether or not they personally see or examine the woman.
My noble friend Lord Gordon asked whether we can provide figures for the number of abortions performed without a doctor seeing or examining the woman. I am advised that we do not have figures for that. The 46% figure quoted was wrong, I am sorry to say, and was withdrawn by the department. It is not possible to quantify the figure, but I can say to the noble Lord, Lord Campbell-Savours, that forms being pre-signed is a clear breach of the law and if it is found to be happening, a prosecution should be brought.
I can say to the noble Lord, Lord Gordon, that the Care Quality Commission will continue to cover this issue as part of its inspections and compliance action will be taken against any provider where there is evidence of pre-signing. The CQC has put in place information for its staff to help identify if pre-signing or other instances of non-compliance are taking place to make sure that they would be picked up during inspections.
My noble friend Lady Knight and a number of other speakers expressed concerns about gender-selective abortions, particularly the abortion of foetuses simply because they are female. My right honourable friend the Prime Minister has referred to this practice as “appalling”. The Government’s view has been clearly stated on many occasions—that abortion on grounds of gender alone is illegal. My noble friend Lady Knight stated that the Act is not clear on this point. I confirm to the noble Lord, Lord Hunt of Kings Heath, that the grounds for abortion are set out in the Abortion Act 1967. It is true that these grounds make no reference to gender. While there is an extremely limited number of circumstances in which gender may be a factor in considering other grounds—for example, a gender-related abnormality—the department has made a number of recent public statements through the CMO letters, Answers to Parliamentary Questions and media lines, stating our view that abortion on grounds of gender alone is illegal, and we firmly stick by that view.
Analysis conducted by the Department of Health indicates that birth ratios—that is to say, the ratio of boys born as compared with girls—in this country are within normal limits. This is true for the population overall, and is also true for births to women born abroad who now live in this country. This analysis was first conducted and published in May 2013. This is being updated and we intend to continue to conduct a similar analysis on an annual basis, because we regard this issue as extremely important. We are determined to monitor the situation regularly and remain vigilant. I am also aware that some individuals and organisations have offered anecdotal evidence of gender-selective abortions taking place. I urge anyone who thinks that the law may be being broken to contact the police with their evidence.
The noble Baroness, Lady Hollins, and the noble Lord, Lord Singh, may be interested to know that Department of Health officials recently met representatives from Gina International. The meeting was very useful and Gina International has been signposted to relevant organisations, including abortion providers, with which it can discuss its concerns. The meeting concluded that both sides share the same aims—namely, to spread the message that abortions on the grounds of gender alone are illegal.
The Daily Telegraph first brought this issue to light during its investigation in February 2012. I am aware that the announcement in September 2013 that the Crown Prosecution Service declined to prosecute two of the doctors involved in this issue has been disappointing for some. In explaining why it felt that prosecution was not in the public interest, the Crown Prosecution Service noted that it could be difficult to determine whether doctors had worked within the Act in forming an opinion in good faith. It felt that further guidance to doctors on this issue would be helpful for doctors themselves, as well as for any authority who may need to investigate an allegation of poor practice or lawbreaking. The department therefore intends to issue further guidance for doctors, which will set out the Government’s interpretation of the law on gender-selective abortions, as well as further information about reaching and recording an opinion formed in good faith. We intend to issue this guidance shortly.
I say to the noble Baroness, Lady Hollins, that we believe that the department’s analysis, which is based on birth registrations, is more accurate than the Independent’s analysis, which was based on household composition. The department’s analysis showed that birth ratios were within normal limits.
All abortion providers must be registered with the Care Quality Commission, and independent sector providers must also be approved by the Secretary of State for Health. In order to be approved, independent sector providers must adhere to the required standard operating procedures. There has been considerable concern that the consultation that the department has recently completed on updating these procedures has somehow changed the legal position on abortion. As I have highlighted, the legal requirements on abortion are set out in the 1967 Act. Nothing has changed. A response to the consultation will be published once all the responses have been analysed.
Lord Patten
My noble friend, for whom I am full of admiration in every way, has said that the law forbids abortion on grounds of sex selection, and forbids pre-signing. However, there has never been a successful prosecution or, indeed, a prosecution of any sort. It seems to me that nothing at all is actually being done.
Earl Howe
I shall copy all letters to all Peers who have spoken in the debate. My time is now running out but I know that concerns have been expressed, not least by the noble Lord, Lord Alton, about the way that foetal remains are sometimes disposed of. A recent investigation by the Channel 4 “Dispatches” programme examined this issue. The type of situations highlighted in the programme, where foetal remains were incinerated rather than buried or cremated in line with what the woman would have wanted, are totally unacceptable. Any such practices should cease immediately. A letter has gone to all trusts to make that point emphatically clear.
My noble friend Lady Bakewell asked about hospitals revealing the sex of the foetus at routine ultrasound scans. Disclosing the sex of a foetus is a local decision and should be based on clinical judgment about the certainty of the assessment and the individual circumstances of each case. It is not something that the Government can mandate from the centre.
My noble friend Lady Knight asked about the NHS not employing midwives who would not be willing to perform abortions. The Act allows professionals, including midwives, to opt out of participation in any treatment to which he or she has a conscientious objection. That conscientious objection should not be detrimental to the careers of health professionals. I think I am over my time.
Earl Howe
Sorry, I will carry on. The noble Lord, Lord Alton, made some powerful points about repeat abortions. We are working to reduce repeat abortions through promoting access to the most effective methods of contraception following abortion. Care pathways should be in place to contraceptive services following any abortion.
The noble Lord, Lord Hunt, asked about recording the sex of a foetus on the HSA4 form. We have no plans to record the sex of the foetus on the form. It is not usually possible to identify the sex of a baby until the second ultrasound scan, which takes place at around 18 to 21 weeks’ gestation. In 2012, nearly 98% of abortions were performed before 18 weeks’ gestation, so the gender of the foetus is not known for most abortions. I strongly agree with him that a challenge to attitudes and discrimination against women is a good thing. That is what our parliamentary system is based on. I will write to him further on that, as I will on the question of education.
I close by emphasising again that we are not complacent on these issues. We remain and will continue to be very vigilant.
Lord Popat
My Lords, I suggest we take a break for five minutes in view of the fact that we do not have all the speakers for the next debate.
Health: Folic Acid Fortification
Earl Howe Excerpts(10 years, 1 month ago)
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Lord Rooker
To ask Her Majesty’s Government when they expect to be able to make a decision in respect of folic acid fortification of white bread flour as part of a policy to reduce pregnancies affected by neural tube defects.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, we have previously stated that we were waiting for data on the folate status of the population from the National Diet and Nutrition Survey before making a decision with respect to fortification of flour with folic acid. The noble Lord is aware that delivery of these data has been significantly delayed. However, we will make a decision by Easter and will communicate it as soon as possible thereafter.
Lord Rooker (Lab)
That is very good news because the congenital anomaly register, which the Minister will be aware of, currently shows that, on average, every week in England and Wales, 13 pregnancies are terminated due to neural defects and three babies are born with spina bifida and other conditions. Two-thirds of those tragedies could be avoided by fortification. Although the delay in the checking of samples is to be criticised in some ways, is it not ironic that British blood samples have been sent to America for checking and delaying, when America has fortified flour since 1998 based on the UK’s Medical Research Council’s work in the 1990s? When are we really going to get a decision so that we can use this for the benefit of our own people?
Earl Howe
My Lords, we will announce a decision by Easter. I am aware, as the noble Lord is, of the impatience that many people have shown about this matter. However, it is right that the Government balance both the risks and the benefits of a policy that would see the mandatory fortification of a staple food. I think that that is a responsible course to take.
Lord Ribeiro (Con)
My Lords, is my noble friend convinced that the evidence for introducing folic acid into white bread flour is irrefutable, given the fact that successive Governments have tried to introduce fluoride into water for all of us but have failed to do so?
Earl Howe
My Lords, there are risks associated with the fortification of flour with folic acid. That was pointed out by the scientific committee and was why its recommendation was conditional on certain things taking place. As it pointed out, there is a potential for significant numbers of the population to be pushed above the guideline upper limit for folic acid. We have to take those issues seriously in reaching a balanced decision.
Lord Walton of Detchant (CB)
My Lords, does the Minister agree that it is time for this important public health development and this important contribution to preventive medicine to be enacted, as it has been in many other countries? I am aware that there are likely to be those who object to this addition to flour. Surely it would be possible to meet those objections of a minority if a limited amount of bread free of folic acid were to be marketed to meet that concern.
Earl Howe
My Lords, I note the noble Lord’s helpful suggestion but it is important that the Government take a decision on folic acid that is right for our own population, rather than anyone else’s. It is worth remembering that no other country in the European Union has taken the decision to fortify flour with folic acid. We need to do this by evaluating the risks and the benefits, as I said, based on the most up-to-date data we can get.
Lord Hunt of Kings Heath (Lab)
My Lords, we know that 50 countries have introduced folic acid. On the fluoridation question, the legislation is for local people and local authorities to decide, so there is a clear difference. It is clear that the Government have already briefed out that they will agree to this. We are going off on a very long Easter Recess. Joy would be unconfined if the noble Earl told us now what we know the Government have agreed to. Why does he not come clean on it?
Baroness Brinton (LD)
My Lords, pending that decision, and even with the fortification of flour, the fact is that not all women planning to get pregnant will have the right level of folic acid. Are the Government planning a media campaign to encourage mothers about this? I mean not just the information on NHS pages but radio and magazine advertisements for young women so that they start to think about it when they begin to consider having their families.
Earl Howe
There is a range of routes whereby we ensure that, as far as possible, women are advised on folic acid intake, particularly those women of childbearing age who may be thinking of starting a family. That includes the Start4Life information service and other media routes. I am not aware of specific media campaigns in this area, but if I can be enlightened on that I will write to my noble friend.
Lord Patel (CB)
The Minister commented that no other European country has adopted fortification. Does he agree that the reason for that is that no other European country has the same incidence of neural tube defects as we have here in the United Kingdom? The incidence is far greater in the United Kingdom.
Lord Swinfen (Con)
My Lords, what are the risks of adding folic acid to flour?
Earl Howe
My Lords, the scientific committee pointed to several risks. One is that an overdose of folic acid may mask vitamin B12 deficiency, particularly in the over-65s—and this may be an issue in which a number of us wish to declare an interest. The committee also pointed out that although there was no specific evidence of a link to bowel cancer, there are nevertheless experts who believe that the evidence is equivocal in that area, and we need to take the balance of opinion very seriously.
NHS: Mental Health Funding
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Lord Hunt of Kings Heath (Lab)
My Lords, I beg leave to ask the Question standing in my name on the Order Paper, and refer noble Lords to my health interests.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, our aim is to ensure that mental health has equal priority with physical health. We have made this an objective of NHS England. The mandate of NHS England makes it clear that everyone who needs it should have timely access to the best available treatment, including in mental health services. We enshrined in law the equal status of mental and physical health in the Health and Social Care Act 2012.
Lord Hunt of Kings Heath
My Lords, that is all well and good, but the noble Earl knows that NHS England has not carried out the instructions in the mandate, and in the tariff for this year it has discriminated in the funding of mental health services. In our most recent debate on this, the noble Earl said that we should not worry about it because clinical commissioning groups will be heavily monitored. But the Government have no power to instruct clinical commissioning groups to make up for this rather perverse decision by NHS England. So I ask the noble Earl: will he not intervene and tell NHS England to reverse this funding policy?
Earl Howe
My Lords, as the noble Lord will know, the tariff for mental health services is determined locally. Having said that, we are clear that it is important that these tariffs and the priority given to mental health are scrutinised very carefully indeed, which is why my honourable friend the Minister of State for Care and Support has said he will do just that in the case of every single clinical commissioning group. If he determines that the plans are unsatisfactory, we as Ministers will work with NHS England, which we do regularly, to ensure that there is indeed that progress to parity of esteem that we all want to see throughout the country.
Baroness Hussein-Ece (LD)
My Lords, is my noble friend aware that there is significant evidence that two-thirds of local authorities have reduced their child and adolescent mental health service budgets since 2010, draining money from early intervention services, which, I think he will agree, is short-sighted and stores up problems for the future? Will he ensure that NHS commissioners and councils provide comprehensive services to address the deepening damage caused by further cuts to children and young people’s mental health services?
Earl Howe
My Lords, I share my noble friend’s concern. I am aware that some local authorities are not giving the necessary priority to this very important area of service. It is an area that local health and well-being boards should focus on. Our aim must be to support children and young people with mental health problems, wherever possible, in the community where they live rather than seeing them go into acute settings. Admission to hospital should be a last resort. While we have no direct leverage over local authorities, we shall endeavour through NHS England and joint working with area teams to ensure that this message is not lost.
Baroness Uddin (Non-Afl)
My Lords, on this seventh World Autism Awareness Day, will the Minister join me in paying tribute to the parents and campaigning organisations? I ask him, on behalf of the one in 100 autistic individuals in this country who are disproportionately affected by mental illness: given the actual reduction in cash investment in mental health services, do the Government agree that funding for mental health must encompass funding for the prevention of illnesses among those most at risk rather than responding to crises that can be prevented by early intervention?
Earl Howe
I agree with the point made by the noble Baroness. Prevention is much better than having to cure. I pay tribute to those organisations that champion the cause of those with autism. It is a tribute to the previous Government that they published the Autism Act, part of which involves collecting evidence at local level about the population affected by autism and, in that way, focusing minds at local level—principally the health and well-being boards—to direct services appropriately.
The Lord Bishop of St Albans
Given the significant disparity in mental health diagnosis, treatment and outcomes between minority ethnic groups and the general population, what steps are being taken not only to uphold parity of esteem between mental and physical health but to reflect that in the provision of accessible and effective mental health services for all people?
Earl Howe
The right reverend Prelate raises an important dimension of this whole issue. We have been looking at ways to overcome inequalities in access to services, which includes better access for black and minority ethnic communities to mental health services. For example, we know that people from BME communities have been less likely to use psychological therapies. To tackle that, the department is working with the Race Equality Foundation and other stakeholders to understand why that is so and to understand inequalities around access to other mental health services and what can be done to improve that. NHS England is also working with BME community leaders to encourage more people to use psychological therapies.
Lord Patel (CB)
Has the Minister any comment on the fact that Monitor and NHS England have recommended, pro rata, 20% greater cuts in funding for mental health services than for acute services?
Earl Howe
I can only repeat what I already said to the noble Lord, Lord Hunt. We have expressed our dismay at ministerial level about that decision and will therefore scrutinise local commissioning plans to ensure that, if cuts are implemented and there is freedom not to do so, outcomes and access to services are not damaged.
Baroness Pitkeathley (Lab)
My Lords, there are three times as many deaths from suicide as from road accidents. The prescription of antidepressants went up by 10% last year and still only one-quarter of people with a mental illness are in treatment. Are the Government satisfied with the level of funding for preventive and psychological support services?