Health: Transition to Adult Health Services
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Lord Hunt of Kings Heath
To ask Her Majesty’s Government what action they are taking to ensure the continuity of standards of care for teenagers with long-term health conditions who transfer to adult NHS services, as recommended in the Care Quality Commission report From the Pond into the Sea.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, our 2013 pledge to improve health outcomes for children and young people included the ambition to co-ordinate care around the individual young person with complex needs to deliver the best experience of transition to adult services. The partners to the pledge—including NHS England and Health Education England—are working to deliver this. Our mandate to NHS England calls for improvements in the way that care supports smooth transitions between children’s and adult services.
Lord Hunt of Kings Heath (Lab)
My Lords, I am grateful to the noble Earl. He will know that this is a worrying report and that it would appear that young people with long-term health conditions often fall through the net when they transfer to adult services. He said that the mandate to NHS England requires it to do something about this, but can we be confident that NHS England actually will take note of what Ministers ask for? I would just refer him to the inability of NHS England to implement the Winterbourne recommendations and its failure to fund mental health services in accordance with parity of esteem. Does the mandate amount to anything at all? Too often Ministers have come to this House and said that something would be done, but nothing has actually happened.
Earl Howe
I think that I can reassure the noble Lord on this point. NHS England is currently developing service specifications across the range of commissioning models: specialised commissioning, CCG secondary and primary care commissioning, adolescent mental health and special educational needs, and learning disability. Those will translate examples of best practice and published outcomes into specifications for commissioning to hold providers to account for the delivery of robust transition services with measurable quality standards attached to them.
Baroness Butler-Sloss (CB)
My Lords, there is a particular problem with young people who have not only physical problems but very considerable mental health problems. Is a priority being given to help that group of children?
Earl Howe
The noble and learned Baroness is quite right, and as she well knows, this has been a long-standing issue. Our document, Closing the Gap: Priorities for Essential Change in Mental Health, which we published recently, identifies the transition from child and adolescent mental health services into adult services as a priority for action. We are supporting the work of NHS England to develop the service specification which I have just referred to. CCGs and local authorities will be able to use that specification to build excellent person-centred services that take into account the developmental needs of the young person, as well as the need for age-appropriate services.
Baroness Pitkeathley (Lab)
My Lords, problems arising at the transition stage are often reported by the parents of these young people because they are their carers. Does the Minister agree that standards of care must include support for those much-needed parent carers?
Earl Howe
I fully agree. I think that much of this will succeed only if services work together around the needs of young people as well as their families and carers, and if the families and the young people themselves feel involved in the way in which their care is being organised and planned.
Baroness Howarth of Breckland (CB)
My Lords, in terms of developing the specification, can the noble Earl tell us how stakeholders are to be involved? In particular, will the young people themselves now have a voice? I declare an interest as the president of Little Hearts Matter, which deals with children with single-ventricle problems.
Earl Howe
I think that we can pay considerable tribute to the Children and Young People’s Health Outcomes Forum. It is one of the bodies that have highlighted the need for more effective transitions and for new outcomes indicators to measure them. Its framework for this year includes a proposal that, where possible, all data should be presented in single-year or five-year age bands up to the age of 25 to support better monitoring. Moreover, the forum asked the National Network of Parent Carer Forums to develop a narrative of what good integrated care looks like in transition. The CQC report has drawn quite heavily on that report in its conclusions.
Baroness Barker (LD)
My Lords, the Teenage Cancer Trust had to battle for years to get NHS commissioners to understand that age-specific rather than gender-specific wards are better for young people. It is a good organisation, but it has been a hard job to change the mindset of the NHS. Can he help organisations such as the Teenage Cancer Trust to find ways in which to influence commissioners far more quickly than they have been able to do in the past?
Earl Howe
My noble friend raises another extremely important point which applies not only to cancer, but also particularly to mental health settings. We have had many debates in this Chamber about age-appropriate settings. I will take her point back with me and find out where we are in our dialogue with stakeholder groups.
Baroness Uddin (Non-Afl)
My Lords, can the noble Earl tell the House whether the commissioning will specify autism in the service specifications? Further, will the NHS England staff who are responsible for implementing these measures be trained to deal with the issue of autism?
Earl Howe
The noble Baroness raises an important point and I can reassure her that we are addressing the full range of complex needs in children and young people. She may also be interested to know that Health Education England will be working with the Royal College of General Practitioners and the Royal College of Paediatrics and Child Health to develop a training course that will allow GPs to develop a specialist interest in the care of young people with long-term conditions. The aim is to introduce the course in September 2015. It will include a particular emphasis on the transition from childhood.
Baroness Finlay of Llandaff (CB)
Do the Government recognise the need for a champion, such as we have had with Dr Lidstone in Wales, who has completely transformed the transition for children with life-limiting illness?
National Health Service: Hospital Beds
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Lord Kennedy of Southwark
To ask Her Majesty’s Government what is their response to the Organisation for Economic Co-operation and Development’s report on the number of hospital beds per person in the United Kingdom in comparison to Europe.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, numbers of hospital beds per person do not provide meaningful comparisons of good-quality care. Our NHS is making efficient use of its beds by judging patient demand and managing bed numbers accordingly. In the NHS, as in Europe, the number of beds has reduced because progress in medical technology is enabling more patients to be treated and discharged on the same day, and average length of hospital stay has reduced over the past decade.
Lord Kennedy of Southwark (Lab)
My Lords, France has twice the number of beds we have here in the UK while Germany, I think, has nearly three times as many. We are now seeing dangerous levels of overcrowding, with greater risk of infection due to beds not being cleaned properly in time. Does the Minister not see that this is very reminiscent of the previous time his party was in office and that the NHS is just not safe in their hands?
Earl Howe
No, in a word. First of all, it is very important to compare like with like. A number of other health systems have completely different models from our own. For example, they still have large, long-stay hospitals for people with mental health problems and older people. The NHS has a strong primary care tradition and is committed to providing care in the community. Some of the statistics that have been collated by the OECD include systems in Europe where nursing home beds are included in the figures or indeed the private sector. We are seeing healthcare infections at their lowest ever levels. There have been dramatic falls in both MRSA and C. diff infections since 2010.
Lord Ribeiro (Con)
Would my noble friend like to ask the noble Lord, Lord Kennedy of Southwark, how funding is undertaken in Germany? German hospitals are funded on the basis of length of stay. In this country, we have demonstrated that we can get patients home much more quickly, particularly after surgery, with the use of day case surgery. Furthermore, Sweden has fewer beds than we do.
Lord Campbell-Savours (Lab)
My Lords, is there any linkage between hospital-acquired infections and the reduction in the number of beds?
Earl Howe
My Lords, no. By comparing the OECD bed-provision data and the 2011 joint prevalence survey, the available European data indicate that bed provision and healthcare-associated infection rates across countries are not correlated. Indeed, as I have said, we have seen a dramatic fall in the number of healthcare-associated infections in hospitals, combined with a rising level of demand for in-patient beds.
Baroness Brinton (LD)
My Lords, the noble Lord, Lord Kennedy, mentioned France. In France, most patients who have had a hip replacement spend a month in a convalescent hospital having in-house physiotherapy, whereas of course in the UK most people return home. I wonder whether my noble friend can tell us whether there are data to show how medical technology has improved both hospital care and community care, so that we can confirm the OECD report’s phrasing that the reduction in the number of hospital beds,
“has been driven … by progress in medical technology”.
Lord Turnberg (Lab)
My Lords, is the noble Earl aware that we have one of the highest rates of bed occupancy in the EU, approaching 90%, and yet we have the lowest average length of stay? All this makes it extremely difficult to think about reducing bed numbers still further.
Earl Howe
In fact, average annual bed occupancy rates have been stable at around 84% to 87% since 2000. Of course, that rate goes up and down. We know that winter sees greater pressure on bed occupancy, but the NHS has long experience in managing peaks in demand, particularly over the winter. We do not set optimum bed occupancy requirements on the NHS. As the noble Lord knows well, that is a matter for the local NHS to manage.
Lord Mawhinney (Con)
My Lords, does my noble friend recall that the previous Government did not run their NHS policy on the basis of the number of beds in the NHS, and rightly so? Will he continue robustly to reject the arguments of those who, using beds as a criterion, are so out of date with modern medicine delivery?
Earl Howe
My noble friend has encapsulated the point very well. One cannot correlate bed numbers as a stark statistic with the quality of care that a health system delivers. Our system is dependent not just on acute settings but on care in the community, and that is where the focus should rightly lie at the moment.
Lord Rooker (Lab)
Then can we look at outcomes rather than beds as far as the OECD figures are concerned? For the United Kingdom, I will take just three factors: infant mortality, cancer survival rates and obesity. We are beyond the 20 best performers in terms of outcomes—20 OECD countries do better than us. Why are we operating so poorly compared with these other countries?
Earl Howe
There are a number of issues there. The noble Lord is right to raise obesity, in particular, where only one solution is available to us, which is a public health policy which embraces all parts of the system and, indeed, individuals. The issues that he raises are too complex for me to encapsulate in a short answer but I will be happy to write to him about what we are doing in all three areas. He is of course absolutely right to raise them as very important issues for the health service.
Healthcare Professions: Regulation
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Lord Hunt of Kings Heath
To ask Her Majesty’s Government what plans they have to modernise the regulatory framework for the healthcare professions.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, we asked the Law Commission to undertake a major review of professional regulatory legislation, which reported in April this year. The report is complex and needs thorough consideration, which we are currently undertaking. We are committed to legislating on this important issue when parliamentary time allows. In the mean time, we are already using secondary legislation to make urgent changes necessary to make sure that patients can continue to be confident they are receiving safe care.
Lord Hunt of Kings Heath (Lab)
My Lords, the noble Earl will recognise that the Law Commission work has been extremely valuable. The outcome is potential legislation to modernise all the regulatory bodies in the health service, which has the full support of all the regulatory bodies. The noble Earl cannot be serious in suggesting that a lack of time prevents Parliament considering that Bill. It was widely expected to be taken in this Session, and I am sure that we could come back a week or two earlier to help the noble Earl get this through. Is the real case not that the Government are so worried about their stewardship of the NHS that they dare not bring a Bill on healthcare in this Session?
Earl Howe
No, my Lords. We understand the frustration felt by the regulators that this has not been taken forward yet, but other government priorities have had to take precedence. That is the reality that we must accept. As I have said, we are committed to legislating on this important issue when time allows. With that in mind, we are currently working hard in consultation with key partners, including the professional regulators and patient and professional representatives, on our response to the Law Commission’s work. The complexity of that exercise cannot be overemphasised.
Lord Willis of Knaresborough (LD)
Would my noble friend agree that, after the very challenging Bills that went through the House in the first two Sessions, this Bill would have support right across the Chamber, across both Houses and across all the professions in terms of patient safety? Would my noble friend also agree that this would be a wonderful opportunity for us to tackle the appalling situation whereby 1.3 million healthcare support workers are not regulated and do not have standards, and no one can judge fitness to practise? A draft Bill would at least give us an opportunity to frame that legislation.
Earl Howe
My Lords, as my noble friend will know, we have debated the regulation of healthcare assistants on a number of occasions. The Government’s view is well known. However, I agree with him that the content of the Law Commission’s draft Bill is welcome to many parties—indeed, the Government are keen to see it progress. Much of the proposed legislation is already law in one form or another. The review is about pulling together all the different bits of legislation, introducing consistency across the professional regulators where practicable, making sure legislation is fit for purpose and, importantly, introducing flexibility for the regulators to respond to changing situations.
Lord Patel (CB)
Will the Minister confirm that the Department of Health intends to bring in an urgent amendment via a Section 60 order to allow the GMC to implement the urgent reforms that it needs to protect patients and bring doctors to account?
Earl Howe
Yes, my Lords, we are working with the GMC to develop secondary legislation that will strengthen and protect the separation of the GMC’s investigation and adjudication functions by establishing the Medical Practitioners Tribunal Service in statute, as well as modernising the adjudication procedures, and to address a number of lacunas in the legislative framework. We are seeking to have the Section 60 order on the GMC’s fitness-to-practise processes in place before the general election.
Baroness Pitkeathley
I declare an interest as chair of the Professional Standards Authority. The authority has already done preparatory work for the Department of Health on which changes to Section 60 orders would be in the interests of public protection and cost-effectiveness. Can the Minister say that the Government will take account of this work and the views of the regulators as they consider their next steps?
Lord Walton of Detchant
Yet again I shall declare an interest as a past president of the GMC from 1982 to 1989. To follow up a point made by my noble friend Lord Patel, I spoke recently to the current chair of the General Medical Council, Sir Peter Rubin. He and his colleagues are very concerned about the introduction of a number of important changes in the interests of improving medical treatment and medical education, and to protect patients, which will require amendment of the Medical Act. What are the prospects of seeing any such amendments introduced in this House and debated before the next election if the Bill introduced by the Law Commission is to be long delayed?
Earl Howe
My Lords, I have already said that we will introduce a Section 60 order amending the powers of the GMC, as it has requested and as we agree should happen. There is a range of changes that we hope to incorporate in that Section 60 order and I hope to have further news on that quite soon.
Lord Winston (Lab)
My Lords, I draw the Minister’s attention to the regulation provided by the Human Fertilisation and Embryology Authority, which is allowing entirely unvalidated experimental treatments, such as pre-implantation genetic screening, for patients who then have to pay to experiment on themselves. Many clinics are also advertising on the Underground and some have relationships to do work that is not allowed by British regulation in other clinics overseas. Is the noble Earl prepared to respond to that really burning issue and the exploitation of infertile women?
Baroness Masham of Ilton (CB)
My Lords, is the Minister aware that clinical physiologists desperately need full registration? They have had voluntary registration for some years and they say it does not work.
NHS: Clinical Commissioning Groups
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Baroness Wheeler
To ask Her Majesty’s Government how they will ensure Clinical Commissioning Groups’ strategies and implementation plans support carers and take account of their needs and aspirations.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, NHS England assures clinical commissioning groups’ plans to support and challenge them to meet the needs of their populations. This includes considering supporting carers, who are a hugely valuable asset for local communities. NHS England has published a commitment to a carers action plan. It will review the delivery of these commitments through feedback from carers and carers’ organisations and through progress towards the relevant outcomes indicators and mandate objectives.
Baroness Wheeler (Lab)
I thank the Minister for his response. At the start of national Carers Week, it is right for the whole House to pay tribute to our 1.5 million carers and the vital support that they provide in caring for their partners, friends or a family member. What is the Minister’s response to a recent Carers UK survey, which found that while GPs have implemented systems to identify those undertaking carers’ responsibilities, few are actually doing anything differently to accommodate them—for example, giving regular health checks or changing appointment systems to support getting somebody to the surgery who is in a wheelchair or caring for somebody with dementia? Does the Minister agree that the appointment of carers leads under CCG implementation plans is a key step in bringing about the major push that is needed to get GPs to up their game? How will the Government ensure that that happens?
Earl Howe
My Lords, I fully endorse the comments of the noble Baroness about the importance of carers. They play a crucial role as partners in care for the well-being of those they look after. I saw that report and of course it is important that GPs are aware of their role in supporting carers. We set out our vision for this in a document we published, Transforming Primary Care. That recognises the importance of involving and supporting carers. It sets out an expectation for GPs to identify carers as a matter of course. As I said in my original Answer, CCG plans will be assured by NHS England, including the important element of carers’ support and recognition.
Baroness Gardner of Parkes (Con)
My Lords, is the Minister aware that, at last, carers who work by going from one person to another will be paid for their travel time? I have drawn attention in this House before to the fact that people who were self-employed under such care systems were earning £2-something an hour. Does the Minister agree that that will be a great benefit to both the clients and, in particular, the carers who rely on that income?
Earl Howe
I do agree with my noble friend, but I would point out to her that the thrust of the noble Baroness’s Question is about unpaid carers, of whom there are 5.4 million in this country, 1.4 million of whom work more than 50 hours a week as unpaid carers. It is to support those people that the attention of NHS England is being rightly directed.
Baroness Pitkeathley (Lab)
I thank the Minister for pointing that out and saving me having to do so. We are talking about so-called informal, unpaid carers in this Question. My noble friend’s Question has underlined how much progress is still to be made in bringing the needs of carers to the attention of local CCGs and health professionals. Will future versions of the carers strategy action plan address that issue?
Earl Howe
My Lords, yes. The action plan will of course be reviewed, as it needs to be, at regular intervals. I am sure that the noble Baroness will know that the action plan needs to be informed by the various legislative changes that we have recently made through both the Care Act and the Children and Families Act, both of which immeasurably strengthen the rights of carers and what they can expect from the system.
Baroness Brinton (LD)
My Lords, given that the Francis report said that it was important that carers be involved and informed about the care of their family member but one study found that only one-third of those surveyed were told how to care for their relative or how to cope with dementia, what are the Government doing to make that a real priority for CCGs?
Earl Howe
My noble friend makes a crucial point. In the document Transforming Primary Care, we included a clear expectation for GPs to work with wider health and care professionals to involve people using services and their carers in identifying and planning for a person’s needs in the round. The plan sets out a clear expectation for GPs to identify as a matter of course whether a person is themselves a carer for another person, whether they have a carer or carers and to understand fully the contribution that carers make.
The Lord Bishop of Norwich
My Lords, the census revealed a substantial increase in young carers, some of whom may not even recognise the term but are simply doing what is expected in their family. Does the Minister agree that CCGs should consult and connect with schools to ensure that those noble but often vulnerable young adults get the support they deserve?
Earl Howe
I fully agree with the right reverend Prelate. The Government’s carers strategy sends out a strong message that education, health and young carer services should work together with families better to identify and support young carers to prevent them taking on harmful caring roles. Young carers’ education, development or employment opportunities should not be diminished because of their caring role, and the right reverend Prelate may like to note that one of the initiatives recently put in train has been to recruit school nurses who are reaching out to schools to ensure that young carers’ needs are recognised in schools.
Elderly People: Abuse
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The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, I cannot hope to do justice in the short time available to the excellent contributions from noble Lords to this debate. However, I express my gratitude to my noble friend Lady Cumberlege for enabling us to discuss such an important subject.
We have stated in no uncertain terms that it is the right of every citizen to live in safety, free from abuse and neglect. Everyone is entitled to receive care delivered by well trained, properly managed and compassionate staff. We are determined to make this a reality. Despite this, cases continue to come to light of abuse and neglect, particularly of older people. We have only to look to the truly abhorrent and sickening cases uncovered at Winterbourne View and by the recent “Panorama” programme, which exposed appalling abuse and neglect at two care homes.
It is important that we also recognise that abuse and neglect is not limited to care provided in residential settings; it can take place anywhere, including someone’s own home, and be carried out by anyone, not just those paid to provide care. Nor is abuse limited to just the physical kind. It takes many forms including the psychological, exploitation and financial. Time and again we hear of targeted fraud on older people, as the noble Lord, Lord Wills, explained, but more often than not the person responsible for the abuse is in a position of trust and power. Everyone should be vigilant in helping to identify those experiencing abuse and neglect or at risk of it. They could be people working in health, social care, policing, banking, trading standards, leisure services, faith groups and housing—the list goes on. As made clear in the Care Bill, sharing of information is crucial. Findings from serious case reviews have sometimes stated that if professionals or others had acted upon their concerns or sought more information, death or serious harm might have been prevented.
We have a growing ageing population, which is to be celebrated, but there needs to be a sharp focus on the quality of life. Radical reform is needed of how health and social care are delivered. The Care Bill starts this process by providing the legal framework to achieve this. It places the well-being principle, prevention and early intervention at its heart. However, we are under no illusion that legislation will eradicate the type of behaviour that leaves people feeling distressed, frightened and fearful.
As many noble Lords emphasised, including the right reverend Prelate, my noble friend Lord Willis and the noble Lord, Lord Griffiths, eradication of these practices and behaviours can be realised only through a collective change in culture—one that leaves no place for abuse and neglect of any kind; one that shares an individual and collective responsibility for spotting when abuse is taking place and identifying those most at risk of experiencing it; and one that works in a collaborative way to challenge and address those corrosive practices.
It is right that people are held to account for the quality of care that they provide. Measures are being implemented to ensure that company directors who are complicit or turn a blind eye to poor care will be liable to prosecution. In future, they and provider organisations could face unlimited fines if found guilty. This should provide additional incentives for effective management and support of staff. There are already systems and processes in place to provide public assurance, including Care Quality Commission registration requirements and the Disclosure and Barring Service. These alone though do not go far enough.
The noble Lord, Lord Turnberg, referred to poor commissioning services. We will be working with the Association of Directors of Adult Social Services and the Local Government Association to develop a set of commissioning standards for local authorities that focus on quality care and support for individuals.
However, following the publication of the Francis report into the failings of Mid Staffordshire NHS Foundation Trust, Camilla Cavendish was asked to review how healthcare assistants and support workers in health and care settings were valued and supported. She proposed, among other measures, the introduction of a certificate of fundamental care, now known as the care certificate. This will give evidence to employers, patients and service users that the person in front of them has been trained to a specific set of standards and knows how to act with compassion and respect. I think that it will also raise the standing and prestige of that person, an issue rightly raised by the right reverend Prelate and the noble Lord, Lord Turnberg. Health Education England, working alongside key partners, has already begun piloting the care certificate across England, as my noble friend Lord Willis mentioned. Subject to evaluation, there will soon be a standard national approach to training on the skills and values needed to be an effective healthcare assistant or social care support worker. It is planned to roll this out in March next year.
I say to the noble Lord, Lord Turnberg, that “I care” ambassadors are uniquely placed as qualified and experienced care workers to promote the image of social care and act as role models. We are fully committed to ensuring that social care services employ people with the right values and skills by introducing a fit and proper person test for directors and a care certificate for front-line staff. Where a director is deemed unfit for the role by the CQC, it will be able to insist on their removal.
In addition, the system of regulation and inspection needs to improve. The CQC is currently introducing a new system of inspection of social care providers, based on much tougher fundamental standards of care, that clearly has the individual at its heart. It will be structured around five key questions that matter most to people—are services safe, caring, effective, well led and responsive to people’s needs? New inspections will draw on the views of people and their family who are experts by their experiences of the services that they see and use. The inspections will be carried out by people who deliver the type of care. CQC has been piloting this new approach in more than 200 social care providers since April this year. It will begin to inspect and rate all providers against the new standards from this October.
New measures in the Care Bill make clear local authorities’ responsibilities and those of key partners, such as the lead commissioner and local police, in safeguarding adults. This is vital in ensuring clear accountability, roles and responsibilities for helping and protecting adults who are experiencing, or at risk of, abuse and neglect.
Every local authority must establish a safeguarding adults board. These boards will be responsible for managing and co-ordinating arrangements that exist to prevent and respond to adult abuse and neglect. They will also have a duty to make inquiries or require another agency to do so. These inquiries will establish whether any action needs to be taken and, if so, by whom.
To make new legislative duties effective, services need to combine efforts to ensure that those who need to be cared for are protected. Strong professional relationships with those staff working in housing, the NHS, community pharmacists and local police will ensure that when concerns are raised they are firmly addressed, while never forgetting the person at the centre of those concerns and ensuring that they are a part of the discussion.
My noble friend Lady Cumberlege asked me about the Government’s response to the Law Commission’s report, a topic also raised by the noble Lord, Lord Hunt of Kings Heath. It is right for me to place on record our gratitude to the Law Commission for the significant time and effort that have been put into developing a detailed and thorough analysis. The department is considering the proposals very carefully and will produce a formal response in due course. It is not possible for me to comment on next steps at this stage until the contents of the Queen’s Speech are known after 4 June.
My noble friend Lady Cumberlege cited a graphic case of an individual who was abused by her daughters. I would say to her that the Office of the Public Guardian should be informed where abuse of a power of attorney is suspected, and it will investigate the claims and work closely with the police where appropriate. The Government have commissioned a practical legal guide for front-line practitioners to support them in using the law where it is necessary to gain access to someone where it is being prevented.
My noble friend also referred to the instance of abusive workers being dismissed from one employer and then going to work elsewhere. If care home or home care employers sack an employee for abusive practice, they are under a legal obligation to refer the person to the Disclosure and Barring Service. When employers are recruiting, they must make robust and rigorous checks and adopt a value-based approach to appointing staff.
Time prevents me covering more subjects. I will write to noble Lords whose questions I have not answered, but I hope my response today leaves no doubt in anyone’s minds about our position on this. We have zero tolerance of abuse or neglect of anyone living in our society. We have taken firm steps to challenge and address those people who do so and organisations that turn a blind eye to poor practices. We will continue to make improvements as part of the response to the Francis report and the Berwick review. We agreed to develop a new criminal offence for individuals and organisations of ill treatment or wilful neglect of users of care services. Following consultation on the proposals for the new offences, we are now carefully considering all the responses. We remain committed to legislating for the new offences as soon as parliamentary time allows.
National Health Service: Nursing Staff
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Baroness Kennedy of Cradley
To ask Her Majesty’s Government what steps are being taken to ensure adequate levels of nursing staff in the National Health Service.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, patient safety is paramount. Patient safety experts agree that safe staffing levels should be set locally. Local NHS organisations are best placed to determine the skill mix of their workforce and must have freedom to deploy staff in ways appropriate for their locality. We have commissioned NICE to develop guidance on setting safe staffing levels and to endorse safe staffing tools. If hospitals do not have sufficient nurses, the Chief Inspector of Hospitals will take action.
Baroness Kennedy of Cradley (Lab)
As today is International Nurses Day, will the noble Earl join me and many others in this House in paying tribute to the hard work of our NHS nurses? Further, can he explain why, since 2010, the actual number of qualified nurses has fallen and nearly 4,000 senior nursing posts have been lost? What are the Government going to do about that worrying reduction in experience and skill in nursing in our NHS?
Earl Howe
My Lords, I readily join the noble Baroness in paying tribute to our nursing workforce, whether in acute settings, in the community or, indeed, in any other setting. In fact, if the noble Baroness consults the official statistics, she will see that there are more nursing, midwifery and health visiting staff at present than there ever have been in the history of the NHS. Since the election, more than 5,100 more nurses are working on our wards, there are more than 1,700 more midwives and more than 2,000 more health visitors. We have been able to fund these increased numbers by a reduction in administrative staff—today there are more than 19,600 fewer administrative staff. I would be interested to hear where the noble Baroness gets her figures from but, as she will have gathered, mine are completely in the other direction.
The Lord Bishop of Oxford
My Lords, given the court ruling last week against Thanet Clinical Commissioning Group saying that it was obliged to follow NICE guidelines unless a special factor could be determined that would justify departure, will Her Majesty’s Government give an assurance that the same test will apply to NHS trusts in regard to the ratio of nurses and patients?
Earl Howe
The guidance issued today by NICE on staffing ratios, to which I think the right reverend Prelate is specifically referring, is in draft, but the deputy chief executive of NICE has stressed that there are no floor or ceiling numbers on the required number of nursing staff that can be applied either across the whole of the NHS or in a particular ward setting. What the profession is seeking, and what NICE is looking to give it, is a reference tool or guideline that will enable it to judge correct staffing levels in accordance with the particular circumstances of a ward and the skill mix of the staff on that ward. It is a guideline rather than a mandatory prescription.
Baroness Manzoor (LD)
My Lords, my question relates to specialist nurses. NICE has issued guidelines in relation to TB, and I am delighted to see that Public Health England has also issued a strategy on TB, making it a key component. However, there are variations in the number of TB nurses within trusts. How are the Government and NHS England going to adhere to the ratios that have been advocated by NICE?
Earl Howe
My Lords, as regards specialist nurses, the Government have supported the development of a range of specialist roles within the profession. In the end it is for local NHS organisations, with their knowledge of the needs of the local population, to invest in training for specialist skills and to deploy specialist nurses. We recognise that more could be done by some local healthcare organisations in this area, and Health Education England is able to support employers with continuing personal and professional development—but within clear limits. The planning process has created an opportunity for employers, through the LETBs—local education and training boards—to prioritise investment in this area.
Lord Turnberg (Lab)
My Lords, the number of nurses may have gone up a little, but the main problem is the marked reduction in the number of senior nurses on wards. These are the women and men who are in charge of a ward and make sure that care is properly delivered at the ward level. Does the noble Earl consider that this particular loss is because we do not reward and value these key individuals well enough to recruit or retain them?
Earl Howe
My Lords, as the noble Lord will be aware, finances in the NHS are tight. However, as I said earlier, there are now 5,100 more nurses on our wards than there were in May 2010. That must indicate that nursing is still an attractive profession for the brightest and the best of our young men and women.
Lord Willis of Knaresborough (LD)
My Lords, will my noble friend accept that nurses do not work in isolation and that in order to deliver the high-quality care and safety that the Government rightly demand, the whole of the caring workforce needs to be properly trained and properly educated? What steps are being taken to ensure that healthcare support workers in particular—there are more than a million of them—get the training that they deserve to give patients the care that they too deserve?
Earl Howe
My noble friend is right. He may be aware that last month Health Education England, Skills for Care and Skills for Health launched the pilot for the new care certificate, which is taking place across a range of health and social care settings. It will test a set of standards designed to help employers to assess not only workers’ skills, but also the knowledge, behaviours and values that are required to deliver compassionate and high-quality care. That pilot will continue throughout the summer and, subject to evaluation, it is planned to introduce the care certificate next March.
Independent Living Fund
Earl Howe Excerpts(10 years, 9 months ago)
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Baroness Campbell of Surbiton
To ask Her Majesty’s Government how the assessment guidance to local authorities under the Care Bill will address the particular needs of people transferring from the Independent Living Fund.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, one of the key principles of the Care Bill is that people who require care and support should have choice and control over their lives. The Bill requires that all assessments will consider the person’s needs, well-being and desired outcomes. The requirements of the Bill, and of guidance supporting implementation, will apply equally to all adults having an assessment, including those who are transferring from the Independent Living Fund.
Baroness Campbell of Surbiton (CB)
I thank the Minister for his considered reply but, given the Government’s emphasis on people who have direct experience of using care and support services being centrally involved in their design and delivery, will the Minister please explain why his Government think it unnecessary to set up a reference group, including disabled people, the Independent Living Fund, local authorities and civil servants, to oversee this very important ILF transition?
Earl Howe
My Lords, the noble Baroness will know that she and I had a very useful meeting last week and I, with my honourable colleague Norman Lamb, undertook to her that we would give that proposal serious consideration, which we will certainly do. I will be in touch with her in the coming weeks to arrange a further discussion about this. We are absolutely committed to co-production in this and to involving stakeholders wherever possible.
Baroness Wilkins (Lab)
My Lords, given that the Government have set the national eligibility criteria at a level that will not provide sufficient support for independent living, will the Minister say whether and how the Government will monitor the level of unmet need of the transferred ILF clients if elements of their package are not eligible for local authority funding?
Earl Howe
My Lords, 94% of ILF users receive support from both the ILF and the local authority. Local authorities will assess those who are transferring from the ILF. If a person is assessed as not having eligible needs, the Care Bill provides authorities with a power to meet those needs, and they do so. Authorities should also advise on what preventive services, information or advice, or other support may be available in the wider community to help them achieve their particular outcomes.
Lord Paddick (LD)
My Lords, while the Government’s policy of localism is to be generally welcomed, does my noble friend not agree that there should be some exceptions? If, as a result of devolving the Independent Living Fund, some severely disabled people can no longer afford to live wholly independent and fulfilling lives, how is this in the best interests of those disabled people? Will he explain, bearing in mind the high cost of social care and residential care, how that will be in the best interests of the taxpayer?
Earl Howe
My Lords, the provisions in the Care Bill will apply equally to everyone with care and support needs, including those who are currently receiving support from the ILF. The aim of the ILF is to support independent living for disabled people. The overarching aim of the Care Bill is to give people with care and support needs more choice and control over their lives. It focuses specifically on their well-being and the outcomes that they want to achieve, and puts them at the heart of the system. That would be my reply. There is no question of forcing people into residential care. The starting point is: what are the needs and wishes of the individuals involved, and how can care be built around those?
Lord Hunt of Kings Heath (Lab)
My Lords, can the noble Earl guarantee that no current recipient of the fund will lose out when money is transferred and it is the responsibility of local government? Will he tell the House why this money is not being ring-fenced? Will he acknowledge that in two recent examples of money being transferred by his department to local government—the Healthwatch budget and the public health budget—local authorities have not passed on the full amount? How will he ensure that local authorities spend that money on independent living?
Earl Howe
As the noble Lord knows, local government social care funding is not ring-fenced. We believe that allowing local authorities the flexibility to manage their budgets locally means that they can respond to local needs and priorities better. The Care Bill, as I have just said, will require local authorities to involve the person in the development of their care and support plan and, as far as possible, agree that with them. The person’s care and support plan may be different from their current package, but the central point is that they will be at the heart of the process to ensure that the package provides them with choice and control over their lives.
Baroness Uddin (Non-Afl)
My Lords, the Government’s recently published strategy, Think Autism, vowed to help people with autism spectrum disorder to live independent lives. However, the abolition of the Independent Living Fund withdraws the very scheme that was set up precisely to help those vulnerable people to live in the community. How many people with autism spectrum disorder currently receive support under the Independent Living Fund and will therefore be affected by this closure?
Earl Howe
My Lords, I do not have that figure in my brief but the number of people receiving payments from the Independent Living Fund is relatively few in comparison to the total number of people receiving adult social care and support. If I have any further figures that I can supply to the noble Baroness, I shall be happy to write to her.
Lord Laming (CB)
Will the noble Earl share with the House the objections to ring-fencing this fund during the initial period to make sure that we have certainty that the money will be used for the purpose for which it is intended?
Earl Howe
My Lords, the issue is that we essentially have a two-tier system. That is at the heart of why the ILF is being disbanded over the next year or so. As a result of that, we know that there is some cross-subsidisation, with local authorities using ILF money to off-set the cost of social care. We are rechannelling that money to local authorities in the expectation that they will use it for adult social care, as I have said. It is not, however, ring-fenced.
Care: Older People
Earl Howe Excerpts(10 years, 9 months ago)
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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, 9 months 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.”
NHS England: Health and Social Care Act 2012
Earl Howe Excerpts(10 years, 9 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
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.