NHS: Liverpool Care Pathway Inquiry
Earl Howe Excerpts(14 years ago)
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Baroness Knight of Collingtree
To ask Her Majesty’s Government what procedure will be adopted in carrying out the proposed NHS inquiry into the Liverpool Care Pathway.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, there is no procedure, as there is no such inquiry. A number of organisations, led by the National End of Life Care Programme, Dying Matters and the Association for Palliative Medicine, are looking into complaints, patient experience and clinical opinion on the Liverpool Care Pathway. We do not make policy decisions based on anecdote. If the work in hand suggests cause for concern, we will respond on the basis of that evidence.
Baroness Knight of Collingtree
My Lords, is my noble friend aware that large numbers of people with personal experience of how the LCP is now operating complain that their relatives were denied hydration in hospital and died in acute pain and discomfort, with no knowledge whatever or agreement of having been put on this pathway? Is he aware that patients often survive if relatives step in in time and give their dear ones help and water? One rang me a few days ago and she is now going on a cruise. Will my noble friend assure us that there will be an inquiry, which has been promised and announced in the press, and that it will be truly independent and not carried out by those who have vested interests? Nothing else will do.
Earl Howe
My Lords, there is never any cause for complacency in a matter of this kind, and I can reassure my noble friend that the Government will keep this issue under review. At the same time, I hope she will allow me to respond in slightly more forthright terms than I normally do, because there has been an enormous amount of misreporting and misinformation around the Liverpool Care Pathway, which has been endorsed publicly in a consensus document by 22 of the leading professional organisations and patient organisations in this area, including Marie Curie. We cannot ignore that. As I mentioned in my Answer, some of those organisations are looking carefully at the reports to which my noble friend alluded. It is notable that not a single complaint has reached the regulators in this area, which I suggest indicates that there may be less substance to some of these stories than may first reach the eye. However, I emphasise that there is no complacency.
Lord Alton of Liverpool
My Lords, as the noble Earl comes to look at the consultation on the National Health Service constitution over the coming months, will he take the opportunity to look at the care pathway in Liverpool itself, where last week I was able to meet Professor John Ellershaw and those who devised the pathway? Given that 80,000 patients a year are treated on the pathway, does the Minister accept that it works very well for many of them; that while the philosophy is not the problem, the procedures used in some places have been; and that one of the principal concerns is dehydration? Does he agree that that is something to be looked at, as well as the level of training of those doctors who are responsible for the palliative care of people at the end of their lives?
Earl Howe
My Lords, I fully agree with the noble Lord. Training is integral to the care pathway, as is the need to consult the families of patients and, if possible, the patients themselves before a decision is taken to put them on the Liverpool Care Pathway. On the NHS constitution, I completely take the noble Lord’s point. The proposed change to the NHS constitution makes it absolutely clear that patients and their families and carers have the right to be fully involved in discussions and decisions about their care, including that at the end of life. We are clear that that should already be happening, but we understand from reports that that is not always the case. As regards end-of-life care, I think there is sometimes a taboo on discussing death and dying and press reports show how damaging that can be. I shall indeed take all the noble Lord’s points on board, particularly as regards nutrition and hydration.
Baroness Wall of New Barnet
My Lords, I am relieved by the Minister’s response to the noble Baroness, Lady Knight. He is absolutely right that the care people receive at the end of their lives is hugely important. National statistics show that 29% of eligible people are on the care pathway. In my own trust, Barnet and Chase Farm, 28% of people are currently on it. The involvement of carers in those discussions is huge and a whole protocol is attached. I, too, am extremely worried about the publicity, some of which I am sure is well meant, but it can be very damaging to a system that provides a great deal of care. My mother-in-law was on the Liverpool Care Pathway in Liverpool hospital and had a very good experience. Please can we ensure that in any discussions we look at the overall benefit to elderly people at the end of their lives?
Earl Howe
The noble Baroness is quite right. So often, good experiences are not reported. Predominantly we hear from patient organisations and the Marie Curie organisation that in the vast majority of instances where the Liverpool Care Pathway has been used, it has resulted in better care for the dying person. She is absolutely right. Nevertheless, where the pathway is not being properly followed, we have to take the matter seriously and ensure that there is proper training and communication with care staff.
Mental Health (Approval Functions) Bill
Earl Howe Excerpts(14 years ago)
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The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, the purpose of this Bill is simple but urgent and vital. On Monday, I described to noble Lords how the need for it arose and came to light. I am glad to have this opportunity to continue that discussion today.
Lord Skelmersdale
My Lords, I hesitate to interrupt my noble friend on the Front Bench but it would be helpful to those noble Lords who want to listen to what he has to say about this important Bill if other noble Lords were to leave the Chamber silently.
Earl Howe
My Lords, I am grateful for that. I am glad to have this opportunity today to continue the discussion and explain further why we believe we must take this action. I begin by repeating my deep gratitude to noble Lords on all sides of the House for the highly constructive, sensitive and helpful approach that they are taking to this issue. Were it not for that, we would not be able to respond with the speed needed to resolve matters in the best way available to us and the best interests of patients.
As noble Lords appreciate, detaining a mentally ill person in hospital and treating them against their will is clearly a matter of the utmost seriousness, and must be treated as such both by the law and by health and social care practitioners. The statutory framework is contained in the Mental Health Act 1983, which sets out that for assessments and decisions under certain sections of the Act—including detention decisions under Sections 2 and 3—three professionals are required to be involved: two doctors and an approved mental health professional, usually a social worker. One of the two doctors must be approved under Section 12 of the Act.
To recap, when strategic health authorities were established in 2002, the Secretary of State at the time quite properly and lawfully delegated to them his function under the 1983 Act of approving the doctors able to be involved in making these decisions. Early last week, the Department of Health learned that in four of the 10 SHAs—North East, Yorkshire and Humber, West Midlands and East Midlands—the function of approving clinicians had been further delegated by the SHAs to NHS mental health trusts over a period extending, in some cases, from 2002 to the present day. The issue was identified as a result of a single doctor querying an approval panel’s processes. Ministers were informed later in the week as soon as the extent of the issue became clear and since then have been kept informed of and involved in the action being taken. Our current assessment is that about 2,000 clinicians were not approved properly in line with the provisions of the 1983 Act and that those clinicians have participated in the detention of between 4,000 and 5,000 of the patients currently detained in NHS or independent sector hospitals.
There are two important points to make clear now: first, the decision to detain a patient under the Mental Health Act is primarily a clinical one. There is no suggestion and no reason to believe that the irregularity of the approval process for these clinicians has resulted in any clinically inappropriate decision being made, whether the decision was to detain or not. Nor is there any suggestion that the clinicians approved by mental health trusts are anything other than entirely properly qualified to make these recommendations. All the proper clinical processes were gone through when these patients were detained. There is no reason why the irregular approval process should have led to anyone being in hospital who should not be—or vice versa—and no patients have suffered because of this. The clinicians had no reason to think that they had not been properly approved. They acted in total good faith and in the interest of their patients throughout this period.
As of Friday last week, the SHAs concerned had corrected their procedures and all the clinicians involved had been properly approved. In the light of our legal advice, we do not believe that any decisions that have been made about patients’ care and detention require review because of this irregularity. Doctors should continue treating patients who are currently detained under the Mental Health Act in the usual way.
The second point I want to make is that we have been advised by First Treasury Counsel that there are good arguments that the detentions involving these particular approval processes were, and are, lawful. Given the seriousness of the issues, counsel also argues the need for absolute legal clarity and advises that this is most safely resolved through emergency retrospective legislation. We are heeding that advice. As soon as the irregularity was identified, the department moved swiftly to identify the best course of action and to put the necessary preparatory work in place. Officials immediately sought initial legal and clinical advice and swiftly analysed the options, including the reassessment of all the potentially affected patients, working with the health leads in the regions involved and clinical experts from the Royal College of Psychiatrists.
When the Secretary of State was briefed on the situation, he asked for detailed information on the time it would take and the clinical risks involved in reassessing all potentially affected patients. Last Friday, he asked for an emergency Bill to be drafted over the weekend, as a matter of contingency. He briefed the Prime Minister personally the following day. Following further discussions and analysis over the weekend, the decision to introduce emergency legislation was taken on Sunday.
At all times, our priority has been to resolve this in a way that follows clinical advice about the most sensitive way to deal with a highly vulnerable group of individuals. It would not have been feasible quickly to reassess all the patients and could well have caused great distress to them and their families.
We have also worked to remedy the problem as it relates to current and future detentions. The accountable officers for the four SHAs in question have written to Sir David Nicholson, chief executive of the NHS, to confirm they have made the necessary changes to their governance arrangements. Furthermore, the accountable officers in the other six SHAs have written to Sir David to confirm that they have, in the light of this issue, reviewed their own arrangements and that they are in full compliance with the Mental Health Act.
Our best medical advice is that all the detained patients who have been affected and, where appropriate, family members, should be informed, but first we need to consider carefully how best to give people all the information and advice that they are entitled to in ways that do not cause unnecessary confusion or distress, so we need to take a little more time to make sure we get that right. Sir Bruce Keogh, the NHS medical director, will write shortly to SHA medical directors with further advice, which will be informed by the view of clinical experts and organisations representing detained patients and their families. It is vital that doctors, other mental health professionals and, most importantly, patients and their families have absolute confidence in the decisions made.
I am also aware that Mind and Rethink Mental Illness are providing very helpful advice to patients and their families and carers through their information lines and on the websites. This is just one aspect of the valuable assistance they have provided in dealing with this matter, and I am very grateful to them for it.
I will turn now to the scope of the Bill. Although we are aware of the problem only in the four areas going back to 2002, the Bill applies in principle to the approval of all clinicians under the Mental Health Act since its introduction in 1983. It retrospectively validates the approval of clinicians by those organisations to which responsibility was delegated up to the point when all the relevant clinicians were fully reapproved and their status put beyond doubt.
I would like to clarify who this Bill is targeted at. The “persons” referred to in Clause 1(1) are those who have exercised the approvals function only—no one else, and no other function—under the Mental Health Act 1983. Although it addresses a very particular issue, the Bill deliberately avoids going into further detail about which persons it applies to. Attempting to include a totally comprehensive list of which bodies or people believed in good faith that they were exercising the approvals function in the past would have created what we believe would have been an unacceptably high risk of omitting agencies or individuals that should have been included.
Although the Bill may appear to bestow a wide-ranging retrospective validation on “any person”, in fact, it is very narrowly targeted. It validates only any approvals given in the past and relates only to the function of giving approvals to clinicians as having particular skills—for example, as having special experience in the diagnosis or treatment of mental disorder. Once approved, the clinicians are then allowed to carry out certain functions under the Mental Health Act, such as giving medical recommendations in relation to a patient whose possible detention is being considered. The Bill helps to ensure that we regularise the situation completely and finally.
Crucially, the Bill will not deprive anyone of any of their normal rights to seek redress if they have been detained for any other reason apart from the narrow issue of the delegation of authority to approve by the SHAs. Nor will it affect any future detentions or legitimise any similar failures in future.
Necessary as we believe that it is to address the issue in this way, it is also important that we get to the bottom of how this happened. Therefore, the Secretary of State has asked Dr Geoffrey Harris, chair of NHS South of England and former chair of Buckinghamshire Mental Health Trust, to undertake an independent review looking at how this responsibility was delegated by these four SHAs and, more broadly, the governance and assurance processes that all SHAs use for delegating any responsibilities. We will also ask Dr Harris to look at this in the context of the new NHS structures that come into force from next April to see whether any lessons need to be learnt.
It is imperative that this review is swift, and we have asked Dr Harris to report by the end of the year with recommendations to ensure that every part of the system employs the highest standards of assurance and oversight in the delegation of any functions.
In conclusion, I stress to the House that we have reviewed thoroughly with lawyers, clinicians and NHS managers all possible alternatives to introducing this retrospective legislation. We have been advised that all alternatives would be highly disruptive to the welfare of many of the most vulnerable patients within the mental health system, and would also deprive many other patients of the care they need while any action is undertaken. That is why, in such exceptional circumstances, we are proposing this retrospective legislation.
Earl Howe
My Lords, I again express my sincere gratitude to noble Lords who have spoken in this debate for recognising both the seriousness of the issue and the need for rapid action to resolve it. The expertise and wisdom that noble Lords bring to bear on these difficult questions has been extremely valuable. Regardless of the urgency, this is a matter that demands proper scrutiny, and that is exactly what the House is providing today, albeit within abnormal time constraints.
It is also important to record, once again, our appreciation of the invaluable help and advice that we have received from partners such as Mind, Rethink and the Royal College of Psychiatrists. Their primary concern is naturally those whom they represent so ably, but we are genuinely grateful for the mature and calm way that they have responded. We shared the same ultimate objective—to do what is best for the patients affected by a technical error.
I shall now do my best to address the questions put to me. Perhaps I may begin with the questions posed by the noble Lord, Lord Pannick, who relayed the concerns of the Constitution Committee. One of those concerns was why the Bill is drafted as it is, bearing in mind that the source of the mischief was the inappropriate delegation by strategic health authorities, resulting in the technical irregularity to which I have alluded. The answer to that question is that because we do not know the exact administrative arrangements that were in place before 2002 when SHAs came into being, it was impossible to limit in the way that the noble Lord suggested the framing of Clause 1. He suggested an addition at the end of Clause 1(1) specifying whether or not the SHAs had legal power to delegate. I can understand why the noble Lord made that suggestion, but we wanted to make sure that we captured any events of which we are currently unaware that may have occurred prior to 2002, before strategic health authorities were set up.
Lord Pannick
My Lords, because we are not going to have a full Committee stage, I hope that the Minister will indulge me in relation to this matter. Is there reason to think that there is any problem whatever other than delegation? I appreciate that it may relate to events prior to 2002, but surely it is only improper or possibly improper delegation of functions that is the mischief here.
Earl Howe
The main mischief, I respectfully suggest to the noble Lord, is that the panels which approved the clinicians involved did not, strictly speaking, have the direct power to do that. That is the issue that the Bill tries to capture. The Bill deliberately does not include a comprehensive list of which bodies or persons believed in good faith that they were exercising the approvals function in the past. If we limited the Bill in the way that the noble Lord suggests, we would run the risk of failing to cover some of the approvals given by bodies that we may otherwise have failed to list. I ask the noble Lord to accept that the way in which the Bill is drafted is in the form of a blanket, which gives us certainty that we may not inadvertently have left out any bodies prior to 2002 that may have been guilty of a similar lack of authority.
Lord Hunt of Kings Heath
I hope that the noble Earl will forgive my intervention because this is an important point. As the noble Lord, Lord Pannick, said, we are not having a Committee stage, and this is the only time when we can raise this matter.
The problem relates to the approval function. The way that I read it, as the noble Baroness, Lady Murphy, put it so eloquently, is that there might be a quack who somehow got through the system because there has not been the sign-off by the strategic health authority, which could check that the panel had done the right thing by actually exercising an approval function in agreeing—as part of a panel—to someone losing their liberty and being sectioned under the Mental Health Act. The issue is whether this rather open-ended, retrospective clause would give the okay to that as well. The noble Earl has essentially suggested that the problem is the vagueness about the organisational arrangements that were in place prior to 2002. I understand that but it seems to read in such an open-ended way that it could give almost a green light to poor practice or practice that should not have taken place within the panel so constituted under the Mental Health Act.
Earl Howe
I understand the question but I believe that that concern is misplaced. The panels operating in this area apply agreed national criteria for approval. Those criteria are clear and extremely rigorous, and that is why we are confident that doctors must meet the same high standards across the country irrespective of whether this technical irregularity applies. The technical irregularity was simply that the panel did not refer back to the strategic health authority for ratification the recommendations that it had made. It is my understanding that strategic health authorities, as a matter of course, accept the advice of the specialist panels. Therefore, I do not share the worry that, somehow or other, quacks or inappropriate clinicians have been appointed to these very onerous and responsible roles.
I now turn to the other main concern raised by the noble Lord, Lord Pannick, and the reason why the Bill has been drafted to refer to, “any person”. I see why he believes that the Bill appears to bestow a wide-ranging retrospective validation on any person, but in fact, the Bill is very narrowly targeted. It only validates any approvals given in the past and it relates only to the function of giving approvals to clinicians as having particular skills, for example, as having experience in the diagnosis or treatment of mental disorder. Once approved, the clinicians are then allowed to carry out certain functions under the Mental Health Act, as I said earlier. It is not the case that the Bill validates anyone other than persons who purported to approve clinicians. It is that role, and that role alone, that is referred to in the Bill.
The persons referred to in Clause 1(1) are as I have described. The Bill deliberately avoids going into further detail about which persons it applies to because, as I have said, attempting to include a totally comprehensive list of which bodies or people who believed in good faith that they were carrying out the approvals function would have created an unacceptably high risk of omitting agencies or individuals that should have been included. I hope that that is helpful.
I am advised in a further answer to the noble Lord, Lord Pannick, that if the power had been wrongly exercised by a panel and an inappropriate clinician had been authorised, that could still be challenged. That is to say: the challenge would be on the basis that the power was wrongly exercised but it would not be a challenge to the power to exercise the approval. I hope that that is helpful further clarification.
On the concerns raised by the noble Baroness, Lady Murphy, she asked how on earth strategic health authorities could have believed that they had this power to delegate. I share noble Lords’ dismay that we could have arrived at this situation but, having been advised by my officials, I am now more understanding of how this could have arisen. Strategic health authorities are able to delegate this function to certain bodies and in certain circumstances. However, they are not able to delegate it in the way that has come to light here. That is why we are legislating.
The options open to strategic health authorities for delegating their functions in relation to all issues are set out in regulations issued in 2002. In relation to the approval of clinicians under the Mental Health Act—which may include clinicians such as psychologists—there were also directions issued in 2008. Such approvals may be delegated to PCTs and therefore there is scope for legitimate confusion as to the exact way in which strategic health authorities had the power to delegate in this area.
I do not think there is any evidence for the fear expressed by the noble Lords, Lord Hunt and Lord Pannick, and the noble Baroness, Lady Murphy, that mental health was somehow not being given the priority it should be in those four strategic health authorities. What happened was that rather than carry out the approval process in-house, the four strategic health authorities decided to deliver the function through a contract with a mental health trust, believing that the focus brought about through a specific contract and the expertise and connections of a mental health trust would deliver a more rigorous and effective approvals process. However, the effect of these arrangements was that the approval functions were to be carried out by the trust, and the regulations and directions specifically set out, as I have said, with which bodies the SHAs may make arrangements to exercise the functions. They cannot completely delegate their responsibility in the way that they did, but it can be exercised on their behalf by a committee, a sub-committee or an officer of the authority. In essence, the panels in the trusts should have been regarded as advisory to the SHA, not having the approval functions themselves.
The noble Baroness, Lady Murphy, asked why this was not picked up sooner. The incorrect delegation was within the process between the strategic health authority and the mental health trust. To all appearances, the process of approving doctors and the quality of the doctors in these four SHAs was the same as in the rest of the country. However, this is a matter with which Dr Harris will no doubt wish to concern himself.
The noble Lord, Lord Hunt, asked me whether we could more precisely define the extent of the problem in terms of the number of patients affected. As of today, my advice is that the north and midlands SHA clusters have reported that they have currently identified 4,117 affected patients—1,265 in the north SHA cluster and 2,852 in the midlands.
I turn now to the questions posed by my noble friend Lady Jolly. She asked me whether the intention of Clause 1 is to give power not only retrospectively but also with effect from today. I hope I have made it clear that that is not the case. It takes effect from today retrospectively as soon as it receives Royal Assent, but it has no effect in relation to future approvals because all people involved in this process have now been properly approved. She asked me to confirm that the people who think they are approved actually are and do not need to undergo any validation or further approvals. The answer to that is yes, if she is referring to approved clinicians or Section 12-approved doctors, which I believe she is.
She asked about the lessons to be learnt from 1 April next year once strategic health authorities cease to exist and how the preparations for the transfer of responsibilities are being progressed. From next April, the Department of Health will be responsible for this specific approval process for approved clinicians. The Secretary of State said yesterday that while this will be a departmental process, we do not want the process to be remote from local areas. He also pointed out that we intend to have a structure that draws on local and regional expertise to help us make the right decisions on the suitability of doctors for the role, and we hope that Dr Harris will advise the department on this when he conducts his review.
The noble Baroness asked where the definitive list of SHA roles and responsibilities is and who is its guardian. The guardian is the Department of Health, while the actual list of strategic health authority roles is set out in the 2002 regulations, the National Health Service (Functions of Strategic Health Authorities and Primary Care Trusts and Administration Arrangements) (England) Regulations 2002, and the precise details on approved clinicians are set out in the Mental Health Act 1983 Approved Clinician (General) Directions 2008. That usefully lists the 28 competencies required of an approved clinician. She asked whether we can be confident that there are no other areas where action has not been taken by some or all of the SHAs. We know of no other areas or functions affected, but again Dr Harris’s review will look at the issues of governance and assurance of delegating responsibilities.
I thank the noble Baroness for making a valid point as regards the transition, but as I have alluded, the Harris review will look at issues of the governance and assurance of delegating responsibilities. Moreover, the review will report by the end of the year, so that will be before the completion of the transition process that my noble friend has so rightly brought to the attention of the House. The one remaining question my noble friend asked me concerned communicating with patients and the timescale of that. I shall repeat what I said before: we think that we need to take time to get things absolutely right, which I know she will understand. However, we hope to be able to issue advice within the next few days. I would reiterate that both the advice and the approach to delivering it will be agreed by both clinical experts and representatives of patients and families. I thought that I had covered every point, although I now see that the noble Lord, Lord Hunt, asked me a question about approvals post April 2013. The one thing I should have added was that we do not intend to delegate the function to the NHS Commissioning Board.
I hope that I have now answered satisfactorily the questions that were raised and that I have provided additional reassurances where necessary. Again, I thank noble Lords and others outside the House for their understanding and for the very significant contribution they have made to the debate.
Bill read a second time. Committee negatived. Standing Order 46 having been dispensed with, the Bill was read a third time and passed.
Winterbourne View
Earl Howe Excerpts(14 years ago)
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The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, I shall now repeat as a Statement an Answer given earlier today by my honourable friend the Minister for Care Services in another place on the safeguarding of former Winterbourne View residents. The Statement is as follows:
“The review into the abuse at Winterbourne View Hospital established by my right honourable friend the Member for Sutton and Cheam set out 14 actions to transform care and support. Central to the review is ensuring the safety and well-being of these very vulnerable people. I shall publish the final report before the end of November.
When Winterbourne View closed, NHS commissioners put in place independent clinical and managerial supervision and commissioned an independent assessment of every patient. The Care Quality Commission worked with commissioners to relocate Winterbourne View patients to suitable alternative placements.
The Department of Health review team commissioned NHS South of England to follow up the 48 patients who had been in Winterbourne View in March and September of this year. That revealed that 19 former patients were the subject of safeguarding alerts. In response to this, officials asked commissioners to take the appropriate action and confirmed that a follow-up would take place in six months’ time.
I was concerned to be informed that this follow-up had revealed that there are current safeguarding alerts for six former patients. I am assured that these are all being followed up to ensure the safety and well-being of the individuals concerned. Furthermore, the September follow-up exercise revealed that 32 Winterbourne patients were now living in the community in their own family homes, supported living or a residential care home; 16 were still living in hospital settings.
The priority is to improve commissioning to develop the good local services which will prevent people being inappropriately sent to hospital. We are working closely with the NHS Commissioning Board, the Local Government Association and directors of social services on what support local services need.
While a small number of people will need hospital treatment, we expect to see and indeed must see a substantial reduction in the number of in-patients. We intend to strengthen safeguarding arrangements to prevent and reduce the risk of abuse and neglect of adults in vulnerable situations. Where there are safeguarding concerns, the local safeguarding of adults boards need to be closely involved. These boards will be placed on a statutory footing, ensuring a co-ordinated approach to local adult safeguarding work.
This Government will put the necessary legislation for safeguarding adults boards, and local councils should bring clarity to their roles and responsibilities. But it is the responsibility of the care provider to ensure a culture of safety, dignity and respect for those in their care, including stopping abuse before it happens. Those providers must be held to account for the care they provide”.
My Lords, that concludes the Statement.
Earl Howe
My Lords, I am grateful to the noble Lord, Lord Hunt, for his comments and questions. Turning, first, to the very distressing programme that was shown on television last night, we know that some of the people who were at Winterbourne View hospital are now receiving good-quality personalised care in community settings that is appropriate for them. However, it is deeply concerning that some people have been so affected by what they experienced at Winterbourne View that they have had to go into more secure settings. Equally, we are very concerned that others continue to experience poor-quality care.
The Government take this very seriously, and that is why Department of Health Ministers set up a wide-ranging review not just into what happened at Winterbourne View but into the state of care and support services for people with learning disabilities or autism who may have mental health problems or behaviours described as challenging. We have heard a lot from people who have experienced the services, as well as from their families. We have been working across the health and care sector to identify what needs to be done to make sure that vulnerable people get the care and support that they deserve.
I make no apology that that has taken some time. We are determined to treat this issue very seriously and bring forward a firm programme of action to really make a difference. We will publish the final report of the DH review shortly, together with a concordat setting out the commitment for change and inviting external partners to sign up to specific actions to deliver that change.
The noble Lord asked me about commissioning. In general terms, in our perception commissioning has been too remote from the patients whom it is intended to serve, and I think that the noble Lord’s remarks reflected that point. Clinical commissioning is intended to push decision-making much closer to patients and local communities with the aim of ensuring that local people are able to hold commissioners to account more effectively for what they achieve. Commissioning decisions will also be better informed by local clinical knowledge and insight.
The noble Lord asked whether all families have been given full information about the alerts. In essence, that is a matter for the local commissioners but I can tell him that the Department of Health has reminded health and care bodies of their responsibilities in that area.
The noble Lord called into question the capacity of the CQC to take on as much work as we are requiring of it. He will know that the department has undertaken a performance and capability review of the CQC. The resulting report was published back in February. It found that the CQC had made significant progress in the previous nine months, and I believe that it is continuing to make that progress. It has shown, in particular, a new focus on its core purpose—to protect patients by concentrating on essential standards—and in strengthening its operational base. The review has already made recommendations to strengthen the board of the CQC and board structures, including changing the board, so that instead of comprising only non-executives, it becomes a unitary board of majority non-executives, with senior executives on the board where they can be better held to account. It also recommended that the CQC needs to review and reinstate the board support and development programme and strengthen capability at executive team level. The department will oversee the implementation of these recommendations.
I share the noble Lord’s confidence in David Behan as chief executive of the CQC, having got to know him quite well during my time in the department. The noble Lord raised the issue of skills and training. We have had a number of debates on this subject over the past few months and, as he will know, the department has commissioned Skills for Health and Skills for Care in partnership with unions and employers, regulators and educators, to produce by January next year national minimum training standards and a code of conduct for healthcare support workers and adult social care workers.
I would just say, however, that to my mind the skills required in looking after those with learning disabilities and challenging behaviour are of a different order from the skills needed in other settings and we need to nuance the standards to ensure that the right skills are being imparted to the right people. Commissioners need to encourage hospitals and assessment and treatment units for adults with these disabilities to make sure that their employees are signed up to the proposed code of conduct that we plan to put in place and the minimum induction and training standards for unregistered health and social care assistants. We are working with the National Skills Academy for Social Care to explore how registered managers can get better support, which includes regular monitoring and supervision. Indeed, Skills for Care is developing a framework of guidance and support on commissioning work for solutions to meet the needs of people with challenging behaviour.
Finally, the noble Lord asked me whether I was satisfied that Postern House represented a safe and secure environment. Following the programme last night, my officials are pursuing that matter with urgency, as we speak, and once I have an assurance to give him about the current state of affairs at that care setting, I shall be happy to pass it on to him.
Lord Laming
My Lords, the Minister has made it plain that it has been the Government’s position for some time that people with learning disabilities should be enabled to live with local personalised services, supported in the community. The fact that some former residents of Winterbourne are now living with their families is an indication that this policy has been implemented all too slowly. There are too many units like that around the country. Will the Minister tell the House what levers are being employed to speed up this policy so that people have a range of local services designed to meet their personal needs?
Earl Howe
My Lords, I am absolutely in agreement with the noble Lord, Lord Laming, that it is really important that people are held to account for making change happen. We have indicated what we think that change should be, and that is why we have developed a concordat with key partners to get them to commit to the actions they will take. We also plan to strengthen the learning disability programme board, in particular to make sure that key delivery partners—such as the NHS Commissioning Board, the CQC, ADAS and the Local Government Association—are core members. The board will review progress on implementing the action set out in the final departmental report and the concordat. We have tried to address the issue that the noble Lord homed-in on—which is speed of action—but the core of his point was that there are too many people currently in specialist in-patient learning disability services, including assessment and treatment units, and that they are staying there for too long. This is often due to crises which are preventable or which can be managed if people are given the right support in their own homes and in community settings. That is the agenda that faces us.
Baroness Jolly
My Lords, what action can be taken against partners that fail to comply with the concordat?
Earl Howe
My Lords, I think that part of this involves defining roles and responsibilities. There is no single answer to my noble friend’s question. However, the transparency of the delivery of care, measuring outcomes and measuring the quality of commissioning in local areas are all important. It is also important to ensure that systems are in place to expose poor practice when it occurs. The problem with Winterbourne View is that, for too long, people did not know that those dreadful things were happening. Therefore, levers such as the introduction of local Healthwatch, the promotion of the new elements of the NHS constitution and ensuring that the CQC focuses its attention on where risk may most strongly lie, all have to be considered in the mix. I can tell my noble friend that this very subject will be covered in the report that my department will be publishing by the end of next month.
Lord Elton
My Lords, my noble friend is right: the care of people with learning difficulties requires a different order of commitment, compassion and patience. The Government are putting some weight on referring and sending people with learning difficulties out of institutions and into private homes. Can he give us reassuring news about the ease or difficulty of supervising the quality, consistency and continuity of the care which can be given in circumstances where these people are dispersed and each individual needs some kind of monitoring allocation of their own?
Earl Howe
My noble friend is absolutely right: this is not a simple matter. That is why we believe that commissioning should not be remote from those for whom care is commissioned. There needs to be regular monitoring by commissioners of the quality of the service that has been commissioned. Equally important, commissioners need to satisfy themselves on the suitability of the placement in the first instance. Best practice and guidance are clear: people with learning disabilities, autism or behaviour that challenges should benefit from local, personalised services and should be supported to live in the community wherever possible. The creation of clinical commissioning groups and health and well-being boards will encourage that local dialogue and insight to make sure that the services available in an area are appropriate and of a capacity for those who require them.
Baroness Donaghy
Is the Minister satisfied that not a single senior manager or owner went to jail as a result of the Winterbourne View scandal? Given that, how on earth is a culture change going to be promoted in these organisations? Can he assure the House that the responsibility and any judicial changes will be considered as part of any review?
Earl Howe
My Lords, the noble Baroness makes an important point. We have been clear that those who lead organisations where people suffer abuse or neglect should be held accountable. We have made it clear that there is a gap which needs to be addressed. A range of options is available through regulation; for example, by barring people from running care homes or hospitals ever again or, indeed, through criminal sanctions. As I have mentioned, very soon we will publish our final recommendations on what more can be done to prevent abuse and protect those who are in vulnerable situations.
Baroness Emerton
My Lords, I thank the noble Earl for his response in terms of support workers, and particularly on challenging behaviour. My past experience nearly 20 years ago of decanting hundreds of patients from large institutions satisfactorily into the community was due to the fact that the psychologists made an independent assessment of each individual of their clinical and environmental needs, and thus the training needs of the support workers. Can the Minister assure us that a holistic approach in terms of multi-professional involvement will be taken, and that it will particularly be led by evidence-based psychologists who understand challenging behaviour?
Earl Howe
I agree fully with the noble Baroness. The aim and aspiration for this group of individuals is that they should benefit from personalised services. What that means is that their needs should be individually assessed professionally by multi-disciplinary teams. The noble Baroness did not do this, but there are some who suggest that we need to get rid of in-patient services altogether. There are individuals who will continue to require in-patient services, but these should be used only in very limited cases. We need to aim towards a situation where no one is sent unnecessarily into in-patient services for assessment and treatment. We know that that has not been happening. For the small number of people for whom in-patient services may be needed for a short period, the focus has to be on providing good quality care that is safe, caring and open to the community, which is another important aspect, and that people can move on from these services quickly. Planning starts from day one to enable people to move out of the in-patient setting into more appropriate care as quickly as possible. That comes back to intelligent commissioning.
Baroness McIntosh of Hudnall
My Lords, is it not the case that a great many workers in this sector are extremely low paid? Does the Minister think that there might be any correlation between the fact that they are low paid and the quality of care they deliver? I do not mean to imply that there is any excuse for the sort of behaviour that was revealed in the “Panorama” programme, but could any form of pressure be applied by regulators and commissioners to the commercially driven organisations that provide this care so as to prevent them continuing to employ people on very low wages to do such sensitive work?
Earl Howe
My Lords, there is more than a nugget of truth in what the noble Baroness says. Many of us have been troubled for a long time that work of this kind is insufficiently valued by society, and that is reflected in the rates of pay. That is why I am a firm believer in raising skills in this sector as a reflection of the value we place on care workers. The programme that we have in train over the coming months should steadily deliver that. To come back to the commissioning question, I am also a believer in ensuring that commissioners should be satisfied that the settings to which they send individuals have an appropriate mix of skills to look after the people concerned. That has not always happened. There is no single answer to this, but I identify myself with the particular point she has raised about remuneration.
Lord Cotter
My Lords, I very much welcome the mention of training once again today. It is so important that support workers are trained. One issue that has come to my notice quite frequently is that through a lack of training, support workers question the trained professionals an awful lot. The management also need to be trained to back up the professionals who are trained in their job as a vocation, so that the less well trained support workers respect their decisions.
Earl Howe
I agree with my noble friend. Where supervision is required, it is the job of the manager to ensure that it takes place, and that the supervision, staff ratios and so on are appropriate. We come back to the question of the responsibility placed on the shoulders of managers and proprietors of care homes. As the Statement made clear, this is very much a responsibility of providers, who need to be held to account for the quality of care that they provide.
Viscount Tenby
My Lords, I declare an interest both as a trustee of an organisation dealing with women with learning disabilities and also as a father of someone in that category. Although everyone can applaud the move to independent living within the community—nothing could be better—this has considerable financial implications, at a time of great financial stringency and rationing within the NHS. Can the noble Lord assure me that sufficient funds will be found and made available for this most important development?
Earl Howe
My Lords, the commissioning of this type of care will, in the future, be the joint responsibility of clinical commissioning groups and local authorities. We are encouraging as much close co-operation as possible at a local level. The noble Viscount will know that across-government funding is tight. However, we as a Government took the decision to protect the health budget, which is in fact rising in real terms every year of this Parliament. That does not reduce the pressure placed on the budget, because historically the pressures on the health budget have been higher than the rate of inflation; nevertheless, in protecting the health budget, we are also supporting local authorities to the tune of more than £7 billion over the spending review period to ensure that their social care services are not seriously depleted or damaged. It would be idle of me to say that there is no problem, but the funding available should be enough to support these services over the medium term.
Lord Clinton-Davis
This is not a simple matter. Does the Minister agree that an interim report will not provide all the answers and that this matter ought to be kept under constant review by Parliament in due course?
Earl Howe
Yes, my Lords, I agree with that. We must not take our eye off the ball. Once this report comes out, we have to ensure that its recommendations are carried through and constantly monitored. It will be, in part, the job of the NHS Commissioning Board to hold the ring and ensure that local commissioners are supported with the proper guidance, and held to account for the outcomes that they achieve, across the whole NHS but particularly in this area. That focus on outcomes is important when we consider how the service is held to account. We will be publishing very shortly the final version of the mandate that the Secretary of State gives to the NHS Commissioning Board as the means by which the board will be held to account by Parliament and the public.
The Earl of Courtown
My Lords, I declare an interest as a patron of a home providing residential care for adults with autism spectrum disorder. What we have all heard, read and seen about the Winterbourne View care home has been quite terrible. Does my noble friend the Minister agree that there are many homes out there providing a very good service to people suffering from these problems?
Earl Howe
My Lords, I am very grateful to my noble friend because it is all too easy to sink into a state of despair over these services. He is absolutely right: many, many good examples of excellent care are being delivered to those with learning disabilities. The challenge is to ensure that best practice is spread, but I am grateful to him for reminding the House of that important fact.
Lord Elton
My Lords, learning-difficulty patients are extremely aggravating at times and their carers have enormous power over them and can be tempted to abuse it—hence the results we have seen. The same can be said of prisoners and prison officers. When I was Minister for the Prison Service many years ago I was aware of the problem of the abuse of prisoners by prison officers who had a tendency to bully. I commissioned work on identifying the psychological profile of potential bullies, which was useful in reducing that invasion of human rights in prisons. Will my noble friend look into a similar approach when it comes to the way in which carers are recruited?
Earl Howe
My Lords, my noble friend makes an important point. The thing that shocked us all in the context of the BBC programmes was the extent to which restraint and physical abuse occurred in care settings, which was clearly inappropriate and also extremely distressing and damaging to the individuals involved. We are working with the DfE, the CQC and other stakeholders to drive up standards and promote best practice in the kinds of areas my noble friend is no doubt thinking of, particularly in the use of restraint. We believe that there should be a set of core principles to govern restrictive physical interventions. We think the guidance needs to be updated and that there needs to be improved training in this area. We will particularly consider in our review what additional guidance is needed for specific groups, including people with learning disabilities and behaviour that challenges.
Mental Health Act
Earl Howe Excerpts(14 years ago)
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The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, I shall now repeat a Statement made earlier this afternoon by my right honourable friend the Secretary of State for Health on the subject of the Mental Health Act. The Statement is as follows.
“With permission, Mr Speaker, I wish to make a Statement about an issue relating to the Mental Health Act 1983. It has become apparent that there are some irregularities around the way that doctors have been approved for the purpose of assessing patients for detention under the Act. For assessments and decisions under certain sections of the Act, including detention decisions under Sections 2 and 3, three professionals are required to be involved—two doctors and an approved mental health professional, usually a social worker.
In 2002, when strategic health authorities came into being, the then Secretary of State properly and lawfully delegated his function of approving doctors under the Act to them. However, it came to light last week that in four out of the 10 strategic health authorities—North East, Yorkshire and Humber, West Midlands and East Midlands—in a period of time dating from 2002 to the present day, authorisation of doctors’ approval appears to have been further delegated to NHS mental health trusts. I was made aware of the issue and kept up to date with the actions being taken. Our latest best estimate is that approximately 2,000 doctors were not properly approved, and that they have participated in the detention of between 4,000 and 5,000 current patients within institutions in both the NHS and independent sectors. Rampton high-secure hospital is in one of the affected areas. Some patients at Ashworth high-secure hospital are also included.
There is no suggestion that the hospitalisation or detention of any patient has been clinically inappropriate, nor that the doctors so approved are anything other than properly qualified to make such recommendations, nor that these doctors might have made incorrect diagnoses or decisions about the treatment that patients need. All the proper clinical processes were gone through when these patients were detained. We believe that no one is in hospital who should not be, and no patients have suffered because of this. The doctors would have no reason to think that they had not been properly approved. They acted in good faith and in the interest of their patients throughout this period.
In the light of our legal advice, we do not believe that any decisions that have been made about patients’ care and detention require review because of this irregularity. Doctors should continue treating patients who are currently detained under the Mental Health Act in the usual way. We have received advice from First Treasury Counsel that there are good arguments that the detentions involving these particular approval processes were and are lawful, but Counsel also argues the need for absolute legal clarity. The legal advice is that this should be resolved through emergency retrospective legislation.
As soon as the irregularity was identified, my department worked swiftly to identify the best course of action and put the necessary preparatory work in place. It first became aware of this problem last week. Officials immediately sought initial legal and clinical advice. We then swiftly analysed possible options, including the option of reassessing all potentially affected patients, working with the health leads in the regions affected and clinical experts from the Royal College of Psychiatrists. When I was briefed on the situation, I asked for detailed information on the time that it would take and the clinical risks involved in reassessing all potentially affected patients. On Friday, I asked for an emergency Bill to be drafted over the weekend, as a matter of contingency. I briefed the Prime Minister personally the following day. Following further discussions and analysis over the weekend, the decision to introduce emergency legislation was taken yesterday, and we have since worked to prepare the necessary materials. At all times, my priority has been to resolve this is a way that follows clinical advice about the most sensitive way to deal with a highly vulnerable group of individuals.
We have also worked to remedy the problem as it relates to current and future detentions. As of today, all the doctors involved have now been properly approved. The accountable officers for the four strategic health authorities in question have written to Sir David Nicholson, chief executive of the NHS, to confirm that they have made the necessary changes to their governance arrangements. Furthermore, the accountable officers in the remaining six strategic health authorities have written to Sir David to confirm that they have, in the light of this issue, reviewed their own arrangements and that they are in full compliance with the Mental Health Act.
Although we believe that there are good arguments that past detentions under the Mental Health Act were and are lawful, it is important that doctors, other mental health professionals and, most importantly, patients and their families have absolute confidence in the decisions made. That is why, in relation to past detentions, we have decided that this irregularity should be corrected by retrospective legislation. Although we are aware of the problem only in the four areas going back to 2002, the proposed legislation will apply in principle to the approval of all doctors under the Mental Health Act since its introduction in 1983. It will retrospectively validate the approval of clinicians by those organisations to which responsibility was delegated, up to the point when all the relevant doctors were fully reapproved and their status put beyond doubt. The legislation will not deprive people of their normal rights to seek redress if they have been detained for any other reason apart from the narrow issue of the delegation of authority by the SHAs, nor will it affect any future detentions or legitimise any similar failures in future.
We are proposing to introduce the draft legislation to the Commons and, through best endeavours, looking for it to complete its passage through all the appropriate stages in this House and the other place as soon as is practicable. While addressing this technical issue, it is also important that we get to the bottom of how this happened and that we learn any lessons to help inform the operation of the new system architecture from April 2013. As such, I have asked Dr Geoffrey Harris, chair of NHS South and former chair of Buckinghamshire Mental Health Trust, to undertake an independent review to look at how this statutory responsibility was delegated by these four SHAs; and, more broadly, the governance and assurance processes that all SHAs use for delegating any statutory responsibilities. I will also ask him to look at this in the context of the new NHS structures that come into force from next April, to see whether any lessons need to be learnt. It is imperative that this review is swift and I have asked Dr Harris to report to me by the end of the year with recommendations to ensure that every part of the system employs the highest standards of assurance and oversight in the delegation of any functions.
I stress to the House that I have reviewed with lawyers, clinicians and NHS managers possible alternatives to introducing this retrospective legislation. I have been advised that all alternatives would be highly disruptive to many of the most vulnerable patients, and would also deprive many other patients of the care that they need while any action is undertaken. However, all the advice that I have received has been unequivocal in stressing the need for absolute clarity of the legal status of any hospitalisation or detention of patients, in the interests of those patients, their families, those caring for them and the wider public. That is why, in such exceptional circumstances, this retrospective legislation is being proposed. Both a draft Bill and the accompanying Explanatory Notes will be published this afternoon. I commend this Statement to the House”.
My Lords, that concludes the Statement.
Earl Howe
My Lords, I am extremely grateful to the noble Lord for his supportive comments, and I shall do my best to answer as many of his questions as I can. He first asked me what train of events led up to this situation. Earlier in the year, a doctor challenged a refusal by the Yorkshire and Humber approvals panel to approve him under Section 12. This challenge highlighted the possibility that the Secretary of State’s approval function, which had been properly delegated to SHAs, may, in some areas, have been unlawfully further delegated to NHS trusts. Yorkshire and Humber and then the northern SHA cluster took their own legal advice, which confirmed that the trust had been acting ultra vires in issuing the approvals. The northern SHA cluster identified that this applied to the arrangement in North East SHA and alerted the Midlands cluster, where it was possible that the same issue might apply in East Midlands and West Midlands. On 22 October, the northern SHA cluster alerted the Department of Health to the issue surrounding the approval of doctors and the possible knock-on effects that that would have. Events then took the course that I outlined when repeating the Statement. I can confirm to the noble Lord that we are satisfied that all 10 strategic health authorities have now gone through the proper process for approving doctors under the Act. The four that may not have been compliant have regularised the situation.
The noble Lord asked whether more than the 4,000 to 5,000 patients that I indicated when reading the Statement might be affected. It is possible that more are affected, but the key point is that the legislation that we are introducing this week will cover all affected patients, whatever the process was that led to their detention.
The noble Lord asked whether there were any plans to communicate with patients. We have worked, and continue to work, with the Royal College of Psychiatrists to ensure that patients and staff will understand clearly what has happened, how it affects them and what the situation now is. Sir David Nicholson, the NHS chief executive, today has written to all SHA leaders setting out the situation and the immediate need for them to communicate across their mental health organisations. The Department of Health is also assisting in that process.
The noble Lord also asked how many patients were detained in high-secure hospitals. I do not have the exact numbers. However, a small number of patients in secure hospitals are detained under sections of the Act covered by approval under Section 12 but these patients are not in secure hospitals by virtue of a criminal section. On whether I could share with the House the legal advice that the department has received, I am sure that he will know that it has been the practice of successive governments not to do that for very good reasons. However, if the noble Lord is in any doubt about the advice that we have received, I am very happy to give him access to my officials in the department who can talk him through this.
Quite rightly, the noble Lord said that your Lordships’ House has in the past been extremely cautious about approving retrospective legislation and I am the first to acknowledge the validity of that comment. In no way do the Government enter into retrospective legislation lightly. As he said, it is very much a last resort. We looked at the only possible alternative, which was to reassess each and every one of the 4,000 to 5,000 patients currently detained in every setting. We would need to have done that within 72 hours, which is what the law allows. In our judgment, it was logistically impossible to do that.
Furthermore, if we had attempted to do that, it would have undoubtedly caused a great deal of anxiety and distress to the patients involved, and their families, while taking away from other patients the attention of the clinical staff who look after them. The very clear advice that we received from not only our legal experts but also the clinicians was that the retrospective legislation route was undoubtedly the best route to go down. It is not now necessary to reassess patients. I believe that that perhaps is the central consideration we should have in our minds.
The noble Lord, Lord Hunt, also asked whether this affair reflected a failure of policy implementation or the underlying legislation. Certainly, from our scrutiny, there is no defect in the legislation. What has happened is that powers have been inappropriately delegated by those four strategic health authorities. The panels whose job it is to approve the clinicians failed to refer back to the strategic health authority for ratification the recommendations that they were making, which is the only thing that we believe was not done under this process.
The noble Lord also asked what would be the arrangement after April 2013. The power under the Mental Health Act to approve clinicians in this context will revert back to the Department of Health. There will be a refreshed set of arrangements which will be co-ordinated and managed by the department. Those arrangements are being put in place over the next few months.
Baroness Jolly
My Lords, will the review look at whether the SHAs have made any approvals under any other legislation, such as the Mental Capacity Act?
Earl Howe
My Lords, the review by Dr Harris will take into consideration any lessons that need to be learnt. We have asked him to take into account any other possible lessons that we should take on board, particularly in the run-up to April 2013. However, I am happy to reassure my noble friend that her request will be passed on. If there is a relevance to the Mental Capacity Act, I will ensure that Dr Harris takes it into account.
Lord Lloyd of Berwick
My Lords, like the noble Lord, Lord Hunt of Kings Heath, I would hope that the Minister could tell us a little more about how these irregularities came to light only last week. The problem, of course, is that there is a well known maxim of the law that the delegate of a power—that is to say the person to whom a power is delegated—cannot delegate it to another. I think that it is expressed in Latin as delegatus non potest delegare.
It is no doubt that maxim which has caused the lawyers to have had some doubt about the lawfulness of the detention in these cases. Indeed, it is perhaps surprising—again, the noble Lord might be able to give us some understanding about this—that these irregularities have not come to light before. Now that they have, I agree with the advice given by First Treasury Counsel that there is here a need for absolute clarity and that the best way to achieve that is by legislation. The whole point of it is that it should have retrospective effect. I end by congratulating the Government on reacting so quickly.
Earl Howe
I am extremely grateful to the noble and learned Lord, Lord Lloyd. In front of me, I have a very detailed timeline of the events which have led to the current situation, starting from the early summer of this year when the doctor who was turned down for approval in Yorkshire and Humberside SHA challenged the decision. Subsequently, he dropped his appeal but the legal advice taken on his grounds for appeal highlighted the possibility that the arrangements for the panel convened by the Rotherham, Doncaster and South Humber NHS Foundation Trust to exercise this function were unlawful. From that point, questions were asked not only in that strategic health authority but in neighbouring strategic health authorities and the department was alerted a few days ago.
The noble and learned Lord rightly asked how this could ever have happened and not been picked up. We will rely on the review by Dr Harris to tell us the answer to that question, but I am grateful for his support.
Baroness Pitkeathley
In further clarification to the response that the noble Earl gave to my noble friend about communication with patients, will he tell the House more about how that communication is to take place, whether there is a timescale for it and whether the communication also will extend to patients’ families who will be particularly worried by some of these developments?
Earl Howe
My Lords, I would willingly give the noble Baroness further details. Unfortunately, I do not have any beyond those that I gave to her noble friend Lord Hunt. I will gladly pick up the very valid points that she has made and let her know as soon as I can. Perhaps when we reach Second Reading of the Bill, which I believe has been timetabled for Wednesday, I shall have a more detailed answer to give her. If she is not in the Chamber, I shall make sure that she receives it by other means.
Lord Williamson of Horton
I have a particular interest in the Mental Health Act 1983, because I played some role in getting some provisions on to the statute book. I am normally very against any retrospective legislation, but in this particular case I strongly support the view taken by the Government, because it is absolutely essential to avoid a situation in which we impose disruption and distress on a large number of people who are vulnerable and in difficult circumstances in any event. For what I may call “human reasons”, the alternative was rightly ruled out, and I support the Government’s view.
Earl Howe
I am most grateful to the noble Lord, Lord Williamson. Indeed, it was the well-being of patients that was central in our mind when we sat down to consider how to resolve this very unfortunate situation at the end of last week. I hope and believe that patients should not suffer any inconvenience or distress at all as a result of the remedial route that we chose.
Baroness Ford
I welcome a review by Dr Harris, but can the Minister say whether, outwith the sphere of mental health, the department has any concerns that there are other areas of health where the Secretary of State would normally delegate authority to strategic health authorities and where that delegation might be further delegated? Is there any belief in the department that any other areas could be similarly ultra vires?
Lord Laming
We are all grateful for the way in which this matter has been handled, and particularly pleased that it will not result in any fundamental change in mental health legislation. I come to this from a point of ignorance, so I hope that the Minister will excuse what seems an innocent question. Does this mean that the future emergency legislation that will come to the House is aimed at deeming that the practitioners who dealt with these cases are now licensed to deal with them, or does it mean that the patients have been deemed to be appropriately assessed?
Earl Howe
The question that the noble Lord, Lord Laming, asks is not a naive one at all—it is a very important one. The draft legislation that has been prepared is very narrowly drawn and its effect will be to ratify retrospectively those decisions taken by the panels that assess doctors for approval and treat those decisions by the panel as if they had been lawfully made. So it does not apply directly to patients but to the approval of the clinicians involved.
Baroness Barker
Could the Minister say something about the role of regulators and professional bodies, and why none of them picked up this issue over time? Will that matter form part of Dr Harris’s review?
NHS: Children’s Congenital Heart Services
Earl Howe Excerpts(14 years ago)
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The Lord Bishop of Leicester
To ask Her Majesty’s Government why the removal of extracorporeal membrane oxygenation equipment from Glenfield Hospital does not form part of the review by the Independent Reconfiguration Panel into children’s congenital heart services in Leicestershire, Lincolnshire and Rutland.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, the Independent Reconfiguration Panel—the IRP—provides advice to the Secretary of State on the plans that the NHS puts forward for significant change to services. The legislation does not allow it to review decisions taken by the Secretary of State. My right honourable friend the Secretary of State has asked the IRP to review the Joint Committee of Primary Care Trusts’ decision on the future pattern of children’s congenital heart surgery and its consideration of the impact of that, which may include possible consequences for this service at Glenfield.
The Lord Bishop of Leicester
My Lords, I am grateful to the Minister for his Answer. In the east Midlands we appreciate the Secretary of State’s decision to review his predecessor’s decision on the future of children’s congenital heart services in Leicestershire, Lincolnshire and Rutland. However, in view of the unique and exceptional network of expertise with a world reputation supporting the so-called ECMO unit—expertise that, once dismantled, would be very difficult to reassemble—does the Minister accept that its future is inextricably linked to the future of children’s congenital heart services? Will he give an undertaking to this House that he will press that point on the Secretary of State?
Earl Howe
My Lords, I accept that there are interdependencies between the provision of children’s cardiac surgery and the children’s ECMO service. If new evidence emerges or there are exceptional circumstances, such as a change in circumstances following either the Independent Reconfiguration Panel review or any judicial review that may occur, then my right honourable friend the Secretary of State may wish at a future time to review the earlier decision.
Lord Bach
Is the Minister aware of how absurd it would be to have an independent report on the future of the heart unit but to exclude any consideration of the fate of the ECMO unit? As the right reverend Prelate said a few minutes ago, they are inextricably linked; indeed, the Minister seems to have conceded that there is a link between them. I remind him that Members of another place from all parties and from different parts of the country made it clear in their excellent debate earlier this week that the two are linked. As the Minister’s right honourable and learned friend Sir Edward Garnier said:
“We all know that the current decision is wrong and needs to be dealt with”.—[Official Report, 22/10/12; col. 188WH.]
Will the Government please look at this again before the whole country—
Earl Howe
My Lords, I hope that my initial Answer will have made it clear that we expect the Independent Reconfiguration Panel to look at the issue in the round, and that includes the consequences of the JCPCT’s decision, were that to be carried through. I hope that that is sufficiently reassuring. However, what the panel cannot do, in law, is review the decision of the Secretary of State. It can, however, take all the circumstances into account, and I believe that it should do so.
Lord Hunt of Kings Heath
My Lords, I remind the House of my health interests in the register. I would like to press the Minister on that point. In the other place on 22 October, the Minister there made it clear that the decision to transfer the ECMO to Birmingham was made as a consequence of the decision of the Joint Committee of Primary Care Trusts. Given that the Independent Reconfiguration Panel is now reviewing the decision of the Joint Committee, are the Government not being unnecessarily legalistic on this point? It would be quite open to the Secretary of State to ask the reconfiguration panel for its advice on the question of the ECMO position. Why on earth does he not do that?
Earl Howe
My Lords, I can only repeat what I said in my initial Answer to the right reverend Prelate: my right honourable friend has asked the IRP to review the decision around children’s cardiac services and its consideration of the impact of that, which may include consequences for the ECMO service at Glenfield. I hope that that Answer puts this question into context. While the IRP cannot review the Secretary of State’s actual decision about the ECMO, which, as the noble Lord rightly said, followed on from the original decision of the JCPCT, nevertheless there are interdependencies between the two services that we expect to be taken into account by the panel.
Lord Walton of Detchant
My Lords, may I express the hope that this review will be concluded speedily? The whole issue of the facilities for paediatric cardiac surgery across the UK has been under consideration for about two years. I have an avuncular interest, of course, in the future of the cardiac unit in the Freeman Hospital in Newcastle, which is one of the most outstanding in the country. I ask for a speedy conclusion because the whole organisation and reorganisation of cardiac paediatric surgery have to await the Secretary of State’s decision.
Earl Howe
The noble Lord, as ever, makes an extremely important point. Children’s heart surgery has been the subject of concern for more than 15 years. Clinical experts and national parent groups have repeatedly called for change, and there is an overwhelming feeling that the time for change is long overdue. I accept the noble Lord’s point that a decision should be reached as speedily as possible. I am advised that the IRP will report to the Secretary of State on 28 February 2013, or following the conclusion of any judicial review if such a review takes place.
The Lord Bishop of Leicester
My Lords, is the Minister aware, in spite of the technically clear Answer that he has given, that the overwhelming medical opinion is that the removal of this unit could lead to significant loss of children’s lives? Are he and the Secretary of State able to contemplate that possibility with equanimity?
Earl Howe
My Lords, of course I do not regard any possibility of children losing their lives with equanimity. I can only say that that aspect was carefully looked at by the JCPCT with strong clinical advice. It reached the conclusion that it would be safe to move the ECMO service to Birmingham.
NHS: Accident and Emergency Services
Earl Howe Excerpts(14 years ago)
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Baroness Gardner of Parkes
My Lords, I beg leave to ask the Question standing in my name on the Order Paper and declare my interest as a local resident.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, the reconfiguration of front-line health services is a matter for the local NHS, and any decisions regarding changes to services will be taken locally. I understand that the local NHS has worked closely with Transport for London and also with the London Ambulance Service in developing its proposals for the future shape of health services across north-west London under the Shaping a Healthier Future programme.
Baroness Gardner of Parkes
I thank the Minister for that Answer. My Question could really apply to anywhere in the country. The general principle is how long it takes to get patients to hospital, particularly in emergencies, when it is a matter of life and death in some cases. In London, there is only one air ambulance; I understand that in Paris, there are four and in Sydney there are six. We cannot rely on one air ambulance to deal with the problem. Will the Minister consider the general principle of a national view of traffic in relation to access for ambulances?
Earl Howe
My noble friend makes some important points. As a general point, it is important to say that each ambulance service should plan to provide appropriate resources to meet local demand, because demand varies according to where you are in the country. Planning assumptions in meeting that demand should take into account the likelihood of severe traffic congestion. Plans of that kind may well include resources in addition to traditional ambulance provision, for example, using rapid response vehicles and motorbikes as well as utilising staff such as community paramedics or emergency care practitioners.
Lord Harris of Haringey
My Lords, how many accident and emergency departments in London does the Minister expect to close in the next four years? If he does not know the answer, can he say who is responsible for that and how they are accountable for making a strategic judgment across London about the level of accident and emergency services?
Earl Howe
The premise behind the noble Lord’s question is that it is automatically worse to have fewer A and E departments in an area. I beg to disagree with that premise. In serious or complex cases, the noble Lord will know that patients need to access exactly the right care, so it is often better and safer for them to travel further to see specialists in major centres than to go to a local hospital. Although it may be closer, it may not have the right specialists, the right equipment or sufficient expertise in treating patients with their condition. The prime example of that has been stroke care in London, where 32 centres were reduced to, I think, eight and there has been a dramatic reduction in the number of deaths following admission.
Baroness Jolly
My Lords, does the noble Earl agree that wherever there are improvements to patient care that involve restructuring not only of services but premises, the impact assessment in the consultation document should include general transport and ambulance access?
Earl Howe
I agree with my noble friend. The planning assumptions made in north-west London, which is the subject of the Question, are a good example of that, where Transport for London is co-operating actively by producing some sophisticated analysis not only of ambulance transport times but of bus and car journey times to make sure that nobody loses out in any reconfiguration.
Baroness Whitaker
My Lords, in the noble Earl’s answer to my noble friend Lord Harris, I did not hear an answer to any of his questions about numbers, who makes the decision and who is accountable. Would it be possible to hear that?
Earl Howe
My Lords, I apologise. The Question on the Order Paper relates to north-west London, so I do not have pan-London figures in front of me. The answer to the question is as I gave it in my initial response: those decisions are subject to local determination. That is right, because it is only local commissioners and providers who can assess the situation on the ground properly. As the noble Baroness will be aware, there is a system for escalating decisions—ultimately to the Secretary of State, if necessary, who takes advice from the Independent Reconfiguration Panel in the most extreme cases—but normally, we hope and expect those decisions to be resolved on the ground in the local area.
Baroness Masham of Ilton
My Lords, does the Minister agree that many patients have difficulties accessing their GPs and out-of-hours services? Does he realise that the only resource might be the A and E department? In a case of meningitis, that could be a death sentence if they cannot get that access.
Earl Howe
My Lords, I agree with the noble Baroness. That is exactly why the Government are planning to roll out the 111 service, which will run alongside the 999 service for emergency calls. But where the situation falls short of an emergency, the 111 service will instantly direct the patient to exactly the right service, without a call back being necessary. I am pleased to say that that programme is on track and should be rolled out next year.
Baroness Wall of New Barnet
My Lords, I declare an interest in Barnet and Chase Farm, which is currently being restructured. Does the Minister agree that, with any restructuring of services in the health service, the public are very concerned? A lot of effort is being made by the trust to assure people, but one of the things that keeps coming back—certainly for Barnet and Enfield—is that the bus services do not always work in the way in which the noble Earl has suggested, and that Transport for London is not always co-operative. Very often it is, but sometimes it is not; we are having a great deal of difficulty reorganising bus services in cases where Transport for London will just not hear of it.
Earl Howe
My Lords, in north London and Barnet in particular, Transport for London has diverted the 307 bus route into the grounds of Barnet Hospital, thus improving the link from Enfield. Transport for London has also installed new CCTV cameras in the underpass at North Middlesex University Hospital, in order to enhance its safety. There was a proposal to improve the local underpass at Silver Street station, and that was carried through. I am concerned to hear the noble Baroness’s perception, because all the briefing I have had indicates that Transport for London is very constructive in these situations and will often change bus routes in response to changes in service configuration.
Care Services: Elderly People
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Lord Hunt of Kings Heath
My Lords, I beg leave to ask the Question standing in my name on the Order Paper, and I refer noble Lords to my health interests.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, providers of services are responsible for the safety and quality of the care they provide, and the well-being of the people they care for. Providers should undertake a risk assessment as to whether a criminal record check is needed or not, and what action to take as the result of such a check. Providers should keep a record of this process as an audit trail of their decision-making.
Lord Hunt of Kings Heath
My Lords, I am grateful to the noble Earl, and of course we all welcome the rehabilitation of ex-offenders. However, I refer the noble Earl to reports that recent CQC inspections show that more than 220 care agencies working for older people in England have failed to show that they were employing properly qualified and vetted staff. What action will be taken about this? Further, does this not show that the time is now ripe for the statutory regulation of care-home workers?
Earl Howe
My Lords, it is the responsibility of the employing organisation to carry out appropriate checks on the people they intend to employ. They should take decisions in the context of their responsibility for the well-being of the people who use the service. That position has not changed, and indeed it must be at the core of the safeguarding agenda. Organisations need to risk-assess the suitability of their staff for the role, considering all the information they have on the person, including criminal record checks. If someone has a criminal conviction, the employer should consider how old and relevant that conviction is in the context of the activities that the person would be undertaking and the characteristics of the people they would be looking after. That situation cannot, I think, change substantively.
Lord Patel
My Lords, will the Minister follow up on the question asked by the noble Lord, Lord Hunt? What progress is his department making towards establishing skills requirements in the training and regulation of nurse support workers and care assistants?
Earl Howe
My Lords, we recognise that there is a need to drive up standards in this area. More care workers will be trained, including an ambition to double the number of care apprenticeships by 2017. We have commissioned Skills for Health and Skills for Care to develop, before the end of January next year, a code of conduct and minimum training standards for healthcare support workers and adult social care workers in England. We expect that these will cover minimum training or induction standards for a range of support tasks, including personal care and other activities. Through the Health and Social Care Act 2012 we are creating a system of external quality assurance for voluntary registers.
Baroness Gardner of Parkes
My Lords, is the Minister aware that it is not just an issue about criminals, but an issue about the total shortage of care, which the previous question addressed very clearly? Does he not think that in general care and healthcare we are sadly missing the SENs, and is it not time to develop additional levels of training to fill the gaps both in care homes and the National Health Service?
Earl Howe
My Lords, we need to focus on a mixture of things. As my noble friend rightly says, we need to look at workforce numbers and capacity. We need to look at minimum training standards, which I have referred to, and we need to look at quality. We are doing that by targeting for the first time personal assistants and their employers with greater support and learning through the Workforce Development Fund, which will help with recruitment and retention. We need better leadership because high-quality leadership is essential for the delivery of all the proposals in the care and support White Paper, and we are setting up a new leadership forum to bring together expertise. I should add that we need better intelligence on the ground as well, and that we shall see from the local Healthwatch organisations when they are established.
Baroness Pitkeathley
My Lords, the Minister has pointed out that the employer, the provider, is responsible for the recruitment and training of care workers, and I am sure he will confirm that that applies whether they work in the private, the public or, indeed, the voluntary sector. In view of some of the scandals that there have been involving care workers, does he agree that we need to encourage value-based recruitment so that people are recruited not only for their technical skills, which can be provided through training, but for their compassion and empathy?
Earl Howe
Yes, I firmly agree with that. It bears upon the point that I alluded to very briefly, which is that the risk assessment process should not just be a tick-box exercise. It should assess the suitability of the individual and their own characteristics, the environment in which they will be working, the kind of people for whom they will be working and whether they have the right skills and characteristics as the people required to do that job.
Baroness Masham of Ilton
My Lords, does the Minister agree that it is not only the elderly who are vulnerable but also some very disabled people, including some with learning disabilities?
Baroness Jolly
My Lords, safeguarding the vulnerable needs real commitment from us all. Will the Minister tell the House whether the Government intend to support this by ring-fencing funds, as have Wales and Scotland?
Earl Howe
My Lords, we are not taking that approach. However, we have declared our intention to strengthen safeguarding arrangements to prevent and reduce the risk of significant harm to adults in vulnerable situations. That is a key priority for the Government. We intend to put safeguarding adult boards on a statutory footing. This will assist in furthering the agenda which my noble friend rightly raises, by ensuring that organisations involved in safeguarding have to make a co-ordinated contribution to local adult safeguarding work. Of course, it continues to be an offence for a provider to employ a person barred by the Independent Safeguarding Authority.
National Health Service (Clinical Commissioning Groups) Regulations 2012
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Lord Turnberg
I am afraid that my message tonight will be rather familiar. Although I listened carefully to the noble Baroness, Lady Cumberlege, whom I respect enormously for her experience, I am afraid that I cannot agree with her. Commissioning services in the NHS is an extremely complex activity. For CCGs to make rational decisions, they need the best data and information available about their populations and how to meet their needs.
I understand that economists talk about perfect and imperfect markets. Perfect markets exist where both the purchaser and provider know exactly what they are getting and giving. This is particularly important when we talk, for example, about packages of integrated care, especially care across the hospital community divide. Who better to provide the data and information that CCGs need than those working locally in our hospitals? CCGs should not only understand the needs of their populations; they also need to know something about what can realistically be provided locally to meet those needs. Relevant questions might include whether the local hospital provider has the relevant orthopaedic surgeons who can do specialised and complicated knee or hand surgery, whether it has the oncologists and haematologists to deal with all cancers or only some, and whether it has the relevant up-to-date scanning facilities. There will be a dozen other questions that only local knowledge can answer.
It seems obvious to many in the field that local specialists and nurses from the local trust are in much the best position to provide the answers, and to engage constructively with GPs in the provision of services. The idea that there is a conflict of interest appears to me to be nonsense. Of course there is local interest. Local consultants and nurses are there to provide local knowledge and information. The idea that consultants and nurses from elsewhere can be parachuted in to provide local information is asking too much, quite apart from the problem of whether another trust will be willing to allow its staff time off to travel around the country.
We do not want or need disinterested clinicians in the CCGs; we need interested clinicians. I hope that the noble Earl will listen if not to my noble friend Lord Hunt then to the royal colleges, which are very strongly in favour of local input from the secondary sector.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, I begin by thanking the noble Lord, Lord Hunt, for tabling this Motion, which provides a welcome opportunity to clarify the Government’s intentions in making these regulations on clinical commissioning groups—an opportunity that I feel is rather necessary in the light of some of the speeches that we heard this evening.
The regulations set out the legal requirements on the size and membership of a CCG’s governing body. Together with amendments made to the National Health Service Act 2006 by the Health and Social Care Act 2012, they provide a clear legal framework within which CCGs can appoint their governing body and develop appropriate governance arrangements. CCGs will be different from previous commissioning organisations. They will be built on the GP practices that together make up the membership of the CCG. These member practices must decide, through developing their constitution, how the CCGs will operate. They must ensure that they are led and governed in an open and transparent way that allows them to serve their patients and population. It is vital that CCGs are clinically led, with the ownership and engagement of their member practices, so that they can bring together advice, as noble Lords emphasised, from the broadest range of healthcare professionals to influence patterns of care and to focus on patients’ needs.
That is a necessary preface to the subject that has been the focus of much of tonight’s debate: the role of the governing body of the CCG. Following the NHS Future Forum, we introduced measures in the then Health and Social Care Bill to strengthen governance arrangements for CCGs, primarily through the requirement for each CCG to have a governing body that would have responsibility for ensuring that the CCG operates effectively, efficiently and economically, and does so with good governance. As we discussed during the passage of the Bill, our intention was to provide the public with greater confidence that CCGs would have suitable governance arrangements in place, including independent views and strong leadership, and would have proper checks and balances for the stewardship of public money. CCGs will be the guardians of significant amounts of taxpayers’ money. It is therefore only right that there are strict requirements in relation to governance, probity and transparency of decision-making. We must balance the benefits of the clinical autonomy of doctors with a robust management of potential or actual conflicts of interest. It is essential to get this right, and that means a proportionate and reasonable approach.
The Health and Social Care Act already provides real safeguards against conflicts of interest. The CCG must make arrangements in its constitution for managing conflicts and ensuring the transparency of its decision-making process, and it must have appropriate governance arrangements, including a governing body with lay members and other health professionals. These arrangements will be scrutinised by the NHS Commissioning Board as part of the process of ensuring that a CCG is fit to be established as a commissioner.
The requirements in relation to the secondary care doctor and registered nurse are therefore part of an overall package of requirements to ensure that they operate with good governance. We made clear in the Government’s response to the NHS Future Forum in June last year that neither the secondary care doctor nor the registered nurse should be from a local provider in order to prevent any potential conflicts of interest. We did that because a conflict of that nature would be a constant issue for a secondary care provider, given that CCGs will be responsible for commissioning the vast majority of hospital services. In contrast, CCGs will not commission primary care—that will be the responsibility of the NHS Commissioning Board. Therefore, for the most part, GPs on the governing body do not have a conflict of interests, and in any case GPs will not necessarily be in the majority on a CCG governing body.
On any occasion where CCGs consider commissioning local community services, arrangements must be made to manage both actual and potential conflicts of interest in such a way as to ensure that they neither affect the integrity of the CCG’s decision-making process nor appear to do so. The NHS Commissioning Board has issued guidance and a code of conduct for CCGs to deal with that set of circumstances.
What then is the role of the secondary care doctor and registered nurse on a CCG governing body? Their primary role, along with other members of the CCG governing body, will be to ensure that the governing body exercises its functions effectively and with propriety and absolute fairness. However, each member of a governing body will be expected to bring additional perspectives to underpin the work of a CCG. For the specialist doctor and the registered nurse, this perspective will be to provide a view beyond primary care and a broader understanding of health and social care issues—specifically patient care in a secondary care setting for the specialist doctor and, for the nurse, the contribution of nursing to patient care.
That is different from the role of clinicians in commissioning. Involving clinicians in commissioning has been one of the primary goals of our healthcare reform. I need to underline that as it is very much separate from the specific role of the CCG governing body. The detailed work on service design will not be done by the governing body of a CCG: rather, it will be done by the CCG itself, working with clinical networks and other multiprofessional groups. The governing body will have oversight of the governance of this decision-making process.
CCGs have a legal duty to obtain advice from people with a broad range of professional expertise when carrying out their commissioning responsibilities. My noble friend Lady Williams was absolutely right in saying what she did on that score. This could involve, for example, a CCG employing or retaining healthcare professionals to advise the CCG on commissioning decisions. Local knowledge and an in-depth understanding of local health issues will come not only from local GPs and their member practices but from other local clinicians, including local secondary care clinicians, who will work with CCGs to review local health needs and design local services. So the arguments presented by the noble Lord, Lord Hunt, and others around excluding local secondary care clinicians from the governing body as affecting the quality of the CCGs commissioning are wholly misplaced.
As to the restrictions placed on councillors preventing them from serving on CCG governing bodies, I start with a point of principle. We have been very keen from the outset of our reform programme to limit political interference in the day-to-day activities of the NHS. We have always been clear about that. Consequently, in addition to local authority members, we are also excluding MPs, MEPs and London Assembly Members from serving on a CCG governing body. However, our proposals do not mean that councillors are excluded from CCGs. A local councillor may still serve as a member of a committee or sub-committee of a CCG governing body, with the exception of the remuneration committee, as long as a CCG has set out the arrangements for such a committee in its constitution. A councillor falls within the description of an individual “specified in the constitution” as being eligible for membership of a committee. A CCG may provide in its constitution for any function of the governing to be exercised on its behalf by a committee or a sub-committee of the governing body, or by any individual of a description specified in the constitution. These arrangements could therefore allow for a local councillor to play a pivotal role in the CCG’s decision-making without formally being on the governing body.
Earl Howe
My Lords, the question I was asked was about the officers of local authorities, and I hope I have clarified that. A member of a local authority is an elected councillor, of course, and is debarred from a governing body, as we have discussed. If the noble Lord, Lord Harris, will allow me, I will write to him on the point.
Lord Harris of Haringey
Paragraph 5 of Schedule 4 refers to:
“An employee of a Primary Care Trust”.
Lord Harris of Haringey
They may be excluded from being a lay member, but one of the lay members is defined as someone who has,
“knowledge of the local area”.
However, if by chance they happen to be a part-time employee of any local authority in the country, they are excluded, and I want to know why that is. Why not leave it to the good judgment of the local people?
Baroness Thornton
Before the noble Earl leaves the issue of lay members, I have a question about having only two lay members—I am sorry that I did not jump up in time to ask it before he started summing up. The noble Earl and I sat opposite each other for several years discussing regulatory reform of the NHS, and one thing that I think we agreed on was that for all the new regulatory bodies that are now appointing lay members, 50:50 was the right balance to ensure proper regulation and accountability. Why is that not the case with the CCGs? What is different here? We felt that it was safer to have 50% in the regulatory reform of the NHS. Why do we not have 50% on the CCGs?
Earl Howe
My Lords, it will be up to local CCGs to determine their own constitutions, as I have said. What we are attempting to do in these regulations is simply to set down the bare minima. As we discussed during the passage of the Act—these provisions were well rehearsed—providing there are two lay members, a secondary care clinician, a nurse and an accountable officer, that is the extent of the prescriptiveness that we feel is appropriate from the centre. Otherwise, it looks very much like the Government dictating the governance arrangements. The Future Forum’s recommendations were very clear that we should not go down that path.
It was suggested that CCGs were experiencing difficulties in appointing secondary clinicians or a registered nurse. I understand the concerns that noble Lords have raised on that score but I have recently spoken to the NHS Commissioning Board, which has started the process of considering applications from emerging CCGs. The news I have is that CCGs have so far successfully recruited to these roles. In addition, the medical and nursing royal colleges have offered to help CCGs in sourcing appropriate candidates, which is very welcome.
The noble Lord, Lord Warner, referred to the HSJ article of 11 October. I will clarify my answer when I write to him, which I will be happy to do. We are very pleased not only that so many clinicians have chosen to apply for leadership roles, which they have, but that so many first-rate clinicians have done so, whether as clinical chairs or clinical officers in CCGs. What is important is that there is a good mix of expertise in the broader leadership team of clinicians and managers, to help the CCG discharge its responsibilities effectively, and that is what we are now seeing.
I have a number of examples of where the drive towards integration is really taking shape on the ground. My noble friend Lady Jolly mentioned South Devon and Torbay; this is a service designed by secondary care doctors and GPs working together in a clinical pathway group for urology, and the whole impetus of the CCG is to improve collaboration and get over the gulf between primary and secondary care. There is another excellent example of integrated services in Wokingham, which again I would be happy to write about.
The noble Lord, Lord Hunt, asked whether police commissioners and Peers could be members of a CCG governing body. Yes, they can. He also asked who was consulted over these regulations. As I have indicated, the proposals were developed in response to the NHS Future Forum, the listening exercise that set out requirements around the secondary care doctor and registered nurse. The proposals were further discussed with emerging CCGs, primary care organisations, the medical royal colleges and, yes, colleagues in the NHS Commissioning Board Authority.
The regulations discussed today provide a fair and transparent rules-based framework to complement the provisions in the Health and Social Care Act around the establishment of CCGs. Creating a responsible and accountable CCG with good governance is essential for good management, good performance, good stewardship of public money, good public engagement and—our ultimate goal—good outcomes for patients. I commend the regulations to the House.
Lord Hunt of Kings Heath
My Lords, I shall be brief. I thank the noble Earl, Lord Howe. He started by referring to the importance of clinical leadership and I would not disagree with him, but he has not really answered the point that the biggest potential conflict of interest is if GPs are in a majority on the boards—and I would hazard a guess that, in most places, they will be. They do not commission primary care, but their decisions can shift resources into primary and community care services. That is the essential conflict of interest.
The Government’s legitimisation of what must be some of the worst drafted regulations that I have ever come across would stand up in relation to conflicts of interest in other professions if one had any inkling at all that they recognised that CCGs carry a huge risk in relation to the GPs’ own position. The Minister said that the CCGs are about clinical leadership. As my noble friend Lord Warner pointed out, you are not even getting that, because only 20% or so of the accountable officers of those CCGs are to be GPs. The remainder are to be managers. Let us be clear: the accountable officer will in effect be the chief executive. The noble Baroness, Lady Finlay, said that the exclusion of local consultants and nurses from CCGs would mean that, in large parts of the country, the people appointed would have no local knowledge whatever. I agree that, in London, it may be more practical; in most of the rest of the country, it will not be.
I agree with all the points raised by the noble Baronesses, Lady Jolly and Lady Williams, but it is not sufficient to say that there will be a review in 2014. At this late stage, I invite them to join us in the Lobbies tonight. I could not disagree with anything that either noble Baroness has said. They tore apart the regulations. Will they not join us tonight?
I was amazed by the remarks of the noble Baroness, Lady Cumberlege. She came to the health service, as did I, through local government. Local government is having to take some immensely tough decisions. Having a local authority councillor around the board table of a CCG would help legitimise its decisions and help tie in the local authority with difficult decisions that have to be made. Excluding them is a huge mistake. I do not understand—clearly, the department forgot them—why elected police commissioners are deemed worthy of service on a CCG board when elected MPs and councillors are not. When my noble friend Lord Prescott is duly elected a police commissioner in a few weeks’ time, as one hopes, he will be eligible to serve on the whole clinical commissioning group, but no MP and no councillor. These are some of the most nonsensical regulations that I have ever seen.
The Minister said that we should not worry because local authority councillors, local doctors and local nurses can serve on the committees of a CCG—no conflict of interest there—but they cannot serve on the board. However, the board is the sovereign decision-making body of the CCG. I would have thought that most clinical commissioning groups would have wanted to have local expertise, whether it is local authority representation, a doctor or a nurse.
The Minister then said that these are only minimum requirements. Well, Schedule 4 states:
“Individuals excluded from being lay members of CCG governing bodies … An employee of a local authority in England and Wales or of any equivalent body in Scotland or Northern Ireland … A chairman, director, governor, member or employee of an NHS foundation trust”.
Excluding a chairman, director or governor of a foundation trust is fair enough, but a member? My trust has 100,000 members. Patients are automatically enrolled in membership of my trust unless they decide to opt out. We are talking about 100,000 people living in the catchment area of my hospital who are not allowed to be lay members of a CCG. Surely they are the very people you would want to be lay members of a CCG.
Lord Hunt of Kings Heath
My Lords, I am most grateful to the noble Earl for that enormously helpful clarification. The point is this: why should they not be statutory lay members of the CCG? There is no guarantee that CCGs will appoint any more lay members. I have yet to hear any rational explanation as to why this statutory instrument has been drafted in this way.
As we know, the noble Earl, Lord Howe, is a very fair man and always engages in debate. He will know that this statutory instrument has been ripped apart tonight. Even at this late hour, I ask him to withdraw the instrument. If he is not prepared to do so, I will test the opinion of the House.
NHS: Professional Qualifications Directive
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Lord Kakkar
To ask Her Majesty’s Government what progress they have made in negotiations at European level on the working time and recognition of professional qualifications directives in the light of their impact on the delivery of care in the NHS.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, negotiations on both directives are ongoing. The Government remain of the view that both measures should support labour-market flexibility without imposing significant extra costs on member states to ensure that any negative impacts that we have seen are ameliorated and, most importantly, to ensure that patient safety is maintained.
Lord Kakkar
My Lords, I declare an interest as professor of surgery and consultant surgeon at University College London Hospitals. In today’s Daily Telegraph the presidents of the Royal College of Surgeons and the Royal College of Physicians make an urgent plea for action on these two elements of legislation to halt a devastating deterioration in clinical training and patient safety. Do Her Majesty’s Government collect data on the number of patients harmed as a result of the implementation of these two directives, for instance from coroners’ inquests where they have been implicated in patient deaths, and on the financial consequences in terms of the employment of locum doctors in the NHS to ensure that hospitals are 48-hour-week compliant? If these data are not collected will the Minister commit to organising for their collection in the future to better inform this Parliament and to add impetus to the Government’s negotiations with their European partners?
Earl Howe
My Lords, it is the responsibility of individual NHS trusts to ensure that service rotas are compliant with the working time directive. In line with the Government’s coalition agreement to reduce duplication and resources spent on administration, the department reduced bureaucracy for the service by removing the burden of central monitoring of compliance and we are leaving this role to organisations at local level. The last assessment of the working time directive was undertaken in January 2010 and reported that nearly 99% of doctors’ rotas were compliant with the directive but we are in no doubt about the concerns that exist within the medical professions about the inflexibilities within the rules of the directive. As regards the mutual recognition directive, the department does not plan to collect directly any data relating to it. The professional regulators. who are the competent authorities, collect data in respect of the number of people applying for recognition under the directive.
Lord Ryder of Wensum
My Lords, is my noble friend aware of the fact that the clinicians at the Institute of Cancer Research where I am the chairman regard the working time directive as being of no benefit at all to their patients? In view of this fact, can he please tell me now—or if not now, in a letter with a copy placed in your Lordships’ Library—the details of the meetings that have taken place between Ministers and senior officials and their opposite numbers in Brussels? The Government have long believed that they are able to revoke or to revise this directive but so far, after two and a half years, I see no progress at all.
Earl Howe
My Lords, it is important to understand that the EU social partner process, which is driving the discussions at the moment and has been extended to 31 December, is autonomous. It operates independently of both the Commission and the Council and the Government have no formal role in any social partner negotiations. Having said that, we have made it clear to the Commission and to partners in Europe that securing long-term sustainable growth has to be the EU’s key priority. We will continue to work with our partners to ensure that EU measures support labour-market flexibility and do not impose significant costs on member states or burdens on business. The Government would welcome proposals coming forward that would preserve the right for all workers, including those in the NHS, to choose the hours that they work, including in particular flexibility in the areas of on-call time and compensatory rest as well as the preservation of the individual opt-out.
Lord Turnberg
Does the noble Earl agree that the working time directive as it now operates is detrimental both to patient care and doctor training? Is it not time that we stopped at least the nonsense of counting time in the 48 hours as time when one is on call, even though one may never be called? Will the noble Earl make sure that the case is made to the EU that at least this part of the directive is rescinded?
Earl Howe
The SiMAP and Jaeger judgments are very much the focus of our representations to the EU Commission. The disquiet about those judgements and the inflexibility that they have brought is shared by other member states. It is also important to recognise that none of us wants to go back to the past, with tired doctors working excessive hours. Tired doctors make mistakes; there is substantial evidence to support that. No one wants or deserves to be treated by tired doctors. There is a balance to be struck. The inflexibilities in the directive need to be addressed, but we should not go back to the bad old days when doctors became too tired to do their work.
Baroness Jolly
My Lords, if a clinician fails to understand a patient or to make themselves understood, their clinical competence is undermined. Will the noble Earl tell the House the current situation regarding the required level of English language competence of a doctor or other clinician from an EU state who wishes to practise in England?
Earl Howe
My Lords, we are now talking about the mutual recognition of professional qualifications directive. We have made it clear that we want to stop foreign healthcare professionals working in the NHS unless they have passed robust language and competence tests. As a result, we have explored the idea of strengthening language testing for doctors through the use of responsible officers; and explored also the GMC’s ability to take action where concerns arise. The directive review is a key priority for the Government, and the Commission’s proposals include greater flexibility on language. It is helpful that the proposal from the Commission makes it clear that controls on language checks are permissible and may be undertaken before a professional is able to practise.
NHS: Walk-in Centres
Earl Howe Excerpts(14 years ago)
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Lord Collins of Highbury
To ask Her Majesty’s Government how many NHS walk-in centres have been closed or had their opening hours restricted since May 2010, and how many are scheduled to close or have their opening hours restricted.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, since 2007, the local NHS has been responsible for NHS walk-in centres. It is for primary care trusts to decide locally on the availability of these services. No information on walk-in centre closures or opening hours is held centrally.
Lord Collins of Highbury
My Lords, I was expecting that response. Will the Minister acknowledge that these closures will channel, unnecessarily, patients towards accident and emergency departments at times when GP surgeries are also closed? This will almost invariably increase NHS costs in the medium term. Or is the Government’s strategy to blame local clinicians for cuts in NHS services?
Earl Howe
My Lords, the Government’s clear policy is that people should be able to rely on high-quality, 24/7 urgent and emergency care that is right for them, when they need it. That is our starting point.
I say to the noble Lord that since walk-in centres were invented the array of services available to patients has been considerably enhanced. It is not just a case of going to an A and E department as an alternative. There are now many GP health centres, minor injuries units, urgent care centres and, in the extreme case, ambulance services, so I do not necessarily accept the premise of the noble Lord’s question.
Baroness Masham of Ilton
My Lords, is the Minister aware that I have a colleague who went to the Victoria walk-in centre and found it closed? She went, in the end, to St Thomas’s. The whole procedure took her four hours. She had a urinary infection. Many of the people who go to these centres are working people who come up to cities and are away from their home environment.
Earl Howe
My Lords, I am sorry to hear of the experience of the noble Baroness’s friend. I asked my officials to let me know which walk-in centres were available within striking distance of this building. There are, in fact, five NHS walk-in centres in or very near central London. I am aware of another privately run centre as well. A quick search on NHS choices will bring you to a menu of options.
Baroness Gardner of Parkes
My Lords, will the Minister tell me whether all general medical practitioners have surgeries where you can walk in at some time of the day? That would take quite a load off people. Is that an obligation? My practice has this and it is marvellous. You can go in at 8.30 on any morning and will be seen if you are an emergency. Is that common? Is there a need for more of that?
Lord Harrison
Does the Minister share my surprise that data are not available for the number of closures of such walk-in centres in the past two years?
Baroness Jolly
My Lords, no one doubts the worth of walk-in centres or minor injury units. It is well established, but we need to know where they are. Will the noble Earl tell the House how often the information on the Department of Health website is updated? Who is responsible? Will he please pass on the message that it is woefully out of date and inaccurate, thus defeating its object?
Lord Brooke of Alverthorpe
My Lords, reverting to the earlier question about access to GPs, I hope that the NHS and the Minister will have information on the length of waiting times for patients to see their doctors. Indeed, we had questions on this issue earlier in the year. What steps have been taken to reduce the ever-increasing length of waiting lists to see doctors, particularly in the London area?
Earl Howe
My Lords, the noble Lord raises an important point. I am aware that in certain parts of the country there is considerable concern about the length of time that patients sometimes need to wait for a GP appointment. However, that is not the case all over the country. We expect GP practices to configure themselves so as to ensure that the waiting time is kept to a minimum. It is an area on which we are working closely with the profession to resolve.
The Earl of Sandwich
The Minister knows that there are patients who are suffering acute symptoms from prescribed-drug addiction and withdrawal, as well as from taking illegal drugs. Some of those people are in great distress. Where should they go now in the NHS if they suffer these acute symptoms?