Health and Social Care Act 2008 (Regulated Activities) (Amendment) Regulations 2012
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The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, the regulations that are before us today make a number of changes to the registration system for providers of health and adult social care services operated by the Care Quality Commission.
The changes that we are proposing fall into three broad categories. First, they make some changes to the extent of registration, removing some providers from registration where the risk to service users does not justify regulation by the commission, or there is little or no potential for regulation by the commission to mitigate these risks. Secondly, they make some slight technical amendments to the regulations; and thirdly, they make some clarifications to the regulations. I shall say more about the purpose of the instrument a little later, but I would like to reflect on the progress that the commission has made since it was set up three years ago.
As the independent regulator of health and adult social care services in England, the commission plays a key role in providing assurance that patients and service users receive the standards of care that they have a right to expect. All providers of “regulated activities” in England, regardless of whether they are public, private or voluntary sector organisations, are required to register with the commission. Providing a regulated activity without being registered is an offence.
In order to be registered, providers have to comply with a set of registration requirements that set the essential levels of quality and safety. Where providers do not meet these essential levels, the commission has a range of enforcement powers that it can use to protect patients and service users from unsafe care. This includes, in the most extreme cases of poor care, closing down services. The commission has registered around 22,000 providers in a number of waves. The final round will be the registration of 8,000 providers of NHS primary medical services in April 2013.
During the passage of the Health and Social Care Act 2012, we made it clear that we would strengthen the role of the commission. As our reforms to health and social care services are implemented, the commission’s focus will remain on its core function of registering providers against the essential levels of safety and quality, and taking action against those providers that do not meet these standards.
The commission has taken on a challenging workload in bringing a large number of new providers into a new registration system in a short period of time, and in merging the work of three former regulators. I believe that it should be commended on the progress that it has made. The early years of the commission’s operation have been comprehensively reviewed over the last year. This has included reviews by the Public Accounts Committee, the Health Select Committee and the performance and capability review undertaken by my own department.
The regulations before us now were consulted on and drafted before the findings of those reviews were available. I assure the Committee that my department will consider whether further changes to the regulations that underpin the registration system are required in the light of these several reports. We are now commencing a further review of the regulations and aim to consult on any further changes, if they are needed, at the end of the year.
Earl Howe
My Lords, I am grateful to the noble Lord for his comments. I begin by thanking him for the expressions of support that he gave to Dame Jo Williams and Cynthia Bower. I am sure that they will read those with gratitude.
The noble Lord made a number of points around the capability of the CQC to undertake the duties placed on it. The performance and capability review found that in its early stages the CQC was understandably focused on operational priorities. However, the achievements of the CQC should not be underestimated, and I was glad to hear the noble Lord acknowledge that. The review also acknowledges that the CQC leadership could have done more to manage operational risks and provide better strategic direction. We are clear that the CQC leadership is now demonstrating greater confidence and challenge. The recommendations are aimed at building on performance over the last 12 months, which I think has been noticeable, to further strengthen capability and improve accountability, including within the department.
We were very frank in our assessment of our own role—that is to say, the role of the department—in this. The capability review recognised that the department and the CQC underestimated the scale of the task of combining three regulators into one organisation while developing and implementing the new regulatory model. Even so, the review found that the CQC could have done more to manage the difficulties that it faced in its first few years.
We need to address those points but, at the same time, to look ahead. The department is committed to supporting and strengthening the CQC. We are clear that the CQC should continue in the future to focus on its core role of assessing whether providers meet the essential levels of safety and quality through its registration function. We have every confidence in the CQC’s ability to provide effective regulation of providers of healthcare and adult social care in England. The performance and capability review found that the CQC has made significant progress in the last nine months and is clearly focused on its core tasks.
The review has already made recommendations to strengthen the board and the board’s structures, which was a matter raised by the noble Lord, 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 reviews and reinstates the board’s support and development programme and strengthens capability at executive team level with greater strategic capability and more and wider sector-specific expertise. The department will oversee the implementation of those recommendations.
Lord Hunt of Kings Heath
I am grateful to the noble Earl, Lord Howe. Perhaps I may make just a couple of points. On the consultation on the HFEA, all I should like to say to him is that it might be useful if there were some time for parliamentary discussion in your Lordships’ House around the consultation—not to second-guess the consultation process but, I should have thought, in view of our previous debates, to allow for some discussion among parliamentarians about the consultation document.
Secondly, as regards Kay Sheldon, I fully understand that the noble Earl is not prepared to comment on any individual case. He went on to make the point that the department was concerned to ensure that the board of the CQC was well functioning and effective. One could take that both ways. I understand, in a sense, the ambiguity of the noble Earl’s expressions in relation to that. All I would say to him is that I would ask the department to walk very carefully in this area. I know that he has debated the issue of whistleblowing many times in the past few years, and he has always upheld the rights of whistleblowers. Although it might be argued that a board member is a little different from a member of staff, there will sometimes be circumstances when board members themselves can become frustrated that they have raised concerns that are not then dealt with. Taking action against a board member who has actually given evidence to a public inquiry will send unfortunate signals to the NHS about how strong collectively we are in supporting whistleblowers. I do not expect the noble Earl to respond to that but hope that it will at least encourage the department to think very carefully about their actions in this case.
Earl Howe
My Lords, on the noble Lord’s first point, I would be very willing to take part in a debate on the issue involved in our proposals to transfer the functions of the HFEA and the HTA to the CQC. I can only say that I will ensure that the noble Lord’s suggestion is fed into the usual channels.
On the second issue that he raised, I appreciate his understanding that it would not be appropriate for me to comment on the position of individual members of the board. I am sorry if my remarks appeared ambiguous; that was certainly not my intention. All I intended to say was that the CQC will be facing significant challenges over the coming months, as we have been discussing, and the department is committed to ensuring that its board has the skills and capabilities it will need to meet those challenges.
NHS: Risk Register
Earl Howe Excerpts(12 years, 9 months ago)
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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, in so doing, I declare an interest as chair of an NHS foundation trust and as a consultant and trainer on the NHS and health issues.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, the transition risk register will be published when the balance of public interest favours disclosure. We will continue to be open about risk. Last week we published a document containing information on all risk areas in the register, along with a scheme of publication for future review and release of information on risk.
Lord Hunt of Kings Heath
My Lords, I am extremely grateful to the noble Earl for that because he said that it would be published when the balance is in favour of the public interest. Can I take him back to the judgment of the First-tier Tribunal, which concluded that risk registers,
“would have provided the public with a far better understanding of the risks to a national institution”,
on which millions depend? Surely the public interest and parliamentary scrutiny actually depended on that risk register being published, and it should have been published when the Bill was in this House.
Earl Howe
My Lords, we do not agree with that. We have, as I have mentioned, published a document setting out a summary of all the risks in the register and the mitigating actions associated with each category, but we resist publishing the risk register itself at present. It is essential that officials are able to formulate sensitive advice to Ministers, making frank assessments and using direct language, without the fear of causing unnecessary embarrassment for the Government or damage to their area of policy. That is the essence of the reason.
Lord Naseby
Is my noble friend aware that there is nobody more passionate about the NHS than I am, but that a great many people outside want civil servants and other advisers to Ministers to point out the whole extremity of risks in any policy, whether it is policy A, B or C? At the end of the day, they expect Ministers to look at those risks and take appropriate decisions. Against that background, therefore, the strategy that my noble friend is following is understood outside by the ordinary public. It may not be understood by the lobby groups; nevertheless, it is the public whom we serve.
Earl Howe
My Lords, I am very grateful to my noble friend, and he is right. The risk assessment process, carried out by civil servants and detailed in these registers, is an integral part of the formulation and development of government policy. It is in the public interest that this process be as effective as possible. We are clear that where policy is sensitive, that necessitates confidentiality.
Lord Martin of Springburn
My Lords, I take it that the decision that was made was a government decision, which was collective. I recall that the Deputy Prime Minister, before he became Deputy Prime Minister, was very keen on transparency. Was he therefore comfortable about the withholding of this information? If the noble Earl does not know, perhaps he could come back and let the House know.
Earl Howe
My Lords, the decision to exercise the veto, which is a decision provided for under the Freedom of information Act, was made by my right honourable friend the Secretary of State for Health. However, he would not have been able to exercise the veto without the collective approval of the Cabinet, and that approval was secured.
Lord Brooke of Alverthorpe
My Lords, last Thursday I asked the Minister a question that he answered in part. The part that he did not answer was whether the transitional risk register drew to the Government’s attention the risk that patients would have to wait longer to see their GP. Speaking as someone who uses the NHS and as part of the British public, I fear that the delays are getting longer and will continue to do so. Could he please now answer the question about whether or not this was in the risk register?
Earl Howe
I acknowledge that I did not answer that question and apologise to the noble Lord for not having done so last week. The whole issue of stakeholder support is one that the risk register addresses, as he will see from the document that we published. I do not recall the specific issue of waiting times to see one’s GP arising in the risk register for the simple reason that, although I acknowledge that it is currently a problem in some parts of the country, particularly London, that is not a direct result of anything that the Government are doing in our reform programme.
Lord Tebbit
My Lords, would my noble friend decline to take lessons in these matters from those who supported former Prime Minister Blair in not publishing a full and frank assessment of the intelligence reports on which he committed this country to a war?
Baroness Jolly
My Lords, risk registers are a tool to inform policy-making, so is the department currently working on a risk register for the implementation of the social care Bill, including the risks around the failure to reform the funding of social care?
Earl Howe
In answer to that characteristically helpful question from my noble friend, the department will put in place thorough programme-management arrangements as it takes forward the draft care and support Bill and plans for its implementation. That will include monitoring and assessing risks as they arise, to ensure smooth passage through to implementation.
Lord Peston
My Lords, I repeat what I said last time: it really is about time that the Liberal Democrats recognised that they are part of the government side. Everyone is getting quite fed up with this demand to be treated separately.
Is it not trivially obvious that all decision-making involves risks and therefore the Government’s refusal to publish this register would cause a reasonable person outside to come to the conclusion, much as the Minister might dislike this, that the Government really are trying to hide something that was damaging to them?
Earl Howe
My Lords, I cannot answer for those who see something suspicious in what the Government are doing. All I can say is that we are absolutely clear that the circumstances in this case were exceptional. The FOI request from Mr Healey was made at a particularly sensitive time when the need for a safe space for civil servants and Ministers was especially high. The Freedom of Information Act was drafted specifically to allow for the ministerial veto. It is not just about the specific content of the risk register; it is also about preserving risk registers in general as frank internal working tools in the interests of good government.
Greater London Authority Act 1999 (Amendment) Order 2012
Earl Howe Excerpts(12 years, 9 months ago)
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Health Transition Risk Register
Earl Howe Excerpts(12 years, 10 months ago)
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The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
Mr Speaker, I shall now repeat a Statement made in another place earlier today by my right honourable friend the Secretary of State for Health on the subject of risk registers. The Statement is as follows:
“Mr Speaker, with permission, I would like to make a Statement on the publication of the Department of Health’s strategic and transition risk registers check.
In November 2010, the right honourable Member for Wentworth and Dearne submitted a freedom of information request, asking for the publication of the transition risk register relating to the planned Health and Social Care Bill. A similar request by Nic Cecil, a journalist with the Evening Standard, for the publication of the Department of Health’s strategic risk register, followed in February 2011.
The Government refused both requests on the grounds that the risk registers related to the formulation and development of policy and, as set out in the Freedom of Information Act 2000, were not required to be published. Appeals were then made by the applicants to the Information Commissioner. In both instances, the Information Commissioner ruled against the Government, arguing that the balance of the public interest lay in public disclosure. The Government’s view, to the contrary, is that the public interest is best served in this instance by officials and Ministers being able privately to consider such issues, including any risks. We therefore appealed the decision of the Information Commissioner, under the terms of the Freedom of Information Act, to the First-tier Tribunal. The tribunal was asked to consider whether the Information Commissioner was correct to find that, on balance, the public interest required disclosure of the risk registers.
On 5 April, the tribunal made public the reasons for its decision. For the department’s strategic risk register, it found in favour of the Government and so did not order its disclosure, but it came to the opposite conclusion with regard to the transition risk register. I have carefully considered the tribunal’s decision and have discussed it thoroughly with Cabinet colleagues. Following these discussions, I have decided to exercise the ministerial veto, as allowed by the Freedom of Information Act, in relation to the disclosure of the transition risk register. This decision represents the view of the Cabinet.
I have decided to veto, rather than appeal, the decision to the Upper-tier Tribunal, because the disagreement is on where the balance of the public interest lies and is a matter of principle and not a matter of law, as would be the focus of any further appeal. I recognise that this is an exceptional step. It is not one that is taken lightly.
There is no doubt that reform of the NHS has attracted huge public interest. But my decision to veto, while an exceptional case, is also a matter of wider principle and not just about the specific content of the transition risk register. In all departments, Ministers are required to balance the public interest in terms of disclosure with the need properly to consider complex areas of public policy. Good government demands that the analysis and management of risk is thorough and robust, whichever party is in power.
It is an essential aspect of good government, in the formulation and development of policy, that officials have a ‘safe space’ within which to formulate sensitive advice to Ministers, and that they feel free to use direct language and make frank assessments—and that the Government should, in exceptional circumstances, have the ability to reserve such privacy absolutely.
As the right honourable Member for Blackburn said in his evidence to the Justice Select Committee only last month, on 17 April:
‘There has to be a space in which decision makers can think thoughts without the risk of disclosure, and not only of disclosure at the time, but of disclosure afterwards’.
He also said there have been,
‘some rather extraordinary decisions by the Freedom of Information Tribunal, in which they suggested that it’—
by which he meant the exemption—
‘can apply only while policy was in the process of development but not at any time thereafter. That is crazy and it is not remotely what was intended’.
The Freedom of Information Act was drafted specifically to allow for a safe space for the development of policy, and I have acted throughout in strict accordance with the provisions of the Act.
The risk assessment process, carried out by civil servants and detailed in these registers, is an integral part of the formulation and development of government policy. It is strongly in the public interest that this process be as effective as possible. At the time the request for the transition risk register was made, many aspects of the policy were still at an early stage of their development. The Command Paper responding to the consultation had not been published. The Bill had not been published. It is therefore incorrect to say that the transition risk register does not relate to the development of policy as it fed, and continues to feed, directly into advice given to Ministers.
The Bill may have become an Act in March of this year but we are still in the process of policy development at the next level of detail. The value of risk registers is directly linked to the form and manner in which they are expressed, with the use of direct language. They do not, however, show the benefits of a policy. They are not, as impact assessments are, intended to reflect considered calculations of both costs and benefits. They are simply about identifying possible risks, in order to stimulate action to mitigate them.
If such registers are disclosed at sensitive times in relation to sensitive issues—as would have been the case here—it is highly likely that they would have been open to misinterpretation and misuse. The impact of this would be that future risk registers become anodyne documents of little use. Potential risks would be more likely to develop without adequate mitigation. That would be detrimental to good government and very much against the public interest.
Reflecting this, a detailed statement of reasons for my decision to exercise the ministerial veto in this case has been laid before Parliament. This decision to veto the disclosure of the register is not in any way a criticism of the Freedom of Information Act. The Act always envisioned that there would be times when the Government would need to protect the process of policy development, and this is one of those times. The Government’s right to make just such a veto is written into and is a proper use of the Act.
We have always been as open as possible about the risks and issues engaged in the modernisation of the NHS. First, there was the full public consultation, then the thorough examination by the NHS Future Forum, and the 50 days of detailed debate in both Houses, in addition to the detailed risks published in the impact assessment. Very few pieces of legislation have ever received this degree of public and parliamentary scrutiny. And on Tuesday, I went further and published a separate document that includes the risk areas covered in the transition risk register. This document also includes the actions taken to mitigate those risk areas. I have also published a scheme for publication, which sets out our proposals for reviewing and releasing material relating to the transition programme in future. Both of these documents are available in the Library and on the Department of Health’s website. These documents further confirm that the purpose of the veto was not in any sense to restrict public access to relevant information. It is to establish that publication of the risk register in December 2010 would have been contrary to the public interest.
This Government, more than any other before them, are committed to openness and transparency. Across government we publish business plans, departmental staffing and salaries, full details of departmental contracts and summaries of departmental board meetings. In the NHS, we have published more information about services than was ever previously the case—information that is not only shining a light on poor performance, but actually helping to root it out.
We now publish the NHS Atlas of Variation, exposing the variations in outcomes across the country. We have published data on mixed-sex accommodation, leading to a dramatic 95% fall in breaches. We have invested in new information collections—on A&E performance, on ambulance performance, and on clinical audits.
The decision to veto is about long-term principle and good government, not about limiting in any way scrutiny of NHS reform. Information relating to much of the content of the risk registers is now in the public domain. However, the important principle of the right not to publish has been maintained. I commend this Statement to the House”.
My Lords, that concludes the Statement.
Earl Howe
My Lords, I begin by welcoming the noble Lord, Lord Hunt of Kings Heath, to his new responsibilities with the health portfolio. It is very nice to see him in that post but I pay tribute to his predecessor, the noble Baroness, Lady Thornton, whom I think we would all agree fulfilled the expectations and requirements of her office with great distinction.
First, perhaps I may make a very emphatic statement. The use of the veto by my right honourable friend was not in any way an act that indicated political embarrassment. The reasons for the use of the veto were those that I read out in the Statement. Furthermore, the noble Lord’s point that this represents a fundamental change of policy is quite invalid. As he knows, the veto was used by the previous Government in matters of cross-government importance. In this instance, the Cabinet considered that the principle of “safe space” for civil servants was a matter of cross-government importance. Had it not taken that view, my right honourable friend would not have been able to exercise the veto.
The previous Government took a very similar stance in relation to risk registers. Indeed, they refused to release the Department of Health’s strategic risk registers in response to three requests under the Freedom of Information Act. Therefore, I suggest to the noble Lord that the position adopted by the Government of whom he was a member was not at all dissimilar to the one that we have taken.
The noble Lord asked why the Government consider the current circumstances to be exceptional. He himself read out a section of the tribunal’s reasons which uses the word “exceptional”. The tribunal and indeed the Information Commissioner regard this case as exceptional, as do we. It is important for me to say that the reasons why those views are taken may be different in each case. Nevertheless, both sides classified this as an exceptional matter. From our point of view, it is exceptional not only because these were highly sensitive issues for which a request for disclosure was made at a very sensitive time—namely, when policy was still in the process of formulation—but because of the wider considerations that I mentioned that run across government. For those reasons, above all, we believe that this is an exceptional case.
It is not true that the Government have said that the transition risk register will never be published. All documents, as long as they form part of the national archive, are published in the end but, quite apart from that, we have undertaken to review at regular intervals the sensitivity of this document and to judge whether the current circumstances still pertain. That is right and proper. It is very interesting that over the past few months my department has received no fewer than 546 requests for release of the transition risk register. I think that that is an indication of what departments would have in store for them had the veto not been exercised. I repeat that it must be possible for civil servants and Ministers to have private discussions without the fear that literally every week, or even more frequently, the public would wish to be told the exact nature of those conversations.
Do we consider the tribunal’s decision to be reasonable? I will not criticise it on grounds of reason but we fundamentally take issue with its conclusions. We believe that the balance of public interest most definitely lies in non-disclosure in this case. It is interesting that the noble Lord has given the House to understand that the Government are not keeping a close eye on the performance of the NHS. Of course, we are doing that. Indeed, as I hope the noble Lord knows, the performance of the NHS has not only been maintained since the 2010 election; in many respects it has improved. We have made efficiency savings through the Nicholson challenge. We have maintained financial control and low waiting times for elective treatment. The transition is being managed very effectively. I say that with great tribute to those in the National Health Service who have had a considerable burden of work to undertake to ensure that these changes take place in a structured way. It is proceeding well. The noble Lord failed to acknowledge that the NHS is basically in very good heart indeed.
I hope that that answers the noble Lord’s questions. I know that he will come back to this subject, perhaps even next week, but I do believe that the Government’s decision is the right one and, indeed, the only one.
Lord Falconer of Thoroton
My Lords, whether this is a discreditable attempt to cover up something that is embarrassing for the Government, I do not know; that is for others to decide. The Statement represents quite a significant change in the Government’s position towards the use of the veto. Everybody in this House would agree with the noble Earl that there needs to be a safe space in which policy is formulated. Safe space means that you can talk to your civil servants, they can talk to you, and it will not be disclosed. That was fully reflected in the Freedom of Information Act, which allowed for that safe space. Again, as the noble Earl rightly says, there is a balance to be struck between preserving that safe space and the interests of openness.
The importance of the Freedom of Information Act was that, instead of it being decided by the Government or officials, it would be decided in accordance with the law and enforced within the courts. I understood the noble Earl to say that the Government have no complaint with the application of the law by the First-tier Tribunal and that is why they are not appealing. The position, therefore, is that the law was properly applied by the tribunal and the statute said that it would be the courts that determined where the limits were to be drawn. Everybody recognised that, in very exceptional circumstances, the veto would be used. Ministers at the time referred to such circumstances as, for example, when an informer would be inadvertently named if there was disclosure or if our foreign position would be damaged in a way that people could not work out. What has happened here—the noble Earl was frank about this—is that the Government simply disagree with the courts about where the balance should be struck. What does the noble Earl feel that that says about the Government’s view of the rule of law?
Earl Howe
My Lords, the law governing the release of government documents is the Freedom of Information Act 2000. The Act specifically recognises that the Government are entitled to consider all aspects of policy formulation in private. It provides an exemption to allow that, but it also allows Ministers to exercise a veto on the release of information if they have reasonable grounds for doing so. We believe that we do have reasonable grounds for doing so.
Lord Mawhinney
My Lords, will my noble friend accept that, in trying to find a balance between disclosure and transparency on the one hand and long-term good governance on the other, he has made the right judgment? Will he accept that good governance cannot be traduced or undermined in any way because it is at the very heart of the legitimacy and credibility of what happens here and in another place? Will he accept, finally, from a noble friend, who was occasionally—only occasionally—a constructively critical friend during the passage of the Health and Social Care Bill that the openness with which he handled that Bill will add credence to the judgment that he has announced today?
Earl Howe
I can do little but thank my noble friend for his kind remarks. Indeed, if I may say so, during the passage of the Health and Social Care Bill, I always attempted to be as open as I possibly could with the House on all the matters that we debated. I think that that resulted in a much better Bill. I hesitate to do this, but it is instructive to look at the evidence given to the Justice Select Committee in another place last month by Jack Straw. He put the case that we are making in very graphic terms with which I agree. He said:
“If you talk generally about risk registers, it has to be possible for officials to say to Ministers that there are these risks without these going public. Given the assiduity of the British press, if you publish a raw risk register without any more information, you will set all sorts of hares running, but the document was not designed or prepared in that way. You have to say, ‘We think that we could be at risk here. We think we could be at risk there. Have you thought about this?’ In my view, that sort of information must be protected”.
I could not have put it better.
Lord Harries of Pentregarth
My Lords, I thank the Minister very much for his helpful Statement. The whole House agrees totally with the noble and learned Lord, Lord Falconer, that officials must have their private space to make their frank comments. Does the Minister agree that you have to draw a distinction between those frank comments and the risk register itself, which is something of a more formal document? The risk registers that I have seen lay out formally whether the risk is high, medium or low, and you could publish the risk register without at the same time publishing any frank advice that was given. Because the risk register has not been published, does that not itself give rise to possible misrepresentations? There is always the possibility of misrepresentation. If it is published it will possibly be misrepresented; if it is not published, it could also be misrepresented. Finally, I ask for further clarification about the noble Earl’s remark that if the risk register had been published that would set a precedent for the future so that advice would all be anodyne. That was the word the Minister used. Would not the opposite be the case? Officials who were trying to make their judgment about possible risks would be more likely to exaggerate the risks. If the risk register was published and it was discovered that proper risks had not been identified, those officials would be held responsible for not identifying those risks and weighing them with due seriousness. I was slightly surprised by the use of the word “anodyne”.
Earl Howe
If you talk to any Permanent Secretary in any department I guarantee that they would take issue with the noble and right reverend Lord on his final point. It is firmly the view of departments across government that if civil servants believe that what they say will reach the public domain immediately, they will not wish to embarrass either themselves or their Ministers by expressing their concerns in graphic language. I understand the noble and right reverend Lord’s point, but I disagree with it for that reason.
He made a distinction between certain parts of the risk register—between the nature of the risks described, their ratings and so on. He was perfectly right to make that distinction. We reviewed the content of the transition risk register following the tribunal’s decision and decided that it would be possible to publish material taken from the register to inform both Houses, and members of the public, about as much of the content of the register as we could. That is why the document that we published on Tuesday, which I commend to the noble and right reverend Lord, included key information relating to the risk areas in the register, an explanation of why we considered that to be a material factor, and the actions taken to mitigate those risk areas. We were as candid as we could be, given the decision of principle that I outlined.
Lord Campbell-Savours
My Lords, perhaps I may take a stage further the point of the noble and right reverend Lord, Lord Harries. Is there not a converse argument that where civil servants feel strongly, one way or another, about whether there is a risk inherent in a policy initiative, there should be a mechanism whereby that view can enter the public domain so that the public should be informed of strong divisions of opinion, even between civil servants? Is not the risk register on this Bill precisely one of those areas where strong views may have prevailed?
Earl Howe
The noble Lord may correct me, but he seems to be advocating a world where all disagreements in private between civil servants become public property. With respect, I disagree with that point of view, which would be the consequence of his position. Section 35 of the Freedom of Information Act explicitly allows for those disagreements to be kept private. There is no doubt about that. Both the Information Commissioner and the tribunal agreed that Section 35 was engaged in this instance, and was there for a reason.
There are several other reasons why we felt that there was a need to withhold information. The need for candour was one. I referred to the risk that publication of the content of the risk register would distort rather than enhance public debate. Another reason was that disclosure could in some instances—including in this case—increase the likelihood of some of the risks happening. Some risks in the register were theoretical rather than real. If people had thought that the risk was real, they might have taken action that would have made the risk a self-fulfilling prophecy. Nobody wanted that.
Lord Walton of Detchant
My Lords, having been heavily involved in debates on the Health and Social Care Bill—a Bill of extraordinary complexity and vast in its range—I find it very easy to see how civil servants involved in the handling of the Bill might well have been able to identify substantial potential perceived risks of proceeding with it at earlier stages of its development. However, as the noble Earl said, it is perfectly clear, first, that the Government had the right to keep information of such a nature confidential, even though at the end of the day it appeared that they were flouting a legal decision in order to do so. It was absolutely right that the Secretary of State had the right to impose a veto. In the circumstances, it was absolutely acceptable. Therefore, it is right that the matter should proceed as the noble Earl said.
However, will he not express just a little surprise, in the light of the massive clamour by the public and professional bodies during the passage of the Bill—which has all settled down now that the Bill is an Act—that there are those who perceive in this government decision the possibility of a slightly Machiavellian desire to suppress information that could in the ultimate be somewhat embarrassing? Having said that, I believe that the decision was obviously correct in the circumstances.
Earl Howe
I am very grateful to the noble Lord for his support—as I was throughout the passage of the Health and Social Care Bill. It would be wrong not to acknowledge that, to the outside world, the decision to employ the veto looks suspicious. Of course, Governments of whatever party are the subject of suspicion. I am sure that it is well known to noble Lords who served in government that there is very little one can do to dispel impressions of that kind, other than to stand up in Parliament and in public to tell the world what is true. I can only say to the noble Lord that I recognise that those who might take issue with the Government’s decision are entitled to a measure of disappointment, considering that we proclaimed from the rooftops our commitment to transparency. We believe in transparency, and this is apparently an instance where we are not doing what we said we would do. However, there are overriding reasons why it was important for us to take this position.
Lord Armstrong of Ilminster
My Lords, I support my noble friend Lord Walton. As I understand it, the Government’s position on the disclosure of risk registers is a matter of principle. It is clearly crucial that an assessment of risk or a risk register should be comprehensive and candid if it is to be of any use. If it is not comprehensive and candid, and if those who compile it are prevented or discouraged from making it comprehensive and candid by having to look over their shoulders in the fear of premature publication, the risk register’s value will be reduced—and there will be a further risk that the Minister will say later, “Why wasn’t I told?”.
Earl Howe
The noble Lord, Lord Armstrong, with his immense experience at the top of government, is very familiar with decisions of this nature, and I am grateful for what he said. Perhaps I should make it clear that the decision the Government took was not a blanket decision about all risk registers. The law requires the Government to look at each case on its merits. We believe that a risk register of this particularly sensitive kind is an exceptional matter. The noble Lord, Lord Hunt, pointed out instances of risk registers that might be less sensitive. He mentioned the one relating to Heathrow’s extension. I suggest that that was a less sensitive case. The matter was clearly on a smaller scale; it was less political; and it became an issue after the project had been closed down. Therefore, the release of the register was perhaps not altogether a surprising decision by the then Government.
Lord Marks of Henley-on-Thames
My Lords, I apologise to the House for not being in my place when my noble friend read the Statement. However, I read the Secretary of State’s Statement in full. My noble friend mentioned that the previous Administration refused freedom of information requests for disclosure of risk registers on three occasions. Will he tell the House how many times risk register disclosure has been refused by both this and the previous Administration? Does he know that in Wales the Labour Administration have also refused disclosure of a Department of Health risk register? Does he discern any difference of approach to the disclosure of risk registers between this and the previous Administration?
Earl Howe
I am grateful to my noble friend. The answer to his final question is no, I do not believe that there is a difference of approach. I do not have data relating to all government departments but, as I said earlier, the previous Administration refused to release the Department of Health’s strategic risk registers in response to three freedom of information requests. Indeed, one of those was responded to by the right honourable gentleman Mr Burnham in language not dissimilar to that which I have used today. A search of my department’s freedom of information database indicates that, since the Act came into force in January 2005, the department has received six specific requests for risk registers. In no case was the request granted. My noble friend also referred to the Welsh example, which is a very interesting one. In April of this year the Labour Assembly Government in Wales refused to disclose a risk register, and it was a health register. The reasons given for withholding that register mirrored exactly those that we are using currently.
Lord Brooke of Alverthorpe
As the legislation focuses so much on GPs, can the noble Earl say whether the risk register made an assessment that there would be increasing delays for patients in getting to see their GPs during the transitional period and that those patients would be put at risk? Given that the Government abandoned the previously set targets for the time limit in which GPs have to see their patients, is he aware that patients in London have faced longer waits to see a GP, let alone the GP of their choice? Is that point covered in the recently published documents in the Library? If not, will he make sure that it is?
Earl Howe
There are two points in answer to that. I am aware that in London, in particular, there is an issue for some patients wishing to see their GP; indeed only two days ago I had a useful conversation with the Royal College of GPs about that very matter. However, that particular issue has nothing to do with the reforms that the Government have just enacted, but relates to the supply of GPs. We have many more GPs than we had 10 years ago. Unfortunately, however, we need more. There is a target every year for recruiting GPs but we have not quite reached that target in the past three years. We need to do something about that. Action is in hand to address the issue that the noble Lord has raised. However, I would impress on the House that it is not a reflection of the reforms. The reforms have only just been enacted, and we are only now just rolling them out.
Health: Clinical Commissioning Groups
Earl Howe Excerpts(12 years, 10 months ago)
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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. In so doing, I remind the House that I am chairman of the Heart of England NHS Foundation Trust.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, in February the NHS Commissioning Board Authority published Towards Establishment which set out general safeguards that clinical commissioning groups (CCGs) should have in place to manage conflicts of interest. More specific guidance outlining safeguards for when CCGs are commissioning services that could be provided by GPs will be published shortly. We expect that both of these will inform the guidance the NHS Commissioning Board must provide for CCGs once it is established.
Lord Hunt of Kings Heath
My Lords, I am grateful to the noble Earl for his response. He will be aware of research published at the end of March which showed 22 clinical commissioning groups where the majority of GPs on the board of those groups actually had a financial interest in companies that are in receipt of NHS funding. Given that decisions on future contracts will fall to clinical commissioning groups, can the noble Earl assure me that those GPs will not take part in any discussions or decisions about future contracts? Will he also acknowledge that the problem arises from the weakness of the corporate governance arrangements, because in some CCGs there will be no one left to make the decision?
Earl Howe
My Lords, I do not accept that. CCGs will be subject to rigorous safeguards that prevent conflicts of interest affecting their commissioning decisions. Each CCG has to maintain registers of interest. They must have a governing body with lay members on it and other non-GP clinicians who will oversee the arrangements for governance. Each CCG must make arrangements set out in their constitution to manage conflicts and potential conflicts of interest. And the NHS Commissioning Board, as part of its overseeing role, will be responsible for making sure that every CCG has arrangements to manage potential conflicts of interest. So we do not see these problems arising in practice.
Baroness Gould of Potternewton
I should like to probe the Minister a little further in response to that. While he says that CCGs have to have a register of interest, how are they going to be monitored to make sure that actually happens? How will the register be kept up to date so that conflicts of interest cannot arise in the future? And what actions might be taken when a conflict of interest is proved?
Earl Howe
My Lords, the watchword in this context is transparency in that the governing body of a clinical commissioning group will usually meet in public. There will be provision for the health and well-being board of a local authority to challenge decisions made by the clinical commissioning group in its annual commissioning plans. In general, if anyone has a concern about a conflict of interest, or indeed a perceived one, it is open to them to refer the matter, first to the CCG and, secondly, to the NHS Commissioning Board itself.
Baroness Barker
My Lords, have the BMA and the royal colleges been involved in drawing up the guidance? And if a member of a CCG believes that there is no conflict of interest but a member of the public believes that there is, what mechanisms are available to resolve such a dispute?
Earl Howe
My Lords, we are involving all relevant stakeholders in drawing up the precise rules that we expect the NHS Commissioning Board to follow. As I mentioned in my initial Answer, part of that has resulted in guidance that has already been issued and the rest will follow shortly. As regards the second part of my noble friend’s question, the key is for CCGs to make arrangements to make sure that actual and potential conflicts of interest do not affect the integrity of the group’s decision-making process and do not appear to do so. Therefore, the CCG must not only be fair and open and honest, it must also be seen to be all those things, because a perceived conflict of interest which is not managed appropriately would be as damaging to the reputation of a CCG as an actual conflict.
Lord Clark of Windermere
My Lords, would the CCG’s workings and operations be subject to the Freedom of Information Act?
Lord Dykes
My Lords, will the Minister reassure the House that the nationality rule will be maintained to make sure that British people are on the boards and that American advisers do not get too heavily involved?
Earl Howe
As my noble friend may remember from our debates on the Health and Social Care Bill, we have undertaken to ensure that no member of a commissioning support organisation may also be a member of the governing body of a CCG. Having said which, it is important that CCGs have the freedom to take advice on back-office functions and other matters that will assist them in their clinical decisions.
Baroness Howarth of Breckland
My Lords, I have spent a great deal of time working in governance with professionals from many different groupings and, however experienced professionals are in their own trade, they are not always very clear about governance issues. This is often true of trustees in voluntary organisations as well as in clinical governance in the health service. What plans does the Minister have for training and advice to the new bodies in order to ensure that people who often believe that they know the answers really do know them?
Earl Howe
The noble Baroness makes an extremely important point, which is why we have laid great stress on training and ensuring that the NHS Commissioning Board will develop appropriate guidance on procurement, avoiding conflicts of interests and avoiding unfair competition entering the arena.
Lord Foulkes of Cumnock
My Lords, what is the estimated extra cost of all this extra bureaucracy?
Health and Social Care Act 2012
Earl Howe Excerpts(12 years, 10 months ago)
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Baroness Deech
To ask Her Majesty’s Government whether they have any plans for post-legislative scrutiny of the Health and Social Care Act 2012.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, all government Bills receive post-legislative scrutiny within five years of receiving Royal Assent. However, I can reaffirm the commitment that I made at the Second Reading and Committee stages of the passage of the Health and Social Care Bill. Although five years would normally elapse prior to the Department of Health undertaking post-legislative scrutiny of a Bill, we will bring that forward to three years for the Health and Social Care Act 2012.
Baroness Deech
My Lords, I am grateful to the Minister for his reply. However, does he agree that the reputation of this House rests largely on its ability to scrutinise, and that there is still insufficient capacity for this House, not a department, to carry out post-legislative scrutiny? Does he further agree that the Health and Social Care Act is very different in the end from what was proposed? It aroused huge concern and must be a number one candidate for monitoring, not necessarily by the department but by this House to ensure the appearance of total objectivity.
Earl Howe
My Lords, I am in tune with the sentiments that the noble Baroness has expressed. I am sure that she will be in no doubt that my department will be monitoring the implementation of the Act very closely. Of course Ministers will continue to provide information to Parliament—for example in response to Questions and in Select Committees and, indeed, in debates if noble Lords put down Motions. I am sure that we will provide a lot of information both on the implementation of the Act and on health and social care more widely in the months and years ahead.
Baroness McIntosh of Hudnall
I wonder if the noble Earl can explain a remark that he made early in his original Answer to the noble Baroness, Lady Deech, when he said that all government Bills are subject to post-legislative scrutiny within five years. I am sure that that is true in some way, but not in a way that I personally understand, and I am sure that it is not entirely clear to the House in what way such scrutiny is carried out. It certainly is not what is commonly meant by post-legislative scrutiny—that all Bills should be subject to it.
Earl Howe
My Lords, my understanding is that formal post-legislative scrutiny is a relatively new invention. It came in under the previous Administration in, I think, 2008. So until now there have been very few if any—there may have been one or two, a handful—formal post-legislative scrutiny processes. But we will, of course, see this as a more regular feature going forward.
Lord Mawhinney
My Lords, my noble friend has just reconfirmed that post-legislative scrutiny will take place in three years—that puts it in 2015. Can he tell your Lordships’ House whether the Government have a policy to have that scrutiny before or after the general election which is alleged to be taking place that year?
Lord Campbell-Savours
By whom is this post-legislative scrutiny on a five-year basis being conducted?
Earl Howe
My Lords, it will be conducted by the Health Select Committee of another place. The process is that the Department of Health will submit a memorandum to the Health Select Committee and that memorandum will include a preliminary assessment of how the Act has worked out in practice relative to the objectives and benchmarks identified during the passage of the Bill.
Lord Patel
My Lords, the noble Earl said in response to the Question of the noble Baroness, Lady Deech, that in the interim period the department will be undertaking scrutiny of the work of the bodies set up. Can he tell the House how the results of that scrutiny will be reported to Parliament?
Earl Howe
My Lords, the performance of the health service will be very visible as we go along: we will have the NHS Commissioning Board producing its annual report; each clinical commissioning group will be publishing an annual report; directors of public health must produce an annual report; the Secretary of State has to report annually on the overall performance of the health service; and HealthWatch England has to publish an annual report. So there will be no shortage of transparency along the way.
Baroness Jolly
My Lords, as for the Health and Social Care Act, scrutiny was, of course, done by this House. However, there is still more to be done, because there is quite a lot of secondary legislation still to come down the track. Can the Minister give the House some indication of how many pieces of secondary legislation are still to come, when they might be introduced and what areas they will cover?
Earl Howe
My Lords, I cannot yet give my noble friend a precise number, but before the House breaks up in the summer we hope to lay a number of statutory instruments. Some will come into force this October, others are designed to come into force next April, but we will of course be consulting, where appropriate, on all of those and I shall be happy to give the House further information when I have it.
Baroness Masham of Ilton
My Lords, does the Minister agree that HealthWatch has been left in limbo? Would he agree to a fast-track legislative scrutiny?
Earl Howe
I do not agree that HealthWatch has been left in limbo; in fact, only this morning I was attending a round table of pathfinder local healthwatches and witnessing for myself the tremendous energy and enthusiasm that they were devoting to HealthWatch. So the short answer to the noble Baroness is no, I think the process as regards HealthWatch is very much on track.
Baroness Thornton
My Lords, my question follows on very nicely from that of the noble Baroness, Lady Masham, because “No decision about me without me” was the Government’s mantra when they first introduced the White Paper and the Bill. I would like to know not only how soon that mantra might become a reality but also, in terms of post-legislative scrutiny, how the Minister thinks that post-legislative scrutiny might be carried out to allow independent scrutiny given that the two bodies that will essentially control the funding for the patients’ voice, HealthWatch, are the Care Quality Commission and local government—in other words, government bodies?
Earl Howe
My Lords, we should not forget the capacity of Parliament, particularly the Health Select Committee in another place, to conduct scrutiny whenever it chooses. Indeed, your Lordships' House could if it wished configure itself in a way to conduct scrutiny of any aspect of the Health and Social Care Act.
Health: Pancreatic Cancer
Earl Howe Excerpts(12 years, 10 months ago)
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The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, I thank the noble Lord, Lord Aberdare, for tabling today’s debate. I am aware that this is a very important issue for him and for countless other people and families across the country. The coalition Government’s cancer outcome strategy was published in January last year. It sets out how we will make sure that people with any form of cancer get care and outcomes as good as anywhere in the world, whoever they are and wherever in the country they live.
Probably the most important factor affecting the survival rates of any cancer is the speed with which it is diagnosed—I think all noble Lords mentioned that issue. We have addressed that in the cancer outcome strategy, and that is why we are supporting the strategy with more than £450 million over four years. This funding is part of more than £750 million of additional funding for cancer over the spending review period to support our ambitions for cancer care. On top of that, or course, a range of support is already available to help GPs assess when it is appropriate to refer patients for investigations for suspected cancer, such as a NICE referral guideline. However, we can do more to support them.
Cancer Research UK and the National Cancer Action Team are working together to develop a new GP engagement programme for the coming years that will allow them to increase awareness and improve training. This will all help diagnose cancer cases earlier. I can say to my noble friend Lord Selborne that Professor Willie Hamilton is currently developing a risk assessment tool to support GPs in the investigation of pancreatic cancer.
The noble Lord, Lord Aberdare, asked if the National Awareness and Early Diagnosis Initiative could do some specific work on pancreatic cancer. Our cancer outcome strategy says that we will work with a number of charities linked with rarer cancers. There have already been meetings with several, including Pancreatic Cancer UK and Pancreatic Cancer Action, to see what more might be done to diagnose these cancers earlier. The Government’s future work on pancreatic cancer will be informed by what we learn from those charities.
I am aware also that Pancreatic Cancer UK is hosting an early diagnosis workshop in June. The National Cancer Director, Professor Sir Mike Richards, my honourable friend the Minister of State for Care Services and officials from NAEDI will be attending. The workshop will be looking at practical steps that can be taken to help GPs and secondary care health professionals diagnose pancreatic cancer at the earliest stage possible. We look forward to receiving the findings of the workshop.
My noble friend Lord Sharkey and the noble Baroness, Lady Warwick, talked about the possibility of awareness campaigns. Decisions on campaign work in this financial year will be based on the evidence from the pilots that we have run regionally in 2011-12. To further address the need to improve awareness of rarer cancers such as pancreatic cancer, consideration is being given to piloting a symptom-based awareness campaign based on covering multiple cancers. We are talking with stakeholders, including rarer cancer charities, about that work.
Once pancreatic cancer is diagnosed, patients need to have access to appropriate and consistent treatment, delivered to a high standard, across the board. I am aware that there are variations in survival rates across the country and across cancer networks. Pancreatic Cancer UK’s Study for Survival 2011 confirmed that. Quite simply, it is not good enough and it must change. That is why we are providing data to help the National Health Service tackle regional variations. For example, the National Cancer Intelligence Network has made available data collections on survival rates and surgical resection rates across a range of cancers, including pancreatic cancer. These data will allow providers and commissioners to benchmark their services and outcomes against one another and to identify where improvements need to be made. They will then be able to channel resources into improving services in the areas that need to be brought up to an acceptable standard.
The noble Lord asked whether we would develop an audit of pancreatic service and care. The National Advisory Group on Clinical Audit and Enquiries recently considered a proposal for an audit of pancreatic cancer as part of the National Clinical Audit and Patient Outcomes Programme. I understand that the proposal was not recommended for inclusion in the national programme. However, the advisory group suggested that elements of the proposal could be taken forward as part of the existing bowel cancer audit when this is retendered in 2012. I will ensure that this option is considered when the department reviews the existing arrangements for the bowel cancer audit later this year.
In Improving Outcomes: A Strategy for Cancer—First Annual Report, published in December last year, we said that continuing to provide the NHS with benchmarked data,
“as a lever for improvements”,
is a priority for 2012.
Of course, a hugely important element in all this is the patient experience, to which the noble Baroness, Lady Warwick, referred. In December 2010, we published the report of the 2010 cancer patient experience survey, which recorded the views of more than 67,000 cancer patients across 158 trusts. The survey showed that 90 per cent of patients with an upper gastrointestinal cancer, which includes pancreatic cancer, reported having a clinical nurse specialist. The survey also showed that cancer patients who had support from a clinical nurse specialist had a better overall experience of care. We expect the National Health Service to consider this in developing its policies to improve patient experience. A 2011 survey is now in progress. We will be looking closely at the results of the survey to see where improvements have been made and where more needs to be done.
Research featured large in this debate, including in the speeches of the noble Lord, Lord Aberdare, my noble friends Lord St John of Bletso and Lord Sharkey, the noble Lord, Lord Kakkar, the noble Baroness, Lady Thornton, and others. The National Institute for Health Research is making a significant contribution to the search for scientific breakthroughs in pancreatic cancer. The institute’s clinical research network is currently hosting 17 studies of pancreatic cancer and is recruiting patients as we speak. In August 2011, the Government announced £6.5 million of funding for the Liverpool biomedical research unit for gastrointestinal disease. About half this investment will support pancreatic cancer research. The NIHR clinical research network, as mentioned by the noble Lord, Lord Kakkar, is currently hosting 17 trials and other well designed studies in pancreatic cancer that are recruiting patients. In 2010-11, a total of 687 patients were recruited to pancreatic cancer studies hosted by the CRN. The National Cancer Research Institute’s upper-gastrointestinal clinical studies group is dedicated to developing a portfolio of research studies in pancreatic cancer, and has a pancreatic cancer subgroup, which has developed a number of internationally run trials. That is a cause for some encouragement.
The noble Baroness, Lady Thornton, referred to the research involving processed meat. She is right; Swedish research published in the British Journal of Cancer in January 2012 said that two rashers of bacon or one sausage a day increases the risk of pancreatic cancer by 20 per cent. There is also a link with bowel cancer. The department urges everybody to have a balanced diet. As with other forms of cancer, higher consumption of fruit and vegetables seems to be protective, but I will write to the noble Baroness if I have any further information on that subject.
The noble Lord, Lord Aberdare, referred to new cancer drugs. Our priority is to ensure that cancer patients get the drugs that their doctors believe are best for them. We have delivered on our promise in the coalition agreement for a cancer drugs fund, with £650 million, all told, devoted to it. This funding has so far helped more than 12,500 cancer patients in England to access the cancer drugs that their clinicians recommend. We have listened to feedback on the first year of the fund’s operation, and today are publishing new guidance on the cancer drugs fund, which will further speed up access for patients. The new guidance makes it clear that patients will not normally need to go through the primary care trust funding processes prior to applying to the fund. In most cases, it will mean that patients are able to access drugs within a matter of days of an application being made to the fund. In the longer term, our intention is to introduce a system of value-based pricing for new drugs, with the aim of enabling patients to have greater access to effective and innovative new medicines. The whole premise of value-based pricing is to ensure that the price of a drug will be linked much more closely to its assessed value. It will bring the price that the NHS pays more into line with the value that a new medicine delivers.
My noble friend Lady Jolly asked about that. She also asked about mechanisms in the Health and Social Care Act that might assist cancer patients. The main mechanism is the outcomes framework, which will of course pervade everything that the NHS Commissioning Board does in the way of commissioning guidance, and will inform the way that the commissioning outcomes framework is developed. She also asked about engagement with the royal colleges. Ministers are currently meeting representatives from the royal colleges on education and training—I do not think on pancreatic cancer specifically but certainly on the training of doctors.
The noble Baroness, Lady Morgan, asked me a number of questions. The NHS outcomes framework— I pay tribute to the work of the All-Party Group on Cancer over a number of years—will be updated annually to ensure that the most appropriate measures are used for comprehensiveness, while recognising that we need to keep a broad continuity of indicators year on year. The refreshed NHS outcomes framework 2013-14 will be published alongside the mandate in the autumn. To support the ongoing development of the framework, we are in the process of establishing an independent technical advisory group that will provide advice to the department and the board about current indicators and proposals for new ones.
The noble Baroness asked about the national cancer patient experience survey. With the leave of the Committee, as there is a small amount of time left I propose to utilise it, unless there are any objections. In the first NHS outcomes framework we explained that the approach to Domain 4, which is patient experience, was evolutionary and the initial set of improvement areas for this domain was drawn from existing nationally co-ordinated surveys or from surveys that would be available in 2011-12. Collectively, the improvement areas aim to achieve wide coverage of the interactions that people have with the NHS and focus on different features of patient-centred care. Future work will involve refining surveys and developing new questions and measures to allow existing indicators to be replaced over time as necessary.
With regard to cancer networks, we have already made clear that there is a role for clinical networks such as cancer networks in the reformed NHS, as a place where clinicians from different sectors come together to improve the quality of care across integrated pathways, and the cancer networks are a clear example of how that way of working delivers better quality. That is why the Secretary of State announced last May that we would continue to fund cancer networks this year and that, subject to legislation, the Commissioning Board will support strengthened cancer networks.
The noble Lord, Lord St John of Bletso, asked about quality standards. There is no intention to produce a quality standard for pancreatic cancer as such, but in future there will continue to be flexibility in the library of quality standards to take account of new and emerging priorities, should such need arise.
Our ultimate goal is to improve survival rates and the quality of life for those living with all cancers, including pancreatic cancer. There are many challenges to be overcome but they are not insurmountable. Because of the Health and Social Act, clinical commissioning groups will be free to pursue innovative ways of delivering care that bring better results for all patients, including those with pancreatic cancer, and NHS provider organisations will have the operational independence to determine how best to meet the needs of commissioners.
We have set five ambitious but measureable goals: to prevent people from dying prematurely from cancer; to improve the quality of life for people with cancer; to help people recover from episodes of ill health; to improve the experience of care; and to ensure that all patients are treated and cared for in a safe environment. We will continue to deliver on those goals.
Lord Patel
I am not sure if it is in order for me to do this, but I know that whatever the Minister says is taken as gospel, and he quoted a study from Sweden about the association of eating meat with pancreatic cancer. I do not know about the quality of that study, but it sounds surprising that that amount of meat-eating increases the risk of pancreatic cancer by 20 per cent. I presume that he was talking about relative risk, not absolute risk.
The Deputy Chairman of Committees (Lord Geddes)
The Grand Committee stands adjourned until 4.30 pm, or indeed there may be a Division during that time, in which case it will be 10 minutes from the time when the Division is called.
Autism Act 2009
Earl Howe Excerpts(12 years, 11 months ago)
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The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, I thank my noble friend for tabling this Question and pay tribute to the way in which she has championed the cause of those with autism in its various forms over many years. This debate has done full justice to the key issues facing us at the moment. It has also generated a great many questions and I shall do my best to answer as many as I can but I shall inevitably need to write to noble Lords on some of them.
The Autism Act was a landmark piece of legislation. As my noble friend said, it was the first ever disability-specific law. It led to the development of the adult autism strategy and statutory guidance for local authorities and the NHS. The strategy made it clear that to be a success, it would require long-term cultural change. We need to remember that this is not going to be an overnight process. It also requires action right across the public sector.
Since then, we have had some real successes; for example, the North East Autism Consortium regularly brings together local authority and NHS lead commissioners for autism to share their experiences and to drive forward their priorities, all the while involving people with autism in the process. Personal budgets have begun to make a real difference to people’s lives. They have a degree of flexibility that enables people to be creative about how they spend their money. People can make every penny count and get real value for money.
A central tenet of the autism strategy is that adults with autism should be able to access the same services as everyone else. If someone with autism is being assessed for social care, their autism should be taken into account, regardless of their IQ, and I will turn to that point again in a moment. If they are looking for work, Jobcentre Plus should find suitable positions that are sensitive to their needs. To reap the full potential of the Act, local authorities and the local NHS need to work together and co-operate on planning and training, on the identification, diagnosis and assessment of autism, and on the transition from childhood to adulthood. I will come on to some of those themes in a moment.
While the lead must come from local communities, more still can be done to help at the national level. We recently announced a new children and young people’s health outcomes strategy, which is aimed specifically at developing the life chances of young people. To support this, we have established a children and young people’s forum, under the leadership of Christine Lenehan, chief executive of the Council for Disabled Children and Ian Lewis, medical director at the Alder Hey Children’s NHS Foundation Trust. Last April, we published new tools for local authorities and NHS bodies to support communities with the implementation and monitoring of the strategy and the statutory guidance.
The learning disability public health observatory has been finding out from local authorities just how they are delivering the strategy. The results will be published at the end of the month, enabling people to lobby locally and to challenge where necessary. So far, about nine out of 10 areas say that they have a commissioning plan for services for adults with autism either in place or in development. More than half the local authorities in England have established autism partnership boards to ensure that the views and wishes of people with autism and their carers inform the design, development and commissioning of services at a local level.
While central government can set the framework and work to remove barriers and increase awareness, the real work—the delivery of lasting change—is for professionals, providers, voluntary organisations, service users and carers working together in collaboration. The autism strategy has never advocated a top-down process. It is not about setting targets and milestones. It has always been about empowering local communities to come together and to get things done. It is also about integrating care across the NHS, social care and other local authority services, and putting people with autism at the centre of any plans to improve their own lives and, as much as possible, to put them in control. The new health and well-being boards will be crucial to integration. They will bring together all those with an interest in local health and social care. They will draw up the local needs assessment. Crucially, they will also write the local strategy to meet those needs and be responsible for fulfilling it.
A huge amount of work has taken place over the past couple of years. Consistent pathways for diagnosis are being delivered through the NICE clinical guidance for the diagnosis and management of autism. Newly diagnosed patients are being given appropriate advice and information. Lead professionals have been appointed in most local areas to develop diagnostic services. We now have NICE guidelines covering the diagnosis, referral and management of autism among children and young people. Similar guidelines for adults are out for consultation and are due this summer. The proposed adult autism quality standard has now been referred to NICE and an announcement on further referrals following this engagement exercise will be made shortly.
The noble Lord, Lord Collins, paid tribute to the work of the voluntary sector and, in particular, the National Autistic Society, and I would like to echo what he said. The society is now in its 50th year, and there is no doubt that its lobbying, research, advice, support and services do a huge amount to set the standard for autism services and to drive system reform. I would like to thank it and many other organisations that work to improve the lives of people with autism. Alongside them, we have to thank the parents, carers, teachers and friends of those with autism.
My noble friend Lady Browning asked me specifically about the question of someone’s IQ. The strategy and guidance make it clear that people with autism or Asperger’s syndrome can no longer be refused an assessment or access to support because their IQ is too high and they do not have a learning disability. She is aware of that.
We expect more low-level and preventive services to be developed in response to the autism strategy and statutory guidance as commissioning plans are developed locally and a better understanding of local needs is developed. Given the right support, many more people with autism, particularly those with high-functioning autism or Asperger’s syndrome, will be able to live more independently in the community. Some areas, such as Liverpool and Bristol, have developed multidisciplinary teams that help with diagnosis and post-diagnosis support and their expertise can greatly increase awareness of autism among other services. The NICE guidelines, which will be published this year, will look at the use of these teams in more detail.
A number of noble Lords, including my noble friend, the right reverend Prelate, and the noble Lords, Lord Addington and Lord Collins, spoke about the need to raise awareness and expertise at a local level among front-line professionals. The Department of Health has funded a series of online training resources and booklets to increase awareness and understanding of autism across all public services, costing half a million pounds in total. Working with the Royal Colleges of Nursing, GPs and Psychiatrists, the Social Care Institute for Excellence, the British Psychological Society, Skills for Health and Skills for Care, the NAS and others, a range of quality materials to enable front-line staff to better recognise and respond more effectively to the needs of adults with autism have been produced. We are planning further work with our partner organisations to ensure dissemination and uptake of this material. It is, however, important to emphasise that it is for local health and social care organisations to ensure that professionals involved in providing services have the necessary qualifications, expertise and training for the purposes that are required.
My noble friend referred to local governance structures. Those structures are in place, including the partnership boards. Local JSNAs and autism self-assessments should also provide information for local service users and representative groups to benchmark provision within their localities and identify where there are gaps. A key issue is to explore whether local health and care commissioners and providers are taking forward services in line with Implementing Fulfilling and Rewarding Lives, the statutory guidance which was published in December 2010, and to challenge locally where that is not happening.
The right reverend Prelate referred to self-assessment. He is right that we have asked the learning disabilities public health observatory to collect and collate data from the reports that are coming out of self-assessment. Those will be online by the end of this month. I am confident that this is a step in the right direction. Almost 90 per cent of local authorities have submitted a report, which is encouraging.
Clinical commissioning groups were referred to by the noble Lords, Lord Collins and Lord Touhig, among others. The NHS Commissioning Board will be issuing guidance to the CCGs. That may be for a variety of purposes, including to support improvement of outcomes in the NHS outcomes framework, within which are indicators on long-term conditions and mental illness. However, I am careful not to refer to autism as a mental illness. Health and well-being boards and CCGs will be expected to ensure that they comply with all relevant legislation included in the Autism Act.
I am receiving signals that my time is almost up. I apologise to noble Lords as I have a great deal more material here that I would gladly have used. I just highlight two essential priorities for us. We need to benchmark the services and outcomes for people with autism. We have made a start with this through the self-assessment tool. We need better information to plan and commission services, robust local prevalence data on autism and up-to-date joint strategic needs assessments so that services can be commissioned appropriately. By being clear and transparent at every stage we can hold local authorities, the local NHS and others to account for the quality of the services that they are delivering. As we devolve power down, place far more focus on local leadership and personal control and work to drive up outcomes, it will not be only the statistics that start to look better but also the lives of people with autism.
EUC Report: Healthcare Professionals
Earl Howe Excerpts(12 years, 11 months ago)
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The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, I echo the comments just made by the noble Baroness, Lady Thornton. I, too, am extremely grateful to the noble Baroness, Lady Young, for her work and the work of her sub-committee in undertaking the inquiry that it did and for producing the report which has proved extremely valuable to us. Like the noble Baroness, Lady Young, I welcome the European Commission’s review of the directive on the mutual recognition of professional qualifications. It is a priority for the Government to ensure an appropriate balance between free movement and patient safety in the new directive. I will come on to say something more about that.
To start with, I broadly agree with the findings of the sub-committee’s report. As the Committee’s report highlighted, there have been significant concerns expressed by partners and stakeholders as to the applicability of aspects of the directive and its provisions to health professionals. The proposal published by the European Commission in December contains some welcome amendments that should, if introduced effectively, contribute significantly to tightening the European regulatory framework and improving patient and public safety. The Government’s negotiating position on the new directive has been informed by the sub-committee’s recommendations as well as the views of the devolved Administrations and our partners within the healthcare sector. There are a number of aspects in the proposals where we will seek clarification. I shall come on to those one by one.
First, the noble Baroness referred to information sharing. A key consideration for the Government is supporting the proposed new alert mechanism. As she mentioned, there is a proposal for a proactive alert mechanism for healthcare professionals falling within the sectoral professions—that is, those subject to automatic recognition of their qualification—in Article 56a(1). This looks positive. A different system will apply to healthcare professionals that fall within the general system under Article 56a(2)—the regime applicable for professionals under the general system that do not fall within the scope of the services directive. While this difference is not ideal, it arises from the different legislative bases across the European Union. However, the system should be workable if there is clear guidance from the Commission as to what can be shared and when, and if competent authorities under the general system comply with and take their responsibilities seriously and notify member states as appropriate. Having said that, I believe that there are points of detail we still need to clarify regarding the practicalities of administering the system. Ensuring proactive sharing of information when concerns arise about a healthcare professional is one of our top priorities, and we welcome the proposals in the new directive for the alert mechanism.
The legislative formulation of the proposals for alert mechanisms is complex, because the provisions differ for the sectoral professions. The Commission needs to ensure that all European competent authorities fully understand their obligations. At this point, we require further clarity on the application of the alert mechanisms for the general system and the implications of data protection overall.
We share some of the concerns of our partners about the proposal for a European professional card, an electronic card that links to the internal market information system, or IMI, and can be used by individual professionals for identification purposes. The new proposal, underpinned by the use of IMI, is a positive development, but the time limits proposed for decision-making when an application is made are potentially problematic and may prove to be counterproductive. In cases where satisfactory information has not been provided to the host member state competent authority within the time limit, it would be likely to have to reject an application. More generally, our view is that the whole concept needs to be properly piloted. While there may be some benefits in a professional card, proposals for it need more work—and I agreed with the remarks of my noble friend Lord Dykes on this issue. We need to ensure that the impact on competent authorities and professionals is properly considered so that patient safety is protected. We await with interest the results of the pilots. Our overriding concern in this area is to protect UK patients from healthcare professionals who may not be properly skilled to do the job.
The proposed move to a minimum duration of medical training from six to five years is also welcomed, as it provides greater flexibility to adapt medical training to meet the UK’s needs. We would eventually like to see a competence-based system of training standards, but we recognise the scale of such an undertaking in the short term. The move to modernise training over time, through a process for updating the core subjects that must be covered by training for the sectoral professions and by providing the Commission with delegated powers in this area, is a move in the right direction.
My noble friend Lord Bridgeman focused on an issue that he has consistently championed—that of language testing. This Government 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. While the proposed new directive would not allow language checks by a competent authority before recognition of the qualification of a professional, it makes it clear that controls on language checks are permissible and can be undertaken before a professional is able to practise. The proposals in respect of language checks do not go as far as the GMC would like, as they do not enable checks at the point of registration, but would permit healthcare competent authorities to undertake language controls following registration when there are serious or concrete doubts about a doctor’s language ability, or following a request by the NHS or patient organisation. There is evidence of the Commission having considered the views of the UK Government in its proposals, and there have been positive developments in the proposals in relation to patient safety overall.
As I said, the Commission’s proposed draft would not appear to allow the GMC to undertake systematic language testing at the point of registration. The GMC would be required, as it is now, to consider the recognition of the qualification and, if accepted, to register the EEA migrant. However, the proposals appear to give greater scope for the GMC to be able to apply language checks after registration where serious concerns are identified, which is a positive development. We believe that what the Commission is proposing would be consistent with the proposed model for a strengthened system of checks, overseen by responsible officers, that we are working up in conjunction with the GMC. I will now come on to that.
In the UK, we have implemented a system of checks at a local level through duties on primary care trusts and guidelines to local NHS employers. We have already taken steps to strengthen the system and, since 2011, all designated bodies have been required to nominate or appoint a responsible officer—for example, a medical director in an NHS trust. In England, the responsible officer’s duties include ensuring that medical practitioners have the qualifications and experience they need for their area of work, and that references are checked, but we think that we can and should do more. We expect to consult shortly on new guidelines for responsible officers, which will build on the existing role of responsible officers in England to explicitly check for language ability.
We are also working with the GMC to develop further proposals and amend the Medical Act. This will mean the GMC is better able to take action where language concerns arise as part of the registration process and when a licence to practise has already been issued. The proposed changes to the directive would appear to facilitate the implementation of our preferred approach to language controls, which I have described.
In common with the sub-committee, the Government are disappointed that the proposals do not include a clearer requirement for all member states to have continuous professional development for their healthcare professionals. We think that all member states should be required to have a system of CPD in place for the healthcare professions within their territories, since out-of-date training presents a much greater risk for healthcare workers than for other non-health professions covered by the directive. We would not be prescriptive on the CPD system used by the member states. However, migrant professionals should be expected to demonstrate that they have kept up with latest developments in practice, and that recognition should be linked to them being able to do so. Overall, the key issue is that health professions should be able to demonstrate relevant recent practice.
The noble Baroness, Lady Thornton, referred to training. Negotiations on the directive commenced in January, with the aim of reaching agreement by the end of 2012. However, training has not yet been discussed in any detail at European level. We will continue to work with stakeholders on that important topic. As regards the use of delegated and implementing acts by the Commission, the Government recognise the need for those acts to facilitate the effective functioning of the European Union and the freedom of movement of professionals. However, we seek further clarity on the appropriateness of some of the proposed changes to the use of delegated and implementing acts and the surrounding processes.
We are pleased that the European Commission has proposed a “transparency” process under Article 59, which is likely to bring significant benefits in terms of increased trade and ease of doing business across Europe. Member states are obliged to check that their regulation of professionals is necessary and proportionate, while allowing member states ultimately to decide whether to regulate professions, which is of particular significance for health and caring sectors, to ensure patient safety. Inherently, in the context of European law, there is a balance to be struck here.
That balance was something to which the noble Baroness, Lady Young, and my noble friend Lord Bridgeman referred. I very much take the points that they made. Naturally, we believe in proportionality in regulation, but the Government have previously made their view absolutely clear that in places there needs to be a stronger focus on patient safety in the directive. Some of what is proposed in the draft new directive will help to achieve a better balance, and that is to be welcomed. Our approach to the negotiations over the coming months will be to ensure an appropriate and improved balance between freedom of movement and patient safety.
I listened with care to my noble friend Lord Dykes and agreed with much of what he said. We should not assume that our standards in this country are necessarily higher than those in other countries. Having said that, I think that there is one issue here of which we should not lose sight. As highlighted in evidence given by the General Pharmaceutical Council and the Nursing and Midwifery Council to the House of Lords inquiry last year, a small but significant risk is posed by professionals who are entitled to automatic recognition and seek establishment in the UK but who have not practised their profession for some years. As a result, in the Government’s Green Paper response to the Commission, we asked for the addition of a requirement of two years’ experience in the last five years, unless the applicant graduated in the last three years. However, this suggestion was not included in the Commission’s recent legislative proposals.
The Government will continue to work with the Commission to ensure that safeguards are in place. However, we come back in the end, I think, to the role of employers and commissioners in this context, because that is clearly vital in ensuring the suitability of the individuals they seek to contract with for the specific role they intend them to undertake, including acceptable relevant experience.
There is no question that overall the UK healthcare system benefits from the free movement of professionals. I think we all agree about that. However, the Government will continue to prioritise and promote satisfactory safeguards for the health professions and to ensure that the principles of free movement are balanced with the need for adequate safeguards for patients.
Health and Social Care Bill
Earl Howe Excerpts(12 years, 11 months ago)
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Baroness Thornton
My Lords, little needs to be added to the eloquent and succinct arguments deployed by the noble Lord, Lord Owen, and built on by my noble friends Lady Jay, Lord Peston and Lord Grocott, and my noble and learned friend Lord Falconer. These arguments are in the best liberal tradition and should be supported by anyone who genuinely believes in openness and transparency.
Many people inside and outside the House have expressed concerns about the risk posed by this Bill, especially the implementation of the biggest-ever reorganisation of the National Health Service. It was those fears that led to the initial request by my right honourable friend John Healey 18 months ago. I do not think that even the noble Baroness, Lady Murphy, could imagine that it was a plot of some kind to delay the Bill at this point. I can assure the noble Baroness that that it is not the case. What is being considered here is a risk register maintained for the transition programme; for the work necessary to implement the changes in the Bill. That is going to be done together with delivering the Nicholson challenge, so there are huge challenges to our National Health Service. It is not the same as a departmental risk register, which might be closer to policy matters and advice, and the concerns expressed by many noble Lords, particularly those who have been Ministers and Permanent Secretaries.
My noble friend Lord Grocott is right. What is being asked for here are three weeks to see what this says. Surely the balance of public interest lies in disclosure, to enable consideration of this Bill to be as effective as possible. In short, we needed it in November to do our job adequately and we still need it. Noble Lords have said that it will be now out of date, but that is a question I asked many months ago and I was assured that it would not be the out-of-date register that would be available, but the most current. I say to those representatives of Permanent Secretaries in your Lordships’ House that the last time they engaged with this matter—never with the Bill, but with this matter—I quoted “Yes Minister” at them. I shall be less elevated this time. I shall use the Mandy Rice-Davies defence and say, “Well, they would say that, wouldn’t they?”.
I agree that it is time to move on. The issue is simple enough; we need to understand the risks in order properly to consider the Bill. We did need them. We have time to take this matter in hand. The answers are very clear and we should support the noble Lord, Lord Owen.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, as ever I am grateful to the noble Lord, Lord Owen, for speaking in such clear terms to the amendment he has tabled. I am equally grateful to other noble Lords who have contributed to this debate, on both sides of the argument. At the heart of this, I suggest that the noble Lord, Lord Owen, is putting forward two propositions. The first is that the Government have concealed the nature of the risks associated with the Health and Social Care Bill and therefore the House has a right to be made aware of what the department’s transition risk register contains. The second proposition is that the Government’s refusal to publish the risk register is inherently improper under the terms of the Freedom of Information Act. In other words, the alleged sin of concealment on the part of Ministers is compounded by an unreasonable obduracy in not complying with the decision of the Information Commissioner and now the First-tier Tribunal. It will not surprise the House to hear that I fundamentally reject both propositions. First, the suggestion that the Government have consciously set about concealing the risks associated with the NHS—
Lord Owen
Before the noble Earl continues on that path, I have never used the word “concealment” in any of the many speeches I have made on this Bill. I also do not believe that it is improper for the Government to appeal on both those points. I do not mind my argument being destroyed, but if there has been any lack of clarity, I have said neither of those propositions.
Earl Howe
I accept the first point. In his article yesterday in the Observer, he called it “constitutional outrage”— or words to that effect—which was the point of my second proposition. Other noble Lords have made the accusation that the Government have consciously set about concealing the risks associated with the NHS reform programme, but that allegation does not stand up to a moment’s scrutiny.
The Bill was published some 14 months ago. During that time it has been subjected to a level of analysis, both inside and outside Parliament, that is without recent precedent. I am not just referring to the Bill’s impact assessment, which runs to 200 pages and dissects the risks, costs and benefits of the Bill clearly and meticulously. Nor am I referring only to the two successive NHS operating frameworks of 2010 and 2011, which lay out for all to see the risks of putting the NHS reform programme into practice, and how the service can best mitigate those risks. Nor do I wish to highlight only the extensive oral and written evidence that we provided to two House of Commons Select Committees, whose reports took apart a very wide range of risks to which the reforms give rise and made recommendations on the back of that. As much as any of these documents, it is the debates that have taken place in Parliament that have aired the risks associated with the Bill. When added together across both Houses, those debates have been of unparalleled duration and scope.
Noble Lords may recall the statement that I made on 28 November 2011, in which I set out a list of nine headings, summarising the areas of risk contained in the transition risk register. Many of those areas of risk have been the subject of amendments and debates during the Bill’s passage through the House. For example, one of the risk areas was,
“how to ensure that lines of accountability are clear in the new system and that different bodies work together effectively”.
Noble Lords will need no reminding of the amendments that we agreed across the House on the chain of accountability in the NHS or the lengthy debates that preceded them. A further risk area was,
“how to ensure that future commissioning plans are robust, and to maximise the capability of the future NHS Commissioning Board”.
We have debated and passed amendments on health inequalities, conflicts of interest, research, education and training and a whole lot more, all of which will directly contribute to those worthwhile objectives. Another area was how,
“to ensure that the new system delivers future efficiencies”.— [Official Report, 28/11/11; col. 16.]
Our debates on integration, the tariff and many other topics have focused on that theme, and there are more such examples. Therefore, I cannot accept for one minute that without sight of the transition risk register the House has somehow been denied a deep insight into what the Bill means for the NHS. It is an absurd proposition.
Why, then, is there such an issue over the release of the risk register? We heard the answer to that from the noble Lord, Lord Wilson of Dinton. We are dealing here with something for which I make no apology—namely, a point of principle. It is very firmly the view of the Government—here I refer to departments right across Whitehall—that the release of departmental risk registers would seriously undermine the work of civil servants if it became an accepted practice. Civil servants need to be able to formulate policy advice for Ministers fully, frankly and without fear that what they say may be exposed to the public gaze. The moment that officials feel inhibited in setting out the possible risks attached to a course of action in worst-case terms, the process of policy formulation becomes weaker and good government inevitably suffers. It is our belief, as it has been the belief of successive Governments, that to agree to the release of a risk register such as the one associated with the Bill would be to cross a Rubicon. It would remove the safe space that Ministers and civil servants need to do their job thoroughly and properly.
The potential for making that judgment was explicitly recognised and allowed for in the Freedom of Information Act. Indeed, our decision to invoke the Act in order not to release the department’s strategic risk register was upheld by the First-tier Tribunal. We await the tribunal’s reasons for arriving at this conclusion, and for arriving at the opposite conclusion with regard to the transition risk register. When those reasons are before us, the Government will need to take a decision on whether there may be grounds for a further appeal. Until then, no one can tell what the legal basis of the judgment is.
Lord Grocott
The point was not about any length of time that the process of appeal might take. This Motion specifically rules out any delay on that basis. It states that Third Reading should take place whichever is the sooner—when the decision is made or whenever is the final date for consideration of Third Reading before the end of the Session. I put it again to the noble Earl: what is his estimate of the last date that we could consider the Third Reading in time for the Bill to become law in this Session?
Earl Howe
My Lords, I take that to be the meaning of the Motion; in fact, it presents the House will an either/or decision, which if passed, would leave us in an uncertain situation. However, I take it that the Motion of the noble Lord, Lord Owen, means that, failing the first alternative, the second applies.
I have discussed the parliamentary timetable at length with my noble friends, as might be supposed. I am advised that in reality there is little time left in this Session, but there is a great deal of business left to complete: the Legal Aid, Sentencing and Punishment of Offenders Bill is on Report; the Scotland Bill is still in Committee; and we await our amendments to other Bills to come back from the other place, whose own schedule is complicated by the Budget, Easter and the Finance Bill. The clear advice that I have received from the business managers is that to delay Third Reading to await the tribunal’s reasons and a government response would put into serious jeopardy all the excellent work that this House has done to make this a better Bill.
I put it firmly to the House that we need to get on with the Bill. Today is the 25th full day on which we have been discussing it, and during that time it has been greatly improved. There is no major issue in it to which the House has not done justice. Delaying Third Reading would, in my submission, be wrong and wholly unwarranted. We need to get on with it, and the NHS needs certainty—the certainty of the Bill being on the statute book. I therefore urge your Lordships in the strongest terms to reject the Motion of the noble Lord, Lord Owen, and allow Third Reading to proceed this afternoon.
Lord Owen
My Lords, we have heard a lot of speeches and I do not intend to take long, but I reiterate—if any noble Lord has come in late to this debate—that they should again read the amendment. It makes it clear that what we are trying to do is find enough time—a matter of a few weeks—to hear the opinion of the tribunal that has found against the Government on the disclosure of the risk register. That is a provision within the Freedom of Information Act and follows the earlier decision against the Government arguing for the disclosure of the transitional risk register by the commissioner.
It is pretty unusual for the Government to find two such rulings against them, and it seems perfectly legitimate, before making a final decision—which I readily concede has to be made before Prorogation—to give the courtesy, let alone anything else, of hearing the judgment. It is almost as if we are afraid of the judgment.
In fairness to Professor Angel, we heard from the former Lord Chancellor about his credentials. People do not sit on the tribunal for freedom of information just on one case. They have made many different judgments; they know the issues. With respect to the former Permanent Cabinet Secretaries who have spoken, those who sit on the tribunal know the issues—I do not say as well as former Cabinet Secretaries, but they were looking at it from one side of the equation, the well-being of the Civil Service and the service and information they gave to Ministers. The Freedom of Information Act looks at it from a wider perspective. It looks at it for the good governance of the country as a whole. It urges people to look at why we have open government and greater transparency: because people find it much easier then to accept democratic decisions. This is about a democratic process.
Baroness Finlay of Llandaff
My Lords, I very much welcome the fact that these amendments have the Minister’s name on them. He has already made some concessions in relation to indemnity for these providers where they provide services for and on behalf of the NHS for patients. It seems completely right that some of the difficulties that they have faced in being able to provide flexible patient and family-focused services should be considered and looked at separately. As has already been said, in end-of-life care the charitable sector has completely revolutionised what is available to patients. I know that Marie Curie has done that. They even admitted a dog so that a patient would come in, and allowed that dog to be formally adopted, which enabled the patient to die peacefully because the dog was the only person that the man really loved in life. That flexibility makes all the difference. You would not find that provision or ability to meet an individual patient’s needs in many other parts of the sector.
This group of amendments is really important and to be welcomed. This morning, I was with Help the Hospices, which expressed concern on behalf of some very small organisations as to how they would cope in the new world in being able to continue providing the services that they want to. This group of amendments will provide them with a great deal of assurance.
Earl Howe
My Lords, I am pleased to conclude what has been a very good and constructive debate. I am extremely grateful to the noble Lord, Lord Patel of Bradford, for raising these important issues, both now and in Committee. As he stated, since his original Amendment 46 was introduced in Committee, we have worked together on this alternative amendment. While this has to some extent been a joint venture, all credit for the inspiration behind it must go to the noble Lord—along with the noble Lord, Lord Noon, whose strong commitment to the charitable sector is well known.
I can add little more to what the noble Lord has said, but it might be helpful to clarify a small number of points. First, I reassure the House that the Government are committed to a fair playing field for all providers of NHS services. We are particularly keen for voluntary sector organisations and social enterprises of all types and sizes to be involved. These providers are often among the most innovative and can offer highly personalised and bespoke services that meet the needs of local people. We understand that it is not just charities but the full range of voluntary sector providers—mutuals, co-operatives and social enterprises—that noble Lords are keen to see delivering NHS services. The new amendment enables a fair, transparent and impartial consideration of the issues, addressing all providers and possible means of responding to their concerns. I can confirm that the full intention is to look at how existing barriers can be removed, not to create new obstacles.
Secondly, as noble Lords are aware, a variety of barriers affect different providers. This includes not only payment of taxation but also access to and the cost of capital, the difficulty of securing appropriate insurance and indemnity, and the difficulty of bidding due to the scale or scope of contracts. The amendment therefore relates to a review of the full range of issues that affect the ability of providers or potential providers to deliver services for the NHS. I am sure noble Lords will agree that the potential is truly enormous.
We are clear that this is an important issue, which is why we want the report to be statutory and therefore accountable to Parliament and produced within 12 months of Royal Assent. Equally, it is crucial that the duty for the Secretary of State to keep these matters under review is in the Bill.
I can also assure noble Lords that the preparation of the report will involve full engagement with providers from all sectors, commissioners, and other stakeholders, such as Members of this House, to ensure that the full range of issues are considered and each of the concerns addressed. In particular, it will ensure that concerns around treatment for VAT of supplies of healthcare services or associated goods to the NHS by charities, including hospices, are considered. In response to the specific question of the noble Lord, I can confirm we would not see this review as in any way being slanted towards giving private sector firms a ‘leg up’.
This review will look at the barriers to achieving a fair playing field, and recommend actions to be taken to address them. We are already well aware that a number of the most deep-seated barriers affect voluntary sector providers, not those from the private sector. While I would not want to prejudge the result of the review, I fully expect that it will put forward a number of actions which could be taken to remove such barriers, thereby better enabling third sector providers to compete fairly with other providers of NHS services. I hope this reassures the noble Lord that, while I think we should look across all providers, it is our view that barriers facing voluntary sector providers are greater than those facing the private sector and we expect the review to focus accordingly on those.
I turn to the separate but related issue raised by my noble friend Lord Newby. We have also listened to the matters raised in other debates during this Bill and during the passage of the Public Services (Social Value) Bill, about the need to take social value into consideration in public sector procurement more generally. The Government agree that a wide-angle lens on the extended social, economic and environmental benefits when conducting procurement exercises can only be helpful. Today I am going further and put on the public record that the Secretary of State for Health is committing that the requirements in the public services Bill will be fully applied in relation to commissioning of NHS services through the procurement guidance that the board will produce on this. These were issues that were raised very compellingly by the noble Lord, Lord Mawson, and I pay tribute to him for his powerful and consistent advocacy on this theme.
I hope very much that your Lordships will find the amendment of the noble Lord, Lord Patel of Bradford, agreeable and I will be happy to support it.
Lord Patel of Bradford
I am very grateful for the Minister’s support in this and for taking it a lot further than I had done initially. I have learnt an enormous amount while we have been discussing these issues and I am sure that the not-for-profit sector will be very grateful for the support provided by the Government on this issue. I am sure it will raise a number of very important factors that will improve service provision for those areas.
Earl Howe
My Lords, I will speak also to Amendments 9 and 10. The three amendments in this group share a common purpose in strengthening the duties on the NHS Commissioning Board and CCGs in relation to reducing inequalities. I am grateful to my noble friend Lady Tyler for highlighting on Report the need to ensure this, and I promised at the time to introduce the necessary amendments at Third Reading to achieve it.
New sections 13G and 14T place duties on the NHS Commissioning Board and CCGs to have regard to the need to reduce inequalities between patients with respect to their ability to access health services, and to the outcomes achieved for them by the provision of health services. As the Bill stands, the NHS Commissioning Board and CCGs must assess in their annual reports how they have discharged this duty. However, they are not explicitly required to plan for this and, in the case of CCGs, not specifically assessed on this in the board’s annual performance assessments. These amendments introduce explicit requirements on these points. They require the board to include in its business plan, and CCGs to include in their annual commissioning plans, an explanation of how they intend to discharge their inequalities duties. I remind noble Lords that CCGs will consult on their commissioning plans with those for whom they are responsible, and must involve each relevant health and well-being board in preparing and revising their plans.
The amendments also require the board to specifically assess in its annual performance assessment of CCGs how they have discharged their inequalities duty. So CCGs will have to set out in their plans how they will take account of the need to reduce health inequalities and report on how they have done this in their annual reports, which is of course already a provision in the Bill. Their performance on this will then be one of the factors taken into account by the board when it assesses their performance. Together, these amendments ensure that from the development of the plans to the reporting on their effects, having regard to the need to reduce inequalities will be given particular emphasis and importance by commissioners. I beg to move.
Baroness Tyler of Enfield
My Lords, I shall speak to government Amendments 7, 9 and 10, to which my name is attached, and in so doing I thank the Minister for tabling them. As he has explained, they all relate to health inequalities; I would like briefly to place them into a wider context. In doing so, given that this is Third Reading, I make one general point. My view from the outset has been that this Bill should be judged ultimately by the health outcomes it produces—essentially, whether and how it improves people’s lives, particularly the most vulnerable. Because so much of the debate over the past year has—necessarily, I guess—been about structures, I sometimes feel that we have rather lost sight of this fundamental point. One specific point that has not received enough airspace in our deliberations, perhaps until today, is about reducing health inequalities—or, put another way, doing something real about unequal life chances. At the very outset, I felt that the fact that this legislation contains a landmark legal duty for the Secretary of State to reduce health inequalities was really significant.
As the noble Earl has explained, as the Bill has progressed through its various stages this duty has been strengthened at various levels in the new structure, so that reducing health inequalities now runs through the whole fabric of the health system in a way that we have not seen before. I will not repeat precisely what these amendments do, because they have been very ably set out. Briefly, however, in relation to the requirement that each CCG’s performance is assessed each year by the board and includes the progress made in reducing health inequalities, we all know that what gets measured gets done. That is what makes this significant.
However, we should not look at these specific duties in isolation from other key aspects of the Bill on accessibility and integration. New duties to join up services between health, social care and other local services, such as housing and homeless support, will have a crucial role to play here. The role of health and well-being boards in promoting joint commissioning should enable more integrated services, particularly, for example, for older people and people with learning disabilities. Finally, the much stronger focus on public health—I greatly welcome its return to local authorities—will be key to tackling issues such as obesity, smoking, drug and alcohol abuse and sexual health, which make a real difference in reducing health inequalities. This all adds up to a much stronger package than we have had before. Of course, the proof of the pudding will always be in the eating, but this very welcome shining of the spotlight on health inequalities has the potential to be a game-changer for some of the most vulnerable.
However, in case noble Lords think that I am being too uncritical, I finish on a point of concern. Local authorities are well placed to tackle inequalities, due to their responsibilities for education, housing and other factors which impact on health. The current proposition for holding councils to account for this is through what the Government call a health premium, to give extra money to those areas that reduce health inequalities. We need to be careful that this does not simply reward those areas where it is easiest to tackle inequalities and divert money away from areas where more fundamental problems may slow down progress.
In thanking the noble Earl most sincerely for tabling these amendments and paying tribute to his strong personal commitment on these issues, I respectfully ask him whether he will keep the health premium under review as it is rolled out.
Earl Howe
My Lords, I am very grateful for the helpful and supportive comments that have been made by my noble friend. I can give her the assurance that she sought in her closing remarks that we will certainly keep the health premium under review. However, she will know that the design of that premium is work in progress at the moment and I take fully on board the point that she made about it.
It is perhaps helpful if I make it absolutely clear that the duties on commissioners in respect of reducing inequalities are intended to be as important as any other duty on a CCG, and are most definitely not subordinate to other duties. In particular, I would like to make it clear that they are not secondary to the duties in relation to patient choice.
I hope that noble Lords will recognise that these amendments give a central place to the duty in relation to reducing inequalities within the arrangements by which the board and CCGs will plan for, and be held to account for, their commissioning activity. I hope that for this reason noble Lords will give them their support.
Baroness Hollins
My Lords, given the concerns among the medical profession which are still evident, I ask the noble Earl for reassurance that, for those services where commissioning is appropriate, competition will always be on the basis of quality, not price, and that providers will not be able to cherry-pick lucrative parts of the care pathway to the detriment of vulnerable patients, such as people with learning disability or severe mental illness—people that I am particularly concerned about as a psychiatrist. The health and well-being of these patients depends on the effective delivery and co-ordination of complex care pathways.
According to the Guardian, NHS Devon and Devon County Council have shortlisted bids to provide front-line services for children across the county, including some of the most sensitive care for highly vulnerable children and families, such as child protection, treatment for mentally ill children and adolescents, therapy and respite care for those with disabilities, health visiting, palliative nursing for dying children, and so on. On the shortlist for the £130 million three-year NHS contract are two private profit-making companies as well as the Devon Partnership NHS Trust, which has been bidding along with Barnardo’s and other local charities.
The contract will apparently be awarded, according to the criteria, to the most economically advantageous bid, which appears to be possible under current commissioning arrangements. I seek reassurance from the Minister that the new safeguards in the Bill also prevent such commissioning decisions risking the perceived risks raised by my noble friend with respect to the commissioning of integrated care pathways in emergency care. I am referring not just to the emergency care part of the pathway but to the whole care pathway, which inevitably requires stable working relationships across organisational boundaries.
Earl Howe
My Lords, this is an important topic. The noble Baronesses, Lady Finlay and Lady Hollins, have eloquently set out the important role that emergency care services play for all of us, and I could not agree more.
The Government are clear about the need to strive continuously for improved quality of urgent and emergency care. The move to clinical quality indicators for A&E and ambulance services will ensure a better reflection of the quality of the services that patients receive, rather than encouraging an isolated focus on time factors. Furthermore, the introduction of the NHS 111 service supports the commitment to develop a coherent 24/7 urgent care service in every area of England that makes sense to patients when they have to make choices about their care.
I hope that I can reassure the noble Baroness about how clinical commissioning groups will be supported in commissioning high quality emergency care. The NHS Commissioning Board will produce commissioning guidance, and also may produce guidance on the exercise of CCGs’ duty to obtain advice under new Section 14W. Both of these will reinforce the importance of effective and informed commissioning of emergency care. We have had many debates about clinical advice for commissioners during the course of our deliberations and, as I have previously mentioned, we anticipate that the clinical senates and networks that the Board will host will provide a resource of expertise, including in urgent and emergency care, on which CCGs can draw to inform their commissioning decisions. Equally, in order effectively to discharge their own duties with regard to obtaining appropriate advice, the NHS Commissioning Board would also need to take advice from a range of experts in order to assist them in producing such guidance. I understand that the College of Emergency Medicine has already engaged in useful conversations with the Commissioning Board Authority about how such engagement could work as it moves forward.
I reiterate the framework within the Bill for ensuring the accountability of CCGs in relation to the discharge of their duty under new Section 14W. CCGs must demonstrate, as part of authorisation, that they have the competence to carry out their functions effectively, and they will be held to account on that. As part of the authorisation process, the NHS Commissioning Board would need to be satisfied that a CCG can effectively commission the full range of services that its populations are likely to require, which of course would include urgent and emergency care services. It would also need to be satisfied that a CCG had the appropriate mechanisms in place to ensure that it could discharge its duty to obtain the appropriate level of advice in relation to these services. I also reassure the noble Baroness that the performance assessment of CCGs by the NHS Commissioning Board will look in particular at how they have discharged their duty to obtain advice.
The noble Baroness suggested that we should mandate that an emergency care specialist should have a seat on the CCGs’ governing body. As your Lordships are aware from our previous debates on membership following the NHS Future Forum report, we committed to use regulations to specify a minimum membership for CCG governing bodies. We plan to specify that each body should include at least two lay members, at least one registered nurse and at least one secondary care doctor. This secondary care doctor may well be an emergency care specialist, or a CCG may choose to add additional specialists to its body should it wish to do so—there is nothing in the Bill to prevent that. However, in terms of going further and specifying that an emergency care specialist must sit on these bodies, I am afraid I cannot go that far.
The NHS Future Forum’s report states that it would be unhelpful for CCGs’ governing bodies to be representative of every group. We agree with that. The prime purpose of a governing body should be to make sure that CCGs have the right systems in place to do their job well. It is these systems that will ensure that they involve the appropriate range of health and care professionals in commissioning. Requiring a bigger group of professionals on the governing body itself would not mean that a broader range were involved in designing patient services; it would just lead to governing bodies that were too large and slow to do their job well.
Turning now to the noble Baroness’s points about integration and competition in the context of emergency care, I agree with her about the importance of integration, and the Bill contains strong provisions to encourage and enable the delivery of integrated services. I reassure her again that choice and competition will not prevent the delivery of integrated services where these are in patients’ interests. Additionally, it will of course be for commissioners to decide where to make use of choice and competition in order to best meet their patients’ needs, and it is clear that this would not always be appropriate. Emergency care is a good example of a service where we would not expect to see competition.
I take this opportunity to respond to related concerns from the noble Baroness, Lady Hollins, who asked about the basis for competition. The Bill is clear that competition will not be pursued as an end in itself and that competition will always be on quality, not price. We made amendments in another place to ensure that this would be the case by removing the ability of Monitor and the board to set maximum prices rather than fixed prices. I hope that that answers the noble Baroness’s question on this point.
The duty on CCGs to obtain advice is deliberately wide-ranging in scope purposefully so as to ensure that it covers the full spectrum of services that CCGs will commission. I draw noble Lords’ attention to the language of new Section 14W: the advice must be drawn from people,
“who (taken together) have a broad range of professional expertise in … the prevention, diagnosis or treatment of illness, and … the protection or improvement of public health”.
That is very inclusive and it echoes the approach taken in Section 3 of the NHS Act, which the Bill amends, to establish the fundamental commissioning responsibilities of CCGs.
Noble Lords will wish to note that the interpretation—
Baroness Williams of Crosby
I am grateful to my noble friend for giving way. I want to ask one question. I recently met a group of general practitioners who claimed that they were too busy to be able to go out and find advice. Is there any central point, perhaps in the cluster or on the Commissioning Board, to which very busy GPs could go to get some idea about where they might obtain advice on, let us say, an unusual condition?
Earl Howe
I reassure my noble friend that there will be no shortage of advice available to CCGs once they are up and running, not only from the NHS Commissioning Board centrally—she will know that a programme of work is in hand on the part of NICE to produce quality standards that will underpin the commissioning guidance—but also from the clinical senates, which will fall under the wing of the board. We envisage that those senates will be a resource on which clinical commissioning groups can draw, not least in the area of less common conditions. We are very conscious that the quality of commissioning needs to be improved in many areas, and this is our answer to that. My noble friend has put her finger on an issue that is of central importance if the new duty to improve quality is to become a reality across the system.
Noble Lords will wish to note that the interpretation section of the NHS Act 2006 states that illness includes any disorder or disability of the mind,
“and any injury or disability requiring medical or dental treatment or nursing”.
We are absolutely clear that this covers cases relating both to physical and mental health requiring urgent and emergency care. This definition will apply to the duty to obtain advice in the new Section 14W. I hope I have been able to reassure the noble Baroness that CCGs will absolutely be expected to ensure that they obtain appropriate advice in order effectively to commission emergency and urgent care services; that they will be held to account for doing so; and that the current duty is deliberately drafted to ensure that it covers the full spectrum of services which CCGs will be expected to commission, including emergency and urgent care services. On this basis, I hope that she feels content to withdraw her amendment. I would, however, like to take this opportunity to thank the noble Baroness for our recent conversations on this topic, along with the College of Emergency Medicine.
My right honourable friend the Secretary of State and I both recently met with the college and found these meetings useful in exploring how we can ensure that we make the most of the opportunities presented by the new system in relation to improving the quality of emergency care. We look forward to constructive discussions with the college and with the noble Baroness as we move on to implementing the new arrangements.
Baroness Finlay of Llandaff
I am most grateful to the Minister for that full reply and for his recognition of the contribution that the new College of Emergency Medicine is making to the urgent care of people who are often in extremis. It is literally the life-saving service for many people every day across the country. I am also grateful for his assurance that the performance assessment of commissioners will include how they seek advice from the appropriate people who really know what they are doing, and that integration is assured. The importance of 24/7 recognition has also been brought out in his answer. I am sure that the College of Emergency Medicine will be delighted with the assurances that he has given, as will A&E consultants up and down the country. I am most grateful to him and beg leave to withdraw the amendment.
“(c) after “such time as the” insert “clinical commissioning group or””
Earl Howe
My Lords, I shall speak also to the other amendments in this group: 12, 13, 15, 16 and 18-29. During Report, the noble Lord, Lord Patel of Bradford, tabled an amendment to Clause 40, then Clause 39, relating to Section 117 mental health after-care services. Noble Lords will recall that in recognition of the strength of feeling on this issue, we did not oppose the noble Lord’s amendment. In the same spirit, we have now brought forward a set of consequential amendments resulting from the noble Lord’s amendment. Some of these simply tidy up the wording of the Bill as a result of the noble Lord’s amendment. Others are positive amendments to ensure that those receiving services under Section 117 of the Mental Health Act 1983 are not inadvertently excluded from benefiting from other provisions in the Bill. Specifically, the amendments ensure that Section 117 services are included in determining payments for quality; in special reviews and investigations by the Care Quality Commission; in emergency preparedness planning; in local authority scrutiny of the NHS; in NICE quality standards; and in information standards and information gathering. They also ensure that Section 117 services can continue to be available through direct payments.
I am pleased that the noble Lord, Lord Patel, has welcomed these amendments, and I hope that other noble Lords will agree that it is important that Section 117 services are included in all of these cases and will support these amendments. I also take this opportunity to ask noble Lords to support two minor and technical amendments. These remove an uncertainty about the breadth of the meaning of the reference to the Public Services Ombudsman for Wales in Clause 184, by clarifying that independent advocacy services extend only to certain complaints to that Ombudsman. I beg to move.
Lord Patel of Bradford
My Lords, I am obviously very happy to add my name to the amendments tabled by the Minister in respect of Section 117 of the Mental Health Act, pertaining to after-care services. I was grateful to the noble Earl and to the noble Baroness, Lady Northover, for not opposing my amendment on this issue. It somewhat caught me off-guard, but I was pleased with that. I was particularly pleased that we have continued to work together to add these technical adjustments today. To remind noble Lords: Section 117 requires primary care trusts and local authority social services to work jointly in providing vital after-care services. These types of services can vary a great deal, including visits from the community psychiatric nurse, attending a day-care centre, administering medication, providing counselling and advice, and most importantly supporting accommodation within the community.
Section 117 provides crucial protection for vulnerable people because it ensures that their local primary care trusts and local authority provider supply that after-care package in an appropriate way, including sorting out the funding on an agreed basis. This means that these essential services cannot be taken away until both the PCT and local authority, in consultation with the patient and their carers or the voluntary sector—the people who are supporting some of these patients—are satisfied that the patient no longer needs their services. The original concern that the noble Lord, Lord Adebowale, and I had was that Section 117 after-care was being unnecessarily diluted, as a joint duty to provide after-care was being changed. To all intents and purposes, Section 117 would have been treated as a duty under Section 3 of the NHS Act, and that would potentially have opened up the possibility of charging.
The noble Earl has laid out the protections set out in additional amendments and they are to be welcomed. They go beyond my original concerns and address a number of important issues. I will not list those listed by the noble Earl, but I was happy about the part of Section 117 arrangements that fall under the remit of the Care Quality Commission, ensuring that the regulator and monitor of services should look across patient pathways. I am particularly pleased about the amendment that ensures that Section 117 services are eligible for direct payments. This is a positive step, because it means that people detained under the Mental Health Act can take more control of the services that they receive after their release.
This is not only the right thing to do, as it will empower people who have been affected by being detained, but it is also likely to help to avoid readmissions by ensuring that people are more satisfied and engaged with services. We still have a long way to go to improve services for people detained under the Mental Health Act; in particular the experiences and outcomes when they return to the communities where they live. However, these amendments are a definite move in the right direction and I must congratulate the Minister for having the foresight and good grace to bring these amendments before the House. I wholeheartedly support them.
Baroness Jolly
My Lords, I shall speak briefly to Amendments 15 and 16 as well. They seem to be another correction to the minutiae of the provisions to establish a system of “nothing about me without me”—patient and public involvement—which we all support. However, it seems counterintuitive to aim to empower local people to improve health and social care without checking with them on the detail of how that empowerment should take place. The checks and balances of local patient and public involvement will be particularly important as the rest of these reforms are implemented, so we must get it right now.
Most of this part of the Bill was subject to a redraft, just a week or so ago, without any public consultation. Therefore, it would be helpful if the Minister could give an undertaking that there will be public consultation on all the many regulation-making powers within it. Thirty-six provisions are dependent on regulations, as are two lots of statutory guidance and two lots of directions.
In all previous iterations of patient and public involvement structures, there has been consultation on regulations. Given the complexity of the latest set of provisions and the limited opportunity to scrutinise them, it would seem wise to consult on them. I hope that the Minister will confirm that this will be done.
Earl Howe
My Lords, I am grateful to the noble Lord, Lord Patel of Bradford, for all that he said. I hope that the House will accept the amendments, which I assure noble Lords are intended to bolster and support the amendment previously agreed by your Lordships.
To address the issues raised by my noble friend Lady Jolly, as my noble friend Lady Northover said on Report, we have always envisaged that local authorities will have some freedom and flexibility over the organisational form of their local healthwatch, depending on local needs and circumstances. On reflection, we felt the Bill did not provide the right legal framework for this policy to be realised. My noble friend Lady Jolly makes a good point about the need to get this right. I should like to reassure her that we have already begun to engage key stakeholders on the content of the regulations and will continue to do so while they are being developed.
It may also be helpful to point out that we envisage the content of a number of these regulations—for example, those on the duties of service providers to respond to local healthwatch and allow entry to local healthwatch—will be based on the current Local Involvement Network regulations.
The noble Baroness, Lady Finlay, asked me about the Welsh amendments. I can confirm that the ombudsman covers all patients funded by the NHS. It is not something that is judged on an organisational basis. I hope that is helpful.
Lord Beecham
My Lords, I join other noble Lords in congratulating the noble Baroness, Lady Cumberlege, on the enormous effort that she has put in to moving the Government’s position somewhat although, as she says, in the view of some of us, not quite far enough.
The noble Baroness, Lady Jolly, referred to a degree of separation. I would rather that we had six degrees of separation; I think that we will probably have to settle for the current single degree of separation. That is slightly unfortunate, because, as other noble Lords have stressed, the question of independence of the organisation is crucial. In moving the amendment, the noble Baroness, Lady Cumberlege, raised that issue and mentioned the Civil Service code and the possible inhibitions on employees of Public Health England and what was the Health Protection Agency in giving that advice independently and openly.
Bearing in mind the discussions that we had earlier this afternoon about the relationship between civil servants and Ministers, I hope that the noble Earl will address that, if not today in his reply then subsequently, to explain how that relationship will work and to confirm the complete independence of members of staff in advising not only Ministers but, as the noble Baroness said, the public. I reinforce the points made by other noble Lords. I think we got a verbal assurance from the Minister last time, but I would like it fully explained that the research capacity of the organisation will be maintained.
The amendment is slightly more modest than originally proposed by the noble Baroness, and even more modest than some of us would have liked. For the life of me, I cannot see why the noble Earl should not be able to accept it. If he is not prepared to do that, perhaps he will explain why. At the very least, I hope that he gives the assurances and undertakings that the noble Baroness has sought and that we can take forward this part of the Bill, which in turn complements the best part of the Bill, which relates to public health in general.
Earl Howe
My Lords, I am grateful to my noble friend for the opportunity to return to this issue and for the extremely constructive and sincere manner in which she and other noble Lords have pursued it during and between previous debates in this House. My noble friend is anxious for Public Health England to be and to be seen to be a trusted and impartial champion for the protection of the health of the people and free to provide advice based firmly on the science and the evidence. So are we.
The Health Protection Agency has built an enviable international reputation that Public Health England must first live up to and then surpass. I take on board the question posed by the noble Baroness, Lady Masham, about downgrading. No, of course we want to build on the HPA’s undoubted achievements and have Public Health England seen as a world leader. All the current activity undertaken by the Health Protection Agency will transfer to the Secretary of State.
With that in mind, we have listened very carefully to what my noble friend and others have had to say and thought long and hard. I am happy to set out to her fresh proposals to meet her concerns and to build on the undoubted successes of the Health Protection Agency and the other organisations that will evolve into the new organisation.
The Bill gives a new and vital duty to the Secretary of State, and only to the Secretary of State, to protect the health of the people of England. To a very large extent, Public Health England will exist in order to help him to discharge that duty. It is for that reason that we feel we must preserve a very direct and clear line of accountability between the chief executive and the Secretary of State. While Public Health England undoubtedly needs operational independence to be most effective—a point raised by a number of noble Lords—it will be essential for it and the Government to work together seamlessly and to share the same objectives. Anything less could severely limit the Secretary of State’s capacity to undertake his statutory duty.
Lord Turnberg
I am grateful to the noble Earl for giving way. Will this board be an advisory board or the board?
Earl Howe
I think that the noble Lord asked me whether the board will be an advisory board or a board. Its function will be to provide advice. It will be a board, but the Secretary of State and the chief executive of PHE will look to the board for that robust challenge and advice that a public health service needs.
Lord Willis of Knaresborough
I am grateful to my honourable friend—I am sorry, I mean my noble friend; I keep calling him honourable, but I am sure he is as well—for that response to the noble Lord, Lord Turnberg. The issue is really quite fundamental. If what my noble friend has described is a purely advisory board, the board will not therefore be able to take any executive decisions about the nature of the research that it carries out; that will be totally dependent on the Secretary of State passing it down. Is that so? If so, how in fact will it interface with, for example, the new European programme, programme 8, in terms of European-wide research on public health?
Earl Howe
No, my Lords, my noble friend is not correct. It will be able to take decisions. What it will not be able to do is to bind the Secretary of State because, ultimately, if there is an issue of public health importance, it is the Secretary of State who must take responsibility for that. This said, Public Health England will of course be its own master as regards the research that it undertakes, and it will be operationally independent, as I emphasised earlier.
We will ensure the chair’s direct access to Ministers through regular and ad hoc meetings. The chair will have its own section in PHE’s annual report which it will draft personally and independently, and that report will also reflect the views of external agencies and individuals who have dealings with PHE. I hope that that gives my noble friend additional assurance about the independent voice that we want to see and hear.
My noble friend Lady Cumberlege asked me whether PHE will be able to give professional advice freely to the public. We expect it to do precisely that, in much the same way that the Chief Medical Officer already does. It will be good practice for PHE and the department to consult each other about communications on public health matters, but with a view to agreeing the content, not censoring it.
PHE data will be subject to the code of practice on official statistics, which severely restricts access to certain material by Ministers or officials before it is published. Within three years of PHE becoming operational we will undertake a review of its governance to ensure that it is entirely appropriate and effective.
My noble friend’s amendment also addresses the very significant issue of PHE’s capability to undertake research and to bid for external research funding—a matter to which the noble Lord, Lord Warner, devoted particular attention. This is something we have touched on in previous debates, and it is clearly vital to PHE’s long-term success. We will publish more information about how PHE’s research function will work, including its relationship with academic institutions, but I can assure noble Lords that it will be able to exercise all the necessary powers and duties of the Secretary of State in relation to research.
In particular, Clause 6 confers on the Secretary of State a duty to promote research relevant to the health service, which embraces public health services. Clause 11 specifies that the conduct of research is an appropriate step for him to take under his health protection duty. Clause 50 provides that charges may be made in respect of such steps. Clause 17(13) confirms the Secretary of State’s power to conduct, commission or assist research relating to health, which includes the power to apply for grants or other funding for the purpose of such research. In addition to the Bill’s provisions, the Secretary of State has power to generate additional income for the health service under Section 7 of the Health and Medicines Act 1988, which can be used by PHE to provide research services under contract. I can therefore reassure my noble friend and the noble Lord, Lord Warner, that existing legislation gives the Secretary of State, and therefore PHE, the freedom to bid for research funding and to tender for contracts.
The noble Lord, Lord Warner, asked about external partnerships and whether agencies that currently fund the HPA research will be able to fund PHE in the future. The answer is that we are not aware of any insurmountable obstacle to any of the HPA’s current partners choosing to fund PHE, although in some instances PHE may need to collaborate with an academic institution. Of course, we cannot guarantee that they will choose to. All we can do is ensure that PHE remains at least as attractive a partner for health protection research as the HPA has been. I can also say to the noble Lord, Lord Patel, that we will publish more information on this question quite soon, but we have no reason to believe, as I say, that academic institutions will be reluctant to go into partnership with PHE. In fact, the National Institute for Health Research has already announced that it will invite joint bids.
My noble friend’s amendment and the powerful way in which she has argued for its objectives—
Lord Warner
I am sorry to interrupt the noble Earl. I waited patiently until he had been through the research arguments but I am still not clear. He said earlier that Public Health England would be master of its own destiny in terms of research. The point that I and, I think, my noble friend Lord Turnberg were making was that, if it comes to a tussle between PHE and the National Institute for Health Research over doing research which PHE considers to be in the public interest but there is no academic partner to undertake that research, will PHE’s mastery of its own research destiny trump the attempt by the National Institute for Health Research to impose partnership working on the research agenda? That is the issue that I was trying to talk about and which I think my noble friend was also talking about.
Earl Howe
My Lords, although I understand the noble Lord’s question, I do not think that I can answer it at the moment, and I am sorry to disappoint him. My advice is that we do not think that partnerships will be necessary in all or every case for Public Health England. Whether the NIHR can insist on trumping the operational independence of Public Health England is not a question that I can answer very readily. The main point is that research would not have to be jointly conducted. The Secretary of State has the power to carry it out on his own. That means that, if there were a tussle between two priorities, the Secretary of State could insist that a certain programme should be prioritised. I think that that is probably as far as I can go in answering the noble Lord at the moment.
My noble friend Lady Jolly asked me some general questions about lines of accountability. I hope that she will have gathered from my remarks today that Public Health England will be accountable directly to the Secretary of State in the first instance. Directors of public health will be joint appointments between local authorities and the Secretary of State, although they will be local authority employees and directly accountable to the authority chief executive. It goes without saying that close joint working between PHE and local authorities will be crucial.
My noble friend’s amendment and the powerful way that she has argued for its objectives are a tribute to her and to the noble Lords who have supported her. I believe that I have responded positively to each point that the amendment seeks to establish and that that response can be made comprehensively without amending the Bill. That remains our strong preference. I hope very much that my noble friend is sufficiently reassured by the commitments that I have made today to withdraw her amendment.
Baroness Cumberlege
My Lords, I have no intention of testing the opinion of the House this evening. We have negotiated long and hard with my noble friends Lady Northover and Lord Howe. It has been a very interesting experience. Those noble Lords who have supported me by putting their names to my amendments have tutored me well in the art of negotiation. It has occurred to me that clearly you can negotiate only if both parties are willing to participate, and in this instance that has been the case. The Secretary of State, my noble friend and noble Lords have been more than willing to meet us and to debate and discuss matters with us, putting forward some very strong assurances about the future of Public Health England.
I know that my noble friend Lady Jolly wanted the amendment to be made to the Bill and for those words to be included in the Bill so that the constituency in the country—all the public health people involved—would see what we are trying to achieve. I knew some time ago that that would not be possible, and we have had a very full debate today, albeit at Third Reading, because we are very anxious to get all those assurances articulated and recorded in Hansard.
We will be keeping a very close eye on the development of Public Health England and I shall be framing the assurances that I have been given today. I shall have them on my wall and, when there are new Secretaries of State, I shall present them with this framed undertaking so that we can absolutely ensure that Public Health England goes from strength to strength and, as my noble friend said, is a world leader and, I hope, a world beater. We have a very good reputation in the world on public health. It is something that we must retain and improve upon, ensuring that we have a healthier nation for the future. I beg leave to withdraw the amendment.
(ca) a complaint to the Public Services Ombudsman for Wales which relates to a Welsh health body;”
Lord Hunt of Kings Heath
My Lords, the noble Baronesses, Lady Cumberlege and Lady Emerton, and other noble Lords who have spoken have argued pretty persuasively for statutory regulation. I think it is a pity that the noble Baroness, Lady Emerton, did not put her amendment to the vote on Report because there is a great deal of support in this House and outside it for statutory regulation. I do not know whether the Minister will accept this amendment, but if the noble Baroness wishes to put it to the vote, we shall support it.
If we look at the first part of the amendment, as I understand it the Minister gave an assurance on Report that the Council for Healthcare Regulatory Excellence would provide some assurance to voluntary registers. If the council is prepared to undertake the work to provide some assurance for voluntary registers, I cannot see why it could not have done that for statutory regulation. I have yet to hear one argument by that body or anyone else about why there should not be statutory regulation on this.
I note that the assured training programme is to be mandatory. It is all very well to say that it is mandatory to attend a training programme, but I would rather like to hear that someone has passed some kind of examination and achieved a qualification rather than that they merely turned up and got ticked in—although we know about being ticked in in your Lordships’ House.
On proposed new subsection (3) in the amendment, my reading is that this will not cover nursing homes. The noble Baroness, Lady Masham, expressed concern that a nurse may be struck off the register of qualified nurses but turn up at a nursing home the next day. However, my reading of this subsection is that it relates only to the care of NHS patients. Clearly, there are large parts of the care market to which this does not apply, and the most vulnerable part of care is healthcare assistants working in the independent sector without much supervision.
On proposed subsection (4), the disappointment is that the noble Earl said that the Government would agree to review this after, I think, three years. That would take us to 2015. We know that it would take two or three years to establish statutory regulation, so we are talking about five or six years from now, according to this amendment, when we would achieve statutory regulation. I am sure that that is the journey that we are on; I am disappointed that it will take so long to get there.
Earl Howe
My Lords, we have already had considerable debate on standards and training for healthcare support workers at both Committee and Report stages and I have set out the Government’s view that compulsory statutory regulation is not the only way to achieve high quality care.
We have made it clear that we recognise the need to drive up standards for support workers and to facilitate employers to appropriately employ, delegate to, and supervise health and social care support workers. We have listened to the concerns raised in this House and we have already taken action in a number of areas. We have recognised the concerns about the need for common standards for all those delivering personal care. I believe the steps we are taking will help increasingly to professionalise this set of workers, and ensure that healthcare support workers strive to achieve the best standards of skills to enable them to do their work more effectively.
We have therefore commissioned Skills for Health and Skills for Care to work together to develop a code of conduct and minimum induction and training standards for those support workers working in support of nurses and for adult social care workers. We fully expect this code to make crystal clear the primacy of patient safety, and how support workers must flag concerns to their supervisors. It would also be relevant both to employees and to employers. These will be developed by September 2012, with a view to enabling them to be adopted as the standards for an assured voluntary register from 2013 onwards. They will, for the first time, set a clear national benchmark around the training and conduct of support workers.
In taking that work forward, we expect Skills for Health and Skills for Care to engage with nursing professionals, including educationalists, and the standards will link to the Nursing and Midwifery Council’s updated guidance on delegation. We have also said that we will ensure that the delivery of training for healthcare assistants who are entitled to be included on a voluntary register is professionally led. Further, we remain committed to exploring the evidence base relating to ratios of qualified to non-qualified staff, and we will look carefully at the evidence from ongoing work by King’s College.
Our proposals stop short of imposing mandatory requirements on employers, as it is our view that assured voluntary registration, underpinned by the Care Quality Commission’s registration requirements, is likely to be adequate to assure standards. However, we recognise that there are concerns that voluntary registration may not be adequate and therefore, once a system of assured voluntary registration has been operational for three years, we will commission a strategic review of the relative benefits of assured voluntary registration, compared with statutory registration.
The noble Lord, Lord MacKenzie, asked me whether employers would be able to require workers to be on registers. The answer is most certainly, yes. There are already precedents where employers require, for example, clinical perfusionists or non-medical public health specialists to be on voluntary registers, so we do not see this as a problem.
Turning specifically to the purpose of the amendment, to require mandatory assured training for all new healthcare support workers by 2013, I view that as a big-bang approach—if I may put it in those terms—and I have considerable anxiety that it carries a real risk of overwhelming the system in terms of allowing time for an assured training programme to be developed and implemented. Furthermore, I need to bring to the House’s attention that the introduction of mandatory training would have a significant cost impact on employers across a short period.
The department commissioned an independent analysis of the costs and benefits of regulating around 250,000 domiciliary care workers in 2009. This work indicated that, with a requirement that all workers would have to achieve an NVQ level 2 over two years, or have made good progress towards doing so, the costs would be in the region of £435 million over 10 years. The costs of registration, which would have been met by workers, were only around £70 million over 10 years, with the remaining £360 million or so primarily relating to the costs of providing training, which would primarily have fallen to employers.
Therefore, there are good reasons why we cannot just commit to introducing mandatory training in the current difficult public spending environment, without a clear evidence base for doing so. However, that is where the review comes in. I can confirm that we will consider whether there is a case for mandating training as part of that review, and an appropriate timetable if it were to be introduced.
Allowing for a three-year period once such voluntary registers have been quality-assured by the Professional Standards Authority for Health and Social Care is important. The size and complexity of the workforce we are discussing has already been recognised in our earlier debates. Therefore, in order to ensure that the review is fair and evidence-based, we need to allow an appropriate time period for the assured registers to operate and three years from Royal Assent may not allow sufficient time, for the reasons that the noble Lord, Lord Hunt, alluded to, given that it may take some time to get to a point where a register is properly established.
The scope of this amendment is only healthcare support workers, and I understand the reasons why the noble Baroness has raised it in such limited terms. However, as the noble Baroness, Lady Howarth of Breckland, recognised in our last debate on this matter, the care workforce is significantly wider than that of healthcare support workers. Our proposals recognise this and include provision for common core training and a common basis for a code of conduct.
I know the noble Baroness would like us to go further. However, the review to which I have already committed will provide us with a clear evidence base for any further measures needed to assure the standards of healthcare support workers and we will then consider the need for further measures in light of that review. In view of the proposed review and the ongoing role of the Professional Standards Authority in monitoring voluntary registers, I do not see the need to go any further in terms of rolling out the programme with pilots or some such, but we are more than willing to maintain a dialogue with noble Lords and the profession on what is clearly an important issue.
I also listened to the noble Baroness’s point about the importance of staffing ratios, particularly with regard to midwives, and I can confirm that we will keep these issues under close consideration.
I hope the noble Baroness will be at least partially reassured—maybe substantially reassured—about the general direction of travel here and of our commitment to strengthening the assurance processes in place for healthcare support workers and that, as a consequence, she will feel able to withdraw her amendment at this point.
“(4) In subsection (4)—
(a) for “a Primary Care Trust” substitute “a clinical commissioning group”, (b) for “the trust” substitute “the group”, and(c) at the end insert “; and the references in this subsection to a clinical commissioning group are, so far as necessary for the purposes of regulations under subsection (2E) of that section, to be read as references to the Board.”.”
“(2) In subsections (6A) and (6B)—
(a) after “by a” insert “clinical commissioning group or”, and(b) omit “Primary Care Trust or”.(3) After subsection (6B), insert—
“(6C) The references in subsections (6A) and (6B) to a clinical commissioning group are, so far as necessary for the purposes of regulations under section 117(2E) of the Mental Health Act 1983, to be read as references to the National Health Service Commissioning Board.””
Baroness Butler-Sloss
My Lords, I have not yet spoken on this Bill. Could I ask the Minister a very practical question? If the amendment of the noble Baroness, Lady Thornton, is passed, what on earth will happen to this Bill? What I understand might happen is that in due course it would be passed by the Commons but without the amendments of this House. The result of that would mean that the enormous amount of work done by everybody in this House to improve this Bill would be totally lost, and the Bill as it left the Commons would be the same Bill that went through it. Is that what we want?
Earl Howe
My Lords, the noble Baroness, Lady Thornton, made some very complimentary comments about me at the beginning of her remarks and I thank her for those. Therefore, it is a cause for sadness to me that we have reached this final stage of the Bill in a climate of antagonism rather than of the mutual good will that typically characterises the end of a long parliamentary process in this House. That good will is still present, but it has perhaps been temporarily overshadowed.
I am sorry that the noble Baroness, for whom I have enormous respect, has taken the unusual step of tabling this Motion. It will not surprise her to hear that I disagree utterly with her summary of what this Bill will achieve, but it is not my intention to rehearse the arguments for it all over again. I did that at Second Reading and throughout subsequent stages of the Bill, when we debated at length and in depth the detailed provisions within it.
It is disappointing, too, that this Motion, so negative in its tone and content, is the only amendment which the Official Opposition have seen fit to table on our final day of debate. It stands in marked contrast to the highly constructive approach taken to Third Reading by Peers on all Benches, and indeed to the approach of thoughtful testing and challenge to the Government which the Labour Front Bench has adopted hitherto. I believe that we have used today’s Third Reading to good and positive effect. The noble Baroness, on the other hand, has chosen today to stand aside from that approach.