Health and Social Care Bill
Earl Howe Excerpts(12 years, 1 month 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 Noble Lords have said that it will be now out of date, but that is a question I asked many months ago and I was assured that it would not be the out-of-date register that would be available, but the most current.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.
Health and Social Care Bill
Earl Howe Excerpts(12 years, 1 month ago)
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Lord Hunt of Kings Heath
My Lords, when I was in government, I was always very wary of interventions from the noble and learned Lord when he required help on an answer that I had given. I should probably let the noble Baroness, Lady Emerton, answer for herself, but perhaps I may make two points. First, the noble Baroness has been very inventive in using this Bill as a way of raising these concerns. As a number of clauses, to which we shall come shortly, relate to regulation, her amendment is quite in scope. Secondly, this is very much a debate on the principle. I have no doubt that, if the noble Baroness were to press the amendment to a vote and was successful, the noble Earl, Lord Howe, would come back at Third Reading or in the other place with a tidying-up amendment which dealt with the issues that the noble and learned Lord has raised, respecting the intent of the House but ensuring that the statute was as tight as it could be. It is probably not for me to answer for the noble Baroness.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, this has been another excellent debate about a critical issue: how we ensure that the staff who deliver NHS care have the training, support and appropriate regulation to enable them to do so. I pay tribute to the noble Baroness, Lady Emerton, for her advocacy of this cause, which is of course of central importance.
This amendment would require the Nursing and Midwifery Council to regulate healthcare support workers on a mandatory basis. I hope that I do not need to convince the noble Baroness that we have given this considerable thought. The Government’s view, like that of the noble Baroness, Lady Pitkeathley, is that compulsory statutory regulation is not the only way to achieve high-quality care. It is no substitute for good leadership at every level and the proper management of services, which is perhaps the most relevant issue in the context of the examples of poor care cited by the noble Baroness, Lady Young, to whom I listened with great attention.
Regulation can respond to concerns about the practice of professionals when they arise, but the regulator cannot be in the room all the time. On the other hand, employers are often in a position to act early, when concerns first arise and before harm occurs.
Let us remember that there are existing tiers of regulation that protect service users, particularly the vetting and barring scheme, through which unsuitable workers can be barred from working with vulnerable adults and children. I say to the noble Baroness, Lady Masham, in particular, that that includes where regulated nurses are struck off. If there are concerns that they may pose a risk, they should be referred to the Independent Safeguarding Authority. The Care Quality Commission also enforces standards for providers of health and social care services.
There is no difference between the noble Baroness, Lady Emerton, and the Government on the central issue. We recognise the need to drive up standards for support workers and to facilitate employers appropriately to employ, delegate to and supervise health and social care support workers. To this end, we have commissioned Skills for Health and Skills for Care to work with professional stakeholders on the development of a code of conduct and minimum induction and training standards for healthcare support workers and adult social care workers in England. The noble Baroness has expressed her doubts about that decision, but I noticed with interest that, in its recent addendum to its response the House of Commons Health Select Committee, the NMC stated clearly that it supports the Government’s announcement that Skills for Health and Skills for Care have been commissioned to do this work and to develop a delegation standard for nurses and midwives that will provide an effective framework for public protection.
We confidently expect Skills for Health and Skills for Care to engage with nursing professionals, including educationalists, in taking this forward. There are registered nurses on the proposed membership of the steering group for the work that we have commissioned from Skills for Health and Skills for Care, and I am happy to suggest in response to the noble Baroness that a university lecturer should also be included. More generally, we would expect a broad programme of engagement as part of the work to take this forward. We expect the standards to be agreed ahead of the establishment of voluntary registers for healthcare support workers and adult social care workers, which could be operational from 2013 onwards; so, to be clear, those workers meeting the standards of training and conduct would be able to be included on an assured voluntary register. We will ensure that the delivery of training for health and care assistants who are entitled to be included on a voluntary register is professionally led, and I can confirm that, following this debate, I will be writing to Skills for Health and Skills for Care to make this absolutely crystal clear.
Lord Newton of Braintree
Will my noble friend give way just briefly? I was at the other end of the Chamber, but I have shifted ends. Leaving aside the point about tracking, on the point about whether there will be one or more register I am conscious that, in the area of ombudsmen, there is experience of rival ombudsmen. Frankly, especially since it is in the choice of the provider not the customer, the providers go to the one who they think will give them the easiest ride. I do not want to see that situation here. Serious consideration needs to be given by whatever means to making sure that, if there is a voluntary register, it is one register and not a choice between a good one, a bad one and an indifferent one.
Earl Howe
The key here lies in the standards and the training. If we have standards laid down that are uniform across the piece, I am not sure that having more than one register is a significant issue. As I said, this is something that the professional standards authority is bound to take account of when deciding whether to accredit another register.
The noble Lord, Lord MacKenzie, expressed the view that voluntary registration does not work. The Government’s proposals are for assured voluntary registration. We believe that the effective assurance of the standards of healthcare support workers can be delivered by an assured voluntary register that is underpinned by clear standards of conduct and training and supported by the Nursing and Midwifery Council’s updated guidance on delegation.
The noble Baroness, Lady Finlay, asked how standards will be monitored. We will expect the professional standards authority to assure that any standards set for a voluntary register are appropriate as part of its initial accreditation process. It will keep the operation of any register under review and we will expect it to set out any concerns that it has about standards. The authority will also have powers to remove the accreditation of registers if any of its concerns are not addressed in a timely fashion.
The noble Lord, Lord Patel, asked what criteria would apply in individual cases. In its council paper, Voluntary Registers—Proposed Model for the Accreditation Scheme, the CHRE has stated that all voluntary registers seeking accreditation will be required to complete a risk assessment tool that will assess the risks inherent in a profession’s practice and the means by which those risks are and could be managed. The authority will also keep under review the management of risks by an accredited register. That will be part of its role.
However, having listened to the concerns raised in this House, the Government have given further consideration to this whole issue. Once a system of assured voluntary registration has been established for this group and has been operational for three years, to enable it to demonstrate its effectiveness the Government will commission a strategic review of the relative benefits of assured voluntary registration compared with statutory regulation. The review will involve all relevant professional bodies and trade unions. Such a review would include consideration of any further measures needed to assure the safety of patients and the public, including consideration of the case for compulsory statutory regulation or—and I say this in particular to the noble Lords, Lord Kakkar and Lord Hunt—making standards of training mandatory for employers through the use of standing rules for the NHS Commissioning Board and standard contracts for providers.
The noble Lord, Lord Kakkar, raised what I thought was a very astute point about the NHS standard contract. I can confirm that, yes, the Secretary of State will have the power to include in the standard contract the fact that relevant workers must be on a particular voluntary register. We see this as a strong lever, and we would want to consider it very carefully before deciding to use it in a particular instance, but wherever there was clear and demonstrable evidence that doing so would ensure quality of care, we would give it very serious consideration.
I can confirm that the question of whether to move to statutory regulation will be viewed openly, with full consideration of the potential benefits that it might be able to bring. I can say to my noble friend Lord Newton once again that the power to introduce statutory regulation already exists, in Section 60 of the Health Act, if a decision were to be made to deploy it. The Law Commission is in fact consulting at the moment on an even broader regulation-making power in the future. In the mean time, we are committed to exploring the evidence base on ratios of qualified to non-qualified staff. I totally agree with the noble Baroness that this is a key point. We will look carefully at the evidence from ongoing work by King’s College.
I have tried to set out what one might term, picking up a phrase from the noble Lord, Lord Patel, the direction of travel here. I hope that the noble Baroness, Lady Emerton, will understand our commitment to seeing defined standards and improved skills in the healthcare support workforce. The noble Baroness, Lady Masham, asked whether it is not time to have better safeguards in place. Yes, it is. I agree with her. Where we part company is on what a set of new safeguards should be. I strongly feel that a combination of voluntary registration and training is the more appropriate and proportionate solution to what I agree is a problem that needs to be addressed. The work that we have commissioned takes us on that road.
I hope that I have been able to reassure noble Lords of our commitment to strengthening the assurance processes in place for health and social care support workers, and that, perhaps with reservations but nevertheless more confidently than before, the noble Baroness—
Baroness Wall of New Barnet
I have listened carefully to what the noble Earl has said and there are two areas that he has hardly mentioned—indeed, he has not mentioned one at all—but which he should perhaps refer to. What consideration has he given to the fact that, if you talk to healthcare assistants—and I mean literally hundreds of them—you find that they want this qualification and registration to illustrate the value that they have not just to themselves but also to colleagues around their hospitals? This is also the case for patients: if you do any survey of patients, they say that they want healthcare workers to be registered, so that they understand and have the assurance of that. I wonder how much consideration of those factors has gone into the deliberations that he is talking about.
Earl Howe
I apologise to the noble Baroness for not covering that point. We are well aware of precisely that view among the workforce. With the creation of a voluntary register, the process that she refers to will gather its own momentum because people will see the opportunities open to them to accord themselves the status that they clearly crave. It is important, from the point of view of the patient, that hospitals—and, indeed, care homes—are employing people of a certain standard of accreditation and skill. I think, therefore, that this will be self-fuelling and I hope that, once the register is on offer, substantial numbers of healthcare support workers will be encouraged to join it.
Lord Quirk
I wonder whether the noble Earl could address the point made by the noble Baroness, Lady Howarth, about social workers as distinct from health workers in this group.
Earl Howe
The noble Baroness, Lady Howarth, was, of course, quite right, because we have a mix of skills in so many settings. I did not share her view that, if I can put it this way, the skills of social workers were being belittled by the noble Baroness, Lady Emerton—not at all. She was, however, right to point out that the role of social workers can be just as critical for the well-being of patients and service users as the role of a healthcare assistant. We should not automatically think of these skills as medical skills; they are, in many cases, wider than that. We recognise that there are two distinct groups of workers here—that is the reason why we have asked Skills for Health and Skills for Care to work together to define standards of training. Despite the differences between the groups, there will be similarities; we want to tease out what those are and to define them accordingly. I hope that this is helpful. I hope, too, that the noble Baroness will be reassured and feel able to withdraw her amendment.
Baroness Emerton
My Lords, first, I thank all noble Lords who have participated in the debate this morning. It has highlighted and pinpointed one of the essential needs that must be addressed very quickly in terms of the future of the health service. The noble Lord, Lord Hunt, said that he thought that I had probably put down the amendment as it was worded in order to raise a debate. He was right—I was concerned to get a debate raised on the whole issue. It is unfortunate that despite the Bill’s title—the Health and Social Care Bill—social care has not been included yet. We know, however, that social care will come, and I have been a great supporter of mentioning support workers as we have gone through the various briefings. I take the point made by my noble friend Lady Howarth that social workers are just as important as the healthcare support workers. However, I had to draw a line somewhere as to the title of the debate and how we moved it forward, and I thank noble Lords for their contributions.
I have listened very carefully to what has been said, including by the noble Earl, Lord Howe. If I have heard correctly, I think that he has given a reassurance and a commitment about how things might emerge in the next few months in terms of developing the care standards for the training. He has also given an assurance that there will be a review later on, after the establishment of the training, as to whether statutory regulation would be possible or whether voluntary registration had been satisfactory. The noble Earl knows that we have been waiting a very long time for the examination of the regulation of healthcare support workers. I will take away what he has said and I will read very carefully in Hansard what has been said—a lot has been said in nearly two hours of debate—but, for today, I will withdraw the amendment.
Lord Rea
My Lords, Amendments 253, 254 and 255 concern various clinical scientists, particularly clinical physiologists. In Committee, I declared an interest in that I have received skilled care from clinical physiologists for nearly five years in monitoring my pacemaker. From 2008 to 2010, when the previous Government were in office, I asked four Questions for Written Answer, pointing out that the Health Professions Council had recommended in 2004 that clinical scientists be included in its regulatory regime. This recommendation was accepted by the Secretary of State at the time. The Answers that I received respectively from my noble friends Lady Thornton and Lord Darzi said, in impeccable ministerial speak, “This will be done not this year, perhaps next year, but certainly some time”. However, the noble Earl, Lord Howe, suggested in Committee that it would be sufficient to continue the voluntary registration scheme that exists now.
Perhaps I may read a small extract from a note sent to me by the Registration Council for Clinical Physiologists, which compiles a voluntary register. The council states that it has,
“substantial evidence suggesting that voluntary self-regulation is not effective for clinical physiologists. Our register has no power of enforcement and is completely toothless because it cannot protect patients from continuing to be treated by practitioners who have not been registered and who are potentially unfit to practise. Where a complaint is made and upheld about a practitioner, he or she usually ‘disappears’ from the voluntary register, which means it is impossible for the RCCP to do further investigations, while the practitioners under investigation are able to find employment elsewhere”.
The noble Baroness, Lady Finlay, gave an example of precisely that. Surely that should not be allowed to continue, and I hope that the noble Earl will reconsider his position and agree that statutory registration is the way forward for this very important group of skilled health professionals.
Earl Howe
My Lords, the amendments deal with two discrete areas. The first set of amendments relates to our proposal to establish a system of assured voluntary registration and seeks to extend compulsory statutory regulation to clinical perfusionists and clinical physiologists, and to make further amendments to legislation to account for this.
The second set relates to the transfer of the regulation of social workers in England from the General Social Care Council to the Health Professions Council, to the protection of the function of social workers, to the office of the chief social worker and to the approval of the training of best-interests assessors. Also included in this second group is a minor and technical government amendment intended to correct an inconsistency in drafting.
As for assured voluntary registration, the vast majority of workers give the very highest quality of care. However, a minority let patients down. This is a cause for concern for all of us and it is right that there is discussion about how we can ensure high standards of care. The Government’s view is that compulsory statutory regulation is not the only way of achieving this and can detract from the essential responsibility of employers to ensure that any person whom they appoint is suitably trained and competent for the role.
As I reminded the House earlier, there are already existing tiers of regulation that protect service users, including the standards set by the Care Quality Commission and the vetting and barring scheme. We also need to be clear that professional regulation is not a panacea. It is no substitute, as I said previously, for good leadership at every level and the proper management of services. It can also constrain innovation in some circumstances and even the availability of services.
Experience clearly demonstrates that a small number of workers who are subject to compulsory statutory regulation from time to time fail to ensure that their practice is up to date and delivered to the standard that we expect. In these circumstances, it is too often the case that regulation can react only after the event. The regulation of individuals will not prevent another Mid-Staffordshire, but strong and effective leadership of the workforce may do, and we believe that employers and managers who are closest to the point of risk must take responsibility for ensuring standards.
The Government believe that a system of assured voluntary registration will support commissioners, employers and supervisors to deliver their responsibility for assuring standards by providing independently assured standards of conduct and training for those on accredited registers. We believe that this approach will work well for clinical physiologists, clinical perfusionists and other groups of health and social care workers. Here, we are building on the work started under the previous Government.
The noble Baroness, Lady Finlay, is right that clinical perfusionists are not subject to statutory regulation, but I assure noble Lords that where failures or risks on the part of clinical perfusionists have been identified in the past, action has been taken action to address them. The Department of Health issued guidance in 1999 that the NHS should use only accredited clinical perfusionists, and further guidance in 2009 that clarified the systems and processes needed to ensure high-quality perfusion services. However, employers, commissioners and patients currently have no objective or independent way of determining how robust the accreditation arrangements are, as they not subject to independent scrutiny. In future, if the voluntary register is accredited by the PSA, they will be subject to such ongoing independent scrutiny.
The noble Baroness, Lady Finlay, asked me about the administration of drugs by perfusionists and compliance with the Medicines Act. Perfusionists cannot prescribe drugs, although they do of course administer perfusions. I would say in my defence to the noble Baroness that compliance with the Medicines Act is rather a technical legal point. If she will allow, I am happy to write to her on that legal position.
Both she and the noble Baroness, Lady Masham, indicated their view that voluntary registers already exist and do not work. Voluntary registers do exist, so standards for these professions exist as well. It has to be said that the Department of Health has little if any evidence of a general problem with the standards of practice for these groups, but, as I said previously, we currently have no objective way of saying to employers that if they rely on professionals who are on existing voluntary registers they can be sure that they are meeting appropriate standards. In future, where voluntary registers are accredited by the Professional Standards Authority, that will be possible.
Lord Rea
I hope that it is in order to ask the noble Earl a question. When he was talking about the registration and regulation of clinical physiologists, he spent quite a long time saying how voluntary registration could be improved and how good and suitable it was, but he has not actually said why the Government have such a big objection to statutory regulation. I do not quite see why the Government are so unwilling to go ahead immediately with this.
Earl Howe
My Lords, if the clinical physiologists feel as the noble Lord, Lord Walton, says they do, I would simply urge them to read what I have said about the merits of assured voluntary registration. It is true that this issue has been on the table for a number of years. The difference between the start of that debate and the point that we have now reached is that there is more than one option on the table. Assured voluntary registration did not exist 10 years ago, but it is now about to become a reality. We come back to the basic point that regulation in itself is not a panacea. Those who think it is need to examine those cases where failures of care and services have taken place. It is much more about upskilling people, making sure that employers are aware of their responsibilities and ensuring proper supervision in the care setting.
Baroness Williams of Crosby
The noble Lord, Lord Walton, raises the point that the physiologists may well feel themselves to be treated as a second-rate profession. One of the finest things about the Bill is the way in which it extends the whole concept of treatment to people beyond those who are registered members of the medical profession, to those who belong to professions ancillary to medicine. I wonder whether the noble Earl might take into account the fact that we really need to move towards equal status between people who are involved in the profession, including in the commissioning groups, where some of those who will be on the governing bodies will be people who are not themselves doctors, but who are crucial to delivering an integrated medical outcome. I think the noble Lord, Lord Walton, has made the point that registration has become, in a sense, almost a recognition of status. I see that point.
Earl Howe
I very much agree with my noble friend that we want to see a breaking down of silos, if I can put it that way, and a mutual respect and dependence appearing at commissioning level. I am not aware of any examples of clinical physiologists or perfusionists being involved in the commissioning of care. On the face of it, that seems unlikely, although not impossible; I would not rule it out. I take my noble friend’s point about our general wish to see a raising of quality not only in commissioning but also in the provision of care. It is a point well made.
Baroness Finlay of Llandaff
The Minister has spoken about assured voluntary registration being available now. He has said that the Government will monitor it and, if gaps are revealed, would then reconsider statutory registration. It strikes me, first, that we need to know what the criteria are that would trigger moving from an assured voluntary register to a statutory register and, secondly, that these professional groups are in a Catch-22 situation. They have been seeking statutory regulation to drive up and maintain high standards of clinical care. They have been doing all that they can to maintain high standards of clinical care. If they carry on being able to maintain those high standards, gaps will not be revealed. The only way that gaps might be revealed is, in fact, if they drop their standards. It seems like a Catch-22 situation, but I think that I have probably misheard the Minister.
Earl Howe
We are talking about controlling risk. The noble Baroness is right that the Government will retain an open mind about statutory regulation. I hope that that is clear. We have not closed the door to that by any means. However, clinical physiologists, for example, say that risks are apparent to them which some clinical physiologists pose to patients. We have never seen evidence of those risks. In the past, when the Health Professions Council made recommendations about regulation, it has not considered risks. However, we agree with the previous Administration that the extension of regulation should be based on risk. That is the key point. If it is shown that, notwithstanding everybody’s best efforts, assured voluntary registration has not been sufficient to protect patients then, of course, any responsible Government would wish to see a strengthening of the measures around registration.
I revert now to social workers, as I hope that I have covered the points raised. We can most effectively bring improvements to the regulation of social workers in England by transferring their regulation to the Health Professions Council. To answer the noble Lord, Lord Hunt, it may well be that the GSCC could have delivered improvements in the way that social workers are regulated. However, reforming the GSCC’s procedures to ensure that they were fit for purpose would have taken time and, I can tell the noble Lord, would have required very considerable resources. The cost involved, among other considerations, would have been prohibitive.
The Health Professions Council is an established and effective regulator. The proposed transfer of functions to it would bring a number of benefits to the regulation of social workers in England, and I have outlined those. The name “Health and Care Professions Council” was decided upon with reference to the views of the Social Work Regulation Oversight Group, of which both the chair of the Social Work Reform Board and the chief executive of the GSCC are members. As part of the process of renaming the Health Professions Council, the name “Health and Social Care Professions Council” was considered. However, following research commissioned by the Health Professions Council, it was decided that the name “Health and Care Professions Council” most effectively reflected the new remit of the council in a way that was clear to the public, registrants and employers, while maintaining name recognition for service users, employers and registrants. However, to ensure even further clarity for the public, the Health Professions Council’s new name will be supported by a strapline: “Regulating health, psychological and social work professionals”, so it is not as though “social work” has been omitted entirely from the heading of this organisation.
(a) omit the “or” preceding paragraph (c), and(b) after that paragraph insert “; or””
Lord Beecham
My Lords, I should declare an interest as honorary vice-president of the Local Government Association. I congratulate the noble Lord, Lord Ribeiro, on closing a lacuna and promoting integration, which has been a strong theme of our debates. He has spotted a difficulty and has dealt with it extremely competently. I trust that the Minister will be able to accept the amendment, which makes great sense and should contribute to the fulfilment of local authorities’ obligations in this sphere.
Earl Howe
My Lords, I am grateful to my noble friend Lord Ribeiro for tabling these amendments, which address the important issue of ensuring that patients have consistent access to appropriate and cost-effective drugs, whether a service is commissioned by the NHS or by local authorities.
As the House will know, NICE’s technology appraisals provide important recommendations on the clinical and cost-effective use of medicines and other technologies in the NHS. The funding direction that applies to recommendations in NICE technology appraisals has helped to ensure equity of access to NICE-recommended drugs and treatments wherever patients live in England.
While technology appraisals are perhaps most commonly associated with specialist drugs or interventions used or initiated in NHS secondary care, they also make important recommendations about drugs and interventions for use in other care settings, including preventive interventions. In future, these are likely to fall within the scope of local authority commissioning responsibilities for public health. My noble friend mentioned the example of Champix. He is right: technology appraisals could address drugs to aid smoking cessation and treatments to tackle substance misuse.
I agree with my noble friend that extending a funding mandate to NICE-appraised drugs or treatments commissioned by local authorities would bring important benefits. It would guarantee patients access to appropriate and cost-effective drugs, whether a service was commissioned by the NHS or by local authorities. In doing so, it would protect patients’ existing rights as set out in the handbook to the NHS constitution, to which he rightly made reference. I am very pleased that I am able to support these amendments and I hope that your Lordships will feel able to support them as well.
Lord Ribeiro
My Lords, I thank my noble friend the Minister for accepting the amendments. I thank also the noble Lord, Lord Beecham, for his kind words.
Health and Social Care Bill
Earl Howe Excerpts(12 years, 1 month ago)
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Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, I shall speak also to the other 41 amendments in this group, some of which, I stress, are minor, technical or consequential.
Part 9 establishes the information centre in primary legislation, setting out its powers in relation to the collection, analysis, publication or dissemination of information. Several noble Lords, as well as the British Medical Association and the NHS Future Forum, have expressed a keen interest in the need to ensure an appropriate balance between the protection of patient information and the use and sharing of information to improve patient care. For example, I recall that the noble Baroness, Lady Wheeler, stressed the need to provide,
“safeguards that are strong enough to protect patients”.—[Official Report, 21/12/11; col. 1802.]
She is, of course, absolutely right. We are sensitive to these concerns.
Your Lordships have already approved amendments that raise the threshold required for the board and CCGs to disclose personal information. Government Amendments 268, 280 to 282, 284, 285 and 287 to 289, which are supported by the BMA, further strengthen the protections in the Bill in relation to confidential personal information. Government Amendment 268 would in effect restrict the bodies that are able to request the centre to collect confidential personal information to the principal bodies—that is Monitor, NICE and the CQC—or any other body prescribed in regulations. It also restricts the making of such requests to a person to whom information may be lawfully disclosed—for example, because they have obtained consent or have a power in statute to require such disclosure—or where the information may be lawfully disclosed to the centre.
Government Amendment 272 limits the circumstances in which the information centre may require provision to it of confidential personal information. Government Amendments 280, 281, 282, 284, 285, 287 and 288 clarify when dissemination by the information centre of information which identifies or enables the identity of an individual to be ascertained would be permitted, and when the information centre may be directed to disseminate or not to disseminate information. Government Amendment 289 would require the information centre to publish a code of practice for health or social care bodies or anyone providing publicly funded health or social care on how to deal with person-identifiable or other confidential information.
We believe these amendments strike the right balance between appropriately protecting an individual’s confidential personal information and ensuring that the wider benefits of safely and securely sharing information, which include improvements in the quality of services and treatments, can be realised. There are also a number of minor and technical amendments to improve the drafting of the clauses and to ensure that they can be effectively exercised in practice.
Government Amendments 291A to 291D and 297A to 297D are intended to provide a further degree of future-proofing to ensure that the exact requirements for the future development and delivery of informatics systems to support the health and care sector can be met. Last week, my right honourable friend the Secretary of State for Health highlighted our approach for delivering informatics systems in the future. We intend that the board and the Secretary of State will be supported in the management of informatics systems and services by a lean delivery organisation that will take over from NHS Connecting for Health from April 2013. We are currently looking at where these delivery functions will sit, with the information centre as an option to house some or all of this work. These amendments would enable provision to be made so that the centre could exercise the functions of the Secretary of State or the board in relation to delivering these systems. The amendments will also help to future-proof the legislation so that the provisions can support a more flexible, agile approach to delivering informatics systems in the future. I beg to move.
Baroness Wheeler
My Lords, I welcome and support the government amendments in this group. In Committee, I stressed our strong support for placing the Health and Social Care Information Centre on a firmer statutory footing and replacing the current special health authority. The centre, male-midwived by my noble friend Lord Warner, as he put it, was set up by the Labour Government and has enjoyed a large measure of success, particularly in developing the bedrock quality improvement initiatives in the NHS. I stressed then that if we are able to get the patient confidentiality issues right, the UK has a huge opportunity to lead the world in health research.
The government amendments go a long way towards meeting the concerns expressed by me and other noble Lords on safeguarding patient confidentiality and the need to place a greater emphasis on obtaining consent from the patient when this information is collected or published. The information centre now has to obtain consent before it publishes information that could identify a person.
The new clause in Amendment 268, in particular, which establishes what type of information is confidential and how the information centre must deal with information, is a major step forward, as is the new clause outlined in Amendment 289 requiring the information centre to develop a code of conduct on confidential information.
The noble Earl quoted me from Committee stressing the need for safeguards that are strong enough to protect patients. As that is the first time that I have ever been quoted by the Government, I think I can legitimately claim credit for the subsequent amendments. The extra safeguards to protect patients—for example, detailing when the Secretary of State can request information and who can request the information centre to collect information, and ensuring that consent must be obtained where the information is deemed confidential—are all vital to ensure public and patient confidence that information will be properly acquired, stored, used and published.
We also strongly support Amendment 268, limiting the range of bodies that can request that the information centre collect personal or confidential information to principal bodies, such as Monitor, CQC or NICE, which are able to make a mandatory request because they have obtained consent and have the power under statute.
On the code of conduct, I hope that the noble Earl will assure us that there will be widespread consultation on the development of a code. I should also be grateful if he could reassure the House that the code will provide further detail about the proposed mechanisms that the centre will need to obtain the consent of patients. It is obviously important that we get this issue right. What will be the process for obtaining consent where people are unable to provide it—for example, patients who are unable to make decisions for themselves under the Mental Capacity Act 2006?
Finally, the Government’s Statement in the House on 6 December on UK life sciences announced their intention to share much more patient information with the private and independent sectors in an anonymised form to aid medical research and development. I believe that there are to be discussions with the BMA and other appropriate organisations on that matter to ensure strict safeguards that will instil public confidence. We particularly want to be clear how the Government will judge to which companies they will make that information available and what criteria they will use in those circumstances. I should be grateful if the Minister could update the House on progress on that issue.
Earl Howe
My Lords, I am very grateful to the noble Baroness for her broad welcome for this group of amendments. She is absolutely right: they improve the provisions for patient confidentiality and, at the same time, the sharing of information where that is appropriate. I also welcome her endorsement of our approach to the information centre, which, as she rightly said, was set up under the previous Government and, we believe, has proved its worth in the mean while.
She asked a number of questions. On the first one, relating to consultation, yes, we will work with a range of groups in developing the code and will publish proposals in due course. On her other questions about the mechanisms for consent and obtaining consent from patients who are unable to give it because of mental incapacity, I hope that she will allow me to write a letter to save the time of the House but also because I want to get my answers absolutely correct, and I fear that I would leave important things out if I tried to answer her now.
Baroness Wheeler
My Lords, before the noble Earl sits down, what about the point relating to UK life sciences and the information given to the private and independent sectors?
“Requests for collection under section 254: confidential information
(1) A request under section 254 is a confidential collection request if it is a request for the Information Centre to establish and operate a system for the collection of information which is in a form which—
(a) identifies any individual to whom the information relates who is not an individual who provides health care or adult social care, or(b) enables the identity of such an individual to be ascertained.(2) A person may make a confidential collection request under section 254 only if the request—
(a) is a mandatory request,(b) relates to information which the person making the request (“R”) may require to be disclosed to R or to the Information Centre by the person holding it, or(c) relates to information which may otherwise be lawfully disclosed to the Information Centre or to R by the person holding it.”
“(2A) But the Information Centre may not impose a requirement under subsection (1)(a) for the purpose of complying with a confidential collection request falling within section (Requests for collection under section 254: confidential information)(2)(c).
(2B) In such a case, the Information Centre may, however, request any person mentioned in subsection (2) to provide it with any information which the Centre considers it necessary or expedient for the Centre to have for the purpose of complying with the request.”
“Other dissemination: directions under section 253 and requests under section 254
(1) A direction under section 253 may require the Information Centre to disseminate information which it obtains by complying with the direction if the information falls within subsection (2).
(2) Information falls within this subsection if—
(a) the information is required to be published under section 258;(b) the information is in a form which identifies any relevant person to whom the information relates or enables the identity of such a relevant person to be ascertained and—(i) the relevant person has consented to the dissemination, or(ii) the person giving the direction, after taking into account the public interest as well as the interests of the relevant person, considers that it is appropriate for the information to be disseminated;(c) the information is in a form which identifies any individual to whom the information relates who is not a relevant person or enables the identity of such an individual to be ascertained and the individual has consented to the dissemination;(d) the Centre is prohibited from publishing the information only by virtue of it falling within section 258(2)(c) and the person giving the direction considers it would be in the public interest for the information to be disseminated.(3) A direction under section 253 may require the Information Centre to exercise—
(a) the power conferred by section 259(3A) in relation to information which it collects pursuant to the direction, or(b) any other power it has under or by virtue of any other provision of this Act (other than section 259(1) or (3B)) or any other Act to disseminate information which it obtains by complying with the direction. (4) A request under section 254 may request the Information Centre to exercise—
(a) the power conferred by section 259(1) or (3A) in relation to information which it obtains by complying with the request, or(b) any other power it has to disseminate such information under or by virtue of any other provision of this or any other Act.(5) A direction under section 253 may require, and a request under section 254 may request, the Information Centre not to exercise the power conferred by section 259(1) or (3A) in relation to information which it obtains by complying with the direction or request.
(6) Section 254(3) does not apply in relation to anything included in a mandatory request by virtue of subsection (4) or (5).
(7) A requirement imposed on, or a request made to, the Information Centre in accordance with this section to disseminate information may include a requirement or request about the persons to whom the information is to be disseminated and the form, manner and timing of dissemination.”
“( ) For the purposes of this section, a failure to discharge a function properly includes a failure to discharge it consistently with what the Secretary of State considers to be the interests of the health service in England or (as the case may be) with what otherwise appears to the Secretary of State to be the purpose for which it is conferred.”
“(d) requiring the Centre to exercise such systems delivery functions of the Secretary of State or (as the case may be) the Board as may be specified.”
Lord Patel
My Lords, I speak as somebody who has been involved with the National Patient Safety Agency for longer than the noble Lord, Lord Warner, as a Minister, or the noble Lord, Lord Hunt, as its chairman, as I chaired it for four years. What is important is that the National Patient Safety Agency, as it is currently, has been unable to be effective. It has not been effective because it is not mandatory to adopt, implement or use the learning produced from the reports it receives from all healthcare providers on systems failures that may cause harm to patients. I hope that the Minister will reassure us that whatever the new arrangements are, the learning produced from systems failures will be implemented, or will be expected to be implemented.
I do not know whether the Commissioning Board is the ideal place for it—I understand that it is taking over the group that looked after the analysis of the reports. Therefore, it will be its task to disseminate all the learning that comes from it. The actual collection of information or data will be outsourced on a contractual basis to Imperial College. Perhaps the Minister will comment on that. The important issues are that the information on systems failure is collected and that the lessons learnt are available to all those who commission and provide healthcare. They must be implemented.
Earl Howe
My Lords, I hope it goes without saying—I think that all noble Lords would agree—that patient safety has to be the key priority for all those working in the health service. We cannot allow it to be an add-on or an afterthought. For that reason, the Bill puts safety at the heart of the NHS, not at arm’s length. Currently, the National Patient Safety Agency’s core function is to improve the safety of NHS care by promoting a culture of reporting and learning from adverse events. It does that, as the noble Lord, Lord Hunt, rightly mentioned, through its national reporting and learning system. As noble Lords are aware, it is our intention that Clause 22, or new Section 13Q, will give the NHS Commissioning Board responsibility for this function, including the collection of information about patient safety incidents, the analysis of that information and the sharing of the resulting learning with providers of NHS care—those who contract with clinical commissioning groups or directly with the board.
The noble Lord, Lord Hunt, asked whether it was sensible to do as we propose. Safety is, of course, a key domain of quality and we believe that the board, as the body legally responsible for ensuring continuous quality improvement in the NHS, will be best placed to drive a powerful safety agenda through the NHS. The board will use its leadership, expertise and oversight of the system, including oversight of the national reporting and learning system, to lead continuous quality and safety improvement. Its unique perspective would allow it to ensure that appropriate levers are used to drive safety improvement across the system, based on the needs of the NHS. Embedding safety across the system is vital to increase the pace of development, and it is the intention that the patient safety function will be conferred on the shadow body—the NHS Commissioning Board authority—in June of this year.
It is intended that the operational management of the NPSA’s national reporting and learning system will transfer on a temporary basis to Imperial College Healthcare NHS Trust on 1 April 2012. From April, Imperial College will manage the team responsible for the existing NRLS function for a temporary period of two years. During the two-year period a full tendering process will be developed by the NHS Commissioning Board that is intended to identify the future specification of requirements for a national system to capture and analyse patient safety incident data.
Within the board there will be a patient safety team of around 40 staff led by the director of patient safety and bringing together policy, insight, advice and guidance. The arm’s-length bodies review recommended the abolition of the National Patient Safety Agency. It made clear that the agency’s functions, while necessary within a system supporting wider quality and safety improvement, did not need to be performed at arm’s length. For me, one of the key arguments for making this change is that the National Patient Safety Agency did not have the authority or position to exploit fully the information gained from the national reporting and learning system. In contrast, the board will have the necessary authority and be positioned at the very heart of the system, and therefore be better placed to lead and drive improvements.
The noble Lords, Lord Hunt and Lord Warner, questioned whether the board was actually the right body. I understand the noble Lords’ concerns regarding the independence of the NRLS, but I feel as well that the board will prove to do an excellent job. In particular, it is worth remembering the board’s specific duty with regard to this in new Section 13Q.
As regards conflicts of interest, the NPSA is not being placed within the Commissioning Board as an ALB organisation; it is being abolished. We are putting safety at the heart of the NHS. The NHS Commissioning Board will assume responsibility for securing some functions of the patient safety division of the NPSA relating to reporting and learning from patient safety incidents so that we can embed patient safety into the health service through commissioning and the contracts that commissioners agree with providers. If incident reports suggest that commissioning is the problem, this would be picked up by the system.
The noble Baroness, Lady Finlay, asked me what the proposals will mean in the context of the devolved Administrations. There is provision in the Bill for the NHS Commissioning Board to make information on reporting and learning available to others as it deems appropriate. Such information may be shared with devolved Administrations, and the board will have powers to enter into agreements with them to provide services.
The noble Lord, Lord Patel, asked who would be responsible for making the information available and acted upon. The board will have responsibility for provision of all appropriate guidance and advice. It is for the board to determine how best to ensure that this information is made available, particularly in the NHS. Clinical commissioning groups must have regard to that advice and ensure, through their contracts with providers or otherwise, that appropriate steps are taken to reduce risks and secure the safety of patients. The board would have to ensure that the advice and guidance that it provides is effective. The Bill also provides the board with the ability to deliver any of these functions through those that it considers best placed to maximise safety.
Patients rightly expect that any service provided through NHS funding will be safe, and making the board responsible for the key functions on safety will place responsibility for the safety of care where it should be—at the centre of the NHS. In saying that, however, I pay tribute to the positive contribution made by the National Patient Safety Agency and to make clear that its abolition is not at all to belittle its functions. It is, rather, a consequence of ensuring that vital functions are carried out in the best place in the new system. I believe that this is at the heart of the NHS—with the board—rather than at arm’s length.
I hope that I have sufficiently reassured the noble Lord, Lord Hunt, and that he will feel able to withdraw his amendment.
Lord Hunt of Kings Heath
My Lords, I must say I am very uneasy because I think that the arm’s-length bodies review completely missed the point. It was my understanding that the NPSA itself was not charged with improving safety. The whole point about setting it up was to have an independent body to which people in the NHS could report adverse incidents. Information would then be used in different ways, first in the issuing of safety bulletins and reports on a pattern of safety incidents, which would improve safety in the health service. It was always the expectation that responsibility for safety rested with the health service and the regulator, CQC.
Baroness Wheeler
My Lords, these Benches strongly support the amendment tabled by the noble Baroness, Lady Greengross, and the noble Lords, Lord Low and Lord Rix, to which I have added my name. It is frustrating that we appear to have moved no further forward from Committee, when the noble Baroness, a plethora of respected organisations representing older people, mental health, disability and human rights organisations, as well as the Equality and Human Rights Commission, were saying that there was a real problem which needed to be addressed by primary legislation. There are powerful arguments for amending the Bill in line with the amendment. They have again been ably made by noble Lords and I do not need to go over them again.
I believe that my noble friend Lord Wills addressed key points raised by the noble and learned Lord, Lord Mackay, and other noble Lords—as far as I was able to follow as a non-lawyer—and indeed acknowledged that this was unfinished business on the part of the previous Government. We amended the Health and Social Care Act 2008 to address this issue in respect of residential care. What has changed dramatically since then is that well over two-thirds of home care services are now provided by the private and voluntary sectors and this Bill is likely to increase the proportion of contracted-out provision still further.
The Government’s view, expressed in Committee, that any further legislation would cause uncertainty in other areas outside health and social care is a strange one. In this light, the obvious counter-argument is that the 2008 Act has already opened the door and, in my view, that factor only strengthens the case for the loophole to be closed off. Analysis by key human rights lawyers, counsel for the Equality and Human Rights Commission, key charities and civil liberties organisations have all endorsed this approach and stressed that case law does not support the Government’s view. As we have heard only recently, the Joint Committee on Human Rights’ report on independent living again called for the current Bill to be amended to extend the public function definition to the provision of care at home. For me, that is the key point. All these organisations still argue strongly that there is a loophole that needs to be addressed.
Moreover, the Government’s argument, again in Committee, that the YL v Birmingham City Council judgment has not been challenged to demonstrate that home care services are not covered by the Act or existing legislation is also weak, in my view, and does not inspire confidence in what might happen in the future. My understanding is that the subject of the YL judgment was residential care and the scope of the 2008 Act is therefore limited to that.
I hope that the noble Earl will have good news for us that the Government have rethought this issue and recognise the very real problem and concern that exist for the future. I hope that he will accept this amendment. We all agree about the importance of taking a human rights approach to care provision, with dignity and respect for older people embedded. The current loophole in the provision of personal care in the home by third or voluntary sector providers is of deep concern to thousands of recipients of home care. We need to ensure that this key opportunity to achieve clarity in this matter in the current Bill is not missed.
Earl Howe
My Lords, we have heard many excellent speeches in this debate, not least from the noble Baroness, Lady Greengross. I know that the noble Baroness and all those supporting her are motivated by a determination to ensure that everyone who uses publicly funded health and social care services is protected from abuses of their human rights. I want to make it clear that I absolutely share that determination.
It is crucial that we ensure that vulnerable people are protected, no matter what age they are, no matter whether they have a disability, and no matter where they happen to live or where they happen to be at any given time. The requirement for people to have their human rights protected and respected is not negotiable. This is absolutely fundamental in a civilised and democratic society. The question we have before us today is how best to achieve that, and whether the proposed amendment would help or hinder us in doing so.
Amendment 292A is intended to provide certainty about the coverage of the Human Rights Act with respect to healthcare and home care providers. I understand the noble Baroness’s arguments for her amendment, and I completely agree about the importance of the Human Rights Act and the public sector equality duty. It may provide reassurance if I state clearly and unequivocally that the Government’s view is that all providers of publicly funded health and care services should indeed consider themselves bound by the Act and the duty. This is the position that we expect private and third sector providers to follow and the position that we would argue for if a case were to be brought; and we think there are good arguments with which a court would agree.
Of course, legislative provision is far from the only mechanism we have for ensuring protection for those using healthcare and domiciliary care services and for improving the quality of that care. In fact, we would argue that in order to ensure that users of those services are protected from the kinds of tragic abuses that the noble Baroness and others have spoken about so eloquently, we need to focus efforts on changing the culture and practice of services which provide poor care. We are working hard on several fronts to drive improvements in the way that people, including older people, experience health and social care services. We know that this is essential, and much of it predates the excellent EHRC report that resulted from the inquiry led by the noble Baroness, Lady Greengross.
To offer just a couple of examples of the work that we are doing to this end, we have made the Care Quality Commission responsible for assuring quality of care from April. The CQC will undertake a programme of inspections of 200 home care providers that will specifically look at supporting home care workers, the care and welfare of those receiving home care, and the involvement of people in planning and managing their own care. The new disclosure on barring service will replace the vetting and barring scheme in November this year and will make it easier for home care employers to check the suitability of their staff by providing a seamless service and introducing portable criminal record checks.
We know that legislation has a role, which is why we intend to put adult protection on a firm statutory basis for the first time ever by requiring local authorities to convene and manage local safeguarding adult boards, by legislating for their key roles and responsibilities, and by requiring them to be in touch with and accountable to local communities. We expect to see much better sharing of information and action that will help to drive up the safety and quality of services. The forthcoming White Paper on social care, which we intend to publish later this spring, will set out the broader strategic context not only on safeguarding adults but on improving quality in care services overall. The Government also intend to respond to the Law Commission report on adult social care law by creating a single statute for social care supported by statutory principles which place the well-being of individuals at the centre of the decisions made about people.
To return to the amendment itself, I am afraid that, despite the persuasive case put by the noble Baroness and others, I am not able to support it, and I hope that noble Lords will allow me to set out why. The problem is that while, on the face of it, this amendment simply provides helpful certainty about the coverage of the Human Rights Act with respect to health and homecare providers, in reality it has very serious and unhelpful implications for the wider interpretation of the Act. This may sound like a rather dry, legal argument, but it is an extremely important one with very practical consequences. By stating expressly that providers of healthcare and homecare services were covered by the Act, we would cast doubt on whether all the areas beyond health and social care were covered by it. However we framed it—whether we made it an avoidance of doubt provision or a deeming provision—we would weaken the applicability of the general test, suggesting that a narrow interpretation of the Act was appropriate and raising doubt about the Act’s applicability to all those bodies that had not been specified explicitly in the legislation.
We would also encounter the significant problem, referred to by my noble and learned friend Lord Mackay, of how to ensure that a specific provision of this type did not have the unintended consequence of making the situation less clear with respect to healthcare and homecare services. When noble Lords think of the wide range of services that fall under the banner of homecare services, I am sure they will appreciate the difficulty of drafting legislation that covers all relevant services and avoids any potential loopholes. My noble friend Lord Lester made a similar point. We can see how the proposed amendment, as drafted, makes the situation unclear. It is not clear how it applies to a person receiving care in the home of a family member—a point made by my noble and learned friend—or whether it applies to services provided under direct payment arrangements rather than being commissioned by a local authority or NHS body.
It is for those reasons that the Human Rights Act is quite deliberately designed to make broad provision that applies to all public bodies across the whole range of services. As my noble friend Lord Lester said, the Act is very carefully put together. Any amendment of the Act must be done by looking at it in the round, otherwise we risk destabilising its careful construction. That brings me to another point mentioned by my noble friend Lord Lester.
Lord Lester of Herne Hill
Before my noble friend replies, perhaps I may have a go as well. The problem is that the more specific the amendment, the more the Latin maxim applies that says that, by expressing something, you are deemed to exclude something else. Therefore there is a great danger in ambiguous specificity.
Earl Howe
My noble friend expresses the position exactly. In answer to the noble Lord, Lord Wills, if a court in the future were to arrive at a judgment that all of us here would consider adverse, of course the Government would intervene. However, in our view, it is now highly unwise at this point to try to frame an amendment to put these matters beyond doubt in the way that the noble Baroness seeks to do because any attempt to do so is almost certain to lead to ambiguity and doubt about the applicability of the Act in other areas. That is the point. Of course I can pick holes in the drafting of this amendment, but that is not the central issue. The issue is the wider one to which I alluded earlier.
Lord Pannick
Would not any court regard this amendment as specifically designed to deal with the YL problem? It would not regard it as casting doubt on anything else.
Earl Howe
No loophole is created by YL. That was closed in Section 145 of the Health and Social Care Act 2008. While I listened with care to the noble Lord, Lord Low, who set out the background to the YL case very ably, I disagreed with him completely. This is not unfinished business from YL. That matter was decisively closed by the previous Government in the 2008 Act.
I move to another point raised by my noble friend Lord Lester. The Government have established an independent commission, due to report at the end of this year, which is looking across the board at how human rights are protected in the UK to see whether things can be done better. The topic of Section 6 of the Human Rights Act featured in various responses to the commission’s consultation last year and has already featured in the commission’s discussions. The Government’s view is that the receipt of the commission’s final report will provide the right moment for us to consider rights protection in the round, including any issues surrounding the scope and operation of Section 6.
I recognise the noble Baroness’s point about the amendment made in 2008 to specify that providers of residential care are bound by the Human Rights Act. However, that does not change my argument. As the noble Lord, Lord Low, reminded us, the 2008 amendment was necessary in order to overturn the contrary court judgment in the case of YL, but the Government at the time deliberately resisted any wider change for the very reason that I am resisting wider change today. I realise that my response is not the one that many noble Lords wish to hear.
Lord Wills
I am grateful to the Minister for giving way. It was not the case that the previous Government resisted the amendment. I was deeply and intimately involved in this. It is true that we did not get our act together in time; we ran out of time. I refreshed my memory from my own papers on this point. I agree with the Minister that it is a difficult issue. It is absolutely true that there were different views within government, and no settled decision was reached. There was agreement at the highest level and agreement with the noble Lord, Lord Lester, that public function—the wider issue that lies at the heart of this issue—did need to be addressed. That is what this amendment is trying to do. However, we did not resist it in the way that the noble Earl is suggesting. I appreciate that he is not perhaps as painfully familiar with the details of the previous Government as I am afraid I am.
Earl Howe
I am grateful to the noble Lord. My main point is that, whether by accident or design, the previous Government did the right thing in our view, and that is clearly the advice of the Ministry of Justice, which is in the lead on human rights matters.
I hope I have explained why I cannot support this amendment, despite the Government’s wholehearted support for the principles involved, and that I have demonstrated how seriously we take the issues that the noble Baroness raised. To that end, I can today make four very clear statements. I can confirm that the Government maintain an expansive view of the interpretation of Section 6 and, where we have the opportunity and it is appropriate to do so, we would intervene in legal cases in support of that interpretation. I can confirm that human rights will of course be part of the underpinning framework in adult social care law. Any reforms to the law on care and support will need to ensure consistency with the obligations placed on local authorities by the Human Rights Act. I can commit to hosting a round table, along with my honourable friend the Minister of State for Care Services, to bring together all key partners, including, if she wishes, the noble Baroness, to establish how our strategy on adult social care ensures protection of human rights. Finally, I confirm that if the independent commission on human rights makes any recommendations in its final report about the reform of Section 6 of the Human Rights Act, the Government will give them serious consideration.
On this basis, I hope that the noble Baroness will recognise the extent to which we have tried to address her concerns and will feel able to withdraw her amendment. If not, I beg noble Lords to think twice before voting for it.
Baroness Greengross
My Lords, I thank the Minister for what he has just said, which was extremely encouraging. I have never doubted his commitment to getting this right. I am not a lawyer, but listening to the discussion, I think there was some misunderstanding about the wording of the amendment and the context in which it stands. For example, the word “certain” is defined in the next paragraph as,
“personal care to an individual living in their own home”.
I agree that there could be ambiguity if somebody goes to stay with their daughter and I agree that there could be ambiguity in the drafting, although the amendment was not drafted by me but by the EHRC with the help of very learned lawyers who have worked on this extremely hard. It is limited not to services provided by anybody but to services commissioned or arranged by a public body. Therefore, those particular points that were raised by noble Lords do not apply, although if I thought they did I would agree that it would be a bit silly to try to insist on this amendment.
I feel that in spite of the Minister’s very welcome commitment—we have had time together when he has expressed this so I know that he feels this way—I would like to see the work that the noble Lord, Lord Wills, referred to carried forward, as so many other good policies have been, as there is no party-political disagreement about the aims of particular bits of legislation or the desire to get things right. I would like this to be the case. I am really sorry that the Government feel that we have to wait for those very worthwhile undertakings and pieces of work to be taken on board before we can protect these very vulnerable people who are just not being protected because they happen to be doing what all older people seem to want, which is getting services in their own home rather than going to a residential home. That is what the Government seem to want them to do, and that is what most older and vulnerable people want, as well as many younger disabled people who want to live independently, and many people with learning disabilities. This is not just about one group, although it primarily concerns older people. I just feel sad. I ask the noble Earl to continue with his good intentions but to build on them by incorporating a redrafted amendment in those intentions. On that basis, I feel bound to say that I should like to test the opinion of the House.
Lord Hunt of Kings Heath
I must say that I am surprised that the noble Lord moved this amendment. He told me yesterday that he was not going to and did not have the courtesy to tell me that today he is. The amendment raises a very interesting question. No doubt we will be very interested to hear the response of the noble Earl, Lord Howe. He might perhaps add the membership of the review team to the details of the review.
Earl Howe
My Lords, I am very grateful to my noble friend, to whom I should like to pay a particular tribute for his work to bring interested parties together on this important issue to see whether a common view could be found on a practical way forward.
Both I and my ministerial colleagues are determined to ensure that we address the concerns of pharmacists and registered pharmacy technicians about the risk of prosecution for inadvertent as opposed to wilful or reckless dispensing errors. We and the profession want to see a learning culture that encourages the reporting of dispensing errors so that any helpful lessons can be learnt. Equally, we must make sure that any changes we introduce continue to give patients protection under the law and do not in any way compromise patient safety. It was therefore disappointing to me that, after a great deal of dialogue in recent months, there has not been a sufficient measure of agreement to proceed on a specific legislative change at this time. I have to accept the reality of that, despite everyone’s best efforts.
“The Special Health Authority known as the NHS Business Services Authority | The Health and Social Care Information Centre” |
“The Special Health Authority known as the NHS Business Services Authority | The Health and Social Care Information Centre” |
“( ) the first regulations under section 84 (licensing requirement: exemption regulations);”
Lord Crisp
My Lords, I had not intended to speak on the amendment, but I want to say a word or two in support of what the noble Baroness, Lady Williams, has just said. She and others have referred to the rift that has been created as the Bill has gone through Parliament and been discussed in the country. I am sure the Minister recognises that, but I know that he also recognises that now is the time to move towards healing that rift. Many people have, for whatever reason, been scared by what has been said and many people have also been scarred by what has been said. The noble Baroness is absolutely right to draw attention to the second part of the amendment and the opportunity that it gives to start to bring people together around the practicalities. We talk about the legislation but many people out there have to talk about the practicalities and how you make it happen—something with which many Members of your Lordships’ House, including the noble Lord, Lord Newton, are very familiar.
This has also been about failing communication. I believe there is now more that unites people than divides them. There are many things that people agree on. There are still some very significant differences and, like the noble Baroness, Lady Williams, I am not a fan of the Bill. It has been a damaging process but now is the time for healing. It would be good to see some cross-party approaches to bringing people together in a positive fashion to deal with the practicalities, rather as is laid out in the second part of the amendment.
Earl Howe
My Lords, I think that it is important for me to begin by acknowledging fully the force of the wonderful speech by my noble friend Lady Williams, and indeed acknowledging the powerful points made by other noble Lords regarding the climate of opinion among the medical royal colleges and others in relation to the Bill. I cannot fail to be conscious of the suspicion and doubt expressed by many members of that community, although I have to say that opinions vary as to what the real views of some of the royal colleges are, bearing in mind that only a small percentage of their members were canvassed. However, I cast that aside because I am very aware of the validity of the points made by the noble Lord, Lord Owen. The Government are undoubtedly fighting a battle to convince the medical community of the merits of the Bill, a battle that we have so far not won. I can therefore very readily confirm to my noble friend that the first thing we would wish to do once the Bill reaches the statute book is to build bridges with the royal colleges, the BMA and all those who have an interest in seeing this Bill work, to make sure that its implementation is securely grounded. I completely agree with her that the Government should work with NHS staff, all our stakeholders and, indeed, patient groups during the coming months to make sure that implementation really is a collaborative process. I hope that the undoubted wounds that have been created will be healed, and healed rapidly.
I am grateful to all noble Lords who have spoken in this debate. In particular, I listened carefully to what the noble Baroness, Lady Thornton, had to say, as I always do. The question posed by her amendment is, on the face of it, “How can we improve Part 3?”. The answer that she has given us is, “To postpone it”. However, the subtext of her question is, “Why should we have Part 3 at all?”. I am happy to set out once more exactly why it is essential that we have Part 3 —and not just have it, but have it without delay. We need it for two compelling reasons: to protect patients’ interests, and to help the NHS meet the significant quality and productivity challenges it faces. They are benefits that I am afraid the amendment would stop in their tracks.
Part 3 sets out a clear, overriding purpose for regulating NHS services—to protect and promote patients’ interests. That contrasts with Monitor’s duty under the National Health Service Act 2006, which is merely,
“to exercise its functions in a manner consistent with the performance by the Secretary of State of his”
functions. That 2006 duty is not adequate as it stands. It does not mention patients’ interests and it is unclear. However, that duty is what would apply if Amendment 300A were accepted. The amendment would also discard the recommendations of the NHS Future Forum that Monitor should have additional duties: first, to involve patients and the public in carrying out its functions, as my noble friend Lady Cumberlege and the noble Lords, Lord Patel and Lord Warner, rightly emphasised; and, secondly, to enable integration.
It needs to be made clear that the provisions in the Bill interlock and are interdependent. Deferring Part 3 would not achieve the continuation of the status quo, but it would leave an NHS without strategic health authorities and primary care trusts and without a comprehensive and effective framework for sector regulation. There would be no organisation with the powers needed to support commissioners in developing more integrated services. That is something that the noble Baroness, Lady Finlay, and others have rightly demanded. There would be no organisation capable of enforcing requirements on providers regarding integration and co-operation. Neither would there be sector-specific regulation to address anticompetitive conduct that harmed patients’ interests. The powers that currently exist to enforce advice of the Co-operation and Competition Panel would no longer be available. Instead, it would be reserved to the OFT to consider complaints under the Competition Act, rather than by a sector-specific healthcare regulator with a duty to protect patients’ interests.
I mentioned protecting patients for a good reason.
Baroness Thornton
Surely the Co-operation and Competition Panel still exists, will continue to exist, and can deal with any competition issues that are raised—as it already does.
Earl Howe
My Lords, the proposal that we have made in the Bill is for the Co-operation and Competition Panel to be part of new Monitor. If the noble Baroness’s amendment runs a coach and horses through those new arrangements, they are clearly very seriously destabilised.
Part 3 provides for a comprehensive system of regulation, covering all providers of NHS services and so protecting all patients whenever they use the NHS. The amendment would mean that patients using services supplied by the independent sector, social enterprises or charities would continue to be denied those protections. The protections would not, for example, apply to the 500,000 people in Hull and the East Riding of Yorkshire who receive NHS services from the City Health Care Partnership, a community interest company established under the previous Administration. The partnership offers a range of community-based treatments as well as early interventions to help minimise the need for acute care in hospital and promote healthy lifestyles. Monitor does not currently regulate the partnership, because it is a social enterprise.
Part 3 will extend equivalent safeguards to protect patients’ interests, irrespective of who provides their treatment. That is a huge step forward. For the first time, there would be regulation to protect patients from the risk that poor management decisions may put essential NHS facilities and continuity of services at risk. By contrast, the amendment would perpetuate the situation whereby such protection exists only where patients receive essential services from foundation trusts. This would not recognise the nature of our NHS as a comprehensive service delivered by a diverse range of providers.
As well as providing for comprehensive regulation, Part 3 provides for effective regulation that will benefit patients by better enabling positive change. The noble Baroness mentioned the Nicholson challenge. Change in service delivery will play a vital role in achieving the Nicholson challenge of realising up to £20 billion of recurrent productivity improvements in the NHS, for example by providing older people and those with long-term conditions with more integrated care outside hospitals.
Part 3 will enable such change by empowering clinical commissioners to decide how best to improve services and when, where or, indeed, if to use competition as a means to that end. The amendment would leave no provision for sector-specific rules of this kind. Let me explain what that would mean. It would mean that clinical commissioners would face continuing risk of legal challenge whenever they decided to secure services without competition. It takes little imagination to see how that would stifle enthusiasm for clinical commissioning and potentially prevent the sort of innovative, integrated solutions needed to meet the demands of caring for an ageing population.
Part 3 would also enhance the NHS’s ability to deliver positive change by improving the current pricing system. Improving the pricing system is important for three reasons: to strengthen incentives for improvement, to enable integration and to remove incentives for cherry-picking. Part 3 will establish a transparent, legally enforceable pricing system that rewards providers for treating NHS patients. Money will follow the patient, and providers will be paid a fair price for treating complex cases. Again, this is central to the Nicholson challenge. Reform of the tariff in a systematic way will encourage service redesign and better integration. The current system, under Department of Health control, has, I am afraid, often failed to achieve these aims. For example, although foundation trusts should have been paid for every NHS patient treated, that has not always been happening. There have been unacceptable levels of cross-subsidy, and prices for complex cases have sometimes been woefully inadequate.
These and other problems have been highlighted by the royal colleges and are well documented, including in the recent report by PricewaterhouseCoopers. However these are also complex issues that will take time to solve, and as the noble Baroness, Lady Thornton, herself has said, it has taken time and is likely to take time. Therefore time is of the essence. The NHS cannot afford further delays. For all of these reasons, there is a clear, compelling and urgent case for moving forward with Part 3 of the Bill. I hope that I have been able to able reassure noble Lords exactly why it is that we need it.
Health and Social Care Bill
Earl Howe Excerpts(12 years, 2 months ago)
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Baroness Royall of Blaisdon
My Lords, I beg leave to ask a Question of which I have given private notice.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, the tribunal has agreed that the department should not publish its strategic risk register but has upheld the Information Commissioner’s initial decision notice on the transition risk register. However, we await the full judgment, which will contain the detailed reasoning for the decision. This makes it extremely difficult to make a decision on whether the Government wish to appeal this decision. I hope very much that the tribunal will give its full judgment as soon as possible.
Baroness Royall of Blaisdon
My Lords, the primary purpose of this House is to scrutinise and improve legislation. I know that the Minister would agree with me on that. In the next 10 days, Parliament has to make critical decisions about the future of the National Health Service. Without the information in the risk register or the transitional risk register, Parliament will be less well informed than it otherwise would be. The information tribunal last week instructed the Government to release the transitional risk register immediately, as I understand it, because the Bill is still under consideration. Why are the Government therefore preventing Parliament from having the best possible information on the NHS so that it can make the best possible decisions about the NHS?
Earl Howe
My Lords, many of the risks associated with the Government’s reform programme, as the noble Baroness knows, have already been extensively aired—not least in the impact assessment, in my statement of 28 November last and, indeed, in the whole passage of this Bill—but I fully recognise the concern that we should respond swiftly to the tribunal’s decision. We are making every effort to update noble Lords on our intention as soon as we possibly can. However, as I have always said, this is not a decision for the department alone and any way forward has to be agreed and signed off across Government. I cannot make a decision without agreeing it with my fellow Ministers in other departments and I am sure noble Lords will appreciate that we have only just received the tribunal’s decision.
Lord Falconer of Thoroton
My Lords, I am dismayed by the Minister’s answer. Surely it must be the case that Parliament would be assisted by seeing the objective assessment of what the risks are to the National Health Service from the Bill becoming law. I understand that he is saying that the Government have already said what many of them are, but if that is the case then what is the harm in disclosing the list of risks that the objective assessment by civil servants gives of the introduction of the Bill? Surely Parliament would be assisted by having as much information as possible. It cannot be the fault of the information tribunal that we are getting no answer at all from the Department of Health.
Earl Howe
My Lords, no Government have routinely made risk registers available. This is a matter of principle. It is not just that the issues associated with the Health and Social Care Bill have been extensively aired—as I said, they have been—but it is a point of principle whether a risk register that is integral to the formulation of policy should be published.
The tribunal agreed with our assertion that the strategic risk register should not be published but disagreed when it came to the transition risk register. Our difficulty is that the case that we made for both documents, which are of a similar structure and have similar content, was based on essentially the same arguments, which makes it extremely difficult to make a decision on whether or not to appeal the decision. I hope, as I say, that the tribunal will give its reasons for the judgment as soon as possible so that we can determine the right way forward.
Lord Harris of Haringey
My Lords, surely this is not about the routine publication of risk registers but about the publication of a risk register for a specific Bill in front of your Lordships’ House and Parliament that is causing extreme concern in the country. Why is it not possible on an exceptional basis? I believe that no less a person than Simon Hughes—if such a thing were possible—has advocated to the Government that the risk register should be put into the public domain so that Parliament can look at the implications properly.
Earl Howe
My Lords, I beg to differ with the noble Lord; this is an issue about routine release. I think I am right in saying that the department has received several dozen requests to release the risk register. If this were to become routine, as some people appear to wish it to become, policy formulation in any department would become virtually impossible.
Lord Deben
Does my noble friend agree that a number of the laws passed by the previous Government were also controversial? Can he point to occasions on which the risk register was released in those circumstances?
Earl Howe
I am grateful to my noble friend because I do not believe that there were any. The Opposition sometimes point to the risk register relating to the third runway at Heathrow, but the key difference with that was that it was to do with policy implementation rather than policy formulation. Once you know what you want to do, there are risks associated with rolling a policy out. It is a very different matter when civil servants wish to have safe space to think the unthinkable and then advise Ministers.
Lord Campbell-Savours
Does the Minister intend to delay the Third Reading of the Bill?
Lord Hughes of Woodside
My Lords, the Minister said that the details of the risks had been well canvassed in this House. If that is the case then in the absence of proper information, with the best will in the world, the discussions must be based on hearsay. That cannot be the right way to go about discussing business.
Lord Marks of Henley-on-Thames
What steps have been taken to draw to the attention of the tribunal the urgency of receiving the reasons for this decision, bearing in mind the imminence of Third Reading?
Lord Grocott
Presumably, part of the need for urgency is the Government’s scheduling of the Third Reading of the Bill. I know that we are close to the end of an unprecedentedly long Session of Parliament but it would be an intolerable situation if the information were finally published after the Bill had become an Act and the information were then judged to have been such that many Members who had voted in favour of Third Reading would regret it within weeks. Surely the very least that the Government could do is to postpone the Third Reading debate until the last possible date before the end of the Session.
Earl Howe
My Lords, I am the first to acknowledge the concern among noble Lords to be fully and properly informed about the risks associated with the Health and Social Care Bill. As I say, we have done as much as we can to implement that intent without transgressing what we still see as a point of principle regarding risk registers. My answer to the noble Lord is that I do not believe it is necessary to postpone Third Reading but we clearly have to debate the Motion in the name of the noble Lord, Lord Owen. At that point, the House will decide whether it is content to give the Bill further consideration.
Lord Peston
Can we go back to first principles, which the noble Earl raised? I speak as someone who has been an adviser. Is he saying that officials would not give their honest view of the risks that policies might incur if their advice was made public? If you believe in open government—certainly, if you believe as an official that your duty is to advise Ministers as best you can and, therefore, you will outline the risks—is that not altogether a good thing? It is not a principle that the Government ought to espouse, rather than say that they do not want to go down that path?
Earl Howe
My Lords, civil servants may not wish to put in jeopardy a policy that they are working on by using language that could be—indeed, is certain to be—misinterpreted or sensationalised, or that could cause embarrassment if exposed to the public gaze. Without full candour, risk registers across government would become bland and anodyne. Effectively, they would cease to be of practical value. That is the fear that has been expressed across government.
Health and Social Care Bill
Earl Howe Excerpts(12 years, 2 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
“( ) Until section 8 comes into force, the references in this Part to the National Health Service Commissioning Board (other than the reference in section 95(11)(b)) are to be read as references to the NHS Commissioning Board Authority.
( ) Until the day specified by Secretary of State for the purposes of section 14A of the National Health Service Act 2006, the references in this Part to a clinical commissioning group (other than the reference in section 95(11)(a)) are to be read as references to a Primary Care Trust.
( ) Until section 180 comes into force, the following provisions in this Part are to be read as if the words “and its Healthwatch England committee” were omitted—
(a) section 84(4)(c);(b) section 85(5)(a)(iii);(c) section 96(2)(e);(d) section 100(2)(e).”
Baroness Murphy
My Lords, it is evident that everyone around this House who has participated in the discussions on the Bill in effect wants the private patient and other private income to be of benefit to and contribute to institutions whose primary focus, not just their duty, is to public patients. That is what we have all been trying to achieve and it is a matter of finding the right words. Actually, I was going to say to the noble Baroness, Lady Finlay, that I quite liked her Amendment 220. The amendment might not have the right wording but it encapsulates exactly the principle that we are trying to get into the Bill. The amendment is admirable.
I do not have any problem at all with Amendment 218A, which is about accounts, because foundation trusts already produce very detailed accounts in order to indicate to Monitor how near or far they are from meeting their existing private patient cap, which is carefully monitored. Those sorts of accounts are already there. The only difficulty is that accounts, being made up by accountants, do not always reflect which service line is supporting another service line. Therefore, I am not quite sure that requiring this great detail will do quite what the opposition Benches hope. However, in principle, I see nothing wrong with the amendment.
It is worth while remembering all the time during these debates that we are talking about a situation where the vast majority of hospitals—apart from a handful of internationally renowned specialist hospitals in London and the suburbs and in one or two other cities outside—have a private patient income of about 2 per cent. That is not likely to change very much. However, we need to add something that is reassuring because we all understand the anxieties out there. Amendment 220BZB, in the name of the noble Earl, Lord Howe, is an excellent solution. The change to a 5 per cent limit during the year means that there will be no great energy thrown at changing this area, which is the most important thing. We want the board of the hospital and the governors to focus on public patients. If they have some other income coming in from private activity, that is fine, but we do not want them suddenly to throw a lot of energy at it. Therefore, I think that 5 per cent is about right. I know that some foundation trusts have asked for 10 per cent, but 5 per cent is fine.
Requiring hospitals to warn everyone in advance what they are going to do is also helpful. I seek reassurance from the Government that that will still protect the confidentiality of plans, because I know that trusts have expressed anxiety about that. However, I cannot see any problem with it.
The reason that I prefer the amendment of the noble Earl, Lord Howe, to Amendment 220C is because his amendment involves the governors. Crucially, they are the people responsible for the institution, whereas Amendment 220C involves the much wider membership—often 10,000, 12,000 or 20,000 members. That is just too unwieldy a group to be seriously involved in the governance of an organisation. They are vital people in getting local communities to be involved in and have knowledge about the hospital but they would not be the right people when it comes to these sorts of changes.
I support much of what the noble Lord, Lord Marks of Henley-on-Thames, has said, but I am attracted to the Government’s amendment, which solves the problem that we are all looking for a solution to.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, this has been a good and constructive debate on NHS foundation trusts. It is right that we should focus on the removal of the private patient income cap, as I am acutely aware that that is where the majority of noble Lords’ concerns lie.
We need to focus on one core point at the outset. Fears have been expressed that removal of the cap could see foundation trusts increasing private income at the expense of NHS patients—in other words, that it could create a two-tier NHS, with those who can afford to pay going to the front of the queue. That is wrong and, I believe, alarmist. There are robust safeguards in place to prevent that kind of outcome.
Allowing a foundation trust to generate more private income does not release it from its prime duty to its NHS patients. Foundation trusts will still have to meet their legally binding contractual obligations on waiting times and provide the highest standards of care for NHS patients. Foundation trusts themselves are very clear about that. Removing the private patient income cap would allow them to bring extra investment in infrastructure and leading-edge technology to benefit NHS patients. Today, foundation trusts can be prevented by the cap from treating private patients who wish to be treated at the trust even when the income that the trust would earn would support its NHS services. The point made by the noble Baroness, Lady Finlay, was absolutely spot on. The cap leads to the ridiculous situation where NHS consultants are forced to get into their cars to drive to independent providers to perform private patient work in their non-contracted hours. Removing the cap would improve clinical safety for all patients in NHS hospitals, because doctors would be more likely to remain on site for longer.
It may well be, as the noble Baroness, Lady Murphy, pointed out, that most foundation trusts will not be affected at all by the removal of the cap. Many of them are earning below their caps at the moment. It is worth noting that NHS trusts, as distinct from NHS foundation trusts, which are not subject to a cap at all, are not earning proportionately more than corresponding foundation trusts. The point is that removing the cap gives the most innovative organisations the opportunity to boost income for NHS services.
I can also assure the House that we have put in place substantial safeguards to protect NHS patients. NHS foundation trusts will remain first and foremost NHS providers. Their principal legal purpose, to treat NHS patients, has been in legislation since 2003. I tabled an amendment in Committee to clarify its legal meaning. A foundation trust’s principal purpose requires it to earn the majority of its income from the NHS. That is very different from saying that 49 per cent of the work of foundation trusts will be with private patients, as some have misinterpreted it. The Bill does not mention 49 per cent, as I hope the noble Baroness is aware. Amendment 220A would remove the clause. That would be most unfortunate, because its effect would be to leave governors and local communities unclear that foundation trusts must remain predominately NHS providers.
There have been worries that the internal governance of foundation trusts will not be strong enough to exercise the requisite control in that area. I hope that I can provide reassurance on that point. As the local community's representatives, it is the responsibility of the governors to hold the board to account for its management of the trust. The governors should also consider whether the level of private activity is in the best interests of their organisation. The Bill will ensure that governors are better able to do that. It strengthens their arm by giving them new powers to hold directors to account and, if necessary, to remove the chair and non-executives of the board of directors. It would be entirely appropriate for the governors to use these powers if they felt that non-NHS activity was not operating in the interests of NHS patients.
At this stage, I should like to thank my noble friend Lord Clement-Jones for setting out a very persuasive case for adding to governors’ powers to oversee a foundation trust’s private income. I have tabled an amendment, which I hope will address his concerns, requiring directors to detail in the trust’s annual plan—that is, the forward look—any proposals to earn private income and the income that they expect to receive. By law, directors already have to take into account governors’ views in preparing this plan, but this amendment would place an explicit duty on governors to consider the plan and be satisfied that any proposals to increase private income would not significantly interfere with their foundation trust’s principal legal purpose to treat NHS patients.
With regard to the point raised by the noble Lord, Lord Campbell-Savours, a plan to increase private income substantially—that is, to increase by 5 percentage points or more the proportion of total income earned from non-NHS activity—must secure agreement by a majority of governors in a vote. For example, governors would be required to vote where a foundation trust planned an increase in non-NHS income from 2 per cent to 7 per cent or more of its total income, or from 3 per cent to 8 per cent or more. To make it quite clear, the vote would be triggered by plans for large increases in non-NHS income. Other matters, such as significant transactions, are for foundation trusts to decide. These proposals would complement the amendment that we introduced in Committee to require directors to explain in a foundation trust’s annual report how private income had benefited NHS patients.
Lord Campbell-Savours
We all know of cases where in the real world GPs have said to their patients, “Go private and go early. Effectively, jump the queue”. That is going on all over the country and in certain parts it is happening on a great scale. If that is the case, what is to stop GPs working with governors and consultants to try to move patient activity more towards the development of private operations within National Health Service facilities? Will the impetus not come from GPs working in conjunction with consultants and governors who might be sympathetic to the cause?
Earl Howe
With respect to the noble Lord, perhaps I may point to a later group of amendments in the name of my noble friend Lord Phillips, which gets to the heart of that question. I do not think that the noble Lord’s question is directly related to the private patient income cap but, if I may, I should like to cover the answer to it when we reach the later group.
Baroness Thornton
This goes back to the maths, which partly relates to the question that I asked the noble Earl earlier. I think that the Minister and his colleagues may need to look at what his proposals actually say about the proportion. His amendment refers to 5 per cent, and I am not sure that that is not a very tiny amount. I do not want it to be a particularly big amount but I am not sure that the Bill says what the noble Earl says it says. That is the clarification that I need.
Earl Howe
I shall gladly seek clarification and, if I have misled the noble Baroness, I apologise. By the time we reach the end of the debate, I shall have made doubly certain that what I said was correct. I hope that the approach that I have just laid out will allay noble Lords’ concerns, subject to any clarification that I am able to offer the noble Baroness. I am now told that I was absolutely right in what I said.
One thing that these arrangements may well do is nurture the working relationship between directors and governors. I think that they would help to ensure that directors worked collaboratively with their governors to develop non-NHS activity in the best interests of NHS patients. A planned increase of 5 percentage points or more in one year would be a very significant increase in non-NHS income for any foundation trust. Such an increase would certainly be due to a major development becoming operational, such as a new private patient facility. Requiring governors to vote on such a significant development strengthens directors' accountability to their local communities. However, I take the point made by the noble Baroness, Lady Murphy, about confidentiality. In all of this, we should be aware that the strengthening of the governors' oversight in this way places increased responsibility on the governors to maintain an appropriate level of confidentiality while a new project is initially developed. I would expect the directors and governors to ensure that a foundation trust's constitution would protect that.
Lord Avebury
I am sorry if I am a little late in raising this point. The Minister was talking about the burden that would be placed on the accounting system by having separate accounts for the private sector when it was a small proportion of the total. How will the person scrutinising these accounts know what the profitability of that private work is when that small amount of the total is not separately itemised in the accounts?
Earl Howe
We would certainly expect boards of directors to satisfy themselves on that point through management accounting systems and, if necessary, produce the relevant evidence to governors, if a question were asked about that. I think that the point that we were alive to was the cost involved in compelling all foundation trusts—some of them hardly have any private income at all—to go to the trouble of producing statutory accounts and separating out those two income streams. Although my noble friend’s question is well placed, it is perhaps a different question from the one that I was addressing.
We can allay all these anxieties in this area through one simple principle, and that is transparency. Today, I have tried to set out an open and transparent regime for the oversight of a foundation trust’s planned increase to non-NHS income. The governors, as representatives of local communities, would hold the directors to account for ensuring that non-NHS activity does not significantly interfere with their foundation trust’s principal legal purpose to provide NHS services. I think our proposals strike the right balance between the powers of the directors—
Earl Howe
My only frustration was that I was getting to what my noble friend wanted me to cover but she did not give me the chance to do it. Otherwise, I am more than happy to take questions from noble Lords on points of clarification.
I was explaining that governors, as representatives of local communities, will hold directors to account for ensuring that non-NHS activity does not significantly interfere with the foundation trust’s principal legal purpose, which is to provide NHS services. Our proposals strike the right balance between the powers of the directors and the responsibility of the governors.
The answer to my noble friend’s point, and that of my noble friend Lady Williams, is that Monitor will publish guidance for NHS providers on the requirements it sets for them to maintain the continuity of NHS services. We fully expect this guidance to cover conditions for foundation trusts relating to the need to ensure that the continued provision of NHS services is not put at risk by non-NHS activity. As the House will know, foundation trusts will be required to demonstrate how non-NHS income contributes to the foundation trust’s delivery of improved NHS services. In particular, if a foundation trust is increasing its non-NHS income by more than 5 per cent of its total income in a year, we will expect Monitor in every instance to review whether there is any cause to intervene in order to safeguard the ongoing provision of NHS services. This will be in addition to the required scrutiny and approval by the foundation trust’s governors. I hope that fully reassures my noble friends that this matter is not just a question that will be looked at within the confines of a foundation trust. It will have wider exposure than that.
I am afraid I am going to disappoint the noble Baroness, Lady Finlay, not as regards her amendment, which she did not speak to, but as regards Amendment 220C. The problem with it is that it would give Monitor the discretion to agree private income caps for foundation trusts. It would also retain the current cap and, as I have indicated, we think that the cap is unfair and has definitional complexities. That is an undesirable road to go down. It would burden foundation trusts with a governance regime that would be bureaucratic, costly and at odds with a foundation trust’s ability to manage itself.
Requiring governors to vote on any increase to their trust’s private patient cap, and therefore any increase to non-NHS income, would unreasonably inhibit the board of directors’ ability to manage its organisation. We surely do not want foundation trusts being run by boards that are constantly requiring votes by governors. The proposal in Amendment 220C would also require a majority vote by the members of a foundation trust for any increase to the trust’s private patient cap. That is a completely misguided approach. It would undermine the authority of the governors. Governors represent the members, the majority are elected by the members, and they should be allowed to get on and fulfil their responsibilities.
Securing a majority vote by members would also be very expensive. Many foundation trusts have several thousand members. Do we really want scarce NHS resources being spent on polling members about any increases to non-NHS income? I gently ask noble Lords opposite to think again about that.
Finally, Amendment 220C proposes that Monitor should be required to approve any increases to private patient caps beyond 5 per cent. My objection to that is that it would undermine foundation trusts’ autonomy to manage themselves. Directors and governors are better placed than Monitor to decide what is best for their organisation. Monitor’s involvement could also dissuade foundation trusts from pursuing innovative approaches if they are required to go through an external assessment and, in effect, a second approval process.
The central point is this: Part 4 has been built on the experience of what foundation trusts know will work. It represents the opportunity to realise what value foundation trusts can bring to the NHS. It will enable them to develop as responsive, transparent, autonomous and accountable bodies. Removal of the private patient income cap is about foundation trusts making the most of the opportunities they have to earn additional income for investment in the NHS. It is precisely why many NHS leaders and clinicians wrote an open letter to this House urging support to remove the cap. I hope that what I have said will reassure noble Lords that we have the right checks and balances in place while also giving foundation trusts the freedom that they need and have asked for. I also hope that the noble Baroness will feel able to withdraw her amendment.
Baroness Thornton
I thank the Minister for those remarks. I might be able to make him happy at least in one or two respects. This has been an interesting and useful debate, but I would like to start by making two comments. The first is about the remarks made by the noble Lord, Lord Marks. I know that he and his colleagues have been frustrated about the interpretation that has been put on the 49 per cent. The noble Lord spoke about that being there to mitigate risks. The only point that I would make to him and his colleagues is that the opportunity to mitigate those risks was there earlier this week, and they did not take it.
I would also like to apologise to colleagues on the Cross Benches if they have found the adversarial style in this part of the Bill unhelpful. On these Benches, it partly stems from our very grave disappointment that we have not managed on Report to protect the NHS in the way that we felt was necessary. I am afraid that those arguments are political arguments and the arguments that we have had to have. I put that on the record. I do not apologise for the fact that they have been political, but I apologise to my colleagues that sometimes they have not been entirely comfortable with that.
Lord Hunt of Kings Heath
My Lords, I refer to my chairmanship of a foundation trust. From the opposition Benches, we very much support this amendment and wish to reinforce the importance of education and training.
It is right that we should emphasise the importance of NHS foundation trusts recognising their responsibilities in relation to education and training. It is equally important that they have an influence over the architecture for education and training. As the noble Earl will know, there are going to be local boards responsible for commissioning the education and training of professional people. It is very important that the people who run hospitals should be very much involved in the selection of students and ensuring that the curriculum is effective. The noble Earl will know that the Future Forum paper chaired by the chief executive of University Hospitals Birmingham NHS Foundation Trust emphasised the importance of looking at these matters.
We will be debating the quality of nursing next week, but there is no doubt that there is a real problem with public perception of the quality of nursing in particular, and issues to do with nutrition and basic nursing skills. I am convinced that there is a real problem that the universities that train our nurses, in the end, are much more focused on academic practice, because that is what universities do. I am anxious that no one has been able to put their finger on the solution. One way of improving the quality is to involve the foundation trusts much more in these matters. My noble friend’s amendment is very helpful in that respect.
Earl Howe
My Lords, as noble Lords will know, we have had a number of earlier discussions about education and training and I welcome this new opportunity to return to the subject. As the noble Lord, Lord Turnberg, is aware, we are putting in place what we see as a strong national system for education and training, with a strengthened focus on quality outcomes.
In the Bill we have introduced a clear duty on the Secretary of State to ensure that such a system is in place. We are now making good progress in establishing Health Education England and the local education and training boards. We are acutely aware of the importance of a safe transition to the new system. We are proceeding with care and at a sensible pace to ensure that the new system is fully up and running by April 2013.
We have also introduced amendments to strengthen links with the wider system. Our Amendments 61 and 104, which were accepted in an earlier debate, place duties on the board and on clinical commissioning groups to have regard to the need to promote education and training. They are designed to ensure that commissioners of NHS services consider the planning, commissioning and delivery of education and training when carrying out their functions.
We also accepted an amendment tabled by the noble Lord, Lord Patel, to strengthen co-operation among providers of NHS-funded services, which would place a duty on commissioners to ensure that any person providing services as part of the health service would have to co-operate with the Secretary of State in the discharge of his education and training duty, or with any special health authority discharging that duty—that is, Health Education England. This aims to ensure that providers, too, play an active role in education and training.
The noble Lord, Lord Hunt, spoke with his customary authority on this subject and I agree with what he said. I particularly agree that employers best understand the workforce they employ and the kind of workforce they want to employ. They also understand the need to link service planning and workforce planning. They are able to focus on the whole workforce and to recognise the levels of contact with patients and service users, and the varying local needs. Evidence from other sectors and feedback from providers has been clear that in order to deliver successful and responsive world-class services, employers need to have clear ownership and involvement in the education and training and planning of their workforce. I am entirely at one with the noble Lord on that.
Employers have welcomed our plans for education and training. They believe that this approach should provide real opportunities so that healthcare providers have the right incentives to secure the skills that they wish to have, invest in training and innovate to improve the quality of services that they provide. They welcome the opportunity to have the incentives to align service, financial and workforce planning, and to have greater flexibility to respond to the strategic commissioning intentions of the NHS Commissioning Board and clinical commissioning groups.
The NHS Confederation, NHS Employers, Foundation Trust Network and the Association of UK University Hospitals all support a system that provides greater accountability for employers. Strategic health authorities are working with employers to support them in developing these local partnerships so that they can take full responsibility for workforce planning, education and training.
I hope that that is of reassurance to the noble Lord, Lord Turnberg. What is happening on the ground almost pre-empts the speech he so articulately made. We are rapidly moving towards the kind of system to which he and other noble Lords aspire. Having secured the amendments that are already in the Bill, we do not believe that it is necessary to build in any more. On the strength of what I have said, I hope that the noble Lord will feel comfortable in withdrawing his amendment.
Lord Turnberg
My Lords, I am well aware of the lengths to which the Government have gone to support education and training, for which I am truly grateful. I am also aware that earlier amendments might appear to have covered the points that I raised about the need for foundation trusts: there is a particular recommendation for them. I am a little disappointed that my amendment cannot be accepted but I understand the reasoning. The foundation trusts are key providers and, therefore, it should be clear to them that they have this responsibility. I know that they are willing providers of education and training but it should be in the Bill. However, I beg leave to withdraw the amendment.
“( ) for “The” substitute “An”,”
Earl Howe
My Lords, before I address the amendments in the name of my noble friend, I would like to come back to some of the comments made by the noble Baroness, Lady Finlay. She mentioned one of the most pernicious myths about the Bill. The paper that she quotes is not just factually inaccurate on a large scale but is also, frankly, scaremongering. As she herself knows, the Bill does not extend current arrangements for charging; indeed, the Government have committed to introducing no new charges for healthcare during this Parliament. I felt that I had to make that abundantly clear. I know that the noble Baroness realises that that is the case but it is important for the world out there to understand what the Bill does and does not do.
I agree completely with the sentiments behind the amendment that my noble friend has tabled. Patients’ access to essential clinical care and treatment should be on the basis of clinical need, not their ability to pay. That has been a fundamental principle of the NHS since its inception, and we fully support that. I understand that there is some concern that private healthcare by NHS providers might represent a better deal for patients in need of essential treatment. However, I hope that I can convince my noble friend and other noble Lords that there are already adequate safeguards in place, because that is what I firmly believe.
First, I shall cover the issue from the perspective of clinicians—I shall move on to hospital management in a moment. Ethically and professionally, clinicians are required to treat all their patients to the same standard and should not discriminate in any way. It would be wrong to suggest that the vast majority who provide an excellent standard of care would not do so, and I am sure that my noble friend would never suggest that. The General Medical Council’s Good Medical Practice states that the overriding duties for doctors include making the care of patients a doctor’s first concern and never discriminating unfairly against patients or colleagues. The Government also have in place a robust system of regulation on the quality of services. The Bill strengthens that system and makes it more accountable.
Secondly, Good Medical Practice ensures equality of access. It requires all doctors to treat their patients on the basis of clinical priority and to the same standard. Therefore, if a doctor did not treat a patient on the basis of clinical priority or was treating a private patient to a better clinical service, they could be in breach of the principles set out by the GMC and could be putting their registration at risk. In addition, the terms and conditions of service in NHS consultants’ contracts make it clear they are responsible for ensuring that their private work,
“does not result in detriment of NHS patients or services”.
That principle was reiterated in the department’s guidance on NHS patients who wish to pay for additional private care alongside their NHS treatment, which was published by the previous Government following a review by Professor Sir Mike Richards in 2008. The guidance makes it very clear that patients who choose to pay for additional private treatment,
“should not be put at any advantage or disadvantage in relation to the NHS care they receive. They are entitled to NHS services on exactly the same basis of clinical need as any other patient”.
The NHS consultant contract also binds them into adhering to the principles set out in a code of conduct for private practice. These are recommended standards of practice for NHS consultants published by the department. This says that,
“the provision of services for private patients should not prejudice the interests of NHS patients or disrupt NHS services”,
and that,
“with the exception of emergency care, agreed NHS commitments should take precedence over private work”.
It is important to note the point about NHS commitments taking precedence over private work. I strongly believe that professional regulation through the General Medical Council combined with guidance from the Department of Health is the best way to ensure equality of access for patients. It allows regulators to respond to changing circumstances and practice without departing form the central principle involved.
Putting the amendment into statute would risk endless arguments about what is and is not essential care and treatment. Perversely, it could prevent a foundation trust giving preferential treatment to its NHS patients because of the amendment’s reference to equality. The primary purpose of a foundation trust is to provide NHS services. A foundation trust may want to prioritise NHS patients where there is equal clinical need. The amendment might well prevent that; at the very least, it would create legal ambiguity and confusion.
Some noble Lords have voiced concerns that a foundation trust might pressurise its consultants into prioritising private healthcare ahead of its NHS patients. There are safeguards to prevent that as well. First, foundation trusts have a public service ethos; they are governed by the public and by NHS staff. They have a principal legal purpose to treat NHS patients. Secondly, the NHS Commissioning Board and clinical commissioning groups would be responsible for ensuring that NHS patients continued to be offered prompt and high-quality care. With regard to managers, my noble friend will wish to know that we have already commissioned the Council for Healthcare Regulatory Excellence to produce standards of conduct and competence for senior NHS leaders, and these are currently the subject of public consultation.
I remind noble Lords of the points that we debated earlier. If there appeared to be a trend or a significant increase in the level of a trust’s private income, not only would that be picked up by the governors but it would be seen by Monitor, which will have extensive powers to direct foundation trusts through the licence. Foundation trusts will also be required to explain in their annual reports what the impact will be of their non-NHS income on NHS services. One might say that there is going to be no hiding place in this regard.
The noble Lord, Lord Campbell-Savours, asked earlier about GPs channelling patients to NHS private patient units. GPs’ responsibility is to ensure the best care for their patients. They would have nothing to gain from trying to collude with foundation trust managers and commissions to increase a foundation trust’s private income. More to the point, they would risk being reported to the GMC for not serving their patients’ interests. If the noble Lord’s point is that clinical commissioning groups may try to do this, then it would clearly be unethical and would give grounds for the commissioning board to intervene. I hope that that provides the noble Lord with reassurance on that point.
I make a further point to my noble friend around any possible incentive that trust management might have to channel patients into a private wing, a concern raised by the noble Lord, Lord Kakkar. The Bill will establish a transparent and legally enforceable pricing system that will reward foundation trusts for treating NHS patients. In other words, money will genuinely follow the patient, and foundation trusts will be paid a fair price for treating complex cases. The current system has not always achieved these simple aims. An independent report into the current system published last month makes this clear; I have placed a copy of that report in the Library of the House for noble Lords who are interested. As the report makes clear, although foundation trusts should have been paid for every NHS patient treated, this has not always been happening. There have been unacceptable levels of cross-subsidy that have meant that the prices payable for complex cases have sometimes been woefully inadequate. One important facet of the reassurance that I can give my noble friend is that the pricing system proposed under the Bill will address those problems and ensure that foundation trust managers have the right incentives and rewards for prioritising NHS patients.
For some—although not, I think, for my noble friend—the amendment has been prompted by fears around the consequences of the private patient income cap for foundation trusts being removed; again, the noble Lord, Lord Campbell-Savours, voiced that fear. I suggest to him that those fears are misplaced. It is not, to my mind, a valid argument to suggest that removing the cap, a restriction that does not apply to NHS trusts, would lead to foundation trusts ignoring NHS patients as their prime concern and responsibility. Foundation trusts are the only NHS organisations which have never been subject to a cap on the amount of private income that they can earn. However, some foundation trusts can and do earn high levels of private patient income. There are also some NHS trusts which earn private incomes well in excess of many foundation trusts. There is no evidence that these NHS providers have ignored NHS patients as their main responsibility. The NHS constitution guarantees fair access to NHS treatment. The Government are putting in place a quality improvement framework that will improve outcomes for patients. Therefore, there is no scope for NHS patients to be harmed by private provision. Indeed, I say again that the extra income that the NHS would earn through the lifting of the private patient income cap would help to provide better quality care for all in the future.
I hope that my noble friend will accept that he and I are on the same page—on the same side—on this question. The difference between us lies in how to tackle it. As the noble Lord, Lord Warner, was right to remind us, privately funded and NHS healthcare have always co-existed in NHS hospitals. Governments of all parties have preferred to use professional regulation rather than statute to ensure equality of treatment. I am sure that that is right. It is unnecessary and, I think, a mistake to use primary legislation to establish the same principles. Of course, over the length of time for which the NHS has been in existence, professional regulation has, on the whole, been an effective safeguard of equality of access. On that basis, I hope that my noble friend will feel genuinely reassured and able to withdraw his amendment.
Baroness Finlay of Llandaff
Before the Minister sits down, I seek clarification. It is extremely reassuring to hear about the code of conduct that will be coming through for managers. I seek reassurance that the code of conduct will cover managers at every level. While there is clarity over consultants, consultants’ contracts and the GMC guidance which we have discussed at length, there are many others in the healthcare team who are not managerially answerable to the consultants. They are managerially answerable in other streams. There needs to be consistency across all those aspects of management. That includes other professional managers such as nurse managers, allied healthcare professional managers and so on, not just those who are caught, perhaps, by the council guidance because they are managers coming from a non-healthcare background. We were seeking that consistency of conduct with the amendment. I hope that the Minister can give me reassurance.
Lord Phillips of Sudbury
My Lords, I first thank the seven Peers who added their voices to the amendment. I thank my noble friend the Minister for an extremely thoughtful and comprehensive reply. None the less, it would be dishonest of me to say that he convinced me on all counts. It is perhaps asking too much on such a complicated business to have full satisfaction.
The one thing that I am bound to say is that the Minister’s interpretation of these various provisions in the various codes is different from mine. I am a lawyer extremely long in the tooth and I do not think that the provisions that he quoted, although they look helpful on the face of it, actually work in practice. That is evidenced by the total absence of any disciplinary measures—ever, as far as I can see—against doctors acting improperly in relation to queue-jumping. However, that is in the past.
I must quickly answer questions raised of me by the noble Baroness, Lady Murphy, and the noble Lords, Lord Warner and Lord Ribeiro. The noble Lord, Lord Ribeiro, is the easiest to answer: the amendment does not cover the existing NHS trusts, only the NHS foundation trusts. However, I think that the NHS trusts are going to be out of existence in a couple of years’ time. I saved the House by not including that; I would have had it at Third Reading if necessary. As to the noble Lord, Lord Warner, he can go to his private knacker any day, any place, any time and pay what he likes. To the noble Baroness, Lady Murphy, the answer is that, if you are having private treatment within an NHS hospital, the amendment would prevail, had it passed; namely, you could not then barge the queue because you were a private patient in respect of essential clinical care. It really is as simple as that.
I do not get the sense from the House that noble Lords want a Division on this matter. I do get the sense that they are impressed by what the Minister said, particularly in relation to the management code. That could make a very big difference. The only thing that I ask my noble friend the Minister—if he is with me—is that he just keeps an eye on the issue at the heart of this amendment and the debate, and, in the new regime that we are ushering in, on the concerns behind this amendment, shared by many in the country.
Earl Howe
Before my noble friend withdraws the amendment, I give him that reassurance. The NHS constitution will be monitored at every level in the system, from the Secretary of State downwards, as will the provisions within relating to access to healthcare for NHS patients. Of course, if there is any sign that that pledge in the constitution is being jeopardised in any way, appropriate action will of course be taken.
I am told that I should clarify what I said in answer to the noble Baroness, Lady Finlay, about to whom manager training will apply. It will apply to “leaders across the NHS”—it says here. It will primarily be aimed at very senior managers with a cascade of good practice down to more junior levels.
“( ) If, at any time before section 8 comes into force, Monitor obtains the approval of the NHS Commissioning Board Authority to publish guidance under section 65DA(4)(c) or (5) of the National Health Service Act 2006, that approval is to be treated for the purposes of subsection (6)(b) of that section as approval obtained from the National Health Service Commissioning Board.”
“(14) The Healthwatch England committee is to be treated for the purposes of section 2(1) of the Public Bodies (Admission to Meetings) Act 1960 as a body that includes all the members of the Care Quality Commission.”
Baroness Masham of Ilton
My Lords, perhaps I may ask a question following the speech of the noble Baroness, Lady Barker. Does healthwatch not cover health and social care? If it does, the noble Baroness, Lady Bakewell, has a strong point.
Earl Howe
My Lords, while, for reasons which I shall explain later, I do not feel able to accept this amendment, I say immediately to the noble Baroness that she has raised a very important issue with which the Government are in complete sympathy.
It is important for older people to have a strong voice to champion their interests and to ensure that their needs are addressed in public services. Both I and my honourable friend the Minister of State for Care Services have met the noble Baroness over recent months to discuss this issue and have been struck forcefully by the powerful case that she has made. As she is aware, my honourable friend would like to continue these discussions with her, as we are particularly grateful for the expertise that she brings to this area.
I am sure noble Lords will agree that older people are affected by a wide range of issues—not only health and social care but areas of policy such as housing and pensions. The Government recognise this. The UK Advisory Forum on Ageing, co-chaired by the Minister of State for Care Services and the Minister of State for Pensions, provides advice across government on the additional steps that they and their partners need to take to improve well-being and independence in later life.
In health, a range of functions in relation to older people are already carried out in this country. That should not surprise us because we all know that a very large proportion of the NHS budget is accounted for by healthcare delivered to the elderly. The Department of Health is pursuing a number of initiatives to improve the care of older people in hospitals, care homes and other settings. These initiatives cover all stages of the care pathway—from helping individuals to stay healthy and to stay in the community all the way through to end-of-life care. For example, the department already has a National Clinical Director for Older People, Professor David Oliver, whose remit is to promote the better care of older people across the NHS and social services, and to provide clinical leadership for cross-government work on older people.
My noble friend Lady Barker rightly stressed the key role of social care in relation to older people. Looking across the spectrum of health and social care, each health and well-being board will be required to develop a joint strategic needs assessment, identifying the current and future needs of the local population, and a joint health and well-being strategy to set out how those needs will be met. I can say to the noble Baroness, Lady Bakewell, that it is intended that health and well-being boards will bring together the key local commissioners to enable them, first, to consider the total resource available to improve their population’s health and well-being, and then to come to a joint understanding about how those resources can best be invested. This will undoubtedly help to encourage a more integrated local service which is better able to meet the needs of older people by joining up NHS and social care services. I hope that that offers some reassurance to the noble Baroness that the voice and needs of older people in health is absolutely a priority for this Government.
Amendment 231A proposes that the role of commissioner for older people should fall on a member of HealthWatch England. I am afraid that I cannot agree that that would be an effective approach. The first reason is the one that I mentioned earlier: the role of an old people's champion goes wider than health and social care. Equally importantly, the job of HealthWatch England will be to carry out functions in relation to people. The word “people” is a deliberately broad term and its ordinary meaning would include older people of course, so we do not feel that it would be appropriate to give a member of HealthWatch England a remit for older people, which would give additional weight to one group of people over another. It could also lead to calls for a commissioner for other groups like those with learning disabilities and it would be difficult to see where the list would stop.
Although I completely understand the concern that older people have often lacked a voice within the system, and the need to ensure that they are not overlooked, we do not agree that the singling out of this group over others, within the context of healthwatch, would be the best way to achieve that. We want to address the concerns of the noble Baroness but not in this way. In the light of that and on the basis that she will continue to have discussions with my honourable friend on the issue in a wider sense, I hope that she will feel sufficiently reassured to withdraw her amendment.
Baroness Bakewell
I thank the noble Earl for that engagement with the argument which I hope to start. Having a toe in the door, I hope that I can keep it open and perhaps prise it a little bit further open.
The noble Earl cites all the amazing institutions which are responsible for older people and one wonders why there is such a catalogue of misery across the country. Why are things going wrong? Why do they not answer the needs of older people? Why are there so many people catalogued as living wretched lives and writing letters of complaint, virtually with tear-stained ink? This is a major problem that the system is not answering. Therefore, I hope to take the issue further.
I very much agree with the noble Baroness, Lady Barker, that we should not medicalise the issue of being old. We have to keep old people fit so that they can enjoy old age. If this matter is to be referred to other government departments, I would include the DCMS so that access for older people to theatres and cinemas, help with hearing and so on can improve their quality of life. There is much to be improved, as we all know. I welcome the noble Earl’s commitment to making that so and I hope to follow it up in future. I beg leave to withdraw my amendment.
“( ) After subsection (3A) insert—
“(3B) Each local authority must ensure that only one set of arrangements under subsection (1) in relation to its area is in force at any one time.””
“(7) In the title to section 221, omit “: local involvement networks”
“(2) The arrangements must be made with a body corporate which—
(a) is a social enterprise, and(b) satisfies such criteria as may be prescribed by regulations made by the Secretary of State.(2A) For so long as the arrangements are in force, the body with which they are made—
(a) has the function of carrying on in A’s area the activities specified in section 221(2), and(b) is to be known as the “Local Healthwatch organisation” for A’s area.(2B) But the arrangements may authorise the Local Healthwatch organisation to make, in pursuance of those arrangements, arrangements (“Local Healthwatch arrangements”) with a person (other than A) for that person—
(a) to assist the organisation in carrying on in A’s area some or all of the activities, or (b) (subject to provision made under section 223(2)(e)) to carry on in A’s area some (but not all) of the activities on the organisation’s behalf.”
“(3) In subsection (3), for the words from the beginning to “who is not” substitute “None of the following is capable of being a Local Healthwatch organisation”.”
“Local arrangements: power to make further provision
(1) Section 223 (power to make further provision about local authority arrangements) is amended as follows.
(2) In subsection (1), for “require prescribed provision to be included in local involvement network arrangements” substitute “include prescribed provision”.
(3) After that subsection insert—
“(1A) The Secretary of State may make regulations which provide that local authority arrangements must require Local Healthwatch arrangements to include prescribed provision.”
(4) In subsection (2)—
(a) for “must require local involvement network arrangements to include” substitute “must include or (as the case may be) must require Local Healthwatch arrangements to include”,(b) in paragraphs (a), (c) and (d), for “a local involvement network” substitute “a Local Healthwatch organisation or a Local Healthwatch contractor”, and(c) after paragraph (d) insert “; (e) prescribed provision relating to the activities which a Local Healthwatch contractor may not carry on on a Local Healthwatch organisation’s behalf;(f) prescribed provision relating to the obtaining by a Local Healthwatch organisation of a licence under section 45C of the Health and Social Care Act 2008 and the grant by the organisation to a Local Healthwatch contractor of a sub-licence;(g) prescribed provision relating to the use by a Local Healthwatch organisation or a Local Healthwatch contractor of the trade mark to which a licence under that section relates;(h) prescribed provision relating to the infringement of the trade mark to which a licence under that section relates;(i) prescribed provision relating to the imposition of a requirement on a Local Healthwatch organisation to act with a view to securing that its Local Healthwatch contractors (taken together) are representative of—(i) people who live in the local authority’s area,(ii) people to whom care services are being or may be provided in that area, and(iii) people from that area to whom care services are being provided in any place.”(5) After subsection (2) insert—
“(2A) The provision which may be prescribed in relation to a Local Healthwatch contractor includes provision that relates to the contractor—
(a) only in so far as it assists the Local Healthwatch organisation in the carrying on of activities specified in section 221(2);(b) only in so far as it carries on such activities on the organisation’s behalf.(2B) Regulations under this section may make provision which applies to all descriptions of Local Healthwatch contractor, which applies to all those descriptions subject to specified exceptions or which applies only to such of those descriptions as are prescribed.”
(6) In subsection (3)—
(a) before the definition of “a local involvement network” insert—““care services” has the meaning given by section 221;”,
(b) omit the definition of “a local involvement network”,(c) for the definition of “local involvement network arrangements” substitute—““Local Healthwatch arrangements” has the meaning given by section 222;”
(d) after that definition insert—““Local Healthwatch contractor”, in relation to a Local Healthwatch organisation, means a person with whom the organisation makes Local Healthwatch arrangements;”, and
(e) after the definition of “prescribed provision” insert “;“trade mark”, and “use” and “infringement” in relation to a trade mark, each have the same meaning as in the Trade Marks Act 1994.””
“( ) a complaint under section 73C(1) of the National Health Service Act 2006; ( ) a complaint to a Local Commissioner under Part 3 of the Local Government Act 1974 about a matter which could be the subject of a complaint under section 73C(1) of the National Health Service Act 2006; or”
“(2) In subsection (2), omit “by a local authority with another person (“H”)”.”
“Consequential provision
(1) In the Schedule to the Public Bodies (Admission to Meetings) Act 1960, after paragraph (bk) (as inserted by paragraph 2 of Schedule 13) insert—
“(bl) Local Healthwatch organisations, as regards the carrying on of activities specified in section 221(1) of the Local Government and Public Involvement in Health Act 2007 (local care services);”.(2) In Part 3 of Schedule 1 to the House of Commons Disqualification Act 1975, at the appropriate place insert—
“Director of a Local Healthwatch organisation.”(3) In Part 3 of Schedule 1 to the Northern Ireland Assembly Disqualification Act 1975, at the appropriate place insert—
“Director of a Local Healthwatch organisation.”(4) In Part 2 of Schedule 1 to the Freedom of Information Act 2000 (local government), after paragraph 35D insert—
“35E A Local Healthwatch organisation, in respect of information held in connection with—
(a) arrangements made under section 221(1) of the Local Government and Public Involvement in Health Act 2007, or(b) arrangements made in pursuance of arrangements made under section 221(1) of that Act.” (5) In section 65H of the National Health Service Act 2006 (NHS foundation trust special administration provisions: consultation requirements), in subsection (8), for subsection (e) substitute—
“(e) a Local Healthwach organisation;”.(6) In section 4 of the Health and Social Care Act 2008 (matters to which the Care Quality Commission must have regard)—
(a) in subsection (1)(c)—(i) for “local involvement networks” substitute “Local Healthwatch organisations or Local Healthwatch contractors”, and(ii) omit “in their areas”.(b) for subsection (3) substitute—“(3) In subsection (1)(c), “Local Healthwatch contractor” has the meaning given by section 223 of the Local Government and Public Involvement in Health Act 2007.””
Earl Howe
My Lords, this group of amendments all relate to health and well-being boards and in particular their statutory minimum membership, responsibility for preparing both joint strategic needs assessments and joint health and well-being strategies, as well as their role in promoting integration.
Amendments from the noble Lord, Lord Ramsbotham, and my noble friend Lord Shipley, relate to changes to the statutory membership of health and well-being boards, which I know we have previously debated. As noble Lords will be aware, we have consulted extensively on the membership of health and well-being boards and one of the consistent messages we have heard is that local people want a balance between the flexibility to add members alongside some consistency in representation from key players, such as elected representatives and clinical commissioning groups.
The Future Forum looked at this and, following its report, we made a commitment that it will be for local authorities, or in some cases the leader or mayor, to determine the precise number of elected representatives on its board, although we have stipulated that there must be at least one. I would ask my noble friend Lord Shipley to note the words “at least one”. We believe that it is right for local areas to be able to have the flexibility to determine the wider membership of their boards based on local need. I am of course happy, however, to engage with my noble friend in further discussions.
The Bill allows local areas the flexibility to develop the arrangements that best work for them. It is important to be clear that the purpose of this policy is not primarily about setting up a committee but about stimulating effective joint working for and with local people and communities. The health and well-being board will be central to this joint working but must not represent its limit.
We can be encouraged by what is now happening on the ground. We know that a large number of local areas are already working with all the relevant stakeholders to explore and agree how they can work together in the future to make the biggest difference to local people. For instance, from our work with shadow health and well-being boards, we have had lots of feedback to suggest that two-tier county councils are working closely with district councils through the boards in a range of creative and positive ways based on local need and circumstances. In fact, I understand that in many two-tier areas, shadow boards are already operating with more than one district council representative ranging from the leader, the chief executive or a senior officer. However, developing these relationships and understanding how best everyone, whether it be district councils, health professionals, local providers or the voluntary sector, can contribute in the most appropriate way, is something that we feel strongly is best left to these conversations rather than being prescribed on the face of the Bill.
Amendments 238C, 238D and 238E, tabled in the names of the noble Lord, Lord Ramsbotham, and the noble Baroness, Lady Whitaker, relate to placing a particular emphasis on educational and children’s services. They would make explicit reference to education and children’s services in the Bill, in the context of the duty and powers of health and well-being boards, to encourage close working between the commissioners of health and social care services, with itself and with commissioners of health-related services in the area. I should like to take this opportunity to reiterate some of the points made during our previous debates on this topic. I fully agree that joining up health and social care services for children as well as for adults is crucial, but I believe that the existing provisions set out in the Bill are sufficient to ensure that the voices of children are heard. Indeed, I should like to remind noble Lords that in preparing the JSNA and joint health and well-being strategy, health and well-being boards will have a statutory duty to involve people who live or work in the area, and this will include within it young people. The director of children’s services will be a statutory member of the health and well-being board to ensure that the needs of children are taken into account, and local healthwatch will also be able to use its membership on the boards to help ensure that the voices of the whole community, including those of young people, are fed in.
In addition, the statutory guidance—I think this is a reassurance that the noble Lord, Lord Ramsbotham, wanted—we are producing on JSNAs and joint health and well-being strategies will emphasise the importance of understanding and addressing the needs of children and young people. We are also supporting the efforts of local partners by bringing together emerging health and well-being boards into a national learning network, which is developing ways to engage effectively with local people, including a focus on effective joint working to improve services for children and families.
Baroness Whitaker
I am sorry to interrupt the noble Earl, but before he moves off our amendments, I did not actually hear the words “education services” in his helpful remarks. Could he explain how they will come in?
Earl Howe
I was going to come on to that in replying to the noble Earl, Lord Listowel. If the noble Baroness will bear with me, I hope that I will cover the point.
Amendment 238A would require local authorities and CCGs to specifically consult relevant health professionals when preparing the JSNA. As I have said before, in preparing the JSNA and joint strategy, local authorities and CCGs will be under a duty, which the health and well-being boards will discharge, to involve people who live or work in the area. In practice this could well include health professionals. Indeed, I thought that the noble Baroness, Lady Finlay, made a powerful point in this regard, and I do feel that we are broadly accepting the spirit of the amendment.
In relation to Amendment 238AZA in the name of the noble Baroness, Lady Massey, and the noble Earl, Lord Listowel, I should like to reassure both of them that the health and well-being strategy will be a shared, overarching response addressing the health and social care needs of an area identified through the JSNA. In the joint strategy, the board will be able to consider how the commissioning of wider health-related services could be more closely integrated with health and social care commissioning. For example, the board could consider whether and how housing, education or local authority leisure services could affect health and, if they do, how commissioning could be more closely integrated with the commissioning of health and social care services. The model we have chosen for health and well-being boards is designed to enable those wider conversations to take place, and in answer specifically to the noble Earl, Lord Listowel, I genuinely believe that the arrangements in the Bill afford a much better chance of us having joined-up thinking and joined-up services than we have had before. Clinical commissioners will be best placed to work in the interests of children, especially when this requires working with other professionals. There are strong duties on commissioners as to promoting integration, as the noble Earl will be aware.
On Amendment 238H, in the name of the noble Lord, Lord Beecham, we believe that health and well-being boards will provide an opportunity to build strong relationships with an open culture of peer-to-peer challenge. The JSNA and joint strategy will provide all members with a common understanding of local needs and priorities. However, giving boards a power of veto over commissioning plans would undoubtedly undermine that relationship. I am afraid that we are firmly against that idea.
We are in agreement on that matter with the Future Forum and the Local Government Association, both of which recognise that placing a duty on CCGs to agree commissioning plans with the health and well-being boards would confuse lines of accountability and be unworkable—confusing and unworkable were the words of the Future Forum. CCGs are ultimately responsible for their budgets and to give the health and well-being boards the right to make decisions that might incur costs for commissioners without taking responsibility for expenditure would be wrong.
I hope that I have been able to reassure noble Lords adequately—although I know that I will not have reassured the noble Lord, Lord Beecham—and they feel able not to press their amendments.
Finally, I should like to speak to the government amendment in this group, Amendment 239, which is a minor technical amendment in relation to Clause 195. The purpose of this amendment is to clarify that a local authority may delegate any functions exercisable by it to the health and well-being board. I hope that it will receive the support of the House.
Lord Beecham
I remind the noble Earl of my question about whether that extends to general powers of competence rather than statutory functions. I invite him to communicate later as I suspect that he may not be in a position to do that immediately.
Lord Ramsbotham
I thank the noble Earl for his habitually courteous and balanced reply and I am reassured on some of the points that I raised. I am grateful to the noble Baroness, Lady Whitaker, and my noble friend Lady Finlay in particular for supporting the amendments and to the noble Lord, Lord Beecham, for mentioning them. Like the noble Baroness, Lady Whitaker, I have this nagging fear that education, education, education is something that will need to engage the health and well-being boards. The link between education and health, particularly in the assessment, which was the subject of the amendments, is absolutely crucial. During the passage of the then Education Bill, noble Lords described what they wanted but of course they could not have it because they were health matters funded by health. Therefore, it is terribly important that joint working happens.
I was very glad that the noble Earl mentioned “effective joint working”, because I am sure that that is what we all seek. That was what was behind each and every one of the amendments. On the basis of that and knowing the noble Earl and that if he says something it is usually likely to happen, I beg leave to withdraw the amendment.
Health and Social Care Bill
Earl Howe Excerpts(12 years, 2 months ago)
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Lord Patel
My Lords, I do not know whether the Bill is adequate for its intention. I did not think for one minute that the noble Lord, Lord Warner, was trying to insert a Bill into a Bill; he is trying merely to highlight the need for some commitment to social care in a Bill that has “health and social care” in its Title but not much about social care in it. Successive Governments have talked about integrated health and social care but have failed to achieve it. For the first time, we have a Bill with the Title “Health and Social Care”, but with no mention at all of social care. To indicate some commitment to its delivery, if not now then at a later stage, would have been adequate. Delivering integrated health and social care should have the same commitment to it as delivering improved waiting times for acute care.
We tried to get commissioning as a way of integrating health and social care. It would have been a better way forward, but unfortunately that amendment was narrowly defeated. This amendment asks only that the Government commit to making continuous efforts to reduce barriers to integrated health and social care. I do not think that it is inadequate or that it inserts a new Bill into the Bill.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, this has been a thoughtful debate. At the outset, it is appropriate for me to pay tribute to the noble Lord, Lord Warner, for his strong advocacy of the need to improve the quality and funding of social care services. The noble Lord played a critical role as part of the Dilnot commission and has made strong speeches both today and in Committee on this subject.
I am in complete agreement that high-quality social care services are crucial for the health and well-being of the population. As the Government and many others have said, major reform in adult social care is long overdue. We recognise the need for lasting reform to respond to the challenges facing social care. The recent engagement exercise, Caring for our Future: Shared Ambitions for Care and Support, conducted from September to December last year, highlighted again the scale of the challenges. We know that the quality of care is variable and can sometimes be poor, as recent high-profile failures have demonstrated. The current social care system does not support people to plan for their future care needs or maintain their well-being and independence. People often have a poor understanding of what social care is and of how to navigate the system and access the services they need.
All this is compounded by the well documented twin issues of an ageing society and financial constraint. This critical context explains why the Government have set the reform of adult social care as one their key priorities, but it also explains why social care reform merits it own focus and cannot be dealt with around the edges of discussions on another important topic. The Government are convinced that the time has come for social care reform. Given that, the question before us is not whether action should be taken to improve the quality of social care services but rather how we go about doing so.
I have given Amendment 163AA a good deal of consideration, and I am afraid that I have to say to the noble Lord, Lord Warner, that I do not feel it is the appropriate mechanism to achieve what he seeks. This is because, as well as reform being needed for social care quality and funding, there is broad consensus that social care law too needs extensive reform. The noble Baroness, Lady Murphy, helpfully mentioned the Law Commission report on law reform, which put forward this argument last year. I wish to quote a short passage of the report, which states that,
“adult social care law has been the subject of countless piecemeal reforms … It is of little surprise that not only does the law perplex service users and social workers, but also the judiciary”.
This is the problem with the noble Lord’s amendment; to accept it would be to perpetuate exactly the same confusing and piecemeal approach against which the Law Commission argues. The legal framework for care and support needs fundamental reform, not further additions to an already opaque statute.
I wish to set out briefly what I see as the appropriate course of action on social care reform. We will publish a White Paper on care and support in spring this year. I repeat that undertaking, particularly to the noble Baroness, Lady Pitkeathley. We will follow this by bringing forward legislation at the earliest opportunity. The White Paper will draw on multiple sources, including the excellent work of the Law Commission and the Commission on Funding of Care and Support, for which I again express my gratitude to the noble Lord, Lord Warner. The White Paper will respond formally to the reports of both those commissions and, of course, to the Health Select Committee report on social care.
The noble Lord has proposed that a duty be placed on the Secretary of State to secure continuous improvement in the quality of social care. The Government’s proposals for embedding and safeguarding quality throughout social care will be a central theme for the White Paper. We sought views on this as part of the engagement; it highlighted that progress on quality has already been made with the publication of Transparency in Outcomes last year, which set out the Government’s approach on quality, transparency and outcomes in social care. Our approach to quality improvement is aimed at responding to poor quality, enabling improvement and rewarding best-quality services to support choice.
The ideal for social care is a sector filled with great people doing great jobs who deliver high-quality care to people using social care services. As I said, we are committed to publishing the White Paper this spring and preparations are on course. The Government are taking the broadest possible approach to achieving consensus on the most crucial long-term issues. Therefore, in that context, I do not believe that the time is right for an amendment of this sort. It would pre-empt the White Paper and could leave stakeholders unclear on the broader picture of social care reform.
Moreover—I see this as the central point—we do not want to make further changes to the existing statute when more lasting legal reform is already planned in the near future. Social care is a vital public service and deserves its own focus in its own statute. Too often, debates on social care have taken place on the margins of those on another issue.
Baroness Meacher
I apologise for intervening but I wonder whether it might be relevant to change the Title of the Bill to the Health Bill, bearing in mind the noble Earl’s very valid comments that there will be a White Paper and a totally separate Bill. The Bill’s Title is a misnomer.
Earl Howe
The noble Baroness may not have been following all our debates as closely as some, given that we have extensively debated integrating health and social care and how the Bill will improve the prospects of that. I therefore do not agree that social care is such a poor relation in the Bill. She is quite right; of course its prime focus is health, but we have not completely neglected the subject that is so close to her heart.
Specific legislation on social care will be the most appropriate vehicle for debating these critical matters and achieving lasting reform. Of course I understand the desire of the noble Lord, Lord Warner, to keep social care at the top of the political agenda. That is greatly to his credit. I can assure him that the Government have not lost sight of this. We share the same aims for a high-quality service, but it would be wrong to legislate now in such a selective way. The noble Lord may suppose that this is just another instance of a Minister following the standard line that says “resist”, but I hope he will accept that that is not so. There are genuine reasons why the amendment is a bad idea, and I hope that he will feel able to withdraw it.
Having said that, I look forward to debating these issues with him further in due course, and to benefiting from the insight that he and others bring to this topic.
Lord Warner
My Lords, this is an interesting debate. Let me say to the noble Baroness, Lady Murphy, that I am not having the House on. I am deadly serious about this because when the Dilnot commission was set up we were asked to do a job extremely rapidly, and we did so well within the 12 months we were set. We were asked to do that so that the Government could crack on with change, which is absolutely vital. This service—adult social care—is in a parlous state that will also do enormous damage to the NHS. Unless you do something quickly about adult social care, you will cause the most terrible financial crisis in the NHS. That is what the demography tells us. That is the reality for urgent admissions to acute hospitals and people staying there much longer than they need to.
If you are interested in improving and safeguarding the NHS, you should be interested in rapidly moving on with the reform of adult social care. The Government are already behind time on this reform. I do not blame the noble Earl, but we were expecting faster action, as was the Dilnot commission. Spring could come quite late this year in terms of the White Paper appearing, and we have no guarantee that there will be legislation in the next Session. The noble Earl has stuck to the normal line, for which I do not criticise him, that one can give no assurances about the next Session’s legislation, but one has to be an extreme optimist to believe that a collective Government will want to have another go at this territory in the next parliamentary Session. I do not doubt his good will—I am grateful for the kind words he said about me—nor his real confidence that the Government will press on with that, but there are a lot of people out there, not just in front of Parliament today, who think that the Government need to go faster on this issue.
I have listened very carefully. The amendment does not prevent the Government from bringing forward new legislation in the next Session. If they want to do that, I shall be deeply delighted and they will have my support. I see nothing in the amendment that prevents the Government from making a start on making changes and protects them to go further if they want to include such provision in the next legislative programme.
I think we should make sure that adult social care is properly represented and recognised in the Bill. Therefore, I wish to test the opinion of the House.
Earl Howe
My Lords, competition in the health service is a complex topic and very often, in my experience, misunderstood. It is important that we start with a misconception which several noble Lords have raised with me outside the Chamber and, indeed, in Committee. We need to be clear that competition already exists in the NHS and that the Bill does not herald its introduction. The last Government fully recognised that and encouraged it. The last operating framework which they put in place for the NHS stated:
“We shall enable this by … re-affirming our commitment to the ‘any willing provider’ approach for free choice of elective care, reducing the barriers to the entry of new providers”.
The previous Prime Minister, Gordon Brown, giving evidence to the Liaison Committee in December 2007, said that,
“the private sector … is expanding, will continue to expand and will be a lot bigger in the next few years than it is now”.
The Labour Party manifesto of 2010 said:
“Patients requiring elective care will have the right, in law, to choose from any provider who meets NHS standards of quality at NHS costs”.
The previous Government’s policy of increasing the use of competition is already benefiting patients. The recent report from the Office of Health Economics Commission on Competition in the NHS concluded that,
“evidence both from the UK and internationally suggests that quality based competition with prices fixed by a regulator can be beneficial, producing higher quality care at the same cost on average and, importantly, not leading to increased inequity in access to health care”.
Baroness Thornton
I thank the noble Earl for allowing me briefly to intervene. He has given some useful and selective quotes. Do not those quotes go on to warn very seriously about cherry picking?
Earl Howe
I think that the noble Baroness and I agree that cherry picking is highly undesirable, which is why this Bill outlaws it.
I do not see, as some do, competition and integration as polar opposites, nor are they mutually exclusive. I agreed entirely with the Future Forum when it said in its report last year:
“We have also heard many people saying that competition and integration are opposing forces. We believe this is a false dichotomy. Integrated care is vital, and competition can and should be used by commissioners as a powerful tool to drive this for patients”.
That is worth keeping in our minds.
In response to my noble friend Lord Clement-Jones, let me turn to competition law. I understand that some noble Lords want to prevent competition law ever applying to NHS services. That is to wish for the impossible. The question is not whether competition law should apply to the health service but how. That is why I agree with my noble friend that we must make sure that the NHS is insulated from the inappropriate application of competition law. In particular, we must ensure that clinicians are free to commission NHS services in the way that best serves patients’ interests and that there are no impediments to beneficial co-operation to increase integration, improve quality or reduce inequalities. Under our proposals, a series of protections will provide the sort of insulation against inappropriate application of competition law that my noble friend and others require. I hope that the House will allow me to set this out in a little detail.
Co-operation for the benefit of patients should not breach competition law. Article 101(3) of the Treaty on the Functioning of the European Union and Section 9 of the Competition Act lay down exemptions which apply if the wider benefits of an agreement outweigh its anti-competitive effects. On an individual basis, we would expect collaborative arrangements whose overall effect was beneficial to patients to meet the criteria in Article 101(3) and Section 9.
Competition law would be unlikely to apply to a wide range of NHS services. Some obvious examples are accident and emergency, trauma, critical care, maternity, specialist surgery and many others, particularly in remote or rural areas.
Monitor would support the NHS to understand where competition law does and does not apply. A key benefit of establishing Monitor as a sector regulator, with concurrent responsibilities under the Competition Act, is that it will be able to provide authoritative guidance to the NHS on where that law would and would not apply. The Government’s firm expectation is that Monitor would produce sector-specific guidance and address this question in terms of relevant examples, including models of integrated care and clinical networks, which would be updated in line with developments in healthcare practice. This guidance would help reduce unnecessary fear of legal challenge and uncertainty for both commissioners and providers.
Monitor could also provide informal advice in individual cases, building on what the Co-operation and Competition Panel does now. For example, that might include commenting on what types of collaborative arrangements and specific provisions within such arrangements are and are not likely to comply with the competition rules. Any such advice would be without prejudice to any future decision that Monitor might have to take to enforce the provisions of the Competition Act. However, like the guidance, such advice would provide reassurance to providers and could help them to avoid unnecessary legal costs.
If and when it became appropriate, Monitor could make the case for block exemptions. That would mean that the Competition Act would not apply to specified arrangements for the provision of NHS services. At this stage, it is not clear whether or where block exemptions might be appropriate, but an example of the sort of arrangement that could potentially be covered is clinical networks. In any event, this protection would remain available and there is no doubt in my mind that Monitor would be better placed than the OFT to determine when and where it might be needed.
In these and other areas, competition is unlikely to be effective in providing services on the scale or in the way that best promotes patient's interests. The NHS often acts to promote social objectives to ensure that patients receive the level of service that they could not afford or which private companies might not find it profitable to provide. Applying competition law in such contexts makes little sense and such activities are likely to fall outside its scope.
Next, commissioners would not have to create markets against the interests of patients. Clinicians will be free to commission services in the way they consider best. We intend to make it clear that commissioners will have a full range of options and that they will be under no legal obligation to create new markets, particularly where competition would not be effective in driving high standards and value for patients. As I have already explained, this will be made absolutely clear through secondary legislation and supporting guidance as a result of the Bill.
The Bill already creates duties on commissioners to secure continuous improvement in the quality of services, reduce inequalities and promote integrated services. The Government intend to complement these by making it explicit through regulations under Clause 73 of the Bill that commissioning decisions must be in the best interests of patients, those decisions must be transparent and commissioners will be accountable for them. We would expect the NHS Commissioning Board to maintain guidance to support commissioners in these decisions, based on the available evidence and drawing on academic research.
It is worth reflecting that without Part 3, the main legal provision on commissioning NHS services would continue to be the general procurement regulations for public bodies introduced by the previous Administration in 2006. The application of that law to the NHS is unclear. Without the provision that we intend to include in regulations under Clause 73, commissioners would continue to face risk of legal challenge when they decided not to open services up to competition, even where the decision was in the best interests of patients. That uncertainty is unacceptable.
Finally, the Bill would prevent private companies taking over NHS trusts or foundation trusts. There has been a lot of misconception about that. I assure the House today, unequivocally, that that could not happen.
I now turn to the opposition amendments. Amendment 163D raises the application of competition law to the provision of NHS services. Its intention is to ensure that competition law does not apply to the provision of NHS services. However, as I have said, there is a basic point to make here: it is not within the gift of this Bill to secure that. It is like saying that if you pass a law saying that black is white, that is what will happen. However, what I agree on absolutely is that we need to protect the NHS from inappropriate application of competition law and its undesirable effects. Equally, as I said earlier, we do not want to leave patients unprotected from potential abuses by providers. That would be the effect of the amendment and I hope that the noble Baroness will reconsider her wish to move it.
I also referred to the fact that this Bill would provide for clinical commissioners to decide how to secure NHS services to best serve the interests of their patients. Hence, I do not agree with Amendment 178A.
The NHS has always been a comprehensive service, free to patients, with treatment and care based on clinical need and delivered through a wide range of diverse providers. That includes GPs, dentists, independent sector providers, NHS trusts, foundation trusts and a range of charities and social enterprises. Taken together, these providers operate across the various sectors of healthcare, including the community and mental health. They provide a range of services, including vital specialist services to people in lower socioeconomic and minority groups, and people with rare medical conditions.
Amendment 178A does not acknowledge that reality at all. Instead, it seeks to create an arbitrary and unnecessary presumption in favour of NHS and foundation trusts which would likely act against patients’ best interests. For example, the amendment would make it more difficult for a clinical commissioner seeking to manage long-term conditions such as diabetes or COPD in primary care and in the community—involving GP practices or social enterprises—instead of sending those patients to hospital. That could prevent choice for patients in a very crucial area. It could also prevent choice in end-of-life care by restricting the extent to which organisations such as Macmillan and Marie Curie were able to extend the services that they delivered for the NHS. It could prevent charities such as Turning Point transforming—
Baroness Thornton
My Lords, has the noble Earl actually read the amendment? Paragraph 6(c) says,
“the need to commission health services in a way that promotes the integration of health and social care services”.
Will the noble Earl accept that he just said that it does not say that? It says that; it is there.
Earl Howe
My Lords, we are talking about Amendment 178A. I disagree with the noble Baroness’s reading of it. It is quite clear what it says. It is geared towards making the NHS the preferred provider. The noble Baroness shakes her head. If I have misunderstood and that is not her intention, I will obviously retract that.
Yet the amendment would increase the risk of commissioners facing legal challenge under procurement law. As the noble Baroness pointed out in 2010,
“procurement must be transparent and non-discriminatory”.—[Official Report, 9/3/10; col. 137.]
Amendment 178A would be a retrograde step. I ask the noble Baroness to withdraw it, as well as the other amendment in this group.
Lord Clement-Jones
My Lords, is the Minister aware that many of us will welcome the statement he made? It was very comprehensive—indeed, more comprehensive than would be possible in many respects under an amendment to the Bill. He has covered so many different areas, both in terms of the provision-commissioning duties of Monitor and also the duties of co-operation.
Lord Clement-Jones
My Lords, clearly I have the Floor. I thought that I had it after the noble Baroness, Lady Thornton, as I was guided. I am very pleased to have the Floor before her.
What my noble friend Lord Howe said was extremely constructive, not only about the state of competition within the health service and some of the patching that had to be done to make up for deficiencies of the 2006 Act, but also to do with competition, the block exemptions available, co-operation and the general duties of Monitor. A law court would probably find it much more useful to have my noble friend’s fuller statement than simply some rather narrow amendment to the Bill. I recognise the deficiencies in my own Amendments 177 and 178. I much prefer the Pepper v Hart solution that has been found and proposed in these circumstances. The dangers of putting matters in the Bill are entirely illustrated by Amendment 178A. The Minister’s criticism of that amendment, which was made to me by expert competition lawyers, of trying to put commissioning in a straitjacket as is proposed—it may give the wrong impression, but it is ineffective in terms of EU procurement law—shows exactly the dangers of trying to put too much into the Bill. The Minister, entirely appropriately, has picked up many of the points made during the course of the Committee and in debate today and put forward a statement that will be used by those looking at provision and commissioning in the NHS in future. On that basis, I wholly welcome it. I may not be able to withdraw my amendment to the amendment, but I shall certainly not be moving my Amendments 177 and 178. I beg leave to withdraw the amendment.
Baroness Murphy
My Lords, this is a disparate group of amendments. I support the principles that underline Amendments 164, 165 and 166. The Bill has been amended since the Committee stage and may address some issues, and that is one of the difficulties when we discuss competition, collaboration, integration and co-operation. We will have yet another amendment later today or on Thursday from the Government on the duty of co-operation that will further strengthen the role of Monitor in regard to these issues. That, I think, will meet some of the arguments.
My feelings are consonant with those of the noble Baroness, Lady Williams. I am furious at some of the debates in the press about whether we are marketeers or pro-NHS. In fact, the vast majority of people in this House steer a course in order to do what is in the best interests of patients in terms of competition, collaboration and integration. I acknowledge that many of us must feel the same as the noble Baroness in her frustration about that.
The intervention of my noble friend Lord Adebowale was helpful in that it reminded us of how competition has worked in mental health services and substance misuse services. For many years collaboration between organisations to deliver services in both acute care and for long-term conditions has been helpful. I have no difficulty thinking of dozens of situations where commissioners have decided to commission services in areas where there has been collaboration between a group of service providers. They may involve social care services, residential care homes being run independently and so on. Commissioners might seek to put together an improved ortho-geriatric service especially for people with multiple disabilities in later life. There are examples of successful collaborative services which have been competitively tendered for. However, I do not want to take up the time of the House at this stage by mentioning too many examples.
I have a question to ask of the Opposition in relation to Amendment 163BA. This is the first amendment in the group, and perhaps the noble Baroness, Lady Thornton, could help me in one respect. I am not quite clear whether this amendment would return Monitor to the position it is in now—where we would continue with the two-tier system of foundation trusts and other trusts with a simple economic regulator for foundation trusts—and would rule out the rest of the new economic regulation functions. If it has that effect, it would seriously wreck the main purpose of the Bill. However, I may well be reading it incorrectly, so before I decide which way to go, I wonder whether the noble Baroness, Lady Thornton, could reassure me that that is not the purpose of the amendment.
Earl Howe
My Lords, there is a clear purpose to Part 3. It is to strengthen sector regulation of healthcare in England by building and improving on Monitor’s existing role as the regulator of foundation trusts. It does that in three main ways. First, it makes clear that Monitor’s overriding duty would be to protect and promote patients’ interests. Secondly, it makes sector regulation more comprehensive by extending Monitor’s remit to all providers of NHS services. Thirdly, it makes sector regulation more effective in realising benefits for patients; for example, by monitoring the NHS Commissioning Board setting fairer prices for NHS services. Fair pricing is important for a whole host of reasons: to strengthen incentives for improvement, to enable better integration and to reduce the risk of cherry picking.
I shall deal with a simple point. Monitor will continue as the regulator of NHS foundation trusts. The Bill makes that crystal clear in Chapter 1. However, I am most grateful to my noble friend Lord Clement-Jones for highlighting the need for greater clarity on what intervention powers Monitor would have over foundation trusts on an enduring basis as against what would be transitional. I shall say more about that when we come to debate his amendments in a later group.
Before going on, let me address Amendment 167 from the noble Lord, Lord Hunt, on the specific issue of patients’ rights to refuse consent for treatment in the NHS. I can absolutely assure the noble Lord that these rights must be protected and nothing in the Bill would change that.
Returning to Part 3 and the role of Monitor, its overarching duty will be to promote economy, efficiency and effectiveness in the provision of healthcare while maintaining or improving quality for the benefit of patients. I underline those last words. This is the single overarching purpose for which Monitor would carry out all its functions, including its continuing functions under the NHS Act 2006 as the regulator of foundation trusts. Monitor’s overarching duty is clear, unequivocal and focused on improving outcomes for patients. I stress that point since as this is its guiding principle for resolving potential conflicts, there is no need to separate Monitor into two organisations, as the noble Baroness, Lady Thornton, proposes in her amendment. I suggest that she has raised an issue that in reality is not a substantive one.
Let me briefly address Monitor’s role in ensuring that where there is competition in the provision of healthcare it operates in the interests of patients. We will have an opportunity to consider this issue in more detail later. Decisions on whether and when to use competition will be a matter for clinical commissioners. As I have already said, there have always been private and voluntary providers in the NHS. Anyone who reads Part 3 will see that it does not create markets for NHS services, despite what some others have said. This is not the same Bill as that which was debated in the Committee of the House of Commons in March 2011. It has changed significantly as a result of amendments tabled by the coalition in response to the NHS Future Forum.
Baroness Meacher
Lower prices may be determined for simpler procedures, but this matter is far more complicated than that. If a lot of the simpler procedures are creamed off, the public sector institution may not be viable, which the research again shows. It is not straightforward. People concerned with long-term and complex conditions fear that over time such a differential organisational and pricing structure could lead to a two-tier system.
Earl Howe
My Lords, it is a concern that I understand. The destabilisation of the NHS will naturally be a concern to all commissioners, which is why they can protect that situation through the contract. They could insist through the contract that a provider provided the full range of services rather than a select few. I simply say to the noble Baroness that we are alive to that concern and I have no doubt that commissioners will be as time goes on.
On the amendment tabled by the noble Lord, Lord Warner, he will be disappointed to hear that I am not drawn to going any further than the Bill does, much as I understand that his idea is well-intentioned. I say that because of Monitor’s overarching duty to protect patients’ interests and prevent anti-competitive behaviour that would harm those interests. This amended duty reflects what the Future Forum recommended and it is right that we stick with that. I can, however, offer the noble Lord, Lord Warner, some reassurance. First, in carrying out its duty to address anti-competitive behaviour, Monitor will necessarily have to identify it. Secondly, Monitor would have the power under Chapter 2 of Part 3 to conduct market studies and to refer potential barriers to new entrants for further investigation by the competition authorities where necessary. I hope that that is of some comfort also to the noble Lord, Lord Adebowale.
We had a most constructive debate in Committee about the Secretary of State’s accountability for securing a comprehensive health service in England and his role in holding Monitor to account for its duties. I thank my noble friend Lady Williams for proposing an amendment which adds much to the Bill in this area. Clause 61 already requires Monitor to carry out its functions in a manner consistent with the Secretary of State’s performance of his duty to promote a comprehensive health service. My noble friend’s amendment would strengthen these provisions and thereby improve the Bill on a key issue. This would help to ensure that the Secretary of State can discharge effectively his responsibility for the health service in England and that Monitor carries out its functions to that end. I support my noble friend’s amendment.
Clause 64 specifies the range of matters that Monitor would be obliged to have regard to in carrying out its duties. In Committee, the noble Baroness, Lady Murphy, and my noble friend Lady Williams raised some concerns about that list. I agreed to reflect on these concerns and have tabled Amendments 168 to 171, which would rationalise the list and make it clear that maintaining patient safety would be the paramount consideration. I hope that the noble Baroness and my noble friend will be content with that rationalisation.
On the amendment tabled by noble friend Lady Cumberlege, the Bill ensures that patient and public involvement is embedded at every level of the healthcare system. However, unlike the NHS Commissioning Board and clinical commissioning groups, Monitor would not be responsible for securing NHS services to meet patients’ needs. It is a regulator, with economic and more technical functions. Clause 61 reflects this and gives Monitor the responsibility for determining arrangements for patient and public involvement as appropriate to its functions. So I am afraid that I do not regard my noble friend’s amendment as appropriate. She asked what could be done if Monitor did not involve patients in the right way. Well, the Secretary of State would hold Monitor to account as to how it discharged its functions. Monitor would have to report to the Secretary of State on how it was discharging its duty on patient and public involvement as part of its annual report. The Secretary of State could also request a specific report on how Monitor discharged this function and intervene where there had been a significant failure in meeting this duty. The Bill provides for HealthWatch to send advice to Monitor as it seems appropriate. Monitor would then be required to respond to this advice in writing. I hope that my noble friend will take comfort from those points.
I stress once again that the purpose of Part 3 is to strengthen sector regulation in healthcare to protect and promote patients’ interests. The current system is inadequate, fragmented and duplicative. It fails to protect the interests of all patients. Part 3 recognises that the NHS is not and never has been a single institution. The reality of the NHS is a comprehensive health service that has always been delivered by a diverse range of providers.
Part 3 would address gaps in the current system by extending equivalent safeguards to protect patients’ interests irrespective of who provides their NHS services. It would also make sector regulation in the NHS more effective in driving improvements and enabling integration during an absolutely crucial period of economic challenge.
I am very happy to support the amendments of my noble friend Lady Williams, which would improve the Bill, but I urge, following the reassurances and explanation that I have been able to give, other noble Lords not to press their amendments.
Baroness Finlay of Llandaff
Before the Minister sits down, will he answer a straightforward question in relation to my amendment? Given that the Bill at page 88 states,
“functions with a view to preventing anti-competitive behaviour”,
and my amendment, which is not being accepted, states,
“functions with a view to preventing anti-collaborative behaviour”,
will the Minister confirm that that means that competition is trumping collaboration?
Baroness Finlay of Llandaff
What instances are there of when collaboration has not resulted in improved patient outcomes? I have not been able to find any.
Earl Howe
Nor have I, which is why I listed earlier some prime examples of collaboration. Clinical networks are a prime example of collaborative behaviour which is clearly in the interests of patients. The noble Baroness is asking me to think of examples in my head of collaborative behaviour in the NHS that does not advantage patients. I cannot think of any, which is why it would be hard for Monitor to find fault with collaboration where it has clearly been designed to improve patient care.
Baroness Thornton
In response to that last remark, it depends on whether Monitor decides it is collusion or collaboration. That is the key point. We suggested that that was a problem right at the very beginning of the Bill—how you distinguish between collaboration and collusion and what you do about that. I do not think we are any closer to finding the answer.
I turn to remarks that were made during the course of this very useful if diverse debate. I want to take one moment to say something to the noble Baroness, Lady Williams, and her colleagues and to the noble Baroness, Lady Murphy, about the fact that they feel misrepresented in social and other media. Indeed, as politicians it goes with the territory that you may be misrepresented from time to time. I have the greatest respect and admiration for the noble Baroness, Lady Williams, and she knows herself that that is where you are when you are in politics.
However, the noble Baroness herself wrote in an article in the Guardian on 13 February about dropping the chapter on competition, and in a letter that the noble Baroness and her leader wrote to their own MPs and Peers, they set a high bar for how Part 3 of the Bill might be made safe. It is just and proper that everybody will be looking at the noble Baroness and her friends to see and test whether they have succeeded and met their own aspirations. At the moment, I think that that is open to question. I do not think that it has been achieved. I know that that might be painful, but that is the case.
We have had some thoughtful amendments and contributions. As usual, the noble Baroness, Lady Finlay, in her amendment and questions put her finger on a very important issue that the Bill needs to address even at this late stage. I had a great deal of sympathy with the amendment of the noble Baroness, Lady Cumberlege. I rather hoped that she would get a more positive response than she did and I am sorry about that.
Baroness Finlay of Llandaff
In summing up after the previous debate, the Minister spoke about the service currently being fragmented and duplicative, and I would agree that it is. I am glad that the Government’s intention is to have a service where healthcare providers collaborate more than they do at the moment. I accept that there will be a range of providers, and I support having a wide range of providers to provide a spectrum of services. However, I do not understand—and have not understood from the answers—why anti-collaborative behaviour should not be up there as a general duty for Monitor with anti-competitive behaviour. Because of that, and because of all the discussion that we have had over integration and collaboration, I feel that it is a duty that I have to those who wish to collaborate in the NHS to test the opinion of the House, so that there is equal status between anti-competitive and anti-collaborative behaviour in the event of there being a conflict between the two.
Earl Howe
I hoped that I had already made it clear to the noble Baroness that collaborative behaviour when it is in the interests of the patients—and I distinguish that from collusive behaviour, which is almost certainly not in the interests of patients—will be regarded by Monitor as trumping the need for competition to be deployed in services. I am not sure that I understand what the noble Baroness’s problem is in this area; she should be reassured by that.
Baroness Finlay of Llandaff
I am grateful to the Minister for trying to clarify these matters, but my concern relates to anti-competitive and anti-collaborative being of at least equal status. I would prefer anti-collaborative to be on the face of the Bill. Is the Minister prepared to have a discussion with me after this debate to see whether we could insert some other wording to prevent both anti-collaborative and anti-competitive behaviour? In that way, even when a provider states that it intends to collaborate and that is put down clearly, if it is demonstrated as time goes on that the provider is not fulfilling that, Monitor will have the leverage to say that it was in open competition but the provider has not fulfilled the requirement to collaborate.
Earl Howe
I am of course willing to hold discussions with the noble Baroness, but I remind her that we have explicitly provided for Monitor to use its licensing powers to support integration and co-operation when that is in the interests of patients. We were fully aware of that issue when drafting the Bill. Later amendments, which we will debate today, will strengthen the ability of Monitor even further.
Baroness Finlay of Llandaff
I recognise that they will strengthen Monitor further and that they will come later, but my disappointment is that they are not in the core general duties that will override the way in which Monitor functions. They will come later on and in detail, and I can see that in the amendments that the Government have tabled. But my concern persists, and I wish to test the opinion of the House.
“(1) In exercising its functions, Monitor must have regard, in particular, to—”
“(ja) where the Secretary of State publishes a document for the purposes of section 13E of the National Health Service Act 2006 (improvement of quality of services), any guidance published by the Secretary of State on the parts of that document which the Secretary of State considers to be particularly relevant to Monitor’s exercise of its functions,”
“( ) For the purposes of Part 3 of the Enterprise Act 2002 (completed and anticipated mergers), each of the following cases is to be treated as being (in so far as it would not otherwise be) a case in which two or more enterprises cease to be distinct enterprises.”
Earl Howe
My Lords, I speak also to Amendments 182 and 183. There is one simple point to Clause 77: it is there to remove the current legal uncertainty and risk of double jeopardy for foundation trusts under the UK’s existing general merger controls. The OFT already has jurisdiction to review foundation trust mergers under the Enterprise Act, but there is legal uncertainty as to when that applies in individual cases. That creates the risk of double jeopardy for foundation trusts under current arrangements, as their mergers are also reviewed by the Co-operation and Competition Panel. Amendments 181 to 183 are minor and technical amendments which make it clear that Clause 77 applies to both completed and anticipated mergers. I will reserve my remarks on the other amendments in the group until I have heard the contributions of the noble Lords who are proposing them. Meanwhile, I beg to move.
Lord Clement-Jones
My Lords, I shall speak to Amendment 184. In Committee, we debated the role of the OFT in merger policy and looking into mergers between foundation trusts. I tabled an amendment because it seemed to me at the time that the Enterprise Act was a relatively blunt instrument for the OFT to use to look at those mergers, compared to the usual way that it would look at the competitive effect or impact on competition of such a merger. The response of the noble Earl, Lord Howe, was extremely helpful in guiding us through the relevant provisions of the Enterprise Act—in particular, pointing out that the OFT has a duty under the Enterprise Act to look at relevant customer benefits.
The issue is that “customer” is not normally how we describe patients in the NHS and the way that the NHS operates is rather different from considering whether Dixons taking over Comet, for instance, will impact on the customer or the consumer. There is a difference. It seemed to me that the best way to handle the matter would be specifically to provide for Monitor to be inserted into the process so that it would give specific advice to the OFT on those matters. Although the definition is “relevant customer benefits”, its perspective would be on the impact on patients.
I appreciate the earlier amendments which the noble Earl has tabled, but this would add the extra dimension to Clause 77 which will enable the OFT and Monitor to have a really powerful role in the way that they oversee foundation trust mergers and, I think, settle some of the concerns which surround Clause 77 as drafted.
Lord Beecham
My Lords, the amendments are a good example of the thickets and undergrowth of the elaborate structures to deal with competition generally in the economy into which the health service is being drawn. I have no doubt that the noble Earl is right in describing the amendments as technical; the amendment of the noble Lord, Lord Clement-Jones, is also technical. It is not the worse for that, but this whole area ought to be removed from the Bill. Our Amendment 184A would remove Clause 77 altogether. Our view is that that elaborate machinery and the use of the Office of Fair Trading is not appropriate for mergers of foundation trusts. Having said that, we do not intend to divide the House; we simply deplore the fact that this machinery, somewhat refined by the amendments, is being cranked up to apply unnecessarily.
Earl Howe
My Lords, as I said earlier, retaining Clause 77 would have several substantial benefits. The OFT already has jurisdiction to review foundation trust mergers under the Enterprise Act. The problem, as I said, is that there is legal uncertainty as to when that applies in individual cases. That creates the risk of double jeopardy for foundation trusts, as their mergers are also reviewed by the Co-operation and Competition Panel. There is also a problem of unnecessary duplication of specialist skills between the Co-operation and Competition Panel and the OFT which, incidentally, brings with it a cost to the UK taxpayer.
Retaining Clause 77 would avoid that duplication and eliminate the current legal uncertainty and risk of double jeopardy for foundation trusts. That would encompass mergers between two or more foundation trusts and acquisitions by a foundation trust of another foundation trust or a private business, such as UCLH’s acquisition of the London Heart Hospital under the previous Administration.
However, it is important for me to make it clear that the Bill would prevent any takeover of a foundation trust by a private company, contrary to what some commentators outside this House have suggested. Secondly, the OFT has a proven track record for light-touch, proportionate regulation of mergers and ensuring good value for public money. By contrast, under the system we inherited from the previous Government, the Co-operation and Competition Panel has reviewed several mergers of community services at considerable cost and delay to the NHS that would have been permitted automatically under the OFT’s materiality thresholds.
Finally, the approach provides better value for public money by avoiding duplication of specialist resources between the OFT and Monitor. Mergers are a specialist area. Given the variable frequency of mergers in the NHS, it would be a far better use of resources to consolidate the responsibility and expertise within the OFT, where they could also be put to good work for the benefit of the wider economy, rather than resourcing another public body at the taxpayer’s expense.
“(a) the effectiveness of competition in the provision of health care services for the purposes of the NHS in promoting the interests of people who use such services,”
Earl Howe
My Lords, perhaps I may begin by clarifying the role of the Competition Commission as set out in the Bill because I think that there have been a few misconceptions about this. The commission would not enforce the Competition Act in relation to healthcare services, nor would the commission’s role affect the applicability of competition law to the NHS, and the Bill would not give the Competition Commission direct powers over providers of NHS services.
Instead, the Bill would give the Competition Commission two narrow, specific roles in relation to NHS services. First, the commission would be the independent adjudicator where sufficient providers or, in some cases, commissioners objected to Monitor’s proposals for licence modifications or its methodologies to be used to calculate prices or levies for providers to ensure the continuity of essential services.
Secondly, the Bill currently provides that the commission would undertake reviews of the development of competition in the provision of NHS services and the way that Monitor was fulfilling its functions relating to the provision of such services. Where it concluded that something was or could be averse to the public interest, it could make non-binding recommendations to the Secretary of State, Monitor or the NHS Commissioning Board.
I am aware of a concern that this wording could imply that the review should focus the development of competition as an end in itself. That is absolutely not our intention. That is why commissioners will decide when competition and choice will be used, and indeed whether it will be used, as a means of improving services and enabling patients to have control of their care. To make that clear, we have tabled Amendment 185, which provides that the reviews relate to the effectiveness of competition in realising benefits for NHS patients, rather than the development of competition per se. I hope that noble Lords will agree that this wording provides clarity about the purpose of the reviews and is consistent with the principle that competition should not be pursued as an end in itself. I therefore beg to move Amendment 185.
Lord Clement-Jones
My Lords, it would seem convenient, although it alters the groupings, to talk to my Amendments 186, 187 and 188 at this point.
In Committee—and I am very grateful to the noble Lords, Lord Turnberg and Lord Patel, for supporting these amendments—we flagged our general concern about the risks of EU competition law being applied across the board in the health service. One risk that we considered to be high was the involvement to such a great extent in the Bill of the Competition Commission and, in particular, its role in Clauses 78, 79 and 80, as well as its role in reviewing competition within the health service and the development of competition by Monitor.
On these Benches, we, along with Future Forum and following legal advice, believe that it is necessary and consistent to delete Clause 78, which provides for a review of the exercise of Monitor’s functions and, as I said, the development of competition in the NHS. Government Amendment 185 would of course change this to a review of the effectiveness of competition in the NHS in promoting the interests of those who use the NHS. Nevertheless, we have considerable concerns about the involvement of the Competition Commission. The commission occasionally has to apply non-commission principles in its investigations. It may need to consider, for example, whether media plurality would be undermined by a media merger. However, the commission members and staff are steeped in competition law principles and it is difficult to get them to attribute equal weight to non-competition objectives. The experience of those involved with the commission is that it tends to focus far more on the competition analysis and is often reluctant to accept that it might be required to endorse an outcome that may be suboptimal from a competition perspective in order better to promote other objectives.
Judgments about whether competition or co-operation best promote certain objectives, including health sector objectives, are not clear-cut. Which side of the line people come down on will depend on their standpoints and assumptions about the extent to which competition is helpful in general, as well as on their experience. Regular commission members tend to have a strong bias in favour of the benefits of competition, and that strengthens our view on the inappropriateness of the reviews by the Competition Commission. It is not necessary for there to be a review of this kind either of the NHS or of the operation of Monitor. Indeed, I would argue that its very presence in reviewing both the NHS and Monitor increases the risk of competition law applying more widely.
Following the Future Forum’s report, the purpose of Monitor is no longer primarily to promote competition. Clearly there is now explicit recognition of the overriding importance of the benefits to patients. This is the key determinant of which instrument—competition or integration—is appropriate in the operation of the health service.
I have not put down amendments to the more technical areas where there is Competition Commission involvement. It seems that in many cases that may well be relevant in terms of the tariff and so on. However, we on these Benches believe that Clauses 78, 79 and 80 are a throwback to pre-Future Forum days, and we therefore propose leaving them all out.
Baroness Thornton
My Lords, I would like to comment on the three amendments in the name of the noble Lord, Lord Clement-Jones, and then speak to the two amendments that we have in this group. They say that imitation is the sincerest form of flattery, so I am very happy that the noble Lord saw fit to take three of the amendments that we tabled in Committee and to make them his own. Those are Amendments 186, 187 and 188. That is fine by us. I understand that the Minister will be very sympathetic to these amendments and might accept them, which is probably just as well, as I would hate to embarrass the Liberal Democrat Benches any further by having votes on amendments that they have tabled and speak to but then do not support.
These three amendments would stop a review from happening. I know that the noble Lord, Lord Clement-Jones, and his colleagues need to tell us that they have won a great victory by getting the Government to concede on these amendments. Far be it from me to intrude on the coalition parties’ love-in, so to speak. When we tabled these amendments in Committee they were part of an overall, comprehensive change to Part 3 of the Bill. In many ways these amendments were part of the tidying up of our suite of amendments to effect radical change to and improvement of Part 3. We certainly support these amendments.
I turn to Amendments 196A and 196B, which stand in my name and that of my noble friend. We do not understand why the noble Lord, Lord Clement-Jones, did not also table those amendments as he is going to be very successful in having his amendments agreed to. In fact we think that there is no need to have any mention of the Competition Commission in the Bill. For the sake of completeness, we would have preferred those amendments to be included. Perhaps I may implore the Minister to accept them as well.
Earl Howe
My Lords, Amendments 196A and 196B, tabled by the noble Baroness, Lady Thornton, would remove the provision for adjudication if a significant proportion of those affected object to proposals by Monitor for methodologies to be used to calculate prices of levies to ensure the continuity of the central services or proposed licence modifications.
I am clear that we must have a process for adjudicating on Monitor’s proposals if a sufficient number of those who will be affected by them object; otherwise, in these circumstances, either Monitor would have no way of proceeding with disputed proposals or those affected would have no other way of disputing proposals other than by judicial review. Either way that would be unacceptable and could result in significant harm to patients, for example if a licence condition that Monitor proposed related to securing essential NHS services. For pricing methodologies, for example, the amendments would mean that Monitor could go ahead with its proposals even if sufficient numbers of those affected objected. The only way that providers, in the case of pricing commissioners, would be able to ensure that their concerns were taken into account would again be through judicial review. We need to ensure a fair and transparent system of pricing, securing competition on quality and not price, and removing incentives for providers to cherry-pick the services that they deliver or the patients whom they treat.
I am therefore clear that we should have a process for adjudication. I am also clear that the Competition Commission should undertake that role. It has other adjudication roles. The commission has experience of working across a range of sectors, on the basis that it does not necessarily have the knowledge which it needs about those sectors in-house. It would be free from political intervention in making these judgments. It is well respected by other regulators across the economy, for which it performs a similar role. In our earlier debates, some noble Lords expressed concern that there should be appropriate checks and balances on Monitor’s powers. The provision for adjudication by the Competition Commission creates one such check and balance. These amendments would remove it. For those reasons, I oppose Amendments 196A and 196B, and I hope that on reflection the noble Baroness, Lady Thornton, will withdraw them.
I turn to the Competition Commission’s role in reviewing how competition is benefiting patients in the NHS. After briefing myself, I came to the conclusion that the reviews will bring considerable benefit to the NHS because they will help us understand further what effect competition has on NHS services for patients. They will also increase Monitor’s accountability because they will consider how Monitor is discharging its functions. The commission will be well placed to conduct them because it is an independent body with a long history of performing such reviews across the economy. It is the body where the expert technical knowledge needed to perform this function already resides, and it understands and reviews how markets and regulation work in the best interests of people. That was why the provision was put in the Bill.
However, I listened to the points made this evening by my noble friends Lord Clement-Jones and Lord Newton. On earlier occasions my noble friend Lord Clement-Jones was quite vocal in expressing his views to me on this subject. I have some sympathy with the argument that prescribing reviews every seven years, as the Bill stipulates, may place too great an emphasis on competition. Greater flexibility about the timing and specification of reviews may be helpful. Therefore, I am clear that such reviews of competition in the NHS, when they happen, should focus on benefits to patients. On the basis that prescribed seven-year reviews may place too great an emphasis on competition in the NHS, and given the role of the Competition Commission, if it is the view of the House that Clauses 78, 79 and 80 should be removed from the Bill, I will not oppose Amendments 186, 187 and 188.
I turn briefly to the issues raised by the noble Baroness, Lady Hollins, on procurement in Surrey. The issue was raised earlier by the noble Lord, Lord Adebowale. I agree with her and with the noble Lord that social enterprises can and do play an important role in providing innovative, high-quality services, often to very vulnerable people. Turning Point is an excellent example. The key aim of our reforms is that patients should be treated by the best providers; that bureaucratic procurement practices should not frustrate this; and that it should be quality that counts. We will take all this into account when framing the commissioner procurement regulations.
On the example quoted by the noble Baroness, I understand that the requirement for the £10 million performance bond to which she referred was subsequently withdrawn and therefore played no role in the decision to appoint a preferred bidder. However, I will write to her with further details on this.
“(3) Monitor may not set or revise the criteria unless the Secretary of State has by order approved the criteria or (as the case may be) revised criteria.”
Earl Howe
My Lords, I beg to move Amendment 190 and speak to Amendments 193, 194, 195, 299 and 300. We have tabled Amendments 190, 299 and 300 to comply with the Delegated Powers and Regulatory Reform Committee’s recommendations. These sought to ensure that key elements of the licensing arrangements are subject to appropriate levels of parliamentary scrutiny.
In line with that, Amendments 190 and 300 provide that the Secretary of State’s approval of Monitor’s licensing criteria will always be made by order, and the first such order must be subject to the affirmative procedure. Subsequent orders, in the event of Monitor wishing to revise the criteria, would be subject to the negative procedure. Similarly, Amendment 299 provides for the first set of exemption regulations made by the Secretary of State under Clause 84 to be subject to the affirmative procedure.
I turn now to Amendments 193, 194 and 195, which deal with the hugely important issue of integration of services. There is a clear consensus around the importance of having further integration and more services joined up around patients’ needs. The Bill seeks to encourage and enable the delivery of integrated services.
All NHS bodies and private and third-sector providers supplying NHS services are required by the Health Act 2009 to take account of the NHS constitution in their decisions and actions. This includes the principle that the NHS works across organisational boundaries and in partnership with other organisations in the interests of patients, local communities and the wider population. The Bill takes this further by making it clear that in exercising any of their functions, commissioners must act with a view to securing continuous improvement in outcomes, including effectiveness, safety and quality of patient experience. Commissioners must also exercise their functions with a view to securing that health services are provided in an integrated way, where this would improve the quality of those services, including outcomes, and/or reduce inequalities in relation to access to services and outcomes. The intention is, therefore, that it would be for commissioners to drive integration and co-operation between providers in the light of local circumstances and needs, and to enforce this through legally binding contracts.
Monitor would have an important role to play in supporting commissioners by enabling integration of services. That is why Clause 61 expressly requires Monitor to exercise its functions with a view to enabling integration. Nevertheless, in Committee the House raised further concerns around the extent of Monitor’s role in enabling integration and co-operation. We listened carefully to those concerns, and ultimately agreed that there was more that we could do.
We have tabled Amendments 193, 194 and 195 in order to establish express power for Monitor to set and enforce licence conditions for the purposes of enabling integration, and enabling co-operation between healthcare providers where it would improve the quality or efficiency of NHS healthcare services, or reduce inequalities. Licence conditions could therefore be used to support commissioners in promoting integration and co-operation. This would also allow for licence conditions to fully cover the relevant principles and rules of the current Principles and Rules for Competition and Co-operation.
Lord Clement-Jones
My Lords, I thank my noble friend Lord Howe for putting forward these amendments, particularly Amendment 193, to which I have added my name. In Committee, we were concerned that the powers of Monitor did not reflect the general spirit of the way in which the Future Forum report talked about the mixture of competition and integration. Although the objectives of Monitor at the beginning of Part 3 were changed to reflect the Future Forum report, some of the back end of Part 3 was not changed to reflect that. These significant amendments, particularly Amendment 193, rebalance the Bill and makes sure that it genuinely reflects the intentions of Future Forum. I am very grateful to my noble friend for putting down these amendments.
Earl Howe
My Lords, this has been an interesting debate and I thank in particular the noble Lords, Lord Patel and Lord Warner, and my noble friend Lady Cumberlege for tabling Amendment 191 and for giving me the opportunity to explain the Government’s thinking on the important issue of patient and public involvement in Monitor’s work. We are very clear that patients must lie at the centre of the reformed NHS and that the Bill establishes mechanisms to ensure that that is the case. Health and well-being boards are part of those arrangements and HealthWatch will have a vital role in giving patients and the public a real voice throughout the NHS. I can therefore understand the intent of Amendment 191—and I wish that I could accept it. However, I am sorry to say that in practical terms it is not workable and I will explain why.
The list in Clause 95(8) relates to consultation but this is expected to take place before bodies such as HealthWatch and health and well-being boards are formally established. In other words, Amendment 191 would impose a statutory requirement with which Monitor could not possibly comply. The list at subsection (8) deliberately includes only those bodies that will be in existence at the expected time of the consultation.
I can nevertheless offer the noble Lord and the House firm reassurances on this issue. First, Clause 95(8)(e) gives Monitor powers to include in the consultation “such other persons” as it “considers appropriate”. Clause 61(7) places a general duty on Monitor to secure the involvement of patients and the public in decisions on the exercise of its functions, and we would firmly expect Monitor to use those powers to involve patients and the public fully in the consultation. Secondly, Clause 95(11) would require Monitor to consult with HealthWatch England, with the NHS Commissioning Board and with every clinical commissioning group in the event that the consultation takes place later than currently expected and after these bodies have been established. I hope that I have been able to reassure the House that Amendment 191 is not only unnecessary, but would actually put Monitor in an extremely difficult position, and that the noble Lord, Lord Patel, will feel able to withdraw the amendment.
I turn now to Amendment 196, tabled by the noble Baroness, Lady Finlay. The amendment raises an important issue, that of making sure that patients receive the compensation to which they are entitled in the unfortunate event that they are harmed as a result of clinical negligence. The Government agree that there must be equivalent safeguards in place for patients irrespective of who provides their NHS services. Currently the NHS contract which providers must hold to deliver services requires adequate and sufficient indemnity arrangements to be in place. In addition, to ensure equivalent protection for the future, the Government’s preference is to enable all providers of NHS services access to the clinical negligence scheme for trusts. That would mean that all providers of NHS services would have access to the same level of protection for patients, whether those providers were private, voluntary or public sector. The department has asked the NHS Litigation Authority for advice on the options for modifying the scheme and expects that new arrangements would be in place for the next round of NHS contracts in April 2013.
I hope, therefore, that the noble Baroness will appreciate that I strongly agree with the spirit of her amendment. Nevertheless, I must set out my concerns around its potential effect, if she is thinking of pressing it. First, the amendment could be implemented by employing organisations requiring indemnity from their own staff. Employees would then have to obtain their own personal indemnity. However, I do not believe it would be right to transfer this burden to staff or that employees would support it. Further, I do not believe it would be cost-effective. My second concern is about potential unintended consequences. Currently the Limitation Act 1990 limits the time available that personal injury claimants have to bring their claim. The overwhelming majority of claimants have three years to make their claim under the terms of that Act. Requiring all providers to hold indemnity for the lifetime of all patients, potentially much longer than a patient’s legal entitlement to make a claim, would be disproportionate and incur significant costs. Overall, the effect of such a wide-reaching clause would be to divert resource unnecessarily away from patient care. I am sure that that is not what the noble Baroness would ever seek to do and I do not believe that it is in the interests of patients or the NHS. I hope that on reflection and in the light of my assurances about what we are planning, the noble Baroness will feel able not to press her amendment.
The noble Baroness also referred to her Amendment 192, which I think we debated in a previous group. The Government have listened to concerns on education and training raised by her and other noble Lords and we have brought forward amendments to require the board and CCGs to have regard to the need to promote education and training when exercising their functions. Further, the Bill requires Monitor in Clause 64(j) to have regard to,
“the need for high standards in the education and training of health care professionals”,
when exercising its functions. I suggest to the noble Baroness that Amendment 192 is not required.
At this juncture, it might be worth quickly reminding the House that all providers of NHS services will be licensed by Monitor. The Royal College of Physicians has sought reassurances on how patient choice of any qualified provider would work. Even though the choice of any qualified provider is not in the Bill, I am happy to confirm that providers would always be required to comply with national quality standards. Under our reforms, providers above a minimum size would be expected to take part in the provision of education and training, and to work within agreed local care pathways to ensure safe and joined-up care. I hope that that is a reassurance not only to the Royal College of Physicians but to other noble Lords.
Baroness Finlay of Llandaff
I am grateful to the Minister for his reply on indemnity. Would the risk pool apply to the provider rather than be linked to the individual patient? If there is an acute problem, some hospices will accept referrals directly from patients and their families rather than waiting for a GP necessarily to refer them. Those patients are all being treated in the voluntary sector; they are not paying; they are all being treated the same; and they have been under NHS providers for other parts of their treatment. The Minister may not be able to answer my question now, but I flag up such a situation as a potential that will need to be covered off in providing. However, I am sure that what he has said tonight will be warmly welcomed by the voluntary sector, which provides an important and, in many places, essential clinical service—which, I venture to suggest, hospices do par excellence. Their ability to meet patient and family need at great speed has allowed them to be recognised as being so important.
Earl Howe
My Lords, I understand the noble Baroness’s question. It might be best if I wrote to her because the circumstances that she posits are such as to make it important that I do not get it wrong if I give her an answer now. As she knows, the broad answer to her question is that our aim is for all NHS-funded care to be covered. She has raised a particular set of circumstances on which I shall have to take advice, if she will allow.
“(da) for the purpose of enabling health care services provided for the purposes of the NHS to be provided in an integrated way where Monitor considers that this would achieve one or more of the objectives referred to in subsection (2A);(db) for the purpose of enabling the provision of health care services provided for the purposes of the NHS to be integrated with the provision of health-related services or social care services where Monitor considers that this would achieve one or more of the objectives referred to in subsection (2A);(dc) for the purpose of enabling co-operation between providers of health care services for the purposes of the NHS where Monitor considers that this would achieve one or more of the objectives referred to in subsection (2A);”
Earl Howe
As I hope will be clear, the Government’s proposals are for a fair, transparent and comprehensive framework that protects patients and taxpayers’ interests by securing continued access to services through early intervention to prevent failure wherever possible and effective arrangements to secure continuity of NHS services should a provider become unsustainable.
The Bill builds on and improves existing arrangements by putting commissioners in the lead for shaping services for patients and providing a clear role for Monitor in supporting commissioners. It will ensure that change happens when the status quo is unsustainable, and there will be sufficient funding to support this. The Bill goes further and addresses the gaps in existing legislation, such the lack of protections for patients whose NHS core is delivered by social enterprises and other independent providers. The Bill gives Monitor a comprehensive range of powers to intervene proactively to support reorganisation and prevent failure to maintain service continuity.
I turn to Amendments 196ZA and 214G. I am grateful to the noble Lord, Lord Warner, for his patience in working with the Government on this issue. I see that the noble Lord, albeit with a tiny bit of help, has really got to the core of our proposals for ensuring the continuity of services for patients by clarifying a role for Monitor, which is to support commissioners and provide them with information that they need to take the right decisions about services in the best interests of patients. The key aspect of the noble Lord’s amendments is that they reinforce the fact that commissioners remain in the lead for responding to risks to services and, in partnership with providers and other local stakeholders, for engaging on service change to reduce those risks. That is why I am pleased to accept these amendments, which also reflect the King’s Fund recommendation on how the Bill could be improved to support vital service reconfiguration.
However, it is not always possible or desirable to prevent provider failure at all costs. As a last resort, when a provider becomes unsustainable—and I emphasise that that will be only when all other interventions have been exhausted or may not be in patients’ best interests—a continuity of services administrator may be appointed to protect patients’ interests and secure NHS services in line with requirements determined by commissioners. For the first time, there will be similar protection for patients who rely on essential NHS services regardless of who the provider might be. The existing legal framework has no such protection for patients who rely on NHS services provided by independent providers, including the social enterprises established by the previous Government when the noble Baroness, Lady Thornton, was Health Minister. I am sure noble Lords would agree that if a social enterprise delivering essential community palliative care became unsustainable, then surely its patients should receive protections that would secure the continuity of that service, as do patients of the foundation trust.
The reality of the NHS is that it is a comprehensive health service delivered by a diverse range of providers. Part 3 recognises that reality and will protect patients’ access to that comprehensive service. I cannot agree with the noble Lord, Lord Beecham, as his amendments would remove this type of protection for patients. Fundamental to our aim of protecting patients’ access to a comprehensive health service is the need to ensure that sufficient funding is set aside for when things go wrong. The King’s Fund and others have said that they support the establishment of a transparent funding mechanism for securing essential services when providers go into administration. When the noble Baroness was a Health Minister, her Government presided over a period of sustained growth in the economy, but sadly that is no longer the case. Despite economic challenges, the coalition has continued to increase NHS funding above the rate of inflation, but we need to be prudent to be able to guarantee that funding will be available to protect patients when any provider of essential services gets into difficulty. The problem with the noble Lord’s amendment is that it would put that at risk.
That funding is essential because we simply cannot be sure otherwise that sufficient funding would be available centrally, particularly when the Treasury will face competing demands on any surplus funds held centrally by Whitehall departments. A further benefit of our approach is that the funding will be built up from commissioners and providers, including private providers, based on a transparent methodology and in proportion to risk. That will strengthen financial incentives for providers and commissioners to manage risks effectively and help to end the culture of back-room bailouts.
I hope that the arguments that I have put forward demonstrate how Part 3 will strengthen the protection of patients’ interests. Once again, I thank the noble Lord, Lord Warner, for his amendments, which will improve the Bill and undoubtedly benefit patients. I hope that noble Lords will join me in my support for them, and I ask the noble Lord, Lord Beecham, to withdraw his amendment, as he has indicated he will.
“(1) Where Monitor is satisfied that the governance of an NHS foundation trust is such that the trust will fail to comply with the conditions of its licence, Monitor may include in the licence such conditions relating to governance as it considers appropriate for the purpose of reducing that risk.
(1A) The circumstances in which Monitor may be satisfied as mentioned in subsection (1) include circumstances where it is satisfied that the council of governors, the board of directors or the council of governors and board of directors taken together are failing—
(a) to secure compliance with conditions in the trust’s licence, or(b) to take steps to reduce the risk of a breach of a condition in the trust’s licence.”
Earl Howe
My Lords, I shall speak also to government Amendments 197A, 197B, 197C, 198A, 198B, 199A, 199B, 200A, 300ZA and 300ZB.
Monitor will continue as the regulator of NHS foundation trusts, as I have said. We had always intended this to be the case and I welcome the opportunity to clarify our position. Monitor will regulate foundation trusts through a new licensing regime, which it will administer jointly with the Care Quality Commission. This will help to strengthen collaboration between the two regulators. It will license foundation trusts to provide NHS services, as it would license anyone else who wished to do so, to ensure that NHS services are protected as financially sustainable and of high clinical quality.
Part 3 anticipates that Monitor will set differential licence conditions for foundation trusts to reflect their unique status and governance structures. Monitor would have power to intervene and direct foundation trusts to take action to ensure compliance with licence conditions. This would include the power to enforce requirements on foundation trusts to maintain continuity of NHS services and protect essential NHS assets, consistent with its principal purpose, as defined in statute. Those powers are set out in Clause 105. I emphasise that these enforcement powers would not be transitional.
However, I recognise that this was not as clear in the Bill as it could have been. I am grateful to noble Lords, particularly my noble friends Lord Clement-Jones, Lord Marks, Lady Barker and Lady Tyler, for their work in highlighting this issue. I have tabled four amendments to Clause 111—Amendments 196C, 197A, 197B and 197C—which clarify the position. These enduring powers would enable Monitor to require a foundation trust to remove directors or governors in exceptional circumstances as a form of remedial action, where it considered this necessary. This would be appropriate only in the case of a very serious breach of licence conditions.
In addition, for a transitional period until at least 2016, Monitor would retain express powers to fire or suspend foundation trust directors and governors directly. As now, this power could be used only where a foundation trust had failed to comply with a notice from Monitor to remove or suspend individuals itself. These powers are for use when a foundation trust is at risk of breaching its licence conditions to provide NHS services because of a failure of governance. This is more likely in the early years of a trust’s existence, when its governors are all new to the role and are building up their capability to hold its directors to account. That is why the powers consist of those to fire or suspend directors and governors.
I understand the concerns of noble Lords to ensure that this additional power remains available for as long as Parliament considers necessary, while we work with Monitor, the Foundation Trust Network and others to support governors to develop their capability in holding their boards to account. Therefore, I have tabled five amendments—Amendments 198A, 198B, 199A, 199B and 200A—which provide for Monitor to retain this power unless and until the Secretary of State makes an order to withdraw it, either for all foundation trusts or individual trusts. I beg to move.
Lord Clement-Jones
My Lords, I want to speak to my amendments, to express my thanks to the Minister for the amendments that he has tabled, and to give a little rationale for why we were concerned but are now satisfied by the Minister’s amendments. On these Benches we were very concerned about the deregulation of foundation trusts in 2016. We believed that putting foundation trusts on the same footing as all other provider licensees was not only dangerous because of the risk of wider application of competition principles, but undesirable since district general hospitals—essentially foundation trusts—are the core of public provision in the health service. They are public assets, funded either conventionally by the Government or by PFI. Sadly, many of us argued at the time that PFI would be an expensive and inflexible method of financing healthcare infrastructure. Nevertheless, district general hospitals are an essential part of the NHS.
Therefore, we proposed amendments that removed Clauses 111 to 114 and retained Monitor’s special powers over foundation trusts unless terminated by the Secretary of State with the authority of an affirmative resolution of both Houses of Parliament. We were not saying “never” but the Secretary of State, after some years of the new structure, clearly needs to satisfy Parliament as to why particular foundation trusts no longer need to be subject to regulation by Monitor in this way. It may be possible to make the case for the deregulation of foundation trusts in the future, but currently the assumption should be that foundation trusts will be treated differently from other providers in regulation—not just in the transition period but in the medium term—so that Monitor will have the right to appoint and dismiss directors and governors in that period.
To that end, we very much welcome the amendments tabled by the Minister to meet our concerns. Our amendments talk of an order passed by the affirmative process and the Government’s by the negative process but I do not want that to stand between us. The Minister has gone a very long way to meet our concerns, for which I am extremely grateful, as are all my colleagues on these Benches.
Baroness Murphy
My Lords, I have added my name to four of the amendments in this group and I am wholly content that the Government have addressed them satisfactorily.
“(1) Section 111 ceases to have effect in relation to an NHS foundation trust on such day as the Secretary of State may by order specify.
(2) Different days may be appointed in relation to different NHS foundation trusts.
(3) A day specified under subsection (1) must not—
(a) in the case of an NHS foundation trust authorised on or before 1 April 2014, be before 1 April 2016;(b) in the case of an NHS foundation trust authorised after 1 April 2014, be before the end of the period of two years beginning with the day on which the trust was authorised.”
Baroness Murphy
My Lords, the noble Lord, Lord Warner, has said more or less what I was going to say. It seems to me that if you remove price setting from the regulator of healthcare, you do not have an economic regulator. From my experience of watching prices and types of funding formula go up and down over the past 20 or 30 years, it is crucial and admirable to remove it into a system that can be independent and transparent.
As the noble Lord, Lord Warner, says, after the Future Forum amendments, we have a system now whereby the shape of the tariff and the bundling systems, if you like, which will enable the sort of integration and co-ordinated care to be effective, will be firmly with the national Commissioning Board, and Monitor will respond to those design structures. I think that working together will be very healthy indeed. I do not underestimate the difficulties of getting it right; it is an ongoing developmental programme. Nevertheless, I think it is a good way forward. I do not like the idea of removing the price setting from Monitor.
I will briefly say that I am quite attracted to the amendment of the noble Lord, Lord Davies. One cannot not be if one wants value for money. I remember seeing the noble Lord’s face when he first realised that there was going to be no competition on price, and having a good deal of sympathy for where he was coming from. However, the matter is one of transition, and of when the public will feel confident that the way that the Bill intends to introduce competition on the basis of competitive tender will improve quality.
I worry about the response that the media could make to a significant change of this kind, even though I agree with the noble Lord that some services—as the noble Lord, Lord Warner, said—are overpriced and that there are opportunities for driving down these prices. That may come through the way that the national Commissioning Board and the regulator together set prices. After all, the price of a tariff will be a moving thing; it will be negotiated; it will change over time; and we will be able to address areas where there is obvious overpricing. I am attracted to the amendment of the noble Lord, Lord Davies, and it may be that eventually we will need to introduce something of the sort. However, I would be nervous of doing it at the moment in this form, even though it seems quite sensible.
Earl Howe
My Lords, the case for regulating prices for NHS services is strong. Many academics agree that competition should be on quality and not price and that this will increase the standard and quality of healthcare services and protect patients’ and taxpayers’ interests. This requires prices to be fixed. Therefore, it is vital that there is an effective system of price regulation that can deliver these improvements and help sustain a universal and comprehensive NHS, free at the point of use. However, a number of problems with the current system have been identified, including by the previous Administration, which mean that it is not as effective as it could be.
In particular, I will mention two things. First, prices are subject to potential political interference. This means that providers are more risk averse. That inhibits investment and innovation in the sector. As the noble Lord, Lord Warner, said, the methodology for setting prices is not transparent. This makes the system unpredictable—again, inhibiting investment and innovation. Secondly, prices can be inaccurate and may not always reflect best practice models of clinical service delivery. This may result in cherry picking and may hinder providers from expanding and improving quality. Therefore, the case for change is clear and compelling. The Government’s vision is for an independent, fair and transparent system of NHS price regulation that reflects best practice and extends the scope of the tariff when it is in the interests of patients; that ensures that competition is based on quality and choice, and not on price; and that addresses the problems of cherry picking. To deliver this vision, prices will continue to be regulated through a national tariff. This will build on and improve the system of payment by results—which the previous Government said that they would improve but failed to do so.
Perhaps it would be helpful for me to explain in a bit more detail how the Bill will support this vision. In other healthcare systems around the world—for example, in the Netherlands—Governments have delegated price setting to independent organisations. The noble Lord, Lord Warner, cited another example: that of Germany. Such bodies create a transparent and stable environment for pricing.
Lord Davies of Stamford
Before we get on to the important matter raised by my noble friend of who is going to fix the tariff, if there is a tariff, and the issues raised by my amendment, will the Minister agree to meet privately me and, I hope, my noble friend Lord Warner—there has been no collusion between us but I hope he will come to that meeting—to discuss in greater detail the technical but important matter of the circumstances in which it is right to accept a lower price bid in the National Health Service?
Earl Howe
I will be happy to meet the noble Lord to talk about that.
I was talking about the example of the Netherlands and Germany and was about to make the point that bodies of that kind can create a transparent and stable environment for pricing outside the influence of politics so that providers have confidence to invest and regulators can develop strong technical skills in setting prices at efficient levels. The Bill proposes that independent statutory bodies—Monitor and the NHS Commissioning Board—would collaborate to regulate prices. This will give commissioners a key role in price setting, whereas the opposition amendments would prevent this and would return control to Whitehall.
Monitor would publish national tariff prices based on a methodology subject to consultation where providers and commissioners could trigger an independent adjudication to ensure transparency and fairness. I am clear that we must have, as I said earlier, a process for adjudicating on Monitor’s methodology. Otherwise Monitor could just go ahead with its proposals, even if there were a whole lot of people affected by the proposals who objected and the only way that they could see those objections through to a conclusion would be through judicial review. The government amendments in this group ensure that the appropriate providers could trigger independent adjudication.
I am also clear that the Competition Commission should undertake this role. As I said earlier, it would be free from political intervention in making these judgments and is well respected as an organisation across the economy for the role it performs. The opposition amendments would prevent any of these benefits being realised. A key priority for improving the system is to expand its coverage so that more and more services are brought within scope. The previous Government failed to do this in line with their own published timetables, for example, regarding mental health services. The Bill would place duties on Monitor and the NHS Commissioning Board to secure the standardisation of service specifications to support the foundation of a comprehensive tariff system. This will make reconfiguration of services and integration across administrative boundaries easier.
To put matters beyond doubt, the national tariff would be a fixed price, with any competition based on quality and choice, not price. We listened to representations made to us about this, and we amended the Bill to make clear that the tariff would not be based on a maximum price. Of course I understand the points made very ably, if I may say so, by the noble Lord, Lord Davies, and the noble Baroness, Lady Murphy. We all want to see best value for money for taxpayers in the way that services are provided, but our judgment was that, for reasons that I will elaborate on, that is not the right way to go. Where services were not covered under the national tariff, there would be rules to govern those prices locally. Prices and rules within the national tariff would be legally binding and independently enforceable by Monitor to eradicate any abuses. Tariff prices could not be varied for different providers according to their ownership status. That would prevent future Governments paying inflated high prices to private providers.
I shall elaborate a little on what I said in answer to the noble Lord, Lord Davies. The purpose of the tariff is to ensure that providers are reimbursed fairly for the services they provide and to allow competition to be based on quality and not price, as I mentioned. When a maximum price was suggested, the fear was that there would be a drive to the bottom on prices, thus jeopardising the quality of care. The evidence from the UK and internationally suggests that quality-based competition with fixed prices can be very beneficial in producing higher quality care—that evidence is reported by the Office of Health Economics—whereas evidence from the USA sounds a note of caution that the wrong kind of competition based on price can lead to a race to the bottom on quality. Our judgment was that we should stick with our position that the tariff will not be a maximum price.
Finally, the Bill addresses the problem of cherry picking, which I am afraid was a problem that the previous Government did not grip. It places a duty on Monitor and the NHS Commissioning Board when setting prices to consider the range of services provided by different providers and the differing needs of the patients treated. As the Royal College of Psychiatrists noted:
“We are particularly glad to note the Government’s moves to prevent the cherry-picking of services and hope that the safeguards are a success”.
The Opposition’s amendments would actually delete these important provisions from the Bill, thus not addressing the concerns expressed by clinicians up and down the country.
To conclude, the status quo is not an option. The Bill strengthens the current system and meets the concerns raised by clinicians and others. I ask noble Lords not to press their amendments which would fail to address the current fundamental problems and would deny patients and taxpayers the benefits of an independent, fair and transparent system. Finally, I hope the House will accept the minor and technical amendments in my name in this group when I come to move them.
Baroness Thornton
My Lords, the Minister has explained this very clearly. We part company about the transparency, clarity and accountability. I resist the temptation at this time of night to start asking questions of the Minister about this matter, but I fear that it is going to take a very long time to sort this one out. One of the reasons why my own Government had not completed this task is that it is fiendishly difficult and fiendishly complex. I fear that this Bill is not going to make it any less fiendishly difficult and fiendishly complex, but it also might make the whole process a lot less accountable.
This was in fact the final group of amendments that we had put down in our suite of amendments to reform the whole of Part 3 in Committee. The noble Baroness, Lady Murphy, is quite right. If you give the responsibility and accountability for the tariff to the Secretary of State, you undermine the role of the economic regulator. Yes, that was the point of this amendment in the very first place. She got it in one—well done.
At this time of night, it is probably best if we do not delay proceedings. I beg leave to withdraw the amendment.
Health and Social Care Bill
Earl Howe Excerpts(12 years, 2 months ago)
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Lord Hunt of Kings Heath
My Lords, this is an important debate. I want the noble Earl, Lord Howe, to make it absolutely clear in relation to Amendment 71 that the intervention of the Secretary of State will follow if the Secretary of State considers it to be in the interests of the health service when one of these bodies is failing to discharge a function properly. The wording of this amendment means, in effect, that if issues are raised in Parliament about NHS performance on which the Secretary of State, quite naturally and properly, wished to intervene, the Secretary of State can indeed do that. In the end, only the Secretary of State can, in those circumstances, consider what is in the interests of the health service. It is absolutely right and proper for the Secretary of State to be in that position.
The second set of amendments starts with Amendment 294. The noble Baroness, Lady Murphy, is absolutely right to point out the problem of conflict between the CQC and Monitor, which is almost built in intentionally. The second report of the Francis inquiry into the Mid-Staffordshire trust may have some points to make about that. However, we are also adding to the architecture of the national Commissioning Board, and there is inevitably going to be tension between those three bodies. For instance, the national Commissioning Board and Monitor are to be given roles relating to the tariff, and it is clear that there is confusion over the roles in respect of quality issues. Monitor is now involved in making some inquiries of foundation trusts relating to quality, which is no doubt a defensive reaction to the criticism that will flow from the Francis inquiry. The national Commissioning Board is so powerful in the new structure that there are bound to be some issues about its relationship with the quality and economic regulators. We would like to hear from the noble Earl, Lord Howe, that the Secretary of State will not hesitate to intervene and knock heads together if the natural—and probably useful—tension goes beyond that and becomes a problem.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, this group consists of amendments to the Secretary of State and the Commissioning Board’s powers of intervention over health bodies and to the Secretary of State’s powers in the case of breaches of duty to co-operate. First, I should like to discuss the amendments relating to the powers of intervention. In doing so, I thank my noble friend Lord Marks for tabling the amendments and presenting them to the House so ably. He committed a great deal of time and effort to developing these amendments and I believe that they will make this a better Bill.
As noble Lords will be aware, the amendments sit within the package of amendments relating to ministerial accountability that was agreed through a process of cross-party negotiation and consensus-building. They address concerns from several Peers that, in the words of my noble friend Lord Marks,
“the bar may be set too high against the Secretary of State’s intervention”.—[Official Report, 11/10/11; col. 1572.]
I hope they provide reassurance to the House that this will not be the case. I support the amendments and hope that other noble Lords will follow me in doing so.
In answer to the noble Lord, Lord Hunt, my noble friend’s amendments clarify that the Secretary of State can intervene where he considers that a national body is failing to discharge its functions consistently with what he considers to be the interests of the health service, provided that he considers that the failure is significant. They also clarify the same point for the Commissioning Board’s intervention powers over CCGs and, in addition, where a national body may have functions beyond the remit of the health service, these amendments clarify that the Secretary of State can intervene where the body significantly fails to exercise the function consistently with the purpose for which it was conferred. I hope that that explains fully the point of the amendments and answers the noble Lord’s question.
Lord Hunt of Kings Heath
I thought that there was a question to the Minister as to whether he would consider the matter between now and Third Reading. Am I not right?
Lord Hunt of Kings Heath
Does that mean that the matter can be brought back at Third Reading? I think that is the point here.
Earl Howe
My Lords, if there is a common theme to these amendments, I suggest it might be the fear of falling through the cracks, and I hope I can demonstrate that there are no cracks to fall through. However, there is a lot to cover and I apologise in advance if I speak for longer than normal.
First, perhaps I may say how wholeheartedly I agree with my noble friend Lady Williams as to the crucial role that CCGs will play in meeting the health needs of their entire population. In preparation for today’s debate I reacquainted myself with the requirements in the Bill to ensure that this happens. The requirements are robust and I can confirm that CCGs must exercise their responsibilities so that services are commissioned to meet the reasonable requirements of all their patients. My noble friend Lady Williams can be absolutely assured that every person registered with a GP practice or usually resident in England—that is the term—will be the responsibility of a CCG and the board must ensure that the whole of England is covered. This means that Amendments 75 and 94 are unnecessary.
I was asked by my noble friend Lord Newton about charges for patients. Noble Lords need to understand that as regards issues of entitlement to access to the NHS, the Bill does not change the status quo. I listened with care to my noble friend Lady Tyler, and I would like to thank her for spotting the inconsistencies in the Commissioning Board and CCG duties. As she quite rightly says, the inequality duties, if the government amendments on the annual reports are agreed, would be in the unusual position of being specifically referred to in the annual report provisions but with no similar reference in the provisions on the annual plans of CCG performance assessments. I therefore undertake to bring forward amendments at Third Reading to rectify that.
Amendments 95, 108 and 111, which are similar in effect, would require CCGs to have regard to the advice of local healthwatch and HealthWatch England, or in the case of Amendment 111 would require local healthwatch’s involvement in developing or revising commissioning plans. HealthWatch England will not advise CCGs directly. Instead its advice will inform the board’s commissioning guidance for CCGs. Certainly at the local level, we would expect CCGs to be taking account of local healthwatch; and, to reassure my noble friend, under Clause 182 CCGs already have to have regard to the views made known by local healthwatch when exercising functions relating to healthcare services. As my noble friend said, local healthwatch will also have a key role to play via the health and wellbeing board in assessing local population need—preparing the joint strategy and influencing the commissioning plans of CCGs. Taken together, this represents a robust set of arrangements for the views of patients and the public to feed into local commissioning.
The noble Lord, Lord Hunt, painted a doomsday-like picture of what he sees as the consequences of the arrangements that we have set out in respect of CCG governance. The noble Lord suggests that by not having the more traditional arrangements, as per his amendments, the CCGs will be more likely to run into financial distress, not properly meet their statutory duties, commit fraud or even commission unsafe care. Simply put, I cannot agree with that gloomy outlook, because it overlooks completely the arrangements that are already in place and what would happen if a CCG was to face the risk of running into any of these difficulties.
Let us take financial management, which he focused on. A CCG must have an accountable officer who is responsible for ensuring that the CCG meets all its financial obligations. The appointment must be agreed with the NHS Commissioning Board. A CCG must keep and publish proper accounts, which must be audited in accordance with the Audit Commission Act 1998 and must be sent to the NHS Commissioning Board by a date specified by the board. If the board requests specific information relating to a CCG’s accounts, or to its income, expenditure or use of resources, the CCG must provide it. Each CCG must have a constitution that sets out the CCG’s arrangements for decision-making. Each CCG must have a governing body, which must meet in public, except when it feels that it is a confidential matter and so not in the public interest.
The governing body must have an audit committee chaired by a lay person who must have the skills, knowledge and experience to assess and confirm that the CCG has appropriate arrangements for all aspects of governance, including financial and risk management. The governing body must ensure that the CCG adheres to such generally accepted principles of good governance as the Nolan principles, which are foremost among these—indeed, the Commissioning Board Authority has been clear that it expects CCGs to adhere to them. Furthermore, if the CCG is at risk of failing, is failing or has failed to exercise its functions, including those in relation to financial management, the board can intervene with a range of powers, from directing remedial action to be taken, removing the accountable officer, to dissolution—although we would expect that to be very much a last resort.
I absolutely agree with the noble Lord that it is essential for CCGs to have strong governance—there is no difference between us on that. This is a topic on which we listened to the Future Forum and made a number of significant amendments last year. We remain open to suggestions that would improve the Bill in this regard, I hasten to say, but I cannot agree that the noble Lord has suggested the right mechanism to achieve that end. To agree to either of his Amendments 76 or 77 would not only fail to meet his stated objective of improving a CCG’s governance but would risk introducing additional bureaucracy and confusion with the wide range of existing ways that CCGs are held to a high standard of good governance.
Given the role of the board in scrutinising arrangements and ensuring that governing bodies are effective, I do not accept the need for an additional centralised process of independent appointments to governing bodies, as proposed by Amendment 76, or for asking both Houses of Parliament to approve each CCG constitution. It cannot be reasonable or proportionate to require both Houses of Parliament to scrutinise the constitutions of several hundred local bodies. The board can publish guidance on the form and content of constitutions, and take a view of local circumstances, which Parliament, with the greatest respect, could not do.
Amendment 77 would require a majority of non-GPs on the governing body. This overlooks some important points about CCGs: that they are rooted in general practice and build on the central relationship between GPs and patients. It is GPs who look at patients’ needs in the round, making sure that they have access to the services that will best meet their needs and keep them healthy. Our rationale for having governing bodies with non-GP membership was not to put GPs in the minority but to make sure that there are other voices and perspectives alongside those of GPs so that decisions are made in an open, accountable and transparent way. The NHS Future Forum supported that vision. Requiring non-GP members to outnumber the GP membership on a CCG’s governing body would not make that governing body any more effective in ensuring adherence to principles of good governance, or in ensuring that the CCG was effective, efficient and economical. As we discussed on Monday, there is extensive provision for managing conflicts of interest.
On the quality payment, the debate today, as in Committee, centred on two questions: what the quality premium should reward and what the premium should be spent on. The payment would incentivise and reward improvements in quality and outcomes and reductions in health inequalities. It is not there to encourage a focus on financial management, and it is not—to answer a question posed by the noble Lord, Lord Hunt, in Committee—a way to reward demand management.
Our intention is that the quality premium will reward performance against the commissioning outcomes framework. The starting point would be the five domains of the overall outcomes framework and could contain measures such as reductions in mortality rates for cardiovascular disease, cancer survival rates, the management of diabetes, stroke and mental health and reductions in the number of cases of healthcare-associated infections. Those are only a few examples. If CCGs commission services in such a way that they achieve excellent outcomes in areas such as those, it is only right that the NHS Commissioning Board should be able to reward them for doing so.
The noble Lord, Lord Patel, has put across a persuasive case that the payment should be restricted to being spent on improving services. I have given that proposal significant thought but on this occasion I am unable to agree with the noble Lord’s amendment. We all want to see quality and outcomes improving and inequalities falling, and we are aware of the scale of the challenge. I want the quality premium to be as an effective incentive as it can be in order to best drive those improvements.
Indeed, I was pleased to see last week that this view was shared by Age UK and the National Osteoporosis Society in their report on falls and fracture services, which called for a greater role for financial incentives in the commissioning and provision of services. The report said that,
“the introduction of a Quality Premium payment for commissioners in return for improving health and wellbeing outcomes among patients could reduce falls and fracture rates”.
That is a very good example.
There are any number of ways in which a CCG may wish to use such payments. It might wish to spend the money on a new service for patients; to reward provider organisations that have played a major part in helping achieve the improvements; and, yes, it might wish to reward GP practices that are members of the CCG if they have played an instrumental part in improving quality of services and outcomes—for instance, through their work on service redesign. It would be wrong in principle to rule out any one of those options in the Bill.
However, I hope to reassure the noble Lord on his central concern. I agree that great care needs to be taken in designing the mechanics of the payment. We will use secondary legislation to make detailed provisions as to how CCGs can use these payments, including the circumstances in which they may be able to distribute the whole or part of a payment to individual member practices. That is very important and provides flexibility to adapt any rules or principles governing payments in the light of experience.
We have started discussing the potential contents of these regulations with stakeholders and I can confirm that we will extend these discussions to include a broad spectrum of views, including the NHS, patient groups and professional bodies. I hope I have reassured noble Lords sufficiently to enable them to not press their amendments.
Amendment 96 relates to an area with myriad terms that have a slightly different meaning, and I shall set out the crucial differences. Very rare conditions, which often require highly specialised services, will be commissioned by the NHS Commissioning Board. Rare or less common conditions will by and large be commissioned by CCGs, but they will be supported in doing so by the board, clinical senates, networks and the ability of CCGs to work together to pool skills and expertise.
Baroness Finlay of Llandaff
Can the noble Lord clarify whether the guidance will also cover the commissioning of services that are currently going to fall within the responsibility of a local authority, at the interface between health and social care, for the long-term maintenance of patients with very severe disability?
I accept the Minister’s comments on this amendment and the onus on clinical commissioning groups, and those made by my noble friend Lady Murphy, that the commissioning board may be the central focal point, as was outlined in the amendment that was not accepted, Amendment 63A. However, my second question is whether the Minister would be prepared to meet me to see whether there is a need for a review of the wording to clarify completely that there are no gaps for these patients, who may be large in number but very disparate and heterogeneous, with a very broad range of views. In that event, perhaps we could return to the matter at the last point, at Third Reading.
There are two distinct questions there on which I would appreciate clarification.
Earl Howe
On the first question from the noble Baroness, we fully anticipate that NICE will provide quality standards and guidance on services commissioned by CCGs and local authorities jointly. Typically, those are the kinds of service that the noble Baroness has spoken of, some of them in relation to less common and more complex conditions. Therefore, the commissioning guidance would reflect the NICE advice, and I hope that I can reassure her on that point.
Of course, I am willing to meet the noble Baroness between now and Third Reading, although I am not necessarily giving her the green light to bring this amendment back at Third Reading. I have explained that the Bill adequately covers the points of concern. Furthermore, I think that the amendment is flawed. We can achieve what she seeks through provisions already in the Bill and those that are not in the Bill that I have described.
Baroness Williams of Crosby
In moving the amendment, I asked the Minister for an unqualified assurance that all people resident in England would be covered by a clinical commissioning group, and I have to say that I think he gave me that assurance. However, I simply ask that between now and Third Reading, if any Member of this House comes forward with evidence of the exclusion from clinical commissioning groups of anyone resident in England, the Minister will give that careful consideration. I am sure he will. He has won the trust of this House and I take the assurance on the basis of that trust, but if there is a dispute over whether there is any exclusion I hope he will permit me to suggest that his door might be as ever open if any Member of this House wants reassurance on the basis of evidence brought before him. I beg leave to withdraw the amendment.
“Seal and evidence(1) The application of a clinical commissioning group’s seal must be authenticated by the signature of any person who has been authorised (generally or specially) for that purpose.
(2) Any instrument which, if executed by an individual, would not need to be under seal may be executed on behalf of a clinical commissioning group by any person who has been authorised (generally or specially) for that purpose.
(3) A document purporting to be duly executed under a clinical commissioning group’s seal or to be signed on its behalf must be received in evidence and, unless the contrary is proven, taken to be so executed or signed.”
(a) the prevention or diagnosis of illness in the patients, or(b) their care or treatment.”
Baroness Thornton
My Lords, I intend to make only two remarks. We have a great deal to get through tonight, so I shall exercise great self-discipline. I think that I will come in at under a minute and a half.
The noble Earl needs to be commended for his determination and hard work in this area. We think that it is an important issue. This is a growing problem and the noble Earl makes very reasonable requests, for which he has widespread support. I agree with the noble Baroness, Lady Masham, in that I fear this problem may get worse before it gets better, but I hope that the Minister will have good news for us about it.
Earl Howe
My Lords, we return to an issue of enormous significance for the individuals and families affected. I refer of course to those suffering from addiction, or withdrawal from addiction, to certain prescribed drugs. I am grateful to the noble Earl, Lord Sandwich, for his amendment, which would put in primary legislation a requirement for clinical commissioning groups to provide a specific service and, in so doing, to co-operate with and take account of the good practice of specialised agencies.
I think that the desire for good practice and for improving practice is common ground between us. The noble Earl will know that local areas are currently responsible for the design and provision of treatment and support services. We think that that is right. Having said that, it is clear that we need to do all we can to prevent dependence occurring in the first place. I am fully with him on that. For those who do develop dependence, it is important that they have access to the services they need to help them to recover, rebuild their lives and contribute productively to society. By placing the funding and responsibility for commissioning services to support people to recover from dependence with the local authorities, the Bill will provide local areas with opportunities to improve integration of commissioning and provide more effective joined-up services to meet local needs.
The Earl of Sandwich
My Lords, as the noble Baroness, Lady Thornton, implied, we are moving to the fast-track of this Bill, and I do not want to hang around for too long. I thank my noble friend Lady Masham for bringing to our attention the issue of early death, and my noble friend Lord Williamson, who has a lot of experience, for his support. My noble friend Lady Finlay made the important point that the responsibility falls within primary care, and I am encouraged by what she said about guidance. However, the Minister did not even pick that up. One might have thought that he could have just said, “Yes, we are going to do something in the guidance”, but I do not know whether he actually heard the point.
Earl Howe
I am happy to pick that up, because it was a point that arose in connection with an intervention from the noble Baroness, Lady Finlay, in the previous group of amendments. Of course, we will be relying on the NHS Commissioning Board to issue guidance in a number of clinical areas. Again, when the noble Earl and I meet, I will update him to the extent that I am able to on the thinking in that regard. The point of such guidance—which will relate to numerous areas of care and services—is that it should inform joined-up commissioning in local services, so that we really do get a step change in the quality of commissioning in local areas.
The Earl of Sandwich
It is quite true that the CCGs are going to be overwhelmed with guidance from all directions, but I maintain that this is an important aspect.
I thank my noble friend Lady Hollins for the very important point that she made. I did not even talk about prescribing today but I hope to come back and talk about it later—the whole question of training and what young doctors are being told. “Rational prescribing” is a phrase that I will now be able to repeat.
I know that the Minister accepts the arguments, and of course there are many things that we have in common—good practice and the use of the voluntary sector. I take the point about the duty that falls on local authorities, but I still maintain that we have to separate this out from the mainstream of drug addiction and alcohol treatment. It is the kind of treatment that only the very careful, experienced volunteers can describe. I do not think that I can begin to describe the actual treatment. However, the NHS will soon get to grips with what is happening. I welcome the chance of having a meeting. I will of course come to talk, and I hear that there is to be a range of experts. I feel that the Minister has given a little bit of a Civil Service answer, because there are only but one or two people who follow this subject in the department. I do not mind talking only to two people—it will be a very good opportunity to take this further. Meanwhile, I beg leave perhaps to consider this again at a later stage of the Bill, and to withdraw the amendment.
“section 14XA,”
“( ) A local authority must have regard to any guidance given by the Secretary of State in relation to its director of public health, including guidance as to appointment and termination of appointment, terms and conditions and management.”
“( ) The duty in subsection (3) does not apply in relation to the proposal if the Secretary of State so directs by an instrument in writing.”
“( ) Subsection (1) does not apply to any function of the Secretary of State of making an order or regulations.”
Health and Social Care Bill
Earl Howe Excerpts(12 years, 2 months ago)
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Baroness Wheeler
My Lords, I would have liked to debate this amendment in the light of next week’s debate on the status, powers and functions of HealthWatch England under Clause 180, when we will fully air once again the serious and continuing concerns across the House about the proposed relationship between HealthWatch England and the CQC, and hear from the Minister how the Government intend to address these concerns as they flesh out their proposals for healthwatch, and as the CQC comes under closer scrutiny. However, we support this amendment requiring the Secretary of State to include HealthWatch England in the organisations specified in the Bill that he or she must keep under review. Obviously we do this in the context of the separate independence of HealthWatch and not as a committee of the CQC.
However, it is also important to make it clear that we do not think that the measure in itself, or combined with other government proposals, for example, on the HealthWatch board membership, will be anywhere near enough to provide the independence that HealthWatch England needs if it is to be the robust and trusted patients’ watchdog that is needed—and I emphasise trusted by the public.
The Minister must appreciate that the concerns across the House over the CQC’s relationship are not addressed by referring to the close synergies between the two organisations or to the powers and influence of the CQC rubbing off on HealthWatch. In this context it is difficult not to dwell on the recent developments in the commission and the Department of Health performance and capability review of the commission. I say this as a genuine supporter of the CQC and its work—for example, last year’s excellent special review of stroke services, and the one of residential care—but the department’s major findings that the CQC needs to be more strategic, that accountabilities within the CQC are unclear, as well as the strong concern over the blurring of boundaries between the CQC board and executive team, do not augur well for the future relationship between the CQC and HealthWatch.
Of course, we will come to these matters in detail when we have the full debate on HealthWatch and local healthwatch organisations. I hope that at that stage the Minister will address these ongoing concerns, particularly about the clash of cultures between HealthWatch and the CQC, about public faith and trust in HealthWatch if it is to be formally linked to the CQC, and the lack of confidence in the new arrangements on the part of the overwhelming number of LINks organisations and NALM. As the letter from NALM in the Guardian earlier this week underlined:
“Healthwatch will only be considered the true voice of the public, if it is seen to be independent of those it monitors”.
I look forward to next week’s debate.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, the Secretary of State has a duty to keep under review the effectiveness of the exercise of health service functions by certain national bodies. These bodies are listed at new Clause 247C, inserted by Clause 51 of the Bill.
As it is currently drafted, the Bill requires the Secretary of State to keep the effectiveness of the Care Quality Commission under review in so far as it is exercising functions in relation to the health service. However, it does not make explicit reference to the HealthWatch England committee. Yet, while HealthWatch England will be established as a committee of the Care Quality Commission, it will have its own statutory functions that it must exercise outside of the CQC’s other functions.
This is, therefore, a helpful and welcome amendment from my noble friends Lady Cumberlege and Lady Jolly. It helpfully clarifies the distinction, in terms of the Secretary of State’s accountability, between the exercise of functions by HealthWatch England and that of the CQC.
The amendment would add HealthWatch England to the list of bodies the Secretary of State must keep under review in respect of how effectively it exercises its functions in relation to the health service in England. Importantly, it would emphasise that HealthWatch England itself is responsible for exercising the statutory functions of HealthWatch England.
I have reflected on this and I will be supporting this amendment. I hope that other noble Lords will join me in doing so.
Baroness Cumberlege
My Lords, I think we are on a roll. I am very excited that we have had another amendment accepted. I very much thank my noble friend.
I appreciate some of the other points that have been made in this debate, but I think we will be debating them next week and perhaps we could hold our fire until then. Indeed, we have debated them previously and noble Lords will know that I am in favour of the present proposal in the Bill that HealthWatch England should be a committee of the CQC, and that is why I have chosen those particular words.
I am very grateful to my noble friend. I think this is the first time ever this has happened to me and I feel very pleased about it. Thank you.
“( ) The report must include the Secretary of State’s assessment of the effectiveness of the discharge of the duties under sections 1A and 1B.”
“( ) after paragraph (e) insert—“(ea) paragraph 11 of Schedule A1,(eb) paragraph 14 of Schedule 1A,”.”
Earl Howe
My Lords, in moving Amendment 145, I shall speak also to the other amendments in this group: Amendments 146, 147, 148, 148A, 151, 153, 154, 155, 156, 159, 160, 222 and 223.
The amendments in this group make a number of changes to some of the Bill’s schedules of consequential amendments. These include, for example, consequential amendments to the Charities Act 2011 and the Health and Safety at Work etc. Act 1974, as well as a number of amendments consequential to the abolition of PCTs, SHAs and NHS trusts.
I am happy to explain any of these amendments, if noble Lords wish, but I hope that noble Lords will take it from me that these are minor, technical or consequential amendments. I beg to move.
Earl Howe
My Lords, with the changes to the Secretary of State’s powers under the Bill, it has recently become clear that it would be better to make express provision for the Secretary of State’s powers to provide the support functions referred to in the amendment rather than rely on Section 2 of the NHS Act 2006 and risk any legal doubt. The amendment would maintain the current position under the Act and enable the Secretary of State to continue to carry out the activities concerned. The context of this is that Section 2 of the Act gives the Secretary of State a general power to,
“do anything else which is calculated to facilitate, or is conducive or incidental to, the discharge of”,
his duties in the Act.
The kinds of thing that come under that heading are support facilities and other assistance to the NHS—for example, the department purchases some medicines centrally for the NHS or provides advice to NHS bodies in carrying out procurement activity. It is also involved in arrangements known as NHS shared business services. It provides accounting, payroll and e-procurement services for all types of NHS organisation. There are benefits to the health service in ensuring that the Secretary of State remains able to co-ordinate activity centrally—for example, in certain cases it is likely to be financially beneficial to purchase services centrally.
Perhaps I may make it clear that Amendment 148A does not allow the Secretary of State to commission or provide health services. As noble Lords will be aware, the Bill requires the Secretary of State to exercise his functions to ensure that services are provided but removes the Secretary of State’s specific powers to provide or commission NHS services directly. This amendment does not change that.
“( ) In subsection (9), for “section 224 or 226” substitute “section 225”.”
(b) before paragraph (a) insert—“(za) section 14A(1),”.”
“Health and Safety at Work etc. Act 1974 (c. 37)(1) Section 60 of the Health and Safety at Work etc. Act 1974 (supplementary provision about the Employment Medical Advisory Service) is amended as follows.
(2) In subsection (1) for “each Primary Care Trust and Local Health Board” substitute “the National Health Service Commissioning Board or each clinical commissioning group (in relation to England) and each Local Health Board (in relation to Wales)”.
(3) In subsection (2)—
(a) omit “for one of their”, and(b) for ““each” to “its”” substitute ““the National” to “arranges””.”
“( ) The amendment made by section 20(6) does not affect—
(a) the validity of any direction made by an instrument in writing which continues to have effect by virtue of sub-paragraph (2),(b) any power to vary such a direction otherwise than for the purpose of directing the Special Health Authority concerned to exercise an additional function, or(c) any power to revoke such a direction.”
Health and Social Care Bill
Earl Howe Excerpts(12 years, 2 months ago)
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The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, I shall now repeat as a Statement the Answer given by my right honourable friend the Secretary of State for Health to an Urgent Question tabled in another place earlier today about the Health and Social Care Bill. The Statement is as follows:
“Mr Speaker, I am glad to have this opportunity again to set out the purposes of the Health and Social Care Bill. It is to give patients more information and choice, so that they share in decision-making about their care. It empowers front-line doctors and nurses to lead the delivery of care for their patients. It cuts out two tiers of bureaucracy, and strengthens the voice of patients and the role of local government in integrating services and strengthening public health.
The values of the Bill are simple: putting patients first, trusting doctors and nurses, focusing on results for patients, and maintaining the founding values of the NHS. We are constantly looking to reinforce those values, strengthening the NHS to meet the challenges it faces. We know change is essential: we will not let the NHS down by blocking change.
Throughout the development and progress of this Bill, we have engaged extensively with NHS staff, the public and parliamentarians. The Health and Social Care Bill is the most scrutinised public Bill in living memory. With over 200 hours of debate between the two Chambers and 35 days in Committee, we have ensured that Members and Peers have had every opportunity to examine, understand and amend the Bill to ensure it does the best possible job for patients.
We have made this legislation better and stronger. We have made significant changes to the Bill, including in response to the NHS Future Forum’s work, and we will be open to any further changes that will improve or clarify the Bill. For example, so far in the Lords, the Government have accepted amendments tabled by a number of Cross-Bench, Liberal Democrat and Labour Peers.
Yesterday, my right honourable friend the Deputy Prime Minister and the noble Baroness, Lady Williams, wrote to their Liberal Democrat colleagues explaining their support for the Bill with those changes and some further amendments they wish to see. They said, for example, how we must,
‘rule out beyond doubt any threat of a US-style market in the NHS’.
I wholeheartedly agree.
The Bill is about quality, not competition on price. It will not permit any NHS organisation to be taken over by the private sector. It will put patients’ interests first. We will not permit any extension of charging. Care will be free and based on need. Where the doctors and nurses on the ground know that competition is in the best interests of their patients and where it is based entirely on the quality of the care and treatment provided and not in any way on the price of that care and treatment, then competition can play an important role in driving up standards throughout the NHS.
We will not see a market free-for-all or a US-style insurance system in this country. I believe in the NHS. I am a passionate supporter of our NHS. That is why I understand the passionate debate it arouses. But it is also why I resent those on the Benches opposite who seek to misrepresent the NHS, its current achievements and future needs.
We are using the debates in the Lords further to reassure all those who care about the NHS. I am grateful for the chance to reassure all my honourable friends in the House of the positive and beneficial effects of debate in the House of Lords, and of the work we are doing to secure a positive future for the NHS”.
My Lords, that concludes the Statement.
Baroness Thornton
My Lords, I thank the Minister for that Statement. We are in a slightly odd situation here. We have a letter from the Deputy Prime Minister and a distinguished Member of your Lordships’ House to MPs and Peers in their party concerning a matter of public policy involving a major piece of legislation currently before this House. I thought that we could not be further surprised by the parliamentary twists and turns of this Bill, but it is really a case of “Whatever next?”. Is it the first time that a serving Deputy Prime Minister has decided to send a letter suggesting amendments to his own Government’s legislation? This letter seems largely to concern Mr Clegg saying that he wants more amendments to the Bill and expects this House to deliver them so that Liberal Democrat MPs can support the said amendments in the Commons. It is not clear to me whether the Minister in the Commons, or even Conservative MPs, will do so as well. Remarkable!
I appreciate that it may be difficult for the Minister to answer this question, but I am going to ask it anyway. How exactly does he think that the Liberal Democrats propose to achieve this target set by Mr Clegg in this House when they are part of a coalition wedded to this Bill in all its glory—and Part 3, too—and the Lib Dems command 70 to 80 votes in the House on a good day? Who will deliver Mr Clegg’s amendments to Part 3 of the Bill, I wonder? Will it be done by consent with the Government or will it be by Division?
I would like to ease Mr Clegg’s dilemma in this matter and make a very generous offer. The Liberal Democrats can have our amendments to Part 3 of this Bill. We have a great set of amendments to Part 3 which would serve to deliver what Mr Clegg and the noble Baroness, Lady Williams, say that they seek on competition and, indeed, more. So I look forward to the Minister’s response to my offer.
However odd the mode of delivery, it is important to ask whether this is a major announcement of a change in government policy and, indeed, was the text of the letter discussed with and agreed by No. 10 and Mr Andrew Lansley. This development has added to the considerable confusion about what government policy around the Bill is exactly, and I think that Ministers need urgently to clarify what precise changes are being proposed, what discussions have been held with the Deputy Prime Minister and whether these policy changes now represent government policy. I ask this because we know that Mr Clegg has to manage the challenge of the Lib Dem spring conference—and a challenge it is certainly shaping up to be. According to today’s media, the Liberal Democrat health activists are planning to put an emergency motion to the party’s spring conference urging their leadership to reject the provisions of the NHS reform Bill despite, presumably, the final changes advanced by Mr Clegg and the noble Baroness, Lady Williams, in this joint letter. Certainly this letter and that conference, combined with the growing tumult against the Bill—another royal college might bite the bullet and say that it wants the Bill to be withdrawn again; I think that there are only about two more to go—put the discussions that we will have on Part 3 in your Lordships' House next week in an interesting light.
This is an odd way to develop and announce policy—or is it shift in policy? Yesterday morning, the Minister, Simon Burns, was insisting the whole Government backed the Bill “as amended now”. At the same time sources close to Mr Clegg, whoever they may be, were insisting the changes that he is demanding are,
“significant and not simply reassurances”.
However, at the same time the PM’s spokesperson said,
“we do not see any need for further significant changes to the Bill”.
We need to know which of these is correct. I hope that the noble Earl will be able to enlighten the House.
This letter states that,
“we want to rule out beyond doubt any threat of a US-style market in the NHS. That is why we want to see changes made to this bill that have been put forward by our Liberal Democrat team in the House of Lords to make sure that the NHS can never be treated like the gas, electricity, or water industry”.
That is exactly what I have been saying all the way through this Bill. The letter proposes four broad changes. The first is that we should remove the reviews by the Competition Commission from the Bill. In fact, amendments to that effect where tabled by the Labour Party. Imitation being the greatest form of flattery, I am very happy that the Liberal Democrats are tabling them again. Secondly, the letter suggests that we keep the independent regulator for foundation trusts, Monitor,
“to make sure hospitals always serve NHS patients first and foremost.”.
Well, hurrah! We have an amendment down that does exactly that. Thirdly, the letter proposes to,
“introduce measures to protect the NHS from … threat of takeover from US-style healthcare providers by insulating the NHS from the full force of competition”.
Mr Clegg might just have noticed the threat that competition posed when he signed this Bill a year ago. Finally, it proposes,
“additional safeguards to the private income cap to make sure that foundation trusts cannot focus on private profits before patients”.
Well, the amendments that the Liberal Democrats have promoted so far on this certainly need some thought and some change. We would agree with them and we shall see. This is all familiar to us on the Labour side, because those proposals were part of the substance of our amendments in Committee which were so soundly and roundly rejected by the Minister. Is he about to resile from his earlier position and embrace the Labour amendments? I would appreciate some notice if that is what he intends to do.
I have a few questions. The document issued at the Conservative away day last Friday said:
“If we changed or altered the bill now, we would end up in a no man's land, and chaos”.
Can the Minister confirm that this is still the Government's position? Can he clarify whether the changes outlined in the Deputy Prime Minister's letter now represent government policy? His letter promises,
“additional safeguards to the private income cap”.
Can the Minister explain what these additional safeguards are, and why the Deputy Prime Minister feels that they are necessary? Why does the Secretary of State seem to have no regard for the views of health professionals and the public when it comes to making changes to this health Bill but is quite happy to make concessions to accommodate the Liberal Democrats before their spring conference? Will the Minister clarify whether these amendments to the Health and Social Care Bill are “significant”, as stated by the Deputy Prime Minister, or a “reassurance”, as stated by the Prime Minister's official spokesperson?
In 2009, the Prime Minister said:
“There will be no more of those pointless re-organisations that aim for change but instead bring chaos”.
It seems to me that the Secretary of State has seen a clear example of unmitigated chaos in the latest incarnation of his Health and Social Care Bill. Really, this is a most unloved and unwanted piece of legislation and the Bill should be dropped. In conclusion, the Minister has my deepest sympathy in dealing with this Statement, because it seems that it puts him between the rock of Andrew Lansley and the hard place of the noble Baronesses, Lady Jolly and Lady Williams, and their colleagues—probably not a comfortable place to be. Actually, this is not the way to treat Parliament and its consideration of this Bill. It is not the way to treat the people who work so hard for the NHS and, indeed, it is not the way to treat our NHS.
Earl Howe
My Lords, the noble Baroness said that she was surprised by the letter in question. I can tell her that nothing in the letter was in any way a surprise to me, for the simple reason that it reflects the very constructive discussions that I have had with my Liberal Democrat colleagues, which are a natural part of good government. I can only conclude that she does not recognise that such discussions are a part of good government, but it certainly is the case with the coalition. As far as I am concerned, Mr Clegg needs no permission to bring members of his party up to date with progress on the Bill or to make it clear, as he does, that he is fully behind it.
The noble Baroness asked about the changes that Mr Clegg and my noble friend Lady Williams have outlined in the letter that they would like to see. I simply direct the noble Baroness’s attention to the Marshalled List for the Bill; there are a number of amendments already tabled and discussions continue on a number of other issues. Are the changes that have been made significant? I say to her that any amendments we accept are significant, and the amendments made to the Bill are largely about reassurance to those noble Lords who are unclear, uncertain or worried about the Bill and what it says. They are about delivering greater clarity and making sure that the Bill delivers on its intentions. I have been very happy to accommodate the concerns of Peers of all parties who have come to speak to me—not simply my Liberal Democrat colleagues—because the function of this House is to make Bills better, and we are certainly doing that with the Health and Social Care Bill. A prime example of that, surely, was the fruitful discussion that we had across the party divide on the Secretary of State’s powers and duties, and I believe that the resolution of that matter was very satisfactory.
With regard to the issues themselves, it would not be appropriate for me to give a running commentary. The place for debate on each issue is surely our debates on Report. We are in the middle of the Bill; we should not attempt to engage in substantive discussion on matters of policy now when we still have four more days of Report ahead of us. We are open to constructive discussions with Peers of any party to make the Bill better, just as we listened, contrary to the assertion of the noble Baroness, to members of the public and members of the medical profession in their thousands during the listening exercise last year. We listened, paused, reflected and amended the Bill extensively. I am sure that the noble Baroness knows that nothing has changed in that respect, and my door is open to her as it is to anyone else.
Baroness Jolly
My Lords, I thank the Minister for his ever-open door and his willingness to listen. Will he further explain to the House how he believes that the NHS will be stronger for the scrutiny from all sides of the House? How does he believe that the objections of the Royal Colleges, such as the Royal College of Nursing, the BMA and other professional bodies have been met as a result of this cross-party scrutiny?
Earl Howe
My Lords, I completely agree with my noble friend. I feel that the debate and discussions that we have had in your Lordships’ House have made this a better Bill, as I said a moment ago. Again, a prime example of that is the clauses relating to ministerial accountability. With regard to the Royal Colleges, we have made all sorts of improvements, such as those in response to concerns about the integration of services, education and training, research, health inequalities, ensuring that competition is never an end in itself and a number of other important issues. I am glad that these changes were all welcomed by a wide range of Royal Colleges.
Lord Campbell-Savours
My Lords, in the light of what the Minister has just said, if I came to him over the next couple of days and handed him a document about the problems that it is felt will be experienced in specialist services, would he then deal with it before the completion of Report and let me have an answer?
Lord Crisp
My Lords, like, I suspect, every other Member of your Lordships’ House, I very much respect the way in which the Minister has handled the Bill and his willingness to engage in debate. I sit here as a Cross-Bencher listening to what seems to be the healing of a rift between the coalition parties, if I may put it like that, but I also see—my postbag is full of this, as I am sure everyone else’s is—a rift with the medical profession, the nursing profession, midwives and others. Even though this approach may deal with some of the issues that they have wished to raise, I do not see that it will deal with the much more fundamental issue of the loss of trust and unity that seems to have been created as part of the passage of the Bill. Can the Minister say something about how he believes that that will be handled? These issues go far beyond your Lordships’ House, as we all understand.
Earl Howe
The noble Lord is right. The stance taken by a number of medical bodies and members of the medical profession is of course a matter of great regret to me and my ministerial colleagues. I say to them and to the noble Lord that once the Bill has been approved by Parliament, as I sincerely hope it will be, that will be the time to re-engage with the medial profession and work with it to ensure that the Bill delivers on the promise that we have held out for it and that we still believe in. The principles that the Bill embodies, which the medical profession has always said that it supports, can then be given substance in the form of the improvements that we would like to see delivered to patients. From all the comments that I have heard from doctors and others who are in doubt about the Bill, most of their concerns revolve around its implementation and what it will mean in practice, rather than the principles that it enshrines. We need to look forward collectively and work together to make the NHS work better.
Baroness Meacher
My Lords, I, too, applaud the noble Earl for the way that he handles this very difficult Bill in very difficult circumstances. I am sure he is aware that there is a lot of concern about the Bill in the field of mental health, particularly as private provision gathers pace. Can he give any assurance to mental health professionals and services up and down the country about what in the Bill might protect mental health services in the future?
Earl Howe
Several things in the Bill are new. One is the duty to reduce health inequalities, which is very important in mental health. Another is the duty to promote integration of services. Again, we have had many debates on that and there are mechanisms that we propose to use to support greater integration of services.
I also believe that the worries about competition are misplaced. Competition is a tool that commissioners can use, or decide not to use, in the interests of patients. It is no more than that. The Bill does not change competition law or increase the scope for competition to be used in the NHS. It leaves the decision-making to commissioners on whether competition does or does not serve the interests of patients. There is a lot of misapprehension about what the Bill does, not just among those in the mental health world but more widely. I hope that that reassurance is helpful.
Baroness Williams of Crosby
I apologise to the Minister for being the cause of another late night for him. I apologise because, obviously, the Statement relates to some extent to the letter that I co-signed with the Deputy Prime Minister. I simply say, as have many in the House, that the Minister has shown amazing patience. Indeed, his door is always open; a number of us stumble our way through it and we are extremely grateful.
I shall say just two more things about the point raised by the noble Lord, Lord Crisp. First, a great deal of the concern that has been expressed in public was expressed before some of the very recent changes, which are not widely realised or well understood among the public or the media.
Secondly, it is probably fair to say that Chapter 3 has been the centre of much of the concern about the Bill. There are other things in it that many people will widely recognise and accept, not least the work on education, training and research. This is not yet widely known, even within the medical profession. It may be that there is a great deal to be said for making a further attempt to get across exactly what changes have been made to the Bill. I think that would carry with it a rather different attitude among the public and the media from what has existed in the past few weeks.
Earl Howe
I am very grateful to my noble friend and agree with everything that she said. Many of the changes that the Government have made to the Bill—not just those made in your Lordships’ House but those that were made last year—have not been fully appreciated, or appreciated at all in some quarters. The changes that we have made are not sufficiently understood even by those who recognise that amendments have been made to the Bill. Without naming names, I have spoken to very senior members of the medical profession who have had no idea at all about some of the amendments that we have made to bring greater clarity to the Bill and change it substantively. As my noble friend knows, we did that in particular with Part 3 of the Bill. There is no doubt that there is a job of work to do to put over the correct messages to the medical profession and to reassure its members that this Bill does not represent a threat to them or to the NHS—quite the reverse.
Lord Patel
My Lords, although many of the comments that have been made relate to amendments that have yet to be presented to the House, particularly to Part 3 of the Bill relating to competition, does the Minister agree that there are other amendments relating to other parts of the Bill that are of broad concern to people outside the House: namely, those relating to public health issues and how public health will be delivered, and that we also need to address those amendments?
Earl Howe
Of course, I acknowledge the point made by the noble Lord. It is a matter of regret to me that the commentary on the Bill hardly ever focuses on the proposals it makes for public health, which have generally commanded widespread approval. However, I recognise that there are concerns around the detail of those proposals. That is why we are here as a Chamber to address those concerns. I am sure that when we come to the amendments referred to by the noble Lord, this House will not be found wanting in the way that it explores those issues and resolves them.
Lord Martin of Springburn
The noble Earl has repeated a Statement made in the other House by a Cabinet Minister responsible for health. We have also heard mention of the Deputy Prime Minister supporting the noble Baroness’s amendments. The Deputy Prime Minister is clearly a Cabinet Minister. Therefore, we have two Cabinet Ministers in the picture. If everyone is so enthusiastic about the Liberal Democrat amendments —the noble Baroness, Lady Thornton, was kind enough to tell us that those follow her proposals, and imitation is the best form of flattery—does it mean that everybody is happy? However, the only piece of the jigsaw that I am concerned about is whether that means that the Conservative Party will support the relevant amendments. If that is the case, they will all go through on the nod and everybody will be happy. Perhaps the noble Earl can tell me whether I am wrong and I have missed something.
Earl Howe
Far be it from me to say that the noble Lord, Lord Martin, would ever miss anything; he is too wise a head for that. I see nothing strange or amiss in a party leader wishing to address his parliamentary colleagues on the eve of a party conference to bring them up to date on a major Bill and its progress in the House and to set out some of the remaining concerns that he has that we need to settle. These concerns came as no news to me as I have been talking about them regularly not only with Liberal Democrat colleagues but with other Members of your Lordships' House and members of the medical profession. I see nothing amiss in the letter spelling out those concerns. How we arrive at a resolution of those issues is yet to be seen. As I have said, amendments have already been tabled which we shall debate. It is possible that more will be tabled over the days ahead—I do not rule that out at all. However, the noble Lord should not forget that there are non-legislative ways of reaching the destination that some of my noble friends would like to get to. There are many ways of achieving some of these objectives. It is entirely possible that we shall agree amendments to do that but that is not by any means the only course open to us.
Lord Greaves
My Lords, I am a little confused about all this, and I wonder if my noble friend the Minister can help me. I received the letter yesterday. At the top it stated, “Keep this completely secret and do not tell anybody”. I switched on the television and there it was. I am confused because I watched and listened to the exchanges in the House of Commons this afternoon, which, I have to say, were a great deal more vigorous and bad-tempered in many ways than the exchanges here; and I congratulate the noble Baroness on the Labour Front Bench who did a much better job of responding on this matter than her colleagues in the House of Commons.
However, here we have the Labour Party, which in government made major strides towards introducing competition, privatisation and commercialisation of the health service, and now has been very strong indeed in opposing those matters when it comes to the Bill. I do not understand that. The other thing that I do not understand is that if what the noble Baroness says is correct—that many of the things she and her colleagues have been putting forward at Committee stage and have been saying outside this House are now being put forward by Liberal Democrats in the amendments that we were told about in the letter from my noble friend and my party leader—why is she not standing up and offering her help, with some enthusiasm, instead of being so grumpy about it all and the way in which this has been done? There seems to be huge confusion on the Opposition Front Bench and in the opposition party, and I wonder if my noble friend can suggest any gentle therapy that it might take up to help it with this problem.
Earl Howe
I am very happy to pick up that challenge from my noble friend; in fact, I have been using all my charms and skills on the Benches opposite without any effect at all. I feel that I may have arrived at an impasse. My noble friend is absolutely right because the situation that we inherited from the previous Government was in many ways one that we embraced—it was they who opened up choice in the NHS and indeed put a right of choice into the NHS constitution. However, they did not roll out competition and choice in the way that was appropriate and right, because it cannot be right to impose competition on the NHS whether it wants it or not. It cannot be right for there to be preferential prices for the private sector, with the NHS being disadvantaged. It cannot be right to have an explicit target of increasing private sector provision in the NHS, which is what the previous Government had. It cannot be right for private providers to cherry-pick the easy cases and leave the NHS with the hard cases. We do not approve of fragmenting care pathways.
We do not think that the previous Government thought nearly hard enough about how this was all to be regulated, which is why we want a sector-specific health regulator. That is the reason for having Monitor and is why we think the provisions of Part 3 make sense because they are in the interests of patients and the NHS. I still hope that in our debates I can engender some movement on the Benches opposite to recognise that we are actually trying to improve the situation that we inherited for the benefit of everyone.
Organ Transplantation
Earl Howe Excerpts(12 years, 2 months ago)
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Baroness Gardner of Parkes
To ask Her Majesty’s Government how they intend to reduce any waste of organs for transplantation arising from inadequate co-ordination of the process and the extent of out-of-hours and weekend services.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, the National Organ Retrieval Service—NORS—provides continuous 24/7 cover. I understand there have been two exceptional occasions when a NORS team could not be provided. Contingency arrangements enable other teams to stand in when needed or for local kidney transplant centres to be reimbursed for retrieving from kidney-only donors. NHS Blood and Transplant is also considering a tariff to fund National Organ Retrieval Service teams willing to provide additional cover.
Baroness Gardner of Parkes
Can the Minister confirm for me a statement that was made when I was chairman of one of the London teaching hospitals—that when you die your body is no longer your own? That is a highly significant point in the case of people who carry donor cards but whose relatives reject them. Can he also assure me that they will do something to ensure that when potential donors come to accident and emergency at weekends due to accidents, the retrieval team is alerted to the possibility that such organs—each of which is very precious to the recipient—may be available?
Earl Howe
My Lords, it is a well established principle of law that there is no property in a corpse. This means that, as a general rule, the law does not regard a corpse as property protected by rights. In other words, there can be no ownership of a dead body. However, the law does prescribe what may lawfully be done with the body of a deceased person. For example, a person can say while they are alive what they would like to happen to their body after death, such as donation of organs. My noble friend raises an extremely important point about A&E. The number of donors from A&E units is improving but it is generally recognised that it had to because performance was not good. Since 2007-08 there has been a 388 per cent increase in donations from emergency medicine, which is good news, but there is much more that could be done. The transitional steering group that we have set up under the chairmanship of Chris Rudge is looking at that area as a priority.
Baroness Howarth of Breckland
My Lords, it is widely recognised that the Government and the previous Government have made huge strides in this area but from a fairly low position. Many countries in Europe—particularly Spain—do much better than we do. What are we doing to ensure that we are learning from others and making the improvement even faster? Every day is someone else’s life.
Earl Howe
The noble Baroness is absolutely right. The record in Spain is particularly interesting because the rate of donation is about twice what it is in this country. It is interesting to observe that Dr Matesanz, who is head of the transplantation effort in Spain, observed that this was not, in his opinion, due to the opt-out system which Spain employed in 1979. It is much more to do with the organisation of the service which came in about 10 years later. That is what we are trying to replicate in this country.
Lord Hughes of Woodside
My Lords, is it not the case that despite the great advances that have been made there is still a problem, whereby if someone carries a donor card the relatives still have to be consulted, and very often they say no? Can we do something to speed that up, if we cannot go for the proper opt-out system?
Earl Howe
The noble Lord makes a good point. It is generally the practice that the relatives are consulted even where someone has expressed a wish to donate an organ after death. Doctors will normally respect the wishes of the relatives; however, it is equally true that that person’s wishes will be emphasised to the relatives. There is a delicate balance to be struck here. The moment that action by medical teams is seen to be high-handed, it risks damaging the credibility of the transplant service.
Baroness Barker
My Lords, what is the Government’s response to the recent BMA report on increasing donation, particularly regarding the obligation introduced last year on individuals who apply or reapply for documents such as driving licences and passports to answer a question about donation of organs?
Earl Howe
My Lords, the report from the BMA was very useful and we are looking at it extremely carefully. It made some useful suggestions about how we might expand the number of donor organs. A number of initiatives have already been taken: for example, there is a prompt when you apply for a driving licence online as to whether you wish to donate an organ. In general, public awareness is being raised in a number of useful ways, which has led to the increase in the number of people donating organs.
The Lord Bishop of Liverpool
My Lords, I very much welcome the increase in the number of donors. I have been pastorally involved with the Alder Hey families and seen the devastating effect of the taking of organs without consent, and I have been involved in the burial of 10,000 bodies and body parts. Can the Minister assure the House that in the work towards a more efficient and effective system of harvesting organs, the principle of requiring the consent of next of kin will not be compromised?
Earl Howe
The right reverend Prelate is absolutely correct. In England, Wales and Northern Ireland, the Human Tissue Act 2004 requires that appropriate consent be given for the removal, storage and use of material from a deceased person for a range of purposes, including transplantation. Appropriate consent means the deceased person’s consent or that of his or her nominated representative, or of a person who stands in a qualifying relationship to the dead person. There are no plans to change that principle.
Lord Patel of Bradford
My Lords, while we have seen an improvement over the years in the number of donors from minority and ethnic groups, particularly the south Asian community, for a whole host of reasons, including religious and cultural matters, the number of donors needed to come through the system remains very short of what is required. What are the Government doing to improve the situation?
Earl Howe
The noble Lord is quite right: 75 per cent of people from a BME background refuse to donate organs when asked to, compared with an average figure of 40 per cent across the population. We are completely committed to increasing organ donor rates among the BME population, and there has been funding to support specific projects to work with local faith leaders and explore issues around organ donation. We held a workshop on 7 February with national and local groups to identify the barriers that exist in the BME and mixed-race communities, and plans are being developed to take forward that work. We have public awareness campaigns on local radio stations and through organisations such as the African-Caribbean Leukaemia Trust.
Lord Cormack
My Lords, if a donor expressed his or her wish in a will, would that not be legally binding?
Lord Davies of Coity
My Lords, the question that I was going to ask earlier has been answered. However, the question I am going to put now is this: are the same people who will not participate in the donation of organs also reluctant to receive organs from donors?
Baroness Walmsley
Will the Minister accept that it can be very difficult for doctors to approach a bereaved family to ask about organ donation? I know this from personal experience, because doctors did not approach me when I lost my late husband; I had to raise the matter myself. It is understandable that they do not want to upset the family. However, can it not be even more upsetting for a bereaved family who have not been asked about donation to realise some time later that they have missed the opportunity for their loved one to give life to other people?
Earl Howe
My noble friend raises an extremely important set of issues. This was one issue identified by Chris Rudge when he took up the post as National Clinical Director. A great deal of work has been done in the NHS to increase the number of organs available to patients and to have the kinds of conversations with families that are necessary but very delicate. There has been an increase in the number of specialist nurses for organ donation who are of course highly trained in that area, and appointments of clinical leads for organ donation have also helped.