Health: Breast Cancer
Earl Howe Excerpts(12 years, 10 months ago)
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Baroness Morgan of Drefelin
My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I declare an interest as chief executive of the research charity Breast Cancer Campaign.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, the expert group chaired by Sir Bruce Keogh concluded that, on the available data, PIP implants are not associated with a higher risk of breast cancer than other silicone gel implants. Women who have had PIP implants on the NHS following surgical treatment for breast cancer will be able to consult an NHS doctor and if they wish, in the light of that clinical advice, have the implants removed and, if appropriate, replaced.
Baroness Morgan of Drefelin
I thank the Minister for that Answer. I welcome the Statement made by the Secretary of State for Health in the other place and the reviews being set up to look at both of the issues here. This is an issue that is causing a huge amount of concern for women with breast cancer. I welcome the assurances of the Secretary of State that, where women have been treated on the NHS, the PIP implant will be removed, and where patients have been treated privately, and those companies refuse to remove the implant, they can then seek help from their GP from the NHS.
Baroness Morgan of Drefelin
I apologise, but I need to get the detail right. I am concerned about women who are diagnosed with breast cancer, treated privately and are then refused help from that private practitioner. At the moment, when they come to the NHS they are only promised the removal of that PIP implant, not subsequent replacement and reconstruction. I do not think that is right, and I hope the Minister will be able to reconsider that.
Earl Howe
My Lords, I understand the point that the noble Baroness is making, but I think that most people would agree that it would be wrong to let private providers off the hook. In the first instance, we are saying that the woman, if she has been treated privately in the circumstances the noble Baroness has described, should seek advice from her private clinician. Only then, if the clinician or the clinic let her down, will she be able to have recourse to the National Health Service. I think that that is fair.
As regards the replacement of the implant, we do not think that other NHS patients should be disadvantaged in this way. Every time the NHS picks up the tab for the private sector, we are displacing patients of the NHS who are in need. Therefore, there is a balance to be struck here and we have made our decision on a very good basis.
Baroness Hussein-Ece
My Lords, how is it that these PIP implants, which are now declared unsafe and substandard, were given the European CE mark—the safety kitemark? Does the Minister share my concern and dismay at the Harley Medical Group’s announcement yesterday? This is a group which for years and years has ruthlessly advertised, sold and fitted these substandard PIP implants to nearly 14,000 women and is now saying that it will not replace them. Is it not time to take action against these unscrupulous—it seems—private practitioners to make them take some responsibility?
Earl Howe
We believe that in many instances private practitioners have a legal duty—certainly a moral duty —to address these matters on behalf of their patients. Eight private companies are offering to replace implants for their patients. We welcome that and are urging the Harley Medical Group to follow suit. I was encouraged to hear that the professional bodies representing cosmetic surgeons have sent out a letter, urging surgeons not to charge for their time when they remove these implants privately.
As regards the first part of my noble friend’s question, it remains to be seen whether there has been a failure of regulation. We are looking here at a deliberate criminal act by the manufacturer of these implants. It is very difficult to see how regulation, however tight and effective, could pick up something such as this, where there has been a deliberate effort to conceal facts from the inspectors.
Lord Low of Dalston
Would the noble Earl not agree with me that the kind of behaviour by private companies that we are talking about, whereby they seek to wash their hands of problems that they have created, is the kind of thing that we will see a lot more of once the provisions regarding increased competition in the National Health Service contained in the Health and Social Care Bill come into force?
Earl Howe
I could not disagree more with the noble Lord. He refers to the policy of “any qualified provider”. That policy gives absolute assurance to every NHS patient about the quality of the treatment that they get if they are treated by the NHS, whatever the provider setting. Therefore, the idea that this incident has any bearing on the provisions of the Health and Social Care Bill is absolutely misplaced. I cannot emphasise that more.
Baroness Thornton
The noble Lord, Lord Low, asked a legitimate question. Any qualified provider goes through a process of approval in which the CQC is responsible for regulating clinics and services. That is exactly what the CQC has done for these private clinics. They have all been given a stamp of approval to carry out these operations by the CQC. That, surely, was the point of the noble Lord’s question. Therefore, what are the implications for “any qualified provider” under the fragmentation and increased marketisation of the NHS by the Bill?
Earl Howe
The “any qualified provider” policy was instigated by the Government of the noble Baroness. There is no suggestion that these clinics have been carrying out procedures badly; the issue is around the quality of the implant, which they could not be expected to know about. Nevertheless, the CQC is conducting inspections, some of them unannounced, on cosmetic clinics to assure itself that everything is being done properly. I will not stand here and say that any of these clinics have carried out the procedures badly. We have no evidence to show that they have.
Health: Influenza Vaccination
Earl Howe Excerpts(12 years, 10 months ago)
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Lord Young of Norwood Green
To ask Her Majesty’s Government what steps they are taking to ensure the take-up of influenza vaccination among those who work in the health and care services.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, this winter NHS employers ran a staff communications campaign to increase awareness and uptake of the flu vaccine in front-line healthcare workers. The department wrote to NHS trusts, medical royal colleges, professional bodies and the social care sector for their support in increasing uptake in this group. Good progress has been made. Uptake in healthcare workers to the end of November was 40 per cent, more than double what it was by this point last year.
Lord Young of Norwood Green
My Lords, I thank the Minister for his statement and welcome the improvement, but does he agree that there is still a significant way to go? Indeed, Professor Openshaw, the director of the Centre for Respiratory Infection at Imperial College London, said that in his view healthcare staff should be vaccinated and wear a badge saying, “I’ve been vaccinated. Ask me why”. I am not suggesting a compulsory approach, but more front-line education of staff would be a step forward, as would making vaccination available to health and care workers at their place of work. I would welcome the Minister’s comments on those points.
Earl Howe
I agree that there is some way to go. It is encouraging that we have made significant progress this year. Of course, the season is not yet at an end, and we hope that more healthcare workers will still be vaccinated. Uptake rates in healthcare workers have historically been low, as the noble Lord will be aware. A number of reasons have been suggested for that, but there is no doubt about the importance of this issue. Part of the reason is the need to ensure that healthcare workers do not transmit flu to those they are looking after. Also, it is in the interest of employers to ensure that absenteeism for sickness reasons is kept to a minimum.
Baroness Jolly
My Lords, will the Minister clarify whether the same measures will be taken whenever public or NHS money is spent, which is not only in the public sector but in the private voluntary and mutual sectors?
Earl Howe
My Lords, in general it is incumbent on employers, whether in the public or the independent sector, to ensure that their staff are protected appropriately. If my noble friend’s question alludes to the fact that independent providers may be offering services to the NHS, then I agree that there is a duty there, and we will see, as we already see, that that provision is taken account of in the contracts that commissioners take out with independent providers.
Baroness Finlay of Llandaff
With reference to the contracts and the contracting guidance, is the department considering that immunisation against infection, such as influenza, should be considered as an infection control measure in areas where patients are immunocompromised, such as those who are having chemotherapy or who are on other immunosuppressant drugs? They are at particular risk of high mortality as well as morbidity should they pick up an infection.
Baroness Knight of Collingtree
My Lords, does my noble friend recall a recent report from experts that stated that the present flu vaccine is very much less than universally good for the job that it is trying to do and that further experts reported that work was being done on a more effective vaccine that needs to be given only once a lifetime and that would do the job properly? Is there any further news about that possible development?
Earl Howe
My Lords, the Joint Committee on Vaccination and Immunisation issued a statement in November last year saying that there is good evidence that some new vaccines are demonstrably more effective in children in particular than the non-adjuvanted inactivated vaccines that are currently available. The JCVI concluded that,
“the live attenuated intranasal vaccine and adjuvanted inactivated intramuscular vaccine once available should be the vaccines of choice for use in children according to their market authorisations”.
However, it also said that a further review of data would be needed on the safety of these vaccines in certain groups, including asthmatics and those who are immunocompromised. There is further work to do in this area.
Health and Social Care Bill
Earl Howe Excerpts(12 years, 11 months ago)
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Lord Owen
May I just make a slight correction? I said that the debate on the impact of the European Union on healthcare in the United Kingdom in the name of the noble Lord, Lord Kakkar, will be held on 10 January. It will actually be held on 11 January, as the dinner-break business. I want to be quite clear about the timing of that important debate, which at the moment is limited to a maximum of one hour.
While I am on my feet, I want to stress that every word that the noble Baroness, Lady Williams, has said is wholly appropriate. This question of risk assessment is central to the judgments which will have to be made at Report. I hope very much that we do not proceed to Report until the tribunal's judgment has been heard.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, perhaps I could begin by addressing briefly the matter of the risk register. Arising from earlier debates on this subject, I have discussed the timetable for the appeal with my officials, and I say again that I recognise fully the strength of feeling on this issue and the desire for speedy resolution. As noble Lords are aware, the timetable for matters of this kind is a matter for the Information Commissioner and the legal process. In view of the noble Baroness’s very courteous suggestion that I should write to her and to the noble Baroness, Lady Thornton, about this, I undertake to do so straightaway. I will copy in my noble friend at the same time. In that letter, I undertake to give as much information as I can at the moment about what we see as the likely timetable for the process.
Lord Mawhinney
Before my noble friend leaves that, can he tell the Committee whether the Government have already made representations about speeding up this process?
Earl Howe
Yes, my Lords; I have personally done so, as I undertook to the Committee that I would do. Perhaps I may include my noble friend in the letter that I send out so that he is fully aware of what I have done and what my department has done.
I turn next to the matter raised by the noble Lord, Lord Owen. To answer his direct question: yes, I was aware that the department was writing to the noble Lord in the terms that he outlined. I would not wish him to think me guilty of discourtesy or bad faith, because after he asked me to look into this matter I did so. I received very firm and clear legal advice that the information he has asked for falls into the category of professional, legally privileged advice given to the Government. It has not been the practice of successive Governments, including the previous Government, to waive privilege on information of this kind. However, as this matter is ongoing, I hope the noble Lord will forgive me if I limit what I say at this point. He has asked me to look at this further, and of course I shall do so.
Lord Warner
I was the Minister of State responsible for competition policy in the NHS in 2006, when this legal advice was sought by me and, I think, by Patricia Hewitt as the Secretary of State. As I recall, it was at the point when we were considering the whole issue of regulation reform and Monitor becoming an economic regulator. For my part—I cannot speak for Patricia Hewitt—I would be only too happy for that information to be made available to the noble Lord, Lord Owen. If, in a sense, I am the client, I waive my client’s responsibilities in this area, and I am very happy for that information to be shared.
Earl Howe
I note the noble Lord’s liberality of spirit in this Christmas season. The problem is that it is not up to him, or indeed me as an individual, to cut across the practice which has been laid down across government. However, I have undertaken to look further into this question and I shall indeed do so.
Lord Hunt of Kings Heath
My Lords, it is of course open to my noble friend to simply seek access to papers that he was given advice on as a Minister. I suggest to my noble friend that perhaps he should ask to see those papers. Having done this myself, I know that you have to see them within the department. Usually you get a cup of coffee from the Permanent Secretary’s office, and you cannot take the papers away, but you can summarise and make notes. If the department is not going to make the papers available, perhaps my noble friend would care to do that.
Lord Warner
In the spirit of Christmas, I make myself available to attend the Permanent Secretary’s office. I hope that the coffee in the Department of Health is a bit better than it was when I was there. I would like to take up that offer, which is a very good and constructive suggestion by my noble friend. I hereby deliver the request to the Minister.
Lord Willis of Knaresborough
Perhaps not quite in the spirit of Christmas, with regard to the important issue which the noble Baroness, Lady Thornton, raised and the noble Baroness, Lady Williams referred to, it is frankly not good enough to say that there will be a letter, which none of us will actually see apart from those particular people over the Christmas period. The major question which hangs over this House is whether the tribunal’s decision will be made available before the Report stage. Could the Minister give a real Christmas present to this House by saying that, whatever happens, the Report stage will not take place until that decision is available?
Earl Howe
I cannot give that undertaking, for the reasons that I will set out in the letter. The position—which I shall elaborate on when I write—is that the Information Commissioner has requested more time, and in light of that we have made representations to expedite the process as far as possible. However, the advice I have at the moment is that it is highly unlikely, if not impossible, that the judgment will be delivered before we are due to go into the Report stage of the Bill. This is something that we are dealing with at present, and if I can update my noble friend, as well as other noble Lords, when I write, I shall be happy to do that. I do not wish this to be a closed process. All noble Lords in this Committee who have taken part in these debates are very welcome to be copied in.
Lord Newton of Braintree
My Lords, I intervene briefly and in a way that my noble friend may find somewhat unexpected. Can I just express some concern—although I have a lot of sympathy with many of the things that they say—about the number of ex-Ministers who seek to throw overboard, in a very short space of time and in a particularly short-term context, the policies that have been maintained by successive Governments throughout the whole of my political lifetime? That needs careful thought. On the risk register, for example, it seems entirely possible that the Government collectively may take the view that this is so important that they should appeal onwards, up to the Supreme Court. If so, that would be the proper thing to do if it is thought to be in the best interests of public policy. We need to take care.
Earl Howe
I am grateful to my noble friend. I cannot predict what the collective view of the Government would be in a situation in which the decision on appeal went against my department. We have not reached that stage yet but it is potentially the case that the Government as a whole would wish to pursue the matter further in that eventuality.
Perhaps I should now revert to the amendments before us, beginning with Amendment 346. The noble Lord, Lord Warner, is absolutely correct: information standards are important. However, we need to remember, too, that standards have to be appropriate. There can be burdens associated with them as well as benefits. There are a number of different types of information standard that could help to support the health and social care system—for example, standards to ensure the comparability of data or information governance standards to protect patient information. We intend to consider the detail of which standards we would require following the publication of the information strategy. As a result, we think that it is better to create an enabling provision that does not tie the Secretary of State or the Commissioning Board to an obligation to prepare a standard, and gives us an opportunity to consider where we can adopt standards that already exist.
The amendment also seeks to remove the authority for the Secretary of State or the Commissioning Board to prepare an information standard. This means that the Secretary of State or Commissioning Board would have the power to adopt only an information standard designed or prepared by another body. However, in some cases they may need to design a new information standard themselves, rather than rely on one prepared by another organisation. We believe that the Secretary of State and the NHS Commissioning Board would be best placed to develop or commission an information standard if, for example, it became apparent that one had not been prepared by another body or needed to be modified to be appropriate.
Turning to Amendment 347, I should like to reassure the noble Lord that, under the current drafting of the Bill, the collection and dissemination of information would also be subject to information standards. This is because the “processing” of information, as the term is used in this clause, has the same meaning as in the Data Protection Act 1998, which includes collecting and disseminating information. Therefore, the additional wording is unnecessary.
I am sympathetic to the sentiment in Amendment 347A. There are many intended benefits to using information standards, which include those highlighted in the amendment. However, prescribing the anticipated benefits or beneficiaries of the policy in the Bill is not necessary. In fact, it could prevent the development of information standards that do not fit into those categories. I hope that those comments will reassure the noble Lord.
The noble Lord, Lord Warner, asked me why we put so much about information standards in this part of the Bill, compared to what we put in the Bill about accounting standards. Our view is that it is essential that information standards are set at a national level to allow different systems to talk to each other. That is an approach that the noble Lord shares. With accounting standards, the arguments are slightly different. I do not agree that it is appropriate to put accounting standards on the face of the Bill. We need to ensure that the management information collected by local organisations is of use to those organisations; that is, the organisations have the flexibility to determine their management information needs. However, I will write to the noble Lord on this matter before Christmas, and no doubt he and I can have a further conversation about it. I look forward to that.
On Amendment 347B in the name of the noble Lord, Lord Low, we agree that it is vital that people receive information in an appropriate format. This point was clearly made in the responses to our consultation on an information revolution. For example, the RNIB, of which the noble Lord is vice-president, highlighted the importance for health professionals to be made aware of, and respond to, people’s need for information in alternative formats.
We fully recognise the need for people’s communication and information requirements to be recorded—for example, in their care records—and for that information to be shared with professionals along care pathways. I reassure the noble Lord that the department is currently working with stakeholders on the best way to achieve this, which could be through an information standard or through other mechanisms. Further detail will be included in the information strategy, which we plan to publish in April next year.
I realise that I have not covered Amendment 348 in the name of the noble Lord, Lord Warner. This amendment would require the information centre to arrange for and publish an independent audit of its processes every three years. I completely accept that effective oversight and scrutiny of our arm’s-length bodies is important so that the department and the public can be assured that they are performing their functions effectively and are providing value for money. However, we do not believe that this amendment is necessary. I shall briefly explain why. First, as a department, we plan to undertake formal performance and capability reviews of each of our arm’s-length bodies at least every three years, including the re-established information centre. This would consist of reviewing its performance, financial controls and internal governance, and what one might term its “organisational health”, including the centre’s relationships with its key partners in the system.
In addition, the information centre, as a non-departmental public body, would be required to establish an audit committee that would provide independent and objective oversight and assurance of the centre’s systems of internal control, including risk and financial processes. The Bill also requires the information centre to prepare annual accounts each financial year. These would be examined and certified by the Comptroller and Auditor-General and laid before Parliament.
Finally, the Bill makes provision for the re-established information centre to be subject to the Parliamentary Commissioner Act 1967. This means that the Parliamentary and Health Service Ombudsman would be able to investigate complaints that the information centre had not acted properly or fairly or had provided a poor service in the exercise of its functions. With those assurances, I hope that the noble Lord, Lord Warner, will feel able to withdraw the amendment.
Lord Warner
My Lords, I am grateful to the Minister for his full reply to my amendments. I will certainly study it very carefully. I think that he and I probably differ on the issue of information standards and accounting standards. I still think that there is an issue in that area given how significant it is for the NHS. Therefore, I will probably return to it.
Before I sit down, I should also mention that in recent days the King’s Fund has produced a report on the very serious situation in London, which is extremely relevant to the consideration of the risk register as it shows that more than 50 per cent of the NHS’s historic deficit is held in London. London is in serious financial difficulty as regards converting many of its trusts, if any, to foundation trust status. The Minister might like to look at that report when considering this whole issue of access to the risk register. In the spirit of Christmas, I say to the noble Earl and to the noble Lord, Lord Low, that I recently bought a case of Chapoutier wine, the labels of which are also printed in Braille. Therefore, I say to the noble Lord that if a French winemaker can do that, the Department of Health ought to be able to do it. I beg leave to withdraw the amendment.
Baroness Williams of Crosby
I underline the point made by the noble Lord, Lord Mawhinney, because the whole area of information is a crucial aspect of the constitutional issues about accountability. In particular, the clauses we are discussing are expressed in complicated ways that are difficult to understand. For example, I find it hard to be clear that personal and identifiable data will not fall within the terms of the clauses, because the phrases “other persons”, “other bodies”, and so forth are scattered throughout the clauses. That disturbs me. Perhaps the Minister could add a little on data protection legislation and address the important point raised by the noble Lord, Lord Mawhinney, about this aspect of the Bill, which of course relates to several others besides.
Earl Howe
My Lords, I hope that I can satisfy my noble friends on these issues. If my noble friend Lord Mawhinney is old-fashioned, we are all the more fortunate for that. I feel a little old-fashioned myself, so I understand where he is coming from. He will appreciate that the clause provides powers for the Secretary of State and the NHS Commissioning Board to prepare and publish information standards. As we have debated, standards are important for a number of reasons. They can help ensure that information is of high quality, that it is comparable and that confidential information can be stored and transferred safely and securely.
Our aim is for the Secretary of State to set information standards in respect of public health and adult social care services and the board to set standards in respect of NHS services. Indeed, any organisation providing publicly funded health or social care services in England would be required to have regard to those information standards. When the standard is published, there would be accompanying guidance on how to implement it.
As I said, the Bill makes clear that responsibility for preparing and publishing information standards will sit with the Secretary of State or the Commissioning Board. The process that will be followed when the need for a standard is identified is currently being worked through, but we envisage that, in practice, the NHS Commissioning Board will set the standards for the NHS. We are mindful, however, that the Secretary of State is responsible for the health and social care system as a whole. Therefore, it is right that he has the overarching power for both. It could well be that, within the mandate that he sets the board, information standards will feature as something it is tasked to expedite. Of course there is a need to ensure that standards are consistent across the sectors to which they apply.
We are about to move to a group of amendments where I would be happy to address the questions of my noble friend Lady Williams on confidentiality. If she will allow me to do that, I would be happy to follow that course.
“( ) The Information Centre may charge the Board a reasonable fee in respect of the cost of complying with a direction given by the Board under subsection (1).”
Earl Howe
My Lords, I shall speak also to the other government amendments in this group, Amendments 348BA, 348BB, 348BC, 348BD, 348BE and 348BF.
The first of these amendments enables the Information Centre to charge the Commissioning Board where the board has directed it to collect information. The next four amendments are drafting amendments to improve and clarify the drafting in Part 9 of the Bill. Government Amendment 348BE is a consequential amendment to ensure that the CQC can continue to be able to require information from the Information Centre to support the CQC’s regulatory functions. Government Amendment 348BF removes a consequential provision from Schedule 20 following a request from the Welsh Assembly Government. I hope that that brief explanation will be enough to persuade noble Lords that these amendments should be accepted and I beg to move.
Baroness Finlay of Llandaff
My Lords, I have Amendment 348C in this group, which relates to the National Information Governance Board being disbanded and a national information governance committee being formed and being part of the CQC. There is concern over the way that that will happen.
The National Information Governance Board currently advises the Secretary of State on access to confidential patient information without patient consent when it is for medical purposes, under the Health Service (Control of Patient Information) Regulations. These are made under Section 251 of the National Health Service Act 2006 and give rise to applications from researchers for access to confidential patient information. The Patient Information Advisory Group, or PIAG, was established and later became the Ethics and Confidentiality Committee of the National Information Governance Board. This provides advice when people who are not the doctors or professionals involved in the care of a patient wish to access information from medical records that are potentially identifiable without the knowledge or consent of those people. It is permitted legally through the exercise of discretionary powers of the Secretary of State. The Ethics and Confidentiality Committee of the National Information Governance Board has an advisory function. It is not a regulator and has no powers to stop disclosure. It helps disclosers of information to know the risks and whether to seek statutory protection. If they are given that protection, they are protected from liability under the common law duty of confidentiality.
Clause 274 abolishes the National Information Governance Board but also omits Sections 250A to 250D of the 2006 Act. In those sections, one of the functions established for the National Information Governance Board is to advise the Secretary of State on particular matters relating to the processing of patient information by any person. This advisory function will not transfer to the Care Quality Commission under Clause 274(3). The Care Quality Commission might be regarded as not being the ideal home for the governance board for reasons concerning its own expertise and current performance.
Baroness Wheeler
My Lords, I broadly welcome these provisions, which deal with the new Health and Social Care Information Centre and put the existing special health authority on a statutory footing. The centre was established in 2005 by the Labour Government to improve information quality, data standards and access to information, to deliver the information required by front-line services and to support commissioning and clinical audit. The centre has had a large measure of success since its establishment, particularly in developing bedrock quality-improvement initiatives in the NHS—for example, indicators for quality improvement and patient-reported outcomes measures. NHS clinical teams have access to more than 200 indicators that are generally accepted as effective measures of high-quality care.
However, while welcoming the broad intent and purpose of this Section, I note that the provisions increase the directions given to the information centre about when it should and should not publish data and how data should be used. It is clear in this context that there are serious concerns that the Government needs to address among noble Lords, patients and doctors' organisations about patient confidentiality, and about whether the Government's proposals go far enough to protect patient data. These concerns were also voiced in response to the Government's statement on UK life sciences industries in the House on 6 December, in which they announced their intention to share much more patient information with the private and independent sectors in anonymised form to aid medical research and development. As we know, under that initiative from December onwards data regarding 250,000 patients will be released online.
I hope that the Minister will recognise these concerns and the need for what the chief executive of Cancer Research UK called,
“strict safeguards that instil public confidence”.
Clause 256 details when information should and should not be published by the information centre, and in particular that it should not publish data that could reveal a person's identity. Amendment 348B, tabled by the noble Lord, Lord Walton, would be the ultimate safeguard, but we recognise the need to find a way through that addresses concerns that doctor and GP-patient confidentiality could be harmed and provides safeguards that are strong enough to protect patients. It is certainly worth acknowledging that, if we are able to get the confidentiality issues right, the UK has a huge opportunity to lead the world in health research.
We support Amendment 348A, tabled by my noble friend Lord Kennedy and other noble Lords. It would create an additional duty that would allow the information centre to request the information required to conduct clinical audits. This requirement would make it explicit that the centre can collect information from organisations identified in the Bill as required to undertake national clinical audits, thereby strengthening its current role of collating such information into a duty to collect clinical audit data from a variety of providers. We welcome this.
Finally, in the debate on the UK life sciences industry Statement, my noble friend Lady Thornton underlined the difficulties with using anonymised data and sought reassurances from the Minister on how confidential patient data will be handled, stored and processed. I think it is right that the Minister repeats those assurances in the context of the provisions in the Bill for the information standards and the centre, and I will be grateful if he will do so.
Earl Howe
My Lords, the provisions in Chapter 2 of Part 9 will enable the information centre to become a focal point for health and social care information, linking data together, publishing them anonymously and helping to make information more accessible. I note what the noble Baroness, Lady Wheeler, had to say on Amendment 348, which we dealt with in the previous group of amendments, but I am grateful to her for her comments.
Amendment 348A seeks to provide a specific power in the Bill for the information centre to be able to require information needed for national clinical audits. Clinical audit is an essential mechanism for improving the quality of care patients receive. However, we do not believe that the amendment is necessary. We have mandated participation in national clinical audits within the National Clinical Audit and Patient Outcomes Programme through the NHS standard contract for acute services. This is reinforced in the operating framework for the NHS in England for 2012-13. In addition, there are already sufficient powers in the Bill for the information centre to be able to require information, where appropriate.
Amendment 348B seeks to prevent the information centre being able to collect information that identifies an individual. I am the first to recognise what a sensitive topic this is. Although my noble friend Lady Williams is not in her place, I hope she will allow me to address the question that she put to me earlier on in this connection.
Patients as a whole expect information about their care to flow between the professionals providing their health and social care to ensure that care is safe and effective as well as for other purposes, such as protecting the health of the general public. For example, PCTs currently use information, including patient-identifiable information, for commissioning. Some national clinical audits, such as the National Joint Registry, use patient-identifiable information to improve the quality and safety of patient care.
The noble Baroness, Lady Finlay, asked some extremely important questions about the functions of the information centre. The Bill sets out clear provisions controlling how the information centre can publish information. It would publish aggregated information, which is anonymised, and no information that identifies or could identify individual patients would be disclosed by the information centre, other than by dissemination or pursuant to further legal authority. Since its inception, the information centre has introduced strong security controls, published and implemented security policies and published information about its processing as required for compliance with the Department of Health’s information governance framework. It must at all times comply with the Human Rights Act, the Data Protection Act and any other applicable law. The centre would collect identifiable information within a secure environment but, as I have stressed, it would publish it only in anonymised form. This approach has been strongly recommended by several recent reviews, including the 2008 data-sharing review authored by the then Information Commissioner Richard Thomas and Mark Walport from the Wellcome Trust. That recommendation was reiterated in the Academy of Medical Sciences’ review published in January this year.
I agree with the noble Baroness that it is very important to protect identifiable information appropriately. However, as I hope she will accept, it is also critical that we are able to realise the enormous benefits of securely collecting and linking such information and publishing it in a de-identified form, as we intend the information centre should do. This will help professionals and the public better understand the quality and efficiency of services, enhance accountability, help enable people to exercise choice about the services they use and improve those services. In addition, I would like to highlight the safeguard in Clause 256(2)(b), which prohibits the centre from publishing any information it has collected which identifies or could identify an individual.
As I have said, while we do not believe that this amendment is appropriate, we recognise that there have been some concerns around ensuring that confidential information is appropriately protected. We have had, and continue to have, productive discussions with the BMA on this issue and we plan to bring forward amendments on Report that deal with confidential information in a way that balances patient confidentiality with the need effectively to share information across the system. I hope that those assurances will satisfy the noble Baroness.
Amendment 348C would require the appointment of a chair to the National Information Governance Committee, who would report to the Information Commissioner. The purpose of this committee would be to provide advice and assistance to the CQC in discharging its function to monitor information processing practice of health and social care bodies registered by the CQC from April 2013. The National Information Governance Committee is an advisory committee of the CQC, so it would not be appropriate for the chair of the committee to be accountable to an external body, such as the Information Commissioner. In addition, a reporting arrangement of that kind would be inconsistent with the Information Commissioner’s role as the independent and impartial authority responsible for promoting and enforcing the provisions of the Data Protection Act, the Freedom of Information Act and other legislation.
However, I would like to reassure the noble Baroness that the CQC can involve the Information Commissioner where appropriate and close collaboration between the Information Commissioner and the CQC will be important to support relevant organisations fully to comply with the requirements. I hope that those assurances will enable the noble Baroness to feel able comfortably not to press her amendment.
The noble Baroness asked about the Ethics and Confidentiality Committee of the NIGB, which provides essential support for research and other activities by advising the Secretary of State on whether to approve proposals to process confidential information without the need for patient consent, pursuant to the Health Service (Control of Patient Information) Regulations 2002 under Section 251 of the National Health Service Act 2006. We intend that the approval function will in future move to the following bodies: first, a new health research regulator, the HRA, for research approvals; secondly, the NHS Commissioning Board for service management approvals; and, thirdly, the Secretary of State for public health and social care approvals. Each of those bodies will need to put in place arrangements to secure the advice that they need to exercise their approval functions effectively. These arrangements are still being discussed but it seems likely that a body like the Ethics and Confidentiality Committee will continue to be required and officials are discussing future options with the NIGB. I hope that those comments are informative to noble Lords and that they will not press their amendments.
“Health and Social Care Act 2008 (c.14)In section 64 of the Health and Social Care Act 2008 (power of the Care Quality Commission to require documents and information etc. from certain persons) in subsection (2)—
(a) omit the “or” after paragraph (d), and(b) after paragraph (e) insert “, or(f) the Health and Social Care Information Centre.””
Baroness Thornton
My Lords, I agree with the noble Baroness, Lady Williams. This question brings us right back to the Secretary of State’s powers. I also agree that the procedure in the Bill is complex and I am not sure that it will work. It is not clear at all who will be the arbiter. It seems strange that Monitor has powers to intervene on failure but there does not seem to be the same structure around co-operation and when co-operation fails. This part of the Bill feels like it does not work properly. It is too complex and probably needs another look.
Earl Howe
My Lords, I have listened with great interest to the points that have been made. I feel it would be useful if I first set out how this clause would work and the series of events that it would allow. Then I will try to explain why we believe that the powers it provides are an appropriate and constructive lever within the new system.
The method of intervention set out in Clause 285 needs to be considered as one of a range of intervention powers and levers available to the Secretary of State in order to ensure that the system operates in the best interests of patients and that he complies with his duties in relation to the health service. These include the proactive setting of objectives for the health service through the annual mandate to the board and setting requirements through the standing rules. The Secretary of State also will have a duty to keep the effectiveness of arm’s-length bodies under review.
In addition, the Secretary of State will have more extreme intervention powers such as the ability to remove the chair of an organisation, where they have failed adequately to perform their functions, and the ability, under specified circumstances, to give directions to an arm’s-length body where the Secretary of State considers it has failed to discharge those functions, or has failed to discharge them properly. Clause 285 should be viewed as an additional power alongside the others conferred on the Secretary of State by the NHS Act and this Bill. Of course, should the Secretary of State employ his powers as set out in Clause 285 and the problem persists, then where he considers that one of the bodies is failing to discharge its functions properly, he would be able to exercise his powers of direction.
The Bill places new duties to co-operate, in addition to modifying existing duties, so as to ensure that all of the arm’s-length bodies in the system, such as the Commissioning Board and Monitor, are required to co-operate with one another. We wanted to do more to encourage co-operation in the new system, partly out of recognition that the current system would benefit significantly from greater co-operation, but also because the new arrangements will create an even greater need for co-operation given the strongly autonomous and interdependent arm’s-length bodies that will be created.
The clause sets out powers for the Secretary of State to take action in response to a breach of the relevant duties of co-operation. It provides a mechanism for pressing organisations to resolve disputes in the unlikely event—we hope and trust that it will be unlikely—that two or more organisations covered by the clause fail to co-operate. If the Secretary of State believes that the duties of co-operation listed in this clause have been or are being breached, or are at significant risk of being breached, he will have a new ability to write formally and publicly to the organisation in question. If the bodies continue to breach the duty following the notice and the breach is having a detrimental effect on the performance of the health service, as the noble Baroness, Lady Finlay, pointed out, then the Secretary of State will have a further ability to lay an order, specifying that each body could take certain actions only with the approval of the other body. This measure would be subject to affirmative approval by both Houses of Parliament and could last for up to a year. That means that organisations in dispute would be strongly reminded of their interdependence as part of a national system. As a matter of last resort, if agreement could not be reached, either party would be able to invoke independent arbitration under Arbitration Act arrangements. In this way, the organisations in question will be pressed to resolve their difference without recourse to the Secretary of State and the Department of Health.
This is an important element of our policy. We want arm’s-length bodies to focus on the functions conferred on them by Parliament, the objectives set for them by Government and the relationships with other organisations that will help them to achieve their goals. We do not want them placed in a position where they are trying to secure relative advantage in the system by using the Secretary of State as a means of determining the outcome of disputes. The existence of the order-making power will both help to preserve the autonomy of organisations and encourage them to work constructively with one another.
I emphasise that this is a precautionary power and we expect it to be used only in very exceptional circumstances. It is also important to note that the powers and duties described in this clause are about co-operative behaviours. They do not in any way undermine the independence of Monitor or the CQC to make specific regulatory decisions in relation to another arm’s-length body. For example, the Secretary of State could not use the provisions to constrain Monitor from taking action against anticompetitive purchasing by the NHS Commissioning Board.
Baroness Thornton
My Lords, if these bodies are strongly autonomous, as the Minister has said, can they not just tell the Secretary of State to get lost?
Earl Howe
My Lords, that is the whole point of this clause. The Secretary of State must have levers at his disposal. Even if he does not use them, the fact that he has them will be a clear signal to bodies that they must co-operate in the way that Parliament—if the Bill is approved by Parliament—intends. As I said, we have identified gaps in the current system that need to be resolved because it is important that arm’s-length bodies that have functions directly conferred upon them take those functions seriously and do not resort constantly to arbitration by the Secretary of State or the department.
We expect that the vast majority of differences between organisations will be resolved by the organisations themselves and that this power will be used rarely, if at all. Nevertheless, it is important that the power exists. The fact that failure to co-operate could have public and highly embarrassing consequences will strengthen the incentive for organisations to co-operate effectively in the interests of patients.
We believe that this approach strikes the right balance between the need for the Secretary of State to fulfil his stewardship role within the system, being able to intervene to ensure that disputes are resolved, with the need to ensure that organisations are responsible and accountable for their own decisions and actions. These powers allow the Secretary of State to ensure that solutions to problems are found in a timely manner, without him or her stepping in to specify and micromanage what those solutions should look like.
The noble Baroness, Lady Finlay, asked me a number of specific and detailed questions. I will take up her invitation to write to her on those and copy other noble Lords in. With those assurances, I hope that she will feel able to allow the clause to stand part of the Bill.
Baroness Thornton
My Lords, I just wish to add two questions of my own to the list that the noble Baroness asked. Has the Department of Health now resolved the issues around future asset ownership in respect of PCT and SHA estates? Within that, does that include LIFT schemes and PFI?
Earl Howe
My Lords, I hope I can answer the question of the noble Baroness very quickly. Clinical commissioning groups will be statutory bodies. They will be legally and operationally separate from GP practices. As such, if a clinical commissioning group occupies property that is under the ownership of that group, it will be under statutory ownership. It will not be open to GPs to sell such property at a cut price, or at any other price, to GP practices to enable such practices to pocket the profits. What the noble Baroness outlined sounded to me very much like embezzlement from the state. It will be no more possible for what she envisages to happen than for a primary care trust to sell a property and have its officers pocket the proceeds. I am a little mystified by the scenario that she has painted.
Baroness Finlay of Llandaff
May I make it clear that I am not suggesting that general practitioners will embezzle funds from the NHS? I am just concerned about who will hold the deeds of such property at the time of transfer. Once the ownership is transferred, the disposal of those assets rests with the new owner. We have seen foundation trusts that have, in rationalising their services, quite rightly sold off sometimes large pieces of estate that have been very valuable and become housing land and so on. That money has then gone back into NHS services. I wanted clarification that the same thing would occur.
Earl Howe
My Lords, first of all, the Bill does not provide for PCT property to be transferred to GP practices. The policy on where property may be transferred is still under development but we have powers in the Bill to transfer property to the appropriate body in the new architecture. The noble Baroness will realise that many decisions around this have to be taken locally on a case-by-case basis. We have powers in the Bill to create schemes with enough flexibility to allow this.
If, for the sake of argument, a clinical commissioning group owns property which is surplus to requirements, it will have to go through all the proper processes overseen by its own audit committee and its governing body to ensure that public assets are disposed of for value and in a proper and arm’s-length way. Where a conflict of interest rears its head, the provisions governing conflicts of interest will cut in. It will not be open to the clinicians who have authority within the clinical commissioning group, or, indeed, practices which are members of the clinical commissioning group, to benefit in an improper way. It will have to be done openly. If a GP practice were to wish to acquire property that is owned by the CCG, there will be transparent processes to make sure that this is done in the correct fashion. In these circumstances, the property deeds are transferred to the clinical commissioning group as a corporate entity. They are not transferred to the individual GP members, and once transferred to CCGs, if the governing body wished to dispose of property, that, as I say, has to be done in accordance with the same safeguards that currently apply to PCTs. I hope that that reassures the noble Baroness.
Lord Mawson
I encourage the Minister to look very carefully at the practicalities of this because I can think of at least two or three examples of health centres in which I have been involved where it did come down to the property, the ownership and the GP—I can think of one now—where one brought together all the practitioners and key community groups to secure development. The person who stopped that development was the GP because of their interests and pension arrangements in the building. Therefore, in my view, it is important to be very careful about these practical arrangements if we want integration to occur.
Earl Howe
I suspect that the example the noble Lord has in mind involved GP practice premises rather than property owned by an NHS body such as a primary care trust. I suggest that the two cases are rather different. However, I take the noble Lord’s point that integration of services at a delivery level can often be very advantageous to patient communities. Some of the most successful examples that I have seen are of practices where many facilities are available on site for the patient. We are seeing more and more of these being created around the country. We should encourage that.
Baroness Finlay of Llandaff
I am most grateful to the Minister for that response. This has been a short but very useful debate. I have an anxiety that we may need to refer back to it in the future, although I hope that I am proved wrong. On that note, I beg leave to withdraw the amendment.
(a) ”
Lord Hunt of Kings Heath
I rise to support the noble Lord. Earlier today, he made a very pertinent point on Lords reform, and this one seems equally pertinent. Before I do so, perhaps I may take this opportunity to say that my noble friend Lady Gould has just vacated the Deputy Speaker’s seat. That was her last session, and I wanted to say to her—I am sure on behalf of the whole House—what a wonderful job she has done. She has accompanied us through many pieces of legislation, often very late at night, always with tolerance and very efficiently, as befitting a former fearsome organiser of the Labour Party, if I may say so.
Lord Hunt of Kings Heath
It would be churlish, then, to spoil the atmosphere by commenting overall on the Bill because, as the noble Lord suggested, it is open to us to have a kind of Second Reading speech, but I will resist—to the benefit of noble Lords opposite, if not my noble friends.
The noble Lord put it very well. The fact is that the reforms are being enacted; they are taking place at this moment. The Government have not waited for legislation. Primary care trusts have effectively been abolished. The new system is coming into being. We have shadow clinical commissioning groups, although they cover much larger areas than originally envisaged, so it would be quite right and proper for early post-legislative scrutiny to take place. Because the changes go to the heart of the National Health Service, I should have thought that it would have been useful to have an annual report and to allow Parliament to debate it.
I invite the noble Lord, Lord Kakkar, to go one step further. He will know that the noble Earl, Lord Howe, has always been fond of sunset clauses. He moved many such amendments when in opposition. I should have thought that the Bill deserves a sunset clause. I would give it two years, because then, if the coalition survives that long, the noble Earl will be back to put right all the problems that he is now enacting.
On that note of Christmas spirit, I invite the noble Earl to accept the noble Lord’s amendment.
Earl Howe
My Lords, if the noble Lord, Lord Hunt, is addressing us in the guise of Christmas spirit, it is well disguised from most of us.
However, it may be worth reflecting at this juncture that this is the 41st day that the Bill has been debated on the Floor of this House or that of the other place—a quarter of all sitting days in this calendar year. I thank all parliamentarians, especially noble Lords, who participated in subjecting the Bill to such unprecedented scrutiny. It is a better Bill as a result; the Government are better informed as a result; and I look forward to our further debates in 2012.
I completely agree with the noble Lord, Lord Kakkar, that parliamentary scrutiny of legislation and the actions of government are of paramount importance. The Bill has, as I said, received a huge amount of parliamentary scrutiny during its passage, and I have no expectation that this will stop following Royal Assent—and nor should it. Ministers will continue to provide information to Parliament—for example, in response to Parliamentary Questions and Select Committees. I am sure that we will be providing a lot of information both on the implementation of the Bill and on health and social care more widely in the months and years ahead.
Health and Social Care Bill
Earl Howe Excerpts(12 years, 11 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
“( ) In subsection (5), for “this section, section 245 and section 246” substitute “this section and section 245”.”
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, unusually, it falls to me to introduce this group of amendments. In moving Amendment 327ZC and speaking to Amendments 327ZD, 327ZE, 327ZF and 327ZG, I confine myself to saying that these are minor technical amendments to Clauses 187 and 188. For the most part, they ensure consistency between the scrutiny provisions in the Bill and in the Localism Act. I hope that they will receive the support of the Committee. I beg to move.
Baroness Massey of Darwen
My Lords, I speak to Amendments 330, 333 and 334 in this group. I draw attention to issues important for strengthening integrated working in children’s health and well-being. Of course, integration is important for all consumers of health, but services for children have often been fragmented and disconnected, sometimes with tragic results, as we all know. I spoke last week about the importance of listening to the voice of the child. If children had a voice, they would say—as they do when we speak to them—that integration of services is not good in many areas. It should be, for effectiveness and efficiency.
My amendments require all health and well-being boards to promote close, integrated working between health, social care, and health-related services in their area. Specifically, Amendment 330 requires that they “must,” rather than “may”, include in their joint health and well-being strategy,
“a statement of their views on how arrangements for the provision of health-related services in the area of the local authority could be more closely integrated with arrangements for the provision of health services and social care services in that area”.
Amendment 333 requires, again, that they “must,” rather than “may”,
“encourage persons who arrange for the provision of any health-related services in its area to work closely with the Health and Wellbeing Board”.
Amendment 334 requires that they “must,” rather than “may”,
“encourage persons who arrange for the provision of any health or social care services in its area … to work closely together”.
As the Bill stands, health and well-being boards’ role in bringing health and social care together with health-related services is optional. The National Children’s Bureau and its Every Disabled Child Matters campaign believe this role must be strengthened so that there is a clear duty on all health and well-being boards to promote joined-up commissioning and delivery of services in their area. This is particularly important for children and young people for three key reasons. One reason is that joint working across local agencies is crucial for children’s and young people’s health and well-being. Integrated planning is particularly important for children and young people, for whom some of the most effective interventions are those delivered through non-health settings and services, such as schools and colleges, children’s centres, and youth services. For example, the national evaluation of Sure Start found that a child with access to a children’s centre—formerly Sure Start local programmes—had more immunisations and fewer accidents than young children living in other areas. School health initiatives can have a positive impact on pupils’ health and behaviour—I am thinking of health-promoting schools, for example.
However, evidence suggests that health, social care, education, early childhood, youth and other services are not always working in partnership to secure good outcomes for children and young people. The Marmot review identified the lack of consistent partnership working between such bodies as the barrier to delivering services that reduce health inequalities. Similarly, the Kennedy review highlighted the fact that the requisite links between the NHS, social care, education and criminal justice services to support juvenile people are not always made. His report recommended that local partnerships covering all services for children should have,
“a duty to ensure that local organisations work together”.
Close working between local partners is particularly vital for children with complex needs, such as disabled children or looked-after children, who need co-ordinated interventions from a range of services. A recent report from the Every Disabled Child Matters campaign found that families of disabled children often report experiences of fragmented service delivery and have been caught between services that do not communicate well. One parent has said:
“As a parent, you just want a service, but it’s like health, education and social care are all separate and they don’t really like working together. What you need as a family is one system—not three”.
The Government have expressed aspirations for better partnership working across a broad range of children’s services. For example, Support and Aspiration, the special educational needs and disability Green Paper, states,
“we want to make it easier for professionals and services to work together, and we want to create the conditions that encourage innovative and collaborative ways of providing better support for children, young people and families”.
I believe that unless the Bill strengthens the framework for local integration, the ability of local areas to implement these aspirations will be undermined.
The Bill contains many key measures promoting joined-up working on health and social care, through relationships between local authorities and NHS commissioners. However, many of the services that promote the health of children and young people, such as schools and colleges, children’s centres and youth services, are or will be provided by bodies which are independent of the local authority or NHS. Health and well-being boards should have a mandatory and not an optional role in promoting the involvement of these health-related services in joined-up commissioning and delivery.
Schools need to be encouraged and enabled to play their part. Schools are key partners in securing the health and well-being of children. The public health White Paper, for example, recognises the role that schools can play, stating that:
“Good schools will be active promoters of health in childhood and adolescence”.
This is crucial for reducing health inequalities. The Marmot review, again, recommends that schools should take a “whole child” approach and they will be unable to do this without routine engagement with partners from other agencies.
Over 1 million children and young people now attend academies, which are independent of local authority oversight and will not be represented by health and well-being boards. According to the Department for Education, more than 40 per cent of all secondary schools are now open or are in the process of opening as academies. The Government have taken a step towards promoting joint working by dropping proposals in the Education Act to remove the duty to co-operate under the Children Act 2004. However, this Bill does not create the structural environment within which co-operation with education providers will be possible. Health and well-being boards have the potential to act as a forum for schools to fulfil this duty to co-operate. A clearer role for health and well-being boards in bringing a broader range of services together beyond health and social care, as provided by these amendments, should help to secure this.
Finally, health commissioners should be supported to meet their new duties on integration. Duties were introduced, following the listening exercise, for the NHS Commissioning Board, clinical commissioning groups and Monitor, whereby they are required to carry out their functions with a view to securing that the provision of health services is integrated with the provision of health-related services. As the Bill stands, the role of health and well-being boards in securing this integration remains an optional part of their remit and the scope of their local strategy. Health and well-being boards are expected to play a role in holding health commissioners to account for securing services that fulfil priorities set out in the joint health and well-being strategy. Furthermore, health commissioners will need a forum through which to drive forward better joint working and integration with health-related services. Without a guarantee that health and well-being boards would prioritise encouraging this close working across health, social care and health-related services, there is a serious risk that health commissioners’ new integration duties will be ineffective.
I hope that, in this Bill, the Government will take note of issues which will affect children. I know that the noble Earl, Lord Howe, is listening and I hope that on Report we can reach some agreement on children’s health and well-being.
Lord Beecham
Rubbish is the responsibility of district councils, as the noble Baroness, Lady Jolly, would point out—at least its collection is.
We clearly do not agree about this. The Bill does not go sufficiently far to underpin democratic accountability. It goes too far to entrench professional and bureaucratic interests, whose voice should certainly be heard but who should not be able to vote on these decisions, just as they are not in central or local government.
Earl Howe
My Lords, this group of amendments has prompted a very worthwhile debate. They all relate to health and well-being boards, and in particular their statutory minimum membership, their responsibility for preparing joint strategic needs assessments and joint health and well-being strategies, as well as their role in promoting integration. On the first of these issues, concern has been expressed about the membership of health and well-being boards. I am sympathetic to the very important points that several noble Lords have raised. We are all keen to ensure that health and well-being boards access the best expertise and professional advice on the myriad complex challenges facing the health and well-being of their local populations. However, taken together these amendments would significantly increase the minimum membership of each health and well-being board, making the requirements substantially more prescriptive. We want to preserve local discretion and flexibility in these arrangements and the ability of boards to shape wider membership in a way that reflects local priorities. These amendments would severely limit that flexibility and discretion. Their other big downside is that they could lead to larger and somewhat unwieldy boards, making meaningful dialogue and decision-making more difficult. My noble friend Lady Cumberlege was absolutely right to sound the note of warning that she did.
In general, we want to avoid being too prescriptive. The Bill sets out a minimum membership for health and well-being boards, but members can be added by either the local authority or the health and well-being board. I would say to the noble Lord, Lord Beecham, in particular that following the Future Forum report, we made a commitment that it will be for local authorities to determine the precise number of elected representatives on their board. We fully recognise that health and well-being boards will want to draw from a range of expertise beyond the statutory membership, such as clinicians, allied health professionals, police, probation service and voluntary sector groups. However, in deciding who to invite, they will need to consider local needs and priorities and the delicate balance between having the right people and having too many to make it an effective board.
The noble Baroness, Lady Finlay, was quite right to emphasise that the right people needed to be there. It is perhaps worth highlighting in that context that we have retained the power for the Secretary of State to issue guidance on the preparation of joint strategic needs assessments, and there will be power to issue guidance on the preparation of joint health and well-being strategies, particularly when it comes to defining what best practice looks like.
The noble Lord, Lord Beecham, asked how the NHS Commissioning Board would fit in with health and well-being boards. The NHS Commissioning Board will be required to send a representative when asked by the health and well-being board and where the discussions touch on the proposed exercise of local commissioning functions of the commissioning board, for example when discussing primary care commissioning. It will also be required to send a representative to participate in the health and well-being board’s preparation of the JSNA and a health and well-being strategy. With the agreement of the health and well-being board, the Commissioning Board may appoint someone to represent it who is not its member or employee, such as a clinical commissioning group representative.
Lord Beecham
Does that mean that it will be the local outpost, if that is the correct phrase, of the national Commissioning Board that will have that relationship, or will this in effect be directed from London?
Earl Howe
It will almost certainly be the local outpost that will have direct responsibility for those matters.
A number of amendments would introduce specific requirements in relation to the JSNA, but before I move on to that I have been informed of something that I think I probably implied, if not stated. It would be up to the board to decide who would be most appropriate to attend at a particular health and well-being board meeting.
I agree that the JSNA must be a full analysis that covers the current and future health and social care needs of the local population. It will be a framework to examine inequalities and the factors that impact on health and well-being. This could include aspects such as deprivation. Its scope will naturally include health and social care needs that are related to a wide range of areas, such as alcohol harm, disability or older people.
Baroness Massey of Darwen
Could the Minister tease out for us the difference between the words “may” and “must”? Is he saying that the word “may” will refer to issues that will be in guidance and the word “must” will be in the Bill, or is it more complicated than that?
Earl Howe
I hope the noble Baroness will have sensed from my remarks that we want to avoid being overprescriptive. On the other hand, we are clear about what best practice looks like, and in framing JSNAs and the health and well-being strategies we have provided for statutory guidance which can set out what best practice looks like.
I think that that is the appropriate balance, rather than putting “must” in the Bill all the time. Local authorities are autonomous bodies and we must hesitate before directing them too closely. I very much agreed with the points made by my noble friend Lady Cumberlege on this. It is not, of course, that we regard these as unimportant; it is a question of how much we mandate and how much we leave to local discretion.
Baroness Finlay of Llandaff
My Lords, I will build slightly on that because I have my name on the same amendments. I understand the Minister’s response regarding the need not to be over-prescriptive, and not to have boards that are burdensome and cannot take decisions easily. He has referred to guidance. It would be very helpful if he could assure us that the contents of this debate and the trends and themes that have come through will inform that guidance, and that the health and well-being boards will be asked to particularly consider and consult with the broad range of professionals and prisoners, and the particular needs of children—which I emphasise. This will ensure that their strategy is broad and really meets the needs, so that there is not, inadvertently, a small board taking narrow decisions.
Earl Howe
My Lords, I can assure the noble Baroness that the substance of this debate will most certainly be fed in. We will be revising the statutory guidance on the joint strategic needs assessment in due course to reflect the changing system. As a result of the Future Forums recommendations, we will also be issuing statutory guidance on the joint health and well-being strategy. There is therefore plenty of scope to build in the very salient and important points that noble Lords have raised.
Baroness Thornton
My Lords, I will be very brief because my noble friend and other noble Lords have pretty much covered the territory here. This small group of amendments is rather important and significantly improves the Bill. I realise that they are probing amendments, but they do three things. The first amendment is about changing culture. It talks about the manner of the integration of services, not just an integrated manner. The second one says that we need to define integration. This must be perhaps the third or fourth debate that we have had on integration in the past however many weeks. It seems quite clear that there needs to be some definition of integration in the Bill. My noble friend Lord Warner explained that. Given that many parts of the Bill offer a list of different ways in which things can be described and done, I see no reason why the same list on integration cannot be included. The third point in the amendment to which I was pleased to be able to put my name is about encouraging co-operation across the piece. Having the national Commissioning Board mentioned in that is rather important.
Those three points about changing the culture, defining what you mean and encouraging co-operation seem to me to be the type of message that any health and well-being board will look to as it starts up its work. It will look to what is in the Bill, what is in guidance and what is in statutory instruments to help it to work out what to do. To have something that defines the kind of culture that is expected, defines integration and the way the bodies should work, lists the bodies that should work together, if not in the Bill then certainly in guidance, and explains the manner in which they are expected to work seems to me to be a very helpful way forward.
Earl Howe
My Lords, these amendments from the noble Lord, Lord Warner, are primarily concerned with strengthening the role of health and well-being boards in promoting integration between health and social care and wider aspects. I completely understand why noble Lords have felt moved to support these amendments. They are undoubtedly well intentioned, but I am afraid that I have a problem with them.
Amendment 336, which I will speak about more fully in a second, could be seen to enable changes to be made to the fundamental responsibility for functions, which we are clear would not be right. Amendments 332 and 335 would also introduce a prescriptive definition of integration. I resist that idea not just because it would be counter to the principles of localism, which we believe are very important, but because it could act as a diversion from effective integrated working between commissioners. I do not see the need for a definition beyond what the clause already says, which seems quite clear.
We have a shared intent on the importance of integration, but I cannot agree that this cause would be aided by pinning down a definition in primary legislation. I see no need for that. Apart from anything else, having a definition set in primary legislation would risk creating inflexibility as times and practices change. We should focus on removing barriers on the ground to ensure integration. That is where the Government’s response to the Future Forum’s work will, I hope, make a difference. We aim to publish our response to the Future Forum’s report before the Report stage of this Bill.
I am sure that Amendment 336 is intended to be helpful, but it might create confusion between the arrangements mentioned in the amendment and those made under Section 75 of the NHS Act, which would enable local authorities and CCGs to enter into partnership arrangements such as lead commissioning and pooled budgets. Existing provisions in the Bill are designed to encourage and enable the NHS and local government to improve patient outcomes through more effective co-ordinated working. The Bill provides the basis for better collaboration, partnership working and integration across local government and the NHS at all levels. I hope that that, in part at least, answers the question posed by the noble Lord, Lord Patel.
Indeed, health and well-being boards will have a strong role in promoting joined-up commissioning between health, public health and social care. Through their duty to promote integrated working between commissioners, they will also be in a good position to promote more integrated provision for patients, social care service users and carers. They will also be able to encourage close working between the commissioning of social care, public health and NHS services and aspects of the wider local authority agenda that also influence health and well-being, such as housing, education and the environment. Through statutory guidance on preparing the joint health and well-being strategy, and the Government’s mandate to the NHS Commissioning Board, we will be encouraging lead commissioning and integrated provision.
There are enough levers and mechanisms in the system to encourage every part of the system to look for ways of joining up services, and the commissioning of those services. I hope that I have reassured noble Lords of our intentions, and that the noble Lord feels able to withdraw his amendment.
Baroness Thornton
If a new health and well-being board got in touch with the Minister, or perhaps with the Commissioning Board, and asked whether it would please say which form of integration it should be using or how it should be doing this, would he tell it to work it out for itself?
Earl Howe
My Lords, we have to give credit to people on the ground to be the professionals that we know them to be. Integrated working can take many forms, as we have discussed quite often in Committee. I will not rehearse the various manifestations of integration. Once we have mandated the duties in the Bill and issued statutory guidance on what good practice looks like, I really think that it will be up to people on the ground to decide how best to set about fulfilling the duties and expectations placed on them.
Baroness Williams of Crosby
I will pursue for a minute mechanisms for an early decision. I do so because the health and well-being boards will obviously be new and will be moving into a relatively new structure in their relationships with the medical and clinical CCGs, and they might not realise that this could happen rather quickly. No one is thinking of laying down the law, but a mechanism under which they are reminded that this could arise quite suddenly at an early stage and that they therefore need a structure that enables them to react quickly is an important feature of what the noble Lord, Lord Warner, was arguing.
Earl Howe
This is exactly why we have established the early implementer health and well-being boards. These cover virtually the entire country; a very small number are not yet in existence. I can tell my noble friend that local authorities have seized this opportunity with alacrity and are getting to grips with just the kind of issues that she has in mind.
We have a lead-up time available to enable the boards to consolidate the learning that is undoubtedly going on and the dialogue that is taking place with the pathfinder clinical commissioning groups. We are supporting that process from the centre. I hope and believe that by the time the health and well-being boards go live they will be in a very good position to hit the ground running.
Earl Howe
My Lords, the amendment relates to an important issue: the concerns among pharmacists about the risk of prosecution where they normally follow good professional practice but make an inadvertent dispensing error. I am very grateful to my noble friend for raising this issue. I warmly welcome the opportunity to discuss it and have been listening carefully to the points made.
We are on the record as saying that we intend to take legislative action to address the issue. We want to see a learning culture that encourages the reporting of dispensing errors so that any helpful lessons can be learnt. The noble Baroness, Lady Finlay, was quite right about that. However, we need to make any changes in ways that continue to protect patients under the law. The noble Baroness, Lady Pitkeathley, drew our attention to that aspect.
Section 64 of the Medicines Act 1968 provides that,
“No person shall, to the prejudice of the purchaser, sell any medicinal product which is not of the nature or quality demanded by the purchaser”.
This is a strict liability offence, and contrary to what my noble friend stated it does not relate only to pharmacists. Various other healthcare professionals could be affected, as well as other parties who are not subject to professional regulation. Guidance issued to government prosecutors in 2010 has been helpful, but we recognise that it does not remove the underlying problem.
My noble friend is to be commended for raising this issue, but the terms of the proposed amendment present a number of problems that we would need to work through before an appropriate drafting solution could be found. It does not cover other healthcare professionals affected by the current legislation, and in relation to pharmacy it covers only a proportion of pharmacy activity—retail pharmacy—and only where a pharmacist is responding to a prescription. The amendment does not address the different arrangements for the professional regulation of pharmacists that apply in Northern Ireland. There is also some ambiguity as to how it would be determined in practice: that is, whether a pharmacist would be subject to the revised provisions in this amendment. The amendment extends beyond Section 64 and would also change Section 58, on prescription-only medicines, and Section 85, on the labelling of packages and containers of medicinal products, of the Medicines Act 1968.
The legislative ramifications of the issue are therefore quite complex, and I am sure my noble friend will appreciate that we need to get this right. However, let me assure him that we have listened very carefully to the debate and the representations made to us, and that we will continue to work with all relevant parties to find a solution. I also wish to reiterate our commitment to bring forward a suitable legislative change at the earliest possible opportunity. I hope that with those assurances my noble friend will feel able to withdraw his amendment.
Lord Clement-Jones
My Lords, I thank the Minister for his response. I also thank all noble Lords and noble Baronesses who have spoken in the debate. I should at the outset have declared an interest as chairman of the council of the School of Pharmacy. My noble friend the Minister has pointed out, quite rightly, that the amendment as drafted only covers the pharmacy profession. He has also pointed out a point picked up by almost all the speakers in the debate, namely that the essence of the provision is the ability to admit and correct error, which is vital in these circumstances.
I welcome very much the forensic way in which the Minister responded to the amendment. I did not think that it was the kind of amendment that would cause Ministers to throw their hands up in the air and say, “Wonderful! We will put this in the Bill”. It needs refining. One of the key issues is that it currently only relates to retail pharmacy. Obviously, it should cover hospital pharmacy as well. There are also issues about Sections 58 and 85 in Northern Ireland.
The Minister has assured us that he has listened very carefully and that he intends to legislate at the earliest possible opportunity. That phrase was very carefully chosen, I am sure, as my noble friend always chooses his words extremely carefully. If the Minister would indicate that, if humanly possible, this will be inserted either on Report or at Third Reading—as the Bill provides a very good opportunity to include reform—I think that the pharmacy profession and others which, as he said, are subject to this kind of disproportionate criminal liability will be extremely happy. I am sure that they would be very grateful to the noble Lord if he could make sure that that was the case. The Minister is not indicating that he is going to say anything further—but maybe he will.
Lord Clement-Jones
My Lords, the Minister chooses an even more felicitous phrase. I thank him, and I look forward to further progress during the course of this Bill. In the mean time, I beg leave to withdraw the amendment.
Health and Social Care Bill
Earl Howe Excerpts(12 years, 11 months ago)
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Lord Patel
My Lords, I have added my name to Amendment 344 tabled by the noble Lord, Lord Warner. NICE should continue to do technology assessments or appraisals. It is not surprising that I should support the amendment, because I was closer to the establishment of NICE than most people may know, although I said so at Second Reading. It was a paper written when I was chairman of the Academy of Medical Royal Colleges, to establish a national institute of clinical effectiveness, which led to the establishment of NICE as an institute of clinical excellence. At the same time as Mike Rawlins, a good friend for many years, started with NICE, I was involved in a similar exercise with SMC, its sister organisation in Scotland.
The key thing about both organisations is that, despite their appraisals of drugs, neither of them has been taken to court about their advice. That says something about the scientific veracity with which examinations are carried out. Although I have views that are sometimes slightly different from NICE—for example, I think that we will have to adjust in due course the QALY from £30,000 a year because we will find with drugs that are more expensive and effective that that price is too low—I go further and say not only that NICE should not be stopped from doing these appraisals but that its remit should be extended to biochemical tests, which should not be used in the NHS unless they are proven to be useful. As genomic medicine advances, more molecular and genetic tests will come on the market. It is already happening in the United States. Tests are used which are not found to be scientifically appropriate and marketed at a ridiculous price. I give the example of a test that is used to predict whether a person with a myocardial infarction will develop chronic heart failure. We use a much simpler test. They charge £8,000 for a test which must be done twice a year; we use a stethoscope to listen to the chest to see whether there are any bubbles in it. If there are not, the person is not in cardiac failure. It is as easy as that and every medical student is taught it. It will become even more important that an organisation that is as respected as NICE is given the task of assessing biochemical, molecular and genetic tests before they are implemented in the NHS, otherwise their cost will be enormous. Every marketing company will come along and say, “This test should be used”, as is happening in the United States. I would therefore extend NICE’s technology appraisal remit beyond drugs. It offers proven, scientifically driven assessments and I cannot see why we should stop them. Besides, we would see one part of the United Kingdom continuing while another part did not. I know that if NICE says a drug produced by a British pharma, particularly a big pharma, is not effective based on QUAL, it might be difficult for that pharma to market the same drug internationally, but that is an issue that needs to be tackled separately. Value-based pricing of drugs may be an area that we need to look at again, but not the appraisals.
Earl Howe
My Lords, I know that NICE is held in very high regard by noble Lords in the Committee. The Government share that view. That is why we are putting NICE on a firmer statutory footing in the Bill, extending its role to cover social care as well as healthcare and public health, and putting NICE quality standards at the heart of quality improvement. NICE will continue to play a key role in helping to ensure that decision-making in the NHS is robust and evidence-based.
The noble Lord, Lord Owen, said that the Bill gave the impression that NICE would turn into a kind of annex of the Department of Health. I can assure him that that is not the intention of the Government. A special health authority, as NICE technically is at the moment, is much closer in technical terms to the Department of Health than the non-departmental public body that we will set up. He also said that he felt that the additional responsibilities we were placing on NICE were inappropriate. When I have spoken to Sir Michael Rawlins, the chair of NICE, he does not take that view. He regards what we are doing as a vote of confidence in NICE, which is what it is intended to be.
There has been some confusion throughout the passage of the Bill about the detail of NICE’s future role. This may underlie some of the discussion we have had in the debate around the incorporation of NICE’s technology appraisals into quality standards. First, I can confirm that NICE will continue to appraise new drugs and technologies at least until we implement our plans for value-based pricing from 2014. The Bill enables us to provide for NICE to continue this important work when it is re-established.
As we develop our plans for value-based pricing of new branded medicines, NICE’s role in appraising drugs will inevitably evolve. However, we have been clear that we expect NICE to have a central role in the value-based pricing system, including in undertaking an assessment of the costs and benefits of different medicines. That is highly analogous to its current role. I very much agree with the noble Lord, Lord Owen, that we do not wish to lose—and certainly not downplay—the skills and scientific and analytical expertise that NICE undoubtedly has. We will make announcements on the precise shape of the value-based pricing model in due course but suffice to say for now that we believe that NICE is very well placed to fulfil the role of performing the pharmacoeconomic evaluation that will underpin the value-based pricing assessment.
Alongside that, NICE may also need to continue to undertake some technology appraisal activity after 2014—for example, to review existing recommendations in the light of new evidence or to assess important new non-drug technologies. It is quite wrong to suggest that we will cease that activity within NICE.
I also take the opportunity to reassure noble Lords that we will use powers in the Bill to replicate the effect of the funding direction which ensures that the NHS in England continues to fund drugs that have been recommended by NICE’s technology appraisal guidance. However, it would not be appropriate to place in the Bill such a requirement on clinical commissioning groups—as Amendment 344ZA would seek to do. That would leave no flexibility to alter the requirement in the event that there were clear practical barriers to implementation within three months of the final guidance. Amendments to the existing funding direction have only been made on a small number of occasions but it is important to retain that flexibility and secondary legislation supports this better than putting a requirement in the Bill.
Lord Hunt of Kings Heath
—not the mess, my Lords, but my noble friend’s vigorous discussions—because of the wish to ensure that those global companies continued to invest in the UK. The problem with the Department of Health is that while it sponsors the industry, its real concern, when it comes down to it, will always be the cost of drugs to the National Health Service—hence my concern that powers of direction by the NHS Commissioning Board will not be used in a way that is conducive both to the independence of NICE and to the continued R&D spend on pharmaceuticals in this country. I do not really want to institute a debate on value-based pricing at this point, but I hope that the Government will look very carefully at its introduction and all the consequences from it. Having said that, unless the noble Earl wishes to answer the point on direction, I certainly beg leave to withdraw.
Earl Howe
My Lords, I will drop the noble Lord a letter on the funding direction, but it is our intention to place this in secondary legislation, appropriately amended as he indicated. It is possible that this will be incorporated in the standing rules as a fixture. On value-based pricing, I can tell him only that quite detailed work is currently under way on the model and that, while I agree in many ways with his comments on the PPRS, it has two unsatisfactory features. One is that it does not recognise fully the factors that society values; the other is that it does not incentivise research sufficiently to address areas of unmet need. If we can achieve both those things, it will represent an advance, but the noble Lord is right that there is still some way to go before this model is finalised.
Lord Hunt of Kings Heath
My Lords, I follow on from the noble Lord, Lord Owen. Clause 231 says:
“The relevant commissioner may direct NICE to prepare statements of standards in relation to the provision of … NHS services”.
In relation to a quality standard regarding the provision of NHS services, the relevant commissioner means the Commissioning Board.
I come back to the point about independence: surely it should be the Secretary of State who should direct NICE to prepare statements of standards in relation to the provision of NHS services. Surely, under this architecture, the concern of the Commissioning Board will be money. It is going to have to ensure that the NHS delivers what the Secretary of State requires in the mandate, which is growing ever longer as we debate the Bill, and that will mean quite a lot of pressure on it. I am worried that because it can direct NICE to prepare statements of standards, it is bound to be governed by finance; in fact, it is bound to relate the number of standards that it directs to the resource issue.
Of course one has to take account of resources, and the very fact that NICE’s technology appraisals are concerned with cost effectiveness is a recognition that we have to make judgments about the use of resources, but I would have thought that there was benefit in there being a distance between that direct concern of the Commissioning Board and the overriding leadership of the service that the Secretary of State must provide.
I wonder if the Minister would be prepared to give this further consideration. In this part of the Bill and in Clause 236, where the board can give directions to NICE, one simply has anxieties that, at least visibly, the independence of NICE might be compromised.
Earl Howe
My Lords, NICE’s independence is the foundation of its reputation as an authoritative source of evidence-based advice. To guarantee that independence, to pick up the point made by the noble Lord, Lord Hunt, the Bill contains no direction-giving power to enable NICE to be directed as to the substance of a quality standard, and explicitly prohibits regulations from enabling the Secretary of State or the NHS Commissioning Board to direct NICE on the substance of its advice, guidance or recommendations. I reassure noble Lords that the independence of NICE’s advice is assured by the very mechanism by which it formulates it—through public consultation and collaboration with respected authorities such as medical royal colleges.
I shall explain in a moment how we propose that the NICE quality standards should be commissioned, because there are different arrangements for different types of quality standard. However, the amendments begin to chip away at what we want to see—that is, a clinically led process—by specifying what really does not need to be specified, as the evidence of the quality standards published to date shows. I appreciate that many people have an interest in this programme, and that is why subsection (7) not only requires NICE to establish a process for its quality standards programme but requires a consultation on that process. That gives ample opportunity to patients, clinicians and other interested parties to have a say in how the programme is delivered.
NICE is expected to develop a broad library of between 150 and 175 quality standards, spanning the domains of the NHS outcomes framework and commissioned by the NHS Commissioning Board. The Secretary of State will have responsibility for commissioning quality standards for social care and public health. For integrated pathways of care covering NHS treatment together with public health and/or social care interventions, the Secretary of State and the Commissioning Board will be able to commission quality standards jointly. So, NICE will prepare quality standards when commissioned to do so by the board for NHS healthcare services, by the Secretary of State for the public health service and social care and jointly by the Secretary of State and the board for integrated pathways.
The noble Lord, Lord Warner, expressed his disappointment at the rate of progress of the rollout of NICE quality standards. Actually, there has been a steady start to this: we have some two dozen quality standards at the moment and, as I mentioned, we will have between 150 and 175 of them over a five-year programme. We agree with the noble Lord that it is crucial to maintain momentum with this important work, and NICE has told us that it believes that the programme is realistic. It is unnecessary to undertake to agree a programme of quality standards each year. The current programme that is being overseen by the National Quality Board is ideally placed to deliver that steady steam of quality standards over the agreed timescales.
The noble Lord, Lord Patel, asked how we will ensure that standards will stand the test of time. NICE regularly reviews its products, including guidelines and standards. This is an established part of NICE’s working procedure that has helped it to attain its high standing with patients, clinicians and, indeed, the industry. NICE is keen to take into account any new evidence and to be responsive to changes in circumstances.
As I said earlier, NICE quality standards bring clarity to quality, providing definitive and authoritative statements of high quality care and based, as the noble Lord, Lord Patel, rightly said, on the evidence of what works best. As we move towards a system that will focus on improving the outcomes that matter most to patients, it is vital that quality standards reflect these.
Amendment 343, which places a particular emphasis on long-term conditions, is understandably motivated but it may have the unintended consequence of excluding other conditions. While I sympathise with the sentiment, it is probably undesirable to specify that in the Bill. That is why the National Quality Board is overseeing the development of a process for selecting topics for the rest of the library that will integrate and build on the current process for selecting the NICE clinical guidelines. This process recognises the importance of ensuring that smaller specialties are taken into consideration. I have a long list here of topics in the proposed programme that address long-term conditions. I am happy to let noble Lords have that. This reflects the fact that these quality standards are needed to help the NHS improve outcomes in this area, as we envisaged in the NHS outcomes framework.
NICE recently completed an engagement exercise on the proposed library of quality standards. The responses were overwhelmingly positive about the programme and the role of quality standards in the new system. This feedback is reassuring, and I hope it reassures the noble Lords sufficiently to enable them not to press their amendments.
Baroness Emerton
My Lords, could I just interrupt to ask a question about the evidence-based quality standards? Where do we fit in the culture change that is so important when we look at quality standards? It is very difficult to measure a culture. We talk about trying to integrate health and social care in all the standards in primary, secondary and tertiary care. An evidence base is essential for NICE, but we have not mentioned culture at all today in this context. It is absolutely fundamental, particularly with the long-term conditions, to talk about or to include some measurement of culture.
Earl Howe
The noble Baroness is quite right and no legislation can provide for that culture change, as she will appreciate. At the same time, we can put in some important building blocks to encourage a change of culture. One is to have maximum clinical input into how the quality standards are framed and formed and, indeed, input from patient representative groups. It is very important to see things from their perspective. We can create duties, as we have in the Bill.
The work that my department has done on accelerating the uptake of innovation is relevant here. The NICE implementation collaborative—the NIC—that was part of our announcement about the growth agenda some days ago is designed to bring together the relevant stakeholder groups to see how the uptake of innovation can be accelerated and how people can be made to look at working practices in rather a different way so that cultures shift. However, it is easy for me to stand here and say that; it is less easy to drive this forward. I would not pretend that the Government are necessarily in the best place to do that, although we are clear that this shift in approach, which largely underlines the QIPP agenda as well, has to take place. However, it will take a little time.
Lord Warner
My Lords, the total purpose of my Amendment 342 was to inject some momentum into the process of delivering these quality standards. I am much reassured by what the noble Earl has said. I think my noble friend’s point about directions for the national Commissioning Board is important. It can be misleading. I hope that the revelations of the noble Lord, Lord Owen, about the chairman of NICE’s past associations will do no damage to his reputation. I beg leave to withdraw the amendment.
Lord Naseby
My Lords, the Deputy Speaker called the amendment and it was agreed, but I did not specifically hear that Clause 240 should stand part. If I may, I will intervene briefly on whether the clause should stand part, particularly the additional functions under subsection (1)(a). It states:
“NICE may do any of the following … acquire, produce, manufacture and supply goods”.
I have a query for my noble friend on the Front Bench. We are well aware that in the past some hospitals have manufactured certain generic medicines and marketed them, which has caused the normal market for medicine and pharmaceuticals to be disrupted. Secondly, we are aware, particularly recently, of certain hospitals that have been selling medicines in another market, which has caused disruption to that market and particular difficulties for parts of the country where there has been a shortage of medicines.
I may be wrong but, as I read it, this clause means that NICE will be in a position to manufacture directly, maybe even under a licence. I see that under paragraph (f) NICE will be able to,
“exploit ideas and exploit intellectual property”.
Can we be quite clear? Is my noble friend really saying that NICE, the adjudicator of value for money and all the other dimensions in the Bill to do with pharmaceuticals, medicines et cetera, will manufacture certain medicines on the side? That does not seem to be part of the role of the regulator. It seems, frankly, to be virtually direct labour within the context of NICE. I would be most grateful if my noble friend would respond. If he is not able to respond today, perhaps he will respond on Report or write to me.
Earl Howe
My Lords, I hope I can assist my noble friend. Clause 240 enables NICE to undertake additional functions, such as supplying new services and exploiting intellectual property. These functions must be related to the provision of health and social care. They seek to reproduce the income-generation powers that NICE currently enjoys as a special health authority and do not therefore represent an expansion of its powers. NICE may do this for any number or type of organisations, including the private sector and overseas Governments. This clause allows NICE to charge for carrying out these additional functions on an appropriate commercial basis.
In the White Paper Liberating the NHS: Report of the Arm’s-Length Bodies Review, the Government stated that,
“where appropriate, arm’s-length bodies will be expected to exploit commercial opportunities and maximise commercial discipline across the sector”.
NICE may carry out these additional functions provided that they do not have an impact on its ability to carry out its functions. We do not envisage, and nor does NICE, that the performance of any of these functions will interfere with its normal work programme. I hope that that is helpful to my noble friend. It is certainly not the case that NICE will be manufacturing medicines, as I think he feared.
Lord Hunt of Kings Heath
Is not the point that NICE enjoys a global reputation for the excellence of its work, as we discussed earlier? I do not know how many hits it has on its website every day but I understand that it is a considerable number. Is this not a huge advantage for the UK and that all the Government are seeking to do is to ensure that NICE can exploit that so that its work in the UK can be developed elsewhere?
Earl Howe
The noble Lord is exactly right. He will know from his time as a Minister with responsibility in this area that NICE has steadily grown its reputation overseas, and that with that have come opportunities to sell its services in a number of quarters. We simply want to see that continue.
Lord Naseby
I understand that and I understand the point made by the noble Lord, Lord Hunt. Nevertheless, to the best of my knowledge, NICE has never manufactured, and presumably from what my noble friend has said is not going to manufacture, in which case perhaps “manufacture” can be deleted from the Bill when it returns on Report.
Health and Social Care Bill
Earl Howe Excerpts(12 years, 11 months ago)
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The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, this has been an extremely valuable short debate on Part 4. I hope it will be helpful if I explain briefly why I feel that the provisions of this part of the Bill are so important.
They are very much part of our overall vision of modernisation and improvement to meet the needs of changing circumstances: changes in demands, in resources and in innovation. They are about ensuring that foundation trusts are accountable, transparent and autonomous in the way they operate so that they can innovate and provide high-quality and responsive patient care.
Part 4 of the Bill will reform the legal basis of foundation trusts to bring them in line with the new system of sector regulation. Protecting patients’ interests will be at the heart of the system and we will strengthen the governance of foundation trusts to ensure that this happens. We are also taking steps to ensure that all trusts become foundation trusts as soon as they are able. This will mean that all patients can benefit from services provided by organisations that put them first and provide high-quality, accessible care. It will also mean that all NHS providers would be able to take their own decisions on organisational change, such as mergers, acquisitions and separations, based on what is best for patients.
To ensure the best use of taxpayers’ money and the continued delivery of high- quality services, we will make the financing system more transparent and rules-based. Foundation trusts will be required by Monitor to report separately within their accounts their NHS and private-funded income and expenditure, increasing transparency about whether private patient activities are making a profit or a loss. We intend that foundation trusts should decide matters such as which partners they will invite to appoint their governors and how best to equip their governors with the skills they need for their role. Foundation trusts should develop their own good practice to ensure that their governors have the training they need and build up close working relationships with the board of directors so that governors have the information they need to hold the directors to account on behalf of the members whom they represent: the public, staff and patients.
I understand the intention of my noble friend Lady Williams in proposing that the NHS Commissioning Board should appoint a governor to each foundation trust, but I agree with my noble friend Lord Mawhinney because I believe that the right kind of close partnership working between foundation trusts and their commissioners can be achieved in a whole lot of ways and that trusts should be able to develop this relationship in the way that best works for them. To mandate an arrangement such as the one that my noble friend proposes would not be the right way to do it. I also quite agree that it is important for the provision of integrated services that foundation trusts should work closely with their partners in local authorities and other healthcare sectors. However, again, foundation trusts should be free to set up the most effective ways of doing this, including executive and professional collaboration. Similarly, we would not want to prescribe governor attendance at all parts of the directors’ board meetings. It is for foundation trusts themselves to decide how to deal most effectively with discussions and decisions on sensitive and confidential matters so that the trust’s interests are best served.
I also feel strongly that it would not be appropriate for the Secretary of State to become involved in the approval of mergers and separations of foundation trusts. Foundation trusts are themselves best placed to decide what will work well for their patients and staff, and to involve the Secretary of State would be to add an extra layer of bureaucracy for no good purpose, in our view.
The amendments tabled by the noble Baroness, Lady Thornton, seek to preserve the current position where foundation trusts can be subject to terms of authorisation applied by Monitor and, if they fail to meet their principal purpose, they can be de-authorised and returned to central control. The obvious point to make about this idea is that it would be incompatible with our proposal to repeal NHS trust legislation once the foundation trust programme has been delivered. The more deep-seated objection is that these amendments would depend on an infrastructure which we propose to replace with a comprehensive new regulatory system. There would be no obvious body to manage the performance of reverted NHS trusts, including measures for dealing with providers at risk of becoming unsustainable. We have looked at this from a different angle. Our proposed system would shift the emphasis from maintaining the existence of an unsustainable provider, often at great cost to the taxpayer, to ensuring continuity of essential services to local populations. That is surely what matters. It is surely right for the system to be geared towards continuity of service provision.
A further amendment by the noble Baroness, Lady Finlay, proposes that abolition of NHS trust legislation and repeal of Monitor’s authorisation powers should not happen before 2020. We are taking a stronger, more testing and more transparent approach than before to managing the foundation trust pipeline, and we expect the vast majority of NHS trusts to become foundation trusts by 2014. This would give patients a clinically and financially sustainable NHS provider system, by definition, because otherwise the trust would not have been authorised as a foundation trust. I am afraid that the noble Baroness’s amendment would not support the change in momentum and mindset that is now evident within the NHS. I very much agreed with the cogent points raised on that topic by the noble Baroness, Lady Murphy.
The noble Baroness, Lady Finlay, quoted the HSJ saying that some foundation trusts plan to make major reductions in staffing. I have not read my HSJ this week yet but I think that foundation trusts themselves are best placed to make decisions about how to provide services efficiently and effectively, which includes ensuring that they have the right levels of staff. What matters are those services. It is always regrettable if front-line staff posts are reduced, but if the service can be maintained in as good a way or better, that is surely what should matter in the end.
Baroness Finlay of Llandaff
I apologise to the House, having regained my voice. The point I wanted to make was that there is a tension sometimes between changes of administration and management and the pressure to try to maintain the quality of patient service. We have already seen a situation where it went too fast and in the wrong direction without sufficient regard to quality. The Minister has often given us reassurances that quality of patient care lies at the heart of what the Government are trying to do. I just want to have reassurance that there would not be undue pressure. While there is always a need, if you are bringing about change, to have some pressure because organisations have an inherent resistance to change, rather than unduly pressurising an organisation that was not in a fit state to cope with that change, going a little more slowly might allow it to cope better.
Earl Howe
I understand that point. That is why we have built additional flexibility into the system. Although we have target dates for each of the NHS trusts that we plan to move to foundation trust status, we understand that nothing can be fixed in stone. There is some latitude here but at the same time it is important to have target dates; otherwise the momentum that the noble Baroness, Lady Murphy, referred to will be lost and that would be very regrettable.
That brings me to the point made by the noble Lord, Lord Warner, that there appears to be a rush to mergers. We agree with the Public Accounts Committee and the noble Lord himself that mergers are only one way of creating more sustainable providers and services. Mergers must be assessed robustly to ensure that they really will deliver the promised benefits. The Co-operation and Competition Panel does that but at present it can only make recommendations. The NHS Trust Development Authority, which we propose to establish, will play an important complementary role in avoiding what one might call silly mergers. The key has to be local ownership and accountability, not oversight by the department. I was interested to see the amendment tabled by the noble Lord, Lord Warner, about the gathering of management accounting data. I am personally a strong advocate for effective financial and management controls. I am sure we all want to see the NHS become more efficient. The problem with the amendment as drafted is that the system it proposes looks a bit clunky and bureaucratic. It goes against the grain to impose an extra layer of accounting and reporting requirements from the centre and it would clearly cut across the responsibilities of the foundation trusts’ governors and directors.
It is right for me to emphasise by way of concluding remarks that these reforms have been developed in discussion with, and informed by, the Foundation Trust Network, the Foundation Trust Governors’ Association, Monitor and individual foundation trusts. They are built on the experience of what foundation trusts know will work. I hope that in itself is a reassuring statement. I have not addressed the point by the noble Baroness, Lady Thornton, about the PAC report, which I am happy to do once she has intervened.
Baroness Thornton
In terms of discussions the noble Earl is having, are all the parties happy with the fact that if a foundation trust fails it goes into receivership instead of being de-authorised?
Earl Howe
My understanding is that the emphasis that we are placing on continuation of services rather than receivership and failure regimes has been welcomed. There are ways around what some might see as an inevitable conveyor belt to receivership. That should be only a last-ditch resort. We are putting mechanisms in place to ensure that the essential services on which patients depend should continue. That is a better way of looking at things.
Lord Mawhinney
I have been thinking about something that my noble friend the Minister said a moment ago. The amendment would require the Secretary of State’s approval, in addition to that of more than half of the members of the council of governors, for an application made under this section. He did not welcome the amendment of the noble Baroness, Lady Williams, on the grounds that the approval of the Secretary of State amounted to an added layer of bureaucracy. It would be helpful to the Committee if we were to know whether the Secretary of State is always considered to be an added layer of bureaucracy and, if not, can he give us a couple of examples of when the Secretary of State is a net plus?
Lord Newton of Braintree
My Lords, since my question to the Minister, before he rises, is in similar territory, I might as well leave him sitting down for the moment and get my question in. As I indicated the other day, I have been involved in what is legalistically an acquisition, although we have always talked of it as a merger, of a foundation trust by its neighbour, due to come to fruition at the turn of the year. The last hurdle that we had to overcome, though it was not much of hurdle, was the need for the Secretary of State to sign off dissolution orders for the existing trust, and at least one other order, to allow this to happen. Is my noble friend saying that, under this Bill, such things could proceed untouched by the Secretary of State? I do not have a strong view one way or the other, but it is quite an important change if that kind of reconfiguration can occur without the Secretary of State even having to agree.
Earl Howe
My Lords, I would not dream of putting my right honourable friend the Secretary of State’s nose out of joint by calling him “an added layer of bureaucracy” in all circumstances. If I did so, I retract it immediately before it catches up with me. The answer to my noble friend is that the Secretary of State is not that of course; he has a major role in the structure of accountability and decision-making in the architecture of the Bill.
The issue to which my noble friends Lord Mawhinney and Lord Newton have referred is, however, complicated. I have asked for briefing on the way in which the merger process will work. It is quite extensive. To cut to the chase, an application from an NHS trust to merge with a foundation trust must be supported by the Secretary of State. That reflects current rules. However, the Bill removes the requirement for a foundation trust to consult the local authority on a merger. Section 244 of the Act, as amended by the Bill, would provide powers for regulations to make provision as to matters on which NHS bodies, including foundation trusts, must consult local authorities. We intend that foundation trusts will continue to be required to consult local authorities on particular matters set out in regulations and we will consult on those. That is the local authority bit of it. There will also be a duty of public involvement on foundation trusts in relation to such matters as the planning of service provision, proposals for changes in the way in which services are provided and decisions affecting the operation of services. I would be happy to write to both my noble friends—it would probably be better if I did so—to set out exactly what we envisage in the circumstances that they have raised.
I do not want to delay the Committee unduly, but perhaps I could refer to the PAC report to which the noble Baroness, Lady Thornton, referred. We welcome the report, which says that the NHS is in need of major overhaul. What is interesting about the report is what it shows about the state of the provider sector when the Government took office last year. It had problems such as hidden bail-outs, inadequate leadership and toxic PFI deals. These matters had not been addressed and we have made the firm decision that we cannot continue on that basis. That is why we are proposing independent assessments of trust boards as part of the foundation trust authorisation process.
As regards that process, trust boards will be independently assessed. The point of that is to ensure that they are up to scratch and able to lead their hospitals to foundation status. The underlying issue here is that we want all trusts to be clinically and financially sustainable in the future. The Public Accounts Committee has, very properly, drawn to our attention various issues around the capacity and capability of leadership, among other things, and my noble friend Lord Mawhinney mentioned PFI as another issue. All NHS trust boards will have to identify their strengths and weaknesses before being independently assessed. That is a robust discipline.
As my right honourable friend made clear in October, if, even after receiving support, management teams fail to improve their performance, then action will be taken. This could include their possible removal as a last resort. The Government will provide help to a small number of challenged hospitals to turn themselves around where necessary, but only after they have met the four tough tests that we have laid down. The problems they face must be exceptional and beyond those faced by other organisations; they must be historic; they must have a plan to deal with them in the future; they must demonstrate that they are improving their productivity; and they must deliver high-quality, sustainable services.
Before I conclude, I should like to speak to a number of minor and technical government amendments—for that is indeed what they are—in this group. These make consequential amendments in line with the revised provisions of the Bill; they correct drafting errors to correct references and numbering, or they remove redundant references to repealed legislation. Their purpose is to make the Bill work properly and to ensure that the legislation is up to date.
Baroness Williams of Crosby
I beg leave to withdraw my amendment, with the simple comment that I thought the reply of the Minister—which was, as usual, very well argued—strengthened the case for both of my amendments even more than I had thought before, and I am grateful for that. Strong leadership, as the Public Accounts Committee calls for, was exemplified by the Minister but should include the Secretary of State. However, may I now move on to the next group?
Baroness Thornton
My Lords, I listened with interest to what the Minister had to say and I was surprised that he dismissed, in a rather cavalier fashion, our two very small and modest amendments about access and transparency for foundation trust boards. We had to force foundation trusts to meet in public. They do not have a good record for their transparency or their willingness to be accountable. That is not so across the board—some are absolute models. I looked in vain for something among all the amendments that the Minister has proposed that might address this important issue of accountability.
I am very disappointed with the answers to my Amendments 296A and 298A. They are modest amendments about accountability. I beg to move, and I would like to test the opinion of the House—
Earl Howe
If the noble Baroness would like a fuller answer, I would be happy to give her one. I am glad to give the Committee an opportunity to hear a slightly fuller answer to the noble Baroness’s amendments. I apologise that I skirted over them in the need to move on.
On Amendment 296A, the purpose clearly is to ensure that governors of foundation trusts have all the relevant information about their board’s activities and decisions to be able to hold them to account. That is not a controversial idea, but the amendment may have the opposite of the effect that the noble Baroness intends. If boards are forced to have governors present at all meetings, they may instead discuss confidential matters in private to maintain confidentiality and hold robust and frank discussions. If governors are admitted to private board meetings, the directors may be inhibited from discussing those confidential matters. The governors can best be kept informed of directors’ activities by close working relationships with them, regular performance reports, meetings with directors including the chair and chief executive, access to all directors and joint activities with directors. It does not have to be the formula that the noble Baroness has suggested.
The noble Baroness said that we had to force foundation trusts to meet in public. That is not right at all. It was we who made foundation trusts have their meetings in public; the previous Government resisted doing that for the whole of the time when they were in office, or from the whole of the time when foundation trusts were set up in 2003, so I do not think that that criticism is at all fair.
On Amendment 298A, the purpose is to require foundation trusts to account separately for NHS and private activity, to show whether that activity is making a profit or a loss. We agree with the broad principle of separate accounting, as we indicated earlier, but we are concerned that putting a requirement like this in statute would impose high costs on foundation trusts with low levels of private activity. Many foundation trusts have little, if any, private activity. We have given a commitment that to provide assurance and transparency we will require foundation trusts to produce separate accounts for NHS and private funded services where they exist. To support its new regulatory functions, Monitor will require foundation trusts to report separately within their accounts their NHS and private funded income and expenditure. That will increase transparency.
We are onside with the theme of the noble Baroness’s amendment, but we do not think that she is setting about it in the right way. It is too heavy handed, and I hope that she will withdraw it.
Earl Howe
My Lords, this is an important issue and one that I recognise is of considerable interest to the Committee. To start at the beginning, the Government are clear that NHS providers should always focus on the provision of care to NHS patients. However, we cannot ignore the fact that the private patient income cap, which Clause 162 would remove, is damaging to the NHS and to patients’ interests. We think that there is a very strong case for removing the cap, because doing so will allow NHS patients to derive even greater benefits from foundation trusts. At the same time, we understand the sensitivities. The key to addressing those sensitivities is to have adequate safeguards to ensure that NHS patients and resources continue to be prioritised and protected. I reassure the Committee that we believe we can achieve that through the Bill and through the government amendments, and I shall explain why and how in a moment.
The words “private patient” in the cap’s title may have unfortunately given the wrong impression about the substance of the argument. My noble friend Lady Noakes was quite right in what she said. The cap’s scope goes far wider than just private patients. It captures income from activities such as innovations involving research, joint ventures and the sale of medicines and intellectual property to private healthcare providers in the UK and abroad. This means that innovative partnerships of the kind that the noble Lord, Lord Warner, indicated might happen are being hampered, and the ability of foundation trusts to earn more income to help to bring in leading-edge technology to the NHS faster—for example, for cancer treatment—is unnecessarily restricted.
Foundation trusts have told us that the cap is detrimental to care offered to NHS patients. They have welcomed our move to remove what they and we see as an outdated, unnecessary and arbitrary legal instrument that locks them into maintaining income from private charges below the levels that applied in 2002-03.
Perhaps I may remind noble Lords of the compelling reasons for removing the cap. As I am sure the Committee will agree, the rule itself is unfair. Some foundation trusts have much higher caps, and hence much more flexibility, than the majority. In 2010-11, around 75 per cent of foundation trusts were severely restricted with caps of 1.5 per cent or less. Meanwhile, the Royal Marsden benefits from a 31 per cent cap and is the country’s highest private patient income earner. It has also been consistently rated as a highly performing NHS provider.
Baroness Thornton
I have a question for the noble Earl on this. He is absolutely right that the Royal Marsden is a very effective hospital, but what independent evidence is there that the cap harms the interests of NHS patients? We know that quite a few foundation trusts have been going on about it, and I absolutely agree that the cap needs to be reviewed properly, but what independent evidence is there that it harms the interests of patients?
Earl Howe
My Lords, if the noble Baroness is calling for evidence beyond the testimony of numerous NHS trusts, I am not sure what more I can offer her. I can write to her on this but there is very considerable evidence—almost a priori evidence—that if you restrict a trust’s ability to earn income which would otherwise go to improve facilities for NHS patients, you are damaging the interests of those NHS patients. That is an argument that we have consistently put forward ever since the 2003 legislation. However, it is also an argument that I recall Ministers in the previous Administration making when we last debated this subject at any length.
I was going to point out too that NHS trusts as distinct from foundation trusts do not have a private income cap. A number of them earn private incomes well in excess of many foundation trusts. There is absolutely no evidence that these providers are ignoring NHS patients as their prime responsibility—no evidence at all. A number of noble Lords, not least my noble friend Lady Williams, have tabled amendments in this area to ensure that foundation trusts must protect the interests of NHS patients above all and that public money should not subsidise private care. I wholeheartedly agree with that. I would like reassure noble Lords of the safeguards that the Bill already contains to this end. Some of these safeguards are prospective in nature and some are retrospective.
First, foundation trusts will continue to be bound by their principal legal purpose, which is to provide goods and services for the NHS in England. I am going to move Amendment 299ZA today to state explicitly that “principal purpose” means that the majority of every foundation trust’s income must come from NHS service provision. That amendment will make it certain that the trusts are NHS providers first and foremost. I admit to my noble friend Lady Noakes that this is something of a belt and braces amendment, but I believe that it directly addresses the main concerns voiced by my noble friend Lady Williams.
The second safeguard is that the Bill would make foundation trusts more accountable and transparent to their public and NHS staff. My second amendment in this group, Amendment 299AZA, would support that by requiring every foundation trust to explain in its annual report how its non-NHS income had benefited NHS services. The Bill gives governors, who represent the public and NHS staff, greater powers to hold directors to account and this amendment would help them do so. My noble friend Lord Clement-Jones sought to place additional duties on directors. The Bill would also place an explicit duty on them to promote the success of their foundation trust with a view to maximising benefits for its members and the public. If, for example, directors were to pursue private patient activity against the interests of members and the public, the governors would be able to, and they should, use their new powers to challenge directors or they could use their existing power to remove the chair and non-executive directors.
Lord Clement-Jones
I understand the safeguard aspect there, but what will the members of the trust or the general public know about how a foundation trust plans to use its assets in terms of private patient income?
Earl Howe
My Lords, it will be open to governors to seek information from the boards of directors on the plans that they have for the trust. They will have access to key papers. There should be no difficulty about knowing what the board has in mind for the trust in that strategic sense.
Thirdly, the NHS Commissioning Board and NHS commissioners would be responsible for securing timely care for NHS patients. They would be under a duty to exercise their functions with a view to securing continuous improvements in the quality of NHS services. That is an important provision too.
Finally, to achieve a fairer playing field, Monitor’s licensing regime would allow it to step in to prevent NHS money cross-subsidising private care. Foundation trusts would also be required separately to report to Monitor their NHS and private-funded income. My noble friend Lady Williams said that in her view it would be useful to have in the Bill that the majority of foundation trust patients have to be NHS patients. While I agree with the intent behind that thought, I cannot agree with her two arguments that support the need for an amendment. First, we do not agree that legislation should be used symbolically in this way. Foundation trusts’ principal purpose already covers the point that she raised. Secondly, even if we had such an amendment, it would not make any difference to how the courts interpret and apply EU competition law. It is the nature of the activities that they are undertaking that matter, not how many patients they treat or how much income they earn.
Perhaps I may make a specific point about my noble friend’s Amendments 297 and 299. They would duplicate unnecessarily the legal description of the NHS, which since 1946 has been described as “health service”. Use of the word “national” would be inconsistent with references to the NHS throughout existing legislation.
Just to elaborate on EU competition law, the Bill, as we discussed the other day, does not change the position on EU competition law or the applicability of the law. It remains the case that there is uncertainty on the status of NHS providers as undertakings for the purposes of competition law because no direct case law exists. In so far as foundation trusts already provide private healthcare services, they may be engaged in economic activity. Therefore competition law, both the prohibitions on anti-competitive behaviour and the prohibitions on state aid, may apply to their activities in these markets. Although the Bill would offer more flexibility to participate in these markets if the cap were lifted, it does not mean that foundation trusts are more or less likely to be considered undertakings in their provision of NHS services.
It was suggested by my noble friend Lady Williams that there might be a sort of case-by-case approach to lifting the cap. I recall that that approach was strongly rejected by the previous Government, and for very good reasons. We agree with those reasons. The disadvantages of that approach would be that it would be very difficult to set up a clear system and it would be likely to be difficult to administer and to increase bureaucracy. It would potentially lead to greater variation between foundation trusts and to claims of unfairness between different trusts, which could possibly be a source of litigation. It would maintain the problematic definitional issues around the cap itself. We are not drawn to that approach.
The noble Baroness, Lady Finlay, asked whether we could consider including in guidance to foundation trusts the need to avoid double-paying staff. I think she makes a very interesting point and I can confirm that we will give that some active consideration.
While the principles of some of the amendments tabled by noble Lords are ones that we could all agree with, we believe that the amendments are unnecessary and could be damaging. For example, a requirement for non-NHS income to support only NHS services could mean that foundation trusts would find it impossible to invest in their non-NHS activities and therefore make greater profits to support core NHS work. We want to avoid safeguards, no matter how well intentioned they may be, having a perverse legal consequence on foundation trusts’ ability to innovate.
I hope I have said enough to persuade the noble Baroness to withdraw the amendment because I am completely convinced that the necessary safeguards are there and that what we are proposing are the right things to do.
Baroness Thornton
If the Minister thinks that the safeguards are here, and if all that is true, should the governors be the ones who decide on the level of the private cap?
Earl Howe
My Lords, I think that the board of directors is best placed to decide how much private income overall a trust should receive, on the proviso that the principal purpose of the foundation trust remains adhered to. Governors should concern themselves with any threat to that status. If they perceive that the board is in danger of overstepping the mark in that sense, then of course it is their province. Otherwise, I think it is for the board of directors to judge what is in the best interests of the trust as a whole and of NHS patients. That could mean expanding the trust’s private patient work, capitalising on intellectual property, or whatever it happened to be.
Baroness Williams of Crosby
I am happy to withdraw the amendment, but I would like the Minister to consider very carefully the words of my noble friend Lord Clement-Jones because my impression is rather the same as his, although on a much weaker basis of expertise. On the one or two occasions when I visited the Commission to discuss this matter, I had a strong sense that social purpose is one of the main criteria that they look at in deciding whether something counts in the area that captures competition law in the EU. I cannot speak about the Competition Commission in England because I do not have enough expertise to do so, but I hope that the Minister will consider what my noble friend has said because I believe that it is a crucial factor for the EU Competition Commissioner.
Lord Clement-Jones
I want to add one further point about “prospectivity”, if there is such a word, and governors and/or directors looking at the activities of the trust. It is important that one considers that point from the social purpose point of view. One can then look at the pattern of activity of the trust and see what investments are going to be devoted to private and NHS patients. That is an important part of looking at the risk factors associated with a purpose not being a social purpose.
Baroness Thornton
I am glad that the two parties of government are in discussion with each other about these matters. However, there are Members on the Cross Benches and on these Benches who also have opinions on these issues. If it is appropriate, we would like to be involved in those discussions.
Baroness Williams of Crosby
My Lords, I am perfectly certain that the noble Baroness will contribute even more to this esoteric but very important discussion. With words of thanks to all those who have taken part, I now withdraw the amendment.
“( ) In sub-paragraph (3) of that paragraph, in paragraph (b) for “any records” substitute “the records”.”
“( ) In paragraph 22(1) of Schedule 7, omit paragraph (e) (duty to make forward plan available to the public).”
“(2A) An NHS foundation trust does not fulfil its principal purpose unless, in each financial year, its total income from the provision of goods and services for the purposes of the health service in England is greater than its total income from the provision of goods and services for any other purposes.”
“( ) After subsection (3) of that section insert—
“(3A) Each annual report prepared by the NHS foundation trust must give information on the impact that income received by the trust otherwise than from the provision of goods and services for the purposes of the health service in England has had on the provision by the trust of goods and services for those purposes.””
( ) in subsection (3), omit paragraph (a) (and the following “and”)”
National Institute for Health and Clinical Excellence
Earl Howe Excerpts(12 years, 11 months ago)
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Lord Naseby
To ask Her Majesty’s Government what, if any, changes there will be in the procedures of the National Institute for Health and Clinical Excellence as a result of the recent life sciences Statement.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, the Government’s Statement on the life sciences set out a range of actions to support the adoption and diffusion of innovation in the NHS. This includes a commitment to establish, through the National Institute for Health and Clinical Excellence, an advice service to support medical technology companies in demonstrating the value of their products, and measures to improve NHS compliance with NICE guidance. It is for NICE to consider any changes to its procedures as a result.
Lord Naseby
Is my noble friend aware how welcome the Statement on life sciences was both to patients who suffer from chronic diseases and indeed to the pharmaceutical industry? However, that welcome is tempered by the statement that my noble friend has just made, because, quite frankly, NICE is and has been a dead hand on development for many medicines. I note that the current chairman has been in position for 12 years, and is scheduled to stay for another two, while the chief executive has been there for 12 years, and is scheduled for an unlimited term beyond that. Many charities have commented on NICE, and I will quote briefly from Sarcoma UK: “In the UK the delays caused by NICE can add years to introduction and mean patients die waiting”. Against that background, will my noble friend ensure that NICE has a new, younger and more modern management?
Earl Howe
My Lords, I need to put on record that I have every confidence in the senior leadership of NICE. The current chair and chief executive have overseen NICE’s development into an organisation of global repute that provides robust, independent guidance on a range of issues. Continuity of leadership can be a very good thing, and I believe that it is in this case, where the leadership is of the highest calibre. I would also say that significant improvements have been made to the timeliness of NICE appraisal guidance on new drugs. NICE is now able to issue draft or final guidance for a significant majority of the drugs that it appraises within six months of a drug being licensed. That is extremely good, considering the complexity of some of these assessments.
Lord Walton of Detchant
My Lords, does the Minister accept that the Statement by the Government last week on life sciences is one of the most welcome Statements relating to the life sciences that we have heard in this Chamber for many years? NICE has had a very proud record. It is required not only to assess the value and importance in medicine of drugs and new procedures but to consider their cost effectiveness. While there are certain situations in which it can rightly be criticised, it has made an immense contribution to the development of new procedures and the introduction of new drugs in the NHS. It is actually envied in other countries, not least in the United States, which wishes that it had a similar mechanism.
Earl Howe
My Lords, I fully agree with the noble Lord, who puts the case very well. That is why NICE will be at the heart of our work to improve quality in the NHS. We are re-establishing it, as the noble Lord knows, in the Health and Social Care Bill, extending its role to social care and embedding the role of NICE quality standards in statute. Of course, it will still be there to provide independent advice to support clinicians in the way that we know it has over the last few years.
Baroness Sharp of Guildford
My Lords, the White Paper talks about establishing a NICE implementation collaborative. Could the Minister explain to the House precisely what is meant by this?
Earl Howe
My Lords, the NICE implementation collaborative is a collaboration between NICE and representatives or stakeholder groups, including the chief pharmaceutical officer, the main industry bodies, the NHS Confederation, the Clinical Commissioning Coalition, the Royal Colleges and, if Parliament approves, the NHS Commissioning Board. The idea is that its members are going to work together to identify where support is needed and to identify solutions for the NHS through the development of implementation guidance—in other words, to improve the uptake of new and innovative technologies in the NHS.
Baroness Thornton
My Lords, the noble Lord, Lord Naseby, has never really liked NICE very much, so I am not surprised at his Question. A lot of the work of NICE is not about approving new medicines but about care pathways. I invite the noble Lord, Lord Naseby, to look at its last 10 press releases; they are all about how you treat COPD or HIV, the care pathways for people with mental illness and so on. Will the Minister confirm that NICE’s guidelines on care pathways will have the same effect under the new architecture as they have today?
Earl Howe
My Lords, our expectation is that the NHS will continue to use NICE clinical guidelines to inform local improvement activity. These guidelines are tremendously valued and very authoritative. The noble Baroness is quite right: they have the potential to make a big impact on the quality of care and to add value.
Baroness Masham of Ilton
My Lords, does the Minister agree that the Statement was very encouraging? Will it keep pharmaceuticals and more research here in the UK? That would be welcome.
Earl Howe
My Lords, part of the objective of the growth strategy is to break down some of the barriers that undoubtedly exist to pharmaceutical companies conducting clinical trials in this country. There have been unwelcome delays in the system and we are putting in place several measures to get rid of them, which in turn should encourage pharmaceutical companies to view the UK as the platform of choice for clinical research.
Health and Social Care Bill
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The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, I thought it might be helpful to the Committee if I intervened relatively briefly at this point to put this part of the Bill into context and explain what we are trying to achieve. Part 3 has been much discussed and, I am afraid to say, much misunderstood. It is, in my view, fundamental to the modernisation of the NHS. It is worth restating why that modernisation is so important.
We need to improve health outcomes and we need to increase productivity in the NHS. Achieving both of these is essential if we are to meet the challenges of caring for an ageing population, managing increased prevalence of chronic disease and funding the rising costs of new drugs and other technologies.
Part 3 helps to enable this by establishing a clear and comprehensive legal framework for sector regulation to protect patients’ interests, based on the principles and values enshrined in the NHS constitution. Monitor’s distinctive role would be to secure value for money in the provision of healthcare services, in the interests of patients. Its overarching statutory duty, which is crystal clear in the Bill, is to protect and promote patients’ interests by promoting economy, efficiency and effectiveness in the provision of services while maintaining or improving quality. The key words there are “protect and promote patients’ interests”. This overarching duty would provide Monitor with a clear and enduring purpose. The duty would be the guiding principle for Monitor’s decisions, for example in resolving any conflicts that may arise in the exercise of its functions. For example, if in future Monitor were to have any doubt about a decision, it would come back to that guiding principle. Equally, it will not be open to Monitor to do anything that infringes that principle.
Baroness Armstrong of Hill Top
The noble Earl knows that that part of the Bill does that only for a limited period of time. He also knows that many people involved with foundation trusts think that should be a consistent and ongoing role of Monitor. Have the Government reassessed so that that is a more complete and comprehensive approach for Monitor, signalled clearly in the Bill?
Earl Howe
What the noble Baroness says it quite right. It would be open to a future Secretary of State to extend the period under which Monitor retained that role. My purpose at the moment is to set out the Government’s position. I am sure we can come on to debate these things, if the noble Baroness will allow, but it is important for the Committee to have the Government’s prospectus in their minds.
The remit of Monitor would be expanded to cover all NHS-funded healthcare providers. This approach ensures that Monitor and everything that it does is governed by a single, coherent legal framework and that all its functions are bound together by a single, overarching statutory duty—the one that I read out. For that reason, I would counsel noble Lords to resist amendments that may seek to achieve similar aims, but do so by retaining a separate legal framework for regulation of foundation trusts.
Many people have sought to portray the new role for Monitor as some sort of mighty club-wielding behemoth, dictating to commissioners how NHS resources should be spent. This is not the case. Monitor’s role, as set out in Part 3, is intended to support and complement the role of commissioners, as set out in Part 2. Our aim is to empower those commissioners—GPs and other clinicians—to take the lead, arranging access to services to meet their patients’ needs and stimulating innovation and improvement. Commissioners will have various tools at their disposal to do this. They will need to decide how to use co-operation, integration and competition to improve quality or efficiency or reduce inequalities.
In that context, the appropriate role for Monitor would be to support commissioners by enabling integration and where competition is used, ensuring that this operates effectively. Monitor’s role is not—I repeat, not—to impose competition from above. Competition is not now and will not be an end in itself.
Our strategy for improving the provision of NHS services is firmly based on the principle of autonomy and accountability for providers. Building on this, we have proposed functions for Monitor that aim to strengthen incentives for providers to improve, rather than simply relying on the ability for Monitor to set and enforce rules. Promoting competition is part of this, but again the context of promoting is quite different from the idea of driving competition through top-down controls. It will not do that, and it would not be effective even if it did.
What has struck me, looking at these amendments, is that, while there are clear differences between some noble Lords and the Government, I also feel that there is a significant consensus emerging. I want to reiterate that the Government are always willing to listen to how the Bill could be improved. I have listened to the points made by the noble Baroness, Lady Thornton, but I have also studied very closely the amendments tabled by other noble Lords, particularly my noble friends Lady Jolly, Lord Clement-Jones, Lady Williams and Lord Marks, as well as the noble Lord, Lord Whitty and the noble Baroness, Lady Murphy.
I am sympathetic to a number of the concerns raised by noble Lords, which we shall hear about. I would like to highlight four at this point. The first is the Secretary of State’s ability to specify matters that Monitor must take into account. I am sympathetic to noble Lords’ concerns that we should clarify the mechanisms by which this can happen. The second is the conflicts between Monitor’s functions. It has always been our intention that Monitor should take responsibility for making appropriate arrangements within its organisation to avoid potential conflicts. However, I will explore this further with Monitor in time to provide greater clarity and reassurance before Report stage. The third area is failures to co-operate. Again, I am sympathetic to noble Lords’ concerns that Monitor should have the ability to address abuses and protect patients’ interests. We believe that the safeguards in the Bill already achieve this aim, but we will look to ensure that Monitor is properly equipped to enforce this. The final issue is reviews by the Competition Commission, where I sympathise with noble Lords’ concerns that the provisions as drafted may not yet fully reflect the revisions to Monitor’s role that were introduced in response to the NHS Future Forum.
That is all that I propose to say for now. I hope that it has been helpful for me to speak early in this debate to give some additional clarity to the Government’s intentions in this vital area of the Bill.
Lord Clement-Jones
My Lords, I very much appreciate the opening speeches from both sides on this group of amendments. I particularly recognise that the noble Baroness, Lady Thornton, has put a great deal of care and consideration into the amendments that she has tabled and they represent a huge amount of work, particularly without the benefit of a Bill team. It is also clear from both speeches that now is the moment to start the debate about the application of EU and domestic competition law to the NHS.
The Bill contains a number of measures that could increase competition within the NHS at the expense of collaboration and integration and which, in my view and that of many of my noble friends, increase the risk that UK competition law will apply as if healthcare were a utility like gas or telecoms. Amendment 288G is the first of a number of amendments tabled by me and my noble friends seeking to minimise that risk.
I am not against competition in the NHS—I suspect that very few of us are—but it must be where it is appropriate. It is not appropriate in all circumstances. Public and patient benefit can often be secured in other ways. We have discussed integration of services throughout the Committee as an alternative and as a complement to competition. Having a balance and choosing the appropriate mechanism that is best for patients is what the debate about Monitor’s powers has focused on to date.
I accept that EU competition law has had some application within the health service for some years now. However, along with many others, I do not want to see EU competition law apply universally across the health service so that our commissioners and providers are required to operate a market-based NHS, red in tooth and claw, without being able to choose where it should apply and where it should not. In my view and that of my noble friends, the risk, for reasons that I shall explain, of a number of elements of the Bill being taken together increases the likelihood of NHS services being found by English and EU courts to fall within the scope of UK and EU competition law. These include, first, potential deregulation of FTs from 1 April 2016, in terms of Monitor no longer having the power to set special conditions under Clause 109 for foundation trusts. That is what Amendment 288G is designed to address. The stand part debates for Clauses 110 to 112, which I support, are also relevant.
Secondly, there are so many new areas where the Competition Commission is deployed. There is the role where Monitor has given notice to include a special condition in a licence in determining whether the matters subject to the proposed condition are potentially contrary to the public interest and whether the special condition provides a remedy. That is Clause 99. There is also its role in reviewing the development of competition in the NHS in the provision of healthcare and the exercise by Monitor of its functions in relation to the provision of healthcare services. That is Clause 76. Its role where there are objections in setting the method of setting prices for the national tariff by Monitor is in Clauses 118 onwards. Finally, there is oversight of foundation trust mergers as a result of the application Part 3 of the Enterprise Act.
Thirdly, after the potential deregulation of foundation trusts and the role of the Competition Commission, there is the lifting of the private patient income cap for foundation hospitals, in Clauses 161 and 162, which opens the way for some foundation trusts to derive the majority of their income from private patients. In that context, I am very pleased to see Amendment 299ZA, tabled by the noble Earl.
If EU competition law were to apply in an unrestrained manner across the NHS, private sector companies that bid unsuccessfully for NHS contracts could make a European competition complaint and challenge commissioning decisions in the courts, and/or the status of foundation hospitals, undermining the mainstream of the NHS in the delivery of services such as intensive care units, A&E, emergency cover, teaching, training and research. The number of such complaints across the EU has increased over recent years.
It was, of course, to minimise the risk of the unrestrained application of EU competition rules that the rules of co-operation and competition and the Co-operation and Competition Panel were devised in 2008. But this Bill, on the face of it, goes much further in encouraging competition. There is a view that the incorporation of those rules in statute is yet another reason to believe that the NHS is at risk in this way.
The applicability of domestic and European competition law to an NHS body, whether commissioner or provider, essentially turns on whether it is an undertaking for the purposes of competition law. Only a grievance between undertakings and abuses committed by dominant undertakings are within the scope of the Competition Act 1998 and Articles 101 and 102 of the Treaty on the Functioning of the European Union. There is, in fact, no definition of the term, “undertaking”, in domestic or European legislation, so the scope of the term has been developed and considered through case law of the domestic and European courts.
I do not propose to give your Lordships a legal lecture—I do not believe I would be able to—but briefly, there are two cases in particular that are of some importance. The question of whether an NHS trust is an undertaking for the purposes competition law was considered by the Competition Appeals Tribunal in the case of BetterCare Group Ltd in 2002. BetterCare was a UK provider of residential and nursing home care, which complained to the OFT that the North and West Belfast Health and Social Services Trust, acting as a purchaser of nursing and residential care home services, was abusing its dominant market position in Belfast. The OFT rejected the complaint on the basis that the trust was not an undertaking for the purposes of competition law. On appeal of the OFT’s decision by BetterCare, the Competition Appeals Tribunal determined that the trust was acting as an undertaking both in the purchasing of services from BetterCare and in the direct provision of elderly care by its own statutory home. This was for various reasons, but of particular importance in the current context, is that in providing care through its own homes, the trust was also a participant in a market for residential care, alongside independent providers, and the trust was in a position to generate the effects that the competition rules seek to prevent.
In FENIN, a case brought by an association of companies involved in the marketing of medical goods used in Spanish hospitals, the European Court of First Instance in 2003 upheld a decision by the European Commission rejecting a complaint alleging abuse of a dominant position by 26 bodies or organisations, including three Ministries of the Spanish Government, which run the Spanish national health system. The Commission had rejected the complaint on the grounds that these bodies were not acting as undertakings in their dealings with suppliers. The Court of First Instance considered that where an organisation purchased goods not for the purpose of offering goods and services as part of an economic activity but in order to use them in the context of a different activity, such as one of a purely social nature, it does not act as an undertaking simply because it is a purchaser of those goods.
Earl Howe
My Lords, I thank all noble Lords who have contributed to what has been a first-class debate. While I will not repeat what I said earlier, the value of this summing up will be in me responding to some of the specific questions and points that have been raised by noble Lords.
The debate has demonstrated broad agreement, if I am not putting words into noble Lords’ mouths—no doubt they will tell me if I am—that competition, when used appropriately, has an important role to play in realising what we all want to see in the NHS. It should be a means of improving the quality of care and productivity in the health service, and of improving patient choice, including choice of treatment. I would like to believe, from what noble Lords have said, that there is no disagreement about that as a general principle. It is consistent with the policies of the previous Government, reflected in published statements on behalf of all the main political parties over the years.
A further area of potential consensus appears to be on the merits of sector-specific regulation that is applicable to both commissioners and providers, with the starting point being the existing principles and rules for co-operation and competition in the NHS, as the noble Baroness, Lady Thornton, made clear.
Speeches from several noble Lords demonstrated the concern that competition law should never be applied to the NHS. The noble Lord, Lord Owen, in particular, expressed that view very forcibly. However, that is not in the gift of the Bill. The Bill provides for Monitor to consider cases of potential breaches of the Competition Act 1998, to undertake market studies and to determine where and when matters should be referred to the Competition Commission for investigation under the Enterprise Act 2002. Establishing concurrent powers for Monitor would not extend the scope of competition law or its applicability to the NHS.
Baroness Thornton
If that is the case, why do 20 clauses in this part of the Bill refer explicitly to the Competition Commission and the panoply of competition law? Should they not be there?
Earl Howe
They are there because this is the first time that any Government have attempted to bring together under one umbrella the disparate parts of our existing system for regulating and controlling competition. As I said earlier, we have that system in skeletal form, but there are lots of gaps and inconsistencies. By bringing them under one umbrella, as this Bill does—I am afraid that it inevitably occupies a goodly number of clauses—we will have a coherent system of regulation for the future.
Establishing concurrent powers for Monitor would not extend the scope of competition law or its applicability to the NHS; that is an important point for noble Lords to appreciate. Why have a sector-specific regulator? For me, the reason is that, instead of such matters being reserved for the Office of Fair Trading, Monitor will be able to lead on these issues in its capacity as a regulator with statutory duties to protect and promote patients’ interests and to enable integration, and as a body with much greater knowledge and expertise of healthcare compared with the Office of Fair Trading. That would include, for example, where arrangements such as clinical networks, which may restrict competition, deliver overriding benefits to patients. Just because there is no competition, that does not mean that the behaviour in question is anti-competitive.
That view was forcibly brought out by the NHS Future Forum. As I have said, competition is just one of the tools available to the commissioner in securing access and improving services, and it will be the commissioner, not Monitor, who will decide where and how to use it. That is not new. The use of competition—for example, through competitive tendering—is already well established in the NHS. A range of providers—NHS, voluntary, and independent—are contributing to improving services for patients.
Of course I understand the passion with which the noble Lord, Lord Owen, spoke; my concern is that his amendments would remove from the Bill a protection for patients in relation to the actions of commissioners. That is very important; if the noble Lord’s amendments were accepted we would have commissioners taking decisions that were not overseen or checked in any way, which would be very dangerous. It would also be a backwards step from the existing principles and rules that apply to primary care trusts and that were introduced by the previous Government. The noble Lord, Lord Owen, said very interestingly that according to his research the French railway system is not subject to EU competition law. I defer to his knowledge of French railway legislation but, as is made clear in the OFT’s recent guidance, the issue of whether competition law applies requires an analysis of the activity in question. To insert a clause into the Bill just to say that EU competition law shall not apply to the NHS would not achieve that aim. EU competition law is a fact, so we have to ensure that the system that we put in place protects patients against breaches of the law and that when breaches do occur they are remedied effectively.
Earl Howe
I shall indeed look very willingly at that question and I am grateful to the noble Lord for raising it. Although I might not appear to be at times, I am very keen to be as open as possible about as much as possible. Whatever I can do to facilitate this I will, although it is not a matter that I have been directly involved in.
Lord Davies of Stamford
Can I take the Minister back to the all-important matter of Monitor? I think he said this morning that he recognised that there were potential conflicts of interest in Monitor’s role. Monitor will continue to have its role of oversight over foundation trusts until 2016. The Minister has said today that that can be continued beyond 2016. Monitor will now be given responsibility for competition policy: in other words, for all the supply side, whether private sector, independent, or foundation trust. Is there not a conflict with Monitor having this responsibility for foundation trusts and then being responsible for the oversight of the rules of competition and the supply side? Monitor will also be responsible for oversight on the other side: the commissioning and customer side. Is this not an intensely problematic situation, and will the Minister say how he intends to resolve these issues?
Earl Howe
My Lords, the noble Lord, not for the first time, is ahead of me. It is no accident that we have a group of amendments that deals with potential conflicts and how these are to be resolved. It might be better, if the noble Lord agrees, to wait an hour or two until we reach those amendments.
My noble friend Lord Newton indicated from his own personal experience that mergers, when they occur, are far too bureaucratic. I fully agree with him. The Department of Health, the Co-operation Competition Panel and, if it involves a foundation trust, Monitor, all currently play a role and may have conflicting views which lead to uncertainty and delay. Our proposals would create a simpler and much more streamlined process for the NHS.
My noble friend indicated his strong view that safety and quality—not competition—should be paramount. I am sure it will not have escaped his notice that improving quality is what these reforms are meant to be about. We have been clear that patients’ interests, especially their safety and the quality of the services they receive, have to be paramount. That is why Monitor’s overriding purpose is to protect and promote patients’ interests. It is why the board will have a duty to improve quality, why the CQC will underpin quality; and why competition will be used only as a means to improve quality. Where there are better ways to improve quality—and there may be—they will be used instead.
My noble friend Lord Clement-Jones, in his extremely interesting and—I do not mean to sound patronising—well-informed speech, took us through some of the intricacies of competition law. Although he did not say this, there has been a suggestion from a number of quarters that we are in a knowledge-free zone when we look at competition laws applied to the NHS. In one sense that is true because there is no case law that can guide us, but in another sense it is not true.
We can say many things with confidence. The point of competition law is to protect people from self-serving abuses like collusion or abuse of market power by restricting access to services. These self-serving abuses that harm patients are already prohibited in the NHS by the principles and rules for co-operation and competition, as introduced by the previous Government. This is not something new introduced by the Bill. Competition law applies to foundation trusts only in so far as they are acting as an undertaking, as my noble friend indicated—in other words, only where they are providing goods and services within a competitive market. Given the lack of directly applicable case law to NHS providers, there is some uncertainty about where that line is drawn.
A body can be an undertaking for some activities and not others. That is very clearly laid out in the OFT’s recent guidance, Public Bodies and Competition Law. For example, the foundation trust might be an undertaking for elective surgery, if it were provided in a competitive market, but it would be very unlikely to be an undertaking when providing NHS services in the absence of competition and while under a licensed obligation to maintain service continuity, which it could well be if Monitor chose to build that into its licence. In so far as foundation trusts may in the future be found to have abused their market power, what would then follow? It is important to understand what the consequences would be. In that situation, Monitor—
Baroness Thornton
Before the noble Earl moves on, I would like to be completely clear. Is the Minister saying that Monitor will decide which parts of the NHS are subject to competition law—and not the Secretary of State?
Earl Howe
My Lords, competition law potentially applies to the provision of services throughout the NHS. Monitor is there to protect patients from breaches of competition law, as it perceives them to be. The noble Baroness is right that it will not be the Secretary of State who makes those judgments. We are charging Monitor with that duty as a sector-specific regulator. I hope I have answered the noble Baroness’s question; if I have not, I am very happy to write to her on that.
In a situation where a foundation trust was found to have abused its market power, Monitor or the OFT would have the power to remedy the breach and impose proportionate sanctions, which might be a fine, or it might be to set aside a collusive agreement or to apply to the courts for a director disqualification. The effect would be to ensure that the anti-competitive conduct and the associated harm were addressed. That can be only a good thing. It is in the interests of patients, and it prevents the whole thing escalating further. The noble Lord, Lord Rea, indicated his doubts that there was any evidence that competition really did drive up quality. If he will allow me, rather than taking up time now, I will write to him, because there is quite a deal of evidence to indicate that it does drive up quality.
On reflecting upon the question that the noble Baroness, Lady Thornton, asked a moment ago, Monitor will not decide whether competition law applies; Monitor will apply the law as it exists. In the end, only the courts will decide the question that she put—certainly not the Secretary of State.
Baroness Thornton
In a way, that goes back to my original question: will the Secretary of State no longer decide, for example, that accident and emergency will be exempt from competition law? Will Monitor decide? Could the noble Earl please be patient with me and give me an example of what will be exempt and what will not be exempt, and who takes that decision? Is he saying that Monitor takes that decision and that if Monitor gets it wrong, the matter goes to the courts?
Earl Howe
Monitor would ask itself: is the arrangement we are looking at for, let us say, an A&E department that had no competition for miles around, anti-competitive? The answer might well be no, it is not. As I said earlier, the very fact that there is no competition to a service does not mean that it is anti-competitive. Monitor will make a judgment on whether the service is operating in the interests of patients. However, I think that we are getting into an area where it would be beneficial to have a letter from me setting out exactly how the law is applied and by whom.
Lord Clement-Jones
I apologise for interrupting the noble Earl. However, to guide the letter, I want to point out that one of the key things is economic activity by the foundation trust concerned. Whether it is engaging in economic activity will, to some degree, be predicated by the behaviour of the decision of the NHS Commissioning Board and the CCGs on whether it is appropriate that there should be a market in particular services from the provider. That gets another actor, or actors, into the equation. This is one of the matters that concerns many of us, because it means that it will be possible in the future, even where no competition currently exists, for competition to be introduced and therefore for Monitor effectively, legally, to have to treat foundation trusts as undertakings.
Earl Howe
My noble friend speaks with great expertise. It would be helpful if I could cover that point when I write, as he suggests.
The noble Baroness has indicated that it would be better to retain the Co-operation and Competition Panel as a separate body. I am very clear that the noble Lord, Lord Carter, and his team have done an excellent job within the Co-operation and Competition Panel since it began its work in 2009. The panel has published important reports on NHS consultants and patient choice; their specific investigations have resulted in direct benefits to patients, such as improved access to primary care in the Kingston-upon-Thames area—that is one that I know of. However, I would not advocate retaining the Co-operation and Competition Panel as a separate organisation, because that would result, in my view, in unnecessary fragmentation and, indeed, duplication. The arrangement we have at the moment has resulted in undue delays and duplication of resources, as the decision-makers have inevitably sought to review the panel’s investigations before taking any action. My noble friend Lord Newton highlighted that issue once again. I have examples in my brief which replicate his experience. Those delays caused unnecessary uncertainty for the NHS organisations involved and their patients. I emphasise again that our proposals would address this by integrating the advisory role of the Co-operation and Competition Panel as a distinct identity within Monitor.
The noble Baroness, Lady Meacher, spoke of the searing experience of Mid Staffs. Of course, we all recognise that the problems of Mid Staffs must be looked into carefully. That is going on at the moment and I am not able to say too much for obvious reasons. But the problems at Mid Staffs, as she will be aware, predated its becoming a foundation trust. After authorisation, its governors were new and fairly inexperienced. Learning from what happened, I am confident in saying that quality now plays a critical role in the authorisation process for new foundation trusts. The governance of foundation trusts in which they are accountable to representatives of the public and staff should help organisations to listen and act on feedback. The events at Mid Staffs demonstrated the importance of having strong, transparent and accountable governance arrangements for the safe and effective operation of the trust. The changes we are making should provide greater accountability to the public and staff and increased transparency so that they can better challenge and scrutinise the delivery of local healthcare provision.
My noble friend Lord Clement-Jones asked what would stop Ministers creating new markets. I hope noble Lords will agree that it must surely be right for doctors and health professionals to want to do the best for their patients. Under this Bill, it would be for commissioners to decide if, when and how to use competition as a means to an end in improving services for patients. The Secretary of State would not have the power to direct commissioners on these matters and the Bill expressly prohibits the Secretary of State exercising his powers to make regulations on commissioning or in setting a mandate to increase market shares for private providers. My noble friend Lord Clement-Jones cited the BetterCare and FENIN cases as an example of how NHS commissioners might act as undertakings. As we have previously made clear, the Government’s view is that the NHS Commissioning Board and CCGs will not be undertakings. Unlike in the BetterCare case, neither the board nor the CCGs will be able to provide services. They will only be responsible for commissioning services for the NHS, which will not be an economic activity for the purposes of competition law.
Lord Clement-Jones
My Lords, I apologise. I expressly said that the concerns were not surrounding commissioning but around provision.
Earl Howe
That is helpful. My noble friend and I are clearly in agreement. I apologise if I imputed any different views to him.
The noble Baroness, Lady Armstrong, indicated that she felt that the oversight powers for foundation trusts should be retained. As the regulator of all providers of NHS-funded services, Monitor will continue regulating foundation trusts under this Bill. These would be enduring functions, not transitional. I hope the noble Baroness is reassured by that. What would be transitional, however, is Monitor’s power to remove foundation trust boards and board members. That is what Clauses 109 to 112 provide for until 2016, although the Secretary of State would be able to extend the transition period by order, as I indicated earlier, if he or she considered it necessary.
My noble friend Lord Ribeiro sought assurances that all providers will work on a level playing field. I am happy to assure him that all providers will indeed be required to meet the same quality standards for the same procedures. Before being qualified, providers will be required to demonstrate that they can meet those quality standards and Monitor will set fair prices for all providers. Competition, as I have said on previous occasions, will be on quality and not on price. If my noble friend will allow, I shall write to him in some detail with answers to his specific questions, which of course were extremely pertinent. I will copy the letter to all noble Lords who have spoken in this debate.
The noble Baroness, Lady Armstrong, also said that the Secretary of State should not raid the budgets of successful foundation trusts. I can assure her that this Bill would not enable the Secretary of State to direct individual foundation trusts or to raid foundation trust budgets, which she has rightly cautioned against. She said that there was a need to ensure that the new system should allow care to be shifted out of hospital. I share her view on that. It is essential that the new system enables more care to be shifted out of hospital into people’s homes and communities. This will require strong commissioning, and that is a key point made by the King’s Fund.
Lord Hunt of Kings Heath
My Lords, I declare my interest as chair of a foundation trust. It is quite simple for commissioners to be instructed to top-slice, say, 2 per cent of their budget and for the commissioning process to be used to divert money from some foundation trusts to others. What the Minister ignores in his construct of the Bill is the actual practice that is happening in the system at the moment.
Lord Hunt of Kings Heath
My Lords, I do not see how the noble Earl can get away from that. We have recently seen that the Secretary of State, having said that he will not intervene, has made three interventions, twice in relation to PCT behaviour and once in relation to the quality outcomes, and in the last debate the noble Earl said that he would continue to use that mandate in future. It seems to me that we will continue to see these kinds of central interventions. It is as if we were in parallel universes. In one, we have the Bill and the theory. In the other, we have the practical management of the health service. Which is it to be?
Earl Howe
Once again, the word “micromanagement” springs to mind. We want to get away from the Secretary of State micromanaging the health service. On the other hand, we think it is perfectly right and proper for the Secretary of State, on behalf of voters, patients and Parliament, to set broad objectives for the NHS, such as the NHS outcomes framework. That document has been very well thought out by clinicians led by Sir Bruce Keogh in the department and has, I believe, commanded universal approval. Surely this is the territory that the Secretary of State should be on: to drive up the quality of care and the performance of the NHS, but not to micromanage.
I recognise that there are fundamental fears that this Bill would increase the role of competition in the NHS and take us down the road to privatisation. I need to be clear that it is not the intention of this Bill, and I do not believe that it is the effect of this Bill, to privatise the NHS. The Bill reaffirms that the NHS will always be there for everyone who needs it, funded from general taxation and free at the point of use. Extending choice and increasing competition is not about privatisation. We want patients to be able to choose to receive their care from the highest-quality providers. Competition in services, where it is introduced, should only be introduced when commissioners genuinely and for good reasons believe that it will benefit patients and the quality of their care. Should we allow this to happen without any check that it is happening legally and properly? Our answer is no; it needs to be overseen fairly and apolitically by a sector-specific regulator with the interests of patients as its core duty.
As with other parts of the Bill, I am more than willing to enter into discussion with noble Lords on Part 3, and I have already indicated that I am sympathetic to some of the key concerns which these amendments raise. With that in mind, I hope that we can move on and debate different issues arising from this part of the Bill and that noble Lords will feel content for the time being not to press the amendments.
Lord Clement-Jones
The noble Earl said himself that we are clearly in slightly—very—uncharted territory here, and referred of course to the OFT guidance. It is largely a re-run of the 2004 OFT guidance. It is slightly clearer because the case law is slightly more developed, but not a great deal more. We are in the area of assessing risk in terms of the application of EU competition law, domestic competition law and so on. Therefore, in these circumstances, we need the best advice. As I said earlier in my remarks, it is not so much a matter of the department asserting that such-and-such is the case but of having the benefit of some outside, independent legal advice—not that I am promoting the barrister’s profession, being a solicitor. Somebody well versed in competition law should be asked to advise on the risks that I set out at some length earlier today, otherwise we will struggle on with assertion and counter-assertion.
Baroness Thornton
My noble friend comes to my assistance in a very appropriate fashion and puts it much better than I did.
Finally, the question that we need to answer is: does the Bill increase the likely interference of competition law in the National Health Service? Does the Bill transfer power from the Secretary of State to Monitor, and is that a good thing? That is why I was pressing the Minister about who takes the decision about where competition law applies.
The Minister said at the outset that Part 3 is misunderstood. He is absolutely right. If the Government really want to put beyond doubt the issue of competition law and its place in the delivery of our National Health Service, we have to simplify, clarify and delete parts of Part 3 of the Bill. We have to take the NHS out of the danger zone of EU procurement law and competition law. That is the challenge that lies before the House when we return to consider this at a later stage in the Bill.
Earl Howe
My Lords, before the noble Baroness sits down, does she accept that European procurement law already applies? I do not think there is any dispute about that. I hope she will welcome my offer to write to cover issues relating to competition law, including giving my view on my noble friend’s suggestion of having an independent legal view. I have not taken a view about that at the moment, but I will gladly consider it.
Baroness Thornton
I accept both the invitation and comments that the Minister has made about procurement law. I refer him back to my comment about opening the door wide and inviting in the lawyers. I beg leave to withdraw the amendment.
Health and Social Care Bill
Earl Howe Excerpts(12 years, 11 months ago)
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Baroness Murphy
Thank you very much indeed. I just want to comment briefly on the amendments on licensing. Some of them are asking quite a lot of the licensing procedure, but there may be other mechanisms that achieve what they want to achieve. I am sympathetic to people’s desire to add these conditions, but I think that it is important to see the licensing arrangements as part of the system, in conjunction with registration with the CQC. It enables Monitor to approve the compliance arrangements to achieve good governance and the information requirements needed to monitor that the organisations are delivering the right standard of care.
The threat of licence revocation enables Monitor to pick up at an early stage the problems of quality and finance which other people have spoken about. Obviously the providers will be very concerned to hold on to their licence, which seems to be a very powerful and potent tying-in of organisations to the ethos and objectives of the NHS. We must be very careful not to regard the licensing process as something within which to impose too many conditions, but as a basic framework that ties the licensees into the system. That is particularly important when organisations start to go wrong. We will discuss later how they are rescued from those predicaments. However, it seems to me that this creates a basic level playing field, and that it would be a mistake to use that process to do much more than tie everyone into the basic system. It sort of replaces the old authorisation process on compliance and quality that was operated by old Monitor, but it is a way of going forward as new organisations come into the NHS as providers of NHS services. I just wanted to add those comments because I think that these amendments might be adding a bit too much to the responsibilities of the licensee.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, licence conditions will be the mechanism through which Monitor will be able to prevent potentially anti-competitive behaviour and enable service integration, where this is what commissioners want. Monitor would also use licence conditions to collect the information it would need to set prices, and to help identify at an early stage—at an early stage—if a provider was at risk of financial distress. If that was the case, it could work with the provider to address potential problems, as well as supporting commissioners to ensure continuity of services. I completely understand the concerns in that area.
First, I think that I need to make clear that all providers of NHS healthcare services will be subject to the requirement to hold a licence. This includes providers of primary medical services, which is the question posed in Amendment 279A. Furthermore, where a provider is providing services that carry a requirement to be registered with the Care Quality Commission, that registration will be a prerequisite to being granted a licence by Monitor. We all want to see close operational links between Monitor and the CQC. The Bill emphasises this by placing duties of co-operation on both organisations, not just in matters such as information sharing, but also in the development of the joint application mechanism for providers seeking registration from both bodies.
We are also clear that regulation must be proportionate, and impose the minimum of additional burdens on those being regulated, while still safeguarding the interests of patients and the public. To that end, the Bill makes provision for the Secretary of State to make regulations establishing an exemptions regime, so that licensing can be targeted towards those parts of the health service where there is the greatest need for regulation. While we are clear that there must be an exemptions regime, we also recognise the importance of making sure that we get the scope of it right. To that end, we are already committed to consulting fully next year on our proposals for the exemptions regulations. Noble Lords may also be aware that the Delegated Powers and Regulatory Reform Committee of your Lordships’ House has recommended that the first set of exemption regulations should be subject to the affirmative resolution procedure. We agree, and both Houses will have the opportunity to debate them before they come into force.
The Bill provides for Monitor to attach conditions to licences. While the Bill sets a framework for the scope of those conditions in Clauses 95 to 97, we are clear that it will be for Monitor itself to develop the detail as the sector regulator. The intention is that the conditions will support Monitor in exercising its functions and that Monitor will be best placed to know how they should be framed to achieve that. Therefore, including large numbers of mandatory conditions on the face of the Bill, as some noble Lords have suggested in certain amendments—for example, Amendments 283, 285ZA and 287A—would undermine the Monitor’s independence, which we do not think is desirable if it is to be a robust and vigorous sector regulator.
Nevertheless, I would like to reassure the Committee that there will be proper oversight of Monitor’s proposals for conditions. My right honourable friend the Secretary of State will have the power to veto the first set of licence conditions. We are clear that Monitor must be able to operate freely and autonomously within the legislative framework established by the Bill. We have built in reasonable checks and balances through requirements for key products, such as the licensing criteria and conditions, to be subject to approval by the Secretary of State. Although I understand entirely the reasoning behind amendments tabled by noble Lords which would increase the level of the Secretary of State’s involvement in provider regulation—for example, Amendments 281A, 282A and 282B—regrettably, I feel that these go a step too far in limiting Monitor’s independence.
The noble Baroness, Lady Thornton, asked me quite a number of questions to which I feel I should write in response. In particular, however, she asked whether Monitor will have the role of resolving disputes and whether all disputes would go to court. The answer to both of those questions is no. The NHS standard contract already provides for contractual disputes to be resolved through arbitration and this will not change. Licence holders have to agree special conditions or modifications to conditions. If the provider disagrees and Monitor then wants to proceed, it must refer the matter to the Competition Commission for consideration.
My noble friend Lord Clement-Jones spoke to Amendment 281A. I want just to comment briefly on that. The amendment would increase the minimum length of notice period during which representations could be made following publication of a notice of proposed exemptions. I am grateful to my noble friend for that. The Bill is clear that the notice period should be not less than 28 days. It could therefore be much more than that, and our expectation in most cases is that it will be. But there will be times when the Secretary of State needs to act quickly, so being locked into a notice period of not less than 90 days could be detrimental to a particular provider or group of providers.
My noble friend Lady Williams spoke to two amendments, Amendments 287EA and 287EB, where the purpose is to ensure that licence conditions on providers of NHS services restrict the income they can earn from private patients and the number of private patients they treat, as well as that funds provided for NHS care are not used to subsidise private treatment offered by foundation trusts, with various conditions attached. I understand my noble friend’s concern about this. However, the amendments would be impractical, and in particular for licence holders who are not NHS bodies they would be highly undesirable. Foundation trusts’ principal purpose—we will come to this in a later group of amendments, when we discuss the private patient income cap—is to provide goods and services for the NHS in England. It means that they must earn most of their income, over 50 per cent, from NHS services. We are tabling a government amendment to make it clear that the majority of every foundation trust’s income will continue to be from NHS service provision. Foundation trusts must comply with their principal purpose or they will be breaking the law. They could be at risk of successful legal challenge if they fail to meet their principal purpose. We are tabling a second government amendment to require foundation trusts to show in their annual reports how income earned from private activities has impacted on the provision of NHS services. Using NHS income to subsidise private patient work would lead to foundation trusts breaching the NHS constitution. The Government also gave a commitment that foundation trusts will have to produce separate accounts for their NHS and private-funded work.
Finally, I want to mention briefly the amendments that will fall to me to move in relation to licensing: Amendments 280A, 281B, 284A to 284C, 285A, 286B, 287C and 287D, and 288A to 288F. These are without exception minor tidying-up amendments to improve the drafting or clarify meaning, and I hope that the Committee will accept them when they are moved. I hope, too, that the Committee feels reassured by my explanation of how we envisage licensing to operate and that the noble Baroness will be able to withdraw her amendment.
Baroness Finlay of Llandaff
My Lords, can the Minister provide clarification on the questions I asked? First, who is going to define what is expected of primary care services in terms of how they are integrated? If that does not form part of their licensing, who will define the minimum standard across the country? Secondly, in Amendment 282ZC I set out that:
“A criterion for a person or organisation to be granted a licence must be that that person or organisation demonstrates a commitment to education, training and research”.
I would be grateful if the Minister could explain the situation when someone may well be good enough to provide clinical services but shows absolutely no commitment to any aspect of education and training, even for the development of their own staff, or to any of the research developments that might be happening in their field. I would include in this physiotherapy and occupational therapy assistance, such as people putting appliances into homes and those providing supportive care-assistance services in health, but not the secondary and tertiary-care specialised services which are covered very adequately by all the criteria from the royal colleges. It is about the minimum standard.
My third question relates to indemnity: do the Government feel that it is acceptable for a provider to be licensed without having to demonstrate that it has adequate indemnity?
Earl Howe
My Lords, I apologise to the noble Baroness if I skirted over the considerable number of questions she asked, and if it would be helpful to her I will write her a letter on all of them. Perhaps I may cover two at this point. As regards her Amendment 282ZC, our expectation is that Monitor’s licensing criteria will be light-touch and broadly drawn, to encompass a wide range of providers. The amendment she has tabled does not lend itself to that approach. Much as I understand the importance of this particular issue, requiring any and every licence applicant to meet a definition of,
“commitment to education, training and research”,
that Monitor has developed does not fit with the principles of proportionate and targeted regulation. But I will write to her with further reasoning on that.
As regards the noble Baroness’s Amendment 282ZB, which is about indemnity, if she will forgive me, again I think that I will have to write to her.
Lord Clement-Jones
I have another amendment on which the Minister might find a lacuna—Amendment 287A, which deals with the Nolan principles.
Baroness Williams of Crosby
My Lords, I wish to address my Amendments 274AA, 274C, 274D and 274E in this group. I shall speak as briefly as I can. I share many of the concerns expressed by the noble Lord, Lord Warner, on whether we are overloading Monitor with too many requirements to make judgments, to intervene and to be responsible to enable any single body to function, however brilliantly led it might be.
This amendment is about the conflict of goals on the part of Monitor. I believe that it is a very important amendment, although it looks modest enough. The Bill states that if Monitor has a conflict of objectives—or, more clearly, a conflict of duties—that will in essence be resolved by the head of Monitor making a statement about the nature of that conflict and the ways in which it could be resolved and then turning it back to the perpetrators to solve the problem as best they can. Those conflicts are substantial. We should make it clear that they are fundamental to the whole argument that we have been having, including in the brilliant previous debate because, first and foremost, the general and primary objective of Monitor is supposed to be the promotion of patient health and patient care. That is fundamental. We heard in the very eloquent speech of the noble Baroness, Lady Meacher, how she thinks Monitor has changed its philosophy of life within the NHS and has become much more concerned with patient care and patient protection than with the pursuit of competition primarily for its own sake. That is a very important step forward in our understanding of the Bill.
However, it still leaves open the possibility of a conflict arising between the duties of Monitor. I have just mentioned the first of those duties—the care and concern about patients who are dependent on the health service. The second duty continues to be a concern with anti-competitive policy, and the third is concerned with integration and collaboration, about which there has been a great deal of discussion and many amendments in this House. The Bill gives us very little guidance on any conflict over which of those duties should be given priority over the others. It says that a conflict of duties or a conflict between responsibilities is to be resolved in this rather heavy-handed way of a statement being made about the nature of the conflict and how it might be resolved, which is then distributed to all those concerned. However, there is no resolution of the conflict. It remains part of what one might describe as an ongoing negotiation that some day might resolve itself in one direction or another. It has interesting parallels with yesterday’s events. However, Amendment 274E sets out very clearly that we believe that ultimately conflict should be resolved by the Secretary of State. We accept all the intervening proposals in the Bill at present—that statements should be made, that the conflict should be defined, and that it should then be passed on to those involved to try to find a solution. If, at the end of the day, no solution is found, it is absolutely crucial, in our view, that this becomes the responsibility of the Secretary of State as the ultimate goal of any accountability or responsibility within the service itself.
In this House I think we have got much closer to recognising how significant this final duty over a range of issues is. The Secretary of State is open to accountability to Parliament and to the general public, the people of England, so we say in Amendment 274E that if no solution can be found, there should ultimately be a reference back to the Secretary of State, who then has to make this ultimate decision. We have deliberately framed it to say that he is the ultimate decider, not one of those deciders on the way, although Monitor certainly has a role in resolving the conflict.
Since the future health service will in part be defined by what is seen to be the most significant of those duties, I think the Minister and most of us in this House believe that that central duty has to be responsibility to the patient and to the care and protection of the patient. I urge us to give this very serious consideration, because it is part of the pyramid that was set out in the brilliant speeches in an earlier debate by the noble Baroness, Lady Thornton, by my noble friend Lord Clement-Jones, and by my noble friend Lord Newton of Braintree, who has now had to leave us. I therefore propose the amendment in that spirit. It puts into a microcosm the concept of where the most responsible and urgent duties on Monitor lie.
Earl Howe
My Lords, I think that this has been a very useful debate. The Bill provides a more autonomous NHS, and it does so in order to deliver high-quality services and value for money. Monitor, as sector regulator, would establish clear standards and rules to protect patients’ interests in the provision of NHS services. Monitor would be required to lay its annual report and accounts before Parliament and have the accounts audited by the Comptroller and Auditor-General. It would also need to comply with other rules and guidance that cover central government public bodies, including the seven general principles of public life, the Treasury’s guidance document, Managing Public Money, and rules on corporate governance. Monitor would also have to respond in writing to parliamentary committees and any advice from HealthWatch England. The Secretary of State would oversee Monitor’s performance of its functions to ensure that those functions were performed well. The Secretary of State would not have control over Monitor’s day-to-day decisions, but would hold Monitor to account for discharging its duties. That point is extremely relevant in the context of a number of amendments in this group. The Secretary of State would appoint the chair of Monitor and other non-executive directors and would have to give consent to the appointment of the chief executive. I hope that point answers Amendments 260F and 260G.
Earl Howe
My Lords, I will come on to that in a moment. The Secretary of State would also have specific powers of veto; for example, over the first set of licence conditions and, in individual cases, of provider unsustainability, where he considered that Monitor was failing in its functions to support commissioners in securing continuity of services. In addition, he would be able to request information from Monitor regarding the exercise of its functions as and when he considered it necessary. I hope that this therefore allays the concerns of noble Lords who put their names to Amendment 260H.
However, Monitor needs to be free from day-to-day political and other inappropriate interference in order for it to be able to act in the best interests of patients. In order to maintain the integrity of its relationship with the Secretary of State, Monitor must be able to take independent decisions on the exercise of its functions, such as calculating prices, setting and enforcing licence conditions and resolving conflicts of interests. Making such decisions subject to approval would be inconsistent with this approach, and would conflate responsibilities. In particular, it would undermine the Secretary of State’s ability to hold Monitor to account. There would also be significant risk of decisions being politicised inappropriately. By contrast, independence in such decisions would increase transparency and help ensure that providers were treated fairly.
I understand the motives of noble Lords who added their names to Amendments 274AA, 274C, 274D and 247E, relating to the Secretary of State’s involvement in resolving conflicts of interest. The Government agree that where they occur, conflicts must be resolved, but giving the Secretary of State a role in decision-making would undermine his ability to hold Monitor to account. The Secretary of State would be obliged to keep under review Monitor’s performance in discharging its duties. He would be able to direct Monitor, where it had failed or was at risk of failing significantly, to carry out its functions. In extremis, he could arrange for a third party to perform those functions or perform functions himself. I hope that those points answer the question of the noble Baroness, Lady Thornton.
The Bill also ensures transparency and fairness, through requirements on Monitor to consult widely when discharging functions and appeal mechanisms for the major decisions it makes. Here, I am addressing Amendments 294BA, 294BB, 294BC. In this way, our proposals strike a balance between maintaining sufficient independence and ensuring that the Secretary of State has sufficient ability to hold Monitor to account for the performance of its functions. I believe there is consensus that we need to ensure that this balance is correct.
My noble friend Lord Clement-Jones asked why it should be the Competition Commission that decides on challenges to Monitor’s proposals on licence modifications, pricing methodologies or whatever. I am grateful to him for that question. It is fundamental to our proposals that Monitor would be an independent regulator and that the appropriate role for the Secretary of State is to oversee Monitor’s performance against its duties, and to intervene where he considered that Monitor was significantly failing in any of its functions. However, it is vital that the legislation provides appropriate checks and balances on Monitor without undermining its day-to-day independence from political control. That is why we proposed that Monitor must consult on the licence conditions that it proposes to impose on providers and on its draft methodology for pricing. Providers and, in the case of pricing, providers and commissioners should be able to object to Monitor’s proposals, and where a sufficient percentage objected, there should be a mechanism for independent and impartial adjudication. That is the role we propose for the Competition Commission. It would act as adjudicator on disputed licence modifications and on disputes over the pricing methodology. The basis for this adjudication would be Monitor’s overarching duty to protect and promote patients’ interests.
Baroness Thornton
Did the Government consider any bodies other than the Competition Commission as being appropriate to fulfil this role? If so, which were they and why were they not thought to be appropriate? This is a rather heavy-duty form of monitoring Monitor.
Baroness Williams of Crosby
I am puzzled by why the Government do not see the Competition Commission’s overseeing of this area of Monitor’s responsibilities as not being neutral. Would not a body such as the Office of Fair Trading be more appropriate? It has a reputation not only of being more neutral but of having shown in the past particular sensitivity and understanding of health as a service provided to the people of England.
Earl Howe
I think it is a question of specialist expertise. I do not regard it as heavy-handed to have the Competition Commission acting in this role—which, we hope, would not be a role that it would need to perform with any regularity. It is an established body. It would apply a public interest test rather than a competition test, which is important. One has to question whether the Office of Fair Trading is the right body. I will of course reflect on my noble friend's suggestion, but we believe that the Competition Commission is a good fit in this sense. If the Secretary of State were to play the role of adjudicator, that would be very detrimental. The result would effectively be the politicisation of Monitor's decisions. As I said earlier, that in itself would undermine the Secretary of State's role in holding Monitor to account for the outcomes that it achieves.
The noble Lord, Lord Warner, referred to conflicts in the role of Monitor in overseeing foundation trusts. We are quite open about the fact that there is a risk of conflict of interest here. That is why it is essential that the Bill sets out a robust way for conflicts to be resolved. In a later debate, we can discuss that at greater length. I listened with interest to the speech of my noble friend Lady Williams, and I will of course reflect further on everything she said, as I always do. I think I have covered the main issues raised by the amendments in this group.
Baroness Thornton
I think that almost the first sentence I uttered in this debate was: will Monitor meet in public; and what do the Government intend to do about joint chairmanship and chief executiveship? If the Minister answered those questions, I did not hear him and I apologise.
Lord Clement-Jones
The Minister said that he thought that the amendments tabled by my noble friend Lady Williams—Amendment 274AB, et cetera—would undermine the role of the Secretary of State and his ability to call Monitor to account. That seems a very far-fetched way to describe an attitude to conflict-resolution. The Secretary of State, particularly under Amendment 274E, is asked to resolve conflict. This is an addition. There is no other way, as far as I can see, of resolving conflict. A key issue, which has also been raised by the noble Lord, Lord Warner, in this debate, has been the multiplicity of roles of Monitor. Therefore, there is a strong need to resolve such conflicts.
I ask the Minister to consider further whether that is really detracting from the Secretary of State's ability to monitor Monitor—in the words of the noble Baroness. We need a mechanism to resolve conflict. Faute de mieux, this seems to be the best one.
Earl Howe
My Lords, I hear what my noble friend says, but the fact is that the amendments he refers to would reduce Monitor’s independence from political interference. We are clear that we do not want political interference in Monitor’s activities. The intent of the amendment is clearly to give the Secretary of State increased accountability for the decisions around Monitor's functions. We believe that Monitor will be an effective regulator and able to deal with conflicts of interest. Clause 63 requires Monitor to resolve conflicts between its functions. If a failure to resolve conflicts between functions was significant, then the Secretary of State already has the power to intervene under Clause 67. Therefore, there is an intervention mechanism but we suggest that it should be triggered only in the circumstances to which I have referred.
Lord Walton of Detchant
Will the Minister say whether, if Monitor is to meet in public, it will have reserve powers to allow it to go in camera if for any reason it may be required to consider highly sensitive personal information, which ought to preserve confidentiality in respect to the individuals concerned? It is crucial that such a power should be available to it.
Baroness Thornton
My Lords, I think this has been an extremely useful debate. I can see why this Government may not trust their Secretary of State to hold Monitor to account. However, I am concerned about the idea that because we—and I do not just mean Members on this side of the House—are anxious that accountability rests in the right place in the Bill, that must therefore translate into political influence or micromanaging. I do not think that is at all the case here. Therefore, we do have an issue still to explore regarding the accountability of Monitor.
I also think we need to explore whether the Competition Commission is the right place for a public interest test to rest. The noble Baroness, Lady Williams, may have made a useful suggestion about which other bodies could possibly undertake that function. Again, we find that this quango is determining its own rules and then implementing them. That is not a satisfactory situation. However, I did take hope from the fact the Minister said yes to the question of whether the chair and chief executive of Monitor would not continue to be the same person, and that Monitor should meet in public. Is the Minister accepting Amendments 260EC and 260GA, or is that the statement of principle with a government amendment coming forward at a later stage or, indeed, a letter from the Minister, clarifying the issue? Otherwise, I beg leave to withdraw the amendment.
Lord Patel
My Lords, briefly, we are getting a bit confused between the amendment of the noble Lord, Lord Warner, which I support and is about anti-competitive behaviour, and people talking against competition. The amendment is quite clear. It asks Monitor, within a year, to identify barriers to quality care that are anti-competitive. The noble Baroness, Lady Murphy, gave one example and there are others, such as optometry services, which can, if given the opportunity to expand, not only provide good diagnostic services but also treat some minor ailments that do not need referral to hospital. Our amendment is about anti-competitive behaviour. It is not about competition.
Earl Howe
My Lords, there are some extremely helpful amendments in this group. Indeed, there has been a great deal of valuable debate both inside and outside the Chamber on the roles of competition and integration in the health service. I am grateful for much of what the noble Lord, Lord Warner, said in his introductory speech.
The Government have been clear that both competition and integration can be important tools for commissioners to drive up the quality of services for patients. We have also been clear that it will be for commissioners to decide where and how these tools should be used—not Monitor. There will be no “one size fits all” or a model prescribed by government.
To help ensure that both competition and integration are effective, Part 3 of the Bill seeks to establish appropriate powers for Monitor. Where there is competition, Monitor will have powers to ensure that it operates effectively in the interests of patients and to safeguard against anti-competitive conduct that can work against those interests. The Future Forum concluded that Monitor, as a sector-specific regulator with knowledge and expertise in health services, would be best placed to achieve this. Let me remind the Committee that this is if there is competition. In some circumstances, I freely concede that commissioners may decide that the best way to achieve high-quality services for patients is not to have competition.
On Amendment 265C, I hope that noble Lords will agree that it is the right approach to require Monitor’s focus to be on considering the interests of patients. That will allow Monitor the scope to take account of a broad range of factors. This approach also provides continuity with the requirements of the existing system rules, the Principles and Rules for Co-operation and Competition, which we have committed to retaining and giving a firmer statutory underpinning through Monitor’s sectoral powers. Those powers are the setting and enforcement of licence conditions for providers and the overseeing of commissioning regulations set by the Secretary of State. Along with the concurrent powers to apply the Competition Act with the Office of Fair Trading, they will provide necessary safeguards to ensure that the interests of patients are protected.
To pick up on the sorts of circumstances cited by the noble Lord, Lord Whitty, that would include, for example, safeguarding against providers exchanging information to agree lower levels of service quality than they would otherwise supply if they were in competition; or a commissioner removing a well performing provider from the choices available to patients, or seeking to direct patient referrals to one provider and not another on non-clinical grounds.
However, it is not the case that every arrangement in the provision of healthcare that had the effect of restricting competition would necessarily be anti-competitive. I made that point in one of our earlier debates. I look particularly in the direction of the noble Lord, Lord Whitty, in saying that Monitor’s core duty means that patients’ interests will always come first. For example, in some cases limiting competition by concentrating specialist services in regional centres or in providing services through a clinical network may deliver overriding benefits to patients and would not, therefore, be anti-competitive. Similarly, where an integrated service raises competition concerns, and equally where services offering more choice and control raise concerns over integration, Monitor will always come back to its core duty—to ask itself the question, “What is it that benefits patients the most?”.
Lord Warner
I want to briefly respond to what the noble Earl said about Amendment 266, particularly in the light of the points that the noble Baroness, Lady Murphy, made about a good deal of anti-competitive behaviour being already quite well entrenched in the NHS. Simply waiting longer to get it even more entrenched before Monitor has a go at the issue of the barriers for new entrants to the NHS market simply gives the signal to the NHS that it can go on as it has been going on. It seems to me that it is important to give a signal that there is a new show in town and that the issue of the barriers to entry, particularly in the light of the report by the Co-operation and Competition Panel, are going to be addressed. I am not sure that waiting longer for the new systems to settle down is going to be in the best interest of the NHS or Monitor and I wonder if he might think a bit more about this and perhaps we could have a further discussion.
Lord Beecham
My Lords, it saddens me to say that 41 years ago I became opposition spokesman on the Newcastle City Council health committee. Within two years, we had the Seebohm report and a change of structure, leading to the creation of a social services committee that embraced both children’s and adult social care and replaced two committees—the old health committee and the old children’s committee. That seemed to me then and, frankly, it seems to me now to have been the right approach, because I do not think that you can sensibly divide children’s and adults’ social services. We do not have that system now. My personal view—which is not necessarily the view of the Opposition—is that it may be time to look again at that division. To an extent, the group of amendments that the noble Baroness has spoken to seeks to secure that objective.
As a consequence of the way in which amendments are ordered, the actual order of the amendments in this group is not quite logical. I suppose one should start with Amendment 269B, which would give Monitor functions relating to children’s social care services. Earlier, we touched on the possibility of Monitor having a role in respect of adult care services. Presumably, one would look at both services coming under their auspices, or neither, rather than keeping a division. Amendment 269B sets out the basic role for Monitor in this context. I note that proposed new subsection (2) would include within the functions,
“inspection of, and reporting on, the potential impact of children’s social care services in a particular area on the potential need for adult social care in that area”.
I am tempted to say “and vice versa”, because so often problems of parents and adults impinge on the needs of the children, and that would make perhaps a more rational disposition of functions.
The other two amendments in this group are, in effect, consequential, and sensibly would require local authorities to ensure a smooth transfer and, as Amendment 270AA puts it, “a careful handover” for children moving into adult social care. All of those seem to me very sensible suggestions. Nevertheless, it is probably better to look at the whole context of where social services fall within the remit of the Bill.
I imagine that there will have been some discussions between this department and the Department for Education, although the way in which Whitehall and, for that matter, local government tend to work, it is not necessarily the case that the relevant organisations come together to discuss these issues. It may be, therefore, that the Minister would wish to consult colleagues in other departments before giving a measured response. Perhaps this matter might be best brought back at Report, because it raises significant issues. As I have indicated, I have felt for some time that the division of responsibilities at the moment is not terribly sensible, with children’s social services being, arguably, at best a sort of fifth wheel on an education coach. At the very least, that matter ought to be re-examined. Perhaps it is too late in the day for it to be part of this Bill, but at some point, I think, this issue certainly needs to be referred to. I congratulate the noble Baroness and the noble Lord, Lord Northbourne, on having put down this amendment, which gives us an opportunity at least to ventilate concerns about this issue.
Earl Howe
My Lords, I understand and well appreciate the concern of the noble Baroness to ensure a high standard of children’s social care services and, in particular, a smooth transfer for young people moving from children’s to adult social care services. I would, of course, be very happy to speak to her and indeed the noble Lord, Lord Northbourne, about this issue away from the Committee, if they consider that to be an appropriate way forward.
On the specific amendments that we are looking at, I really do not think that Monitor is the right organisation to ensure that local authorities are carrying out their responsibilities on these issues, or to act as a regulator of children’s social care services. I am confident that existing arrangements for the regulation and inspection of children’s social care are sufficient and robust. Joint working is important and I hope that the noble Baroness will be reassured that the relevant inspectorates are already working together to improve the arrangements for joint inspection, which will address the very important issue of child to adult transition that she has raised.
Children’s social care is regulated and inspected by Her Majesty’s Chief Inspector of Education, Children’s Services and Skills—Ofsted. Its inspection remit covers all local authority social services functions relating to children—that means services for children in need, safeguarding children, children in care and care leavers, as well as adoption and adoption support services. Local authority adoption and fostering functions must be inspected by Ofsted at a minimum of every three years. Ofsted can of course make unannounced inspections.
We are already working to improve these arrangements. Ofsted consulted over the summer on local authority child protection inspection arrangements that will be more child-centred and less bureaucratic. This new type of inspection will begin in May next year. In addition, all relevant inspectorates have agreed in principle to Professor Eileen Munro’s ideal model of joint inspection, which looks at the contribution all services make towards protecting children. Noble Lords may recall that Professor Munro last year conducted a thorough review of child protection arrangements for the Government. The Care Quality Commission is one of the inspectorates working with Ofsted to establish what those services will look like and when they will begin.
For children with special educational needs and disabilities, the recent Green Paper proposes a new education, health and care plan, covering support from birth to 25. The new plan will include a much clearer focus on the long-term outcomes for children and young people including independent living and employment. This should improve outcomes for young people with special educational needs and disabilities as they make the transition from school into employment or training.
I hope that the noble Baroness will appreciate that work in this area is ongoing. I sympathise with the tenor of all she said, but if she is content to wait for a discussion following these Committee proceedings, I hope that she will, in the mean time, withdraw the amendment.
Baroness Finlay of Llandaff
I am grateful to the noble Earl for his response. It is those transitional points that we have been particularly concerned about. I will discuss this with the noble Lord, Lord Northbourne, and it would be helpful for us to have a short meeting. We are grateful for the fullness of the response from the Minister. I beg leave to withdraw the amendment.
Earl Howe
My Lords, Clause 63 sets out several provisions detailing how Monitor should deal with potential conflicts in relation to its general duties, and conflicts with regard to its functions. It would be helpful to cover each of these in turn. The noble Lord, Lord Davies of Stamford, will not be surprised to learn that I did not agree with much of what he said. We should not find it surprising, because it is not uncommon for bodies to have potential conflicts of interest. What matters is how they are dealt with, and the Bill sets out a robust framework for Monitor to operate effectively. In theory, there is a possibility that Monitor’s general duties, as set out in Clauses 59 and 62, might conflict—if, for example, the most economic, efficient and effective provision did not deliver fair access because that access was limited to certain days and times or locations. If a conflict did arise, we are clear that it would need to be resolved effectively.
In order to be a successful independent regulator, Monitor would need to be able to resolve any conflicts that may arise. It would be closest to these conflicts, and it would be best able to weigh up the potential risks and benefits. Balancing competing priorities is just a reality of life, and resolving such conflicts is a key function that all public bodies need to carry out. When considering how to resolve conflicts, we believe that Monitor should do so in the manner it considers best, in line with its overarching duty to protect and promote patients’ interests. I am not going to call patients “consumers”, but in response to the noble Lord, Lord Beecham, who has tempted me, it was Alan Milburn who said in 2004, when he was Secretary of State for Health:
“In the business world success today depends on being flexible enough to innovate and responsive enough to meet consumer demands. Public services have to apply the same lessons”.
I do not want to press that analogy too far, but we all know what we are talking about when we talk of patients as consumers who require the same kind of care in terms of centring priorities on their interests.
I want to reassure the Committee that when resolving any conflict, Monitor would have to take into account the need to maintain the safety of the people who use healthcare services. Indeed, Monitor would be able to take this and a range of other issues into account when resolving any conflict between its duties. However, Amendment 274ZA would go further. Its impact would be that, in resolving any conflicts between its general duties, Monitor would always act with a view to maximising safety—potentially at the expense of its other duties. This would be inappropriate: it could cut across the role of the CQC, not to mention potentially undermine the role of commissioners and the independence of clinicians. It could also undermine individual patient choice. I can elaborate on that if noble Lords would like me to.
Similarly, while I sympathise with the desire to ensure that providers do not face unnecessary burdens, there may be occasions where a conflict solution that imposes the least burden on providers is not the most effective. Amendment 274ZAA, in the name of the noble Baroness, Lady Finlay, would impose resolutions that prioritised the least burden on providers over all other considerations. I think that is a mistaken way to go. We believe that Monitor should be free to decide how best to resolve conflicts between its duties, and therefore I would encourage the noble Lords who tabled these amendments to withdraw them. Nevertheless, I will consider—as I indicated earlier—whether it would be appropriate for the Bill to rationalise within Clause 62 matters to which Monitor must have regard. This would help Monitor decide how to resolve any conflicts. Therefore, I hope noble Lords will appreciate that I am not impervious to their suggestions on this clause.
Let me turn now to potential conflicts between Monitor’s functions. For clarity, Monitor’s functions include those it has as sector regulator, which are: ensuring continued access to NHS services; setting and regulating prices; preventing anti-competitive behaviour and licensing providers of NHS services. In the short term, Monitor would also continue with specific oversight functions over foundation trusts. As with Monitor’s duties, we need to ensure that any conflict between these functions is resolved effectively. Clause 63(2) requires Monitor to make arrangements to avoid potential conflicts of interest between its specific functions as foundation trust regulator and its broader functions as sector regulator, which are provided for in this Bill. I think we are all clear that we need to have appropriate arrangements within Monitor to mitigate and manage potential conflicts of interest between its functions. The Bill does not prescribe exactly what arrangements Monitor should make for this; it gives Monitor flexibility to determine the most effective arrangements, but we would expect that this would necessarily involve some separation of decision-making. This may need to be underpinned by informational separation and other working arrangements at operational level.
Lord Beecham
Would such proposals by Monitor have to be approved by the Secretary of State or would it be left entirely to Monitor to decide without reference to the Secretary of State?
Earl Howe
My Lords, I think we will rely on Monitor to make its own arrangements and, as the Committee will appreciate, there are limits to how far it is sensible to prescribe in legislation what the arrangements should be. Nevertheless, picking up the noble Lord’s prompt, I am sympathetic to the concerns that have been raised in this general area and I undertake to discuss the matter further with Monitor.
To create legal certainty, Clause 63(3) clarifies Monitor’s arrangements to resolve conflicts further, so when preventing anti-competitive behaviour and setting and regulating prices, Monitor must ignore its transitional regulatory functions relating to foundation trusts. I hope that addresses Amendment 274ZB, tabled in the name of my noble friend Lady Williams. The meaning of this provision—
Lord Davies of Stamford
My Lords, the noble Earl keeps on referring to Monitor’s responsibilities towards foundation trusts as being transitional, but I recall that earlier today he accepted that in fact they would possibly continue beyond 2016, which is five years away. It hardly seems possible that he should be saying that at one moment and then at the next using the argument that since these responsibilities are only transitional, the conflict of interest will rapidly resolve itself.
Earl Howe
I refer the noble Lord to the remarks I made earlier. The provisions are partly transitional and partly not. It depends on which functions we are looking at.
I come back to the point I was making on the amendment tabled in the name of my noble friend. This provision says that in preventing anti-competitive behaviour that is against patients’ interests or in setting prices, Monitor must ignore the transitional functions it has as the regulator of foundation trusts. If the subsection were left out as the amendment proposes—although I know that it is only a probing amendment—when undertaking its anti-competitive behaviour or pricing functions, Monitor could also consider its transitional intervention powers. That could result in Monitor treating struggling foundation trusts preferentially by, for example, not subjecting them to its anti-competitive powers. I hope that that is helpful to my noble friend.
My noble friend Lord Clement-Jones spoke about the designation of specialist centres and expressed his view that that should not conflict with the prohibitions on anti-competitive behaviour and that, in essence, patients’ interests have to be paramount. I am with him on this and I would like to reassure him that patients’ interests would be the paramount consideration for Monitor in resolving conflicts that arise in the exercise of its functions in this way. Monitor need not take issue with decisions to designate specialist centres where this would improve quality and protect patient safety, even if it reduced competition.
I hope that those remarks are helpful and that my noble friend will feel content to withdraw his amendment.
Lord Clement-Jones
My Lords, I thank my noble friend for that reply, which I have found very helpful. It was robust in one sense and has set out a robust framework in another. Although I was also interested in what the noble Lord, Lord Davies, had to say, in that it would tie us all in knots, I think that the Minister’s exposition was clear in that it has set out a suitable conflict framework. Although I cannot speak for my noble friend Lady Williams, I thought that the Minister explained the necessity for Clause 63(3) very well. His reassurance on the aspect of patients’ interests was extremely helpful as well, although of course it does not mean that the spectre of EU competition law does not still haunt us somewhat and that it will continue to be the subject of discussion, perhaps outside this Chamber. After all, that could override everything else if we are not careful.
I took considerable comfort from the Minister’s undertaking to review Clause 62 as well, because that is quite a shopping list. If it could be clarified, that would be helpful. His general undertaking to the Committee on the conflict area was also very helpful. In the circumstances, I am happy to withdraw my amendment.
Baroness Tonge
My Lords, I rise to ask a question rather than to make comments. I am rather confused about how tariffs work. I am thinking particularly of sexual and reproductive health services. Therefore, I support Amendment 292A tabled by the noble Baroness, Lady Gould.
Sexual and reproductive health services are currently provided by general practitioners and clinics directly commissioned by primary care trusts. They can be family planning clinics, youth counselling clinics or genitourinary medicine clinics. Under the new system, GPs will presumably carry on providing sexual and reproductive health services and abortion counselling services, although I am unclear exactly how they will be remunerated in the future. Those GP services are very variable. Some GPs provide a superb service while others provide a very bad one. Some do not provide certain services at all so it is common for patients to go to clinics in their area which have been provided by the primary care trust.
Under the new health service, local authorities will commission and provide sexual and reproductive health services and abortion counselling services as well as HIV prevention services, but not the treatment, although I do not want to go into that now. They will be responsible for those sexual and reproductive health services. However, I am puzzled by the following matter. Currently, if a patient does not like their GP or finds that the GP does not provide the service they want, they can go to a local clinic. However, because of political or religious arguments within a local authority it may have made those services a very low priority, or perhaps does not provide them at all. It seems to me that there is nothing to compel local authorities to provide certain public health services. If a patient cannot get the relevant services from a GP or does not like them, and cannot go a local clinic because one is not available, can they go to a clinic in another local authority where they are not resident? This could be a problem for many patients all over the country, particularly young people who tend to go to different areas for their services where perhaps they are not known or the doctor does not know them. So I am very concerned.
Could the Minister please say how these services will be affected if no national tariff is set on public health services? How do we know that local authorities will not only provide services for sexual and reproductive health but accept people from other local authorities for treatment? It is a very important question for many people in this country.
Earl Howe
My Lords, I think that this debate has clearly demonstrated the importance of having a robust pricing system in the NHS. At a minimum, it must deliver sustainable reimbursement for efficient providers and promote value for taxpayers’ money. In addition, it must support the role of commissioners in securing continuous improvement for patients by strengthening incentives for providers to improve quality and efficiency.
Perhaps I could address one aspect of the opening speech made by the noble Baroness, Lady Thornton. She spoke rather disparagingly, I thought, about the Secretary of State palming issues off on to quangos. Listening to the noble Baroness, the Committee may get the impression that it is this Government who have created quangos for the first time. I make no apology for being part of a Government who believe that arm’s-length bodies can play a very valuable role in public services, especially when given the autonomy to deliver those services free of political micromanagement. The Government also believe that the number of such bodies has grown over recent years to an unsustainable level, and that is why the Bill abolishes a large number of them. So I gently urge the noble Baroness to stop complaining quite so much about quangos and remind herself that she was part of a Government who created a very large array of such bodies.
I begin by addressing the amendment tabled by the noble Baroness which proposes a delegated power for the Secretary of State to make regulations on commissioners regarding a duty as to continuous improvement. I am sure that we all agree with much of the apparent intention behind this amendment, first, that commissioners should act with a view to securing continuous improvement in the provision of services in terms of both quality and efficiency, and indeed in reducing inequalities; that is fundamental to their role. The second intention is that there is a role for regulations in ensuring that commissioning processes operate as means to this end; in other words, that tools such as service reviews, procurement and competition are used transparently and effectively to secure continuous improvement in the provision of services in the interests of patients. Our proposal is that such regulations would be made under Clause 71. They could be updated from time to time, subject to parliamentary resolution. While we would not disagree with some of the suggestions proposed under Amendment 277B—which, I recognise, has been carefully crafted—it may be a bit too detailed for the face of the Bill. In any event, we would want to consult publicly on these matters before putting firm proposals before Parliament.
The role of the pricing system is to underpin and enable continuous improvement—for example, by strengthening incentives for providers to adopt best-practice models of care, in line with commissioning priorities. The noble Baroness, Lady Murphy, was quite right in all that she said on that point. Furthermore, the payment by results programme, introduced by the previous Government, has gone a long way to strengthening pricing within the NHS. It has ensured that reimbursement better reflects the volume and complexity of patients treated, and it has helped to reduce transaction costs. However, a number of problems have been identified with this system over the last few years, including by the previous Administration. These problems have not yet been fully addressed, and we want to do so.
The problems are as follows. The methodology for setting prices is not transparent for either commissioners or providers. That makes the system unpredictable, and there is evidence of significant variations in the tariff from year to year. That undermines investment and innovation.
Baroness Gould of Potternewton
The difference between sexual health and most of public health is that sexual health provision crosses local government boundaries, otherwise you will restrict any form of open access, which is absolutely essential in providing proper and effective treatment and care for people who need sexual health services. That has to be taken into account. Identifying sexual health provision just in terms of local government areas will make all the work that has been carried out over the past few years to provide better services disappear rapidly.
Earl Howe
My Lords, I appreciate those points and I was coming to some words of comfort for the noble Baroness. Not only could Monitor provide technical advice to Public Health England, provided that that was resourced and managed through the framework agreements and the memorandum of understanding between the two organisations, which would be a given, but Public Health England and local authorities could develop their own tariff, if that is what they wanted to do. I understand the noble Baroness’s concern about the underfunding of sexual health services and that the mandate may not set out enough on that score. Her amendment is clearly a way of ensuring that public health services—particularly this type of service—have an agreed cost attached to them that cannot be varied by local authorities, unless they adhere to the rules around variation. I understand all that. However, what the noble Baroness proposes would significantly increase the remit of Monitor and the NHS Commissioning Board and cut across the roles of local authorities and Public Health England. I will, of course, reflect on what she said, but there are probably mechanisms to deliver the kinds of objectives that she is aiming for.
Also on the subject of sexual health services, my noble friend Lady Tonge made some important points. I completely agree with the importance of the issue she raised. It would probably be best if she allowed me to write to her in response.
My noble friend Lord Clement-Jones proposed in his Amendment 292ZA that Monitor should include variations to prices for individuals who experience disadvantage or who have complex needs. While I am sympathetic to his intention, this is already provided for in the broad provisions in Clauses 114(4) and 117(1). In addition, the inclusion of “must” rather than “may” would not provide Monitor with flexibility on when to specify variations and rules.
I move on to the amendment of the noble Lord, Lord Davies of Stamford, who argued the case for competition on price, and I listened with interest to what he had to say. Let me explain what we are seeking to achieve. Overall, we want a system of fixed prices, set locally or nationally, that would ensure that competition was based on quality and patient choice, not on price. Only in specific circumstances could the prices determined by the tariff be varied. These flexibilities would not allow price competition but would rather, as I have indicated, prevent cherry-picking, allow innovation and secure continued access to services. Put simply, the flexibilities would be allowed only where the effect was to improve the efficiency or quality of services provided.
The Government made amendments to the Bill in another place to make clear that the tariff would not be a maximum price. That is vital to avoid perverse incentives for providers to cut costs at the expense of quality. That is entirely different from the competitive tendering scenario to which the noble Lord, Lord Davies, referred. In that scenario, whereby services would be outside the tariff, it is quite reasonable to evaluate bids in terms of best value, not the cheapest price. Guidance published by the previous Government made that clear. I think that we are closer together than perhaps the noble Lord appreciates, but I am grateful to him for what he said. However, he will know that it was the firm view of the NHS Future Forum that competition should be based essentially on quality rather than on price alone. There is of course a danger that we have a race to the bottom if we go too far down that road.
My noble friend Lord Clement-Jones in his Amendment 294M made some telling points. While I am sympathetic to some of them, I can reassure him that agreements for local modification of tariff prices under Clause 122 are intended not to introduce price competition but to sustain the provision of essential services. For example, a local modification may be necessary to sustain provision of A&E or maternity services in a less populated area. It would be inappropriate to remunerate all providers of an essential service at a modified tariff rate without assessing their circumstances on an individual basis.
The noble Baroness, Lady Finlay, in her Amendment 294BZA proposed that it be explicit that Monitor, in establishing the national tariff, have regard to differences in costs of patients incurred by providers and differences between services provided. Clause 116 makes clear that when developing the draft tariff for consultation, both the NHS Commissioning Board and Monitor should have regard to the differences in costs of patients incurred by providers and differences between services provided. However, that amendment raises a valid point around whether Monitor should have regard to these differences when publishing, as well as when drawing up, the national tariff. I can tell the noble Baroness that this issue will be given consideration to determine whether further clarity is necessary in this area.
I now return to Amendment 292ZA, tabled by my noble friend Lord Clement-Jones. He raised the issue of cherry-picking, which we define as something that occurs when providers undertake only the more simple interventions for less complex patients but are paid an inflated price, based on higher average costs. I hope that my noble friend would agree with that definition. Under the proposals in the Bill, Monitor would ensure that the price paid to providers was accurate and reflective of the services delivered. A comprehensive tariff with more reflective prices will prevent cherry-picking. In particular, Monitor and the board would need to consider among other factors the impact of variations in the range of services provided by different providers and the differing needs of the patients treated. My noble friend again asked why the Competition Commission should be used, and again my answer is similar to the one I gave him earlier. The commission is an expert independent body with experience in considering matters such as this—unlike the OFT.
I now turn to Amendment 294AA, tabled by the noble Lord, Lord Warner. It would duplicate what is already stated in this clause, whereby Monitor must send a notice to other persons as it considers appropriate, which may include other clinical groups. Clause 59(8) makes explicit that Monitor must obtain appropriate clinical advice to enable it effectively to discharge its functions. Clause 116(1)(c) provides that Monitor must notify other appropriate persons of the proposed national tariff, which may include other clinical groups. Monitor must publish its consultation containing the draft tariff.
As regards Amendment 294BA, the share of supply percentage that triggers a reference to the Competition Commission will be considered in secondary legislation and agreed through the affirmative resolution procedure. The share of supply percentage would ensure that providers of a service made up of only a few providers would still be able to object to a proposed national tariff and therefore trigger a reference for independent adjudication.
Health and Social Care Bill
Earl Howe Excerpts(12 years, 11 months ago)
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Lord Owen
My Lords, I wish to draw attention to Clause 72(1)(b), which refers to,
“a power to investigate on its own initiative whether the National Health Service Commissioning Board or a clinical commissioning group has failed to comply with a requirement imposed by virtue of section 71(1)(c)”—
which we discussed earlier, the provision to,
“not engage in anti-competitive behaviour which is against the interests of people who use such services”.
I had understood that the decision not to have competition as one of the main functions of Monitor was a considered political decision, but the more one looks at Clause 71(1)(c), and now at Clause 72(1)(b), the more one realises that this has been got round, effectively, by ensuring that anti-competitiveness becomes a prime responsibility of Monitor.
There are a number of objections to this. The noble Lord, Lord Whitty, put his finger on it, that a good regulator does not also become a policeman in an anti sense to the people he is trying to regulate. There is a deep question as to whether you really want a situation where Monitor can be set against the National Health Service Commissioning Board and the commissioning groups. I am very doubtful that this is a sensible power to give to Monitor.
I know it is regulating the whole group, but if you look at the way Monitor is approaching its tasks, time and again it is going to be reliant on good will and an atmosphere of trust between Monitor, the NHS Commissioning Board and the commissioning groups, and now there is this question of anti-competitiveness. It is not as if nobody else is going to be looking at anti-competitive behaviour of the National Health Service Commissioning Board. The private sector wants to go into this whole area and will be looking very carefully at whether or not it is being given an even playing field. It will be taking, and threatening to take, the Commissioning Board to law—I am not even raising the issue of EU legislation, but just under British legislation.
I do not think it is fair to argue that there is unlimited freedom for the National Health Service Commissioning Board or the commissioning groups to operate in this area, particularly the board. You are really setting yourself up for a very difficult situation. Also, to do it “on its own initiative”—does that mean Monitor would not consult the board or a clinical commissioning group but just suddenly involve itself in an investigation? I would be grateful if the Minister could give some indication of how he sees this in practice.
Will some guidance be given not to develop an adversarial relationship? It is very easy for animosities to start coming in to this area. As I say, it is not as if it is free from legal challenge. Their actions can be challenged. However, for another NHS body to be able to question the judgment of the Commissioning Board that in this particular case it is best not to put something out to competitive tender, or to make a judgment when it has been done because somebody feels that it is anti-competitive, is a really dangerous power. In the wrong circumstances, where Monitor might be chaired by somebody who is getting into a bad relationship with the NHS Commissioning Board chairman, something not totally unknown in these areas, this is a tool which could be used in a destructive and adversarial fashion.
It would be very helpful, for future occasions, to hear from the Minister as to how he thinks this would actually work out in real life.
(a) commercial information the disclosure of which would, or might, significantly harm the legitimate business interests of the person to whom it relates;(b) information relating to the private affairs of an individual the disclosure of which would, or might, significantly harm that person’s interests.”
“( ) Where an exemption is granted the Secretary of State—
(a) if the exemption is granted to a prescribed person, must give notice of it to that person, and(b) must publish the exemption.”
Baroness Finlay of Llandaff
My Lords, I have several amendments in this group. I shall start with Amendment 294N, which is a probing amendment. As far as I have understood it, social enterprise bodies which are NHS bodies in all but name are coming into existence. They have evolved from PCTs under the transforming community services programme. They will be subject to special health administration arrangements. I ask the Government to confirm whether the social enterprises that come under the health special administration arrangements are coming under arrangements based on insolvency law and that, as such, that allows assets to be transferred outside the NHS and the redundancy payments are not guaranteed.
Amendment 295CA is intended to ensure that clinical commissioning groups are consulted before the Secretary of State makes regulations that allow Monitor to impose charges on commissioners. The charge imposed can include a levy to fund Monitor’s functions that have to be invoked in the event of failures. Amendment 295CB is intended to ensure that when setting such a levy, Monitor takes into account the impact of the levy on the financial stability of the organisation, especially a financial trust that is already in distress or failing. Amendment 304A requires that the commissioners are considered when the services of a failed financial trust are considered by Monitor and should be involved in the decision as to which should be continued, and that such services must include some continuation of education and training, because in planning for the future workforce, if a whole lot of posts were suddenly lost, it would destabilise the workforce planning. That is in addition to considerations such as the service provision and issues of equity and access. That becomes particularly important because if you do not have the staff with the appropriate training, you cannot, in the long term, provide the service anyway.
Amendment 304B is intended to ensure that commissioners are involved in the board's role in agreeing arrangements to secure continued access to NHS services will be achieved. Will that include the board’s selecting which commissioner would become lead commissioner for the process during a failure?
Earl Howe
My Lords, this has been an excellent short debate on a large number of amendments, but focusing on a critical issue, which is what should happen to providers when they get into significant difficulty. While the debate has focused on the role of Monitor, it is the Government’s firm view that commissioners should lead the process of ensuring there are services available to meet the needs of local communities.
The Government brought forward amendments in another place to improve our proposals for ensuring continuity of services. These included removing provisions to apply an insolvency-based approach to foundation trusts in the form of health special administration. If a provider of NHS services becomes unsustainable, there has to be a legal framework that provides effective safeguards to protect patients’ and taxpayers’ interests. We have therefore taken an evolutionary approach in developing proposals to ensure sustainable local services. The Bill sets out a clear framework to achieve this.
We will maintain the existing regime for foundation trusts but we will improve it significantly. First, we have removed the need to de-authorise a foundation trust. This is because the Government are committed to all NHS trusts becoming foundation trusts, so that all NHS providers have the freedom to innovate and drive sustainable improvements in quality and efficiency, and are accountable locally. I am aware that the noble Baroness, Lady Thornton, has tabled amendments which relate to the issue of de-authorisation and we will discuss those when we reach the appropriate clause.
Further, the Government will also ensure taxpayers’ interests would be protected by securing solutions that make best use of available NHS resources. We do not want patients to use, or taxpayers to subsidise, poor quality, inefficient services or providers. Instead we will ensure an end to the culture of hidden bailouts. That is why Clauses 131 to 143 set out provisions for a transparent financing mechanism to fund continuity of services during a period of administration. In addition, I reassure noble Lords that the existing regime for NHS trusts, as distinct from foundation trusts, set out in the 2009 Act, would remain in place. Through a separate health special administration regime, legislation for the first time will also extend equivalent protection to patients who use NHS services provided by a company. Provisions set out in Clauses 125 to 130 would achieve this.
I turn to Amendment 282ZA. The Bill gives Monitor broad powers to collect financial information for the purposes of monitoring providers’ financial stability. Monitor will be gathering a range of information, including financial, to enable it to undertake an ongoing assessment of risk. Monitor would also be able to intervene in order to support a provider to recover and to prevent failure where possible.
I understand that some noble Lords are concerned about the range of interventions available when a provider becomes distressed. Providers themselves can take a range of actions, including improving the management capability and expertise that they have. Commissioners are responsible for securing access to local services and they can use contractual levers to respond to poor performance and prevent provider failure. Monitor would intervene on a provider on the basis of a predefined distress test to prevent failure where possible. The CQC would monitor providers’ compliance against patient safety and quality requirements.
This locally led approach is especially appropriate where there is a pressing need for services to be reconfigured to ensure sustainability. I am sure that noble Lords will agree that a reconfiguration is more likely to succeed if it is based on close partnership working between commissioners, providers, local authorities and their local communities.
Baroness Thornton
Perhaps I may ask for clarification. The noble Earl refers to providers all the way through. Can we be completely clear that this means all providers —that is, private sector providers, NHS providers, social enterprises and charity providers of health services? Do all these levies and fines apply to them?
Earl Howe
My Lords, when I refer to providers of NHS services, I am referring to NHS providers and non-NHS providers. It is to be determined who will contribute to the levy. That is being worked through and I am sure that the noble Baroness will have noticed from the document that we published the other day that this work is ongoing. We will make further announcements about that in due course.
On Amendment 304B, I say that the board should consult the relevant commissioners but it must make the decision itself, which is what the Bill provides for. The noble Baroness, Lady Finlay, asked whether social enterprises will be within the scope of the health special administration regime. Social enterprises are companies so they will be within the scope of health special administration. It is right that they are not treated as NHS bodies as when assets are transferred from PCTs robust rules apply, as I have set out in detail in previous debates. She asked whether the NHS Commissioning Board would nominate a lead commissioner if a provider becomes unsustainable. The answer is yes.
I hope that noble Lords will find that series of explanations helpful and I ask the noble Baroness, Lady Thornton, to withdraw the amendment.
Baroness Finlay of Llandaff
Before we finish this set of amendments, I want to mention a particular group. I am grateful to the noble Baroness, Lady Thornton, for her intervention, as I want to refer to charitable sector providers who are finding fundraising particularly difficult now. They are beginning to be hit by the downturn in the economy and the downturn in giving, and there is a real risk that some of the charitable sector providers will find themselves in difficulty. If a levy is imposed on them as well, in terms of their registration with Monitor, that may tip them over. My request is that, in looking at all this, there will be separate consideration of the charitable sector providers from other providers.
Baroness Thornton
I thank noble Lords. I will take only a moment, but we will need to return to this. First, this was not looked at properly in the Commons and I can see that that is the case. Secondly, I recall that the chief executive David Nicholson disagrees. He said that he advocates de-authorisation. I believe that the pooling and the levy are bureaucratic and expensive and that the noble Earl does not understand that reconfigurations will not be led locally. I do not think that the Bill adequately approaches how we will manage reconfigurations. To be kind one has to say that the work is ongoing; I am not quite saying that the department and the Bill team are making this up as they go along, but it is definitely an area to which we will need to return on Report. I beg leave to withdraw the amendment.
“( ) If, at the time Monitor discharges the function under subsection (7), the day specified by the Secretary of State for the purposes of section 14A of the National Health Service Act 2006 has passed or section 6 or 178 has come into force—
(a) in the case of section 14A of the National Health Service Act 2006, the reference in subsection (8)(c) to every Primary Care Trust is to be read as a reference to every clinical commissioning group;(b) in the case of section 6, the reference in subsection (8)(b) to the NHS Commissioning Board Authority is to be read as a reference to the National Health Service Commissioning Board;(c) in the case of section 178, the reference in subsection (8)(d) to the Care Quality Commission is to be read as including a reference to its HealthWatch England committee.”
(a) commercial information the disclosure of which would, or might, significantly harm the legitimate business interests of the person to whom it relates;(b) information relating to the private affairs of an individual the disclosure of which would, or might, significantly harm that person’s interests.”
(a) commercial information the disclosure of which would, or might, significantly harm the legitimate business interests of the person to whom it relates;(b) information relating to the private affairs of an individual the disclosure of which would, or might, significantly harm that person’s interests.”
Lord Davies of Stamford
My Lords, I do not want to hold up the House for too long, but I feel that someone should respond to my noble friend Lord Warner’s amendment on behalf of what he rather dismissively described as the elected political class. I am proud to say that I was a member of that elected political class for 23 years, representing Grantham and Stamford. In the course of those 23 years I had to take action to save both Grantham hospital and Stamford Hospital, separately and at different times, when they were threatened with closure. I used all the methods which my noble friend is no doubt familiar with: meetings with Ministers, lining up local government support, petitions, threatening judicial reviews—even potentially funding a judicial review—and heading major marches. I remember leading over 9,000 people through the streets of Grantham and 5,000 through the streets of Stamford. We won in both cases. Grantham is still a very successful local district hospital and Stamford is a smaller hospital—what you might call a cottage hospital.
The point I wanted to make is this: I would have welcomed the sort of report from Monitor which my noble friend is suggesting. If one wants to save one’s local hospital, and one wants to make sure that the right decisions are made about the health of one’s constituents, one wants a warning as early as possible about the financial or clinical problems—or both—that may be arising. There are often all sorts of alternatives that one can find to closure. It is important for democratic confidence in the NHS that all the possibilities are thoroughly explored and everybody is content that the decision has not simply been taken behind closed doors and then announced to the public when there could have been some initiative that might have saved the day. On behalf of the—slightly dismissed—elected political class, I thoroughly support the amendment of my noble friend.
Baroness Thornton
I have a very small piece of advice to give the Minister. I always think that it is best to give in and agree with my noble friend Lord Warner. I have almost always found that this is the best course of action. The noble Earl might recall that, when I was a Minister, on one of the occasions where I did not give in I certainly came a cropper. I urge the Minister to think very carefully and seriously about what my noble friend has had to say. It merits great attention and it merits being in the Bill.
Earl Howe
My Lords, before that intervention I was about to say that I was very pleased that the noble Lord, Lord Warner, had returned us to this issue, which I, like he, regard as extremely important. It is a thoughtful amendment and will certainly prompt further thought on my part after this debate.
I do not think that there is any difference between the noble Lord and myself in this respect. I am certainly all in favour of ensuring that wherever possible there is early intervention and proactive monitoring of organisations well in advance of failure so that failure can be averted. The main difference between us, if there is one, is that we believe that this process should be locally led and not led from the centre, which is how I read his amendment. I probably read it wrongly. When the noble Lord spoke to it, he indicated that nothing in it was intended to run counter to that locally led process. I take that on board.
Why are we so keen on a locally led process? The overall aims that we set out are to put patients, carers and local communities at the heart of the NHS, shifting decision-making as close as possible to individual patients and devolving power to professionals and providers, liberating them from top-down control. This amendment would appear to do the opposite and could lead to an increasing level of decisions being centralised and moved away from local communities and their democratic representatives. The more that one does that, the less likely one is to get local buy-in. In a patient-led NHS, if it is to be worthy of the name, any changes to services have to begin and end with what patients and local communities need.
Baroness Thornton
Does not the experience of the last few years—we can name the hospitals concerned—show exactly the opposite of what the noble Earl is now saying to us, that this has to be locally led? We have to find some mechanism which allows decisions to be taken that does not dismiss or ignore local feelings. Of course people have to be involved in those decisions but, at the end of the day, we know about Chase Farm and several hospitals I could name. In north London, we know that we have too many hospitals. They have not been closed down because it is politically too difficult to do so. If the decision remains at local level, in north London we will still have too many hospitals. I have lots of MP friends who have campaigned to keep those hospitals in place, particularly before the last general election. It seems that what the noble Earl is outlining now will not work.
Earl Howe
Contrary to popular opinion, there have been cases of very successful and rapid reconfigurations of services. Of course, the ones that come to our attention are those that have taken a long time, such as Chase Farm. There is no better or worse example than that.
In reading this amendment, we should be cautious about any process that would significantly weaken both local commissioner autonomy and public engagement. We do not want to conflict with the statutory requirement for NHS bodies to ensure appropriate and proportionate involvement of patients and the public in service changes or reduce the ability for local authority scrutiny to bring effective democratic challenge to reconfiguration plans. I certainly do not think there is a case to reduce democratic accountability in this way.
I agree with the noble Lord that, where it is not possible to reach local agreement on a service change proposal, there should be mechanisms for independent review. We are retaining powers in the Bill for local authority scrutiny functions to be able to refer reconfiguration schemes. As part of the transition, we are also exploring how the NHS Commissioning Board and Monitor can work together to support commissioners and providers. As I have said, the key to successful service change is ensuring engagement with the local community and stakeholders so as to secure as broad support as possible in what can be very difficult decisions.