Health and Social Care Bill
Earl Howe Excerpts(13 years, 8 months ago)
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Baroness Masham of Ilton
My Lords, how could one not accept this amendment?
Earl Howe
My Lords, I begin by saying that I completely understand the seriousness of the issues raised by the noble Lords, Lord Patel of Bradford and Lord Noon, and others noble Lords. The noble Lord, Lord Patel of Bradford, suggested that part of his purpose was to ensure that this issue remained on the government agenda. Let me assure him that the issue is very firmly on the Government’s agenda, and I am pleased that we are having this debate today so that I can outline exactly what we are doing.
Before I turn to address the amendment, I think it would be helpful if I briefly laid out the Government’s view of the role of the voluntary sector in the NHS. We firmly believe that voluntary sector organisations have a strong and often crucial role to play, due to the experience, expertise and insights that they can offer to commissioners and the system more widely. I of course acknowledge and pay tribute to the valuable work performed by Sue Ryder and numerous other charities, including most especially hospices. We recognise that they can play a vital role in delivering innovative, high-quality user-focused services in their local communities, along with improved outcomes for patients and increased value for taxpayers. We also acknowledge, as Amendment 46 highlights, that taxation treatment is one potential barrier to voluntary sector organisations’ entry into the provision of NHS services and to their increased involvement in those services. Access to capital is another. We are very keen to explore ways to overcome these challenges. The department is discussing this, as part of a wide range of issues, with voluntary sector providers of NHS-funded services.
When I was preparing for this debate, I asked whether the Treasury was looking at these issues, and the answer is that it is. I understand that Treasury officials are already working with representatives from the voluntary sector to explore the value added tax treatment of charities supplying the NHS, taking into account the legal limitations and the potential complexities around possible solutions. We are keen that they should make speed over this. However, the introduction of an artificial one-year timetable, as this amendment proposes, would limit the scope for a full and thorough discussion and consideration of this issue. I cannot commit to that limitation. However, I emphasise that we are very keen to work at possible solutions as fast as we can. It is a complex issue. My noble friend Lady Barker pointed us towards some of those complexities.
It is worth my repeating a general point here. The Government are committed to fair competition that delivers better outcomes and greater choice for patients and better value for the taxpayer. We want to see providers from all sectors delivering healthcare services. We have not the least wish to favour one type of provider over another. Indeed, as a result, and to ensure that the Secretary of State, Monitor and the Commissioning Board do not confer preferential treatment on any type or sector of provider, the Government have introduced amendments to Clauses 144, 59 and 20, inserting a new section, Section 130, into the National Health Service Act 2006.
We know very well that the voluntary sector plays a strong role in bringing the voices and experience of patients, service users and carers to the work of improving services, often reaching individuals who are excluded or who cannot access mainstream services. The voluntary sector brings advocacy and information to support individuals to exercise choice and control over the services that they access. These are major prizes, and we wish to capitalise on them. Opening up services to greater choice, for example, through “any qualified provider”—as was pointed out by the noble Baroness, Lady Finlay—allows for greater involvement by social enterprises or voluntary sector organisations. To a great extent, this is already happening.
Listening to noble Lords, I felt that there was a great deal of consensus around those points. There is a shared feeling across the House that charities have a key part to play in NHS provision, that the current VAT rules can act as a barrier and that this needs to be looked at very closely and urgently. I completely agree with that, and I would like to reassure the noble Lord, Lord Patel of Bradford, that we will ensure that this taxation issue continues to be considered urgently, as we develop work on a fairer playing field for delivering NHS services. In establishing Monitor’s new functions, the department and Monitor will continue to consider these issues and the priorities to be addressed.
The noble Baroness, Lady Armstrong of Hill Top, asked in particular what comfort there is in this Bill for the voluntary sector. She quite rightly mentioned the Future Forum in highlighting the work of the sector. The noble Baroness will be aware that the forum gave a very strong endorsement to the Bill’s creation of a bespoke provider regulator, Monitor, in order to oversee a level playing field. Such a commitment to a fair market was and remains a comfort to the voluntary sector. Of course, we acknowledge that more needs to be done, and that includes the ongoing work at the Treasury.
With those remarks, although I am sure that I have not completely satisfied the noble Lord, Lord Patel of Bradford, I hope that I have given noble Lords the sense that we are onside with this issue and shall be pursuing it with as much urgency as we can. I therefore hope that I have done enough to persuade the noble Lord to withdraw his amendment.
Lord Patel of Bradford
My Lords, I have listened carefully and with great interest to the many excellent contributions on this proposed amendment. I am grateful to the Minister for giving a very considered and what I believe to be a very sincere response by recognising the issues. Noble Lords have spoken eloquently about many of the issues: the huge numbers of services and people involved—it is absolutely the big society in action. Yet they also clearly talked about what goes to the heart of this Bill: the barriers that are there to stop the provision of equal services. My “unpopular” noble friend Lord Warner clearly outlined those barriers and I will not repeat them.
We have heard from my noble friends about the importance of the voluntary sector. The Minister clearly repeated the importance of the role of the charitable and voluntary sectors, and the fact that they work with some of the most vulnerable people in our society. I completely agree with the noble Baroness, Lady Barker, about the complexity of the situation. She raised the important issue of social enterprises and the potential exemptions and disbenefits there as well.
We are not asking to make a single-line solution to the problem; we are asking for clarity and transparency. This Government have clearly talked about transparency throughout, and it is so important for us to have that information. I listened to what the noble Earl said about them still discussing how the Treasury will go ahead and that they are in the process of taking urgent actions, but those urgent issues have been there for a long time. I suppose that I go back to the issue of my day job, when I am working with service users and local communities. When working with people with mental health problems and drug issues, nobody disagrees with me. Everybody says, “Yep—this is really important and urgent. We have got to look at it and we will. We will talk and we will make sure users are on the panel”, but we are still talking about it 20 years on. We need a document or something that focuses the mind. That is why the amendment seeks to ask the Secretary of State to give us the data.
I do not think that a year is problematic. I think it should be six months. Why do we not have these data? The whole premise of lots of the services we provide is that we need high-quality data to tell us what is missing and what is wrong. I am hoping that a report will be presented to give Members of the House an opportunity to reflect on that data and to look at what is going wrong, and where, because the big danger is that there will be a discussion between the charity sector and the Treasury, and that the Treasury will say, “This is what we can and cannot do—accept it”. It is important that the House and others outside look at the data and the transparency within that and make an informed decision. I will not keep the Committee much longer. It is such an important issue and, as I genuinely think that we should have a report presented to Parliament by the Secretary of State, I therefore wish to test the opinion of the Committee.
Baroness Thornton
My Lords, at the risk of stating the obvious, the massive reorganisation of the NHS proposed in the Bill, combined with the need to make £20 billion of efficiency savings, without doubt, and with common agreement across many of the professions, threatens the quality and delivery of medical training, post-graduate training and workforce planning. That is why noble Lords have been exercised about this matter from the outset.
The concern is that responsibility for medical training will be given to healthcare providers who, as I understand it, have a history of allowing service and research to dominate the agenda at the expense of education. That brings with it risks of its own. Many trusts, as other noble Lords have said, have persistently failed to support education supervisors by recognising this activity in job plans and increasingly failed to support their staff in fulfilling important national roles related to standards setting and training. I think that most noble Lords who have spoken would agree that there is an insufficient mention of the safeguards that need to be put in place to protect the quality of medical training.
The noble Lord, Lord Kakkar, and my noble friend Lord Turnberg mentioned their concern about post-graduate deaneries. Indeed, that was a major stream of work for the Future Forum. I would like to say to the noble Lord, Lord Mawhinney, that as he made his remarks about the Future Forum I wrote in my notes that I do not understand why the Department of Health seems to have franchised that particular piece of policy-making out to the Future Forum. I think that the Future Forum was right in what it said about the dangers and risks involved in abolishing the strategic health authorities and its recommendation that it was mandatory and critical that alternative arrangements should be made.
We know that post-graduate deaneries are currently pivotal in quality-managing the delivery of medical training in trusts, but the planned replacements, being answerable to and funded by healthcare provider units, may lack the impartiality required to drive the quality agenda at a time when it is most needed because of the fiscal pressures and the associated threat to education quality. We all agree that effective management of the complexities of post-graduate medical training require professional leadership skills and experience, which take many years to develop. The noble Baroness, Lady Finlay, underlined that point in her remarks. My noble friend Lord Warner put his finger immediately on the crucial aspect—how will the money be safeguarded and how will we make sure that the funding that is necessary is in the right place, is accountable in the right place, and cannot be directed into places that we would not wish it to be? How will the Government make sure that that is what happens?
I was very struck by the briefing on this matter by the Royal College of Nursing. The noble Baroness, Lady Emerton, referred to this. The Royal College of Nursing expressed its concern that Medical Education England would dominate the new organisation, HEE. I think we would all agree with the RCN that:
“It is essential that nurse educators are treated as equals and the membership of HEE is representative and not led by the medical deaneries”.
The Royal College of Nursing also believes that there is an essential role for national planning in the delivery of these important functions. I think that there are great risks in the decentralisation of education and training in terms of quality, standards and safeguards. It is unclear how the skill networks or the LETBs will be held accountable for performance issues. It is not clear what authority Health Education England will have to enforce performance issues or how its overseeing of the skills network will take place.
There are some key questions for the Minister to address. The crucial one, which was mentioned by the noble Lord, Lord Owen, who used the expression “chasm in continuity”, is how long we will have to wait for legislation. We cannot be sure that the primary legislation that will be required in this area is going to come down the track in the next year. The Minister needs to recognise that it is too risky to leave this to chance and we have to put the appropriate duties and powers in the Bill to ensure the continuity that the noble Lord, Lord Owen, mentioned. On these Benches, we are very happy to discuss how to resolve that particular issue and how to ensure that medical education is safeguarded.
This is an important group of amendments. I am slightly worried by the statement of the noble Lord, Lord Ribeiro, that this is work in progress. The problem is that there is too much work in progress and there will be too much work in progress for the next few years. This is an area where we cannot take chances. We know from previous reorganisations, for which my Administration were responsible, that we have to be absolutely sure that we are safeguarding the education and training of future generations of workers in the National Health Service.
The most reverend Primate said that continuity and certainty are vital. I agree with him. Certainty in this area is vital. I look forward to hearing the Minister’s views, but I suspect that we have not heard the last of this subject.
Earl Howe
My Lords, the Government are clear that the education, training and continuing development of the healthcare workforce are fundamental in supporting the delivery of excellent healthcare services across the NHS. I am very pleased that so many noble Lords here today share that view. It is certainly the Government’s view. I very much welcome what have been excellent comments on this subject.
Amendment 47A, tabled by the noble Lord, Lord Kakkar, seeks to insert a new clause placing a duty on the Secretary of State to establish a body called Health Education England. Similarly, Amendment 47B, tabled by the noble Lord, Lord Warner, seeks to place a duty on the Secretary of State to “provide or secure” an education and training system and to establish Health Education England to take responsibility for these education and training functions. Amendment 47B also specifies that the budget for education and training should be calculated on the basis of total health service expenditure and,
“should be no less than the level of expenditure on education and training at the time of Royal Assent”.
The Government recognise the importance of having an effective education and training system for the healthcare workforce. The NHS invests approximately £4.9 billion centrally in the education and training of health professionals. It is vital that there is a robust system in place to manage this investment wisely, with clear lines of accountability to Parliament. I would point out to the most reverend Primate that that is exactly why we tabled Amendment 43 which, as the Committee will recall, we debated in our first session. The Committee has already approved that amendment, which is now in the Bill and which says that there is a duty on the Secretary of State to exercise his,
“functions … so as to secure … an effective”,
education and training system. It is perhaps worth my flagging up that that amendment has received a positive response from the British Medical Association, which, in the current circumstances, is a rather remarkable fact. I reiterate that it is designed to ensure that the healthcare workforce has the right skills, behaviours and training to deliver a world-class health service. But we want to put flesh on the bones here. We recognise the need to do that and I therefore undertake that we will publish detailed proposals for the education and training system ahead of the Bill’s Report stage where we will describe how this duty will be enacted in practice. However, there are parts of our plans that I can set out now.
It is vital that we ensure a carefully managed transition into the new system and protect staff and students currently undertaking training. We are taking a number of actions in developing the new system to achieve this that I would like to highlight. The Future Forum recommended that the establishment of Health Education England should be expedited to provide leadership and stability in the system. We agree and it is heartening to see that many noble Lords support this course of action. We have appointed a senior responsible officer to drive this forward and inject pace into the design and development of Health Education England.
To respond to the noble Lord, Lord Owen, while I do not share in any way his analysis of the future prospects of the next health Bill, he was right on one matter: we plan to establish Health Education England as a special health authority in 2012. This will enable it to take on some of its functions from October 2012 and be ready to be fully operational from April 2013. There is not and there will not be the chasm that the noble Lord referred to. Noble Lords will have a chance to scrutinise the establishment order and regulations to set up Health Education England as a special health authority when they are laid before Parliament in early summer 2012. Lest there is any doubt on the matter, I reassure the Committee that it is our intention that Health Education England should form excellent partnerships with a full range of bodies involved in the planning, commissioning, provision and quality assurance of education and training.
However, I can say in particular to the noble Lords, Lord Warner and Lord Kakkar, that Health Education England will provide national leadership for education and training, overseeing workforce planning and the commissioning and delivery of education and training across the system. We have been clear about its accountability to the Secretary of State to ensure that, at national level, there are sufficient health professionals with the right skills, education and training to meet future healthcare needs. Providers of NHS services will be expected to meet the obligations set out in the NHS constitution, including the right of recipients of NHS healthcare to be treated with a professional standard of care by appropriately qualified and experienced staff. Health Education England will hold responsibility for the management of the NHS multi-professional education and training budget, or MPET. To ensure that this budget is sufficient to support the development of the future NHS workforce, equipped with the right skills, our intention is to base the size of this budget on the needs of the service, supported by robust analysis of local workforce and education and training plans.
The question of postgraduate deaneries was raised in particular by the noble Lord, Lord Turnberg. The SHAs will continue to be accountable for postgraduate deaneries until 31 March 2013. Securing continuity for the work of the deaneries will be a key part of a safe transition. It is expected that deans and many of their staff will continue to take forward the work of deaneries with an emphasis on a new, multi-professional approach in the new system architecture.
To pick up one point made by the noble Lords, Lord Kakkar and Lord Turnberg, we also want to see stronger partnership working between postgraduate deaneries and universities. Further work is under way on the detail of these arrangements, with the right accountabilities for the quality of education and training lying with Health Education England and the professional regulators.
I was asked by the noble Lord, Lord Kakkar, about ring-fenced funding. As he knows, the MPET budget currently funds the education and training of the healthcare workforce and it is the responsibility of SHAs to invest the budget appropriately. We have proposed transparent systems to ensure that organisations receiving MPET funding under the future arrangements are held to account for using it for the education and training of the workforce.
The noble Lord also asked whether there will be a requirement to engage fully with academics. I partly covered that point but I emphasise that the new system presents a golden opportunity to build stronger links between the NHS and the academic health sector and to strengthen the educational foundation for research and innovation. Health Education England will ensure that research capability and capacity is maintained and it will forge strong partnerships with academia. Health Education England will work with the royal colleges, the Academy of Medical Sciences, regulators, universities and service providers to ensure that the needs of healthcare delivery are reflected in developing curricula in the context of the statutory responsibility of regulators.
The noble Lord, Lord Turnberg, asked me about standards. I reassure him that standard-setting will be the role of Health Education England at a national level, and this is in addition to the important role that the professional regulators play in this area.
However, despite the progress that we have made, a lot more work has to be done to get these important arrangements right. In my view, that is why it is important that we do not try to amend the Bill in a way that later turns out not to be appropriate. The Future Forum is now leading a second phase of engagement on education and training, focusing particularly on the need for greater flexibility in training, variation in standards and quality, and the need for stronger partnership working between education, academia and service providers. I take this opportunity to mention that tomorrow I am hosting a seminar with Professor Steve Field, chair of the forum, and I welcome your Lordships’ involvement.
I appreciate that the service is waiting for detailed plans for the education and training system to be finalised and published, and I have two promises that I can make on this. The first is the one to which I have already alluded. Once the Future Forum has concluded its work, and prior to Report, the Government will publish more detail on the changes to the workforce planning, education and training system. That, incidentally, will include more detail on postgraduate deaneries. Secondly, it is likely that primary legislation will be required to support the continuing development of the education and training system, including establishing Health Education England as a non-departmental public body, but we think it is important to spend time to make sure that these arrangements are correct rather than legislate at this stage. However, I can tell the Committee that we intend to publish draft clauses on education and training for pre-legislative scrutiny in the second Session in the same way as on research. This approach will enable us to ensure that the legislation is fit for purpose and that it allows additional opportunities for parliamentary scrutiny of the legislation. I hope that this undertaking will be welcome to noble Lords and will indicate the Government’s strong desire to provide maximum clarity on these matters at an early stage. Therefore, I hope that noble Lords will feel able not to press those particular amendments.
The noble Lord, Lord Kakkar, and the noble Baroness, Lady Finlay, have tabled remarkably similar amendments—Amendments 133 and 199A respectively—also on the subject of education and training. The noble Lord, Lord Kakkar, wishes to impose a duty on the NHS Commissioning Board to,
“promote education and training of the health care workforce”.
The noble Baroness, Lady Finlay, wishes to introduce a similar duty on clinical commissioning groups. As I have indicated, the Government’s intention is to delegate responsibility for education and training to healthcare providers. They are at the front line of service delivery and are best placed to understand how the workforce needs to develop and respond to the needs of patients.
Responsibility for education and training is of great importance to employers and the various professional bodies that the noble Lord, Lord Kakkar, mentions in his amendment, but commissioners will also have a role. I agree entirely that education and training needs to be effectively linked with the wider system. I am aware of concerns voiced by the royal colleges and professional bodies on precisely that matter. I wish to reassure the Committee that I recognise the vital interrelationship between education and training, and commissioning decisions. That is exactly why national and local education and training plans will need to respond to the strategic commissioning intentions set out by the board and clinical commissioning groups.
Similarly, in commissioning decisions there will be a need to consider the implications for education and training—it works both ways. The NHS Commissioning Board has to work closely with Health Education England and it will be a mutually supportive relationship. Indeed, this will be a prime example of the co-operation duties that will apply to the board and to other NHS bodies. Commissioners must also promote and have regard to the NHS constitution, which of course contains the pledges that I have already referred to.
I do not intend to speak for very much longer but there are a couple of points that I ought to cover. A number of noble Lords pointed to the lack of medical school involvement in the set-up of local arrangements. I need to be clear about this: the new arrangements are underpinned by the desire to strengthen both the provider voice at the local level and the role of professionals and education providers. We envisage that one of the functions of local bodies will be to ensure strong partnerships with universities and medical schools. Providers of services will have to work in partnership; they cannot just sit alone and ignore everybody else. The form of the local provider-led arrangements is still being developed. More details will be available prior to Report, but I have stressed the links that we envisage with academic colleges at a local level.
I hope that I have indicated that, contrary to the statement from the noble Lord, Lord Warner, that within the modernisation agenda we somehow forgot about education and training, this is not at all the case. As I mentioned when we debated this before, this has been an active programme of work ever since the general election. It is a complex issue and we want to get it right. My noble friends Lord Ribeiro and Lord Mawhinney were spot on in their judgment on this. We are taking action now. We are not losing time over this.
To sum up, we have made provision for education and training in the Bill. We will publish our detailed proposals before Report and we will publish draft clauses on education and training for pre-legislative scrutiny in the second Session. With those assurances, I hope that the noble Lord will feel able to withdraw his amendment.
Lord Kakkar
My Lords, I thank the Minister for his very detailed and extensive response, which is genuinely welcome. He has dealt with a number of the issues that were covered in this important debate. The confirmation that Health Education England is to be established as a special health authority and that a senior responsible officer has been appointed to drive forward its development at a pace to ensure that it is in a position to fulfil its important obligations and functions is a very welcome announcement. I think it will provide considerable hope that the question of education and training can be fully and appropriately dealt with in such a way that any future legislation can build upon an established structure that has already given confidence to those responsible for education and training that these matters can be properly dealt with.
Earl Howe
Before the noble Lord decides what to do with his amendment, I should say that I did not wish in the least to imply that this debate was inappropriate in any way. If I did, I apologise. If I may correct one thing that he said, the draft clauses for pre-legislative scrutiny will come forward in the next Session of Parliament rather than before Report. However, we will be publishing much more detail before Report about what our plans will look like.
Lord Kakkar
I welcome those comments. It was not a criticism made by the noble Earl about this but by other noble Lords; there was a suggestion that it was not appropriate to discuss education and training in any detail at this stage. These were probing amendments, designed to provide Her Majesty’s Government with the opportunity to address issues, to allay concerns and to allow for further appropriate and constructive evaluation of this matter in the Bill in such a way that noble Lords could fulfil their function of scrutiny and revision to ensure that the best possible Act is finally delivered for the people of our country. With those comments, I beg leave to withdraw the amendment.
Lord Warner
My Lords, I rise to speak on this amendment, mainly because of my puzzlement over why the Government want to give the national Commissioning Board a concurrent duty with the Secretary of State under new Section 1(1), given all the other provisions in the Bill which try to shape—if I may put it that way—the relationship of the Secretary of State with the national Commissioning Board. This is especially the case with Clause 20, the mandation clause. One interpretation of this concurrency is that the Secretary of State can pick and choose how he interprets his responsibility.
My noble friend Lord Hunt has mentioned, as delicately as he could, what has happened in the Home Office recently about the sometimes rather strange boundary between policy responsibility and management responsibility and the confusions that could arise. This is not the first time that the Home Office has got into this kind of territory. Your Lordships will remember the difficulties that Michael Howard, when he was Home Secretary, had with the chief executive of the Prison Service, Derek Lewis. It boiled down to this problem of uncertainty about where the remit of Ministers ended and where responsibility began, in this case with the Prison Service, an executive agency. Equally, though, I suggest it could have been a non-departmental public body.
There is a lot of history in this area where one should be extremely wary about passing legislation in particularly high-profile areas and giving concurrency of responsibility to a Secretary of State and to a powerful arm’s-length body, in this case a non-departmental public body, the national Commissioning Board. It is fraught with difficulties. I thought that the Government were trying to clarify this with Clause 20. I think the clause has been misunderstood a little bit by the new chairman of the national Commissioning Board, but the wording as it stands gives the Secretary of State the right, before the beginning of each financial year, to set out a mandate for the board.
There are a lot of safeguards in Clause 20, on both sides of that discussion and agreement. The national Commissioning Board has a lot of safeguards. The Secretary of State cannot keep coming back and adding bits and pieces as the year progresses. The Secretary of State also has quite a lot of safeguards. He or she can expect the national Commissioning Board to stick to what has been agreed in that mandate. There is no doubt about the Secretary of State’s ability to give instruction to the board and there is no doubt about his ability to change those instructions on an annual basis after proper discussion and consultation. That is very clear. One of the strengths of Clause 20 is that it does make the relationship clear between the Secretary of State and the national Commissioning Board.
I have tabled an amendment that tries to restrict the number of requirements that the Secretary of State can place on the national Commissioning Board. I can well remember the time when the noble Lord, Lord Mawhinney, was a Minister with responsibilities for health, along with his colleague the noble Baroness, Lady Bottomley, who is not now in her place. We had somewhere in excess of 50 priorities in the NHS that we were required to deliver each year. In practice, we had no priorities, because no one could hold 50 priorities in their head, so there is an issue about how far you go on mandation. Nevertheless, the structure of Clause 20 clearly states what that relationship is, on an annual basis, between the Secretary of State and the national Commissioning Board.
We would do well to stick with that kind of relationship rather than muddy the waters with a concurrency of responsibility. I will be interested to hear what the Minister has to say on this issue.
Earl Howe
My Lords, as has been pointed out, this amendment returns us to the topic of the comprehensive health service. We have had a wide-ranging debate on that issue. I appreciate the concerns held by some noble Lords about the extent to which the Secretary of State will be genuinely accountable for the health service under the new arrangements introduced by the Bill. I have outlined the reasons why I believe accountability will be maintained and how accountability to Parliament and the public will be increased by our proposals. We have indicated our intention to look further at what could be done to put the Secretary of State’s ultimate accountability for the health service beyond doubt. We will do that.
However, it is a core principle of our reforms that politicians should step back from day-to-day interference in the NHS to allow clinicians to take the lead in developing services that are built around the needs of patients. That would simply not be possible if the Secretary of State retained broad powers of direction over the NHS Commissioning Board. As I have previously described, the role of the Secretary of State in future should be to set the legislative and regulatory framework; to set the strategic direction for the NHS through the mandate, as the noble Lord, Lord Warner, has rightly reminded us; and to hold the national bodies in the system to account for fulfilling their responsibilities effectively.
I also understand the argument that the Secretary of State alone should be responsible for promoting a comprehensive health service. However, I believe that there are strong arguments that, in the interests of accountability, the NHS Commissioning Board should share this duty as far as it relates to NHS services. The NHS Commissioning Board will be the body responsible for ensuring that there is a comprehensive coverage of clinical commissioning groups covering every area of the country. It will be responsible for authorising and assessing clinical commissioning groups, providing support and guidance to them, and intervening if they run into difficulties. It falls to the NHS Commissioning Board to ensure that the continuity and quality of service provision is maintained at all times.
I am afraid that the arguments of the noble Lord, Lord Hunt, expose a clear fault line between the Government and the Opposition. We believe it is important that the board should be under the same obligation as the Secretary of State to promote a comprehensive health service in so far as this relates to the health services that the board and clinical commissioning groups will be responsible for. Let me be clear: the Bill’s provisions would in no way dilute the Secretary of State’s overarching duty. Indeed, they are intended further to reinforce the promotion of a comprehensive health service rather than to undermine it. With the general desire of noble Lords to strengthen accountability in the Bill, it seems odd that the noble Lord, Lord Hunt, should want to weaken accountability in this way, for that is what his amendment would do.
I listened to the point made by my noble friend Lord Mawhinney that this is another facet of the issues that we are going to consider in relation to Clauses 1, 4 and 10. He made a good point. Therefore, I suggest that, in the light of our intention to consider together how we approach the duty on the Secretary of State and return to this on Report, the amendment should also be withdrawn and that any consequential changes to the functions of the board or clinical commissioning groups are considered as part of those deliberations.
Lord Hunt of Kings Heath
My Lords, my noble friend should refine his amendment by limiting the number of grammatical devices that can be used.
I raised this matter because of what the noble Earl said. I raised the reported intervention by the Secretary of State in relation to primary care trusts and the concern that because of their financial issues they are essentially putting in some artificial barriers in relation to patient treatment such as having a rule that on non-urgent treatment you have to wait a certain length of time before you can be treated, and other such mechanisms. When I asked the noble Earl how this would work in the future, he told me that it would be put in the mandate. Clearly, what will happen—
Earl Howe
I am grateful to the noble Lord for giving way. If the board was not delivering the mandate, it is surely right that the Secretary of State should intervene. He has powers in the Bill to do that. Equally, if it is delivering the mandate, it is also right that it should be allowed to get on without interference from the centre. All we are saying is that the Secretary of State should be clearer about the reasons for his intervention in future. That is in everybody’s interests.
Lord Hunt of Kings Heath
Either the mandate is so detailed that you will have reams of paper telling the board what to do or the Secretary of State will rightly become concerned at issues that arise during the year. Those issues will not be covered by the mandate as they will not have been anticipated. The Secretary of State will wonder what to do and how to intervene. He will wonder whether he will be told by the national Commissioning Board, “Back off. It is nothing to do with you”, as nationalised industries used to do. This is no different from a nationalised industry. I am concerned because I believe that giving concurrent powers to the national Commissioning Board as well as to the Secretary of State will lead to a great deal of confusion, tension and ambiguity. At the end of the day I would prefer one person to be accountable—the Secretary of State. However, I am encouraged by what the noble Earl said about agreeing to look at this in the context of the other questions about the duty of the Secretary of State. I beg leave to withdraw the amendment.
Lord Greaves
It is our view that the original proposals were not working at all, and the proposals that we have now are better than the original ones. That does not mean to say that they are perfect, and it is the job of the House of Lords to check that the imperfections in them are removed before the Bill leaves your Lordships’ House.
The point that I was trying to make, which I will finally make once more, is that there is a real difference between the two meanings of “commissioning”. If you are a GP, you can commission services from an existing, static landscape or system of provision for your patients. However, commissioning services on a wider scale, commissioning the very landscape of services and the series of organisations that exist, whether it is deciding to put more money overall on a wide scale into one area of medicine and pulling back on others or just keeping the others going as they are, or whether it is financing capital projects—where to build new hospitals, new health centres or whatever it is—is very different indeed. You need bodies on a larger scale to do that. The idea that practices on their own or small groups of practices could commission that kind of undertaking on a wider scale is nonsense. You cannot rely on the market to provide them all because that will produce chaos and a lack of provision in many areas. That is why the original proposal for GP commissioning groups, which were to be quite small, simply would not have delivered at that level. The original proposals did not indicate in any way how that wider capital commissioning would take place.
Earl Howe
My Lords, this has been an excellent debate on a set of important issues, and I am glad to count my noble friend Lord Greaves as one of my staunchest supporters.
The NHS Commissioning Board is one of the key elements of our vision of a modernised NHS—a highly professional organisation, focused on quality and able to support clinical commissioning groups in delivering the best care possible to patients. I completely accept that these amendments were proposed with the best of intentions, to strengthen the way in which care is commissioned. However, in setting out why the Bill is drafted as it is, I hope that I can explain to your Lordships why I cannot accept them.
It will be key to the effectiveness of the board to ensure that it obtains sufficient advice and input from clinicians, public health experts, other professionals and those with relevant experience of the NHS—patients and the public—and that it has effective working relationships and arrangements with local authority government. We have stated our intention that there should be clinical and professional leadership on the board, but in terms of the legislative framework for the board it is an important principle to maintain that it should have autonomy of decision-making on matters such as its own membership and its structures and procedures, as far as possible, to determine how best to exercise its functions. This would include, for example, whether it has a vice-chair or a senior independent director, as Amendment 52B suggests.
One thing is absolutely clear. Members of the board will, in practice, need to have a range of skills, knowledge and experience appropriate to the issues faced by the board. Ensuring the right balance of non-executive members from a variety of backgrounds is key to achieving a successful board. But if the majority of non-executives were required to have a particular background, such as NHS experience, as suggested in Amendment 54, that might create an unbalanced board and effectively disqualify potential candidates from the private and voluntary sectors. I agreed with the most reverend Primate in what he said here. It is worth remembering that the board and its members will be expected to follow the seven principles of public life—the Nolan principles—one of which will mean that it must appoint a,
“well-informed choice of individuals who through their abilities, experience and qualities match the need of the public body in question”.
That sums it up very well.
A number of noble Lords made the point that if we require the inclusion of doctors and nurses or a public health specialist as put forward in Amendments 50, 52D, 54B and 56, what about representation on the board of dentists, pharmacists and allied health professionals? The list could go on. It would simply not be possible to accommodate all interests in the board’s membership adequately, and we would surely invite valid criticisms that one group is being prioritised over another. Nor would this be desirable from a Government’s point of view, given that the primary purpose of the members of the board is to hold the organisation to account. Nor, in my very firm view, would it be appropriate for a senior member of another organisation with a different purpose or remit, such as the chair of HealthWatch England, or indeed the Chief Medical Officer, to have a seat on the board, as suggested in Amendments 52C and 54A respectively. That could lead to a potential conflict of interest and confuse accountability. I agreed with the noble Lord, Lord Harris, on that point—although he is not in his place.
Of course, in practice, the board must have the freedom to determine how these varied and legitimate interests are best involved and represented in its work. The noble Baroness, Lady Murphy, was quite right—the board will want advice and expertise readily available to it—but that is a different issue from board membership. It is worth bearing in mind that the board will have the freedom to appoint committees and sub-committees as it considers appropriate, and this may prove useful to the board to bring in interested parties on specific issues.
A number of noble Lords asked about public health expertise. We are coming on to debate clinical senates, but one main reason for establishing them is to bring in this wider range of expertise in a way that would provide practical benefit. This would absolutely include public health expertise. We amended the duty to obtain advice to make this explicit. New Section 13J inserted by Clause 20 makes it absolutely clear that the board must obtain advice from those with professional expertise in,
“the protection or improvement of public health”.
There will be an interrelationship between the board and HealthWatch. The board must inform the body in writing of its response, or proposed response, to its advice; it must also have regard to the views, reports and recommendations of local HealthWatch.
My noble friend Lady Cumberlege asked about the size and membership of the board. The requirements in the Bill are that there is a minimum of seven members; the Secretary of State must appoint a chair and at least five other non-executives, so that is a minimum of six non-executive members. The non-executives must appoint a chief executive, who must be a member of the board. That is to say, there must be at least one executive member. Beyond that, they may appoint other executive members as long as the total of non-executives is always more than the total number of executives. The final decision on the number of other executive posts and the nature of their roles will need to be agreed with the chair and non-executive members, but it is envisaged that the other executive members besides the chief executive will include a nursing and a medical director, a director of finance, of performance and operations and of commissioning development.
All departments are required to ensure that appointments are open, transparent and made on merit. The Commissioner for Public Appointments regulates the processes by which Ministers make appointments to the boards of certain public bodies in England and Wales, and this will continue to be the case. It is not government policy to offer confirmation or affirmation hearings for public appointments, as Amendment 52A, tabled by the noble Lord, Lord Hunt, would require. These are ministerial appointments to make. The Cabinet Office maintains a list of posts that are subject to pre-appointment hearings by a House Select Committee. Ministers would consider the committee’s views, but such hearings are not binding and do not represent a power of veto. Your Lordships will be aware that we followed this process in the recent appointment of Professor Malcolm Grant as the chair of the NHS Commissioning Board.
Lord Hunt of Kings Heath
I am grateful to the noble Earl for what he said, but did he pick up my point that the Government set the precedent in relation to legislation with regard to the Office for Budget Responsibility? The Government have moved on, and I am sure that they did it because of the importance of that body. My argument is that the National Commissioning Board will be such a responsible body that there might well be an advantage in giving the Health Select Committee rather more leverage on it.
Earl Howe
My understanding is that we are following the normal procedure. There is a list of appointments that are subject to Select Committee scrutiny. Departments are consulted over the list. It is our intention that the role of the chair will be included in that—and that is exactly the same situation that applied under the previous Government. The Office for Budget Responsibility is an exceptional body in this respect, given its role in providing both government and Parliament with essential, impartial information, necessary for both bodies to be able to fulfil their responsibilities. Although I will reflect on the noble Lord’s comments, I do not know that there is the parallel that he seeks to make there.
Amendment 55 would remove the requirement from the Secretary of State to approve the appointment of a chief executive of the board. This requirement is included for the important reason that the chief executive of the board will be the accounting officer for the commissioning budget, so it is entirely appropriate that the Secretary of State should approve his or her appointment.
Lord Warner
Can I press the noble Earl a little further on that? If a chairman has been appointed for this body who has a level of experience to enable him or her to function at that level, then requiring the Secretary of State to approve the appointment of the chief executive seems to throw into doubt whether the Government have confidence in that chairman running that kind of body—they need to be able to appoint an accountable officer as their chief executive. I find this a pretty considerable vote of no confidence in the kind of people who are being appointed as chairmen.
Earl Howe
Not at all, my Lords. Of course we have confidence in the chairman. However, it is a little strange to hear from the noble Lord that he suddenlythinks the Secretary of State should not be involved in an area where he has a legitimate interest to make sure, on behalf of the taxpayer and indeed patients, that we have somebody who is capable of fulfilling the role of accounting officer. This is an important role for the Secretary of State to have.
Turning now to Amendments 57, 153ZA and 153B, let me assure the Committee, and especially the noble Lord, Lord Hunt, that we want to reduce the amount of NHS funding spent on back-office bureaucracy. That is why have made a commitment to reduce administration costs across the health system by one-third in real terms, saving £1.5 billion annually by 2014-15. All that money will be put back into patient care.
Clause 21 provides powers for the Secretary of State to impose certain limits on the overall expenditure and use of resources by the board and clinical commissioning groups, including in relation to administrative matters defined through parliamentary regulations, for the first time. The board has the power to set similar limits for individual CCGs. I see no reason to change this to a duty to do so, as Amendment 153B suggests. As the board will itself be responsible for overall administrative spending, I am sure it will want to use this power carefully. Within those limits, it should be for the board to determine how best to use the resources available to it, and to decide on its own structures and ways of working, and the number of staff that it needs to perform its functions effectively. It is not appropriate to set a staffing cap on an arm’s-length body.
How big will the board be? In a document called Developing the NHS Commissioning Board, Sir David Nicholson, chief executive-designate of the board, estimated that the board was likely to have 3,500 staff, carrying out the functions currently exercised by around 8,000 staff in the Department of Health, strategic health authorities, PCTs and a number of arm’s-length bodies that are being abolished, along with its own new functions. It will deliver these in a much more streamlined way.
Likewise, setting an arbitrary cap in the Bill on the number of clinical commissioning groups or on their expenditure on administration in comparison to PCTs is not, in our view, an appropriate means of controlling administrative costs. CCGs will be different from PCTs. They put local clinicians in charge and align clinical decisions with the financial and quality consequences. It is a little unfair of the noble Lord, Lord Hunt, to say that we are creating a complicated and bureaucratic system, and citing clinical senates and networks and health and well-being boards. Clinical senates and networks are not new organisations in their own right: they will be hosted by the board. Clinical networks already exist. Health and well-being boards are also not separate statutory organisations: they will be hosted by local authorities. We are abolishing a whole raft of bodies under this Bill, as I have said on previous occasions. It is important to bear that in mind.
I appreciate the concerns underlying Amendments 58 and 59. It is important that there should be transparency in all the workings of the board. This is why Schedule 5 to the Bill was amended in another place to include the board in paragraph 7 as a body to which the duty in Section 1 of the Public Bodies (Admission to Meetings) Act 1960 applies. This would include any annual meeting that the board may decide to hold. I say “may decide” because the Bill is clear, in new paragraph 12 in Schedule 1, that:
“The Board may regulate its own procedure”.
This would also apply to determining when it is quorate.
However, the Bill does include clear procedures around the publication of the board’s annual accounts and annual reports, to ensure transparency. The board must send its annual accounts to the Secretary of State and the Comptroller and Auditor-General. The latter must examine, certify and report on the accounts and then lay copies of the accounts and the report before Parliament. The Comptroller and Auditor-General is responsible for the audit of the accounts of all arm’s-length bodies. The board must publish an annual report and lay it before Parliament. The Secretary of State must then write to the board, providing an assessment of the board’s performance of its functions, publish the letter and lay it before Parliament. That gives an indication that there will be maximum transparency here.
Turning to Amendments 145A, 146A, 147ZA and 147C, I am afraid that I do not agree that it would be worth while to add the unusual burden of an explicit duty of consulting on a draft business plan. The board is already required in new Section 13P(2)(a) to involve and consult the public in planning its commissioning arrangements. Under a duty in new Section 13J, it is required to obtain appropriate advice to enable it effectively to discharge its functions, including the planning of how it will exercise its functions.
I hope I can reassure noble Lords that Amendments 147A and 147B are also not necessary. First, the duty to produce a business plan already provides for transparency by obliging the board to publish its plan. Secondly, while the Bill requires that the board’s annual report and annual accounts are laid before Parliament, that is part of specific processes for scrutiny of the board’s performance against the objectives it was set and the outcomes it has achieved. It is right and proper that the board should be held to account in such a way. Another clear recommendation by the NHS Future Forum was that the autonomy of the board needs to be respected. With this in mind, although it is right that the board should be required to produce a plan and for that plan to be published for all—including Parliament—to see, I am not convinced that it would be appropriate to have parliamentary scrutiny of the board’s plans or draft plans. The Bill places certain functions on the board, and it should be for the board to determine how it will seek to exercise these.
With regard to the questions asked by my noble friend Lord Greaves concerning the size of clinical commissioning groups, I respectfully suggest to him that we defer them to a later group of amendments, where this issue will come up and I shall be able to talk more about it. For now, I hope that the noble Lords are sufficiently reassured to be able to withdraw the amendment.
Lord Greaves
Before the noble Earl sits down, the question I asked about the specific role of the national Commissioning Board in relation to public health is one that he did not address. Can he tell us when he might address it?
Earl Howe
I apologise to my noble friend. The national Commissioning Board will, we envisage, be tasked with commissioning a number of public health functions by Public Health England. There will be a close relationship between Public Health England and the board. Much of the work of the board will straddle both public health and the provision of NHS services. There will be an intimate symbiosis between the two bodies.
Lord Warner
My Lords, on Amendment 50, which I seem to have moved quite a long time ago, I will consider the noble Earl’s remarks. I am grateful to noble Lords who spoke in support of Amendment 50. Public health is a rather special case and I would want to reflect, in a later debate, on the public health amendments. In the mean time, I beg leave to withdraw the amendment.
Health and Social Care Bill
Earl Howe Excerpts(13 years, 8 months ago)
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Baroness Finlay of Llandaff
I wonder whether this is one of the occasions where the organigram that we were discussing previously in Committee might be helpful. I would be grateful if the Minister could tell us in his summing up when we might expect to see that diagram.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, we heartily endorse the important role that clinical advice will play in supporting the NHS Commissioning Board in fulfilling its duties and carrying out its functions effectively. We fully expect clinical networks and the new clinical senates to make a vital contribution to this.
The Government intend that doctors, nurses and other experts from across health and social care will form clinical senates to give expert advice to commissioners. They will do this principally, although not exclusively, in two situations: senates will have a role in the authorisation of clinical commissioning groups, as well as having a role in advising on significant service change on a large geographical scale. Existing clinical networks will also be taken forward and developed and will advise on how specific services can be better designed to provide integrated and effective care. The Government are committed both to retaining and strengthening clinical networks and to using them to help ensure that a range of professionals play an integral part in the clinical commissioning of patient care. The networks will include patient and carer representatives that exist in areas such as cancer care, so that they cover many more areas of specialist care. Networks will have a stronger role in commissioning, in support of the board and local clinical commissioning groups.
Although we fully agree with the noble Lord, Lord Patel, in highlighting the important role that both clinical networks and senates will play in the new system, I cannot support his Amendment 51, nor can I support Amendment 224A, tabled by the noble Lord, Lord Hunt. The reason why I cannot accept them is the same in each case: both of them would specify the roles of networks and senates in legislation. That would restrict the range of ways in which they can operate, which in turn would limit the value that is delivered for patients.
Clinical senates and networks will not be statutory organisations, and that is why they are not referred to in the Bill. That, surely, is a positive thing. It gives them much needed flexibility in how they operate, maximising benefits for patients while minimising bureaucracy. This flexibility will allow both senates and networks to act as enablers of the commissioning system, supporting commissioners by providing them with expert advice. They will not act as another layer of management or administration which hinders progress; instead, the board will host both clinical senates and networks, allowing any supporting functions which can appropriately be shared to be organised with the least administrative bureaucracy. The review of the current system of clinical networks is identifying the features that deliver the greatest benefits, allowing the new system to build on these in a streamlined way that effectively drives improved quality and outcomes.
The board will be subject to a duty, in the proposed new Section 13J within Clause 20, to obtain appropriate advice to enable it to discharge its functions effectively. We believe that this general duty is sufficient to ensure that it seeks appropriate advice, including, of course, clinical advice. In practice, clinical networks and clinical senates will form one way in which the board fulfils this duty.
Clinical commissioning groups are also under a similar duty to seek appropriate advice. Although the board will host senates and networks, clinical commissioning groups will be closely involved in their design and functioning, as well as benefiting from their advice. It is expected that the board will issue guidance about avoiding conflict of interest where this might arise. The exact number of clinical senates is yet to be determined but they are expected to be able to offer informed, strategic advice across a health economy, which might suggest having around 15 across the country. Clinical networks will be based on patient flows rather than NHS boundaries, so variations in size will continue, but representation will always be appropriate to the remit of each network.
Baroness Williams of Crosby
I have a quick initial question. If a CCG happens to be in the area of, say, a university medical school or medical hospital, how would the process of picking who would be on the clinical senate be handled?
Earl Howe
As I have mentioned, the senates will come under the wing, so to speak, of the NHS Commissioning Board. They will effectively be part of the board. While we have yet to receive details of how the board will configure itself sub-nationally, it will clearly have to do so in ways that make sense of the local commissioning and provider architecture in an area so, where you have a university, it might well be that medical experts from that university will be part of the senate. It is too early to say, but I look forward to updating my noble friend as and when I have further particulars.
Lord Hunt of Kings Heath
I stand as a supporter of the noble Earl on the concept of senates. He is not getting much support but I agree with the point that he made that if clinical commissioning groups feel that there needs to be a wider strategic view, say on reconfiguration, the clinical senate could provide useful support. The problem is that some clinical commissioning groups may not think that there is a need for a wider strategic view because they will simply seek to defend existing provision. My argument is that you may need a mechanism which is somewhat more proactive, and which can intervene in the way that the noble Baroness's wonderful South West Thames Regional Health Authority used to do.
Earl Howe
The noble Lord could be proved right. As I have said, we will see how the functions of senates are defined. That work is ongoing. The initial proposals for the design and implementation of senates are currently being developed and initial straw-man proposals are being tested with the intention of presenting a clear set of recommendations to the top team of the special health authority later this year, so—
Lord Warner
I am sorry to interrupt the noble Earl but I am still puzzled about where he and the department are taking this concept of the senate and how it fits in with the regional specialist commissioning set-up, which already exists and which has 10 regional commissioning capabilities aligned with the SHA areas. I am not clear about whether that work is to be folded into the senates. Is it free-standing? Are the lessons all to be lost, and what are the costs of this? What does hosting the senate mean in terms of costs, because there are costs to these regional bodies that are undertaking the work on specialist commissioning? I am at a loss to understand how these two elements—the senates and the regional commissioning capability that is there now—coexist and what the cost implication is of hosting senates alongside those.
Earl Howe
I will talk in a moment about specialised commissioning and I hope the answer to the noble Lord’s question will emerge. Amendment 84, tabled by the noble Lord, Lord Patel, would require the board to commission highly specialised services, in collaboration with the sub-national clinical senates that are accountable to it.
I will not rehash my arguments around Amendments 51 and 224A, but many of the same points will apply to this amendment. Specialised services are challenging to commission; they involve complex care pathways, small numbers of providers and very small numbers of patients with rare conditions. The new NHS Commissioning Board authority will be considering options as to how it does this, including the best form for its substructures. There will be the freedom to adapt these over time and, to ensure that progress is not lost, the board will be required under existing provisions to maintain the necessary focus of clinical expertise in these highly specialised areas.
The noble Lord, Lord Hunt, asked how we ensure that clinical senates are not ignored; this is precisely why we do not want to prescribe their role in the Bill. We want senates to be enabling bodies, which is why we are inviting views on the type of advice they could provide to identify the functions of the board and CCGs where they would add value.
The noble Lord, Lord Patel, indicated that he thought the clinicians on the senate would have to come from outside the clinical commissioning group area. That is not the case; he is not correct in that assumption. There may be slight confusion with the rules we set for secondary care doctors on CCG governing bodies, who must avoid conflicts of interest, hence the need for area restrictions in that context. Experts on clinical senates can come from, in theory, all or any areas of the country. The difference between the senates and regional specialist commissioning is that the latter focuses on specialised services and nothing else. The senates could, in theory, work across all services; the two are not designed to do the same thing. The senates will be quite high level. It is expected they will be about only 15 in number, and while they may be established in a certain form they can evolve over the years to conform to the requirements that are placed upon them.
My noble friend Lady Jolly pressed me on the role of the board with regard to specialised commissioning, and I have already indicated in outline part of that role. The key point is that the board will maintain the necessary focus of clinical expertise and it will be under specific duties to obtain professional advice in the exercise of its functions. Under the regulations, the types of service the board will be required to commission will be kept under regular review. Work is going on at the moment to define what those services should be in the first instance, and I fully expect them to conform broadly to the specialised services national definition set. As my noble friend knows, the list of those services has historically changed over time and I expect the same will apply in the future.
The noble Baroness, Lady Finlay, asked about the long promised organigram. In fact, our fact sheet on the overall health and care system does have an organigram in it. It includes the NHS Commissioning Board and describes how senates and networks will be hosted by the board. I refer the noble Baroness to that sheet. The noble Lord, Lord Kakkar, asked how senates will be different to academic health science centres in their focus. In short, AHSCs are partnerships of local academic and health bodies to support innovation and excellence in that area. However, they will not be impartial; they are by definition a vested interest. Therefore, they would not be the right bodies to offer the broader perspective on how services should best be configured across a region.
I hope that noble Lords will be at least somewhat enlightened by the details I have been able to give about clinical networks and senates. As I say, this is work in progress. I make no apology for that. This was very much a recommendation that emerged from the Future Forum report. We have got on with the work needed to flesh out what these bodies should be, but we have a broad and, I hope, helpful idea of their role across the wider NHS system. I hope the noble Lord will feel able to withdraw his amendment.
Lord Patel
My Lords, I thank the Minister for his extensive reply. When I moved this amendment in the name of the noble Lord, Lord Walton of Detchant, I did not think there would be such enthusiasm to join in. I was surprised by the enthusiasm generated by his amendment, and I thank noble Lords who joined in. The most reverend Primate said this amendment was not necessary. I hope that he was not referring to the amendments that I had tabled, or I would say to him that my amendments were “zuri sana”—for those of you who do not understand, that means they were very good. He understands that.
The noble Earl has, to a degree, clarified the Government’s thinking on what the role of these senates will be. As he said, it is work in progress. Of course, we will need to wait and see what the details are. In the mean time, I beg leave to withdraw the amendment.
Lord Whitty
My Lords, I intervene briefly in this debate to ask the noble Earl whether, in his reply, he could perhaps cross-refer to a later section in the Bill, which deals with the role of one of the entities to which my noble friend Lady Wheeler has just referred, namely HealthWatch England. In any procedure for complaints, whether about treatment or the ultimate effects of commissioning on patients and the quality of service, an independent body that represents the views of the users of the health and social care system is required. There is a whole group of relevant amendments, but it is the last group printed on this list so we will probably not reach it much before Christmas. Nevertheless, within that group is a strong line that HealthWatch England should be an independent body, which means independent not only of the providers but of the regulators. In any proper complaints system—although I do not suggest that this is the only channel for complaints—you need an independent consumer view. This has stood the test of time in several other sectors. It would be a major role for HealthWatch England if it could be built into the kind of clear procedure to which the noble Baroness, Lady Jolly, referred.
Earl Howe
My Lords, this has been a valuable debate on what is an important topic by any standards. It is vital that patients feel able to raise complaints where services are not good enough. It is equally important that there are appropriate systems for ensuring that complaints and safety incidents are effectively monitored and addressed, and that wider lessons are learnt.
Amendment 57A would require the Secretary of State to create a new procedure, whereby complaints about both health and social care providers could be brought before the board. Amendment 143A would go further by giving the board a more specific role in collecting and analysing information relating to complaints about both the provision of health services and commissioning decisions by the board or clinical commissioning groups, and making this information available to the public. The current NHS and adult social care arrangements for handling individual complaints were developed to make the process of complaining quicker and simpler, and to put the focus on meeting the needs of the complainant. It is important that all NHS organisations view and manage complaints in a positive manner and use the information obtained to improve service delivery.
Under the current regulations, a complaint about poor service provision may be made either to the service provider or to the commissioner of that service. It is important that people have that choice. Someone may be deterred from making a complaint to the service provider if they consider that it may impact on their future healthcare provision. We consider it right for these general principles on complaints handling to be carried forward into the new system architecture. In future, we envisage that complaints about service provision would be made to the service provider, or to either the local clinical commissioning group or the NHS Commissioning Board, depending on which had commissioned that service. They would also deal with complaints about how they have performed their own functions.
Of course, where it proves not possible to resolve a complaint locally, the complainant has the right to refer the case to an independent arbiter. In the case of an NHS complaint, this referral is to the Health Service Ombudsman. The system of handling complaints will therefore continue to operate largely as it does now. The arrangements for monitoring complaints will also be similar. The NHS standard contract already requires all providers to report complaints information to commissioners. This information is collected by the NHS Information Centre and would be available to the NHS Commissioning Board. This is then discussed as part of the clinical review meetings between commissioners and providers, who are required by regulations to implement learning from complaints and other incidents. It will be vital that the NHS Commissioning Board is able to identify any emerging trends from this information.
In reply to the noble Lord, Lord Whitty, the board will be assisted by both the local healthwatch and HealthWatch England, which will act as a conduit for the views of service users about their experiences of complaints handling. It will also be able to make recommendations to providers and commissioners about how services and procedures could be improved. There will be a duty on NHS organisations to have regard to the recommendations of the local healthwatch, which will also put pressure on providers and commissioners to improve.
Finally regarding these amendments, the noble Baroness, Lady Wheeler, makes the valid point that it is important that information about complaints is made available to the public. Patient and service-user generated information, which includes complaints as well as information collected from patients and staff through surveys, real-time feedback, ratings of services and patient reported outcome measures, are all vital in helping patients to make informed choices about their care.
Separate arrangements currently apply in reporting patient safety incidents that have or could have resulted in harm to a patient. These are reported in anonymous form through the National Reporting and Learning Service, operated by the National Patient Safety Agency. Safety has to be the key priority of all those working in the health service. We cannot allow it to be an add-on or an afterthought. Patients rightly expect that any service provided with NHS funding will be safe.
For this reason, we want to put safety at the heart of the NHS by transferring these functions from the NPSA to the NHS Commissioning Board. Clause 275 therefore makes provision to abolish the NPSA as part of our plans to reduce the number of arm’s-length bodies. Instead, new Section 13Q, which Amendment 143B seeks to remove, gives the NHS Commissioning Board responsibility for those functions currently carried out by the National Patient Safety Agency. This is in relation to collecting information about patient safety incidents, analysis of that information and sharing the resulting learning within the NHS and more widely.
Safety is, of course, another of the core domains of quality. We believe that the NHS Commissioning Board, as the body that will be legally responsible for ensuring continuous quality improvement in the NHS, will be best placed to ensure that this learning is translated into improved practice. Its unique perspective will allow it to ensure that appropriate levers are used to drive safety improvement across the system. Bringing safety right into the core of commissioning activity in this way is the most powerful way of driving a safety agenda through the NHS.
Lord Patel
Before the Minister sits down, will he please confirm that the primary care doctors and the primary care team will also be obliged to report patient safety incidents?
Earl Howe
My understanding is that that is the intention. The clinical commissioning group will wish to monitor the quality of service provided by its member practices and the outcomes that those practices achieve. As part of that monitoring we fully expect that safety will be a core component.
Lord Greaves
Before my noble friend replies to this group of amendments, I hope that I may ask the Minister a question on something on which I confess total ignorance. The Minister said that many of the functions of the National Patient Safety Agency in collecting statistical information would be transferred to the national Commissioning Board. What other functions does it have and what will happen to them?
Baroness Jolly
I thank the noble Earl for his reply, the noble Baroness, Lady Wheeler, for her commitment to quality and the noble Lord, Lord Whitty, for the patient voice input. I beg leave to withdraw the amendment.
Lord Davies of Stamford
My Lords, what I want to say might have been a little long as an intervention in the Minister’s speech but it will be very short as a speech. I simply want to ask the noble Earl, when he replies to this debate, to address in a considered way how the Government intend to deal with an enormously significant and worrying conflict of professional interest that could arise in this context. Anyone who is a member of a clinical commissioning group, whether he or she is a GP or not, must presumably be committed and signed up to the priorities, policies and plans of that clinical commissioning group. However, where that individual is also a GP who has his or her own patients, some of those patients may have conditions that do not get a very high priority in those plans and policies. Surely there is an immediate conflict of interest. In the present circumstances, the GP can say to his or her patient: “I am doing my best to battle with the PCT to get the treatment that I really think you need”. However, in the situation that arises as a result of the structure in this Bill, that GP would be on both sides of the table. He would be arguing with himself and making representations to himself. Surely the noble Earl would agree that it is a thoroughly unsatisfactory situation. Can he assure the Committee that it will not arise and, if it does, that the Government have a clear set of rules or procedures for dealing with it?
Earl Howe
My Lords, we have had another well informed and stimulating debate. I will start by going back to the beginning. On paper, clinical commissioning groups can seem like a dry concept, but I would encourage your Lordships to look beyond the words and duties on the page and consider what CCGs will be able to achieve in practice. GPs and other front-line professionals already make the clinical decisions that determine how most NHS resources are used. Putting them in charge of shaping services will enable NHS funding to be spent effectively to provide high-quality care.
I have seen at first hand the work of primary care clinicians—GPs, nurses, allied health professionals and others—in leading the commissioning of services. I have been struck on numerous occasions by their dynamism, innovation and their absolute dedication to ensuring that their patients receive high quality care. It is in that context that we should consider our debates on this topic, including this one, which have focused primarily on ensuring that CCGs have effective governance arrangements, but have also touched upon CCG boundaries.
I do not agree with the noble Baroness, Lady Armstrong, that the arrangements are weak. We have already responded to the Future Forum’s recommendation to strengthen the Government’s arrangements for CCGs and made it a requirement for every CCG to have a governing body. We recognise that good governance will be critical to the design and operation of CCGs, in order that they act transparently, manage conflicts of interest and have the proper checks and balances in place to provide assurance that decisions are taken in ways that protect patients' best interests, promote continual improvements in quality and provide assurance that public money is well spent.
That is why I believe that the Bill already achieves the intent of Amendment 60, which would place the Secretary of State under a duty to publish a code of conduct for CCGs, incorporating the Nolan principles on public life. I am fully in support of CCGs adhering to the principles established by the Committee on Standards in Public Life. However, new Section 14L already states that the main function of a governing body of a CCG includes ensuring that the group complies—and these were the words quoted by the noble Lord, Lord Warner—
“with such generally accepted principles of good governance as are relevant to it”.
The Nolan principles, or any successor principles which the Committee on Standards in Public Life or another body was to issue, would be foremost among these. However, the provision in the Bill will also encompass any other relevant, generally accepted principles of good governance issued by appropriate bodies, such as the Institute of Good Governance, and therefore has the potential to be of wider effect. That is why I feel that Amendment 171 is also unnecessary, as it appreciably narrows the field of vision of the governing body.
In addition, the Bill already sets out other provisions which relate to a CCG’s conduct. For example, with respect to the constitution of a CCG, the constitution must include arrangements for ensuring absolute transparency. It must specify the arrangements for discharging the CCG’s functions, its decision-making process, how it will secure transparency about the decisions of the group, and how it will deal with conflicts of interest of members and employees of the CCG or members of the governing body.
Lord Warner
I am sorry to interrupt the noble Earl, but I was aware of that. My concern was that it seemed to leave to clinical commissioning groups the decision on what type of information they put in that. They could put in a whole load of information that was not comparable with any other clinical commissioning group. The whole point of my amendment was that there should be a level of standardisation so that we could see the different levels of performance in different CCGs.
Earl Howe
My Lords, I take that point on board. It is my understanding that the NHS Commissioning Board will wish to set common standards for CCGs to follow. However, I will follow up that point with the noble Lord. As I said, the Bill requires each CCG to prepare annual accounts, independently audited. The board may, with the approval of the Secretary of State, direct CCGs as to the methods and principles according to which their accounts must be prepared, and the form and content of such accounts. Therefore, there will be scope for the board to drive consistency in the area the noble Lord mentions.
I turn now to Amendments 169, 175BA, 175C and 101A, which concern membership of, and appointments to, CCG governing bodies. In response to amendment 169, as the Bill stands, under new Section 14N, regulations may already provide that members of governing bodies must include the accountable officer of the CCG. Paragraph 11 of Schedule 1A also specifies that the accountable officer may be one of the following: a member of the CCG, or an employee of the CCG or any member of the group. Restricting the accountable officer to being the “most suitable senior employee” of the group, as Amendment 169 also proposes, would narrow who the officer could be and ignore other able candidates, so I am not attracted to that amendment.
Amendment 175BA, and Amendments 175A and 175B, which we will be discussing in more detail in a future group, clearly intend to ensure CCGs have access to professional or other expertise to advise on all areas of their work. This is undoubtedly important, but the governing body is not the route to achieve this. As the Future Forum advised, a clear distinction should be made between governance of CCGs and clinical involvement in designing care pathways and shaping local services.
Clinical involvement in designing pathways or shaping services is exactly what a CCG will need to ensure in exercising its duty in new Section 14V, which requires a CCG to obtain advice appropriate for enabling it effectively to discharge its functions from individuals, who, taken together, have a broad range of professional expertise.
Clinical senates and networks will, of course, be crucial to effectively meeting this duty and to ensuring that CCGs can access specialised advice, as will the local knowledge and public health knowledge held by health and well-being boards. We believe there is a case for ensuring that governing bodies include the voices of some other professionals—at least one registered nurse and a secondary care specialist—but it would be unhelpful, as the Future Forum also acknowledged, for governing bodies to be representative of each group. That could lead to bodies that are too large and slow to do their job well. CCGs should have the flexibility to determine the professional input into their governance arrangements.
Amendment 175C would provide for regulations to be made setting out how lay members are recruited and remunerated. Subsection (3) of new Section 14N already makes provisions as to the appointment of members, including lay members, to the governing body. Paragraph 12 of Schedule 1A allows the CCG to pay members of its governing body such remuneration and other expenses as it considers appropriate. These existing provisions cover the intent of Amendment 175C.
Lord Hunt of Kings Heath
My Lords, can the noble Earl assure me that the appointments will be made by independent bodies, and that it will not be a case of the board of the CCG making the appointments to itself? In terms of corporate governance, can he also assure me that non-executives will be in a majority as they are on every public body which the Government have recently enacted?
Earl Howe
If the noble Lord will allow me, I will answer those questions in a moment. Amendment 101A would similarly duplicate existing provision by placing a duty on the NHS Commissioning Board to ensure that all CCG governing bodies meet the requirements for clinical and non-clinical representation. The board already has to do this; under proposed new Section 14C, the board can grant an application only if it is satisfied that the applicant CCG has made appropriate arrangements to ensure that the group will have a governing body which satisfies any requirements imposed by or under the Act. That would include regulations made under proposed new Section 14N providing for minimum levels of clinical and lay representation.
Amendments 170A, 175D, 175CA and 175CB seek to introduce alternative governance arrangements for CCGs. These amendments would remove the existing functions of the CCG governing body and, through the proposed new schedule, replace the governing body with both a board of directors and a board of governors. I was grateful to the noble Lord for explaining where this idea originated. However, the amendments do not propose functions for these boards to exercise. They concentrate almost solely on the form of CCG governance; they neglect the function. As to that form, there is much here which is already provided for in the Bill and in relation to a governing body. I should perhaps explain that our preferred approach is to set through regulations the key requirements in relation to the composition of the CCG governing body and the logistics of their qualification, appointment, tenure and so on. This will, most importantly, allow flexibility for the approach to evolve over time and in the light of experience.
Turning to Amendment 59A on the subject of the area covered by CCGs, in the light of our lengthy debate on this last week, a letter will shortly reach your Lordships to provide further information on the arrangements for geographic areas of CCGs. It includes some analysis of the key issues which I hope will be useful and reassuring. We accepted the Future Forum recommendation that the boundaries of CCGs should not normally cross those of local authorities. If a CCG wishes to be established on the basis of boundaries that will cross local authority boundaries, it will be expected to demonstrate to the NHS Commissioning Board a clear rationale in terms of benefits for patients; for example, to reflect local patient flows and to secure a better service for patients. The board will also be required to seek the views of emerging health and well-being boards. In addition, CCGs will have the flexibility to enter into lead or joint commissioning arrangements with other CCGs; for example, for commissioning of lower volume or more specialist services. I hope that this reassurance will satisfy the noble Lord’s concerns.
Finally, Amendment 92ZZA seeks to mandate the Secretary of State to make regulations imposing a ban on shareholders and employees of commissioning support organisations being given a seat on a CCG committee or governing body of a CCG—I assume that it is the governing body that the amendment refers to rather than the NHS Commissioning Board. We agree that there should be no conflicts of interest between a CCG and any commissioning support organisation that it uses. The support offered by such organisations should inform decisions made by CCGs, but we have always been clear that CCGs cannot delegate their duties or responsibilities. However, such an absolute ban would not take into account situations, for example, where a CCG may wish to invite individual employees from commissioning support organisations to provide expertise on a committee. The Bill already requires CCGs to have robust provision for managing conflicts of interest in how they discharge their functions.
It is clear from the debate that these amendments were proposed with the best of intentions, but I hope that noble Lords will feel that the points that I have made are sufficiently compelling to encourage them not to press the amendments.
I have a few questions that I would like to answer briefly. The noble Lord, Lord Hunt, suggested that the chair and deputy chairs of CCGs should be lay members. Each CCG must have at least two lay members. We are specifying that, and we have committed that one of the lay members of CCGs will be either the chair or the deputy chair of the governing body.
The noble Lord, Lord Rea, asked me how a CCG’s geographic area would be determined. The primary factor in establishing the CCG’s boundaries or geographic area would be the practices that made up the membership of the CCG. The NHS Commissioning Board must satisfy itself that the proposed area for a CCG is appropriate and that the CCG can commission effectively for that area. That is a very condensed explanation of what the Commissioning Board will be looking for.
The noble Lord, Lord Hunt, suggested that he could not understand how CCGs would be accountable. Accountability is a key area. There is no doubt about that and I share the noble Lord’s desire to get this right. We listened to the Future Forum when it said that there is a balance to be struck between the need for good governance and the need to avoid overprescription. Perhaps that is a generally accepted principle—I certainly agree with that. I think the amendment of the noble Lord, Lord Hunt, goes too far. However, we are absolutely clear that CCGs will be materially accountable in a number of ways. I could recite a number of ways that I have in front of me, but at this hour it might be appropriate for the noble Lord to receive that in writing from me. I would be happy to do that and to copy it round.
On the subject of conflicts of interest, we will be having a very full debate in the context of Clause 20 on conflicts of interest. I have a lot of material here, but essentially there are principally three safeguards in the Bill to prevent conflicts of interest: statutory requirements on clinical commissioning groups to have in place arrangements to manage those conflicts of interest—those have got to be set out in the group constitution; secondly, strengthened governance arrangements as regards the governing body, and I briefly outlined those; and specific provision for regulations to require that the board and the clinical commissioning groups adhere to good practice in relation to procurement and in commissioning healthcare services.
My noble friend Lady Jolly asked who will appoint members of the clinical commissioning group boards. We will work with patient and professional groups and with emerging clinical commissioning groups to determine the best arrangements for appointing members of governing bodies. As I have indicated, the Government will issue regulations in due course, setting out in more detail the requirements for appointing non-GP members to the governing body.
The noble Lord, Lord Hunt, asked whether non-executives would be in the majority on boards. I am not currently able to give that assurance. We are still working with a wide range of stakeholders on the regulations for governing bodies. We are well aware of concerns in this area. I will take the noble Lord’s points very firmly on board.
Very briefly in this group, I would also like to speak to government Amendments 172, 173 and 175, which are minor and technical in nature. Amendment 172 clarifies that the remuneration committee of the CCG governing body has the function of making recommendations to the governing body on its determination of allowances payable under a pension scheme established by the CCG for its employees under paragraph 10(4) of Schedule 1A. Government Amendment 172 allows regulations made under new Section 14L(6) to make provision requiring CCGs to publish prescribed information relating to determinations of the allowances payable under a pension scheme. Government Amendment 173 makes provision for the board to publish guidance for governing bodies on the exercise of this function. I trust the Committee will join me in supporting these minor and technical amendments.
Lord Whitty
My Lords, I thank the Minister for that detailed reply to what has been a fascinating debate. I fear, however, that he will have to return to a number of these issues.
The issues of accountability, governance, conflicts of interest and transparency are about confidence in the new system—not only confidence in this House but confidence in the population. The issue of coterminosity—which I thought was a word I had invented but I am glad that others took it up—is also vital to that because people understand the county boundary and where the services are and that there is a relationship between them. I am grateful for the Minister’s offer of a letter on the geographic boundaries but, before we complete the consideration of the Bill, we will have to be clear what the relationship between local authorities, providers of social services, those responsible for public and environmental health and the new CCGs is going to be. That also is an issue of confidence and understanding by the population and the people who use the health service.
Having said that at this hour of the night—I note the Chief Whip’s impatience—I beg leave to withdraw the amendment.
NHS: Hinchingbrooke Hospital
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Baroness Thornton
My Lords, I beg leave to ask a Question of which I have given private notice.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, we do not know Circle's profit margin. I can, however, explain the basis on which Circle will be paid. Circle will effectively receive a success fee for bringing the trust into surplus and keeping it there. If Circle does not make the trust operate at a surplus, it will not receive any fee and it will lose money on the transaction. Circle will receive all surpluses up to the first £2 million of any year's surplus, and then a share of surpluses of more than £2 million to keep it incentivised to generate the further surpluses that the trust will retain.
Baroness Thornton
I thank the noble Earl for that comprehensive explanation of taxpayers’ money. The issues I want to address are ones of transparency in process and criteria. Will the Minister provide details—I do not expect them this morning—of the meetings and minutes of meetings between Ministers, civil servants and Circle Health Ltd, and meetings with Mark Simmonds, MP, who is a paid adviser to Circle and a former member of the Conservative Front Bench? How will the Department of Health know whether this is a good deal? I can see how we will know whether Circle has made a profit or not. What is the objective here? Will a clinical as well as a financial audit be built in, and will those results be made public? In other words, how will the taxpayer know whether this is a good deal?
Earl Howe
I will, of course, write to the noble Baroness with detailed answers to the first part of her question, which would take too long for me to answer now. I can say that this is a transfer of risk to the private sector. That is why it is a good deal. It is also a good deal in another sense, because patients will still have a hospital in Hinchingbrooke. This is a hospital that in common parlance could be described as a financial and clinical basket case. No NHS bidders were willing to take it on. When the previous Administration left office, only independent sector operators were in the frame to do so. We therefore knew at the last election that there would be an independent sector solution. I think that it is a win-win situation all round. It is good news for Hinchingbrooke patients, and I understand that under normal Freedom of Information Act rules the contract involved will be made available, subject to commercially confidential details being redacted.
Baroness Jolly
My Lords, will the Minister please tell the House who was consulted in making this decision and what sort of support was found among the local community and hospital staff?
Earl Howe
My Lords, there was extensive consultation, but the important point for my noble friend to understand is that this was a locally led process. Ministers—and, for that matter, civil servants in the department—were not involved in the decision process. The decision was made by the strategic health authority board and the recommendation then came to Ministers. However, I can tell my noble friend that support for this decision has been very widespread, not least among the medical community in the area.
Lord Laming
My Lords, will this hospital continue to provide the same range of facilities as it does now? I understand that it does not provide A&E, for example, but will it be given the freedom to reduce the range of services in the future or will it have to carry on with the same services that it provides now?
Earl Howe
My Lords, as part of the franchise, Circle is committed to maintaining the current level of services, including accident and emergency and maternity services, as long as commissioners continue to purchase them for local patients—a commitment made following a consultation in 2007. Any proposals for a significant change to the services provided at the hospital will be subject to public consultation, as with any NHS hospital.
Baroness Knight of Collingtree
My Lords, am I correct in deducing from what my noble friend has said that the choice was either no easy future for this hospital or the course that is now being adopted?
Earl Howe
My Lords, so serious were the problems of Hinchingbrooke, both clinically and financially, that frankly the alternative to a franchising solution might have been closure of the hospital. I think that Ministers in the previous Administration reached that conclusion. It is one of the largest accumulated deficits that we have ever seen in any hospital. The problems facing Hinchingbrooke are therefore very significant.
Lord Beecham
My Lords, given the number of trusts that are in financial difficulties, can the Minister indicate whether he anticipates any further moves of this kind? If so, what processes would the department wish to see in place to ensure both value for money for the taxpayer and the highest possible clinical standards after any such transfer of responsibility?
Earl Howe
My Lords, we do not envisage any other solution of this kind in any other trust. Of course, close monitoring will be necessary, and the contract with Circle is very clear in this instance—it has to perform according to the specification. As I said earlier, if it does not turn the hospital around, the financial risk up to £5 million of deficit, cumulatively, lies with it. I believe that this is extremely advantageous for the taxpayer. On the clinical side, of course the CQC will be extremely concerned to ensure that quality of care is not just turned round but significantly improved.
Baroness Finlay of Llandaff
My Lords, can the Minister tell us how often Circle is reporting to the CQC on the clinical outcomes, given that there have been clinical problems at this hospital, how often it is reporting on the financial turnaround and to whom it is reporting?
Lord Avebury
My Lords, if it is this easy for a private company to make the necessary economies to put this hospital back on course without compromising patient care, as was claimed by the spokesman on the “Today” programme this morning, can the noble Lord say why—a question that was not answered on that programme—the NHS could not make those economies itself?
Earl Howe
The previous Government tried very hard to put an NHS solution in place. As I mentioned, by the time they left office no NHS provider was willing to step in and say that it was capable of turning Hinchingbrooke around—the problems were that serious. Given that situation, an independent sector solution was the only one on the table.
Lord Haskel
I do not want to sound like a penny-pinching accountant, but exactly how do you work out profit on a hospital? How do you work out a surplus? What about capital expenditure? What about depreciation? What about all these other things that are involved? Have all these things been worked out?
Lord Woolmer of Leeds
My Lords, the Minister referred to an accumulated deficit. What is that deficit at this point? Will the contract require the new providers to ensure that that accumulated deficit is, over the years, paid off, or is it to be written off at the point at which the new provider takes over?
Lord MacKenzie of Culkein
I understood the chief executive officer of Circle Health Ltd to say on television this morning that his organisation was a social enterprise on the Waitrose model. My understanding of Waitrose is that all employees are partners and that profits are either paid back to the partners or reinvested in the company. Is that the situation with Circle Health Ltd?
Health and Social Care Bill
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Lord Warner
The noble Earl is taking this clause out of the Committee stage, so far as I understand his proposal. If the strategy is to take clauses out when the going gets rough, that does not seem to be in keeping with the spirit and behaviour of this House.
Earl Howe
My Lords, I have no desire to take this clause out of the Committee proceedings. These proceedings are continuing. We have heard the noble Lord and his views, and I look forward to hearing other noble Lords. I am not in the least desirous of inhibiting debate on this clause, which I think is very valuable. However, perhaps noble Lords will consider that, in view of the undertaking that I gave on 2 November, there is a certain amount that need not be said today because I have undertaken to look at this clause on a cross-party basis and with an open mind. It is a clause that the Government were and are satisfied with and they believe that it can stand as worded without amendment. However, I appear to be accused of being too concessionary on this. It is a case of the Government being damned if we do one thing and damned if we do the opposite.
I felt that my offer to the Committee was helpful. I think that there is concern around the Chamber about this matter and I can only repeat my offer to look at that concern and, if we can reach an agreement, to put beyond doubt the fact that these clauses do what I believe many noble Lords wish them to do. I hope that in that spirit the noble Lord, Lord Warner, will agree that, while we can debate the clause today for as long as we wish, the offer is there on the table from the Government to engage in cross-party discussions with a view to reaching consensus.
Earl Howe
My Lords, I, too, think this has been a very valuable debate and I thank all noble Lords for their contributions to it. I do mean that. Ministers always like to hear support, and I have had some of that today, but at the same time no self-respecting Minister would wish to brush aside the kinds of concerns that have been voiced this afternoon about the effect of this clause. I certainly do not wish to do that; hence my offer to engage in discussions with those noble Lords whose concerned voices have been heard.
Following the consensus that we reached at last week’s Committee session on that proposal, I express the hope that the noble Lord will feel able to withdraw his amendment at the end of this debate and that we will use the time between now and Report to reflect on the concerns that we have heard expressed about Clause 4—and, indeed, on Clause 1 last week. I recall from discussions in the Chamber on 2 November that the Committee had little appetite to hear me dwell on Clause 1 or the amendments to it. I am therefore going to keep my remarks brief. However, I hope that the Committee will find it helpful if I provide a bit of context to this clause.
As I said at Second Reading, our proposals for the NHS involve a fundamental shift in the balance of power away from politicians and on to patients themselves, as well as to doctors and other health professionals. This is not an abdication or divestment of power by politicians but a shift. I think that we all agree that empowering front-line organisations offers enormous potential to unleash innovation and to drive up the efficiency and quality of services. The noble Lord, Lord Darzi, to my mind, said it all. That is why the Bill retains the key powers that the Secretary of State needs in order to remain properly accountable but removes his current sweeping powers to delegate and give directions to other bodies.
Instead, the Bill sets out roles and responsibilities in primary legislation that local commissioning will be carried out by clinical commissioning groups—with their own distinct statutory duties, set by Parliament—rather than by PCTs acting under the direction of the Minister of the day. Ministers will have specific but extensive powers to set requirements for commissioners, in particular through the mandate to the NHS Commissioning Board and through regulations known as standing rules. As the noble Lord, Lord Warner, observed, I am sure that we will give some thought to the impact of the autonomy duty when, in future Committee sessions, we debate the clauses that give the Secretary of State these powers.
However, there is a clear need for Ministers to have sufficient flexibility to respond to changing circumstances in the health service. Given that, there is very little limit on what or how many objectives or requirements the Secretary of State can impose. That leaves open the risk that a Government—or indeed the board, which has an equivalent duty at Clause 20—could introduce process targets or burdensome rules that inappropriately interfere with front-line clinical decision-making. That is the last thing anyone wants. To my mind, this makes it vital to have some kind of countervailing force to establish the principle that Ministers should use their powers carefully. We believe that the autonomy duty provides this important safeguard, enabling organisations to act in the best interests of patients, free from the risk that Ministers or the board revert to a command-and-control style in order to achieve their objectives. The noble Baroness, Lady Murphy, put the point very well.
The duty is therefore an important symbol of the shift of power that the Bill seeks to achieve. I agree with my noble friend Lord Marks that the autonomy duty must be subsidiary to the general duties of the Secretary of State, including, in particular, his duties under Clause 1 of the Bill to promote a comprehensive health service and to exercise his functions so as to secure the provision of services. Although we believe that the duty of autonomy would not inhibit the Secretary of State in exercising his overarching powers and duties as set out in Clause 1, I recognise, as I say, that there are concerns about legal clarity. I therefore welcome the prospect of further discussions with my noble friend and other noble Lords outside this Chamber as to how we might put this matter beyond doubt.
Baroness Jay of Paddington
My Lords, I apologise for interrupting during the Minister’s conclusion but I hope this will be helpful. I want to explore whether he can just help me by describing what he sees as the scope of these discussions, in terms of the clauses to be discussed. As the noble Lord, Lord Marks of Henley-on-Thames, pointed out for example in his very helpful intervention when he made passing reference to it, the proposed new Section 13F of the 2006 Act, at Clause 20 in the Bill, is very relevant. It may be helpful to the House to know that the Constitution Committee was invited to look at this again. We have met since the last day of Committee and have agreed to look again at Clauses 1, 4, 10 and 20 precisely because of that interrelated matter. Could the Minister help us on that?
Earl Howe
I am grateful to the noble Baroness. As she has indicated, there is certainly a read-across from Clause 4 into Clause 20, and I readily accept the suggestion that we should factor in issues that emerge from Clause 10.
I am clear that a successful process will be one that can take account of views from all political parties and the Cross Benches. As well as hearing in full from those Peers, many of whom have put their names to amendments and have become particular experts on this issue, there is also an implicit legal perspective to this and I believe that an important building block will be to engage with the Constitution Committee of your Lordships’ House and other legal experts in this House on these points. To start that dialogue, I propose to meet next week with a number of noble Lords, if they are willing, to explore the process for going forward. Following that, I will write again to all Peers setting out the proposed process in more detail. I hope that that is helpful.
I have very clear answers for the noble Lords, Lord Patel and Lord Warner, and other noble Lords to the concerns that they have raised. However, for the reasons that I have set out, if they will bear with me, I shall refrain now from providing a detailed commentary on the amendments in this group. I hope that, with the prospect of future discussions that will factor in the valuable points in this debate, the noble Lord will feel able, for the time being, to withdraw his amendment.
Lord Warner
My Lords, there is a film showing in local cinemas called “We Need to Talk About Kevin”; I think that this excellent debate has shown that we do indeed need to talk about Clause 4. I do not intend to comment on all the excellent contributions that have been made. I just want to say two things in conclusion.
I think that the noble Lord, Lord Marks, has provided an excellent forensic analysis of what is wrong with this clause. My personal view is that he has holed this clause below the water-line. I hope that the Minister, in conducting these cross-party discussions, will really keep in the front of his mind the easy solution that the noble Lord, Lord Marks, has helpfully given to the Committee, which is that we simply drop the clause.
Secondly, I would say to the noble Baroness, Lady Cumberlege, that I do not disagree with her about many of the issues that she raised. However, if she is really concerned about reducing political interference in decisions on service reconfiguration, I would direct her towards Amendment 304 in the names of myself, the noble Lord, Lord Patel, and the noble Baroness, Lady Murphy. There is room for another name on that amendment, which will indeed actually reduce political interference in this area. So I commend it to her. In the mean time, I beg leave to withdraw the amendment.
Lord Hunt of Kings Heath
My Lords, this has been a very interesting debate, and I am very grateful to the noble Lord, Lord Willis, and other noble Lords who have spoken in it very persuasively about the importance of research.
At heart, there are three particular questions that we put to the noble Earl, Lord Howe. First, how is funding for research to be protected? Secondly, how are we to ensure that strong leadership will be given from the centre? The third is the question of levers. What levers are there in this system to ensure that research is given a prominent place?
First, there can be no doubt whatsoever, as the noble Lord, Lord Willis, said, of the direct link between research and the quality of patient care. That must be at the forefront of our consideration. Secondly, he is also right about public health. Research into public health, evidence and epidemiology is vital if we are to improve the overall health of people living in this country. Thirdly, we have the contribution that research makes to UK plc, and specifically the contribution of the pharmaceutical industry.
When I chaired the competitive taskforce with the industry some years ago, we found that out of the 100 most important branded medicines at the time, 30 had been developed in the UK. Although the UK share of global spend on pharmaceuticals was about 2 per cent, our R&D contribution, including that of the industry, was about 10 per cent. I suspect that those figures have slipped a little since that report, but there is no question that the pharmaceutical industry in particular makes a huge contribution to our economy. We cannot be complacent about that in the future.
On the question of leadership, I was fortunate to be present at the recent annual conference of the NHS Confederation. I take the point made by the noble Lord, Lord Mawhinney, that, “They would say that, wouldn’t they”, when it comes to this rather foolish idea that somehow if you just leave it to them everything will be all right, but I recall a speech made by Dame Sally Davies in which she talked about the importance of research. She argued that the NHS itself has to make a greater contribution to research. This was not about funding; this was about NHS organisations recognising that research was important. It was a brilliant speech. It is essential that we continue to have that kind of national leadership in research funding.
There is a big question about what exactly the duty of the Secretary of State will be with regard to research if we end up with a highly devolved structure in which the levers left to the Secretary of State will clearly be limited. It is clear that the day-to-day concerns of most people in the NHS are going to be diverted into a market-orientated culture, where, frankly, the kind of collaboration that research requires across NHS organisations may well be regarded as collusive behaviour by economic regulators and the competition authorities.
I speak with some experience of economic regulation. Ofgem was the last economic regulator with which I had regular dealings as Minister for Energy. What struck me was that regulators’ concerns are much more about day-to-day issues than they are about the long-term viability of a particular industry. We found, with Ofgem, that we had to change the law to make sure that it had some regard to future customers rather than simply being concerned about the actual price of energy to the customers of today. If we have regulators whose main concern is about driving day-to-day competition, I wonder where issues of research come into play.
Lord Hunt of Kings Heath
Yes my Lords, but so was the overriding duty of Ofgem to the customer. The problem is how a regulator defines that responsibility. Since the Government are intent on this very foolish drive into competition, I believe that the risk is that the regulator will also be driven into thinking that that is its most important aim.
There are some real questions here, which I put to the noble Earl, about ensuring that there is sufficient concern, investment and leadership on the question of research. I would also ask the noble Earl how we protect and ring-fence the research budget. I ask him to think of the national Commissioning Board, faced with a hard winter, huge public concern and political pressure about funding, and the temptation to dip into the research budget. We all know that that happens. My noble friend Lord Warner and I were debating earlier who was responsible when there was real pressure on the training commissions. I thought it was my noble friend, actually, but we can continue to debate that.
Earl Howe
My Lords, I agree that this has been an absolutely excellent debate and I have listened very carefully to all the contributions.
Clause 5 places a duty on the Secretary of State, for the first time, to have regard to the need to promote research within the health service. It also places equivalent duties on the Commissioning Board and clinical commissioning groups. The duty applies to research into matters relevant to the health service—I shall come on to that phrase later—and the use within the health service of evidence obtained from research.
I turn straight away to the amendments, beginning with Amendments 39 and 199ZA together, as they make the same changes to the research duties on the Secretary of State and clinical commissioning groups. Amendment 39, tabled by my noble friend Lord Willis and the noble Baroness, Lady Morgan, would require the Secretary of State to promote research within the health service and to promote the use of the evidence obtained from that research. The Bill as drafted requires the Secretary of State to have regard to the need to promote research in the health service. This means that the Secretary of State must bear in mind the importance of research when exercising any of his functions and consider how the exercise of those functions might in itself promote research or how it might influence the promotion of research by others. I have reflected on these two amendments and I can tell noble Lords that I sympathise with the arguments behind them. Of course, I fully recognise the importance of ensuring that research is promoted within the health service. Therefore, I now give a commitment, following this debate, to undertake a closer consideration of this duty.
Amendment 40, tabled by the noble Lords, Lord Warner and Lord Patel, requires the Secretary of State to have regard to the need to develop research findings for clinical application in the health service. I agree with the noble Lords that this emphasis is important. We need to ensure that, wherever possible, research outcomes are translated into clinical practice. This is how the health service moves forward. The noble Lord, Lord Walton, as so often, was completely right in all that he said on that subject. As the duty is currently drafted, the Secretary of State is already required to have regard to the need to promote the use of evidence obtained from research. Therefore, we believe that this amendment would duplicate the existing duty.
Amendment 40 also refers to the need to ensure that staff have the relevant training and support where new technologies are introduced. We have brought forward an amendment to introduce a duty on the Secretary of State to exercise his functions so as to secure an effective system for education and training within the health service. The word “effective” is there for a purpose. Similarly, the NHS constitution makes a public pledge that all NHS providers should provide all their staff with access to appropriate training for their jobs, together with line management support to succeed. Therefore, again, in my view this amendment is unnecessary.
It may also help to reassure noble Lords if I refer to our consultation document, An Information Revolution. In this, we state that information management and IT capability are essential if we are to achieve improved healthcare outcomes. Our forthcoming information strategy will recognise the importance of informatics skills within the health service, and I hope that this will reassure noble Lords—in particular, the noble Lord, Lord Warner—that we are fully aware of the need to ensure that staff are able to maximise the benefits that new technologies can offer.
I now turn to Amendment 41, also tabled by my noble friend Lord Willis and the noble Baroness, Lady Morgan. This amendment would place an additional requirement on the Secretary of State to promote research into public health issues. Again, I agree with the principle behind the amendment—it is indeed true that advances in public health are shaped by research and evidence, and the noble Lord, Lord Turnberg, gave us a number of examples. In fact, this amendment can be dealt with quite simply. The duty on the Secretary of State, the board and clinical commissioning groups to have regard to the need to promote research applies to “the health service”. That phrase encompasses both the NHS and public health services, and therefore the duties already apply to public health.
There are other clauses in the Bill that focus specifically on research into health protection. Clause 8 lists research and other steps,
“for advancing knowledge and understanding”,
as examples of action that the Secretary of State may take under his wider duty in relation to protecting public health. Clause 14(13) expressly gives the Secretary of State, the NHS and local authorities the power to commission or assist research.
My noble friend Lord Willis asked me how the duty on the Secretary of State would be fulfilled in practice. It may be helpful if I briefly set out the work that is going on beyond the Bill to ensure that research is embedded in the new system. The department has recently published a document setting out initial proposals for the NHS Commissioning Board. Among other things, it emphasises that, to fulfil its purpose, the board should support,
“a culture which promotes research and innovation”.
There is also a clear indication in the department’s document, Developing Clinical Commissioning Groups: Towards Authorisation, that clinical commissioning groups will be expected to demonstrate how they will promote research. These documents can be found on the Department of Health’s website. I should be very happy to expand on this in a letter to my noble friend and other noble Lords.
In this area the noble Baroness, Lady Finlay, asked what the levers for research would be, and that question was echoed by a number of other noble Lords. I will expand on this in writing, but there are a number of parallel levers across government that will do this, ensuring that the UK’s commercial and industrial landscape is, as the noble Lord, Lord Hunt, rightly emphasised, an attractive place to do research, and that we do not neglect any aspect of research—basic, translational and clinical—so it is about research across the piece. It is also about the pricing of medicines, about our skills base as a country and about encouraging the concept of clustering, linking universities and the NHS and industry. We have announced recently a large sum of money which will go towards biomedical research clusters and units. It is also about deregulation, streamlining research and creating the Health Research Authority to do that, the drivers in the NHS such as the tariff and, not least, holding bodies in the NHS—CCGs no less than others—accountable for the duties that are in this Bill. Accountability is the counterpart to the concept of autonomy.
I cannot say much to the noble Baroness, Lady Morgan, about the tariff. We do not envisage a separate tariff for research, but we will ensure that the systems and processes that the board and CCGs use for commissioning patient care ensure that research is supported and that treatment costs are funded by the NHS. This will specifically include a tariff. It is essential that the tariff for patient care incorporates the costs of patients who are taking part in research, and we will ensure that it does.
I turn to Amendment 42, which was tabled by the noble Lords, Lord Warner and Lord Patel, and my noble friend Lord Ribeiro. This amendment seeks to safeguard the funding of research by placing a requirement on the Secretary of State to ensure that there is adequate funding for research and the application of that research to the health service. The amendment also aims to ensure that clinical commissioning groups will fund the treatment of patients involved in research. I share the desire to protect research funding—as Minister for research, how could I not do so? My noble friend Lord Willis need have no fears about our intent in this area. The Government have signalled their clear and strong support for research by increasing the research budget of the Department of Health in real terms over the current spending review period.
I heard from many noble Lords the concern about the research responsibility for the NIHR transferring across to the NHS Commissioning Board and how the budget could be protected in that event. I do not know where this idea has come from, but it is not accurate. The budget for the National Institute for Health Research is centrally held within the Department of Health and will remain so. The budget for research commissioning will not transfer to the NHS Commissioning Board. Dame Sally Davies, the Chief Medical Officer, retains a responsibility for the National Institute for Health Research and for the budget that is allocated to it to commission research. I hope that that reassures my noble friend and the noble Lords, Lord Walton, Lord Warner, Lord Turnberg and Lord Rea, and all others who have expressed worries on that score.
With respect to the research that takes place within the health service, alongside the Secretary of State’s duty to have regard to the need to promote research, Clause 14(13) already gives him the powers to commission research or assist any person conducting research, including by providing financial assistance. An equivalent duty and powers are conferred on the board and clinical commissioning groups. We therefore believe that there are robust arrangements for safeguarding the funding of research already in place.
Lord Hunt of Kings Heath
I should apologise to the noble Earl. The amendment was put down to probe the issues.
Earl Howe
I am most grateful to the noble Lord. In that case I shall not dwell on it at great length.
Amendment 40A, tabled by the noble Lord, Lord Turnberg, and other noble Lords, would require the Secretary of State to have regard to the need to promote the use of information derived from patients for research purposes while taking full account of the confidentiality of information. I welcome the intent behind this amendment, but it is in fact unnecessary. We recognise the important role that patient data, if treated carefully and confidentially—and that I hope goes without saying—can play in improving the quality of health research. I spoke earlier about our consultation document An Information Revolution, in which we propose that the most important source of data is the patient’s or the service user’s care record generated at the point of care. Information in these records also provides much of the data needed for other secondary purposes: for commissioners, for managers, for care professionals and, importantly, for research. We are using the responses that we received to the consultation, together with the findings of the NHS Future Forum, to develop an information strategy for health and social care in England. This will highlight how increased transparency and greater access to information supports improvements in care and research. It is the major work stream. I can reassure the noble Lord that we value the use of patient information where confidentiality is appropriately protected as a source of research and that we are looking at ways to embed its use in our information strategy.
Lord Turnberg
Can the noble Earl give us any idea of the timescale over which we might see something emerging from this? It has been on the agenda for a very long time and we really need to move on it.
Earl Howe
I hope that I am not putting my neck on the block, but within a month the noble Lord should hear news that may cheer him on this front.
A great many noble Lords have asked me questions, some of which I have covered, but I suggest that in the interests of time it might be helpful if I followed up this debate in writing and in a way that will enable me to answer the questions in greater detail than I would now in any event.
Lord Warner
My Lords, in doing that will the Minister clarify what “health service” means? As I read the Bill, it sometimes looks as though public health is not included in that definition. It would be helpful if the Minister could give us some clarity on that and point us in the direction of an authoritative definition.
Earl Howe
I should be very glad to do so. The noble Lord may not be surprised to hear that, when I was being briefed for this Bill, I had to ask myself that very same question. The definition is there, but I think that it would be helpful if I set out the import of that phrase in its fullest sense.
I hope that I have said enough to encourage noble Lords not to press their amendments, but, in doing so, I reiterate my thanks to all noble Lords who have made such an excellent contribution to this debate.
Lord Willis of Knaresborough
My Lords, I thank the Minister for, as ever, a very courteous and thoughtful response to many of the issues which have been raised, in particular his response to Amendment 39 and his undertaking to reconsider “have regard to the need to”, which appears to be a little bit of clumsy draftsmanship that would be unworthy of the Minister himself.
The Minister raised a number of important issues, including that to which the noble Lord, Lord Warner, referred. We have now had a definition of “health service” which includes public health. That means that public health research could lie within some local authorities, because a significant amount of public health will be devolved to local authorities. While I was pleased to hear the Minister say today that those people moving from the National Health Service to local authorities for public health matters would retain National Health Service terms and conditions, the reality is that they will be working under a local authority aegis and that research would therefore be an issue for local authorities rather than Public Health England—or so I understand, but we will probe that later.
On protecting funding, I was particularly grateful for the way in which my noble friend the Minister responded to the idea of ring-fencing. He spoke not of ring-fencing, but said that there had been an increase in budget. It would have been good if he could have made that comment. However, he did say that NIHR would remain a stand-alone organisation. That was news to me; I thought that it was going to move into other organisations. Quite frankly, that is good news. It has a reputation which demonstrates that research is very important and we can track how it is used and when. I thank the Minister for that.
I apologise profusely to the noble Baroness, Lady Emerton, for indicating that “research” meant the work that is coming out of universities and being translated for use at the bedside. She was quite right to remind us that “research” for the purposes of this Bill was all research, and that what should underpin all public policy, in the NHS or anywhere else, is research which gives you evidence to inform policy decisions. I thank her for that rebuke.
Baroness Thornton
The noble Lord raised a very interesting and important point, but I do not intend to delay the House by expanding on it.
Earl Howe
My Lords, Amendment 41A, tabled by my noble friend Lord Willis, will require the Secretary of State to set up a system to ensure that research is conducted properly and ethically and that there are sanctions in place in cases of misconduct. Let me say straight away that I am in agreement with the intention of my noble friend in tabling this amendment; the proper conduct of research is very important, just as proper conduct is critical in clinical practice. All my noble friend’s comments on that theme were extremely pertinent.
Looking at the amendment as it is worded, I can assure my noble friend that there are already systems in place to ensure that research is conducted ethically. Research, as he knows, cannot proceed without ethics committee approval. I realise that this is a probing amendment, but equally, as it is worded, it overlooks an important element in the current system of accountability, because it would risk undermining the clear responsibility in research, as in clinical practice, that employers have for the conduct of their employees and that professional councils have in regulating their members. Both can impose sanctions on researchers if their conduct is found to be inappropriate. I do not see that it is the responsibility of the Secretary of State to impose sanctions on clinical professionals, and it should not be his responsibility to do so for researchers. In the future, the Health Research Authority will continue the good work of the National Research Ethics Service, working with others to prevent misconduct by ensuring that the ethics of research have independently reviewed by research ethics committees.
This evening, I am able to give a new commitment to my noble friend. I am happy to tell him that we intend to publish the draft clauses on research for pre-legislative scrutiny in the second Session of this Parliament. That scrutiny will enable my noble friend and other noble Lords to comment on the detail of our proposals for the Health Research Authority and, in turn, enable us to ensure that future legislation is fit for purpose. I hope my noble friend will welcome that pledge.
If I may, I will cover the question my noble friend asked me about the concordat in a letter to him following this debate. I hope I have reassured him that there are systems in place to ensure good conduct in research. Nevertheless, his points are well made and I shall reflect fully upon them. I can only say at the moment that the Health Research Authority intends to build on these systems. In the light of what I said, I hope my noble friend will feel able to withdraw his amendment.
Lord Willis of Knaresborough
I am grateful to my noble friend the Minister for that response. In view of it, I beg leave to withdraw the amendment.
“The Secretary of State’s duty as to education and training
After section 1D of the National Health Service Act 2006 insert— “1E Duty as to education and training
(1) The Secretary of State must exercise the functions of the Secretary of State under any relevant enactment so as to secure that there is an effective system for the planning and delivery of education and training to persons who are employed, or who are considering becoming employed, in an activity which involves or is connected with the provision of services as part of the health service in England.
(2) In subsection (1), “relevant enactment” means section 63 of the Health Services and Public Health Act 1968 and any other enactment under which the Secretary of State has functions which could be exercised for the purpose of securing that there is such an effective system as is mentioned in that subsection.””
Lord Rooker
My Lords, I intervene briefly in this debate. It also gives me the opportunity to apologise to the House. I removed Amendments 35 and 36 at 10 pm on Monday because I could not guarantee to be here at 3.30 pm today. I apologise if it caused confusion, but I could not be here today at that time.
On Amendment 45, I would like to know the Government’s position, because the noble Baroness said that the Government maintain their position. In some ways, the temptation for fragmentation is enormous. I am not sure whether the NHS is still the largest employer in Europe. As a totality, I think it probably is. However, we are talking here about England—or are we? The issue of devolution is crucial. I served for 12 months as a direct rule Minister in Northern Ireland, and I came across problems there relating to people doing the same job here. Also, of course, moving around Whitehall, as the Minister probably discovered himself, you go into departments and meet people doing more or less exactly the same job on vastly different salaries. The temptation of fragmentation was accepted at the centre of government, and that has led to significant problems of mobility for people moving even around Whitehall.
I am no expert on the NHS—I only know it as a patient and a family member of patients—but as far as I am concerned, it is a team effort. It is a bit like the argument we had with the firefighters. You are sending people out on a team to do a job, and they are not going out on different rates of pay, different pensions and different contracts. The one way to keep it cohesive is to maintain national pay bargaining. It does not mean that one size fits all, but the fact is, as my noble friend who kicked this off said, the industrial relations implications are enormous, given the potential for disputes that nobody wants. A dispute is created because of a festering sore on something else. The facility is not there if you have a system of national pay bargaining for healthcare staff.
The amendment refers to,
“services for the improvement of public health”.
Quite clearly, there will be transfers of public health staff who are working in local government and who are perhaps working to and with NHS rates of pay. That in itself will be a difficulty if people are going to work with colleagues in local government under a different scheme. While the Government take account of that, the temptation will be to level down to local government to get one size fits all at the local level. I do not think that that temptation ought to be accepted.
As for the issue of regional break-up, there was an argument about this many years ago when there was an attempt to pay teachers more who were prepared to go and work in the inner cities. You can have a local premium, and you can do some local work where there are factors, but in the case of nursing staff, particularly the lower-paid, and their ability to move around the country for career opportunities and to move their family, they are working within one service. Everybody knows that it is the NHS—the “N” is still there—but they are faced with the issue that, for the same job in the next region or the next but one region, they may be paid up to 10 per cent less and their pension and terms and conditions may be different. That could cause enormous problems.
I only spoke in the mental health debate last week, but the overall theme of the Bill and the many allegations that have been sent to noble Lords, of which the Minister will be aware, are that this is a grand plan—not now, but in the end—to fragment and break up the National Health Service, a plot hatched in the 1980s by Members of the other House who are currently members of the Government. The introduction of market forces into both the provision of care and other providers, and the temptation then to break up national pay bargaining to fit the new regime, which is supposed to be patient-oriented, is an enormous pressure on the Government. Ministers will be told that this will make sense at the local level. It may be asking a lot for the Minister to give a definitive response to this tonight, but the issues of industrial relations and pay bargaining in the NHS have to be settled well before the passage of this Bill, if only because during the period of implementation we do not, as my noble friend said, want discord among the staff as they implement what will be, I accept, many positive changes in the Bill.
The other issue that has to be raised, because we are talking about services to patients, is the pay and bargaining within service providers as the issue gets broken up. There will be some debates about charities, the third sector and social enterprise involvement where industrial relations and pay bargaining may be affected. However, there are other issues relating to the private sector doing jobs using NHS staff. It offers mobility as teams move. People do not have one place of work but may move between two or three different establishments, one of which may be the NHS, in which they may be based. They are expected to perform as part of the team locally, providing the services to patients in the round. What happens to pay bargaining in those situations?
If we allow fragmentation at a local level, it would be wise for the Minister to say that the status quo will be maintained. I accept that the status quo has flexibility built in, as the noble Baroness said, but it is a flexibility that does not appear to have been used. This is a bit like the Scottish Government. They had the flexibility to put up income tax by 5 per cent, but it has never been done. This is the reality. You put in that flexibility but for various reasons there are barriers to actually using it. In this case, the evidence is that the flexibility has not been used except perhaps in extreme circumstances. I do not think that it would be a good idea if we went down this route. I think there is enough evidence to keep people working together as a team with a national perspective that allows job mobility and promotion without people being afraid of moving within the same service because of the pay and conditions. I do not think that it is a good idea, and I hope the Minister will be able to take a more positive approach to this issue, even if he can only state it in general terms.
Earl Howe
My Lords, Amendment 45, tabled by the noble Baroness, Lady Wheeler, seeks to impose on the Secretary of State,
“a duty to maintain a national pay and bargaining system for healthcare staff, to cover those staff providing”,
both NHS and public health services. This would cover not only existing NHS organisations but any organisation providing services to the NHS. The amendment, as worded, goes against the Government’s view that employers are best placed to determine the most appropriate pay and reward package to ensure that they recruit and retain the workforce that they need.
Our clear view is that it would be inappropriate to require independent and voluntary sector providers to adhere to NHS pay when NHS foundation trusts, as the noble Baroness, Lady Murphy, rightly pointed out, already have such freedoms. The Government believe that to deliver the best care for patients, this freedom should be extended to all NHS organisations. I also take the noble Baroness’s point that while foundation trusts have the power to apply local terms and conditions for all staff, medical, clinical and administrative, very few trusts exercise those freedoms. There are around 400 trusts, and only one foundation trust—Southend—has departed from Agenda for Change, and the differences that it has negotiated are marginal.
Lord Rooker
For the public health directors, who will be the employer? Will it be the local authority? In the sense that you can pay a director of education or children’s services market rates around local government, will that be the same for the directors of public health, so that their salaries vary around the country? It would be the beginnings of a new service, in that sense. Do we know the answer to that?
Earl Howe
They will be employed by local authorities. It is too soon to say to the noble Lord what the pay grade of those people will be, but clearly they will be very senior officers within the local authority. Yes, strictly speaking, if there is freedom to set pay locally, there could be some variations around the country, but I would envisage that the pay grade of directors of public health will gravitate towards a certain figure, whatever that may be.
Lord MacKenzie of Culkein
The Minister spoke about the value of the pay review body being independent, but I was not clear whether he saw a future for that body. Could he clarify that first?
Earl Howe
My Lords, we value the pay review bodies, and there are no plans to disturb them at the moment. I sought to indicate that we continue to look at how pay arrangements are best structured. The pay review bodies do an extremely valuable job at present, as they have done for many years.
Baroness Wheeler
My Lords, I thank the Minister and other noble Lords who contributed to the debate, particularly my noble friend Lord MacKenzie for his reminder to us of the history of the establishment of the pay review bodies and the contribution that they have made, particularly to improving pay and industrial relations in the NHS.
I also thank my noble friend Lord Rooker for a number of comments that he made in support of the amendment, particularly the point that he made about operating the same job in a nearby locality for different pay and conditions, which would be likely to cause serious detriment to industrial relations. We are very concerned about that.
I deeply disagree with the noble Baroness, Lady Murphy. This is not a pedalling-back amendment. The foundation trusts, I would contend, have not implemented local pay bargaining because they know the implications for industrial relations and local employment rates and so on. Agenda for Change has introduced equal pay, as the Minister said, and provided a good framework for addressing issues of equal pay for equal value. It has certainly proved its worth.
I regret that the Minister is unable to offer any real comfort to those in the House who believe that honouring the long-standing pay and bargaining arrangements for NHS staff at national level is not only the fairest thing to do but the wisest course if we are to ensure that NHS staff morale does not plummet even further. It is an important issue and I give notice that I intend to raise this matter at a later stage. I beg leave to withdraw the amendment.
Hospitals and Care Homes: Hydration
Earl Howe Excerpts(13 years, 8 months ago)
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Baroness Greengross
To ask Her Majesty’s Government whether they have plans to implement a hydration policy in hospitals and care homes.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, all providers of regulated activities, including hospitals and care homes, are required by law to have policies in place that protect people from the risks of dehydration. The Care Quality Commission can take action if these requirements are not being met. It is for health and social care providers to develop local hydration policies. There are a number of best practice resources available to help providers to do this.
Baroness Greengross
My Lords, evidence has clearly demonstrated that adequate, and indeed good, hydration can lead to fewer falls, through less dizziness, less constipation, less renal and urinary tract problems, and can bring a host of other benefits, particularly among elderly people in hospitals and care homes. Could Her Majesty’s Government introduce firm guidelines on this for all key providers of care, whether in NHS hospitals or in care homes?
Earl Howe
My Lords, I think that mandating a blanket approach to hydration from the centre, as it were, will not have the effect that we want, which is to deliver the person-centred improvements that we all want to see. Having said that, I know that there have been some important developments. As I have just said, providers are now required by law to have policies in place that protect people in hospital, and the regulatory body charged with overseeing compliance—the CQC—has been equipped with tough powers of enforcement. My right honourable friend the Secretary of State instigated a whole succession of unannounced inspections of NHS trusts, and there are further ones on the way. We are also looking at changing the NHS constitution in relation to the issue of whistleblowing. So a lot is going on, but there is a limit to what central government can do. It is in the end up to staff and managers on the ground.
Lord Naseby
Is my noble friend confident that today’s nursing training understands and re-emphasises the great importance of having a hydration policy?
Earl Howe
My Lords, I asked my officials that very same question. I thank my noble friend. My advice is that all preregistration training for nurses contains instruction and information about hydration and how to make sure that people have enough to eat and drink while in a care setting.
Baroness Barker
My Lords, the Minister said that the CQC has enforcement powers. How long after a CQC inspection reveals abuse of vulnerable people is it required to take enforcement action?
Earl Howe
I think that my noble friend asked about the period of time after an inspection. The CQC has flexibility depending on what it finds. As my noble friend will know, there is a whole succession of increasingly strong measures that it can take, depending on the concern. It can mandate immediate action to be taken, and in those circumstances it will return, typically, for a further inspection within a fairly short space of time to ascertain whether the action has been carried out.
Lord Campbell-Savours
Is not this hands-off attitude to dealing with this matter costing the health service a fortune on urinary tract infections?
Earl Howe
My Lords, the noble Lord is right to express concern about urinary tract infections. There is a programme of work designed to bear down on that, as there is for hospital-acquired infections generally. He is absolutely right to raise that concern, which has a direct bearing on the Question on the Order Paper and the need for proper hydration at all times.
Baroness Fookes
My Lords, could I suggest to my noble friend an experiment being done by a hospital that I know of—namely, that within 24 hours each patient should be assessed as to whether they are likely to have any difficulties drinking or eating? When that is found to be the case, they have specially marked jugs and trays in red, which immediately alerts staff on duty to the need for extra care.
Earl Howe
My noble friend raises a very good idea. I have heard of similar ideas in different trusts, all designed to meet the same objective. The key point my noble friend makes is that patients who may be malnourished when they enter hospital or have difficulty feeding or accessing drink for themselves should have their condition assessed straightaway so that the nursing care is there for them when they need it.
Lord Laming
Could the Minister assure the House that the Government will do everything possible to increase the number of unannounced inspections, both in hospital and in care homes, to make sure that these basic and very important matters are being properly attended to?
Baroness Thornton
My Lords, I was disturbed by the Minister’s first response to this Question because it sounded as if the Government are washing their hands of a hydration policy. Can the Minister say whether that is indeed the case? It seems to me vital that the Government should be providing leadership in ensuring that, at every level of health and social care, they are following through on the policies that are in existence and that have been disseminated over many years, and that they should not say that this is a matter for the policy of individual hospitals.
Earl Howe
No, my Lords, the Government are very far from washing their hands of this extremely important issue. As the noble Baroness will know, the new registration system under the Health and Social Care Act 2008 covers all providers of health and adult social care regulated activities. There is an outcome in that set of regulations which requires providers to adhere to the highest standards of nutrition and hydration. It is because of that that my right honourable friend has been so concerned to instigate these unannounced inspections by the CQC.
Health and Social Care Bill
Earl Howe Excerpts(13 years, 8 months ago)
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The Earl of Listowel
My Lords, my noble friend Lord Rix’s amendment on children with complex needs and the special services that they need reminds me of a visit that I made a few years ago to a service run by the National Society for the Prevention of Cruelty to Children. This service was for a small and unpopular group of children who sexually harm other children and the manager said that it was very difficult to determine who should fund it. The primary care trust did not want to fund it. However, it was a vital service which intervened early in children's lives and stopped them from continuing their harmful behaviour towards other children into adulthood. The matter is relevant to this debate because the victims of sexual harm are often children with learning disabilities, and the children who perpetrate sexual harm are also more likely to come from the learning disabled group. We need to be reassured that services like that will find a home in the new arrangements. I look for reassurance from the Minister that that will be the case.
Earl Howe
My Lords, I am sure that all Members of the Committee will join me in expressing our admiration for the long record of the noble Lord, Lord Rix, in championing the cause of disability rights. They will have had a great deal of sympathy with what he and others have said in this debate.
The Government are committed to improving the lives of people with learning disabilities and the lives of their carers and families. Since we last had a debate of this kind in the context of a health Bill, the legislative backdrop has changed in a very material and important way. I am referring, of course, to the Equality Act 2010. The public sector equality duty in Section 149 of that Act requires public bodies to consider the impact of policies and decisions on particular groups across the protected characteristics. It also requires public bodies to have due regard to the need to eliminate discrimination and to advance equality of opportunity. This general public sector equality duty came into force in April 2011. This means that public bodies such as commissioners, local authorities, health trusts, other providers of NHS services and regulators need to understand how different groups are affected by their policies and practices across all protected characteristics, including disability, and ensure that they routinely use equality data in order to have due regard in their decisions. Furthermore, public authorities need to have a clear evidence base from which they can determine and set clear and measurable equality objectives in line with their specific duties in regulations made under Section 153 of the Act.
Sections 29 and 39 of the Equality Act 2010 prohibit discrimination against disabled persons, whether direct or indirect, by NHS employers, providers of health services and persons exercising other NHS functions. There are, in addition, important duties that apply to the NHS in relation to disability discrimination and reasonable adjustments which public bodies must make. Duties to make reasonable adjustments in relation to employment or the provision of services are set out in Sections 20, 29(7) and 39(5) of the Equality Act. The purpose of these duties is to ensure that employers and service providers have a positive and proactive duty to take steps to remove or prevent obstacles which may place a disabled person at a disadvantage in comparison to a non-disabled person.
This Bill plays its own part in helping to ensure that the care system delivers these commitments and improvements. It introduces new duties in relation to quality and fairness. It creates underpinning legislation for the NHS outcomes framework, which links to the public health and social care frameworks, and that will shine a light on the experiences of all patients and service users, including disabled people. The Bill brings clarity to quality through NICE quality standards that describe high-quality care along a pathway addressing the key issue of co-morbidities. The changes to the regulatory framework give Monitor a role in Clause 59 in relation to improvement in quality and fairness, as well as efficiency. The Secretary of State’s annual report will be closely linked to the objectives that he sets for the NHS Commissioning Board and Public Health England. These are likely to evolve over time to meet changing health needs.
Because the new duties relating to quality and the reduction of inequalities apply to a number of bodies in the system, it would seem logical to include these aspects in the annual report. I can give an assurance that we have every expectation that the improvement of quality and the reduction of inequalities will be key reporting themes in the Secretary of State’s annual report.
Our starting point is that people with a learning disability are people first. They have the right to lead their lives like any others, with the same opportunities and responsibilities, and the same dignity and respect. There is a clear policy framework towards people with learning disabilities, including those with profound and multiple learning disabilities and behaviour that challenges. Valuing People, published in 2001, set out the previous Government’s commitment to improving the lives of people with learning disabilities, and set out the core principles of rights, independence, choice and inclusion. In 2009, that Government reaffirmed these principles in Valuing People Now. The coalition Government have also endorsed them. Key areas include improving outcomes for people with learning disabilities and their family carers around health, housing and employment, in particular enabling people to live healthier and for longer, including by improving access to high-quality healthcare, helping people to secure and stay in employment and supporting people to live in their own homes, including closing NHS campuses.
The first NHS outcomes framework signalled a number of important areas that needed to be included in it in the future. One of those areas was to understand and measure good outcomes for people with learning disabilities. The existing data and data collections do not easily allow outcomes for people with disabilities, including learning disabilities, to be identified. To help rectify this my right honourable friend Andrew Lansley launched the innovation in outcomes competition earlier this year to try to help to fill these gaps. I am delighted that we received some extremely helpful suggestions for how we might incorporate outcomes for people with learning disabilities in future iterations of the framework.
In addition to the NHS outcomes framework, the mandate is a mechanism through which it may be possible to draw attention to the importance of improving the quality of services and outcomes for people with learning disabilities. Improving outcomes for people with learning disabilities and their family carers is about making change happen at a local level for all people. It needs the full commitment of the full range of service providers and agencies across all sectors that need to work in partnership to plan, review and commission strategically.
As was well emphasised by the noble Lord, Lord Beecham, local authorities and health bodies are required to develop a joint strategic needs assessment and to commission services to address those needs. Joint commissioning with local authorities in relation to care and support for people with learning disabilities will help to support them better. We expect services delivering support to people with learning disabilities to act to ensure they are fully compliant with the law, especially the Equality Act 2010.
I turn now to the noble Lord's amendment to Clause 12. This clause allows the Secretary of State to make regulations requiring the NHS Commissioning Board to commission certain services that it would be less appropriate for clinical commissioning groups to commission. One of the reasons for giving GPs within clinical commissioning groups responsibility for commissioning NHS services locally is their unique position as the gateway by which patients access the majority of NHS services. However, there are some services that patients do not access via their GP, and there are others, for patients with rare conditions which are high cost and where clinical expertise needs to be concentrated, that require them to be commissioned and organised separately. For those services we believe that it would be better for the NHS Commissioning Board to take the lead. Dental services and services for members of the Armed Forces and for persons detained in prison or other accommodation of a prescribed description were included in the Bill because there was a clear policy intention for the board to commission the majority of services in these areas, and they could be easily defined in broad terms in primary legislation. This was confirmed by the consultation process on the implementation of the NHS White Paper and in the subsequent Command Paper.
Clause 12 provides that regulations may require the board to commission such other services or facilities as the Secretary of State considers it appropriate for the board rather than clinical commissioning groups to commission. The intention is that this would include specialised services for very rare or rare conditions where different arrangements currently apply because of their low volume and high cost. Currently, these services are either commissioned nationally by NHS London or regionally by primary care trusts working through collaborative commissioning arrangements with their specialised commissioning groups. In deciding what services it would be appropriate for the Commissioning Board to commission directly, the Secretary of State would be required to take into account a number of factors. These four factors are set out in Clause 12.
For services such as those for people with profound and multiple learning disabilities and people with complex needs whose behaviour challenges services, it is expected that some services will be considered specialised and therefore should be commissioned nationally. This is the specific question posed to me by the noble Baroness, Lady Hollins. Some services will not be considered specialised and should be commissioned by clinical commissioning groups working with local authorities.
The services included in the regulations could change over time as new services develop, existing specialised services become more common, and so on. The point here is that there is flexibility for the Secretary of State to take account of these changing factors and to require the board through regulations to commission certain services in a way that primary legislation does not.
Earl Howe
I can reassure the noble Earl that the clinical advisory group is taking and welcomes expert advice from all quarters. It is taking its time to get this right. It is too soon to announce any conclusions from its work, but I have no doubt in my mind that the noble Earl’s concerns will be addressed fully.
Lord Rix
My Lords, after that long, complex reply from the Minister, I shall have to read Hansard from top to bottom tomorrow. He referred to many Acts, which have yet to prove their efficacy in some instances, and to all manner of directives, which I could not write down and take note of at this moment. However, I thank him for his comprehensive response. When I read Hansard, I hope that it will prove to be more than helpful.
I also thank my noble friend Lord Listowel, and my noble friend Lady Hollins, whose expert opinions and advice are both personal and professional. I should also like to say, possibly at great risk because I am surrounded by doctors and nurses, that I fear that it is only people such as my noble friend Lady Hollins who have really worked at learning disability and that students who come out of St George’s know more about learning disability than perhaps many other medical students and young doctors who come out of other medical schools. Therefore, if clinicians are to be made to guide the commissioning boards et cetera on the work that has to be done for learning and disabled people, I have to say that I fear that some clinicians are rather short of experience in this area. I say this with due deference to my noble friends who are all around me at the moment and I hope that they will not clobber me when I get into the tea room after the next amendment.
I also thank the noble Lords, Lord Beecham and Lord Newton. I was very glad to have support from both sides of the House. The noble Lord, Lord Newton, and I have discussed learning disability for many years. I was very glad to hear from the noble Lord, Lord Beecham, who is new to me, and to have his support. Without further ado, I look forward to reading Hansard tomorrow and to consulting my colleagues, my noble friends Lady Hollins and Lord Wigley, and all the people at Mencap and other devoted charities. I beg leave to withdraw the amendment.
Lord Hunt of Kings Heath
My Lords, this has been an interesting series of amendments. The noble Lord, Lord Patel, made a very important point about the influence that legislators can have in drafting legislation on the culture of the NHS. He speaks with great experience because of his work in Scotland on the development of clinical standards, and I am sure he is right to emphasise the words “health” and “clinical” in adding to our understanding of what we seek from the National Health Service.
The point raised by the noble Baroness, Lady Barker, is very interesting. This is meant to be a health and social care Bill, although there is very little about social care in it. Indeed, the only provisions ranging around social care are bad provisions. Remarkably, we are proposing to abolish the General Social Care Council, which ought to be an uplifter of standards among social workers. I give notice that I intend to thoroughly oppose these provisions and place the regulation of social workers into a health body. I look forward to the support of the noble Baroness, Lady Barker, on that when we come to it. I would have thought that the way through is either to add well-being to this part of the Bill or to say “health, clinical and other outcomes” to meet the valid point raised by noble Baroness.
My noble friend Lady Bakewell is very keen in her Amendment 18B to ensure that in securing the outcomes set out in the Bill, we,
“should not exclude sections of the population”,
on grounds of age. We look to the Minister to give us some reassurance on my noble friend’s point about the overarching indicators used extensively in the department and the health service, which go up to only the age of 75. It is not good enough to say that the data are still under development and therefore we will not worry about statistics on the over-75s. One would like to think that those indicators will be revised to embrace people over 75.
Amendment 16A, which is my own amendment, relates to the efficiency of the service. It seeks to add “efficiency” to the criteria that need to be considered. I would be interested to know from the noble Earl why efficiency is not mentioned in line 23 on page 2 of the Bill. My argument would be that a measurement of a service’s effectiveness may be of only limited value. One example might be the fraught question of new drugs and treatment being developed by industry and marketed indirectly to patients, for example through the sponsorship of charities that promote the case for the provision of new treatments in the NHS, and there is a strong case to make those treatments improve the effectiveness, safety and quality of experience. However, if you do not also have to consider efficiency, is there not a risk that you will not look at value for money or productivity and, in the end, not give a rounded analysis of a particular new treatment or technology?
Amendment 19, in the name of the noble Lord, Lord Patel, deals with the standards prepared by NICE under Clause 231. I hope that the noble Earl can clarify the status of NICE standards and guidelines. I have a later amendment on this matter, as do my noble friend Lord Warner and the noble Lord, Lord Patel. We have been concerned by suggestions that the Government are seeking to downplay the role of NICE and the statutory nature of its guidance on technology appraisals. I would be very grateful if the noble Earl could reassure me on that.
I remind the noble Earl that NICE was established because of the traditional delay in the health service when a treatment has been proven to be cost-efficient and effective. There was always reckoned to be a long delay from the time when it was proven to be cost-effective, efficient and clinically effective to the time when it generally available in the National Health Service. NICE guidance was designed to speed up the adoption of such proven new treatments, technologies and drugs. I am concerned about any suggestion of returning to the bad old ways when it was up to each clinical commissioning group simply to decide on a new technology and the group not having to follow the guidance set out in the NICE technology appraisals—if that is what they are called; I think we have probably moved on from that terminology. We will of course return to that later on in the Bill, but some assurance would be welcome.
I turn to my noble friend Lord Warner’s Amendment 109. I never understood the Opposition’s opposition to waiting time targets in the NHS. I remind the Minister that when his Government last left office they had the patients’ charter, which had a waiting time target of 18 months that they did not achieve. We got it down to 18 weeks, which had a hugely beneficial impact on patients. There is no doubt, if you look at regular polling, that the NHS was in very good condition in 2010 because to all intents and purposes the dreadful waiting that had been such a product of the NHS over many decades had been radically reduced.
We know that there is a sense in the health service that the Government are no longer worried about waiting times. I have no doubt whatever that if the pressure is taken off, waiting times will start to rise again. That might suit the Government because of the funding issues that they are confronting the NHS with, and it would certainly suit the private sector, which we know does well out of long NHS waiting times, but it will do patients no good at all. I do not know how far my noble friend Lord Warner intends to take this, either now or at a later stage, but it is important that we say in the Bill that we are concerned about the speed of access to services.
Earl Howe
My Lords, I am grateful to the noble Lord, Lord Patel, and other noble Lords for introducing this group of amendments. I agree with the noble Lord, Lord Hunt, that this has been an excellent debate with a shared commitment to ensuring that quality sits at the heart of the Bill. I find that heartening. I recognise the long experience of the noble Lord, Lord Patel, in defining what quality looks like.
The grouping revolves around the definition of the duty of quality and how the term “quality” is addressed throughout the Bill. As was discussed in earlier debates, the duty of quality enshrined in the Bill is derived from the report of the noble Lord, Lord Darzi, High Quality Care for All, published in 2008. The noble Lord set out that quality could truly happen only when three different factors were present: safety, effectiveness and patient experience. That definition was widely welcomed at the time and over the past three years has become valued across the NHS.
The definition did not come out of the blue. The noble Lord’s review was produced with the NHS, with patients, clinicians and managers, using the strategic visions developed in each of the 10 strategic health authorities. Its definition of quality—effectiveness, experience, safety—has survived even the electoral cycle. Indeed, one of our first priorities as a Government when we came to power was to build on the noble Lord’s work. We did this through publishing a consultation paper and then following it up with the first NHS outcomes framework, published in December last year. Respondents to the consultation on the outcomes framework were highly supportive of the continued use of the definition of quality and the fact that the framework sought to measure patient-reported outcomes and patient experience as well as clinical outcomes.
The question we have to ask ourselves about the amendments is simple: does the definition need to change? My view is clear: we should stick with the original definition. However well intentioned the amendments are, there would be risks attached to them.
I shall start with Amendments 19, 110, 134, 179 and 181. The intention, if I understand it correctly, is to specify that the duty of quality should be restricted to clinical matters in order to ensure a focus on clinical quality and outcomes for patients. I understand the noble Lord’s arguments but my fear is that these amendments would have the effect of narrowing the duty of quality and losing the integrated approach that it embodies. Let us consider this with regard to quality standards, covered in Clause 231. Quality standards, as I have already said, bring clarity to quality, providing definitive and authoritative statements of high quality care that are based on the evidence of what works best. That idea opens up the opportunity for quality standards to cover an integrated care package, from public health interventions in primary care to rehabilitation and long-term support in social care, thereby supporting the integration of health and social care services. I fear that we would lose this integrated approach if we were to restrict the Secretary of State’s obligation to looking only at clinical standards.
Lord Winston
I listened carefully to the Minister’s answers to and rebuttals of many of these amendments, which he made with cogent force, and I found it difficult to disagree with them. However, in the case of the amendment of the noble Baroness, Lady Bakewell, I have a problem. The issue of age is such a special case that there is a strong reason to consider writing her amendment into the Bill at this stage, because it is clear from what has happened historically and recently that aged patients are in a particularly difficult situation in an ageing community. They are often not communicated with and left unable to feed themselves, and people are not there to feed them, and so on. The Minister knows all this very well. Is there not a serious case for a caring Government to think seriously about the issues that the noble Baroness has raised?
Earl Howe
Of course there is, and I am grateful to the noble Lord. We are anxious to ensure, however, that any measures that we put in place in the outcomes framework are robust in terms of their verifiability. As I have said, I completely agree with the need for good data that have to underpin any system of accountability. I strongly feel that the Bill takes a significant step in the right direction. The NHS Information Centre will be the powerhouse for improving data in the NHS. It will look at how we can improve data for all age groups, not just the over-75s. I take on board what the noble Lord said. If I can add to what I have said, I should be happy to do so in writing.
I shall cover briefly the questions from the noble Lord, Lord Hunt, about NICE. NICE is a body for which we have the highest regard. In the Bill, we are widening its duties and placing it on a much firmer statutory footing. I hope that that in itself will indicate to the noble Lord that, far from downplaying the role of NICE, we want to do the opposite. We are giving it responsibility for defining excellence in social care and for producing a library of quality standards, which it has already started to do. In connection with technology appraisals, we see it continuing to have a very important role. What the noble Lord may have heard on the grapevine, if I can put it that way, related to our plans for value-based pricing of medicines. If we succeed in defining a good system—a good framework—for value-based pricing, the role of NICE will inevitably shift somewhat, because it will be asked a slightly different question from that which it is asked at the moment, but it will retain an absolutely central role, particularly in the pharmacoeconomic evaluation of new medicines.
The noble Lord asked me about the concern that clinical commissioning groups would, as it were, be able to take their own decisions and perhaps disregard NICE guidance. We have made absolutely clear that the funding direction associated with NICE-approved medicines will continue, not only up to the end of 2013, which is when the current pharmaceutical price regulation scheme comes to an end, but thereafter in the new world of value-based pricing.
I agree with the spirit of all the amendments, but I hope that noble Lords will accept from me that they are either not needed or would have an unintended and retrograde effect, which I have tried to outline. I hope that, with that, noble Lords will feel able not to press the amendments.
Lord Patel
My Lords, I thank the Minister for his detailed comments and all noble Lords who took part, although some of them did not quite understand the meaning of my amendments. None the less, it was never my intention to have a narrow definition of “clinical”, and I accept what the noble Baroness, Lady Barker, said: that it might give the impression that this is narrowly defined to medical standards. It is not; it takes into account both the well-being of the patient and, beyond that, rehabilitation and even social care, if we can define the standard.
My intention was never to press the amendments, but to try to highlight the issue that standards that are written are important if they are written with a view to focusing on patient outcomes. The phrase “clinical standards” tends to do that, and other standards have to incorporate that. If there was one benefit of this debate, it was that the noble Earl had to define the quality standards that NICE would be expected to write, which incorporates the patient journey of care from access to rehabilitation. That is exactly what I was hoping to achieve. By the way, I am familiar with NICE, having been involved at its inception and having written the paper that established it. Standards, whether they are quality standards of access or others, must focus on what gives a better outcome to the patient. On that basis, I am pleased to withdraw the amendment.
Baroness Bakewell
My Lords, I thank the noble Earl for his thoughtful consideration of my amendment. Because this is so impending a situation, it has to be taken on board for the future. The noble Earl spoke about having data that were robust in terms of verifiability and about evidence for the over-75s being harder to come by. However, life expectancy in this country is 84 for women and 79 for men, so there are data somewhere. I reiterate that there is a growing groundswell of concern, evident in newspapers when the story goes wrong, about the National Health Service failing older people, and I am sure that the Minister is as keen as I am to see that end. I beg to move.
Earl Howe
My Lords, I completely understand the points that the noble Baroness has made and I am sure that there is general sympathy in this Committee for the issues that have been aired through successive reports. I refer not just to the Care Quality Commission’s findings but to those of the ombudsman relating to care for the elderly in both the NHS and care home settings. The noble Baroness should be in no doubt that this is very high on the Government’s list of priorities but, as she recognised herself, there are particular obstacles that we have to overcome before we can move forward in the way that she has indicated and that we all want.
Health and Social Care Bill
Earl Howe Excerpts(13 years, 8 months ago)
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Baroness Wheeler
My Lords, I begin by paying tribute to the excellent work of the charities, Action against Medical Accidents, National Voices and the National Association of LINks Members on this important issue. I also thank the noble Baroness, Lady Masham, and other noble Lords who have supported and sponsored the amendment and have spoken so forcefully in favour of it. They have put forward the strong arguments for a statutory duty of candour, and I do not intend to go over them or to repeat the detail of the many harrowing cases that have led to the huge support among the general public and patients' organisations for the measure.
The instances of serious failure in care and treatment that have led to the campaign in support of a statutory duty of candour are dramatic, shocking and deeply tragic. The need to ensure openness and transparency of instances of patient care which lead to harm or adverse impact on the patient's future care quality of life apply to both those major cases and to everyday care and treatment solutions. I am sure that, in respect of the latter, many of us will have had personal experience of pursuing instances of poor care and treatment, communication and ordination of services, through the PALS hospital complaints system, only to find how quickly the shutters come down, as has been said, and how hospitals can seem to go into automatic denial and obfuscation as soon as an event occurs.
This is a probing amendment. On behalf of the Front Bench, I urge the Government to look closely at the issue and respond positively on how the Bill can be strengthened to enshrine the right of patients, their carers and families to know when things have gone wrong. In April 2010, my Government established responsibility for the Care Quality Commission to require health providers to report incidents which harm patients to the national reporting system of the National Patient Safety Agency. We recognise that that was a first step. The requirement to report the incident to the patient within a specified period would be a major second step that should be considered to ensure that all information about such incidents is shared with the patient and their family.
Many, both inside and outside the Chamber, have worried about the extent to which patients actually feature in the Bill and whether it will really achieve the Government's objective for patients of “no decision about me without me”. Surely, underlining in the Bill the rights of patients to be truly involved in decision-making about their care, to participate in decisions about their future treatment, and to be told honestly and openly when something goes wrong should all be part and parcel of the “no decision about me without me” mantra.
There is clearly growing momentum and enthusiasm for the current CQC regulations to be extended to provide a related duty to share all information about incidents which cause harm with the patient concerned or their family. As we have heard, the House of Commons Health Select Committee in June of this year specifically recommended that a duty of candour to patients from providers also be part of the terms of authorisation from Monitor and of licence by the CQC.
As for the Government’s consultation on how a proposed contractual duty of candour should be implemented, it is regrettable that the consultation does not allow for consideration of whether the duty should have a different status. The concerns of the Health Committee and patient groups that a contractual duty alone will not be effective need to be addressed. A powerful argument for the duty being in the CQC registration requirements is that that would then cover all providers, not just those with a standard NHS contract.
The consultation document does not adequately address a number of issues in relation to the proposed contractual duty. For example, it does not make clear how the Government envisage a contractual duty working in practice; or how commissioners should act when a provider has failed to be open; or what effective remedial measures they will be able to take.
We recognise that further work needs to be undertaken on the amendment. For example, the CQC powers should not interfere with or duplicate the role of the health staffs’ professional regulatory and disciplinary bodies. The noble Lord, Lord Winston, and other noble Lords have spoken about their concerns. This is a probing amendment. It is designed to raise issues and to seek ways to take the matter forward.
It has been an excellent debate. We strongly support the suggestions that noble Lords have made on taking this matter forward, and we urge the Minister to give urgent consideration to them.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, Amendment 20, introduced by the noble Baroness, Lady Masham, looks to place a new duty on the Secretary of State to ensure transparency when something goes wrong in the treatment of a patient. I hope that she feels gratified by the quality of the contributions to which we have listened this afternoon.
I absolutely agree with the noble Baroness, the noble Lord, Lord Harris, and other noble Lords that ensuring full candour on the part of the medical, nursing and allied professions and NHS organisations is essential. We know that achieving an open and honest system is vital to ensure that the health service learns from its mistakes and that patients and their families are treated with the dignity and respect they deserve. I take no issue with the powerful arguments from noble Lords about the need for openness and candour between health professionals and patients. That is a real concern.
To emphasise that, in our response to the Future Forum’s report we made a clear commitment to introduce a duty of candour—a new, contractual requirement on providers to be open and transparent in admitting mistakes. This will be the first time that such a requirement has been specified in contractual agreements with providers. Contracts are increasingly the key way in which providers will be held to account for the quality of the care that they are providing by those who best understand local healthcare—clinicians and patients. The contracts give the people who are actually spending NHS money on behalf of their populations the power and the levers to require quality improvement and to scrutinise the performance of providers. Therefore, placing a duty of candour in the NHS and contracts reflects the importance we place on the issue. I cannot agree with the noble Baroness that it is somehow a snub or an insult to patients, as she put it. Nor do I think that it is an obligation with a lesser status than a statutory obligation would be.
Accordingly, I support the intention behind the noble Baroness’s amendment, but I do not agree that the most effective way to achieve it is through a duty set out in the Bill. The amendment suggests that the Care Quality Commission should have a role in ensuring that health service providers comply with a duty of candour. However, we do not believe that the CQC overseeing compliance would be the most effective way to underpin a new requirement. The CQC itself has said that it would not be able to enforce such a duty routinely and that it would not fit in with its role as a risk-based regulator.
The Government want the duty of candour to be as effective as possible in promoting openness. Rather than rushing to insert what may be an ill-thought-through and impractical duty in primary legislation, we are currently consulting on how best to implement a duty of candour through contracts with commissioners. The consultation explores how we can best support patients and clinicians to demand candour from healthcare organisations and how commissioners would enforce and report publicly on it. If appropriate, there may be an opportunity in future to include such information in the CQC's quality and risk profiles. Incidentally, I encourage the noble Baroness to take part in the consultation, if she has not already done so. The consultation also explores what we should expect commissioners to report publicly in terms of their enforcement of the requirement. As I said, if appropriate, there may be an opportunity in future to ask the CQC to report on that.
Transparency is important, but I assure noble Lords that measures are already in place to ensure transparency within the NHS. For example, as has been mentioned, clinicians have a professional duty to act openly and admit mistakes. In addition to their professional duty, the NHS Constitution sets out the responsibility of health service staff to aim to be open with patients, their families, carers and representatives, including if anything goes wrong. The majority of clinicians are open with their patients and will, despite the difficulty of the conversation, admit mistakes to patients, so patients receive an apology. Where openness does not happen, it is usually as a result of a closed culture that exists within an organisation rather than a case of individual clinicians simply covering things up. I agree with the noble Baroness, Lady Hollins: clinicians must be able to work in a supportive environment where they are encouraged to admit mistakes and learn from them. It is this culture that we aim to foster in the NHS. The question is how best to promote that culture.
Baroness Williams of Crosby
I am grateful to the noble Earl for giving way. Before he leaves the commissioning issue, would the conditions on candour laid down in the contracts apply to contracts with new providers who came from the private sector as well as to those from the old NHS sector?
Baroness Wheeler
Perhaps I may ask the same question about clinical commissioning groups and GP contracts.
Lord Campbell-Savours
Will this cover private contractors where they provide a service to the National Health Service? What would happen in a dual provision facility whereby, let us say, half the clients were private and the other half were from the National Health Service? Would this provision apply only to those who were in effect being funded by the National Health Service?
Earl Howe
Clearly, our concern is for NHS patients. We cannot legislate for private patients who may have completely different terms in the contract. However, the point is that if an independent provider comes forward as an accredited provider for the health service, we should subject that provider to exactly the same kinds of duties that apply to an NHS provider.
I was about to say that I listened with great care to the noble Lord, Lord Winston, and my noble friend Lord Lucas, who I thought spoke wise words in their respective speeches. We have made it clear that we think that services should be commissioned by those who are closest to patients and who best understand the needs of their patients—the clinicians. Therefore, we think it is right that the duty of candour is set out in the contracts that clinical commissioning groups will enter into with service providers. CCGs will be responsible for holding providers to account and therefore will in any case need to consider patient safety events in doing so. In future, the Secretary of State will ensure that this contractual duty is introduced consistently, as the Bill already contains powers for the Secretary of State to set standard contractual requirements where necessary using “standing rules” regulations under new Section 6E of the National Health Service Act, inserted by Clause 17.
The noble Baroness, Lady Masham, suggested that there was nothing in the Bill about patients. I confess that I am disappointed that she has come to that conclusion, as the Bill is all about creating a patient-centred health service—for example, through placing clinicians at the forefront of commissioning, strengthening patient involvement and ensuring that quality is at the heart of all that the NHS does. She suggested that if a duty of candour were in the contracts, perhaps all CQC standards should also be in the contracts. I disagree. A duty of candour is best suited to the contract because, first, the CQC has specifically stated that it is unable routinely to enforce such a duty, unlike the contents of its core standards. Secondly, the issue is very difficult to monitor effectively. Placing the duty closer to patients and clinicians maximises the chances of it working, and placing it in contracts does exactly that.
I would not want the noble Baroness to think that we have chosen the contracting route as in some way a lesser option, showing that this issue is not of importance to the Government. That is absolutely not the case. We propose a contractual duty of candour because we feel strongly that it has the best chance of working. If I may say so, I believe that the noble Baroness has been rather too quick to dismiss the Government’s proposals, which, I say again, represent a considerable advance on the current position.
It has been pointed out that the contractual duty will apply only to providers with an NHS contract and that GPs, for example, without a standard contract will not be covered. We have explicitly acknowledged that primary care contractors will not be covered under the current proposals for a requirement in the NHS standard contract, and we have asked for views on this as part of the ongoing consultation. We recognise that we should aim for an holistic system that applies to every provider of NHS-funded services, but we still need to consider what legislative and contractual changes will work best within primary care.
It should also be remembered more widely that the policy of openness still applies to all NHS services, regardless of the existence of any contractual requirement. For example, primary medical services contractors must have regard to the NHS constitution, the professional codes of conduct and any guidance issued by PCTs or the Secretary of State. Once they are registered with the CQC, a failure to be open with patients will contravene clear expectations set out in CQC guidance. Therefore, not including a requirement in primary care contracts now does not provide a reason for primary care contractors to avoid telling their patients about things going wrong with their healthcare.
Lord Walton of Detchant
On the noble Earl’s point about GPs who are not employed by the National Health Service and the issue raised by the noble Lord, Lord Campbell-Savours, about NHS patients and private patients, does he agree that the professional regulatory authorities impose a duty of candour on those professionals, irrespective of whether they work in the NHS or in the private sector? The same duty imposed by the recommendations of regulatory bodies applies to all.
Earl Howe
I agree with the noble Lord. In fact, the GMC sets out in its Good Medical Practice the following:
“If a patient under your care has suffered harm or distress, you must act immediately to put matters right, if that is possible. You should offer an apology and explain fully and promptly to the patient what has happened, and the likely short-term and long-term effects”.
Therefore, the noble Lord is quite right: this would apply whether a doctor was treating an NHS patient or serving in a private capacity.
The noble Baroness, Lady Hollins, asked—
Lord Harris of Haringey
I am grateful to the noble Earl for giving way yet again on this perhaps longer than expected debate. Although we have clarity about the duty placed by the General Medical Council on individual doctors, which is obviously helpful, the noble Earl gave us an example from the United States where in essence it is not that doctors conspire to keep material from the patients but that the management of the institution finds different ways to get round the duty to report an incident. The reason for saying that a very clear duty needs to be placed on them is management cover-up, which so often takes place when things go wrong.
Earl Howe
That is exactly why I referred to the need for a culture of openness rather than encouraging a situation in which we simply try to catch people out when they are not open. The amendment tabled by the noble Baroness looks to me like yet another way for people to get into trouble, rather than a way in which an organisation can take ownership of things that go wrong, encourage openness and look in-house to put things right. That is my fear about the amendment.
The noble Baroness, Lady Hollins, asked whether the consultation that we are undertaking covers whistleblowing. No, the consultation is focused on the duty of candour; whistleblowing is a separate, but linked, issue. Since coming to office, we have, as she may know, taken a number of important steps to promote it in NHS settings.
The noble Baroness, Lady Morgan, asked about the timing of the consultation response. She is right to say that the consultation finishes on 2 January. The government response will follow in due time after that. Unfortunately, I cannot be more specific. I shall be happy to write all noble Lords upon publication of the government response and I encourage noble Lords to take part in the consultation before it closes.
My noble friends Lord Mawhinney and Lady Williams referred to mediation. I take their point. They will know that mediation can mean a number of different things. As part of the proposed contractual requirement, we suggest that providers will have to offer an apology and an explanation and provide further information as appropriate, all in person with the patient, their representative, the relevant clinicians and other hospital or trust representatives as appropriate. That might well involve a mediator. I am all for mediation if legal fees and all the expense and heartache that goes with them can be avoided.
Lord Campbell-Savours
Following up on what the noble Lord, Lord Walton, said in his intervention about professional bodies, why can we not build into consumer law a requirement on private providers to provide a contractual obligation to their private customers?
Earl Howe
My Lords, unfortunately, I am not an expert in consumer law. My noble friend Lord Marks might be able to enlighten us on this, but there are, of course, consumer protection laws, which every organisation has to abide by, as provided for in the Consumer Protection Act. I think there are probably consumer protection aspects to contracts relating to healthcare services, but we have to tailor the contracts to ensure that we cover the issues that healthcare gives rise to.
The noble Lord, Lord Warner, asked me about the NHS Redress Act and whether the provisions of that Act were capable of taking forward some of the issues raised in the debate. I understand why he has asked that question, but there is a difference between redress for negligence and openness and it is important to distinguish between the two. As such, some of the issues raised this afternoon fall into the remit of redress and associated legislation rather than being specifically linked to a duty of candour. However, I note that, notwithstanding the long hours that we spent debating the NHS Redress Bill some years ago, the previous Government chose never to bring it into force; it is potentially on the statute book, but it is not in operation.
I shall reflect carefully on the points made in this debate. I hope that I have in some way reassured the noble Baroness, Lady Masham, that we are putting systems in place to introduce the duty of candour. To answer my noble friend Lord Mawhinney, we have a strategy. There are good reasons for the contractual route that we have chosen as well as a real potential downside if we were to go down the statutory route proposed here. So against that background, I hope that the noble Baroness will feel able to withdraw her amendment.
Baroness Hussein-Ece
The Minister's comments on mediation prompt me to ask a further question. When I dealt with many of these cases, the complaints procedure was on three levels and the first, immediate level was when the patient or the patient’s representative came forward with a complaint to seek local resolution, and often mediation was used to bring the parties together to give, as far as possible, full information. This is very patchy and I was wondering whether, within the consultation and the contractual duties to which the Minister has referred, that will be extended so that things can be resolved at the first level before they get to the litigation stage. Is that being considered?
Earl Howe
I shall have to get back to my noble friend on whether it is specifically mentioned in the consultation. I can say that it is absolutely pertinent to the subject matter on which we are consulting. It would be extremely helpful if some of the response to the consultation covered issues such as mediation. We need to factor that in and perhaps my noble friend, with her experience, will feel able to send us her views on the subject.
Baroness Masham of Ilton
I thank all noble Lords who have supported, or not supported, the amendment. I say to the noble Lord, Lord Winston, that the last thing one wants is to make a difficult situation more dangerous. One wants to achieve accident prevention. It is vital that patients have trust in the doctors, nurses and other professionals who are treating them. Something has to happen now about the culture. We have to look at what happened at the Mid Staffordshire General Hospital. I sincerely hope that something will be learnt from that. I know that the Government want to improve things. I think that all doctors in the House are trusted by their patients, but there are doctors who have lost their patients’ trust. That is why I feel very strongly that whatever the Government try to do will have to be done by statute. Many doctors just follow the book and do not do what they should do.
I feel very strongly that your Lordships’ House, with all its expertise, as displayed tonight, must find a way. I sincerely hope that that will happen with the blessing of the Minister and the Government. I hope that we can work together and, before Report, get something that is acceptable to everyone, especially to patients. One must remember the patients who have suffered so badly and who are suffering today. Every time I open a newspaper, I see something about the culture of nursing, and something has to be done. It is the Government’s responsibility. We should go for a statutory obligation to protect patients. With that, I beg leave to withdraw the amendment.
Baroness Thornton
My Lords, perhaps I may respond very briefly from these Benches. I took the Committee through our amendments at a gallop, so perhaps I may make two points very quickly. This debate has illustrated the problem that these amendments seek to address, and indeed it was illustrated by criticism from the King’s Fund and the Commons Health Select Committee, referred to by the noble Lord, Lord Patel. The duties, although welcome, are too narrowly drawn and, crucially, do not extend to local authorities. I might say that the noble Earl’s party does have form in this matter. We know how a previous Conservative Government treated the Black report, ready in 1980 just after the Conservatives came to power. It was not to Mrs Thatcher’s liking and was never printed. Only 260 photocopies were distributed in a half-hearted fashion on bank holiday Monday—my noble friend says that he has two of them. I know that the coalition Government would not allow that to happen and I welcome the change of heart that is shown in this part of the Bill.
However, my understanding is that the weighting given to health inequalities in the formula of allocating NHS funding has been reduced from 15 per cent to 10 per cent. Can the Minister confirm that that is indeed the case? What signal does it send about the Government’s priorities and their commitment to dealing with health inequalities? It seems to me that the commitment to dealing with health inequalities could be remedied. There is a need for a widened definition of health inequalities to include reducing inequalities in the health role, and of access for the Secretary of State, the NCB and clinical commissioning groups. There is a need to specify and define inequalities, particularly inequalities between groups and communities rather than individuals, and there needs to be a strong duty on local authorities as public health duties are transferred to them.
Finally, the message here is that the Minister needs to look carefully at these amendments and that the Committee is very interested in engaging with the Government to strengthen this part of the Bill. I look forward to the noble Earl’s remarks.
Earl Howe
My Lords, the Government are committed to reducing health inequalities, to ensuring equity and fairness across the health service, and to improving the health of the most vulnerable in our society. On top of the pre-existing general public sector equality duty, for the first time the Secretary of State will have a specific responsibility to,
“have regard to the need to reduce health inequalities”,
whatever their cause. This duty will be backed by similar duties on the NHS Commissioning Board and clinical commissioning groups. Taken together, these duties will ensure a focus on the reduction of health inequalities throughout the system, with special consideration paid to outcomes achieved both in relation to NHS services and to public health.
While many noble Lords seek to amend these new duties, we believe that they are right as they stand. The duty will not be an add-on or an afterthought. The Secretary of State, the Commissioning Board and clinical commissioning groups will be required always when carrying out any and all of their functions to have regard to the need to reduce inequalities. I should also point out here that the duty is purposefully non-specific. Amendments 21, 22, 23, 25, 27 and 27A all aim in different ways to strengthen the wording of the Secretary of State’s duty. While I fully accept that the reduction of health inequalities must be a priority for the Secretary of State, it must also be recognised that the causes of health inequalities and the remedies to them are complex and multidimensional and require a multisector approach. Factors such as poverty, education, employment and culture require solutions which extend far beyond the Secretary of State’s or the Department of Health’s remit or capabilities. The duty on the Secretary of State must recognise the nature of the challenge we face in reducing health inequalities, and it must be deliverable. We should hold the Secretary of State to account only for the things that he is responsible for. The duty in the Bill is drafted with these factors in mind.
For the same reasons, I am afraid that I cannot accept attempts to amend the wording of the duty to “act with a view to” or “seek to reduce”. While I understand the noble Lord’s attempts to make the duty as strong as possible, “have regard to” captures the intention of the legislation; that is, that the Secretary of State must consider the need to reduce inequalities in every decision that he takes about the NHS and public health. The approach that the unamended clause sets out is the right way to achieve this. As it stands, the Secretary of State would have to have regard to the need to reduce inequalities in any decision that he made. Contrary to what some have thought, having regard is a strong duty which shows the Government’s commitment to the reduction in health inequalities. The duty to “have regard to” has established meaning and has been used in other important legislation, such as the duty to have regard to the NHS constitution in the Health Act 2009. The courts can and do strike down administrative actions in cases where decision-makers have not had regard to something in contravention of a statutory duty to do so. For example, they have struck down decisions of public authorities for failure to have due regard to their equality duties. The courts have said in relation to public sector equality duties that the duty to have due regard must be exercised with rigour and an open mind—it is not a question of ticking boxes. The duty has to be integrated within the discharge of the public functions of the authority. It involves a conscious and deliberate approach to policy-making and needs to be thorough enough to show that due regard has been paid before any decision is made.
Perhaps I could clarify for the benefit of the noble Lord, Lord Patel, and the noble Baroness, Lady Murphy, that the duty in Clause 3 already applies to public health functions. The expression,
“functions in relation to the health service”,
covers both NHS functions and the Secretary of State’s public health functions. “The health service”, as that term is used in the 2006 Act, is not limited to the NHS.
Amendment 27, tabled by my noble friend Lady Williams, would have the effect of making the Secretary of State and the Department of Health responsible for reducing inequalities generally, beyond those relating to health. We cannot accept the amendment because there are many areas, such as wealth inequality, which are rightly not within the department's responsibility, and therefore to place a duty on the Secretary of State for Health to reduce these would not be practical.
Amendment 27A, tabled by the noble Baroness, Lady Thornton, would specify that the Secretary of State’s duty in reducing inequalities should be in relation to health status, outcomes achieved, experience and the ability to access services. The amendment is modelled partly on the wording of the Commissioning Board’s and CCGs’ inequality duties. While I agree with the intention behind the noble Baroness’s amendment, I can reassure her that the reference to “benefits” in the unamended clause already covers these aspects and so the amendment is unnecessary. The reason that the Secretary of State’s duty talks of benefits that people can obtain from the health service is that it includes public health as well as the NHS. The Secretary of State's duty is deliberately broader than the duty of the board and CCGs.
Amendment 29, tabled by the noble Lord, Lord Warner, aims to ensure that promoting patient choice is not given a greater priority than reducing health inequalities. I understand that some people have concerns that greater choice and competition could exacerbate inequalities, and I am aware that there are particular concerns that choice could benefit the better-off at the expense of others. However, our proposals on choice are intended to ensure that all patients are given opportunities to choose. We do not believe that the assertion that the better-off will benefit more from choice is borne out by the evidence. Indeed, recent evidence suggests that choice has the potential to improve equity. For example, some noble Lords may have seen the study published recently by the Centre for Health Economics at the University of York, which found that,
“increased competition from 2006 did not undermine socio-economic equity in health care and, if anything, may have slightly increased use of elective inpatient services in poorer neighbourhoods”.
So I do not believe that there are any grounds for thinking that improving choice and tackling health inequalities are incompatible. They should be mutually reinforcing.
Amendment 31, tabled by the noble Baroness, Lady Thornton, would introduce wording to ensure that if the duties placed on commissioners or regulators came into conflict with any other duty, the duty to reduce inequalities would prevail. I fully share the intention of making sure that these organisations do not ignore the goal of reducing inequalities. However, the inequality duty must already be complied with when bodies are exercising all their other functions. Therefore, I cannot agree that other duties placed on commissioners or regulators would conflict with their general duty to have regard to the need to reduce inequalities.
Amendment 32, also tabled by the noble Baroness, Lady Thornton, seeks to place on the Secretary of State a duty to publish evidence about the extent to which inequalities have been reduced annually. I fully agree that the NHS and the Secretary of State should be accountable for their efforts to reduce inequality. Clause 50 already places a duty on the Secretary of State to report annually on the NHS. Since tackling inequality will be such an important legal duty throughout the NHS, we have every expectation that inequalities will be a key reporting theme in the Secretary of State’s annual report.
Amendment 33, tabled by the noble Baroness, Lady Greengross, would place a duty on the Secretary of State to give particular regard to certain factors and characteristics when having regard to inequalities. Amendments 120B and 190B, tabled by the noble Baroness, Lady Thornton, would amend the Commissioning Board’s and clinical commissioning groups’ inequality duties, in new Sections 13G and 14S of the 2006 Act, to include the same list of characteristics and factors. I hope that I can persuade the noble Baronesses that there is no need for these amendments. First, it is unnecessary to prescribe the characteristics and factors to be covered by the Secretary of State, the Commissioning Board and the clinical commissioning group duties. The current, unamended duties would already cover health inequalities arising from any characteristic or factor. On top of this, as we have already discussed, the Secretary of State and the NHS are already bound by the general Equality Act 2010. Section 149 of that Act lists the characteristics covered in paragraphs (a) to (i) of the amendments. Therefore, the Secretary of State and NHS bodies will already have to give specific consideration to these characteristics. In not being specific in the duty on the Secretary of State, the Commissioning Board or CCGs, we are keeping the duty with regard to health inequalities as broad as possible, so that no characteristics which drive health inequalities are inadvertently omitted.
As the noble Baroness made clear, there are two new factors not listed in the Equality Act but proposed by the amendments. These are geographical variation and socioeconomic variation. However, it is unnecessary to specify these factors either. They are already wellestablished dimensions of health inequalities and will be taken into account under the duties on the Secretary of State, the NHS Commissioning Board, and CCGs. They are also already specified in the NHS outcomes framework, subject to data considerations.
Apart from being unnecessary, the amendments are also in a real sense undesirable. While I am sure that this is not the intention, their effect would be to give pre-eminence or priority to certain characteristics or factors. We are dealing here with the perennial problem of “the list”; by implication, anything not on the list is less important. Instead, the Government are committed to ensuring that all dimensions of health inequalities are encompassed by the proposed duties, a principle that I am sure all noble Lords can agree with. All factors leading to health inequalities should be considered, with the weight given to them depending on particular circumstances.
Health and Social Care Bill
Earl Howe Excerpts(13 years, 8 months ago)
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Lord Hunt of Kings Heath
My Lords, I hope that the noble Lord, Lord Phillips, will continue to waffle on, because it seems to me that he has put his finger on the real concerns that so many have about this Bill and why people are so opposed to it. The continuing puzzle is why we have this Bill at all when the NHS was in such good condition at the time of the last election. The noble Earl, Lord Howe, might get cross that I come back to this point, but that puzzlement is shared by almost everyone working in the National Health Service and certainly by most patients.
We do not understand what this Bill is all about, unless the noble Lord, Lord Phillips, is right that, essentially, this is about taking the NHS on a journey to become a second-rate service for the poor and needy. One can see the building blocks that are being put in place. First, the Secretary of State seeks to downplay his or her responsibility for the provision of services. Secondly, we see the NHS starved of resources.
The NHS—I should perhaps remind the House that I chair an NHS foundation trust—is supposedly receiving a real-terms increase in its resources, but I can tell the noble Earl, Lord Howe, that that real-terms increase has not reached the service. I do not know where that money is. Either the money is being kept as a bung for GPs and clinical commissioning groups or for the costs of the reorganisation and redundancies that will need to be paid, or, perhaps, it is being held in a fund that will be let out when the NHS reaches crisis point this winter. I do not know, but I can tell the noble Earl that, up and down the country, NHS trusts are facing considerable financial challenges. It can be the only explanation for why the Government are putting so much less emphasis on dealing with waiting times. We had the amendment from my noble friend Lord Warner early on. I do not think the noble Earl was able to convince the House that this Government really are concerned about the waiting times for patients. The risk is, as my noble friend Lady Armstrong said, that we will go back to the bad old days of long waiting times, when consultants faced with patients encouraged those patients to go for private treatment. There are so many examples of this perverse practice that I fear we are going back to it again.
Another factor in where we are going is the noble Earl’s refusal to refer to NHS trusts and foundation trusts. All we hear from the Government is this generic term “provider”. Of course we understand that, because it is the mantra of Ministers that there is no distinction; the qualification is qualified providers. So the NHS institutions are simply to be seen as a provider, no different from private sector providers. No wonder Ministers are prepared only to talk about commissioning as being part of the NHS. It is almost as if the provider side has been completely written out of the script when it comes to the National Health Service. It is quite clear that, notwithstanding the fact that Monitor will also have to have a role in integration, its real emphasis is on promoting competition. When one considers the issue of the private patient cap, one has to do it in the context of where one thinks the Bill is going.
I must say that I disagreed for once with the noble Lord, Lord Walton. I have very great reservations about the removal of the private patient cap. I certainly understand that there is a need to review how it is working. If there is local support through the members of foundation trusts or the governing body, maybe even through the local health and well-being board, to remove the cap to that extent, I can see that there may be a case for it. However, there needs to be some control to ensure that NHS organisations do not go mad and seek to have a huge increase in their private patient income, because that would be bound to distort their whole behaviour and how they approach NHS patients. I well remember when I first worked at the Nuffield Orthopaedic Centre in Oxford, where we had a private patient ward—it was called the Mayfair ward, for some reason. I am sure that the doctors and nurses there would say that the clinical care was just the same, but my goodness me it was very interesting to see the succession of the matron, the senior physiotherapists and the senior consultants walking down to that ward and the amount of time they spent there.
Having a large amount of private care within an NHS organisation is almost certain to distort how that organisation approaches NHS patients. That is why this group of amendments is very important. I hope that the Minister will consider coming back on Report and taking part in our further discussions about the private patient cap. The noble Earl, Lord Howe, should be in no doubt that there is widespread suspicion throughout the National Health Service at the Government’s motivations in relation to this Bill. This is one of the core issues that lead to that suspicion.
Earl Howe
The noble Lord, Lord Hunt, should be a little bit careful before he comes to this Committee and speaks as though it were Second Reading and as though he were not chairman of the Heart of England trust, which I do not doubt has a goodly number of private patients in its midst. He should bear in mind that it was the last Labour Government who introduced private sector involvement into the NHS in 2007; the independent sector was paid on average 11 per cent more than the NHS price.
Earl Howe
I am sorry, but I am going to finish. The private sector was paid £250 million for operations that never happened. I have a very interesting quote here:
“The private sector puts its capacity into the NHS for the benefit of NHS patients, which I think most people in this country would celebrate”.—[Official Report, Commons, 15/5/07; col. 250WH.]
That is a quote from none other than Andy Burnham. It is absolute hypocrisy on the part of the noble Lord, Lord Hunt, to introduce matters to this amendment that have nothing to do with my noble friend’s point. My noble friend’s point was quite separate from the point that the noble Lord was talking about.
Lord Hunt of Kings Heath
I do not know why the noble Earl mentioned the Heart of England NHS Foundation Trust. I declared my interest but I am clearly speaking on behalf of the Opposition here. I thought that was a really unworthy remark. As for the general point being made, yes, we invested in the private sector. Why did we do that? It was because we wanted to tackle waiting times. Why did we have to tackle those? It was because there was a real issue in some hospitals with consultants and their productivity. That is why we introduced independent sector treatment centres and why waiting times were reduced to 18 weeks. As for this issue, the noble Earl says that I have gone outwith this amendment but I refer him back to the comments of the noble Lord, Lord Phillips, who talked, quite rightly, of the risks of a two-tier service. That is exactly the issue of concern that I have with the heart of the Bill.
Earl Howe
I have no issue with the private sector acting to provide services for NHS patients, and never have had. My point was that it is a bit rich on the part of the noble Lord to attack the private sector in the way that he did. It is also a bit rich to say that the NHS has been starved of money. If the country had been foolish enough to elect the Labour Government at the election last year, the NHS budget would have been cut. It would not have been kept abreast of inflation, as we have done. It is absolutely monstrous for the noble Lord to pretend otherwise and the caricature that he has given us of this Bill, and what it does, does him no service whatever.
I would like to move on to my noble friend's amendment. Amendments 24 and 30, introduced by my noble friend, would impose on the Secretary of State a duty to have regard to the need to prevent inequalities of treatment and healthcare developing between NHS and private patients. To start with, it is helpful to have clarity around the definitions as there is sometimes scope for misunderstanding. I believe that the amendments are referring to the potential for inequality between services that are paid for by the NHS and those that patients can pay for privately within an NHS hospital. As my noble friend knows, that is of course not the same as the issue of NHS-funded services being provided by private or voluntary organisations. A patient funded by the NHS is an NHS patient, wherever he or she is treated.
In addressing the issues raised by my noble friend, I feel that I have to begin with a basic point. I am not sure, although my noble friend may yet convince me, that it is a matter for public policy to have a target of narrowing the outcomes between NHS and private-funded healthcare. I understand that many people feel uncomfortable at the idea of private-funded healthcare, especially within an NHS hospital. It has always been a controversial subject for Parliament yet the truth, as we heard from my noble friend Lord Ribeiro, is that private healthcare has always coexisted alongside the NHS. Some people will always wish to pay to be treated in more comfort or more quickly than a publicly funded healthcare system can afford and, at the margin, there will always be some treatments that are clinically available but which are not considered cost-effective for the NHS to fund. Some people will want to pay for those and, in a free country, I do not believe that it is the role of the Government to stop that.
However, I do not believe that there is a gaping chasm between the types of clinical treatment offered by the NHS and by private healthcare. The NHS aims to offer a comprehensive health service and, by comparison with many other countries, the private-funded healthcare sector here is relatively small. This illustrates the high degree of public confidence in the NHS as an institution, in that relatively few people decide to pay for a private alternative. Furthermore, rather than making comparisons with private healthcare, we believe that the Secretary of State should be focusing on improving the quality and equity of the services available to those who use the NHS. That is why the Bill introduces for the first time a duty to have regard to the need to reduce health inequalities, and that clearly emphasises our commitment to fairness across the health service. It also recognises the reality that there are many stark variations in quality and access within the services that the NHS funds before we start looking at the comparison between NHS and private healthcare.
In addition, the Bill places a new duty on the Secretary of State to exercise functions with a view to securing continuous improvement in the quality of services. The Secretary of State will therefore be responsible for doing all that he can to ensure that the NHS provides the best quality care to all its patients, no matter what treatment they are receiving or when they are receiving it. The aim of the Government and the Bill is to create a system that delivers world-class healthcare and healthcare outcomes for all NHS patients.
I understand that there is some residual concern that private healthcare might represent a better deal for patients treated by NHS providers but we do not believe that this is the case. Ethically and professionally, clinicians are required to treat all their patients to the same standard and should not discriminate in any way. It would be wrong to suggest that the vast majority who provide an excellent standard of care would do that. We have in place a robust system of service quality regulation that the Bill strengthens and makes more accountable. Fundamentally, the GMC’s Good Medical Practice states that the overriding duties for doctors include making the care of patients a doctor’s first concern and never discriminating unfairly against patients or colleagues. This means that if a doctor were treating private patients to a better clinical service, they would be in breach of these principles and could therefore be putting their registration at risk.
Similarly, any doctor who inappropriately attempts to persuade patients to use private services for their own gain would be in serious breach of medical ethics. For example, the department guidance on NHS patients who wish to pay for additional private care says this:
“NHS doctors who carry out private care should strive to avoid any actual or perceived conflict of interest between their NHS and private work”.
Indeed, the GMC’s own guidance states:
“You must give patients the information they want or need about … any conflicts of interest that you, or your organisation, may have”.
It makes the point again, in Good Medical Practice:
“You must not put pressure on patients to accept private treatment”.
Lord Phillips of Sudbury
If the Minister is correct in his description of the status quo, why does he think that three distinguished consultants, who are in the thick of it, asked to add their names to my amendment?
Earl Howe
My Lords, I have yet to hear from at least one of those consultants. Clearly it is for them to explain why they added their names. I am trying to explain to my noble friend that I see grave problems in accepting an amendment of this kind because in practice it is a non-issue, and because the idea that this is a matter for public policy is one that we should perhaps have a further conversation about. I am not convinced that my noble friend is introducing a matter that should go into statute. It is probably best if we defer further debate on this subject. I have listened carefully to my noble friend and other noble Lords who have spoken. I am happy to have a conversation with him after the Committee stage. I understand the issue that he has raised and I hope that he will accept that, but I see considerable difficulties in trying to frame an amendment in a way that will do precisely what he wants.
Lord Willis of Knaresborough
Could I help my noble friend? A sensible suggestion was made that this was more a role for Monitor than anything that should be in an amendment to the Bill. Would my noble friend agree that when this comes back, either later in Committee or on Report, we should look at whether Monitor should carry out the new duty, proposed in the Bill, to reduce inequalities? That might be a better way of moving forward.
Earl Howe
I shall be happy to look at that. Of course, Monitor has a role in making sure that a foundation trust adheres to the conditions of its authorisation, one of which is that its principal purpose will be to serve NHS patients. There could be mileage in that and I would be happy to look at it.
Lord Phillips of Sudbury
My Lords, I thank the Minister for his careful response to the debate. I also warmly thank all noble Peers who have taken part in it. It is worth putting on the record that not a single person spoke against the amendment; I think all but one spoke warmly for it. My noble friend said twice that I sought to introduce an inappropriate policy matter into the Bill. This is not a policy, it is a principle—a very fundamental principle. Indeed, the Minister himself, earlier in his response, talked with some pride of the fact that the Secretary of State has to reduce inequalities. That is the same principle, although the area of the Bill that deals with it is not about inequalities between NHS patients and private patients but about those between NHS patients in different parts of the country. It does not cover what is covered by the amendment.
However, I am grateful for the Minister’s offer of conversations afterwards, which I will happily take up. I will certainly want to co-ordinate not only with the three noble consultants who have added their names to the amendment but with others in the House who I know feel strongly about this. I feel sure that the wish and will is that this matter should be brought back at the next stage of the Bill, perhaps with better wording—several Peers referred to that. With that, I beg leave to withdraw the amendment.
Baroness Thornton
My Lords, my noble friend Lady Gibson is to be congratulated. I particularly indentify with her remarks about dispensing chemists. As she knows, I supported her on this when I was on the other side of the House, and the issue is close to my heart. She and the noble Baroness, Lady Jolly, have raised a very valid issue and I look forward to hearing the Minister’s remarks.
Earl Howe
My Lords, the amendment tabled by the noble Baroness, Lady Gibson, and all the amendments in this group, highlight the importance of ensuring that neither rural nor urban areas are affected by health inequalities. I quite understand the noble Baroness’s concerns—especially given that rural areas have unique circumstances that affect their health needs, such as a diffuse population and long travelling times for patients.
I therefore acknowledge that some significant issues face rural and urban areas, as was highlighted by the Marmot review. In particular, there are concentrations of shorter life expectancy and greater illness, and these tend to occur in some of the poorest areas of England, most of which are urban areas of deprivation. There are particular challenges with the provision of services in rural areas due to the higher cost of delivering services in more locations and the greater sparsity of rural communities.
However, although I am very sympathetic to the noble Baroness’s intentions, I do not feel that the amendments are the most effective way to achieve her aims. Existing reference to “England” or “its area” in the Bill already includes every type of population, including rural and urban populations. The responsibilities for commissioning are absolute across all the communities and individuals for whom they have responsibility. There is no discrimination between different areas. That principle runs throughout the legislation. Moreover, the fundamental and unique change we are making to commissioning is to give local GPs responsibility for securing services for their patients. That vital principle, above all others, will make a decisive break from the past by ensuring that the needs of much smaller groups of patients can be taken into account by the commissioners.
A CCG will be exercising its statutory functions appropriately only if it is meeting the reasonable needs of all the people for whom it is responsible, not just those in particular demographic areas. The guidance on commissioning which the board must issue under the power in new Section 14Z6 could, of course, cover issues relating to commissioning in rural and urban areas.
Although the noble Baroness’s amendments are unnecessary, they could also be damaging. That is because there is the potential under some of the amendments, however inadvertently, to limit the scope of the responsibilities which the Bill places on CCGs. Amendments 188 and 114 could limit the effect of the scope of the duty on reducing inequalities to a duty only in relation to reducing inequalities and access between rural and urban areas. That would not include the duty to tackle the variety of factors which can affect a person's ability to access the care that they need, such as socioeconomic background and ethnicity. The changes proposed to the Secretary of State's duty in new Subsection 1B are particularly problematic in their impact. The Secretary of State may no longer have regard to the need to reduce inequalities between the people of England but only between people in urban and rural areas. Similarly, Amendment 190 could limit the duties regarding reducing inequalities in outcomes to inequalities in outcomes between patients in rural and urban areas only. So I have concerns about the limitations that the amendments may impose.
Despite all that, I hope that I can reassure the noble Baroness that the Bill adequately provides for her worthy intentions—due, in particular, to its coverage of the whole of England. With that in mind, she may consider withdrawing the amendment.
Baroness Gibson of Market Rasen
My Lords, I thank the noble Baroness, Lady Jolly, and my noble friend Lady Thornton for their involvement in this short but important debate. I thank the Minister for what I think was his sympathetic reply and his explanation of the amendments, which was very helpful. Under the circumstances, I beg leave to withdraw the amendment.
EU: Economy
Earl Howe Excerpts(13 years, 8 months ago)
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Lord Collins of Highbury
NHS: Private HealthcareQuestion3.22 pmAsked By To ask Her Majesty’s Government whether general practitioner practices are permitted to advertise their own private healthcare services using the NHS logo.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, the Department of Health does not permit organisations, including general practitioner practices, to use the NHS logo to promote their non-NHS services, including private healthcare services.
Lord Collins of Highbury
I thank the noble Earl for his response, but of course most of us in the Chamber have read in the newspapers recently about the case of a GP practice writing to its patients. I believe that what happened there goes straight to the heart of general practice; that is, the relationship between the doctor and the patient. It is a relationship that I fear the Government show no sign of understanding. Will he give an assurance that the proposed form of commissioning in the health Bill will not result in the nightmare possibility of the doctor changing from the person who decides the best medical treatment for the patient to the person who decides what can be afforded?
Earl Howe
My Lords, I can give that broad assurance, but the noble Lord will know that it is already within the GMC code that doctors have to consider the totality of the resources available to them and take account of the needs of all their patients. With that qualification, of course our reforms are designed to ensure that the highest-quality care is delivered to every patient according to his or her needs.
Lord Walton of Detchant
My Lords, is the noble Earl aware that in the 1980s, when I was president of the General Medical Council, it was unethical for doctors to advertise and those who did could be disciplined? However, I and a number of other members of the council were summoned before the Office of Fair Trading and were accused of restraint of trade. After a lengthy hearing, it was agreed that GPs should be allowed to advertise, but that consultants should not in order to preserve the gatekeeper function of a GP for access to special services. Has the situation changed?
Earl Howe
My Lords, the issue of advertisements is slightly different from the issue surrounding logos, in particular the NHS logo. What I can tell the noble Lord is that where independent providers have their own logo and wish to use it, they can within the specifications outlined in the NHS guidelines. In cases where organisations are providing both NHS and private services, and those could include a general practitioner, then the information relating to the private services must not carry the NHS brand or logo type, and information relating to the private services must be kept separate from the NHS ones.
Baroness Gardner of Parkes
I have been a national health dentist. Surely the national health logo could be in the premises without necessarily being on the advertisement. It is important that practitioners should be clear on these matters. Patients want to know what services are available, whether they are national health or private and what the choices are, and it would be a deficiency on the part of a national health practitioner not to at least have information available. How can you differentiate so that it is not claimed that the NHS logo has been involved when you are basically a national health practice?
Earl Howe
My Lords, other than for GPs, dentists and pharmacists, where use of the logo is voluntary—although it is very widely used—providers of NHS services are required to display the NHS logo as a sign of their commitment to the NHS patients that they treat. That is fine as far as it goes. However, where private services are also being delivered from the same premises, there are clear rules laid down that the NHS logo must be nowhere near any information about those services and that patients have to be absolutely clear what service they are receiving, whether it is NHS or private.
Lord Harris of Haringey
On the basis of that answer, does the noble Earl accept that it is inappropriate for an NHS general practitioner, during an NHS consultation with a patient, to offer their own private, non-evidence-based services instead of an NHS service —in other words, to offer their own private services in the context of an NHS consultation? I speak from personal experience.
Earl Howe
My Lords, except in limited circumstances, which must be set out in their contract, primary medical service contractors—GPs, in other words—cannot directly or indirectly seek or accept from any of their patients a payment or other remuneration for any treatment. The prohibition not only relates to treatment provided under the primary medical services contract but extends to any treatment that may be provided to the patient.
Baroness Jolly
My Lords, we all agree that the NHS logo must be one of the most trusted brands in the UK. It is currently outside diagnostic and treatment centres which are privately run, so can the noble Earl tell the House whether the Government will issue guidance to any qualified private providers about the use of the logo?
Baroness Thornton
My Lords, perhaps I may press the Minister, following on from the question of the noble Baroness, Lady Jolly. I looked at the NHS brand guidelines website and it is most specific about the colours, size, margins, borders and even communication principles. It is silent, however, about who cannot use the NHS logo. It has a list of organisations which can use it but is silent about who cannot. Given that we may be heading towards a world with a multiplicity of providers, will the Minister undertake to look at the NHS brand guidelines with a view to making it clear under what circumstances the brand may or may not be used?
Earl Howe
I will, of course, look at that point. However, the NHS logo is considered to be the cornerstone of the NHS brand identity. The letters NHS and the logo type are trademarks managed by the branding team at the Department of Health on behalf of the Secretary of State for Health, who technically holds the trademark. They are extremely well recognised and trusted, and use of them is very carefully controlled indeed.
Baroness Finlay of Llandaff
Are the Government satisfied that the general practitioners in the focus of this Question were not subject to double payment—first, paid under the terms of their GMS contract for general medical services to patients on their list, and, secondly, then receiving private payments for giving the service that had already been paid for under the GMS contract?
Earl Howe
My Lords, I have already indicated that there must be a clear separation between NHS services provided by a general practitioner and its private services—or indeed services for which it is entitled to charge that fall outside its contract. The rule is that patients should be left in no doubt about which service they receive.
Health and Social Care Bill
Earl Howe Excerpts(13 years, 8 months ago)
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Lord Mackay of Clashfern
My Lords, in response to the obvious concern over the Secretary of State’s responsibilities, as narrated in the Bill, I attempted to find, from a completely impartial point of view, a solution that would commend itself to everyone. In due course, I came up with an amendment, which your Lordships have seen. My first action was to send a copy of it to the noble Lord, Lord Owen, and others, including the noble Baroness, Lady Thornton. I hope that demonstrated that there was nothing partisan or anything of that sort about it. In trying to put the amendment together, I looked very closely at what the Constitution Committee had said. I think the noble Baroness, Lady Jay, and I demonstrated last time that we had considered these matters in some detail.
I also considered all that had been said about concerns on this matter in the Second Reading speeches, of which there were quite a few. I have endeavoured to meet these concerns in the amendment. As I say, I hoped that the House would find it acceptable but a number of questions have been raised and, as the noble Baroness said, lawyers are apt to disagree on these matters. On the other hand, lawyers are usually reasonably able to reach agreement when they set their minds to it. Therefore, I have no intention of moving my amendment today so there can be no question of its acceptance or otherwise today. An amendment to it has been proposed by my noble friend Lord Greaves. He told me that his idea was to find out what the meaning of “ultimate” was. Maybe I should briefly deal with that now. “Ultimare” is the Latin verb from which it comes, which means to come to the end—not always a comfortable position. The definition in the Oxford English Dictionary is:
“Lying beyond all others; forming the final aim or object”.
That is the sort of idea that I had—that it is the final responsibility of the Secretary of State; in other words, in ordinary language, “The buck stops here”. That was my object in using that phraseology.
During my researches in the Oxford English Dictionary I noticed that Dr Johnson said in 1758 that to be idle is the ultimate purpose of the busy. As I say, I have no intention of moving my amendment today. I hope that we can reach agreement on this matter in informal discussions outside the Chamber. A large number of important practical issues remain to be considered in subsequent Committee days. This sort of question, which is primarily rather theoretical but very important from the point of view of people’s attitude to the National Health Service, should be determined. However, it would be more conveniently determined in discussions between ourselves outside the Chamber. Certainly, I would be willing to participate in those discussions if the amendments before us today are not proceeded with.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, before we move further forward with our debate, I hope that noble Lords will find it helpful if I make a very brief intervention. I am aware that a number of noble Lords wish to speak and I have no wish to prevent that. The Committee must, of course, proceed as it sees fit. However, I felt it might be useful to those intending to speak if I indicated now rather than later what the Government’s preferred course is in relation to this group of amendments. Some noble Lords will be aware that the Government regard the amendment tabled in the name of my noble and learned friend Lord Mackay and the noble Lord, Lord Kakkar, as having particular merit in the context of this debate. Notwithstanding that, and having spoken to a number of noble Lords during the past few days, including my noble and learned friend, it is my view that the best course for this Committee would be for none of the amendments in this group to be moved today, and instead for us to use the time between now and Report to reflect further on these matters in a spirit of co-operation. I shall, of course, say more when I wind up the debate but it may assist the Committee to know that that is the position that I shall be taking.
Baroness Thornton
In the spirit of co-operation across the House it might be useful if I outline the position of these Benches, too. During the past few days I have said to anybody who would listen to me that this is the position in which I thought we probably ought to end up. Those who have been sitting with me on the Long Table can bear testament to that. The reason I added my name to the amendment of the noble Baroness, Lady Williams, is because I feel strongly that that is the right way forward. I am very pleased to hear that the noble Baroness has not resiled from her position on that. I have talked to several lawyers and consider that the amendment in the name of the noble and learned Lord, Lord Mackay, may address political issues but does not fully address the legal issues concerning the responsibility of the Secretary of State.
I have what I can assure noble Lords is a sparkling 10-minute speech, but I do not intend to make it now. However, I may save it for a later occasion. I think this is a good solution if other noble Lords agree with it. I look for an assurance from the Minister about how the discussions on this matter should proceed. We have a record on this Bill of cross-House discussions involving all the people with an interest and expertise in matters relating to it. In that spirit, I wish these amendments to be withdrawn so that not only our lawyers but our medical experts, and, indeed, the Constitution Committee, can be persuaded to have another go at this issue. Towards Christmas we may find a solution that suits us all. If not, I may instead have to make my 12-minute sparkling speech on Report. I hope that the House will feel that this is a good way forward.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, this has been an excellent debate. It has proved one thing in my mind: an issue of this importance for the Bill—the overarching duty of the Secretary of State for the NHS—has benefited enormously from having a Committee of the Whole House to consider it. Without unnecessarily detaining the Committee, I hope it will be helpful if I say something on the record about each amendment.
I begin with Amendment 3, tabled by my noble friend Lady Williams, the noble Lord, Lord Patel, and the noble Baroness, Lady Thornton, and Amendment 5, tabled by the noble Baroness, Lady Thornton, and the noble Lord, Lord Hunt. Both amendments would have the effect of restoring the Secretary of State's current duty to provide services in Section 1 of the National Health Service Act. There has been extensive discussion of this both today and at Second Reading, so I shall not recap all the arguments. The core argument is that the duty to provide no longer reflects the practical reality of how NHS services are delivered or our proposals for the Secretary of State's functions in the new system.
Before I explain further, I should make clear that we are now discussing the Secretary of State's relationship with NHS services rather than his duties in relation to public health, where his direct responsibilities for provision remain firmly in place. In that context, I refer noble Lords to Clause 8 of the Bill. While I understand that many people are attached to wording that dates back to the founding Act of 1946, it is now more than 20 years since the Secretary of State had any direct responsibility for the provision of services. Only a tiny minority of NHS services—those still provided by PCTs —are carried out under the Secretary of State's delegated function of providing services. In future, all NHS services will be provided by NHS trusts or foundation trusts, both of which have their own self-standing powers to provide services and do not rely on the Secretary of State's duty to provide under Section 1(2), or by independent providers. The Secretary of State will have no powers to provide NHS services. That is the reality.
I am grateful to the noble Lord, Lord Warner, and to my noble friends Lord Newton and Lady Cumberlege for their persuasive arguments articulating the need to reflect this reality in legislation. As my noble and learned friend Lord Mackay helpfully explained, the Secretary of State has never had an unqualified duty to provide services; he has had a duty to provide or secure the provision of services. In recent years he has relied on the latter part of that duty to fulfil his functions, while the former part has ceased to have any practical relevance. I hope that that answers the question posed by the noble Baroness, Lady Jay.
There is another reason why it would be wrong to reinstate the duty on the Secretary of State to provide. Under the legal framework of the Bill, the Secretary of State no longer possesses powers to direct others to provide services. Therefore, unless we were to re-impose a system of regulations or directions by which the Secretary of State could delegate his duty to provide and control its exercise, which would risk replicating the micromanagement of the status quo, it is hard to see how this legal obligation to provide services could be fulfilled. For obvious reasons, it would be undesirable to create a situation in which the Secretary of State provided services himself. Also, in practice he would lack the capacity to do so, for example in terms of staff and facilities.
Instead, the duty we propose in the Bill is a more accurate reflection of what Ministers do. In line with policy that has evolved over two decades, the Secretary of State will not provide services or directly manage providers; nor will he have the powers to do these things. Instead, providers will be regulated independently. Rather than intervening in day-to-day decisions by local providers, the Secretary of State will have powers to hold to account the regulators, Monitor and CQC, for the way that they are performing their functions, and powers to hold the NHS Commissioning Board to account for the way that services are commissioned. In other words, the Secretary of State—
Baroness Scotland of Asthal
My Lords, I hesitate to intervene on the noble Earl, who knows I hold him in the highest possible esteem, but I think he is now treading on some contentious legal issues. Bearing in mind the wonderful consensus that we have now reached, I would just ask him to consider whether, at this stage, some of those issues are really helpful because the noble Earl will know that the Secretary of State does, by his servants, agents or otherwise, provide services and, indeed, there have been times when there has been a pandemic when the Secretary of State has had to make such provision. These are contentious issues which I am sure could intrigue us for many hours, but since we have happily come to the conclusion that we have had a surfeit of such happiness and wish to go forward, I gently say to the noble Earl that this might be a moment when we could swiftly do that.
Lord Lester of Herne Hill
My Lords, I would not have intervened otherwise, but I respectfully disagree with what the noble and learned Baroness, Lady Scotland, has just said. I am finding it very helpful to listen carefully for this reason: it seems to me that the Secretary of State must have a duty to secure the provision, as has been said by the Minister, for the purposes of giving effect to our international treaties, including those on human rights. Therefore, what he is saying at the moment is very important to me in trying to see how one can get wording that will include that as well.
Baroness Thornton
The reason I did not make my 12-minute speech was that we are now going to go into a period of consideration. I respectfully say to the Minister that we could start the whole debate all over again if he continues telling us what the Government do or do not believe on this because that is presupposing, and possibly pre-empting, the discussions that we are about to have. The noble Lord may find it useful, but we have had a lot of this discussion. We have now, I thought, agreed to move into discussions outside the Chamber.
Lord Harris of Haringey
I appreciate that the noble Earl is moving to a position of not addressing those questions, but it is important that he tells the Committee whether the Government have a fixed mind on these matters or whether they are going to approach with an open mind the discussions that we, in an outbreak of consensus, have agreed should happen and try to build on that consensus. If the views are closed, it raises some very difficult issues for the Committee.
Earl Howe
No, my Lords, there are no closed views. That is the reason why I suggested earlier that it was time to reflect and engage in discussions in the spirit of co-operation. I would not have said that if I had had a closed mind to them. There would not have been any point in the discussions. I simply wished to do noble Lords the courtesy of answering their questions and addressing the points that they had made. If noble Lords would rather that I did not do that, then we can make life easier for ourselves. I will certainly write to noble Lords if they would like to inform me afterwards that they wish to receive a letter. If they do not, I will not write. It is entirely up to them. I do not wish to make work for myself unnecessarily.
I have said that I believe the balance of advantage for this Committee lies in our agreeing collectively not to amend the Bill at this stage and I am pleased that there seems to be consensus around that view. I believe instead that it would be profitable for me to engage with noble Lords in all parts of the House, both personally and with the help of my officials, between now and Report to try to reach consensus on these important matters. I would just say to my noble friend Lord Marks that that includes the issues that he has helpfully raised this afternoon. I believe that he is right to associate Clause 4 in particular with the matters that we have been considering. Those discussions can be carried out in an informal way with interested Peers or in individual meetings in the House or my department. There is a place for either type of discussion. My concern is only that it is an inclusive process involving Peers from all sides of the House, and that will include listening to the views of the Constitution Committee should it choose to continue its valuable role.
With that, I hope that no noble Lord will feel cheated by the brevity of my contribution and I shall sit down.
Baroness Williams of Crosby
I am happy to withdraw my amendment given the statement made by the Minister. I also join the many people in this House who have said how much we appreciate his almost unending patience with us and his willingness to listen and engage in extremely informed and very intelligent debate. It gives me pleasure on this occasion to withdraw the amendment.
The Earl of Listowel
I thank the noble Lord, Lord Beecham, for moving this amendment and for giving us an opportunity to discuss a definition of the services of the National Health Service. Perhaps the Committee will forgive me if I make now the arguments that I had hoped to make in the later debate on mental and physical health in the health service, for which I am unable to be present. Those arguments are also pertinent to this amendment.
I seek reassurance from the Minister that the new arrangements for the health service will have a specific duty to focus on support of the relationship between the parent and the child, or whoever is acting in loco parentis for that parent, particularly during the early years and in adolescence. Professionals say that adult mental health hinges on the relationships between the primary carers and the child in early life and in adolescence.
The Government’s White Paper highlighted that mental health is important to public health. It follows that in the future we have to be even more careful to ensure, without being overly intrusive, that the relationships between parents and children in the earliest years and in adolescence are as supportive as possible. The health service should have an important role in that. For instance, there is tremendous pressure to generate more early years nursery places. In a recession, we want parents to work and to help build capacity. Nurseries need to be cheap, yet we know that high-quality early years intervention is crucial to better outcomes for children. We also know that the people who work in those settings are often underpaid and not properly supported, and that there can be a high turnover of staff. In driving people, for understandable reasons, to use nursery provision more, there is a danger that the relationship between the parent and the child could be undermined.
The evidence indicates that high-quality early years education produces better outcomes in school for children. Professor Jay Belsky at the University of London investigated this issue. Exposure to poor-quality early years education and nursery care over a number of years can have serious, although small, deleterious effects. But if a lot of children go through these experiences, the overall impact can be significant. It is very hard to measure—this is probably why it does not get prioritised enough—what difference it makes if there is not sufficient support for relationships between parents and children in the earliest years and in adolescence. It is easy to measure cognitive performance in schools, whereas the relationship between parent and child in the earliest years and adolescence is hard to measure. However, qualitatively I am very clear, after consulting with colleagues in the mental health profession, that it is hugely important to get that support right.
I know that the Department of Health works closely with early years services to try to offer such support, but there are still shortcomings. For instance, there is not sufficient support in adult mental health services for adults as parents in children’s centres, and more work could be done. An old chestnut is that, if a parent is presenting with mental health issues, thought is not always given to the fact that the parent has children who will have needs. If a parent is mentally ill, what are the mental health needs of the children? Again, if a child presents with mental health problems, a proper assessment needs to be made to look at whether perhaps the best input is to support the parents. That may help the child to get better.
Noble Lords will be pleased to know that I will not say much more. A few years ago I remember working with a young man who was just coming out of adolescence. His father was an alcoholic and he had experienced domestic violence in his home. I was seeing him and working with him once a week for six months. The issues he had were that he was experiencing growing paranoia, he was fearful and distrustful of the staff, he was mercurial and unpredictable in his behaviours and he had a difficult relationship with women. If there had been better support for that family, perhaps the nascent problems we saw at the time could have been nipped in the bud and he would not have had those difficulties.
I am sorry if I am not explaining myself sufficiently clearly, but I would be grateful if the Minister could reassure the Committee that in any of the new arrangements there will be a particular focus on getting in early to support families, both parents and those acting in the role of parents, in their relationships with their children to make sure that those relationships are strong. Children will then have a good basis from which to grow and enter adulthood. I hope that that will be a priority in the new arrangements.
Earl Howe
My Lords, Amendment 7, tabled by the noble Lords, Lord Beecham and Lord Hunt, and the noble Baroness, Lady Thornton, seeks to set out a new definition of the health service in England as,
“those services provided under section 3”,
of the 2006 Act. While I know that the noble Lord has the best interests of the NHS at heart, I fear that this amendment might achieve the opposite of what he intends because its effect would be to narrow the definition of the health service.
Section 3 of the NHS Act 2006, as amended, will set out the services that clinical commissioning groups will be required to commission, including, for example, maternity services, hospital accommodation and, in answer to the noble Earl, Lord Listowel,
“such other services or facilities for the care of pregnant women, women who are breastfeeding and young children as he considers are appropriate as part of the health service”.
Defining the health service as meaning only those services set out in this section would limit the application of the provisions of the Act, excluding other vital parts of the health service that are not defined in Section 3. For example, that definition would exclude primary care and specialised services, which would be commissioned by the NHS Commissioning Board, and public health services, which would be provided or commissioned by the Secretary of State or local authorities. Clause 1(1) of the current Bill retains the Secretary of State’s duty to promote a,
“comprehensive health service designed to secure improvement … in the physical and mental health of the people of England, and … in the prevention, diagnosis and treatment of illness”.
This clearly sets out what the health service must do. Any attempt to define it more precisely might have the perverse effect of leading to an NHS which delivered fewer services.
I can assure the noble Lord that services commissioned by clinical commissioning groups will be covered by the wording of the unamended clause, and thus these services will be covered by the Secretary of State’s duty to promote the comprehensive health service. As part of the health service, those services must remain free of charge. Clinical commissioning groups will be responsible for commissioning the services listed in Section 3 of the 2006 Act such as hospital services and maternity services. They must arrange those services, although as with primary care trusts at present, Section 3 will permit them discretion to determine precisely what services are necessary to meet the reasonable requirements of their local population. The Commissioning Board will issue commissioning guidelines and monitor the commissioning activity of CCGs with a view to ensuring that no essential services go uncommissioned in any given locality.
Earl Howe
Yes, my Lords. I hope that I can reassure noble Lords on their very valid concerns on this topic. Perhaps I can say a few general words first of all about quality. The Government’s ambition in modernising the NHS is to create a health service that delivers outcomes as good as any in the world. We all know that at its best the NHS is world-class, but we also know that there are important areas where the quality and outcomes of care could and should be improved. If we are to safeguard the quality of services and drive improvement, we must take positive action. We are addressing the structural weaknesses in the system and seeking to embed the principle of quality throughout. This is why the Bill creates a legal duty for the Secretary of State and for the NHS Commissioning Board and clinical commissioning groups to be guided by the need to improve quality in all that they do.
In doing this we are building on the work of the previous Government under the noble Lord, Lord Darzi, and in particular we are using the definition of quality that he introduced—care that is effective, safe and delivers a good experience for patients. By positioning the quality duty in the context of a duty in Clause 3—to bear in mind the need to reduce inequalities within the population in designing services, particularly the most vulnerable members of society—we intend that these reforms will deliver the vision of high-quality care for all, as he so ably articulated.
Amendments 9, 10 and 14 place a duty on the Secretary of State to provide or secure the provision of services that in their turn should secure continuous quality improvement. We have already debated at great length Clause 1 and the duty to provide, and I shall not rehearse that discussion again, but I should like to be clear that it is the role of commissioners to drive quality improvements and the role of the Secretary of State to seek to improve quality by exercising his functions. He will do this, for example, through the mandate that he sets for the board, or the outcomes framework which he will issue and to which the board must have regard when it exercises its duty in relation to quality.
The amendments also place a duty on the Secretary of State to secure continuous improvement in the quality of services. Similar amendments were debated at some length in another place. It was clear throughout those debates that there is extensive and wide-ranging support for the principle that the health service should strive to provide the best possible service to patients. I thank the noble Baroness, Lady Thornton, for indicating her support for that principle. I am sure that we share it. As drafted, the Secretary of State, and in practice the Department of Health, is required to seek to achieve continuous improvement even if external factors mean that in particular cases such improvement may not be delivered. In our view, the clause as drafted should do what is necessary to deliver improvement in the quality of services while not imposing unreasonable or unrealistic burdens on the Secretary of State and the NHS. We believe that this duty, taken alongside those placing the same duty on the board and clinical commissioning groups, and the expectations that the Secretary of State will set through the outcomes framework, already ensures that the principle of securing continuous improvement in service quality is embedded throughout the health service and the wider care system. I hope that I have reassured the noble Baroness, Lady Thornton, of the Government's commitment to the continuous improvement of quality within the health service, and that she will not press her amendments.
I turn to Amendments 10A, 10B and 11A, tabled by the noble Baroness, Lady Finlay. They seek to strengthen the duty by inserting “and” in place of “or” where the clause lists the areas that the duty to secure quality improvement applies to. The noble Baroness expressed concern previously about the wording. I assure her that “or” is the appropriate word and that we are not allowing the Secretary of State to neglect certain aspects of healthcare when exercising their duty. There is no risk that the courts could misinterpret the unamended clause as meaning that the Secretary of State has to exercise his functions with a view to securing continuous improvement in the quality of services in only some rather than all areas that the Bill specifies.
The duty refers to quality in respect of services provided to individuals. In many cases, particular services provided to an individual will relate to one or more of the matters referred to in new subsection (1)(a) and (b), but not to all of them. For example, the service may be to prevent or diagnose illness but not to treat. Another service might be to treat but not to diagnose. The use of “or” makes it clear that the duty applies to the quality of all services, whatever the purpose for which they are provided. Although I am certain that it is not the noble Baroness's intention, the use of “and” would inaccurately suggest that the duty could apply only to the provision of services that prevent or treat illness.
Amendment 10A seeks to extend the duty to improve the quality of services from those provided to individuals to those provided at a population level. Of course it is just as important for public health services to improve as it is for any other sort of health service, but new Section 1A already recognises that with its explicit reference to public health services in subsection (1)(b), which refers to the,
“protection or improvement of public health”.
The wording is echoed in Clauses 8 and 9, which set out the new public health duties of the Secretary of State and of local authorities.
Clauses 8 and 9 provide examples of steps that may be taken under those duties and that might therefore be subject to the duty of quality in new Section 1A. They include providing information and advice, for example, as well as preventing or treating illness. This means that new Section 1A already applies to a wide range of public health services. Any public health activity that involves the provision of a service to individuals—albeit that the general purpose is to improve or protect health at a population level—such as vaccination or smoking cessation, would be covered by the duty in the clause as drafted. Of course, improving the health of populations cannot be achieved without improving the health of individuals. I make it clear that some steps may be taken to improve or protect public health under Clauses 8 and 9. These extend beyond services provided to individuals.
I turn to questions that were raised. The noble Baronesses, Lady Thornton and Lady Finlay, spoke about the importance of commissioning for an area-based population. We completely agree with the general sentiment. That is why CCGs, contrary to the perception of some noble Lords, will commission for all unregistered patients within their geographic area, as well as for those on their registered lists and others to be defined in regulations. I refer noble Lords to Clause 10(3), which is on page 6. It is also why we are establishing health and well-being boards to agree a holistic strategy for their area. That is Clause 190.
We amended the Bill in another place to clarify that clinical commissioning groups have responsibility not only for patients registered with the GP practices that comprise their membership, but for those usually resident in the clinical commissioning group’s area who are not registered with any GP practice. We must also ensure, when we exercise the power to set out other persons for whom a CCG has responsibility, to provide through regulations that a CCG has responsibility for ensuring that everyone in its area can access urgent and emergency care. I turn to my noble friend Lady Tonge, who asked me about that issue.
Baroness Tonge
Will the Minister clarify the phrase “clinical commissioning group area”? I thought that it was not going to be defined. I obviously got the wrong end of the stick. GPs are free to have patients on their lists from wherever; therefore, what does he mean by their “area”?
Earl Howe
My Lords, I will address that question in a moment, if I may. The noble Lord, Lord Warner, asked how clinical commissioning groups will deal with the non-registered population in practice. Individual clinical commissioning groups will have responsibility for ensuring that patients resident in their area who are not registered with a GP have the same access to the care for which the clinical commissioning group has commissioning responsibility as a patient registered with a GP. Individual clinical commissioning groups will need to ensure that they have sufficient geographical focus to be able to commission emergency care services for anyone who needs them when in their area. The National Health Service Commissioning Board will be responsible for establishing a comprehensive system of clinical commissioning groups covering the whole of England, and the board will be responsible for commissioning primary medical care for the unregistered patient population. I think that my noble friend Lady Tonge is confusing two issues.
Lord Warner
Can I just be absolutely clear that I have understood the noble Earl? Is he saying that a clinical commissioning group with a defined geographical area for which it is responsible also has a responsibility to find out about the needs of all those who are not registered with a GP, including homeless people, asylum seekers, rough sleepers and you name it? Is he saying that the group has a responsibility to find out how many of those people are in its area and that it must commission services for them?
Earl Howe
Let me be clear: each clinical commissioning group will have a specific geographic area and will have responsibilities linked to it. This addresses the question asked by the noble Lord, Lord Rea, as well. Unregistered patients of any shape or kind are one example. Clinical commissioning groups will be informed by the work done in the health and well-being boards, whose job it will be to define the health needs of an area and what they believe the priorities are for commissioning in that area, and to produce a joint health and well-being strategy that addresses those priorities. The interaction between the health and well-being board and the clinical commissioning group should ensure that the marginalised groups of people to whom the noble Lord refers will be catered for.
Lord Walton of Detchant
The noble Earl has been extraordinarily helpful in his comments. However, in new Section 1A, entitled Duty as to improvement in quality of services, subsection (1) states:
“securing continuous improvement in the quality of services provided to individuals for or in connection with … the prevention, diagnosis or treatment of illness, or … the protection or improvement of public health”.
However, it reads as if (a) and (b) were qualifying clauses, qualifying the services provided to individuals. As I read it, it does not make it clear that the quality of services provided to communities would be embraced by this even though it refers to public health. That is my concern, and I would be grateful if the noble Earl could in due course consult as to whether I am totally mistaken in that view.
Earl Howe
I will cover that point in a second. I should perhaps clarify that the area covered by an individual clinical commissioning group will be agreed with the NHS Commissioning Board and, as I will explain in a minute, that area should not without good reason cross local authority boundaries. That is a different issue from the issue raised by the noble Lord, Lord Rea, of GP practice boundaries, and we need to distinguish the two in our minds.
The right reverend Prelate asked why we could not remove the words “provided to individuals”. The duty on the Secretary of State to act,
“with a view to securing continuous improvement in the quality of services”
is worded to refer to the “services provided to individuals”. This is because the NHS treats patients on an individual basis. Overall improvement in the quality of the treatment service will improve the health of the population as a whole, but we must not forget that there is a separate, complementary duty to improve the health of the population as a whole using public health mechanisms. Improvement is necessary in both prevention and treatment, and the Bill sets out separate duties in relation to other population-based activity; for example, population-based public health research.
In answer to the noble Baroness, Lady Finlay, the Government accepted the NHS Future Forum’s recommendation that the boundaries of local clinical commissioning groups should not normally cross those of local authorities, and this is now reflected in the proposed authorisation framework for CCGs, subject to the agreement of the process with the NHS Commissioning Board. However, we do not believe it would be in patients’ interests to make this an absolute rule. One of the key roles for clinical commissioning groups will be to manage relationships with local hospital providers and in some areas patient flows into acute hospitals do not match local authority boundaries. The proposed authorisation framework makes clear that CCG areas may cross local authority boundaries only where, for reasons like these, it is demonstrably in the interests of patients.
In answer to my noble friend Lady Cumberlege, whose comments I very much welcomed, all relevant clinical commissioning groups will be required to appoint a representative to the health and well-being board if part or all of their area falls within or coincides with the local authority area. That will provide a vehicle for NHS and local authority commissioners to work together on the health and well-being of the population. There is nothing to prevent health and well-being boards from inviting other clinical commissioning groups that have large numbers of registered patients within the local authority area to attend and be represented. I hope that goes some way towards addressing the concerns that the noble Baroness raised. She expressed a general fear about lack of coterminosity between local authorities and CCGs, leading to fragmentation. As I have said, there is going to be a presumption against CCGs crossing local authority boundaries, but there is an important point in this connection in Clause 20, which will impose a duty on the board in new Section 13M in relation to promoting integration; in particular, new Section 13M(3) will impose a duty on the board to,
“encourage clinical commissioning groups to enter into arrangements with local authorities”
where this would assist with integration of health and social care.
The noble Baroness also referred to GP practice boundaries. She will know that the previous Government, as well as the present Government, were keen to ask patients about the choice of GP practice. It is our aim, which we expressed in the White Paper, to give every patient a clear right to register with any GP practice they want from an open list without being restricted by where they live. Many, if not most, patients are quite content with their local GP practice, but a significant minority have problems registering with a GP practice of their choice or with securing access to the high quality and range of care services that they deserve.
I can inform the Committee that agreement was reached with the BMA today. NHS employers have been discussing our proposals with the General Practitioners Committee of the BMA as part of the annual GP contract negotiations, and the agreement that we have reached with that committee is that from April 2012 GP practices will agree with their primary care trust an outer practice boundary whereby they will retain, where clinically appropriate, existing patients who have moved house in the outer boundary area.
There will also be a choice pilot in two or three cities, or possibly parts of cities, whereby patients will be able to visit a practice either as a non-registered out of area patient, for which the practice will receive a fee, or as a registered out of area patient. Practices will join the pilot on a voluntary basis. I think that that represents a very satisfactory way forward. We can look at which model works, if either of them does, and see what the problems are with each.
The noble Baroness asked about the risk of cherry picking patients. We do not see that as a danger. Under their contracts, GPs have a measure of discretion in accepting applications to join their patient lists. However, they can refuse to register a patient only on reasonable and non-discriminatory grounds. They cannot turn patients away simply on the grounds of their medical condition, or for that matter on the grounds of their race, gender, social class, age, religion, sexual orientation, appearance or disability. In future, we want to make it easier for people to choose the best GP practice for themselves and their families. The pilot arrangements that we have agreed will be invaluable to understanding more fully the issues of GP choice.
I hope I have covered most of the points that have been raised. I hope that my answer to the question posed by the noble Lord, Lord Warner, satisfied him, but I just reiterate that CCGs’ responsibility for planning for homeless people and all the groups that he mentioned is a core part of the CCGs’ functions.
Lord Newton of Braintree
My Lords, I take it that the answer to my question is that CCGs do have a duty to plan for everyone in their area. However, along the way, the Minister indicated that some of the information that will enable them to do this will come from health and well-being boards and their assessment of the needs of the population. The fact is that the health and well-being boards do not cover the same areas. They might cover the area of a number of CCGs, but they do not relate to the specific area of any specific CCG. The question is therefore: do the health and well-being boards have a duty to translate their information into the areas covered by CCGs?
Earl Howe
I am grateful to my noble friend. The point I was seeking to make was that health and well-being boards will be in a very good position to assess and have a sense of the unregistered and, if I can express it this way, the more dispossessed elements of society. I think CCGs will find that an invaluable source of information in planning the commissioning of services.
My noble friend asked me a yes or no question: are CCGs just like PCTs? In terms of population responsibility, the responsibilities are very similar. CCGs are responsible for patients on the registered lists of their constituent practices as well as having specific area-based responsibilities, as I pointed out, linked to their unique geographic coverage. It is possible for individuals within that area to be registered with a GP practice which is a member of a different CCG. They would therefore be the responsibility of that other CCG. So that is a slight complication. However, it is important to remember the critical role of health and well-being boards in planning in a holistic way across an area covering not just the NHS but public health, social care and other services.
Lord Newton of Braintree
I am sorry to press the Minister further. I want to ask one further question and then I will shut up—I promise. Health and well-being boards, and possibly CCGs, will cover widely differing kinds of area: urban populations where there may be many more homes and people, asylum seekers and the like; conurbations of one kind or another; and a rural periphery. Let us make this oversimple. Do the CCGs in the conurbations know what their situation is in respect of homelessness, asylum seekers and all the other things that the noble Lord, Lord Warner, talked about?
Earl Howe
My Lords, there are perhaps several issues bound up in my noble friend’s question. It is entirely possible that a CCG will cover two local authority areas. In that event, it will have a clear duty to work in partnership with both local authorities to improve health and well-being and to secure more integrated services. Do health and well-being boards need to translate their assessments for each clinical commissioning group area? The CCG will need to use the joint strategy of the health and well-being board to inform its commissioning plan according to the needs of its local population. It is in its interests to ensure that the information is translatable.
I would be happy to write to my noble friend because there is a clear narrative here, although I may not be expressing it entirely clearly. Obviously, there will be instances where boundaries do not coincide. As I have said, we are aiming for that not to happen but it will in some cases and it has to be dealt with in terms of the duties that we set out.
Lord Warner
I will not torture or tweak the Minister any further but I will ask him to make a sensible response on this issue after today’s Committee sitting. It would be extremely helpful if he could take two or three areas—perhaps an urban area and an urban/rural area—and show us where there is a health and well-being board and where there are pathfinder groups of CCGs, and how this would work in practice. I think that we would find this much easier to understand if there was a diagram.
Baroness Tonge
I am sorry to torture the Minister further. He seems to be saying that clinical commissioning groups are PCTs by another name, with the exception of public health services and community services. That is the impression I get. Can he tell us how much it will cost to transfer the bureaucracy of the PCTs to the bureaucracy of the clinical commissioning groups?
Baroness Hussein-Ece
I am sorry to press the Minister on the point I made about homeless families who are placed in different boroughs or areas by their local authority. Under the present system, the GP practice where the family was originally based would wash its hands of that family and say, “You are no longer in my area”. Is the Minister saying that wherever a family has been placed, they would still be able to retain the services of the GP where it originated from or would they have to register with a practice close to the temporary accommodation in which they may have been placed. Such placements can last for many years. Will the family have to seek a GP close to where they have been placed or could they still use the GP services from whence they came?
Earl Howe
It would depend how far the family had moved away from the GP practice. What I was trying to say was that the agreement we have reached with the BMA comprises two elements. One is that the outer boundary of a GP practice is going to be flexed in a sensible and pragmatic way so that if you move a few streets away from where you were previously living, you can still be treated in the same GP practice. The other element of the agreement is the pilots that we are looking at. They are only pilots and we will set them up in order to experiment and learn lessons from how they work. It is impossible for me to give my noble friend a generalised statement at the moment because it will depend on the circumstances. At present, the rules will remain roughly as they are other than the flexed boundary rule that I have mentioned.
Baroness Thornton
My Lords, I congratulate the noble Baroness, Lady Hollins, on bringing forward the amendments and all those who have spoken in what I think has been an extremely useful debate. All those months ago, we had all-Peers meetings about this and many other issues. I am sure that the quality and comprehensive nature of the amendments owes something not only to talent and expertise but also to the fact that the experts in the House have been working with many organisations over a long period. I congratulate everyone on the quality of the debate and the amendments.
The amendments approach the Bill holistically—I do not really like that word. They concern the Secretary of State's responsibilities, the duties of the Commissioning Board and the duties of the clinical commissioning group—the triggers, the levers that may make this a reality. Because of that, I am very attracted to them. It is also important that they express the expectation of parity of esteem between mental and physical health services. As has been said, my Government and this Government have certainly made progress on this issue. I look forward to hearing the Minister’s comments, and I hope that he will find some way to recognise the support for the amendments across the House.
Earl Howe
My Lords, I agree with the noble Baroness, Lady Thornton, that this has been a debate of very high quality, covering a topic of huge importance. All the amendments deal with the same matter. Each seeks to amend the duty of quality to include an explicit reference to the prevention, diagnosis or treatment of physical and mental illness. Amendment 11 does so for the Secretary of State; Amendment 105 applies to the NHS Commissioning Board; and Amendment 180 applies to clinical commissioning groups.
I completely share the noble Baroness’s concern that we should never forget mental health in the drive for improving quality—quite the contrary. The noble Lord, Lord Patel of Bradford, and many others, mentioned parity of esteem between mental and physical health and the need to end the dualism in thinking that has in the past hindered an holistic approach to care. Noble Lords have expressed the concern that the Bill is wrongly silent in not referring explicitly to mental illness. I hope that I can successfully plead not guilty to that charge. First, I reassure all noble Lords on the central point of drafting, which is that all references to illness already include both mental and physical illness. The term illness is defined in Section 275 of the National Health Service Act 2006 as including mental disorder within the meaning of the Mental Health Act 1983. As a result, references to the prevention, diagnosis and treatment of illness would already apply to both physical and mental illnesses without the need for those additional words. The definition is already there. Therefore, the signal mentioned by the noble Lord, Lord Rooker, is already there.
The new duties placed on the Secretary of State for Health, the NHS Commissioning Board and clinical commissioning groups continuously to improve quality as defined by the noble Lord, Lord Darzi, already apply to the provision of both physical and mental health services. That is not to say—and I would not seek to suggest—that such services need no improvement. The noble Lord, Lord Patel, was quite right to draw attention to variations in mental healthcare around the country, despite the significant additional resources that have been directed to mental health services in recent years.
I fully agree that the National Health Service must look holistically at both the physical and mental needs of the patients whom it is there to serve. That is why the NHS outcomes framework, which we published last year, seeks to drive better health outcomes for those with mental illness. That is where the difference will lie in future. For example, Domain 1 of that framework, which focuses on preventing people from dying prematurely, includes a specific indicator on premature mortality in people with serious mental illness. Domain 2 of the framework focuses on enhancing the quality of life for people with long-term conditions, regardless of whether these are physical or mental health-related. However, to guard against the risk that there might be an overriding focus on physical health, there is also a specific indicator looking at the employment of people with mental illness. Clinical experts, including the Royal College of Psychiatrists, agree that this is an important outcome for people with mental illness and one that the NHS can make a significant contribution to improving. Finally, Domain 4 of the framework focuses on:
“Ensuring that people have a positive experience of care”,
including a specific indicator to capture the experience of healthcare for people with mental illness.