Francis Report: Update and Response

Earl Howe Excerpts

Wednesday 11th February 2015 Lords Chamber

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)]

My Lords, I refer the House to the Statement made by my right honourable friend the Secretary of State for Health in the House of Commons, copies of which have been made available in the Printed Paper Office and the text of which will be printed in full in the Official Report.

The following Statement was made earlier in the House of Commons.

“With your permission, Mr Speaker, I would like to make a Statement on the Government’s response to today’s report on NHS whistleblowing by Sir Robert Francis, and on progress to date in implementing previous recommendations from his public inquiry into the failures of care at Mid Staffordshire NHS Foundation Trust.

I asked Sir Robert to carry out a follow-up review because of my concerns that, despite good progress in implementing his original recommendations, the NHS was still not making fast enough progress in creating an open and transparent culture in which staff feel supported to speak out on worries about patient care. As a result, I was concerned that changes are still necessary if the NHS is to protect patients properly by adopting a transparent, no-blame, learning culture as is common in other sectors such as the nuclear, oil or airline industries.

Sir Robert has confirmed the need for further change in his report today. He said he heard again and again of horrific stories of people’s lives being destroyed—people losing their jobs, being financially ruined, being brought to the brink of suicide and with family lives shattered—because they had tried to do the right thing for patients. Eminent and respected clinicians had their reputations maligned. There are stories of fear, bullying, ostracisation and marginalisation, as well as psychological and physical harm. There are reports of a culture of ‘delay, defend and deny’, with ‘prolonged rants’ directed at people branded ‘snitches, troublemakers and backstabbers’, who were then blacklisted from future employment in the NHS as the system closed ranks.

We, of course, recognise the high standards of care day in, day out in much of the NHS, and we know that many staff feel supported in raising concerns about patient care, with many dedicated managers going out of their way to address those concerns. However, the whole House will be profoundly shocked at the nature and extent of what has been revealed today. The only way we will build an NHS with the highest standards is if the doctors and nurses who have given their lives to patient care always feel listened to when they speak out about patient care. The message must go out today that we are calling time on bullying, intimidation and victimisation, which have no place in our NHS.

Before outlining the Government’s response to today’s report, I want to update the House on the progress made in implementing previous Francis recommendations. I have today laid in the House of Commons Library a report showing progress on all 290 recommendations originally made by Sir Robert, as well as the progress made in implementing other recommendations by Professor Don Berwick on safety, by the right honourable Member for Cynon Valley, Ann Clwyd, and Professor Tricia Hart in their complaints review, by Camilla Cavendish in her work on healthcare assistants and by the NHS Confederation on reducing bureaucratic burdens. The progress was recognised this morning by Sir Robert, who said that the priority that must be given to safety, compassion and quality of care is now better recognised and acted on.

I want to highlight the impact of Professor Sir Bruce Keogh’s review of hospitals with high mortality rates. The special measures regime that followed introduced the toughest and most transparent hospital turnaround regime anywhere in the world, with 19 hospitals—more than 10% of NHS acute trusts—having been put into special measures so far. Among the vast array of improvements since the start of the process, those trusts have recruited 109 additional doctors and 1,805 additional nurses, and have made 129 board-level changes. The independent research company Dr Foster estimated this week that excess deaths in those trusts had fallen by 450 in less than a year. That means that between them, they may have saved as many lives as some estimated were tragically lost at Mid Staffs between 2005 and 2009.

We have moved from a system that tolerated or denied high mortality to one that, while it is by no means perfect, seeks out problems, shares them with the public, takes action and saves lives. Today I can announce that the Care Quality Commission, Monitor and the NHS Trust Development Authority have published a new memorandum of understanding to enshrine and further improve the special measures process.

The other measures that we have introduced include giving the CQC, under its new leadership, legal independence and the legal powers that it needs for its chief inspectors to root out failure and highlight excellence. The chief inspector of hospitals has inspected more than half of acute trusts and will have inspected them all by the end of the year.

We have introduced criminal sanctions for those who wilfully neglect patients and those who provide false or misleading information. The new duty of candour for institutions and professionals means that when mistakes are made, patients or their families must be told. Fundamental standards are now in place to ensure that all providers are required to treat people with dignity and respect. All acute hospitals are now asking patients if they would recommend the care that they receive to friends or members of their family. That is being rolled out to other parts of the NHS, including primary care. Two-thirds of hospitals are now implementing the ‘name above the bed’ initiative to ensure that hospital care is better joined up. More than 200 organisations have joined the ‘sign up to safety’ campaign, which involves a commitment to halve avoidable harm and save 6,000 lives by 2017.

The entire NHS is now committed to patient-centred culture change as a key part of the ‘Five Year Forward View’ plans that were put forward by NHS England last autumn. In that plan, we recognise the important point that safe care and efficient use of resources go hand in hand: doing the right things first time in healthcare saves lives and money.

In respect of whistleblowing, the Government have taken significant steps to protect NHS staff, such as enshrining the right to speak up in staff contracts, amending the NHS constitution, issuing joint guidance with employers and trade unions, extending the national helpline to social care staff, and changing the law to make employers responsible if whistleblowers are harassed or bullied by fellow employees.

Today, Sir Robert makes it clear that there is more to do, and I am extremely grateful to him and his team for their work. He sets out 20 principles and a programme of action. I confirm today that I accept all his recommendations in principle and will consult on a package of measures to implement them.

The recommendations include asking every NHS organisation to identify one member of staff to whom other members of staff can speak if they have concerns that they are not being listened to. Drawing on the inspirational work of Mid Staffs whistleblower Helene Donnelly, those ‘freedom to speak up’ guardians will report directly to trust chief executives on the progress in stamping out the culture of bullying and intimidation that Sir Robert today says is still too common. We will consult on establishing a new independent national whistleblowing guardian as a full-time post within the CQC to review the processes that have been followed in the most serious cases where concerns have been raised about the treatment of whistleblowers.

Because too often the system has closed ranks against whistleblowers, making it impossible for them to find another job, I can announce today that the Government will legislate to protect whistleblowers who are applying for NHS jobs from discrimination by prospective employers. With Opposition support, those necessary regulation-making powers could be on the statute book in this Parliament.

We will provide practical help through Monitor, the NHS Trust Development Authority and NHS England to help whistleblowers find alternative employment. Those three bodies have agreed a compact for action on this issue, and will publish detailed arrangements later this year. We will ensure that every member of staff, NHS manager and NHS leader has proper training on how to raise concerns and how to treat people who raise concerns. As a vital last resort, the right of whistle- blowers to contact the press with any concerns they have must always be safeguarded, although it should not have to come to that. Today I will write to every trust chair to underline the importance of a culture where front-line staff feel able to speak up about concerns without fear of repercussions. In addition, Monitor and the TDA will write to trust chief executives today to ask them to ensure that all managers discuss these issues as a matter of urgency with those who report to them.

There must be consequences for trusts that fail to develop a culture of openness, so today I am publishing consultation options to ensure that where hospitals are found to have knowingly withheld information from patients, the NHS Litigation Authority can impose financial sanctions such as reducing the indemnity it offers against litigation awards. The final decision on how we implement these recommendations will be made after proper consultation with NHS providers, whistle- blowers and patient groups to ensure that we honour the spirit of what Sir Robert has recommended, and to avoid unnecessary layers of bureaucracy or financial burden. There is no reason for individual trusts not to get on with implementing Sir Robert’s recommendations right away, particularly in ensuring that staff have an independent person with whom they can raise concerns.

A further foundation of a safe and open culture is one where the NHS and the public have access to meaningful and comparable information about the performance of local NHS organisations. The new MyNHS website has already kick-started a transparency revolution by making the NHS in England the first healthcare system in the world to offer key, up-to-date safety information on every major hospital, including open and honest reporting, nurse staffing levels in every ward, and the number of falls and hospital-acquired infections. Some estimate that we have as many as 1,000 avoidable deaths in the NHS every month, so by the end of March 2016 the NHS will become the first healthcare system in the world to publish an annual estimate of avoidable deaths by hospital trust, based on case note reviews and the safety record of those trusts.

I will strengthen the accountability of trusts by asking the chair of every trust to write a letter to the Secretary of State by the end of May each year, outlining what measures they will be taking to reduce the number of avoidable deaths in their trust. In all cases we will make it clear that this is not a process of naming and shaming but one of learning and improving so that our NHS becomes the first healthcare system in the world to adopt system-wide the safety standards that would be considered normal in other industries. We must also better understand avoidable mortality outside hospital settings, and whether we can adapt the methodology to identify avoidable harm as well as avoidable death. I therefore announce today that the department will fund a national study to establish the extent of avoidable death in community settings, and the feasibility of developing locally attributable death rates.

We will be taking steps to hard-wire transparency into the health and care system, and I am publishing a transparency architecture with plans for further information to be released on MyNHS. That will include comprehensive reporting on the friends and family test, data on residential care home admissions, and a new balanced scorecard on the work of CCGs and health and well-being boards. The Care Quality Commission and the National Information Board have confirmed to me that, starting this year, they will report annually and in public to the Secretary of State and the Health Select Committee on the progress of the transparency architecture, and on any recommendations about how we can improve it. The Secretary of State will report to Parliament annually on progress, and today I am publishing for consultation changes that will enshrine that right in the NHS constitution.

One of the biggest causes of poor care is when no one takes responsibility for a vulnerable patient and the buck is passed. That leads to greater costs and numerous personal tragedies as people are passed unnecessarily around the system. The ‘name above the bed’ initiative has strengthened accountability in hospitals, as has bringing back named GPs outside hospitals, but there is still not enough clarity on the role of professionally accountable clinicians, particularly in community settings. Today I can therefore announce that the Academy of Medical Royal Colleges has agreed to develop guidelines for meaningful clinical accountability outside hospitals. It will publish its findings this spring, and before the end of the next financial year all CCGs will publish how many of their patients with long-term conditions are being looked after by clinically accountable community clinicians in the meaningful way the academy will define. Proper proactive care for our most vulnerable patients will not only reduce hospital costs but reduce avoidable harm and improve the quality of compassionate care.

We can fund the NHS with a strong economy, we can put in place new models of integrated care to support an ageing population and we can champion innovation, but if we do not get the culture in the NHS right, we shall never deliver the ambitions that everyone in this House has for our NHS. Today is about tackling that culture challenge head on so that we build an NHS that supports staff to deliver the highest standards of safe and compassionate care and that avoids the mistakes that have led to both unacceptable waste and unspeakable tragedy. If we succeed, we will be the first country anywhere to put its entire healthcare system firmly on the path to eliminating avoidable harm and death. Our NHS deserves no lesser ambition, so I commend this Statement to the House”.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I am very grateful to the noble Earl for referring to the Statement in the way that he did. We welcome the Statement and its commitment to improve the culture around tackling poor care in the NHS. The Opposition endorse the principles in Sir Robert Francis’s new report and we will work with the Government to get them on the statute book in the remainder of this Parliament.

In 1998, the previous Government introduced the first legal protection for whistleblowers in the public interest disclosure legislation, reinforced in the NHS constitution in 2008. We see Sir Robert’s new principles building on those foundations. Our shared aim should be to create a climate in which any NHS worker feels able to raise concerns and confident that they will be listened to, that appropriate action will be taken and that they will not face mistreatment as a result. Today’s report establishes a number of new principles to which all NHS organisations should work. We fully endorse these. The call for support for whistleblowers worried about losing their jobs or finding alternative employment, and training in whistleblowing for all staff, is long overdue. Can the noble Earl confirm that this will apply equally to all providers of NHS services, including voluntary and private providers?

Let me turn to the recommendation for an external organisation which staff can approach for advice and support. In response to the first Francis report in February 2010, my right honourable friend Andy Burnham, when he was Secretary of State, established an expert group to update whistleblowing guidance. It reported in June 2010 and the then Secretary of State, Andrew Lansley, announced plans for a “safe and independent authority” to which staff can turn when their own organisations are not acting on concerns. Will the noble Earl say why little progress has been made since then and assure us that there will be no further delays now that Sir Robert has reinforced this recommendation?

Are the Government concerned by Sir Robert’s findings that the NHS culture might have got worse in recent years? As regards the cases he examined, he said:

“Many were relatively recent or current. This is not about a small number of historic high profile cases from a time when organisations might argue the culture was different. We had a significant number of contributions about cases in 2014”.

The report specifically references figures from the latest NHS staff survey, which shows that reports of bullying have increased from 14% of staff in 2011 to 22% in 2013. Over the same period, staff feeling unable to speak out about poor care, report errors or near misses has fallen from 98% in 2011 to 94% in 2013. Those figures suggest that things are getting worse and not better. Will the noble Earl comment on that and give the reasons?

This seems to underline the importance of any moves to improve culture being brought forward in the right sprit, supportive rather than punitive, so as not to reinforce the wrong culture and create a climate of fear. At the weekend, the Secretary of State proposed fines and jail sentences for failure to be open about poor care. We certainly support that zero tolerance approach but is the noble Earl not concerned that this might be perceived on the ground as creating such a climate of fear and therefore having the opposite effect?

I know that the Minister’s right honourable friend frequently quotes the airline industry as a model to be followed. I remind him that the experience in the airline industry has been to create a safe environment in which pilots can report near misses and untoward incidents so that the industry can learn from them. I urge the noble Earl to consider that whatever happens in the future, the encouragement to be open is not lost in this new approach.

Turning to Mid Staffordshire, we supported Sir Robert’s original recommendations and I certainly give credit to the Secretary of State for making progress on this since the report was produced and the recommendations were accepted. However, he will know that there are gaps where progress has not been made and that this is a concern when standards overall in the NHS are recorded to be falling and not rising. I particularly want to ask him about the long-standing need to reform the system of death certification. This goes back to Dame Janet Smith’s proposals which were embraced within the Coroners and Justice Act 2009 to make provision for the independent scrutiny by a medical examiner of all deaths that are not referred to by the coroner. Following successful pilots, Sir Robert Francis reinforced Dame Janet Smith’s recommendations. I was the chair of a trust which ran a pilot scheme, and I can testify to the effectiveness of having a senior consultant as the medical examiner looking at the case notes where deaths have occurred, informing patients, finding out where things have gone wrong and helping doctors to improve their practice. There is concern that the Government have shelved this proposal, and I hope to hear that that is not so.

Can the noble Earl set out a clear timetable for the introduction of medical examiners and comment on the arrangements in hospitals for reviewing case notes when patients have died? Over the weekend, the Government announced plans to introduce an annual review from a sample of patients. While that will definitely help us to develop a more accurate measure of avoidable deaths than the current mortality rates, does he think that it will go far enough? Should not the NHS learn from all serious failings, and will he give consideration to our suggestion that every death in hospital should be given an appropriate level of review?

We welcome the progress which has been made at some of the hospitals in special measures, but I want to ask the noble Earl about the use of mortality statistics. Is he aware that the graph on page 8 of the recent Dr Foster report shows that mortality rates at the Keogh trusts fell faster between 2006 and 2010 than between 2010 and 2014? Perhaps I may also refer him to the plans outlined by the Secretary of State to calculate the number of avoidable deaths for individual hospitals. They were described by Nick Black, a professor of health services research who has produced many of these ideas, as not having any meaning because of concerns about the robustness of the figures. Will he also acknowledge that a recent investigation by the Academy of Medical Royal Colleges into the use of hospital standardised mortality ratios as a means of comparing the quality of US and English hospitals has shown the method to be unreliable? He will know that Professor Jarman made a proposition that mortality rates between English and US hospitals were such as to cause concern about the UK position. The investigation demonstrates very clearly that the data are not comparable and cautions the use of a crude approach towards trying to judge institutions simply on the basis of HSMR statistics.

Finally, does the noble Earl agree that encouraging an open culture where whistleblowers feel secure in being able to raise issues of concern emanates from a culture that must apply throughout the system, starting at the top in his department and then through all the national regulators as well? If the national bodies feel that they are not able to raise concerns about government policy publicly and if the chief executives of NHS organisations know that if they make any public criticism, they will be penalised in one way or another by the system, is it any wonder that they then find it difficult to create a culture of openness? I urge the noble Earl to embrace fully what is being proposed today by acknowledging that if we are really going to grip the system, a culture of openness and of whistleblowing has to go right through the system and must include his own department, the regulators and NHS England.

In conclusion, we welcome the Statement today and we will do everything we can to ensure that the regulations the Government bring forward are able to go through Parliament before the election.

[Earl Howe]

My Lords, I am grateful for the welcome and support that the noble Lord, Lord Hunt, has given to the Statement. I do of course agree that Sir Robert’s recommendations, which we accept in principle, build on the current safeguards for whistleblowers. But, as the noble Lord knows, Sir Robert did identify some important gaps in those safeguards which we must now address.

The noble Lord asked me a number of questions. First, he asked whether these provisions would apply equally to all providers of NHS services, including to the voluntary and private sectors. Similar provisions will certainly apply to the voluntary and private sectors. We will expect such providers to reflect on how Francis’s recommendations might apply to them, but we will also use the NHS contract in an appropriate way.

The noble Lord asked whether the Government were concerned about an increase in the number of whistleblowing cases over the last few years. There is evidence that safety and compassionate care have in fact improved in recent years. It is also possible that the new emphasis on openness and transparency may lead to more concerns being raised, which is a slightly counterintuitive effect of a better culture. We want to examine Sir Robert’s findings carefully and would encourage NHS organisations to do the same. But it is important to emphasise that however much improvement we see, we must never be complacent about how good the system is.

The noble Lord asked about progress in identifying an authority to whom whistleblowers could turn. I refer him to Sir Robert’s recommendations, which provide for local “freedom to speak up” guardians, who will report directly to trust chief executives and, crucially, to whom members of staff in an organisation can speak if they have particular concerns. There will be a new independent national whistleblowing guardian as a full-time post within the CQC, as a further safeguard in this process—a person who can understand what has happened in a given local case and refer back to that local organisation in an appropriate fashion.

I agree with the noble Lord that we want to achieve, above all, a supportive and learning culture. That is something emphasised not only by Sir Robert but by Professor Don Berwick in his review of patient safety issues. He is also right that if we go too far with a punitive approach to these matters, it could deter people from wishing to step forward. That is why we hope that we have the balance right in the legal provisions that we put through in the Care Act so as to ensure that, while organisations must always be on the line for the extent to which they have complied with, for example, the duty of candour, we do not put employees in a state of excessive fear, lest they refrain from speaking up when appropriate.

All the measures we have taken so far—the duty of candour, the new offence of wilful neglect, the fundamental standards that Sir Robert recommended, which will be coming in, and the fit and proper persons test—combine to shore up the system in a helpful way, without, we trust, making the NHS feel oppressed by regulation.

The noble Lord asked about death certificates. No, the policy has not by any means been shelved. The work is continuing. To be frank with him, progress has been slightly less fast than we would have wished, but the Government remain totally committed to the principle of these reforms. Further progress will be informed by reconsideration of the detail of the new system in the light of other positive developments on patient safety since 2010 and by a subsequent public consultation exercise. A number of recommendations in Sir Robert Francis’s Mid Staffordshire inquiry report refer to that reform of the death certification system. A new system of medical examiners has been trialled successfully in a number of areas across the country. The work of the two flagship sites in Gloucestershire and Sheffield has been continued and extended to operate a medical examiner service on a city- and countrywide basis at a scale that will be required for implementation by local authorities when legislation is introduced. We will be publishing shortly a report from the interim National Medical Examiner setting out the lessons learnt from the pilot sites.

The noble Lord, Lord Hunt, referred to the criticism voiced by Mr Nick Black on the way that we interpret statistics on avoidable deaths. The work that we have set in train builds on innovative work at the London School of Hygiene and Tropical Medicine, and we think it has the potential to enable NHS trusts to develop a better understanding of actually avoidable deaths. But we will continue to work with front-line clinicians, national organisations and academics to find ways to support trusts to understand better their levels of avoidable mortality and, crucially, to take effective action to reduce those levels.

The first Francis inquiry emphasised the importance of trusts looking carefully at their mortality rates as part of their overall scrutiny of safety measures. We believe that most, if not all, are now doing that but we want to do more to improve the data and their use to make improvements. I would just say to the noble Lord that we should not let the best be the enemy of the good. Imperfections in data should not get in the way of vigilant local scrutiny of those data, even though they may not be 100% accurate.

The noble Lord concluded his remarks with some questions about culture. In particular, he asked me whether I agreed that the culture of the system starts at the top. Of course, I agree with him fully on that. But I would just say to him that as a Government we have taken a conscious approach not to overemphasise poor care where it occurs but to expose it and to adopt a policy of transparency so that poor care as well as good care can be apparent to patients, the public and the system at large. We have given greater legal independence to the CQC. We want it to speak out without fear or favour, and it has indeed done that.

We believe it is right to confront poor practice where it occurs. The key, however, is to turn around those organisations that are found wanting, and the system of special measures has undoubtedly proved its worth, as the Dr Foster report recently made clear. There was an unequivocal finding in that report that the levels of avoidable mortality in most of the special measures trusts had gone down by a statistically significant percentage. There is undoubtedly a high degree of utility in the special measures process, painful as it may be to some organisations.

[Baroness Barker (LD)]

My Lords, will the Minister please say whether the proposals in the report relate to the provision of mental health services as well as physical health? The proposals are very much focused on hospitals. Secondly, review after review has shown that in a hospital the one group of staff who know better than anybody else what is going wrong are the junior staff—junior doctors and so on. In the work going forward, will the Government pay particular attention to junior doctors and non-clinical staff who are whistleblowers, and what happens to them? Finally, the report mentions the extension of this work to an examination of avoidable deaths in community settings. Will the Minister say who will be involved in that work and when we can anticipate a report on it?

[Earl Howe]

We envisage that all NHS providers should be subject to whatever practical measures are agreed. We are not yet in a position to be prescriptive about what those arrangements should be. We will consult on how best to implement Sir Robert’s recommendations in the least burdensome way possible but in a way that fulfils his ambitions to the maximum extent. I totally take my noble friend’s point that junior doctors and non-clinical staff are often in the best position to judge the health and culture of an organisation. Indeed, I am aware that the CQC, when inspecting a hospital, often makes a point of convening a focus group consisting of junior doctors because it knows that there is a great deal to be learnt from that source. On community care, again, we have taken no firm decisions on how this will come about, but we wish to take the advice of those whose views we value.

[Lord Morris of Aberavon (Lab)]

My Lords, I welcome the Statement and congratulate Sir Robert once again on his most thorough analysis. I also welcome the long overdue proposed change in the law to make employers responsible if whistleblowers are harassed. Does the suggested new duty of candour mean that never again will we see gagging clauses in any NHS contractual arrangements? How long have gagging clauses been tolerated and what is the justification for them?

[Earl Howe]

I am grateful to the noble and learned Lord. NHS guidance has consistently made it clear that, where confidentiality clauses are used, they should go no further than is necessary to protect the legitimate interests of both the employer and the employee. There are circumstances when a gagging clause is appropriate, but local policies should always prohibit the inclusion of confidentiality clauses in contracts of employment and settlement agreements that seek to prevent an individual making a disclosure in the public interest, in accordance with the Public Interest Disclosure Act. Such clauses are often referred to as gagging clauses. If such clauses were to be included in a severance agreement or settlement, they would be deemed void in any event. We have made it amply clear to NHS organisations where the boundary lies between those two types of confidentiality clause.

[Lord Naseby (Con)]

Is my noble friend aware that the question of patient safety, which is emphasised, is fundamental to all this? In contrast, the number of claims for medical negligence continues to rise—in the past year, it did so by 18%—and now costs the NHS well over £1 billion. Has the time not come to have a thorough review of how such medical negligence claims are handled and who is behind some of them? Perhaps it is ambulance chasers. In any case, is not arbitration possibly the way forward, such as happens in essence when a coroner looks at a difficult case?

[Earl Howe]

My noble friend makes a series of very good points. We are, as he knows, extremely concerned about the rising level of litigation costs in the NHS. My department is consulting on proposals for how the duty of candour can be further incentivised by requiring trusts and foundation trusts to meet a proportion of the cost of negligence claims in cases where they have failed to be candid. We are also committing up to £35 million so that the NHS Litigation Authority can support trusts in implementing their safety improvement plans where those plans show a likely reduction in the number of higher-volume and higher-value claims over the medium to long term.

[Baroness Masham of Ilton (CB)]

My Lords, I congratulate the Government on accepting this second report. The report states that staff working with vulnerable patients should be responsible. How will the Minister make this happen? Patients and carers should be listened to. They can become whistleblowers, but may feel that they will be branded as troublemakers. How can he stop this happening?

[Earl Howe]

Making every employee responsible goes hand in hand with the duty of candour—the feeling for every employee that they have the freedom to speak up and take ownership of a given situation that is within their control, professionally. We hope that this will gradually show its value in the way that the culture of an organisation changes for the better. Ultimately, though, professionalism depends on training as well. On the whistleblowers, may I ask the noble Baroness to repeat the second half of her question?

[Baroness Masham of Ilton]

My second question was that since patients and carers could become whistleblowers but might feel that they would be branded as troublemakers, how can the Minister stop this happening?

[Earl Howe]

I apologise to the noble Baroness. It is very important that that does not happen. This was very much a matter that Sir Robert had in his sights when preparing the report. We have a certain amount of protection for whistleblowers at the moment—the noble Lord, Lord Hunt, referred to this—and the current Government have augmented that protection, not least through the way in which we have improved the NHS constitution. But Sir Robert is clear that we need to go further and, in particular, to ensure that those whistleblowers who find their position untenable in an organisation and are obliged to leave are not thereby blacklisted by the NHS merely for having spoken up. We think that the measures Sir Robert has proposed will achieve this but, more importantly, they will ensure that there is a better form of conflict resolution, able to nip concerns in the bud at an early stage and at a local level.

[Lord Touhig (Lab)]

My Lords, I had the privilege of introducing the first whistleblower protection legislation when I served in the other place. I regret that it was not successful because the then Conservative Government opposed it. Richard Shepherd, a Conservative Member of Parliament whom I consider a good friend, was much more successful in 1998 when he introduced the Public Interest Disclosure Act, together with the support of the Labour Government. Sir Robert refers to that Act a number of times in his report. On page 9, he says:

“For a number of reasons this legislation is limited in its effectiveness … The legislation does nothing to remove the confusion that exists around the term ‘whistleblowing’ … The legislation is also limited in its applicability”.

He also refers on page 78 to suggestions that PIDA should be strengthened. I agree with him; the Act needs to be reviewed and amended. Will the Government agree to do this, because that would certainly overcome many of the problems that this report has highlighted?

[Earl Howe]

My Lords, it may be that Sir Robert’s recommendations lead to legislative proposals. At the moment, we have no view on that. We want to consult broadly to seek people’s views, not least from all parties in Parliament. If I understand Sir Robert correctly, he was keen to achieve answers to these questions that do not involve legislative change and can be achieved easily, without too much bureaucracy. However, we would certainly wish to leave the door open if legislation is needed. In fact, there is one particular measure that we will endeavour to put through in the current Parliament, as long as we have cross-party support for it.

[Lord Walton of Detchant (CB)]

My Lords, I express the thanks of everyone who has worked in the National Health Service for this extremely important and compelling report. Is the Minister in a position yet to say anything about the terms of reference of those who will be the local whistleblowing guardians, what kind of qualifications they will be expected to hold and who will employ them? I take it that the national whistleblowing guardian is to be employed by the Care Quality Commission. Again, it would be helpful to know the Government’s views about the kind of individual who will be sought to fulfil that appointment.

[Earl Howe]

The noble Lord, as ever, makes a series of very important points. The personal qualities of these guardians need to be considered very carefully. At this early stage, we have made no firm proposals along those lines. As I have indicated, we think that every NHS organisation needs to identify one member of staff to whom other members of staff can speak if they have concerns, particularly if they feel that they are not being listened to. Clearly, the qualities of that local guardian need to be of a kind that inspires trust in the body of employees. As regards the national whistleblowing guardian, that will be a full-time post within the CQC. Again, it will require somebody of stature, sensitivity and trustworthiness so that the system can be seen to be robust.

[Lord Framlingham (Con)]

My Lords, when I served in the other place, I tried very hard to persuade the then Government to bring back the traditional role of matron into our hospitals. I know that we have modern matrons, but they are not the same thing. It was a most disastrous day when we took matrons away from our hospitals; heaven knows why we did it. If we reintroduced that role, with all its responsibility—and particularly its authority—and an awareness of what goes on the hospital, many of the things that we are talking about today would be resolved.

[Earl Howe]

I am sure that my noble friend’s comments will strike a chord in many places. I am aware that we have had debates of this kind quite often in the past. Of course, it is open to any NHS organisation or hospital to appoint a matron if it so wishes—and indeed some do that. The key point here is that there should be appropriate leadership in nursing at a senior level in the organisation. The successful organisations of which I am aware have had a senior nurse on the board and someone who has taken direct responsibility for nursing standards throughout that organisation.

[Lord Warner (Lab)]

My Lords, I am not necessarily of the Hattie Jacques school of nurse management, but will the Minister say a little more about these leadership issues? Those of us who have actually been involved as either a chair or a chief officer of a public body know how difficult it is to keep these agendas alive after they have lost their fashionability in the public eye. What are the Government going to do to ensure that the regulators and the boards keep coming back to this issue and keep bringing to the attention of the front-line staff their enthusiasm—and I use that word advisedly—for learning about failings that are going on in their organisation?

[Earl Howe]

The answer to that must lie chiefly with the way in which the CQC now operates. One of the domains that it pays attention to in its inspections is the well led domain. Is this an organisation that has leaders in it who are aware of what is going on in the hospital, have a clear vision and a strategy for that hospital and are in touch with patients’ views and experiences, not least through complaints? These, and a whole range of other factors, are what the CQC looks at when assessing the quality of the leadership. The noble Lord is, of course, quite right that this must be and remain a key ingredient of a successful NHS culture and good-quality care for patients. We now have a system in which poor leadership will be exposed quite rapidly.

[Lord Stoddart of Swindon (Ind Lab)]

My Lords, first, I am quite astounded that people should be treated in this way by one of our great national services. Secondly, will the Minister tell us whether arrangements were put in place whereby people who felt aggrieved or threatened would be able to appeal? Thirdly, will he also tell us what the trade union involvement was, and whether the unions were obstructed from doing their proper job of protecting their members? Finally, are the trade unions going to be consulted about this report to give them ideas about how they could be better involved in protecting their membership?

[Earl Howe]

My Lords, I agree with the noble Lord, Lord Stoddart, that the examples of poor care exposed by Sir Robert’s report were shocking. In many respects, the work he has done and the recommendations he has made constitute a wake-up call for everybody in the NHS—even those who are providing a very good service, which most of the NHS is providing.

There are many levels of protection for NHS employees. An employee can always lodge an appeal if they feel aggrieved and turn to their trade union for support in that context. We intend to consult widely on Sir Robert’s recommendations, including with the trade unions. We welcome their input to these ideas and look forward to further discussions—which, in the normal course, happen very regularly anyway.

[Baroness Pitkeathley (Lab)]

The Minister has acknowledged that it should be the responsibility of all staff to support the principles of openness and whistleblowing. However, has he any concern that the creation of these freedom-to-speak-out guardians might—I say only “might”—lead to staff thinking that they could abdicate that responsibility and leave it all to the guardians?

--- Later in debate ---

[Earl Howe]

My Lords, the role of the guardians will be primarily to provide advice to those who have concerns and feel that they are not being listened to. They will be able to report directly to trust chief executives on not just individual issues but on progress in general in stamping out any bullying that may be occurring, or the intimidation that Sir Robert says is all too common. I do not think that the creation of a freedom-to-speak-up guardian will in itself inhibit the process. Of course, we are open to views. If that concern is widely held, we will have to take it into account.

[Lord Elystan-Morgan (CB)]

Does the Minister agree that while of course it is right and proper that, in relation to whistleblowers, Sir Robert’s recommendations should be given every opportunity to see whether they succeed in removing this scourge from our society, the situation should be monitored and should it be the case that it is not possible to remove this disgraceful practice of victimising whistleblowers, stern, swingeing criminal sanctions should be considered if necessary? It is a drastic proposal, but the practice it would be designed to meet is disgraceful.

[Earl Howe]

I take full note of the noble Lord’s proposals. Clearly, we will wish to monitor the effectiveness of these new arrangements once they are in place. It will be open to the next Government to make a judgment on that score and, if necessary, to come forward with more stringent proposals that could indeed involve legislation with penalties attached.

Care and Support (Business Failure) Regulations 2014

Earl Howe Excerpts

Monday 9th February 2015 Lords Chamber

Moved by

[Earl Howe]

That the draft regulations laid before the House on 3 December and 17 December 2014 be approved.

Relevant documents: 17th Report from the Joint Committee on Statutory Instrument, 19th and 21st Reports from the Secondary Legislation Scrutiny Committee. Considered in Grand Committee on 3 February.

Motions agreed.

Health and Social Care (Safety and Quality) Bill

Earl Howe Excerpts

Friday 6th February 2015 Lords Chamber

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)]

My Lords, I very much welcome the debate on this important Bill. I thank my honourable friend in another place, Jeremy Lefroy, and my noble friend Lord Ribeiro for their stewardship of this Bill to improve the safety of patients and protection of the public. A productive debate was had in the House of Commons, with support for the Bill from all sides. Parliamentary time is limited. Speaking for the Government, I hope that we can get this Bill on to the statute book as soon as possible.

We must never forget the terrible events that occurred at the former Mid Staffordshire NHS Foundation Trust, which demonstrated what can happen when providers put other priorities before safety. As highlighted by the Francis inquiry report, we have much to improve in patient safety and to avoid a repetition of those tragic events. The Government have thrown their full support behind this Bill in our continuing efforts to improve patient safety and the quality of care. I turn now to the Bill and each of its clauses. I will address most of the concerns from noble Lords; I will write on the others that I am not able to cover.

Safety of care must be the focus of healthcare providers at all times. Regulation by the CQC plays a vital role in assuring that providers are focused on safety and are taking steps to reduce avoidable harm. Section 20 of the Health and Social Care Act 2008 currently provides the Secretary of State with a power to include safety in registration requirements with the CQC, but this is no more than a discretion. It would equally be in the gift of the Secretary of State to put a regulatory system in place for providers of health and adult social care that did not cover safety. The first clause in the Bill will remove that discretion and instead place a duty on the Secretary of State to make CQC registration requirements include safety of care. This is consistent with the Government’s continuing effort to reduce avoidable harms and to ensure services are provided in a safe way.

Parliament has recently passed new requirements for registration with the CQC, which include new fundamental standards. Regulation 12 of the fundamental standards states that,

“care and treatment must be provided in a safe way”,

and it sets out a number of steps that providers have to take in order to reduce the risk of unsafe care. Where a provider fails to meet this registration requirement in a way that results in avoidable harm to a service user, the CQC will be able to bring a prosecution against that provider. It is the Government’s sincere intention that the CQC will make use of this important power to hold providers to account for the most serious failings in care.

It is the Government’s view that this new fundamental standard, which comes into force in April, already meets the requirement of the Bill that we are considering. It is important to emphasise that the Government do not intend to amend the registration requirements in response to Clause 1.

I am aware that concern has been expressed regarding the use of the phrase “avoidable harm” in this clause. The Health Foundation, for example, as we have heard, has argued that Clause 1 will draw time away from understanding risk and preventing harm. I do not share that view. Part of being able to assess the risks of receiving care and treatment in order to prevent harm in future involves examining past performance and understanding the causes of past incidences of harm. It is vital that an organisation can learn from its errors in order to improve services to patients and service users.

Furthermore, I say to my noble friend Lord Willis and to other noble Lords that whatever the perceptions, “avoidable harm” equates not to “zero harm” but to harm that can reasonably be avoided. For example, where harm is an inherent part or risk of a regulated activity and it is in the best interests of the patient to receive that regulated activity, this clause would not seek to prevent that activity. However, in providing the service in question, the provider should still take reasonable steps to prevent any harm that is avoidable, such as harm from the use of unclean instruments. I say to the noble Lord, Lord Warner, that this is exactly about providers seeking a continual reduction in harm, given the intrinsic risk that exists in many treatments.

I hope that noble Lords will support the objective enshrined in this clause of causing no avoidable harm. This clause places a duty on the Secretary of State to impose requirements that he,

“considers necessary to secure that services provided in the carrying on of regulated activities cause no avoidable harm to the persons for whom the services are provided”.

The duty on providers is not imposed by this clause: rather, it will be imposed by the regulations that are issued under this clause. I perhaps need to emphasise that to the noble Lords, Lord Turnberg and Lord Hunt. The regulatory levers are already in operation through the CQC registration requirements on the safety of care. The duty set out in the Bill will not change those regulatory requirements. Indeed, from April a regulated provider may be prosecuted by the CQC if the way in which it provides care or treatment causes avoidable harm to a patient or service user, so this is already the case.

The noble Lord, Lord Young, referred to following best practice. The CQC can take relevant best practice into account when assessing a provider’s performance against registration requirements and in reaching a judgment about rating services. Indeed, the CQC’s guidance to registered providers of health and adult social care about complying with the regulations will point to such best practice.

Turning to Clauses 2, 3 and 4, the sharing of relevant information in a timely and accurate manner facilitates the provision of integrated care and treatment, tailored to an individual’s needs and wishes. This information sharing is essential to the delivery of safe and high-quality care. Dame Fiona Caldicott, in her review of information governance, found a culture of anxiety that prevents information sharing, and the current legislative landscape was found to be a contributory factor. The review recommended that the duty to share information should be as important as the duty to protect patient confidentiality. The information-sharing provisions in the Bill seek to create parity between the need to protect information and the need to share it as part of care.

The second clause in the Bill will place a duty on providers and commissioners of publicly funded health and adult social care to record and use a consistent identifier in health and care records and correspondence. This duty will apply only in the best interests of the individual patient and in the direct provision of their care. A long-standing priority of the Department of Health has been to establish the universal use of the NHS number as a consistent identifier when individuals move between care providers. This will support the integration of medical records, reduce errors and facilitate the co-ordination of care. It is our intention that the NHS number will be specified in regulations as this consistent identifier. Others in the debate referred to the national insurance number, but the NHS number is already a well established identifier and the proportion of people in England without an NHS number is very small. Of course, the number of those without a national insurance number is rather greater.

The noble Lord, Lord Turnberg, asked whether this should not apply also to the private sector. The duty to use the NHS number applies only to providers and commissioners of publicly funded health and adult social care. This means that it will apply to NHS commissioners, local authority commissioners and providers of health or adult social care that are public bodies, or are contracted by an NHS or local authority commissioner. Private sector providers would be subject to the duty only in respect of care they provide that is made pursuant to contracts with NHS commissioners.

The third clause in the Bill would place a duty on providers and commissioners to share information. Where it is in the patient’s best interests, providers and commissioners within scope will be required to share relevant information with staff within their organisation, and with other providers and commissioners directly involved in that person’s care. As my noble friend Lord Ribeiro explained, this will reduce the burden of moving between care settings and having to tell your story over and over again. This is especially true in the case of older people, and people with dementia and other complex conditions. It is the intention of these clauses that using a consistent identifier, and having a duty to share information, will help to ensure that health and care professionals will have the information they need to deliver high-quality care. I must stress that the duties within the Bill are strictly limited to the sharing of information for the purposes of direct care and only in the individual’s best interests.

Turning to Clause 4, these duties will not extend to providers and commissioners of children’s social care or the providers and commissioners of children’s healthcare, for which the Department for Education is responsible. I know that concern has been expressed about this exclusion, not least by the noble Lord, Lord Warner. I understand those concerns. Requiring children’s education and social care settings to use a single identifier would extend the scope beyond that of the Health and Social Care Act 2012, which this Bill seeks to amend. As the noble Lord knows, the statutory framework for children’s social care is different, with the DfE the lead department and Ofsted the regulator. Responsibilities have already been placed on professionals and agencies working with children to share information, particularly where there are safeguarding concerns.

There may be benefits in extending the use of a common identifier from the NHS to wider children’s services but, as yet, these benefits have not been assessed against the costs and burdens on local authority children’s services. Implementing a duty to use the NHS number could create significant burdens on schools, which would have to collect and record NHS numbers from all pupils when they enrol in the school. That is why the Department for Education has committed to undertaking an evidence-gathering exercise to fully understand what the impact of using a consistent identifier would be for these types of provision. This exercise is expected to report by the end of the year.

I now come to the fifth clause and the schedule, which will bring in a consistent overarching objective for both the Professional Standards Authority and the regulators of certain health and care professionals, including dentists, nurses, midwives and opticians. This will ensure that public protection is at the heart of what the Professional Standards Authority and these professional regulators do. This overarching objective of public protection will involve the pursuit of objectives in relation to protecting, promoting and maintaining the health, safety and well-being of the public, and promoting and maintaining public confidence in the professions covered by the Bill and proper professional standards and conduct for members of those professions. This measure will also ensure that regulatory body panels dealing with the disposal of fitness to practise cases—that is, making a final decision or considering appropriate sanctions—will have regard to that overarching objective.

The noble Baroness, Lady Pitkeathley, and my noble friend Lord Willis expressed disappointment at the lack of a government Bill on professional regulation, and I think that that disappointment is widely shared. We of course welcome the law commissions’ 2014 report but, in the absence of a government Bill to implement its recommendations in this Parliament, we have taken the opportunity to consider the report and to work closely with the regulatory bodies and the PSA to build on the important work that the law commissions have done. We accept the vast majority of the recommendations and the Government remain committed to legislate on this important issue at the earliest opportunity when parliamentary time allows. I am therefore particularly pleased to throw the Government’s full support behind this Bill, which seeks to implement in part and for some of the regulators two of the law commissions’ recommendations.

The noble Baroness, Lady Pitkeathley, asked how the PSA can have an objective to promote confidence in the professions when one of its functions is to uncover poor performance. Let me explain this a little further. Under the new overarching objective, the PSA and the regulators will have to act in the interests of public protection. The reference to maintaining public confidence is bounded by this overarching objective of public protection and does not mean that the PSA or the regulators should be actively promoting the reputation of the professions, as this does not necessarily serve public protection. Rather, it is concerned with conduct, performance or behaviour of individual members of a registered profession in so far as this threatens to undermine confidence in the profession as a whole, to the extent that people may be deterred from seeking the treatment or care that they need.

It is clear to me that a robust and transparent way to challenge regulators’ decisions, while it may call into question decisions in individual cases, can only contribute to maintaining wider public confidence in the professions as a whole. In some instances, that may mean that poor performance is uncovered. Sometimes it is necessary to do this to increase public confidence in the professions—and of course that is only right. This is not about requiring the PSA to maintain public confidence in individual professionals or even in the regulators, but confidence in the professions. I hope that that is helpful to the noble Baroness.

The overarching objective does not create any additional functions for the PSA. The PSA is an independent body which oversees the work of the nine regulators of health and social care professionals. Its functions remain unchanged and include auditing investigation stage decisions of the regulators’ fitness to practise procedures, referring final fitness to practise disposals to the relevant High Court where necessary and reporting on the performance of the regulators.

Under this Bill, while discharging particular functions in relation to the regulators—that is, promoting best practice in professional regulation, formulating principles relating to good self-regulation and encouraging co-operation between the regulators, and between them and other bodies that exercise corresponding functions—the PSA must have in mind the overarching objective of public protection. This may involve the PSA, in its role as overseer of the regulators, taking such appropriate actions as may be available to them in the circumstance that regulators have not acted in accordance with their own overarching objectives.

I know that the PSA is particularly concerned with consistency in the legislation governing regulation of health professionals. Ensuring consistency of purpose in professional regulation and how it is overseen through the introduction of a consistent overarching objective was a key recommendation made by the law commissions in their review of regulation of health professionals published last year.

I also know that the department and the PSA share the common principle that any legislative change must have public protection at its core. I would just say that the definition of “public” in the Bill encompasses patients, users of healthcare and social care, and,

“other members of the public”,

as defined in the PSA’s existing objective. I say to the noble Baroness, Lady Pitkeathley, that my officials are happy to continue the discussions which I know have been conducted recently in order to give any further clarification that might be helpful. As the Government set out in our response last week, we support this principle and we hope to see public protection placed clearly and firmly at the heart of professional regulation through this Bill and through parallel secondary legislation for the GMC, which will shortly come before this House.

I should like to clarify the effect of Clause 5 and the schedule for my noble friend Lord Willis. The Bill introduces a duty on regulators’ panels and committees. It does not affect the regulators’ fitness-to-practise processes. My noble friend mentioned the NMC’s fitness-to-practise caseload. I reassure him that the department has recently taken forward secondary legislation in relation to the NMC to help it to carry out its fitness-to-practise and registration functions more effectively. I am happy to write to my noble friend if he would like further and better particulars.

At the risk of overstaying my welcome at the Dispatch Box, I hope that I may be allowed to cover briefly a point which arose as the Bill passed through the House of Commons and which I know is of concern. The BMA has raised concerns about the requirement for fitness-to-practise panels and committees to consider “public confidence” when making final decisions about the application of the term “well-being”. I understand that the BMA recently had productive discussions with my honourable friend the Parliamentary Under-Secretary of State for Health, Dr Dan Poulter, and has been much reassured by the intention for the overarching objective to be set out in secondary legislation for the GMC and in this Bill for other regulators. Indeed, the BMA wrote to my honourable friend yesterday to confirm this and to seek further assurances about the form that guidance might take and how it might clarify how regulators’ panels and committees should apply the overarching objective in practice, particularly the interpretation of the terms “public confidence” and “well-being”. These concerns relate particularly to issues raised by a recent GMC consultation on sanctions guidance.

Noble Lords will understand that the GMC’s handling of fitness-to-practise cases is not within the scope of this Bill. However, these issues are likely to be relevant to the other regulators who will be subject to the new, overarching objective. Of course, I cannot say on behalf of the regulators how they should give guidance on their internal processes, but I will ensure that my officials raise these issues with the professional regulators when considering the implementation of the objectives, as part of both this Bill and the GMC legislation, and can confirm that the GMC will seek views on implementing its secondary legislation through a public consultation.

I think that that is enough from me. I will of course write to noble Lords, as I have promised, on other matters.

[Lord Warner]

Will the Minister clarify something that he said in relation to what I said in my speech? He said that the Bill cannot cover children in relation to health and social care. I have just read the Long Title and the Title. I can see nothing there that specifies particularly adults or excludes children. I would welcome it if he could write to me to explain what the legal judgment is as to why an amendment that relates to health and social services only—not police, not education—should not be included in the Bill in respect of children.

[Earl Howe]

I would be happy to do so.

[Lord McColl of Dulwich]

Before the Minister sits down, could I ask him about the WHO checklist? When I go into an operating theatre, the operation cannot start until that list is completed by the surgeon, the anaesthetist and the nurses. Could that be put into regulations?

[Earl Howe]

My Lords, I am sure that anything is possible, but I would hesitate before giving a commitment along those lines because it seems to me too granular to be included in statutory regulations rather than in guidance or best-practice manuals.

[Lord Rea (Lab)]

Perhaps I may be the third Member of the House to ask the Minister to answer a question before he sits down. There has been a lot of talk about there being no government time properly to discuss many issues that have been brought up in this debate. The Minister did not answer the point made by my noble friend Lord Hunt, but there is very little government legislation in the pipe now and time could almost certainly be found. I accept that Private Members’ Bills are normally considered only on Fridays—there are not very many Fridays left—but, as this Bill is a quasi-government Bill, I feel that perhaps the Government could make time for it.

[Earl Howe]

My Lords, I am sure that the noble Lord is aware that the timetabling of business is not a matter for the Government. My understanding from the usual channels is that Private Members’ Bills cannot be given government time or priority treatment. However, I have no doubt that, having listened to the comments made in this debate from all sides of the House, the usual channels will wish to have further discussions.

NHS: Maternity Care

Earl Howe Excerpts

Thursday 5th February 2015 Lords Chamber

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)]

My Lords, first, I join other noble Lords in thanking the noble Lord, Lord Harrison, for securing this debate. In doing so, I thank all noble Lords who have spoken for their excellent contributions. We cannot overstate the importance of good health and well-being for women before, during and after pregnancy. It is an absolutely critical factor in giving children the best possible start in life and in building the foundations for good health and well-being as they get older. That is why providing high-quality maternity care is a key priority for the Government. In their mandate to NHS England, the Government set out an expectation to see significant progress, by March 2015, in improving the standards of care and experience for women and families during pregnancy, and in the early years for their children.

The noble Lord, Lord Hunt, emphasised the importance of choice for women and we agree. Women should have as much choice and control as possible over decisions about their care while they are pregnant. The mandate is clear that women should be offered the greatest possible choice of providers and that they should have a named midwife who is responsible for ensuring she has personalised, one-to-one care throughout pregnancy and childbirth, and during the postnatal period, including additional support for those who have a maternal health concern. I quite agree with the noble Lord, Lord Harrison, about the importance of continuity. NHS England is working to deliver these commitments through the Maternity & Children Programme Board.

Part of that delivery must lie in increasing the number of midwives. The Government have taken steps to improve the size and capacity of the maternity workforce. There are now more than 22,000 qualified midwives, which is an increase of nearly 2,000 midwives since 2010. Another 5,000 midwives are currently in training, which is a record number, and we expect that this level of midwifery training commissions will be maintained in 2015-16. The number of midwifery-led units has increased from 87 units in 2007 to 152 units in 2013, giving most women a choice of place of birth, and 79 per cent of women of childbearing age in England now live within a 30 minute drive of both a midwifery-led unit and an obstetric unit, which is up from 59 per cent in 2007. We have also taken steps to improve the quality of the environments in which women give birth and are cared for. In 2013 and 2014, we provided a total of £35 million capital funding for the NHS to improve birthing environments.

The Government’s investment represents the single biggest capital investment in maternity care for decades, with more than 100 maternity services benefitting. Across the country, many local maternity services have been transformed. Improvements delivered by our maternity investment fund include almost 40 new birthing pools, which can help to make labour less stressful and painful; nine new midwife-led units, which are less clinical and can be more relaxing places to give birth; more en-suite bathroom facilities in more than 40 maternity units, providing more dignity and privacy for women; more equipment, such as beds and family rooms, in almost 50 birthing units that allow dads and families to stay overnight and support women while in labour or if their baby needs neonatal care; complex needs suites for women who need a more constant care environment due to maternal mental health or substance abuse problems; and better bereavement rooms and quiet area spaces at nearly 20 hospitals to support bereaved families after late pregnancy loss, a stillbirth or an early neonatal death.

The noble Lord, Lord Harrison, spoke of the bumpy road faced by women and the wide variation in quality of service. I recognise that there is variation but we are making progress. According to December’s friends and families test, 96% of women said that they would recommend their maternity service for antenatal care; 97% for their labour and birth care; and 98% for their postnatal community care. However, we are keenly aware that we must not be complacent. Although the birth rate in England fell by 3.6% in 2013-14, we know that complexity of maternity care is increasing with increases in average maternal age, obesity rates and awareness of other physical and mental health concerns.

To meet those challenges, it is important that the maternity workforce continues to develop. This Government established Health Education England, which is responsible for promoting high-quality education and training that is responsive to the changing needs of patients and local communities. For maternity services, this means ensuring that the NHS has access to the right numbers and mix of staff with the right skills, and the right values and behaviours to provide every woman with personalised one-to-one care throughout pregnancy and childbirth, and during the postnatal period

As set out in its mandate, HEE is working with NHS England to establish a vision of personalised maternity care by 2022 across geographical and service settings; to describe the workforce needed to deliver it; and to work with key stakeholders, including the Royal College of Obstetricians and Gynaecologists, the Royal College of Paediatrics and Child Health and the Royal College of Midwives to deliver it.

Perinatal mental health has not previously been given the attention that it deserves. I was grateful to my noble friend Lady Manzoor for emphasising that. That is why we have made creating a maternity service that meets the individual needs of women and supports the prevention, diagnosis and treatment of maternal mental health issues a priority. HEE is continuing to work with the Nursing and Midwifery Council and the Royal College of Midwives to ensure that midwives in training have a core training module focusing on perinatal mental health, which should be in place for those entering midwifery training in 2015. It is also developing a continuing professional education framework for the existing maternity and early years workforce, which will include identifying the care and treatment required by women with perinatal mental illness. It is also continuing to work with the medical royal colleges to support specific perinatal mental health training being incorporated into the syllabus for doctors in postgraduate training.

The noble Lord, Lord Harrison, referred to the midwife to birth ratio, which is an interesting subject. The ratio set by the Birthrate Plus tool of 29.5 births per midwife is not a mandatory ratio. The Department of Health does not recommend a midwife to birth ratio. The midwife to birth ratio is an indication of throughput only and does not indicate the safety, quality or outcome of the service provided. Nevertheless, the National Institute for Health and Care Excellence published draft guidance on safe staffing in maternity settings in October 2014. That guidance proposes that the number and skill mix of midwives needs to be determined by the midwife in charge at the start of every shift or service and sets out the process that midwives should use to determine whether there is sufficient staff to provide for the needs of women and babies. NICE is planning to publish the final guidance this month.

The noble Lord also referred to the importance of maternity networks. I entirely agree with him. NHS England has set up 10 women and children maternity strategic clinical networks which are working with NHS England area teams to support clinical commissioning groups to commission maternity services. These networks can develop action plans and collaborative working to drive improvements in access, quality of care and inter-service communication to enhance the experience of women and families generally and, more specifically, of the large numbers of women who are at risk of poor mental health during pregnancy and following childbirth.

As I have mentioned, my noble friend Lady Manzoor referred to the costs of perinatal mental health problems. She is right to do so. Two fundamental principles articulated in our mandate to NHS England are relevant. The first is equal access for equal need; the second is parity of esteem for mental health. There is no doubt that offering better support to new mothers to minimise the risks and impacts of postnatal depression is a priority. Indeed, NHS England has announced that perinatal mental health will be a priority for it in 2015-16.

To support CCGs, NHS England has just updated its maternity services commissioning guidance, which will be published soon, and include information on commissioning for parity of care for a woman’s mental health as well as her physical health, and there will be more detailed guidance on the development and delivery of perinatal mental health services across a range of geographies and demographics for all commissioners and service providers.

My noble friend bemoaned the lack of maternal mental health outcome data. The Department of Health has commissioned the National Perinatal Epidemiology Unit at Oxford University to develop a maternal mental health outcome indicator to monitor mental health outcomes for women across the maternity pathway. We expect to include this in future NHS and public health outcome frameworks.

My noble friend also referred to the incidence of suicide, about which we are extremely concerned. However, again, this is a focus for both NICE and midwives in training.

My noble friend Lord Farmer referred, rightly, to the importance of fathers in perinatal care. There is no doubt that involving new fathers and partners in a child’s life is extremely important for maximising the lifelong well-being of a child. It is absolutely central to that and our policies are quite clear that pregnancy and birth are the first major opportunities to engage fathers in the appropriate care and upbringing of their children. This is explicitly mentioned in the healthy child programme, which every health visitor has to implement. I referred earlier today to the Start 4 Life information service, the material on NHS Choices, the baby guide and on the online birth-to-five guide. All these signpost parents to wider information about parenting and relationship support. The NICE guidance for health professionals on antenatal and postnatal mental health explicitly mentions the role of the partner, family or carer in providing support.

My noble friend Lady Cumberlege referred to the Five Year Forward View and the need to reconfigure maternity services. NHS England, in that forward view, said that it would look at new models of maternity care. It has set up a programme board, co-chaired by NHS England and Cathy Warwick, the external secretary of the Royal College of Midwives, and the first meeting for this is tomorrow.

Time prevents me, unfortunately, from addressing all the other questions that noble Lords have put to me. I undertake to write as soon as possible to every noble Lord who has spoken. In the mean time, this debate has drawn out some extremely important threads and themes that both the Government and NHS England would do well to follow up and implement.

Women: Postnatal Depression

Earl Howe Excerpts

Thursday 5th February 2015 Lords Chamber

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)]

My Lords, the Government have prioritised improving mental health care and support for pregnant women and new mothers in their mandate to NHS England, with a clear objective to reduce the incidence and impact of postnatal depression. We have taken steps to improve the size and capability of the workforce—there are 2,000 more midwives and 3,200 more health visitors than in 2010. By 2017, specialist perinatal mental health staff will be available to every birthing unit.

[Baroness Royall of Blaisdon (Lab)]

My Lords, that is welcome news. Too many women who suffer from postnatal depression do not seek help because of the stigma attached to mental illness, together with the guilt and shame attached to feeling that they are not being the sort of mother that society expects. I hear what the noble Earl says about specialist care, but what are the Government doing to ensure that specialist mother and baby units can be accessed by these new mothers wherever they live in this country, so that they do not end up on acute psychiatric wards, separated from their babies or partners, or not receiving the requisite help? At the moment, I fear that parity of esteem for mental health is not a reality for these women.

[Earl Howe]

My Lords, we know there is more to be done. There are perhaps two key actions here. One is having a sufficient number of trained professionals in place—I have mentioned the increase in the number of health visitors and midwives—and the other is raising awareness of the risks and signs of postnatal depression with mothers-to-be. Extensive training is available and delivered to midwives, both during their initial training and afterwards. The programme of family nurse partnerships commenced by the previous Government is tremendously important in the follow-up stage after birth to ensure that new mothers are monitored closely.

[Lord Alderdice (LD)]

My Lords, we know that one of the very important elements in support of women in the pre- and post-partum period is the quality of the relationship between the father and the mother of the child, and that where there is a problem in encouraging that, there is frequently difficulty. Given that, is my noble friend satisfied that this element of the relationship is sufficiently addressed, appreciated and nourished in all our facilities?

[Earl Howe]

The role of the father, as well as of course that of the mother, is emphasised in all the guidance—certainly in the healthy child programme but also in the work done under family nurse partnerships, which targets the most vulnerable families. That programme provides intensive support to young first-time mothers and their babies. It explicitly involves fathers—and/or other family members as well—as long as the mother wants the father to take part.

[Lord Laming (CB)]

My Lords, does the Minister agree that two elements need to be addressed? First, there is the safety and well-being of the mother but, secondly, there is the important issue of helping the mother to bond with her new baby. That requires quite intensive work at a critical time in the life of the new baby and of the mother. Could he assure us that these matters are being addressed in these new arrangements?

[Earl Howe]

The noble Lord makes some extremely pertinent points. The family nurse partnership programme that I mentioned is important in this context, and our aim is to expand that to 16,000 places by April 2015. We launched the NHS Start4Life information service for parents. Parenting classes are available through the CANparent network and we are developing a population measure to show child development at two to two and a half years for inclusion in the public health outcomes framework, so that we can measure the progress we are making.

[Baroness Nye (Lab)]

My Lords, would the Minister agree that midwives had a crucial role to play in identifying and helping women suffering from postnatal depression, so it is regrettable that the Prime Minister’s pledge at the last election that there would be 3,000 more midwives during this Parliament has not been met? The increased number of midwives in training is to be welcomed, but does he agree that valuable mental health care support for new mothers is being lost if some NHS trusts do not have the money to employ them when they finish training?

[Earl Howe]

It is positive that the number of midwives has increased by 2,000 since 2010, as I mentioned, and there is a record number in training, as the noble Baroness mentioned. But she is right about the role of the midwife before, during and after the birth. The visits that a new mother can expect from a midwife should contain a session where the right questions are asked of the mother about how she is feeling and how her baby is. The signs and symptoms of postnatal depression are ones that every midwife is trained to pick up.

[Baroness Howe of Idlicote (CB)]

My Lords, as well as the importance of the bonding of the mother and baby, and the other very welcome steps that the Government are taking, I hope the Minister will agree that the needs of the children at home—they are very badly affected, one hears, by a mother who is in a state of mental depression—should be taken into account and met equally.

[Earl Howe]

The noble Baroness is, of course, quite right. Again, midwives and health visitors involved in family nurse partnerships are trained to look at the welfare and well-being of all members of the family.

[Baroness Corston (Lab)]

My Lords, does the Minister agree that there is still a social stigma attached to postnatal depression? I have heard people say, “She’s got a new baby, what’s she complaining about?”. What steps are the Government taking to increase public understanding of the fact that this is a mental illness, unbidden, which affects women who would like to be able to bond with their babies and be proud of them like the rest of us are?

[Earl Howe]

The noble Baroness makes an extremely good point. I think that the stigma attached to mental illness is slowly diminishing, although there is a long way to go. But she is right that there are common misconceptions around the baby blues and postnatal depression. One of the most important things we can do is inform mothers-to-be of the risks and signs of those syndromes. If we can do that and prepare mothers for the possibility that they will experience this, we are more than half way there.

NHS: Financial Tariff for 2015-16

Earl Howe Excerpts

Wednesday 4th February 2015 Lords Chamber

[Lord Hunt of Kings Heath]

To ask Her Majesty’s Government what is their response to the rejection by National Health Service Trusts of the financial tariff proposals drawn up by Monitor for 2015–16.

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)]

My Lords, we recognise the frustration and uncertainty this delay will cause providers and commissioners. My department is working closely with Monitor and NHS England to consider which option to pursue that provides the fairest settlement for different NHS organisations while ensuring that patients continue to receive the best possible care.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I thank the noble Earl for that reply. Can he confirm that this is the first time that NHS trusts have rejected the tariff on the grounds that they can no longer provide safe and quality care and meet financial targets next year on the basis of the tariff laid down by Monitor? Can he also confirm that the finance director of the NHS Trust Development Authority told Monitor that he does not consider that the efficiency requirement for next year can be met without risking quality of care? When will the Government take responsibility for the financial disaster coming upon the NHS?

[Earl Howe]

My Lords, it should not cause us any surprise that, at a time of financial stringency in the NHS and increasing demand, it should have proved more difficult than usual to arrive at a settled position on the tariff. The process is undoubtedly complex and challenging but we will continue to work with and support Monitor and NHS England in managing this in a way that attempts to be as fair as possible to all parts of the system.

[Baroness Barker (LD)]

My Lords, given the historic underfunding of mental health services in this country, will the Government make representations to Monitor to ensure that mental health trusts are not required to make savings at the same rate as other trusts?

[Earl Howe]

My Lords, we remain absolutely committed to achieving parity of esteem between mental and physical health. The proposals for mental health services in the national tariff arrangements for 2015-16 will get us closer to that aim, should they be finally agreed.

[Baroness Howarth of Breckland (CB)]

My Lords, a great deal of concern has been expressed by specialist providers, particularly in the heart field where there is a review ongoing at the moment, that there might well be a reduction in funding. That would be disastrous for services. Can the Minister reassure those groups that there will be a fair assessment in relation to specialist provision?

[Earl Howe]

It is the view of Monitor and NHS England that providers of specialised services should make every effort to deliver care that is both clinically appropriate and cost-effective in order to manage demand—where, after all, their clinicians have significant influence. NHS England considers the proposed rule to be warranted—this is about the 50:50 split in the tariff—because rapidly growing expenditure that exceeds population prevalence growth is unlikely to reflect efficient and effective services, which, when one thinks about it, are in patients’ best interests overall.

[Baroness McIntosh of Hudnall (Lab)]

Going back to the question asked by the noble Baroness, Lady Barker, I am sure the Minister will have seen recent reports showing that there is a serious shortage of mental health beds in the health service at the moment. Indeed, I believe that at one point in the very recent past there were no more than four or five available in the entirety of the UK—or certainly in England. Parity of esteem is a fine phrase, but is it really being played out in practice?

[Earl Howe]

My Lords, it would require a full-scale debate for me to lay out in full all the things that we are doing to promote parity of esteem in the health service. The noble Baroness is right that in certain parts of the country there has been acute pressure on bed numbers, but bed numbers have been increased in some of those areas, and NHS England is paying close attention to the need to ensure that those who need in-patient treatment receive it.

[The Earl of Listowel (CB)]

My Lords, will the Minister look carefully at the bureaucratic burden on clinicians? A number of clinicians have raised with me the fact that there is too heavy a burden, and that because of that burden, they are not being as efficient as they might be.

[Earl Howe]

My Lords, yes of course the bureaucratic nature of commissioning needs to be minimised and we do all we can to achieve that. However, the need to ensure that we make a careful distinction between commissioners and providers does, I am afraid, mean that rather a lot of numerical work has to go along with that and, as is right, discussion between commissioners and providers to ensure that the system works smoothly.

[Baroness Manzoor (LD)]

My Lords, Choose and Book has been a success story for the Government. It is a hidden gem. Will this be affected by the level of tariffs that are to be offered and will patients have a real choice?

[Earl Howe]

My Lords, no, Choose and Book will not be affected, although NHS England has plans to update it to make it a much richer and more informative system.

[Lord Harris of Haringey (Lab)]

My Lords, given the appalling performance of ambulance services—certainly in London, and, I suspect, in the rest of the country—what steps are the Government taking to ensure that the tariff means that people will receive the emergency call-outs that they would expect on the basis of the funding that should be being made available?

[Earl Howe]

This is part and parcel of the discussions going on at the moment. There is a balance of interests here—above all, the interests of NHS patients, but within the system, the interests of those who hold the budget and the interests of those who provide the service. The risks relate, on the one hand, to affordability, and, on the other hand, to financial and service stability, and the need not to sacrifice quality in the process.

[Baroness Farrington of Ribbleton (Lab)]

My Lords, would the Minister care to comment on his former colleague in his department who views the reorganisation of the National Health Service as the biggest mistake this Government made? As we come towards the end of this coalition Government, some of us watch in horror as an increasing number of people within the coalition stand up and say, “It weren’t me, guv”, and, “I didn’t agree with it”. Does the Minister accept that his party, this coalition and the Liberal Democrats did not actually ask the people whether they should do this? They told them that they would not do it.

[Earl Howe]

My Lords, I remain a staunch defender of the 2012 Act. In this context, the 2012 Act did two things that were different. It gave responsibility for setting the tariff to an independent body instead of to the Department of Health and Ministers. I believe that that was a good thing. It also provided a statutory right, which did not exist before, for the NHS to be consulted on the tariff. I believe we should keep those two elements of the Act—as well as the rest of it.

Autism

Earl Howe Excerpts

Wednesday 4th February 2015 Lords Chamber

[Baroness Uddin (Non-Afl)]

My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I draw the House’s attention to my declared interest.

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)]

My Lords, there are a number of current government-funded research projects linked to autism. These include a Medical Research Council study to identify why certain genetic mutations can cause problems during brain development. By following the National Institute for Health and Care Excellence’s guidelines and toolkits, autism diagnosis can be speeded up. NHS England also has plans to use its local audit teams to provide assurance that people’s experiences of the diagnostic process are acceptable.

[Baroness Uddin]

My Lords, I thank the Minister for that thoughtful reply. He and I agree completely that there have been massive improvements in diagnosis over past decades. However, according to the Government’s Think Autism document, reports by the National Autistic Society and the BME organisation Include Me TOO, the experience of many parents seems to be that there are significant disparities and underdiagnosis, particularly among the BME communities. Given the crucial importance of timely diagnosis to the future prospects of someone with autism, how does the Minister’s department intend to address this currently patchy and inconsistent assessment service for all those who are identified as needing a full diagnosis on time and according to the Government’s own standards, and how does it intend to monitor progress?

--- Later in debate ---

[Earl Howe]

My Lords, the noble Baroness is right that timely diagnosis of autism is extremely important. I am glad she recognises that progress has been made. I believe that to be true but we know that there is more to be done. The update to the autism strategy, called Think Autism, draws specific attention to the needs of BME communities, and there is a specific action point within that document. I can tell the noble Baroness that we will include that specifically in the statutory guidance that follows on from the strategy. That guidance will be issued shortly.

[Baroness Gardner of Parkes (Con)]

My Lords, where I live, the daughter of a very nice man in the supermarket has just been diagnosed at the age of six. The problem is not the diagnosis—that has been made—but the fact that there seem to be no facilities of any sort to help him. He has been referred to the local borough by his Member of Parliament—an opposition Member, I might add, but a very nice man—and he has taken up the matter with the council, but nothing has happened. Is this, again, a problem of treatment as between care and health services, and what can be done to bridge the gap?

[Earl Howe]

My Lords, the answer to my noble friend’s question lies in more professionals being trained in autism and services supporting rather better the needs of children and adults with autism, and a lot of work is going on on those fronts. We are also asking local authorities to focus, in particular, on their own performance and to report back on the progress they are making on autism diagnosis, and indeed on other issues in Public Health England’s national autism self-assessment exercise. That process will draw out the shortcomings that exist in certain parts of the country.

[Lord Touhig (Lab)]

My Lords, there is evidence that some 25,000 children in England with autism have not been thoroughly diagnosed. The National Autistic Society, of which I am a vice-president, found in a survey that 34% of autistic people had to wait more than three years for a diagnosis. What are the Government doing to speed up this diagnosis and to ensure that it takes place within three months of a referral, which is the NICE recommendation?

[Earl Howe]

My Lords, part of this depends on the system working in a joined-up way between the National Health Service, local authorities and all the services upon which they depend. A great deal more training is going on, as I have mentioned. In December the Department of Health, the Association of Directors of Adult Social Services and Public Health England issued a new national autism self-assessment exercise, as I have mentioned. Much can be achieved, as we are impressing on local authorities, through low-level preventive support, and there are duties around prevention in the Care Act that local authorities now have in this area.

[Lord Addington (LD)]

My Lords, what is the relationship between the Department for Education and the Department of Health, particularly in spotting those at the higher-functioning end of the spectrum, for whom it may not become apparent that they have a problem until later in life rather than in the educational system?

[Earl Howe]

My Lords, the new statutory framework for children and young people with special educational needs and disabilities, SEND, is designed to improve the integrated working across health, education and social care so as to deliver improved outcomes for a child and his or her family. Clinical commissioning groups and local authorities will be working together according to that statutory framework.

[Baroness Howarth of Breckland (CB)]

My Lords, the Minister clearly accepts that speed of diagnosis ensures that a child or young person gets into treatment faster. The faster they are in treatment, the more likely they are to make some progress in how they are able to function. However, does he accept that there is a disconnect between that diagnosis and the service delivery, particularly with under-fives, where children are waiting a considerable time for their local authorities to sponsor them into nurseries or facilities? What is happening to ensure that that improves?

[Earl Howe]

The noble Baroness makes a very good point. That is exactly why we have given clinical commissioning groups new duties to commission services for nought to 25 year-olds and young people to ensure that procedures are in place, to agree a plan of action, to secure provision which meets a child’s or young person’s reasonable health needs in every case, and to work with the local authority to contribute to the local offer of services for children in this position. That is now a statutory duty and I think it is a step forward.

[Lord Bradley (Lab)]

My Lords, the Minister referred to training. Health Education England is one of the bodies charged with delivering the new strategy for transforming care for people with learning disabilities, including autism. Is it not extraordinary, therefore, that it does not keep a record of which universities deliver courses for nurse training in learning disabilities? Will the Minister ensure that such information is available so that training courses are properly monitored, with autism being a key component of such nurse training?

[Earl Howe]

My Lords, the noble Lord makes an extremely good point. I am very happy to take that back with me to the department.

Care and Support (Market Oversight Criteria) Regulations 2014

Earl Howe Excerpts

Tuesday 3rd February 2015 Grand Committee

Moved by

[Earl Howe]

That the Grand Committee do consider the Care and Support (Market Oversight Criteria) Regulations 2014.

Relevant document: 17th Report from the Joint Committee on Statutory Instruments

Motion agreed.

Care and Support (Business Failure) Regulations 2014

Earl Howe Excerpts

Tuesday 3rd February 2015 Grand Committee

Moved by

[Earl Howe]

That the Grand Committee do consider the Care and Support (Business Failure) Regulations 2014.

Relevant document: 17th Report from the Joint Committee on Statutory Instruments

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)]

My Lords, I come before the Committee today to introduce the draft affirmative regulations under Part 1 of the Care Act 2014. The regulations before us relate to some of the most important elements of the Care Act, which consolidated 60 years of fragmented legislation into a single modern statute built around the needs and outcomes of a person.

Following Royal Assent for the Care Act in May 2014, the Government published final statutory guidance and laid those regulations subject to the negative procedure before Parliament in October and November, as well as laying these regulations in draft. In keeping with the collaborative approach that we have sought to maintain through the development of these reforms, over the summer the Government conducted an extensive public consultation on the guidance and regulations, including draft versions of the regulations that we will consider today.

The consultation engaged the full spectrum of stakeholders including: people receiving care and support and their carers; social workers and other front-line practitioners; local authority commissioners; social care providers; national representative groups; and NHS bodies. In total, the consultation drew more than 4,000 responses from many different sources. Responses were carefully analysed and, where appropriate, changes were made to regulations.

I will briefly introduce each of the four statutory instruments. I turn first to the Care and Support (Business Failure) Regulations 2014 and the Care and Support (Market Oversight Criteria) Regulations 2014. I will address these together as they form the two pillars of our broader strategy to protect people from provider failure. There is a diverse provider market in adult social care where entry and exit is a regular occurrence. Local authorities are currently able to intervene to meet needs in relatively rare cases where services are closed at short notice and individuals are put at risk—and historically they have done so effectively.

The Care Act places specific duties on local authorities in Wales and England, and their broad equivalents in Northern Ireland, to temporarily step in and meet needs where a provider is no longer able to carry on because of business failure. The business failure regulations set out the meaning of “business failure” generally by reference to different types of insolvency, for example administration and winding up. This approach ensures that people receiving services are protected in the event that their provider enters insolvency, without diluting the core responsibility of providers to deliver care services under normal circumstances.

The social care market includes large care providers, operating across much of England, whose financial failure, were it to happen, would cause local authorities considerable difficulty in carrying out their business failure duties without early warning. One such recent example was in 2011 when Southern Cross, then the largest provider of residential services in England, was threatened with insolvency. Local authorities had no prior warning of its financial position. While few people eventually had to change care home, the Government recognised that the degree of worry for people receiving care and their families was unacceptable.

The Care Act accordingly places new duties on the Care Quality Commission to assess the financial sustainability of certain registered care providers. The CQC will do this by collecting and analysing financial information. The CQC may respond to significant risks identified to the financial sustainability of a provider by requiring it to develop a plan to mitigate any risks identified, or ordering an independent review of the business. Should the CQC be satisfied that a provider is likely to fail, it will provide relevant local authorities with an early warning and the information that they need to prepare adequately to protect the continuity of care for individuals. Where the CQC is not satisfied that the provider is taking all the necessary steps to return to financial health, or it feels that it has not been given the necessary information to assess financial sustainability, it is able to take a range of regulatory actions, up to and including the deregistration of the provider in question.

The Care and Support (Market Oversight Criteria) Regulations set the entry criteria for the CQC’s financial oversight regime. Any provider meeting those criteria will be subject to the CQC’s regulatory activities that I have described. They have been designed to capture those providers that—because they are particularly large, geographically concentrated or operate in a large number of local authority areas—would be “difficult to replace” were they to fail financially. It is important to note that inclusion in the regime is a comment not on the likelihood of failure but rather on the risks that would be posed should the provider get into difficulties.

The Care and Support (Children’s Carers) Regulations 2014 relate to the power in the Act for local authorities to support carers of children in a similar way to that in which they support carers of adults, setting out how the rest of Part 1 of the Act applies in this situation. It is important to note that this power applies only in the limited circumstances where carers of children have received a transition assessment in preparation for beginning to receive support under the adult statute, but the transition has not yet actually taken place.

The broad principle at work will be that adult carers of children are supported under children’s legislation, while adults caring for adults will be supported under the Care Act. This instrument is merely an acknowledgement that some flexibility in this regard may be desirable around the time of transition. The instrument has been carefully drafted to ensure that it does not replicate the support for carers of children under other legislation, so ensuring that there remains a clear division of responsibility. These regulations allow for flexible and personalised approaches to support, without forcing local authorities into unnecessary changes to different, broader policies for carers of children and of adults, which exist for good reasons.

Lastly, the Care and Support (Eligibility Criteria) Regulations 2014 set out the national eligibility criteria for adult care and support and carer support. All local authorities will at a minimum have to meet this threshold and cannot tighten their criteria beyond it, although they will have a power to meet needs that were not considered eligible. The national eligibility threshold has been set at a level where the person’s care and support needs, and their inability to achieve certain outcomes as a result, have or are likely to have a “significant impact on their well-being”. This is intended to have a similar effect to the eligibility level that the vast majority of local authorities operate at present. Together with funding announced in the 2013 spending round, this will allow local authorities to maintain the level of access to care and support when the new system is introduced in April 2015.

Given the critical importance of the eligibility criteria, the Government have been especially careful to ensure that they have taken account of the full views of all relevant stakeholders. The Department of Health carried out an extensive engagement to gather views on an initial version of the regulations from June to December 2013, and engaged the Personal Social Services Research Unit at the London School of Economics to evaluate the draft regulations against current practice. These findings informed the second version of the eligibility regulations that were consulted upon in summer 2014.

Alongside the consultation, the department asked PSSRU to evaluate the second draft of the regulations, working with 27 local authorities to compare the draft regulations with recent cases. We made a number of changes to refine the criteria on the basis of feedback and independent research. We have also worked closely with stakeholders to test the approach. I am confident that the final version before us fulfils the Government’s commitment to replicate the current access to care and support in setting the national criteria.

These regulations are required to meet fully some of the central aims of the Care Act: protecting people from the reality of provider failure and the extreme worry caused by its spectre; providing flexible and appropriate support for carers; and ensuring more consistency in people’s rights to care and support. I commend these statutory instruments to the Committee.

[Baroness Wheeler (Lab)]

I thank the Minister for his comprehensive introduction to these four important affirmative regulations. As he knows, I also have a take note Motion tabled for next week on the negative regulations on implementing the Care Act. Inevitably, there will be overlaps between today’s debate and next week’s but I hope that we can clear off some of the major issues today. The four SIs cover a number of important issues so, while we were happy to have them taken together to expedite the business of the Committee, I hope that the Committee will bear with me since there are a number of areas to cover in relation to implementation of the Care Act and the individual SIs. I also thank the Minister for the very helpful briefing meetings that he has had with Opposition Front Bench health team members on the regulations. He will know that both the Opposition’s health and local government teams are keeping a close watch on how the Care Act is being implemented, so we were grateful for the time that he took on this.

We believe strongly that this first phase of implementation has to be viewed across both the local government and health departments, and considered in the context of the huge funding pressures on local authorities, with a 40% cut in their funding since this Government took office. The Minister, of course, disputes this figure and others from independent bodies on the scale of local government cuts cross the piece and their devastating knock-on impact on social care. Whether the figures are from the King’s Fund, the Nuffield Trust or Age UK, they all put the scale of cuts to social care budgets in terms of billions of pounds.

Recent figures from the Association of Directors of Adult Social Services, with which the Department of Health has worked closely on the Care Act’s implementation, point to this year being the third year of continuing cash reductions and the fifth of real-terms reductions in spending on social care. It points out that, since 2010, social care spending has fallen by 12% while the number of those looking for support has increased by 14%. Social services departments have been forced to make savings of 26% in their budgets—the equivalent of £3.53 billion over the last four years. Compared to 2009-10, almost 300,000 fewer people over the age of 65 are receiving state-funded care.

On many previous occasions, the Minister has set out the additional funding being made available for Care Act implementation—and, despite the challenges, the recent DH stock-take shows encouraging overall progress in local authorities’ readiness for the phase 1 implementation from April 2015. Like the department, we commend the role of the joint LGA/ADASS/Department of Health programme management office. We fully recognise the scale and extent of the work that has gone into consultation exercises with stakeholders, the drafting of the regulations and guidance and the joint working on implementation with local authorities.

However, the same stock-take also makes clear councils’ continuing concerns about the adequacy of funding in the face of modelling which shows increasing support needs for local authorities around IT, workforce, information advice, carers and market shaping. Workforce capacity is a particular concern. The LGA view is that these aspects of implementation of the 2015-16 reforms may be underfunded by as much as £50 million.

Before moving on to the regulations, perhaps I may refer quickly to the Government’s plans to close down the Independent Living Fund in June 2015. We seek reassurances from the Minister that the funds transferred to local authorities from that fund will continue to be used to provide vital support for the disabled people who currently depend on it to be able to live independently in the community and have the same rights, choices and chances as any other citizen. My understanding is that it will be for individual authorities to make decisions on how the resources from the fund will be applied. Will the Government issue guidance to help protect the thousands of disabled people currently receiving ILF support who are affected by this decision? How will they ensure that the money is not just diverted into helping to fund the Care Act implementation or into general funding support for social care services?

The care and support regulations on the market oversight criteria, the interlinking negative regulation on market oversight information—covered by my take note Motion next week—and the business failure regulations are about trying to prevent the sort of problems witnessed in 2011 with the collapse of Southern Cross Healthcare, as set out by the Minister, by empowering the Care Quality Commission to monitor and obtain financial information from providers to check their financial stability and spot the early warning signs of potential difficulties and failure. The aim is to protect vulnerable people and their families if there is provider failure, to ensure that local councils have both early warning and support to be able to maintain vital continuity of support and to ensure that no one depending on the service will suffer.

--- Later in debate ---

[Baroness Pitkeathley (Lab)]

My Lords, I will speak briefly on two of these regulations: those relating to the eligibility criteria, following on from my noble friend Lord Lipsey, and, first, the children’s carers regulations.

Some noble Lords in the Room will remember, when the Children and Families Bill went through this House, the struggle that we had to get parent carers recognised at all in the legislation. All credit to the Minister for finally recognising that parent carers had rights. However, there is now a serious problem because the regulations that we were promised would be issued along with the regulations under the Care Act have not in fact been issued. We have therefore left local authorities without clarity or direction about how to implement these new rights for parent carers—rights which we won with such difficulty but with eventual recognition from the Minister.

I ask the Minister, as did my noble friend, when the Government intend to publish statutory guidance on the new rights for parent carers under the Children and Families Act, why the statutory guidance was not issued at the same time as the guidance under the Care Act, and what plans they have to support local authorities in implementing the new rights for parent carers and young carers. I also support what my noble friend Lady Wheeler said about those carers who are left high and dry—the carers of disabled children who do not have parental responsibility. They are not covered by either piece of legislation and are left with a rump of rights under the long-outdated Carers (Recognition and Services) Act 1995. We really do need to clear that up.

I turn to the issue of eligibility criteria. As everybody knows, the Care Act creates an equivalent duty on local authorities to meet the care and support needs of adults and carers alike. In doing so, it puts carers of adults on the same legal footing as adults with care needs. This was a hugely significant legal development, giving carers the clearest rights ever to support in their caring role, and it is greatly welcomed. However, the Government’s decision to set the minimum threshold at the level at which local authorities are already providing support is a cause for huge concern. As we heard from my noble friend, the historic underfunding of social care has left thousands of older and disabled people without access to the care that they need, and has heaped pressure on to family carers, who are increasingly stepping in to provide care at great personal, societal and economic cost.

ADASS reports that spending on social care has been reduced by some 26% in the past four years. It is absolutely vital that a sustainable level of funding is put in place for social care, setting the funding mechanisms which will deliver the amount of money that we need to tackle the existing gap between need and supply and to keep pace with growing demand—and the demand is growing. The number of carers who care for 50 hours or more per week is rising faster than the number of the general carer population—Carers UK estimates that there has been an increase of 25% over the past 10 years. Despite the ongoing rise in the number of carers in the UK, the number receiving carers’ assessments and carer services from their local authorities is falling. I fear that that situation will only get worse. Carers are going without food and cutting back on essentials. Those who care for 35 hours or more a week are twice as likely to be in bad health as non-carers, with the knock-on effect that that will have on their own health in the future. Therefore, I believe that we have to look very carefully at the levels of funding and at what the eligibility criteria mean.

So far as carers are concerned, the Care Act is all that I could wish for—and have been working for for almost the last 30 years. It is ironic that it is being implemented at a time when budgets are so tight that the rights of carers may be threatened, not enhanced.

[Earl Howe]

My Lords, I am grateful to all noble Lords who have spoken for their questions and comments on these regulations. I turn first to the regulations relating to business failure duties and market oversight criteria, and in particular to the question posed by the noble Lord, Lord Lipsey, about why we have chosen the CQC as the regulator in this regard. I say openly to him that it was a finely balanced decision. We were confident that we had a choice between the CQC and Monitor. Either could have performed the role. Last year, the Health Select Committee recommended that the Government should reconsider their decision to choose the CQC rather than Monitor to undertake this regulatory function.

However, as set out in the committee’s report, there is a close correlation between poor quality and poor financial performance. It recognised that for this reason the CQC is well placed to perform the function. The CQC is gearing up to do that. It recognises that it needs additional skills to assess the financial sustainability of providers. It does not yet have these core skills in-house. The CQC has procured external consultants to assist in designing its new regime and the resources needed to operate it, which will comprise a mix of internal and external expertise. That will ensure value for money. It is recruiting a number of highly experienced specialists in accounting and insolvency who will be responsible for undertaking the financial sustainability assessments of providers in the regime on an ongoing basis.

The department will support the CQC to carry out this function by providing additional funding. I hope that that provides the noble Lord with some confidence that the CQC is well capable of undertaking this task. The CQC has published draft proposals on how the market oversight regime should operate. A four-week public consultation began on 29 January. Revised final guidance will be published in early April.

As regards the process of gathering financial information, which was referred to by the noble Baroness, Lady Wheeler, the CQC has the power to require a provider to supply the information specified. The provider cannot refuse without risking enforcement action by CQC. The CQC’s aim is that the information it requests from providers will be the same as the provider’s own board would use to assess how the business is faring. It will be light touch in the sense of not onerous. The CQC has a duty to minimise burdens on businesses. However, its overriding duty is to protect vulnerable people by understanding providers’ finances and sustainability, and giving early warning of any likely failure to local authorities to help them intervene. It will require information in a proportionate way to deliver this duty.

The noble Baroness also referred to the need to support local authorities to carry out their temporary duties when a care provider fails. We recently published statutory guidance outlining local authorities’ roles and responsibilities in the event of business failure to support them in this area. In addition, the department plans to work with the Association of Directors of Adult Social Services to develop further guidance on contingency planning for provider failure, which should be available by the summer of 2015. The department has also commissioned guidance which will help local authorities to assess the financial sustainability of their local care market and individual providers within it that are not subject to the market oversight regime.

As regards the Care and Support (Children’s Carers) Regulations, concerns were raised by the noble Baronesses, Lady Wheeler and Lady Pitkeathley, around children’s carers, and in particular the new right to assessment for carers in the Children and Families Act which covers adults caring for disabled children only when they have parental responsibility. The Government will address this issue through the Care Act 2014 and the Children and Families Act 2014 (Consequential Amendments) Order 2015, which will be laid in draft before Parliament very shortly. The order will effectively save Section 1 of the Carers (Recognition of Services) Act 1995 in so far as it applies to adults caring for disabled children who do not have parental responsibility. This means that such adults will continue to have a specific right to ask for an assessment under the 1995 Act if they are caring for a child being assessed under the Children Act 1989 or the Chronically Sick and Disabled Persons Act 1970. I hope that that is helpful.

As to the specific right of adults caring for children to support to meet eligible needs, care and support for children and their carers takes place in a different context to that covered by the adult statute. Children’s legislation rightly gives primacy to the welfare of the child and this is reflected in the way the legislation works. With that said, of course the Government recognise the enormous contribution of carers of disabled children and the sacrifices they often make in taking on these caring roles. That is why the Children and Families Act includes a specific right to assessment for parent carers of such children and a requirement that in carrying out these assessments local authorities must now have regard to the well-being of a parent carer. This mirrors the definition of well-being in the Care Act, which is of course also the basis for considering the impact on well-being through the eligibility criteria.

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[Lord Foulkes of Cumnock (Lab)]

My Lords, if the Minister is going to correct my noble friend, could he say what the combined effect will be in percentage terms?

[Earl Howe]

I shall have to take advice before answering, but I will be happy to answer the question as soon as I receive inspiration.

Implementing the Care Act will be a challenge for local government, and takes place in the context of competing policy and financial pressures. However, we have already announced £470 million in total for the cost of the new duties in the Care Act which come into effect in April 2015. We have made substantial revisions to our impact assessment, following work with local authorities, to reflect changed assumptions on costs. This will mean acknowledging greater costs for carers in 2015-16 and beyond. We have recognised that.

In the first year, we will create a new carers grant to target this funding where it is most needed. As a result of this work, we believe that implementation of the Care Act will be affordable to local authorities in 2015-16. We will take further steps with the LGA and ADASS to agree a process for monitoring the costs in-year during 2015-16, to check on our assumptions and to provide evidence for the next spending review. Affordability is not just about the overall funding. We are also investing in a large suite of materials to help councils implement the Act effectively.

As regards the question posed by the noble Lord, Lord Foulkes, I am advised that the calculation that he seeks is not a simple one. I will need to write him a letter. I hope that he will allow me to do that. I shall try to be as explicit as I can in that letter.

[Lord Foulkes of Cumnock]

It is certainly not a simple calculation, and I think my noble friend was near the mark. Would the Minister send a copy of the letter to all the Members present?

[Earl Howe]

I will be very happy to do so.

The noble Baroness, Lady Wheeler, referred to the closure of the Independent Living Fund, and asked for the Government to provide guidance in the light of that. In response to the views of stakeholders during the consultation, we have provided guidance on how local authorities should manage the transition to social care for people previously receiving ILF funding. The guidance is included in the Care Act guidance that has now been published.

Both the noble Baroness, Lady Wheeler, and the noble Lord, Lord Lipsey, questioned the words “significant impact on well-being”. In particular, they expressed concern that there might be a variation of interpretation of that phrase. One of the core principles of the Care Act is that the person is central to the new care and support system, and that support is built around their needs and the outcomes they want to achieve. Considering the impact on the person’s well-being in deciding on their eligibility will make the determination personal to them. This recognises that people with similar needs and inabilities to achieve certain outcomes may have different eligibility determinations because the impact on their well-being is different.

It is important that there is consistency in approach in how the eligibility criteria are used. We have commissioned Skills for Care to develop training material and the Social Care Institute for Excellence to develop practice materials to support implementation of the eligibility criteria across authorities. Professional judgment will remain key to decision-making—this should not become a tick-box approach which does not focus on the person. We have never claimed that this will remove disparity. The system is person-focused, so it is inevitable and right that individual decisions will be made.

As regards the concern of the noble Baroness about requiring people to be unable to carry out two or more outcomes, and whether that would restrict access to care, this was an issue that was raised with the consultation version of the regulations, where there was concern that it would be impossible for people with mental health problems to become eligible due to how we described the outcomes that had to be considered. We addressed this in the regulations we are discussing today by converting the two lists of outcomes which were described in the consultation version of the regulations into one list which would capture all groups. We checked this approach with our stakeholder working group, which included members from the Care and Support Alliance and ADASS. The group concluded that it could not identify any groups that would be unintentionally excluded from eligibility due to this approach.

I turn next to the issue of informing the public, so that they have a clear understanding of their rights and the system overall. The noble Baroness will remember that we discussed this extensively during the passage of what is now the Care Act. We are putting in place a full communications campaign to ensure that people receiving services, their carers and families—and the broader population—understand the impact of the Care Act and what it means for them. The campaign will feature a partnership between the local and the national, building on the successful approaches pioneered by previous campaigns such as Change4Life. Local authorities, working with other local partners including the NHS and the voluntary sector, will get messages out directly to their own populations. We have developed a range of campaign materials and guidance to help councils communicate the changes in their local area. That will be supported by wider-reaching national activity—

[The Deputy Chairman of Committees]

With great respect to the noble Earl, I am afraid that a Division has been called in the Chamber. The Grand Committee stands adjourned until 4.35 pm.

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[Earl Howe]

My Lords, I have only a few more remarks to make. I was explaining the measures that we would take centrally and nationally to inform the public, including door drops to 2.5 million households and articles in the national media, as well as local radio and digital activity. The first phase, which focuses on people already receiving services, began late last year and is planned to continue through to April 2016. Scoping is also under way for a behaviour change campaign to encourage people to prepare for care and support needs as part of their wider financial planning.

The noble Lord, Lord Lipsey, questioned whether the final version of the regulations described the current level of access to care and support in an adequate way. We have commissioned the PSSRU to evaluate the final version of the eligibility regulations so that we can further our understanding of their impact. It will carry out its evaluation during the summer, when the regulations have been in use for six to eight weeks, and will report in August. However, there is no reason why people currently receiving care and support have to lose their access to this because of the introduction of the national eligibility threshold. The Care Act provides people with the assurance that local authorities must meet needs that meet the national threshold and, as I mentioned earlier, authorities can also decide to meet needs that are not eligible—in other words, they can meet needs that are considered moderate. Therefore, there is flexibility for local authorities in that sense.

To the extent that I have not been able to answer questions, I shall of course write to noble Lords. However, I hope that with those comments the Committee will be sufficiently reassured to approve these sets of regulations.

Motion agreed.

Smoking: E-Cigarettes

Earl Howe Excerpts

Tuesday 3rd February 2015 Lords Chamber

[Viscount Ridley]

To ask Her Majesty’s Government whether they will consider encouraging rather than discouraging the spread of vaping, in the light of the Cochrane review of e-cigarettes published on 17 December 2014 which found that e-cigarettes were more effective as an aid to quitting smoking than any other method.

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)]

My Lords, we recognise that e-cigarettes are being used by some smokers to help them cut down, or quit, tobacco. That is why the Government are already working towards a regulatory framework that ensures that they meet basic quality standards and are accompanied by sufficient information to enable informed choices. However, we would not wish to see children taking up vaping, as nicotine is a highly addictive substance. That is why we are also introducing a minimum age of sale for these products.

[Viscount Ridley (Con)]

I thank my noble friend for that encouraging Answer, but I hope that I can lure him into going just a little bit further. Given that 2 million people are vaping in this country, including a number of Members of your Lordships’ House, that 99% of them are smokers or ex-smokers and that the NHS says that vaping is 1,000 times safer than smoking and probably no more dangerous or addictive than coffee, does he therefore agree with me that it might be worth asking the Chief Medical Officer to look into how we can encourage this technology, given that it has a chance to do what patches, bans, health warnings and taxes have failed to do over decades, which is at last to consign the cigarette to the ashtray of history?

[Earl Howe]

My Lords, e-cigarettes are undoubtedly helpful to some people in enabling them to cut down on, or quit, smoking. The evidence is encouraging and we would not want to stop smokers trying out e-cigarettes as an alternative, particularly if other remedies have failed. Equally, we need to be cautious as regards the long-term health effects of using e-cigarettes. That is why the Chief Medical Officer is currently not able to recommend their use.

[Lord Hunt of Kings Heath (Lab)]

My Lords, does the noble Earl agree that the noble Viscount is perhaps guilty of a little bit of journalistic licence on this issue? The Cochrane review undoubtedly produces encouraging results, but its research contains a big “but”, in that it cautions that only two studies, covering just over 600 smokers, were reflected in the review. The Cochrane review says that we should await the outcome of further studies. Does the noble Earl agree, and can he inform the House when we are likely to see the outcome of those further studies?

[Earl Howe]

My Lords, the noble Lord is correct. The Cochrane review concluded that the quality of the evidence overall is low because it is based on only a small number of studies. The National Institute for Health Research has recently commissioned a large randomised control trial to examine the efficacy of e-cigarettes compared with nicotine replacement therapy when used within the UK’s stop smoking services. That project is due to end in 2018 and will certainly improve our current understanding.

[Lord Rennard (LD)]

My Lords, does my noble friend agree that we need a public health education campaign to persuade people that there are absolutely no health benefits whatever, or indeed any merit, in becoming addicted to nicotine, and that the promotion of devices such as e-cigarettes should be purely for the purposes of encouraging people to be weaned off their addiction to tobacco with nicotine, as tobacco is still killing nearly 300 people every day in this country?

--- Later in debate ---

[Earl Howe]

My noble friend is absolutely right. I hope that message will come through loud and clear from the measures the Government are taking to ban smoking in private cars when children are present, to introduce standardised tobacco packaging and to prohibit proxy purchasing of tobacco.

[Lord Cunningham of Felling (Lab)]

My Lords, is the noble Earl satisfied that e-cigarettes are tamper-proof and that what they contain cannot be substituted for other more dangerous substances?

[Earl Howe]

The noble Lord makes an extremely important point. It is one that is addressed in the tobacco products directive, which is due to come into force next year. The EU Commission is clear that any e-cigarettes sold need to be tamper-proof, particularly as regards children interfering with the contents.

[Lord Patel (CB)]

My Lords, it is good to know that the National Institute for Health Research would support a larger randomised study, but what the noble Viscount, Lord Ridley, said is true. The current evidence from the Cochrane analysis—the most robust method we know of analysing whether a product, device or a drug is effective against the desired outcome—is that, although the studies were small, 14 observational studies and two randomised trials show that e-cigarettes are more effective than nicotine patches or a placebo. Would the Minister agree that the industry should now also address a standard dosage of nicotine and ensure that the quality of the nicotine used in e-cigarettes is standardised across the industry to avoid subsequent risks?

[Earl Howe]

The noble Lord makes some important points. He has highlighted the fact that many products on sale are of, shall we say, variable quality. There are risks around the extent to which the dose of nicotine delivered varies; the quality of the ingredients can be suspect; and there is a question mark over the electrical safety of some products. We cannot make a general statement about products that are currently on sale. Nevertheless, it is right that the European Union has taken this matter in hand. From May 2016, only licensed e-cigarettes will be able to contain nicotine in strengths greater than 20 milligrams per millilitre. That will introduce some standardisation.

[Earl Cathcart (Con)]

My Lords, I started smoking before I was a teenager and in recent years smoked up to 50 cigarettes a day—not good for me. I started vaping in July and I have not had or wanted a puff of tobacco since. In spite of trying to give up on countless occasions, only these vaping e-cigarettes have actually helped me kick the habit. Surely that has to be a good thing. Should we not encourage it to help not just me, but the hundreds of thousands or millions of people who want to give up smoking?

[Earl Howe]

May I congratulate my noble friend on his achievement? As I have indicated, the advice given by the NHS is that, particularly where other remedies have failed, e-cigarettes may have a place where the person wants to quit. It is true that, while levels of toxicants are present in electronic cigarette liquids and vapour, they are very much lower than those found in conventional cigarette smoke. They are not considered to pose any significant passive inhalation risk.