Health and Care Bill

Debate between Earl Howe and Baroness Walmsley

Lords Hansard - Part 1 & Report stage
Monday 7th March 2022 Lords Chamber

[Baroness Walmsley (LD)]

In the case the noble Earl has just mentioned, could not the coroner have obtained the information by another means?

[Earl Howe (Con)]

My Lords, I am afraid I do not know the answer to that. I can, of course, find out and let the noble Baroness know, if those details are available.

I know there have been concerns that inquests can seem to be adversarial, and that protected material passed on to the coroner could be used in them. Inquests are, by definition, designed to be inquisitorial; statute prohibits inquests from determining criminal and civil liability, and interested persons are prevented by the inquest rules from making submissions on the facts. Coroners seek to obtain the objective truth—how and not why someone has died. I submit that not allowing coroners to see relevant safe space material could prevent justice being done and seriously undermine public confidence in the coronial system.

I turn to the important issue of funding, raised by Amendment 123, although I do not know that noble Lords have spoken to that. The noble Lord is shaking his head so, to save time, I will not cover that point.

Finally, let me just say that an independent HSSIB is an excellent concept that has wide support. In my submission, it would be a terrible pity if noble Lords rejected it because of doubts about how well it would work. I believe that it will give patient safety a valuable boost and hope that the House will support it.

Health and Care Bill

Debate between Earl Howe and Baroness Walmsley

Lords Hansard - Part 3 & Committee stage
Wednesday 26th January 2022 Lords Chamber

[Earl Howe (Con)]

I am grateful to the noble Lord, Lord Crisp, for bringing this debate before the Committee. I have listened to him and other noble Lords with care. Before I turn to the detail, it may be helpful if I explain the reason why Clause 54 is in the Bill.

Clause 54 originated as a legislative proposal made by NHS England and NHS Improvement to the Government in 2019. In making this recommendation, NHS England, under the leadership of the noble Lord, Lord Stevens, worked closely with representatives of the foundation trust sector. The key principle behind this clause is a recognition that the interests of the whole system should be prioritised in decisions about capital spending while also respecting the freedoms and accountabilities of NHS foundation trusts.

The noble Lord, Lord Crisp, asked whether it was our intention that the power in the clause would be a last resort—absolutely yes. Clause 54 is a reserve power to be used only in extreme circumstances to avert the risk of a foundation trust pursuing its own private capital objectives—if I can put it that way—that are not prioritised at a system level. I say to my noble friend Lord Lansley that that is the potential mischief that the clause is trying to address.

The control will operate in the context of the new NHS capital regime, introduced in 2020-21, at ICS area level with planning at a system level to take a holistic view of the local healthcare needs and balancing the allocated operational envelope for providers at that level. Having a power to set capital spending limits for NHS foundation trusts, as can already be done for NHS trusts, ensures an equitable distribution of capital to better enable the investments with highest priority and that achieve the greatest benefits for patients.

At this point I will push back, in the nicest possible way, at the noble Baroness, Lady Walmsley, about the actual level of capital spend. At the spending review 2021, capital spending was set to increase over the Parliament to £32.2 billion for the period from 2022-23 to 2024-25. That includes a £5.9 billion capital investment for the NHS to tackle the backlog of non-emergency procedures and modernise digital technology. As a result, the Department of Health and Social Care’s core capital budget will reach its highest real-terms level since 2010.

[Baroness Walmsley (LD)]

Governments always tell us how much money they have spent, but the question is always: has it met the demand? The money that the Minister has just mentioned is to try to cover the backlog of elective procedures; it does not cover the backlog of repairs.

[Earl Howe (Con)]

There will be money to address the backlog of repairs within that total.

Of course, it is our intention that a capital limit would be imposed by NHS England only if other ways of resolution had been unsuccessful. I will take the Committee through some of the detail, because it is important.

Amendments 188 to 192 would further restrict how the power can be applied. Amendment 188 would modify the clause by inserting “individual trust”. This modification is unnecessary because new Section 42B already ensures that an order relates to a single trust.

Amendment 191 would limit the order to one financial year, but, instead of that, the guidance prepared by NHS England will set out that any capital expenditure limits will apply to individual, named foundation trusts. We envisage that most will apply for the period of budget allocation, which is a single financial year.

Amendment 189 would insert steps that NHS England must take before applying the control and limit when an order may be made. The amendment also links the power with the capital planning function held by ICBs in new Section 14Z54. That plan may not always relate to a single financial year and can be amended in year; for example, for big capital projects, the plan could be set for several years, and in such a scenario it would be difficult to determine whether a foundation trust exceeded the plan in the early years. Amendment 189 would undermine the ability to impose the limit in a timely way and would mean that any limit could realistically be applied only when an overspend had already occurred or was committed to. That would risk funding being unfairly taken away from other areas.

Amendments 190 and 192 contain a requirement to lay a report before Parliament alongside a statutory instrument containing the order. That would cause significant delays in the power’s application. There is already a requirement in the Bill for NHS England to publish any orders which place a capital limit on a foundation trust and for guidance to set out the circumstances in which it is likely to impose a limit. We expect the guidance will also state that representations made by the trust will be published by NHS England.

As I mentioned, it is our strong view, supported by NHS England, that the powers and safeguards in the Bill create a proportionate and fair balance. These measures will ensure that if a foundation trust were actively to pursue capital expenditure that is not aligned with local priorities or affordable within local budgets, there is a means to prevent this as soon as possible.

Health and Care Bill

Debate between Earl Howe and Baroness Walmsley

Committee stage & Lords Hansard - Part 1
Tuesday 11th January 2022 Lords Chamber

[Baroness Walmsley (LD)]

My Lords, I am certainly with the noble Baroness, Lady Finlay, on the issue of outcomes. Like her, I am a member of the All-Party Group on Cancer, and I was right behind our former chairman John Baron’s attempt to get a clear focus on outcomes. I am delighted to see how successful that has been.

My Amendment 8 is very simple. It would prevent the Secretary of State tinkering too often with the mandate. As others have said, the mandate is the primary instrument through which the Secretary of State provides the Government’s direction to the NHS. He is right to do so, since the NHS uses the most enormous amount of our money and is of vital concern to every voter and taxpayer—those whom the Government represent.

However, the NHS is a little like the “QE2” in that it is absolutely enormous and takes quite a while to change direction. Indeed, a great many levers have to be pulled for it to do so. Chief executives, boards and professional staff need time to set new plans, targets and employment policies—to say nothing of moving the money around—to comply, as they must, with changes to these mandatory directions from on high. It is therefore highly undesirable for a Secretary of State to change the mandate too frequently. As the noble Baroness, Lady Thornton, said, even when it happens, adequate notice and reasons must be given.

Other amendments in this group deal with other aspects of the mandate, but I want to be fully assured that, given the difficult tasks we set our NHS, its outline instructions and targets are not unfairly changed too often. I feel justified in having this concern, because the evidence of clauses later in the Bill indicates to me a tendency by the Government to want to meddle where meddling is inappropriate and could have negative effects. I refer, of course, to the Secretary of State’s attempted power grab, which we will discuss later in Committee.

Can the Minister assure me that there is already some effective measure that would prevent the mandate being changed more than once in any financial year, which would make it very difficult for the NHS to comply?

[Earl Howe (Con)]

My Lords, I am glad to be able to respond to these amendments relating, in their several ways, to the NHS England mandate. I will cover each in turn.

I begin with my noble friend Lord Lansley’s Amendment 4. I confess that I am not in the least surprised that he, of all noble Lords, should have reminded us of the key importance of the NHS outcomes framework. Amendment 4 would require the Secretary of State to specify objectives that will help NHS England achieve improvements in the outcomes provided for in the NHS outcomes framework. As he and I remember clearly, the NHS outcomes framework is a set of indicators that provide for national-level accountability for the health outcomes that the NHS delivers. The first version was published in 2010 to inform the first mandate to what was then still known as the NHS Commissioning Board. In essence, it looks at long-term health trends across various domains, including quality of care and patient experience. It is a valuable resource and, as my noble friend knows, remains an important tool for measuring the NHS’s contribution to improving outcomes over the long term.

I quite agree with my noble friend that progress against outcomes is vital. That is why we have included Clause 3 in the Bill. One of the main advantages of a longer-term mandate is that it will allow us to take a longer-term view of progress against outcomes that can be measured meaningfully only across a number of years.

The noble Lord, Lord Patel, asked who will be responsible for improving outcomes. The answer is that NHS England and ICBs have duties in relation to improving the quality of services. I can assure him that we will hold them to account for doing so. Having said that, we are moving now to a system-wide approach. That entails the need to measure shared outcomes across health and the wider social care and public health system. Some of these outcomes are led by the NHS but many are system-wide, so the business of measuring patient and service-user outcomes will inevitably become more sophisticated.

We want to ensure that our system is flexible and able to adapt as those system approaches develop and mature. I hope my noble friend therefore appreciates why we would not want to enshrine the NHS outcomes framework in the mandate in statute, in a way that might limit or compromise our ability to explore broader system approaches as we go forward. However, I seek to reassure him that the NHS outcomes framework will continue to be a vital tool to look at long-term trends in health outcomes and the NHS’s role in supporting health outcomes. That basic role for the NHS outcomes framework will not change.

I fully understand the concern of the noble Baroness, Lady Thornton, in her Amendment 7 that the mandate should not be revised unnecessarily and without good reason. I completely agree with that sentiment; again, it lies behind our desire to look at the mandate over a longer timeframe than has hitherto been possible. My concern is that her amendment goes much further than, I suspect, she intended, because it would prevent the mandate being revised at all in anything other than an urgent or unforeseen situation. That would be unhelpful, because it would wholly prevent planned changes to reflect, for example, evolving strategic priorities, emerging evidence of need or even a planned general election.

The purpose of Clause 3 is to strengthen the role of the mandate by enabling the Government, where appropriate, to set a mandate that can endure, rather than having an annual use-by date. Looking back to our debates on the Health and Social Care Bill in 2011, the noble Baroness will remember that it was always the intention that the Government should set a multiyear mandate, and Parliament agreed. In practice, that intention has been hampered by the inevitability of an annual review of the mandate to a fixed deadline—a deadline that does not neatly align to a number of events and strategic processes, including the Budget, spending reviews and general elections. Clause 3 addresses this. I seek to reassure the noble Baroness that there is no intention to revise mandates unnecessarily at the drop of a hat, as it makes no sense to do so.

I am grateful to the noble Baroness, Lady Walmsley, for highlighting a similar set of issues to those raised by the noble Baroness, Lady Thornton. Her Amendment 8 would prevent the Government revising our mandate for NHS England more than once in the same financial year, for any reason. As I said to the noble Baroness, Lady Thornton, I completely understand her concern that the mandate should not be revised so frequently that NHS England is unable to plan for or deliver government priorities effectively. This is why I reassure her that this will not happen, except in the most exceptional of circumstances. I hope she accepts that reassurance, because it cannot be in the interests of any Government, or of patients and service users, to set a mandate that changes NHS priorities too frequently. I expect any such revisions to be very rare. As I have indicated, though, one can imagine that they may be necessary to respond to unforeseen events, to reflect the result of a general election or to signal future shifts in priorities at a point when the NHS is planning ahead. The Government need the necessary mechanism to deal with these and other similar eventualities.

The noble Baroness will see that Clause 3 already contains an explicit safeguard in respect of reasonableness: NHS England will not be obliged to revisit a business plan that it has already published, should the Government revise the mandate within a year of its issue. The Government will also have a continuing duty to consult NHS England before making any revision. I believe that, in combination, these two safeguards work together to fully answer the point that the noble Baroness made.

Jimmy Savile: NHS Investigations

Debate between Earl Howe and Baroness Walmsley

Thursday 26th February 2015 Lords Chamber

[Earl Howe]

I understand the point made by my noble friend. At the same time, it is clear from the executive summary of Kate Lampard’s report that Stoke Mandeville is by far the most important and salient element of the report and I had hoped that that would have guided readers’ attention towards the section of the report that deals with Stoke Mandeville. Nevertheless, I am sorry that my noble friend has found it necessary to say that and I understand why he has.

[Baroness Walmsley (LD)]

My Lords, the Statement referred to inadequate systems and the need for a culture change. Does the Minister accept that many people are of the view that what we have is inadequate law and not only inadequate systems? I do not know whether my noble friend heard the “Today” programme this morning in which Mr John Humphrys, in interviewing a lawyer acting for one of the many Jimmy Savile victims, was astonished to discover that there is no offence of ignoring knowledge of child abuse that has been reported. Indeed, a majority of the British public think that it is already the law but the Minister knows that it is not.

I welcome the commitment to a public consultation that resulted from an amendment I tabled to the Serious Crime Bill, but several months have passed since that commitment was made by the Government and we still do not know which department will lead the consultation. Will it be the Home Office, the Department of Health or the Department for Education, or will it be a combination? I heard that in another place the Minister undertook that the consultation would be complete and the Government’s response given within 18 months of the Bill becoming an Act. Can the Minister confirm that that undertaking stands and say whether there has been any progress on which department will lead on this consultation?

[Earl Howe]

My Lords, I cannot give a specific undertaking on the timescale that we envisage for the consultation or on any legislation that might ensue from it because that raises the question of whether any legislation is necessary. That is what we want to know from the consultation process. However, I can tell my noble friend that the Home Office will be leading the consultation in conjunction with all the other relevant government departments.

Tobacco: Packaging

Debate between Earl Howe and Baroness Walmsley

Thursday 28th November 2013 Lords Chamber

[Earl Howe]

It most certainly is relevant, which is why we are taking the legislative opportunity in the Children and Families Bill to drive home that very point. My noble friend is right.

[Baroness Walmsley (LD)]

My Lords, I congratulate those in your Lordships’ House on their persistence in keeping this issue before the Government, including my noble friend Lady Tyler of Enfield. I also congratulate the Government on their determination to base policy on evidence. However, if the Government, in the fullness of time, use their regulatory power to introduce standardised packaging, will they keep a watching brief on the tobacco companies? In the past, whatever procedures we have brought in, they have been extremely clever in finding ways round them to lure young people into starting smoking. Therefore, will the Government watch the situation very carefully and try to make sure that the tobacco companies do not get round standardised packaging, thus continuing to attract young people to a habit that will kill them?

[Earl Howe]

My noble friend makes a very important point. She is, of course, right that the tobacco companies protect their commercial position with great vigour. We will indeed keep an exceedingly close eye on the actions of the tobacco industry and, should we decide to introduce regulations, we will do all we can to ensure that they are watertight.

Organ Transplantation

Debate between Earl Howe and Baroness Walmsley

Monday 27th February 2012 Lords Chamber

[Earl Howe]

No, my Lords, and that is part of the problem.

[Baroness Walmsley]

Will the Minister accept that it can be very difficult for doctors to approach a bereaved family to ask about organ donation? I know this from personal experience, because doctors did not approach me when I lost my late husband; I had to raise the matter myself. It is understandable that they do not want to upset the family. However, can it not be even more upsetting for a bereaved family who have not been asked about donation to realise some time later that they have missed the opportunity for their loved one to give life to other people?

[Earl Howe]

My noble friend raises an extremely important set of issues. This was one issue identified by Chris Rudge when he took up the post as National Clinical Director. A great deal of work has been done in the NHS to increase the number of organs available to patients and to have the kinds of conversations with families that are necessary but very delicate. There has been an increase in the number of specialist nurses for organ donation who are of course highly trained in that area, and appointments of clinical leads for organ donation have also helped.

Health: Children and Young People

Debate between Earl Howe and Baroness Walmsley

Monday 6th February 2012 Lords Chamber

[Earl Howe]

My Lords, the outcomes framework that I have just referred to should assist in the latter regard. I think the noble Baroness would agree that the system we have at the moment is not sufficiently joined-up, and in that sense does not adequately serve the needs of children. The approach we have taken to the proposed NHS reforms is to promote the importance of the integration of care and service provision for everyone, including children. We believe that strong partnerships at a local level, supported by professionals and local leaders, are the way forward, not top-down direction. The health and well-being board provides the forum for repositioning the joint strategic needs assessment into a truly joined-up strategy for local people.

[Baroness Walmsley]

I welcome what my noble friend the Minister has said about getting the views of children, but does he think that giving the commissioning of the excellent Healthy Child programme to local authorities is going to bring about the universal dissemination and delivery of that programme?

[Earl Howe]

The role of local authorities will be pivotal in this because it is at local-authority level that public health, social care, and indeed the discussions that will go on in the health and well-being board context will bring together policy in a way that informs NHS commissioning. I think that the approach we have taken has been widely welcomed, and we are absolutely determined that all sectors of society, including children, are included in these processes.