Levelling-up and Regeneration Bill

Debate between Earl Howe and Lord Hunt of Kings Heath

Consideration of Commons amendments
Monday 23rd October 2023 Lords Chamber

[Earl Howe (Con)]

The House will have heard the noble Baroness’s comments, but I draw the distinction between the roles of the two kinds of committee.

Incidentally, the amendment would open up the possibility of councils moving to an entirely remote model of council meetings—something that noble Lords perhaps should ask themselves whether they would favour. My noble friend will doubtless have noted that the Government’s majority in the other place when the amendment was put to the vote was very substantial.

[Lord Hunt of Kings Heath (Lab)]

My Lords, how far would the noble Earl take this principle in relation to public bodies? I am a member of the GMC. We meet half in person and half remotely. Many other national bodies, some in receipt of government funding and others independent like the GMC, operate in the same way. Would his department say that the principle he is enunciating should be extended throughout the public sector? If not, why not? I do not understand the logic of the Government’s position.

[Earl Howe (Con)]

My Lords, we have been over this issue almost ad infinitum in Committee. We are not in Committee anymore; we are at Lords consideration of Commons amendments. I hope the noble Lord would agree that we are past the stage of arguing the niceties in the way he invites me to do.

Finally, in his Motion ZE1, the noble Lord, Lord Bach, seeks to insist on his original amendment. I can only reiterate the points in my opening that PCC powers would transfer to an elected mayor only after that individual has become democratically accountable at a local level. The example he sought to cite as a fait accompli is nothing of the kind, for the simple reason that there needs to be an election before the Mayor of the West Midlands could hope to become a PCC. If the transfer is to happen in the West Midlands, the mayor could exercise the PCC functions only if elected to do so at the next election, so there is no compromise of the democratic mandate of the elected mayor to exercise the functions. The choice of who would exercise the PCC functions in the West Midlands would remain in the hands of the people of the West Midlands if the transfer were to happen.

Commencement at Royal Assent enables the Government to adhere as closely as they can to the Gould principle of electoral management, whereby any changes to elections should aim to be made with at least six months’ notice. As the noble Lord knows, the Government wish these provisions to have legal effect in time for the local elections in May next year. His amendment would frustrate that policy intention. I hope he will forgive my pointing it out, but doubtless he will have noticed that the Government’s majority on this issue in the other place was very substantial: 153. I hope that on reflection he will be content to accept the assurances I have given and will not move his amendment in lieu.

Levelling-up and Regeneration Bill

Debate between Earl Howe and Lord Hunt of Kings Heath

Report stage
Thursday 13th July 2023 Lords Chamber

[Lord Hunt of Kings Heath (Lab)]

My Lords, I want to make two points. The Minister said that this is not about gerrymandering. I suspect he would say that, wouldn’t he? I am a resident of Birmingham, and Birmingham City Council is a huge local authority—a member of the West Midlands Combined Authority. Do we not get any say at all in whether the boundaries should be extended to Warwickshire? Surely the current constituent authorities have a legitimate role in consenting to the boundaries being extended.

The second point is that the amendment I referred to, government Amendment 34, allows work to be done in relation to this in advance of Royal Assent—which is a highly unusual move, I suggest.

[Earl Howe (Con)]

I simply remind the noble Lord, in answer to his first point, that there has to be a public consultation. That is when the views of all interested parties can be taken into account. Retaining the present arrangements, which I guess the noble Lord would like to do, could mean that the expansion of a combined authority—where the evidence shows that would be likely to improve outcomes across the proposed whole new area—could end up being vetoed by one existing constituent council if the combined authority’s local constitution requires unanimous agreement from its members on this matter. That could happen, irrespective of support from the potential new member, the mayor and the great majority of constituent councils.

I hope the noble Lord appreciates why these provisions are framed as they are. I know that he believes there is an underlying malign motive. Again, I emphatically repudiate that idea. The current regime acts as a barrier to the expansion of an existing combined authority, even when there is a clear economic rationale in favour of it. The Bill will make it less difficult for combined authorities to expand into more complete and stronger economic geographies. For that reason, I ask him not to press his amendment when it is reached.

Levelling-up and Regeneration Bill

Debate between Earl Howe and Lord Hunt of Kings Heath

Committee stage
Wednesday 15th March 2023 Lords Chamber

[Earl Howe (Con)]

My Lords, I think that my best course is to write to my noble friend on both issues. He is perfectly right that Clause 43(2)(e) refers to

“a combined authority the whole or any part of whose area is within the proposed area”

as being a body to which the section applies; that is to say, a body which may prepare a proposal for the establishment of a CCA for an area and submit that proposal to the Secretary of State. It would be wise of me to set down in writing the kinds of circumstances in which we envisage that particular geographic area playing a part in the formation of a CCA. On the questions my noble friend raised on economic prosperity boards, I again think it best that I should write to him.

I say to the noble Lord, Lord Hunt of Kings Heath, that the policy for CCA establishment and operation, as reflected in the Bill, neither belittles nor marginalises the important role played by district councils. When a CCA is formed, any district councils within its geographic radius will be important stakeholders—it is very hard to see how they could not be—albeit alongside many others. However, they cannot be a constituent member of a co-operative local government grouping whose membership is determined by reference to strategic functions and powers which are the primary province of upper-tier and unitary authorities. That is the logic.

[Lord Hunt of Kings Heath (Lab)]

My Lords, it has been a very interesting debate; I am grateful to noble Lords who have taken part and to the Minister for his very careful response. At heart, I come back to the contributions from my noble friend Lady Taylor and the noble Lord, Lord Mann, on the importance of district councils to local democracy. It seems to me that there is a risk that they are ridden over roughshod in the Bill. I listened with care to what the Minister said at the end; it is interesting that he referred to them as being second-tier, but I am not sure that I accept that. I find that to be pejorative in itself. Housing, local planning and environmental health are not second-tier; they are the statutory body. There is a big risk here.

I have experience as a member of Birmingham City Council, where we had metropolitan counties and metropolitan district councils. To call Birmingham City Council second-tier to the then West Midlands County Council would have been greeted with absolute horror. I know that the powers were slightly different, because the met districts had more powers than the non-met districts, but the principle still arises.

I take what the noble Lord, Lord Jackson, said— I understand the point about leverage and economic development—but the noble Lord, Lord Stunell, is surely right in saying that the district councils’ own responsibility in terms of the preparation of development plans means that, tactically if nothing else, they need to have a seat at the table. The trouble with being associates is that it really does not convey the importance that the district councils have.

I also sympathise with the noble Lord, Lord Mann, when he talked about geographically incoherent CCAs—surely, he is right. I am afraid that I have to refer back again to 1974: the proposals were made during the Heath Government, when Peter Walker was the Environment Secretary, but it fell to the 1974 Labour Government to preside over the new arrangements.

Do noble Lords remember Avon County Council, Humberside County Council and Hereford and Worcester? They were hated because people did not accept that they were coherent authorities. Put Worcestershire and Herefordshire together and you begin to see some of the problems: these CCAs are very artificial architecture, are they not, really? We will see these large units that will appear so remote from the public. The argument here is that at the very least, surely, we should make sure that the non-met district councils have a proper role and seat at the place. There have been a number of amendments and debates, and I think that between now and Report we have to find a way to signify that district councils are important. Having said that, it has been a good debate and I beg leave to withdraw my amendment.

Energy Security Strategy

Debate between Earl Howe and Lord Hunt of Kings Heath

Thursday 7th April 2022 Lords Chamber

[Lord Hunt of Kings Heath (Lab)]

My Lords, can the Minister explain to the House why the strategy was not published this morning—

[Earl Howe (Con)]

My Lords, although the clock has passed 15 minutes, I am afraid it was the turn of the Liberal Democrats. I will allow the noble Lord to ask his question: I think that would be appropriate.

Health and Care Bill

Debate between Earl Howe and Lord Hunt of Kings Heath

Lords Hansard _ Part 1 & Report stage
Wednesday 16th March 2022 Lords Chamber

[Lord Hunt of Kings Heath (Lab)]

My Lords, this was debated two weeks ago, but I know that the noble Earl, Lord Howe, wishes to say a few brief words to your Lordships’ House. With the permission of the House, I will say very briefly, without seeking to open the debate, what the amendment does. It is to amend the Human Tissue Act to prohibit UK citizens from travelling to countries such as China, although the wording in the amendment is not country-specific, for the purpose of organ transplantation. The restrictions are based on ensuring that there is appropriate consent, no coercion and no financial gain.

Forced organ harvesting in China is the crime of forcibly extracting organs from prisoners of conscience, killing the victim in the process. The harvested organs are sold to Chinese officials, Chinese nationals or foreigners for transplantation. This is a very modest amendment, doing our bit to try to prevent this obnoxious habit. I beg to move.

[Earl Howe (Con)]

My Lords, I am very grateful to the noble Lord, Lord Hunt, for allowing me to say in a few sentences why the Government advise noble Lords not to support the amendment.

Reason number one is the effect on patients. In my submission, very sick patients who may be taken overseas for a transplant but are not fully made aware of how their organ was sourced should not have to face prosecution when they return to the UK. The existing legislation rightly targets those who buy and sell organs, not recipients who may have been quite unaware of any commercial dealing taking place. If we target the organ recipient, we will find that those who legitimately receive organs overseas—incidentally, individuals who are more likely to come from ethnic-minority backgrounds—will be deterred from seeking follow-up treatment for fear of being treated like a criminal suspect.

Reason number two is that the mischief the amendment seeks to address is dwarfed by the considerable burdens it would impose on the NHS. All the information indicates that we are dealing, at worst, with tiny numbers of illegal transplants performed overseas. The amendment would require officials, whose focus should be on promoting legitimate donation, to research and write a report every year on the status of every other deemed consent system in the world and on the public understanding of each scheme. That is not a drafting criticism but a necessary consequence of what the noble Lord seeks to achieve. In my view, it is an unreasonable ask and a hugely disproportionate use of resources.

To address the issue at first base, we will take forward the excellent suggestion from the noble Baroness, Lady Finlay, to work with NHS Blood and Transplant. My noble friend Lord Kamall has already instructed officials to engage with it on how we can help clinicians make their patients aware of the health risks, the risk that they may be exploiting others and the risk of breaking the law if they travel abroad in search of an illegitimate transplant. I truly think that is a better way forward, and I invite the noble Lord to change his mind about pressing his amendment.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I will not detain the House. It is time for the House to make a decision. I am very grateful to the Minister for picking up the point made by the noble Baroness, Lady Finlay, in relation to NHS Blood and Transplant. In the end, it may be a small gesture but it is an important gesture—a mark against this obnoxious habit. I would like to test the opinion of the House.

--- Later in debate ---

[Earl Howe (Con)]

My Lords, I will turn first, if I may, to the amendment in the name of the noble Lord, Lord Hunt of Kings Heath, on the Vaccine Damage Payment Scheme, and start by thanking him for his campaigning on this issue, and for the informative debates we have had today and in Committee.

As we discussed in Committee, since the NHS Business Services Authority took over responsibility for the Vaccine Damage Payment Scheme from the Department for Work and Pensions in November 2021, we have started to find ways to improve the operation of the scheme. The most important thing the NHS Business Services Authority is looking do to is to improve the claimant journey on the scheme, and that means making engagements with claimants more personalised, as well as giving claimants access to more general support. The crucial part of this drive is to reduce response times, which the authority knows has been a cause of dissatisfaction, particularly during Covid; in other words, the whole process is being modernised.

The NHS Business Services Authority has done its best to hit the ground running. Since taking over in November, it has already contacted all applicants to update them on their cases and it has also allocated additional resource to the operation of the scheme. I can assure the noble Lord that the department will further engage with the NHS Business Services Authority to ensure that these service improvements, greater digitisation in particular, really do make headway. There is already regular dialogue on this.

With all this enhanced activity happening, I do not think this is right time to establish an independent review into the VDPS. As the noble Lord will know, reviews take significant time and they carry substantial costs to the organisation, not just financial but in terms of leadership focus and energy. Instead, we think it is a better use of resources to focus on making the changes that we know need to happen; that is, to improve the claimant’s journey, and to modernise the process for claimants, as well as scaling up the capacity of the VDPS. We will keep the progress on these under regular scrutiny, and I am sure we will report regularly to this House as we do so.

I will address the noble Lord’s three key questions. First, I should be happy to facilitate a meeting with representatives of the families, and my honourable friend Maria Caulfield, who is the Minister with direct responsibility for the scheme, will be pleased to see them. Secondly, as I have already indicated, reducing response times is one of the NHS Business Services Authority’s key objectives. Thirdly, the noble Lord asked whether the Government would undertake a review of the scheme. I simply remind the noble Lord that the scheme has been revised many times since its inception, which shows that it is reviewed regularly as a matter of course, but perhaps it is worth my making the point that the VDPS is not a compensation scheme; nor is it designed to cover all expenses associated with severe disablement, which are catered for from the public purse in other ways. I hope that is helpful to the noble Lord, and that on the basis of those assurances he will feel able to withdraw his amendment.

Before I address the detail of Amendment 180, I would like to again put on record my thanks to my noble friend Lady Cumberlege for her continued commitment to the issues she has so powerfully spoken about, and the diligence and dedication of the IMMDS team, and the brave testimonies of those who contributed to the IMMDS review. As my noble friend knows, the Government have accepted the majority of the report’s nine strategic recommendations and 50 actions for improvement, and are taking forward work to improve patient safety. This includes establishing specialist mesh removal centres, the ninth of which opens in Bristol this month, and work to improve the care pathways for children and families affected by medicines during pregnancy.

We remain committed to delivering improvements in patient safety across the board. We are focusing government funds on initiatives that directly improve future safety. For this reason, the Government have already published their decision that redress schemes will not be established for people affected by hormone pregnancy tests, sodium valproate or pelvic mesh. I realise that was a disappointing decision for my noble friend, and I am always very sorry to disappoint her, but, for the reasons I have given, I ask her not to move Amendment 180 when it is reached.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I am very grateful to the noble Earl, Lord Howe, the noble Baroness, Lady Brinton, and my noble friend Lady Wheeler for their support. I empathise with the comments of the noble Baroness, Lady Cumberlege, and her report, which was far-reaching. Having met some of the women who were affected, I know how keenly the noble Baroness, Lady Cumberlege, feels about these issues. It is disappointing that the Government have rejected this particular request, although they have accepted many of her recommendations. It leaves the groups of women whom we have met to continue with their long, hard campaign, but they will continue, and one day a Government will agree to give them some of the support that they deserve.

On my own amendment, I pay tribute to the work of the NHS Business Services Authority. I am very glad that it took over responsibility for the scheme, and I wish it well in speeding up the process of claims. I am grateful to the noble Earl for facilitating a meeting between representatives of the families and the Minister—that is very welcome indeed. All I would say is that as the Business Services Authority continues its work, it is bound to come across issues in relation to the operation of the scheme, and I hope the Government will reflect on that and look at further improvements to the scheme. Having said that, I beg leave to withdraw my amendment.

Health and Care Bill

Debate between Earl Howe and Lord Hunt of Kings Heath

Committee stage
Friday 4th February 2022 Lords Chamber

[Earl Howe (Con)]

I noted that the amendment tabled by the noble Baroness is closely modelled on the current law in Scotland. Because of that, it fails to account for the significant differences between how Scotland, and England, Wales and Northern Ireland, regulate the storage and use of human tissue. In England, Wales and Northern Ireland, that storage and use is regulated by the Human Tissue Authority. In Scotland, there is no equivalent body and the amendment is silent as to what impact it would have on the authority, especially given the challenges involved in managing the great quantity of tissue that would be retained.

I am aware that many Scots share my concerns about consent for retaining tissue. A recent petition to the Scottish Government highlighted the anguish faced by a grieving mother on learning that she did not have the choice to have some of her child’s remains returned to her. She was upset at how long it took for those remains even to be located, so although this amendment would apply only to adults the same kind of issues would apply.

[Lord Hunt of Kings Heath (Lab)]

My Lords, it has been a very good debate. First, I say to the noble Baroness, Lady Finlay, that I sympathise with her Amendment 297H, but clearly it is a sensitive area. The noble Lord, Lord Alton, mentioned Alder Hey; I had ministerial responsibility at the time, and it was very traumatic meeting the parents of children who, in the end, had body parts buried up to three times or more because of the dreadful way in which both the hospital and university managed the situation, as well as the pathologist himself. On the other hand, the reasons put forward by the noble Baroness seem very persuasive, and I hope there will be a continuing debate on this with the Government.

As far as my two amendments are concerned, I am very grateful to the noble Lord, Lord Cormack, the noble and right reverend Lord, Lord Sentamu, the noble Baroness, Lady Finlay, and my noble friend Lady Thornton for their support. As the noble Lord, Lord Ribeiro, said, the concession given by the noble Baroness, Lady Penn, on behalf of the Government during discussions on the then Medicines and Medical Devices Bill was highly significant both for this country and for the message it gave globally. The debate today, and the amendments, are as much about global messages as UK legislation.

As the noble Baroness, Lady Northover, said, we cannot say that we do not know; we do know. The noble Lord, Lord Alton, sat through many of the harrowing sessions of the Uyghur Tribunal and the evidence—before a hard-headed panel—is absolutely convincing. There can be no doubt that this is an abhorrent practice and, as my noble friend Lady Thornton said, it may not be on the same scale but these wretched exhibitions that take place are a product of those abhorrent practices. She has persuaded me that my amendment is rather soft and needs to be hardened up. I look forward to her helping me to get the wording right.

The noble Earl, Lord Howe, referred to the HTA code of practice; I think we need to go further than that. On organ tourism, I will obviously study very carefully the issues that he raised about my amendments, but we have the figures from NHS Blood and Transplant: I think 29 people have come to the NHS for help following a transplant abroad, which gives us some clue as to the numbers but clearly it is not the whole picture. At the end of the day, you come back to the issue of ourselves and China. Clearly, there is huge ambiguity in our policy, whether that is to do with security, trade or human rights. Some of that ambiguity is understandable, given the scale and size of the Chinese economy—we understand that—but I do not think there is any room at all for ambiguity about this country making a strong response to these appalling practices. Having said that, I beg leave to withdraw my amendment.

--- Later in debate ---

[Earl Howe (Con)]

I appreciate of course my noble friend’s remarks, and I undertake to bring them to the attention of my right honourable friend the Secretary of State.

[Lord Hunt of Kings Heath (Lab)]

My Lords, this has been a very good debate, again, and I am grateful to the noble Earl, Lord Howe, for his sympathy. I really support the plea from the noble Baroness, Lady Cumberlege, for more thought to be given to the specific area of redress for the three groups of patients she mentioned. Any of us who have met some of the women involved—I think in particular of the women I have met who have been affected by surgical mesh issues—will be taken with the huge damage that has been done to their lives and well-being. I think they deserve listening to.

I will also say that I was very grateful to the noble Baroness, Lady Hodgson, for her support and for the information she brought to your Lordships, and to the noble Baroness, Lady Walmsley, and my noble friend Lady Wheeler, who pinpointed the need for action in this area.

--- Later in debate ---

[Earl Howe (Con)]

My Lords, I rather wish it were my noble friend Lord Kamall handling this group because he is the Minister, and I am not. However, what I can do is undertake to bring the request of the noble Lord to his attention—I am sure I do not have to—and I am sure he, in turn, will wish to respond as soon as possible to that request.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I know how generous the noble Lord, Lord Kamall, has been with his time. I can but hope for a sympathetic response and beg leave to withdraw my amendment.

Health and Care Bill

Debate between Earl Howe and Lord Hunt of Kings Heath

Lords Hansard - Part 2 & Committee stage
Monday 31st January 2022 Lords Chamber

[Earl Howe (Con)]

I apologise to the noble Baroness, because she was making a significant point. I am not sure that I share her perception that those who buy bottled water in supermarkets necessarily do so as a reflection of their lack of trust in tap water; a lot of it has to do with some myths around the benefits of bottled water. However, be that as it may, I will take advice and write to the noble Baroness. I am not sufficiently sighted on the issue she raised and the evidence behind it, so it is probably appropriate if I look into it and write to her.

[Lord Hunt of Kings Heath (Lab)]

My Lords, this has been a very interesting debate. On dental access, a number of noble Lords—my noble friend, the noble Baroness, Lady Bennett, the noble Lord, Lord Storey, and the noble Baroness, Lady Walmsley, among others—commented on the great difficulty that many people have at the moment in getting access to an NHS dentist. The noble Lord, Lord Storey, focused in particular on children, which is my particular concern. More energy needs to be put into developing a dental strategy. On thoughts of contracts, anyone who has been a dental Minister will know that the problem with contracts is that dentists always overperform, and the Treasury then claws back in future years, leading to unhappiness and misery in the profession. The fact that the pilot schemes, on which I think work is being based for a future contract, have now stopped, or are going to be stopped, is a great pity, and it does not show positive intent.

On fluoridation, I was delighted that the noble Lord, Lord Young, intervened. A couple of debates ago I was watching on the screen, and he chided me for what I thought was a perfectly formed piece of legislation at the time, many years ago. He talked about his experience as a Minister 42 years ago. I think it was because of his work that I, 37 years ago, as secretary of the Edgware/Hendon Community Health Council, organised public meetings in part of the Borough of Barnet on fluoridation, prior, we hoped, to the then area health authority implementing a fluoridation scheme. Although the public meetings came out strongly in favour of fluoridation, of course nothing happened. I am afraid that the experience in Barnet and Edgware and Hendon was repeated up and down the country, which is why I applaud the Government for doing what they are doing now.

The noble Baroness, Lady Northover, spoke very eloquently about the evidence from deprived areas. Sandwell, next door to Birmingham, is high up in most indicators of poor health, except in dentistry. That is because, unlike Liverpool, Birmingham City Council took the decision in the 1960s to fluoridate the water supply and Sandwell got the benefit. The result is that, in general, oral health in the West Midlands is very good indeed.

I listened with great interest to the noble Lord, Lord Reay. He mentioned the Jauncey judgment, which unfortunately I remember. I remind him that, although Lord Jauncey ruled that Strathclyde Regional Council was exceeding its powers in seeking to fluoridate the water system, he accepted that the amount of fluoride it wanted to put into the system would have no significant adverse effect on health, that fluoridation had been shown to be harmless and that it would be effective. When we quote Lord Jauncey, we need to quote the whole judgment, rather than just whether Strathclyde was found to have the power to put fluoride in the water.

I will not repeat what the noble Earl, Lord Howe, said. In only September, the Chief Medical Officers spoke in their judgment about the effectiveness and safety of fluoride. I was very glad to hear the point the noble Earl made about expansion; I am very glad that it is on the Government’s mind. I look forward to the consultation, which I take will be a national one, if there is going to be an expansion; that is very good news indeed.

On cost sharing, I register that this Bill is full of little clauses which give Ministers powers to do something in the future, when they know what they want to do. I mention procurement regulations in Clause 70 at the same time; I think that is going a bit too far. Having said that, I beg leave to withdraw my amendment.

Health and Care Bill

Debate between Earl Howe and Lord Hunt of Kings Heath

Lords Hansard - Part 2 & Committee stage
Wednesday 26th January 2022 Lords Chamber

[Earl Howe (Con)]

I shall need to write to the noble Baroness about that timing because I do not have it. I meant to say that I was grateful to the noble Lord, Lord Stevens, for his intervention on the way in which we hope that primary care will be better built into the commissioning arrangements than it has been up to now.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I am grateful to the noble Earl and to the noble Baroness, Lady Tyler, for her helpful interventions on primary care, which were very important.

In essence, the noble Earl said that we should be reassured because, either through the constitution of the ICB or through the more general guidance given out by NHS England, appropriate accountability and monitoring arrangements will be put in place. I accept that, but there are questions about the guidance and the constitution which mean that we may well want to come back. I think it would be appropriate for Parliament to give some oversight approval to that.

We are a bit jaundiced about NHS England guidance because we still cannot get hold of the guidance put out 10 or so days ago about the make-up of ICBs and the new timetable, which I mentioned on our previous Committee day. It is on something called nhs.net but not even our Library can get hold of it because there is a security wall around it, and I do not understand why it has not been put into the public domain. That is why we are a bit wary of any guidance that is going to be put out. I cannot resist saying that I hope the guidance is not going to say that local authority councillors cannot be on the place-based committees, because that would be a mistake. It could be helpful in some places for them to be so appointed.

On the more general issue of purchaser-provider tension, we have had a really interesting debate. The noble Lord, Lord Lansley, said that every Secretary of State apart from Frank Dobson, of blessed memory—my first ministerial job was serving under Frank before he was persuaded, if that is the word, by Tony Blair’s persuasive skills to go and fight Ken Livingstone for the mayorship of London—believed in it.

The point is that, whatever you call it, there is clearly going to be a relationship between the organisations of the NHS that have the dosh handed out by the department and those organisations that provide the services. There is going to be an unnecessary tension and an issue of accountability and monitoring. The puzzle that some of us have is how that is going to work within the integrated care boards when the big providers are sitting around the table. I think the clue was given in the Health Service Journal, which said:

“In the minds of most acute trust chiefs, it is provider collaboratives and groups, and not integrated care boards that will wield the greatest influence”—


an interesting phrase. I suspect the real dynamic is going to be between those collaboratives and the chair and chief executive of the integrated care board, while the board itself, which looks as though it is going to be very large, will be the legitimiser of those discussions and tensions. Still, it is a bit of a strange beast.

The noble Lord, Lord Stevens, raised the issue of CCGs and the fact that, because they were essentially membership organisations of GPs, they could not do the nitty-gritty of managing the contracts, which in the end was kind of half-devolved down to them but with accountability held at the NHS England level. That illustrates the problem of having providers and commissioners around the same table. For very good reasons people want to encourage them to integrate, but that poses its own challenges.

I think it is inevitable that we are going to come back to this issue. This has been a very good debate and I am most grateful. I beg leave to withdraw the amendment.

Health and Care Bill

Debate between Earl Howe and Lord Hunt of Kings Heath

Lords Hansard - Part 2 & Committee stage
Tuesday 18th January 2022 Lords Chamber

[Earl Howe (Con)]

As I understand it, the noble Lord, Lord Hunt, is proposing a separate NHS appointments commission. I am suggesting that it would be unnecessary to add that arms-length body to the existing landscape.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I am very grateful to the Minister for his response, which he has clearly put a great deal of thought into. At the end of the day, what is being proposed is a very top-down, hierarchical approach to running the health service. ICBs may be accountable to NHS England and, through NHS England, to the Secretary of State, because the Government are taking power of direction through this legislation. However, it becomes abundantly clear that ICBs do not look outward to their local communities; they look upward to the hierarchies above them.

This is the problem with giving NHS England such power over the chief executive and the chair. Anyone who has worked in the NHS knows that, in the target-laden, panic-ridden approach from the centre to local management, the ICBs will be under the cosh right from the start. For all the wonderful words that have been used about what they will do, the reality is that they will be beaten up by the centre in the traditional “target” approach to running the service. Of course, it did not have to be this way. While it is perfectly proper to have boards making their own decisions and appointments, and being held to account for interventions where necessary, this is such a top-down approach that I do not think it will work. I believe and hope that the House will seek to amend it in some of the ways suggested in these amendments. That said, I beg leave to withdraw my amendment.

--- Later in debate ---

[Earl Howe (Con)]

My Lords, I too am grateful to the noble Baroness, Lady Bennett of Manor Castle, for bringing forward this group of amendments. As many of the Committee will remember vividly, and as the noble Baroness, Lady Wheeler, has reminded us, accountability for the health service was a topic of considerable debate at the time of the Health and Social Care Act 2012 as it went through Parliament. The constitutional position of the Secretary of State was closely scrutinised and the current wording in the Act is very much the product of those discussions. I remind the Committee especially of the hard work done by the noble Baroness, Lady Jay of Paddington, who was at that time chair of the Constitution Committee, her colleagues on the committee and many others, including my noble and learned friend Lord Mackay of Clashfern, who did so much to develop the current wording of the clause. The coalition Government accepted the Constitution Committee’s recommendations in full.

I am afraid that I do not agree with the noble Baroness’s characterisation of the reasons why it was thought appropriate to modify the wording that described the Secretary of State’s responsibility for the health service. As noble Lords will be aware, the idea that the Secretary of State himself provides services has not for many years reflected the real world. As the noble Baroness, Lady Wheeler, rightly said, and as the Committee will remember, it was decided in 2012 that it was better that the law reflected the reality of the modern NHS rather than retaining outdated language. I do not think that the last 10 years have proved that proposition wrong. The current legislative framework allows some of the health services in England to be provided by entities, such as NHS foundation trusts, that are legally distinct from the Secretary of State. That will continue to be the case and should be recognised in the law.

I understand the concerns that Ministers might somehow avoid being responsible for ensuring the continuation of a comprehensive health service. However, there have been many vigorous debates in Parliament about the NHS in the years since those changes in 2012, and they have demonstrated that there has, quite rightly, been no loss in the strong sense of governmental accountability for the NHS felt by both government and Parliament. Indeed, the House amended the Act in 2012 to put beyond doubt that:

“The Secretary of State retains ministerial responsibility to Parliament for the provision of the health service in England.”


That has not changed in this Bill; the wording will remain set in statute.

I would gently caution against recreating the fiction that the Secretary of State provides services directly. It is much better to be clear that the role of the Secretary of State is to set strategic direction, oversee and hold to account NHS England and the other national bodies of the NHS and, occasionally, to intervene—as the noble Lord is doing.

[Lord Hunt of Kings Heath (Lab)]

I thank the noble Earl for giving way. Given what he has said—and I know that we will debate this later—I point out that it is curious that the Government wish to take on a power of direction over NHS England, if that is so. I guarantee that that power will never be used because the Secretary of State’s power of direction never has to be used. Once this is passed, that changes the relationship; NHS England will know that the Secretary of State has that power of direction. Although I have tabled some amendments to try to modify it, I have no objections to the general principle, since I do not think that a quango such as NHS England should be freely floating. But we need to recognise that it is a fundamental change in the relationship to impose that power of direction again.

[Earl Howe (Con)]

My Lords, as I was about to say, the 2012 Act does provide for the ability of the Secretary of State to intervene when that is necessary for the smooth and effective running of the system. Furthermore, we should not exaggerate the extent to which this Bill modifies the 2012 provisions. As the noble Lord said, we will debate the powers of direction on a future occasion but, when we come to do so, my colleagues and I on the Government Benches will contend that the powers of direction, such as they are, are very narrow and specific in their scope. They have been deliberately framed in that way to reflect experience over recent years. I would not be in favour of reopening this piece of drafting, given its history and the effort that noble Lords from all sides of the House made to build an effective consensus in respect of the 2012 Act.

The noble Baroness, Lady Brinton, asked about dental access. The department is working closely with NHS England to increase levels of service as quickly as possible. Practices are continuing to prioritise patients based on clinical need. Dental practices are now being asked by NHS England and NHS Improvement to deliver at least 85% of contracted units of dental activity—UDAs—between January and March 2022 to provide improved access for patients. These updated figures are based on what many practices have been able to deliver to date. They take into account adherence to the latest infection prevention and control guidance. I hope that this is helpful to the noble Baroness.

I hope also that I have explained to the noble Baroness, Lady Bennett, why I cannot entertain her amendments, but also that I have reassured her that the accountability chain between health services, Ministers and Parliament, which lies at the centre of her concerns, remains intact.

Queen’s Speech

Debate between Earl Howe and Lord Hunt of Kings Heath

Tuesday 3rd September 2019 Lords Chamber

[Lord Hunt of Kings Heath (Lab)]

My Lords, does the noble Earl accept that the unwritten constitution that we have depends on Prime Ministers actually doing the right thing? Given the current Prime Minister, has the time not come for us to have a written constitution?

[Earl Howe]

The answer to that question is not in my brief—but no doubt the noble Lord, with his ingenuity, can produce some very interesting proposals in that direction.

Folic Acid

Debate between Earl Howe and Lord Hunt of Kings Heath

Wednesday 9th January 2019 Lords Chamber

[Lord Hunt of Kings Heath (Lab)]

My Lords—

[The Minister of State, Ministry of Defence (Earl Howe) (Con)]

My Lords, we have had two supplementary questions from the Labour Benches and only one from the Conservative Benches, so would my noble friend like to continue?

House of Lords: Questions

Debate between Earl Howe and Lord Hunt of Kings Heath

Monday 9th November 2015 Lords Chamber

[Lord Hunt of Kings Heath]

I welcome what the noble Earl has been saying. I have a suggestion to make. There is a problem in recess where clearly the queuing is always stacked in favour of people who live in London. If one wanted to pilot a different approach, why not pilot it during recess periods so that we could see how it worked and whether there were some more general lessons to be learned? It is just a suggestion.

[Earl Howe]

I think that is a very creative idea. Worries have been expressed this evening about what rules apply during recess and what counts as a topical Question, as the noble Lord, Lord Berkeley, pointed out. However, I do not think that we are likely to find total unanimity on the idea of a ballot—as the contributions this evening have demonstrated—but if there is one message that has come through it is that we should think through this idea rather more carefully, as there might be some underlying balloting system that would work.

The benefit of the present system is that it gives the House four weeks’ notice of upcoming Questions. The one thing we do not want to do is add complexity to the system or reduce the notice period to, say, two weeks, as I think my noble friend Lord Sherbourne suggested. However, I am in favour of the principle of what my noble friend wants to achieve and I would not wish to discourage him from putting his ideas to the noble Lord, Lord Laming, as chairman of the Procedure Committee.

The pros and cons of the queuing system have been referred to. For clarity, I say that if there is a slot available, noble Lords do not have to queue; they can take that slot on the spot. But if no slot is available and one is to become available, as they do four weeks ahead of the period being considered, it is allocated on a first-come, first-served basis, hence the queue that tends to form. I fear that the noble Lord, Lord Berkeley, was lucky in the first instance that he referred to and slightly unlucky in the latter instance.

Penrose Inquiry

Debate between Earl Howe and Lord Hunt of Kings Heath

Thursday 26th March 2015 Lords Chamber

[Lord Hunt of Kings Heath (Lab)]

My Lords, I thank the noble Earl for repeating that Answer. Clearly the Penrose report is a detailed factual account of what happened, and I pay tribute to Lord Penrose for the work that he and his team have completed.

I noted the noble Earl’s comments this afternoon that we have the initial response, but that the full response is to be left to the next Government. It is clear that the report needs very careful reading in order to come to a substantive view. Certainly, as a Minister, I dealt with this issue in my time at the Department of Health—I see the noble Lord, Lord Fowler, and other former Ministers here—and Dr David Owen has on a number of occasions drawn attention to some issues about the way this was handled by the Department of Health. On the face of it, does the noble Earl think that at the very least this warrants some discussion about whether his own department needs to establish some kind of view on the Penrose report?

Lord Penrose made a single recommendation: that all people in Scotland who had a blood transfusion before 1991 should be tested for hepatitis C. Again, is that to be left to the substantive response after the election, or can he give an initial view on the implications of that recommendation for people affected in England?

The noble Earl referred to relief. Can he say anything about the Skipton Fund payments and progress made on that fund since its establishment in 2004, and about decisions that I believe were made by the Government in January 2011 with regard to payments to the estates of people who died prior to the announcement of the scheme in August 2003?

One of the stark conclusions from reading the report is about what could be described as the paternalistic view taken by doctors on information to be given to patients. He says that the expert evidence available to the inquiry indicated the withholding of information from patients on the absence of treatment for the condition, which from a contemporary ethical perspective was not acceptable. Does the noble Earl agree with that, and does he consider that circumstances have moved on such that today such information would not be withheld?

[Earl Howe]

My Lords, I am grateful to the noble Lord, Lord Hunt, for his comments and questions. There is no doubt that Lord Penrose has done a very thorough job in examining the facts. It is worth understanding that he has considered the evidence from England as well as Scotland.

I pay tribute to those who showed tremendous courage in telling the inquiry about the impact of infection on their lives and the lives of their families. The report has systematically examined the facts and set them out. As well as other inquires, such as the Archer inquiry, with which the noble Lord is familiar, this report has now given us a detailed account of what happened, which is extremely valuable. I agree that there will be a need to reach a formal view on Penrose’s conclusions once my department and the next Government have had an opportunity properly to consider the conclusions that he reached.

As for Lord Penrose’s recommendation to offer a hepatitis C test to everyone who had a blood transfusion before 1991, the department conducted a look-back exercise in 1995 to try to identify everyone who might have received infected blood prior to 1991. We will consider whether anything more can be done on this in England, although obviously Lord Penrose’s recommendation relates specifically to the Scottish Government taking steps along these lines. We have already done an exercise to identify anyone who could have been affected, and we will consider whether anything more should be done on this.

The noble Lord asked about the Skipton Fund, which, as noble Lords will remember, is there to make non-discretionary payments to patients infected with hepatitis C. To date, over 5,100 individuals in the UK have received the stage one payment and around 1,500 have received a stage two lump sum in the UK, with around 700 receiving annual payments in the UK.

Barts Health NHS Trust

Debate between Earl Howe and Lord Hunt of Kings Heath

Thursday 19th March 2015 Lords Chamber

[Lord Hunt of Kings Heath (Lab)]

My Lords, I am sure that the House is grateful to the noble Earl, Lord Howe, for repeating that. It is a worrying report about the largest trust in England, which is directly managed by his department through the NHS Trust Development Authority. Why have these problems been allowed to get worse over the past two years? Does he agree that the report has identified that the root cause of the problem was the reorganisation of the trust in 2013? Can he say why Ministers overruled the Co-operation and Competition Panel, which advised against the proposed merger and warned of the adverse consequences for patients?

[Earl Howe]

The decision to create Barts Health was taken following a report that analysed the options open to the department at that time. As the noble Lord knows, there was, effectively, a merger of several trusts to create Barts Health. The advice received by the Secretary of State at the time was that none of the three trusts subject to the merger with Barts was sustainable as a stand-alone organisation. The appraisal of the options identified the three-way merger as the most beneficial and strategic solution for the system as a whole, taking into account a wide range of clinical, financial and government issues.

False or Misleading Information (Specified Care Providers and Specified Information) Regulations 2015

Debate between Earl Howe and Lord Hunt of Kings Heath

Thursday 19th March 2015 Grand Committee

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

My Lords, before I go into the detail of the regulations, I will briefly set out the background for why this offence was set in statute and why the regulations are required.

The report of the Francis inquiry into the events at Mid Staffordshire NHS Foundation Trust made clear the need for clear and reliable information about the quality of care and organisational performance. The inquiry found that inaccurate statistics about mortality rates obscure the true picture of care and can allow poor care to continue unchecked. The creation of a culture of openness and honesty is vital in improving care in the NHS and in empowering staff to challenge poor care where and when it occurs, and this Government have taken great strides to ensure that this is the case.

The provision of accurate information is central to the safe functioning of the NHS. It provides the intelligence on which commissioners and regulators form judgments about the quality of care. Where that information is wrong, it can result in delays in taking action to protect patients and service users. Deliberately falsifying such information is a serious matter that can frustrate attempts to provide safe care for patients and service users.

Care providers, which are directly responsible for the standard of services, have a clear responsibility to ensure that the information they supply is accurate and gives a true picture of the standards of care that they provide. The Care Act 2014 put in place a new criminal offence that will apply to care providers that supply, publish or otherwise make available false or misleading information. The offence will apply to the misreporting of information that is required to comply with a legal obligation. I wish to emphasise that last point: this offence applies only to providers of care, not regulators or commissioners of care.

Where a provider is found to have committed the offence, which could be as a result of deliberately supplying false or misleading information or as a result of neglect, the provider can be fined by the courts. In addition, the courts can require the provider to take action to address the failings which led to the offence occurring and make publicly known the action it is taking.

The FOMI offence can also apply to senior individuals within a care provider but only when the care provider has been found guilty of the offence. Senior individuals can also be found guilty of the offence where they have consented or connived in the publication or submission of false or misleading information, or have been sufficiently neglectful in their duties to allow false or misleading information to be published. An individual found guilty of the offence could face imprisonment of up to two years, a fine or both.

Of course, misreporting of information can be the result of genuine error and it is essential that such mistakes do not result in a criminal conviction. The Care Act 2014 therefore allows for a defence against the offence where a care provider is able to demonstrate that it took all reasonable steps and exercised due diligence to avoid the misreporting of information.

The primary legislation contains a regulation-making power that allows the types of care providers and the types of information to which the offence applies to be specified in regulations. The regulations before the Committee specify that the offence will apply to NHS trusts in England, NHS foundation trusts and other persons who provide health services from a non-NHS hospital,

“pursuant to arrangements made with a public body”.

For clarification, this means that the offence can apply to independent providers delivering services under an NHS contract, but only if they are also required to submit or publish the information included in the regulations.

The information to which the FOMI offence applies is focused on the issues raised by Robert Francis, such as mortality figures, and is supplied by providers of NHS secondary care. This is a short list, but one that represents a significant quantity of data provided by the NHS and forms the foundation of the information used to assess NHS performance.

The regulations include other key information supplied by providers of NHS secondary care, including cancer waiting times, maternity data sets, many of the core commissioning data sets and NHS quality accounts. The latter is an important inclusion, as Sir Robert Francis specifically recommended that:

“It should be a criminal offence for a director to sign a declaration of belief that the contents of a quality account are true if it contains a misstatement of fact concerning an item of prescribed information which he/she does not have reason to believe is true at the time of making the declaration”.

All the information listed in the regulations is that which providers are or will be required to publish or submit because of a statutory or other legal obligation. This is a requirement of the primary legislation of the Care Act 2014 and an important part of the legislation for a few reasons.

First, it means that a provider cannot opt out of submitting or publishing information just because it wants to circumvent the false or misleading information offence. Secondly, as this is information that is already required to be published or submitted, we are not requiring providers of NHS secondary care services to undertake any additional work—only that they should ensure the information they provide is accurate and not misleading. Finally, providers of NHS secondary care services publish or submit on a voluntary basis a great deal of information which is incredibly valuable to improving the delivery of services and developing a greater understanding of the nation’s health. We do not want to dissuade providers from submitting or publishing such information, which is why the offence cannot be applied to information of that type.

In summary, the offence will apply only to the providers listed in the regulations and only where the offence occurs in relation to the provision or publication of the information listed. When the Department of Health consulted on the regulations in 2014, it was noted that the application of the offence was quite complicated. We have addressed this concern through guidance on the application of the FOMI offence which sets out how this law works.

The FOMI offence puts in place an important new sanction against providers of NHS-funded secondary care that mislead others about the performance of their services. As this offence is new, the regulations have been developed to focus the application of the offence so that it covers important data sets and data that can be robustly interrogated to determine if a provider has committed the offence. Designing the regulations this way will enable us to better understand how the offence operates in practice and allow us to make changes to the regulations in a targeted way in the future. I hope that noble Lords will support this rationale and will therefore agree to these regulations being commended to the House. I beg to move.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I am very grateful to the noble Earl for introducing these important regulations, which the Opposition are very happy to support. It is clearly unacceptable for anyone or any organisation in the NHS to knowingly publish false or misleading information. We are fully behind the Government on this. The noble Earl will probably remember that during the passage of the Care Act we tried to strengthen the clause that the regulations emanate from by tabling an amendment which would have made it an offence to withhold information with the intention to mislead or misdirect. That was not accepted by the Government.

I come back to the point that the Minister ended with. He emphasised that this applies only to NHS trusts, foundation trusts and those providing services. He will know from our discussions on the Bill that we wanted to expand this to cover other organisations, including local authorities and clinical commissioning groups. I would be grateful if he could respond on why the Government still think this should be confined to those who provide services.

I put to him that the Francis report into Mid Staffordshire, and indeed the more recent report by Bill Kirkup looking at the very worrying incidents that happened in Morecambe Bay, do not just put responsibility for what happened at the door of the providers, though I fully accept that in the end the board of the Mid Staffordshire NHS Foundation Trust and the board of the trust that ran Morecambe Bay must take primary responsibility. However, a number of other organisations were listed—organisations that would not be defined as providers. There are circumstances in which clinical commissioning groups, or part of NHS England, ought to be covered by the same rules and law because one depends on honesty and openness throughout the system. I would be interested in the Minister’s comments on that.

This is part of wishing to develop a culture of openness and transparency. People in the health service are very cynical about these proposals because they do not see the same transparency and openness and, to be frank, honesty emanating from the Minister’s own department. If my noble friend Lord Brooke were here, he would remind the Minister about the lack of publication of the interim risk register. I point to the report by the noble Lord, Lord Rose, on management capacity. It is one thing to have a legal provision, but it is another to ensure that everyone in the system actually operates according to the spirit of what the Government intend. I myself believe that that should apply as much to the Minister’s department and NHS England as it does to the providers in the health service.

[Earl Howe]

My Lords, I am grateful to the noble Lord for his support for these regulations. He returned us to an issue that we debated during the passage of the Care Act: the question of why this offence is restricted to providers and does not extend further to either NHS or local authority commissioners. We took the view that, in determining the scope of the offence, the focus should be on information that is closest to patient care, where inaccurate statements can allow poor and dangerous care to continue. This type of information is required by law from providers of NHS secondary care, such as hospital trusts, and to be frank we have not yet identified information that would warrant extending this offence to commissioners or other providers of information. The scope of the offence is therefore determined by the information to which it applies.

The noble Lord referred to the need for openness throughout and across the system. I agree with him, of course, and I contend that over the past five years this Government have done more than any other to promote transparency in the health service and indeed from the department itself. The particular case of the risk register is one that we have debated on a number of occasions. He may recall that while the decision was taken by the Cabinet not to publish the transition risk register, nevertheless I laid before the House the essential elements contained within the register to enable noble Lords to understand the broad content of the risks that the transition addressed. The approach to risk registers in general is one that was taken under the previous Administration in a number of departments.

The report prepared by the noble Lord, Lord Rose, on NHS leadership is being looked at in the light of NHS England’s five-year review. The five-year review was published during the time that the noble Lord, Lord Rose, was preparing his report and the possibility of extending the report to take account of the review is being considered. We look forward to seeing the conclusions of the report once it is ready.

Nicotine Inhaling Products (Age of Sale and Proxy Purchasing) Regulations 2015

Debate between Earl Howe and Lord Hunt of Kings Heath

Thursday 19th March 2015 Grand Committee

[Baroness Finlay of Llandaff (CB)]

My Lords, I thank the noble Earl for introducing these regulations and welcome the way in which they have been drafted. Clearly, a great deal of care was taken in the drafting, and they seem eminently sensible.

It is most reassuring to know that the Association of Convenience Stores welcomes these regulations and the clarity that they provide. It says:

“We support strong enforcement against proxy purchasing of tobacco. We need to see these properly enforced, something that is lacking with the same powers that are in place for alcohol proxy purchasing”,

and that the penalty for proxy purchasing on e-cigarettes puts everything consistently in line. Indeed, it has welcomed the age restriction.

I was glad, too, to hear the reference to the Welsh study because it was the data from Wales that really began to make me personally concerned about these products. There is evidence of increased use among under-18s. I know some people will say that data from ASH are biased, but ASH has been fairly neutral in its view on electronic cigarettes because of the way that they have helped people quit ordinary tobacco cigarettes. It has found that the number of 11 to 18 year-olds who have tried an electronic cigarette increased from 5% in 2013 to 8% in 2014, although it did put the caveat around those figures that the use is closely linked with smoking behaviour.

One piece of research which is really important to have on the record is the work from Counotte and colleagues, published in Developmental Cognitive Neuroscience in 2011, which found that,

“nicotine exposure during adolescence can disrupt brain development bearing long-term consequences on executive cognitive function in adulthood”.

These are new products, with high levels of nicotine in them. We know that the propensity for the developing brain in the age group up until 25 years to develop addictions of all sorts, right across the board, and addictive behaviour is greater than in the older brain. There is a concern that exposure in the young leads to a much greater propensity to develop nicotine addiction.

I have been concerned at the way that these products are marketed, especially to the young, and about their appeal almost as a fashion accessory. When I have looked at those shops which specialise in selling these products, they have made me feel as if I was probably a bit too old to go and buy one. They seem to be marketed very much to a young, vibrant population, which I find alarming. If they are shown to be as addictive as they might be, this will create a long-term market for them in the future.

I have been to several meetings about electronic cigarettes, including one held here in your Lordships’ House at which I was concerned at the almost aggressive way in which vaping was being pursued by some people present, which set alarm bells ringing a bit in my head over the process. These regulations are proportionate, timely and welcomed by those who have the responsibility for selling these products. I am glad that they appear to have universal support.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I welcome both sets of regulations. The Opposition fully support them. Like the noble Baroness, Lady Finlay, I was very impressed by the evidence from the Association of Convenience Stores and its support for the regulations. It is very persuasive in relation to the introduction of a minimum age of sale and I commend the ACS for the responsible briefing that we were sent ahead of these regulations.

The noble Earl referred to the research, such as the Welsh data and the evidence we have received from ASH, and mentioned the CMO’s concerns. Essentially, although one can certainly see that these products can have a beneficial health impact for many adult smokers, there is this issue about whether children go to smoking through these e-products. Is the noble Earl satisfied that enough research is being undertaken at the moment, either through the traditional research areas such as the MRC and Wellcome or perhaps through Public Health England? I do not know if he has information about this, but clearly it would be good to know that his department is keeping a continuing watchful eye to ensure that enough research is being done. Particularly relating to children, there is enough uncertainty around to make us want to ensure that there is ongoing research on this.

I have another question for the Minister, raised by the evidence that ASH submitted to his department when it was consulting on the regulations. ASH says that there is real confusion about the relative risks of electronic cigarettes compared to smoking, not just among the general public but among health professionals. It quotes from newspaper articles saying that smokers have been given advice by medical people and have had the impression that it is nicotine rather than tobacco smoke that is harmful. ASH quotes a study presented at the UK National Smoking Cessation Conference; it was some years ago so the profession may be more up to date now, but in one study presented at the conference a substantial proportion of GPs incorrectly asserted that nicotine in cigarettes caused CVD, strokes and lung cancer.

The point that ASH makes is that at the same time as regulations are introduced, the Department of Health should promote better understanding of the relative harm of electronic cigarettes and other nicotine products, including those authorised as medicine and their potential benefit to smokers. I understand that with regard to children there are areas where we are uncertain, but there are areas where we are more certain as well. I would be interested to know whether any advice or guidance accompanying the regulations is to be given to medical practitioners in particular.

I welcome the proxy purchasing offence, which is something that we very much support. The Minister quoted cases of young smokers having their cigarettes bought for them by another person, and outlawing this will help to crack down on it and send a wider public message that this is wrong. The other point comes back to the issue raised by the ACS regarding the e-cigarette issue: introducing the offence will give greater power to responsible shopkeepers not to serve people who they know, or strongly suspect, are going to pass cigarettes on to children. Overall, we are glad to see these regulations and to support them.

[Earl Howe]

My Lords, I welcome the support that the noble Baroness, Lady Finlay, and the noble Lord, Lord Hunt, have given to these regulations. I shall respond to the questions and points that they have raised. The study mentioned by the noble Baroness, Lady Finlay, was referenced in our consultation document. It was an important study, showing the impact of nicotine on the adolescent brain, and it influenced us considerably in informing the policy.

E-cigarettes are not risk-free. We do not know enough about the long-term health effects of adults using them, let alone children. There have as yet been no long-term studies to examine whether e-cigarettes serve as a gateway to tobacco use. Therefore, we cannot be certain at this stage whether there is a gateway effect from the use of e-cigarettes into tobacco smoking. Further research is needed to answer the question definitively. However, we know that nicotine is highly addictive, and we wish to protect children from the risk of nicotine addiction and the impact that nicotine can have on the developing adolescent brain.

The noble Baroness expressed a fear, which I share, about the aggressive marketing of these products. It is worth noting that the revised European tobacco products directive, which will apply from 20 May next year, includes a ban on advertising e-cigarettes, with a cross-border dimension—that is, advertising through television, radio, newspapers, magazines and sponsorship of sports events.

On the point made by the noble Lord, Lord Hunt, about what are sometimes seen as mixed messages around e-cigarettes, there is no doubt that, looked at in a certain context, e-cigarettes could be seen to have a role in enabling smokers to quit where they have tried other methods and not succeeded. We recognise that e-cigarettes are used by some smokers in that way. That is why the Government are working towards a regulatory framework that ensures that these devices meet basic standards of safety, quality and efficacy. We are clear that e-cigarettes must be accompanied by sufficient information to enable users to make informed choices.

The noble Lord asked about research. I agree that these matters must be kept under the policy spotlight going forward. The National Institute for Health Research recently commissioned a large, randomised control trial to examine the efficacy of e-cigarettes compared with conventional nicotine replacement therapy when used within UK stop smoking services. That research study is inevitably quite long-term. It is envisaged that the project will end in 2018, but the NIHR is confident that it will improve our current understanding considerably.

Health Care and Associated Professions (Knowledge of English) Order 2015

Debate between Earl Howe and Lord Hunt of Kings Heath

Tuesday 17th March 2015 Grand Committee

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

My Lords, the Government recognise that overseas healthcare professionals make a valuable contribution to our NHS, and we are keen to ensure that highly skilled professionals do not face unnecessary barriers to working in our health service. However, it is vital that all healthcare professionals practising in the UK have the necessary English language skills to properly communicate with and care for patients and members of the public. The department has consulted on proposals to introduce language controls for nurses, midwives, dentists, dental care professionals, pharmacists and pharmacy technicians, and the vast majority of respondents to the consultation—99%—were supportive of the proposals.

We have worked with the Nursing and Midwifery Council, the General Dental Council, the General Pharmaceutical Council and the Pharmaceutical Society of Northern Ireland to identify a system of language controls for EU nurses, midwives, dentists, dental care professionals, pharmacists and pharmacy technicians which provides greater safety for patients and members of the public. The draft order gives those regulatory bodies the powers to apply proportionate language controls so that only healthcare professionals who have the necessary knowledge of the English language are able to practise in the UK, together with an assurance that they can do their jobs in a safe and competent manner.

The draft order sets out to amend the Nursing and Midwifery Order 2001, the Dentists Act 1984, the Pharmacy Order 2010 and the Pharmacy (Northern Ireland) Order 1976 to strengthen the regulatory body’s powers to introduce proportionate language controls and to require EU applicants to provide evidence of their knowledge of the English language following recognition of their professional qualification—but before registration and admission on to the register. We also propose corresponding amendments to the fitness to practise powers of the NMC, GDC, GPhC and PSNI, so that they can initiate fitness to practise proceedings in cases where a healthcare professional’s knowledge of the English language may pose a serious risk to patient safety.

A new category of impairment relating to English language capability will be created. It will allow the regulatory body to request that a professional undertakes an assessment of their knowledge of the English language during a fitness to practise investigation where concerns have been raised—something that they are currently unable to do. Those changes will strengthen the regulatory body’s ability to take fitness to practise action where concerns about language competence are identified in relation to healthcare professionals already practising in the UK.

Our overall approach is compliant with EU law which clarifies, under recent changes to the mutual recognition of professional qualifications directive, the ability of national authorities to carry out language controls on European applicants where the profession has patient safety implications. Any language controls must be fair and proportionate. For example, there cannot be automatic testing for all European applicants, and any controls cannot take place until the applicant’s qualification has been recognised by the regulatory body.

The order makes amendments to the relevant legislation which will require the regulatory body to publish guidance setting out the evidence, information or documents which a healthcare professional must provide to demonstrate that they have the necessary knowledge of the English language in order to practise their profession. Any person who is refused admission on to the register on the grounds that they have failed to demonstrate the necessary knowledge of English will have a right to appeal. The process for determining whether a person has the necessary knowledge of English will be set out in the relevant regulatory body’s rules or regulations, which we anticipate will be amended and implemented before the end of the year.

These changes are a major step forward for quality of care and patient safety, and build on the language checks already in place for the registration of healthcare professionals coming to work in the UK from outside the EU. They further build on the amendments made last year, which provided the General Medical Council with the powers to introduce a strengthened system of language controls for doctors from within the EU.

Since the GMC’s legislation was changed in June last year, the GMC has required 1,956 doctors from Europe to provide evidence of their knowledge of English when applying for first registration and a licence to practise. Of these, to date 429 doctors have been registered without a licence to practise medicine in the UK due to insufficient evidence of language competence. This evidence shows that these proposals are essential to ensure patient protection and uphold the standards of care delivered. I commend the order to the Committee.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I thank the noble Earl for explaining the order. Clearly, we support the order because we want to protect patients from the risk of avoidable harm.

My own view is that language testing of healthcare professionals from outside Europe is now entirely adequate as a result of last year’s measures—which, again, the Opposition supported. However, we accept that there may be a—one hopes—small number of European professionals whose knowledge of English is not at a level that we might reasonably expect, and indeed an even smaller number of UK nationals who do not possess the requisite knowledge of English and where there are concerns.

I wonder whether the Minister can spell out one or two things in relation to how this is going to be done. I note—the noble Earl said it and it is repeated at paragraph 7.5 of the Explanatory Memorandum—that:

“Any language controls must be fair and proportionate, for example, there cannot be automatic testing for all European applicants and any controls must not take place until the applicant’s qualification has been recognised by the regulatory body”.

Paragraph 7.10 cautions that, in relation to the requirements that can be imposed as to English language controls, the bodies concerned,

“must first request and consider any available evidence before requiring a test”.

Can the Minister explain a little further how it is expected that employing authorities will go about that?

I also want to ask the noble Earl about the implementation of the power to implement fitness to practise proceedings. I noted from the Explanatory Memorandum that there is currently provision for most of the relevant regulatory bodies to commission an assessment of performance where fitness to practise allegations have been made. I was not sure about the purpose of the extension in this order, given that the Explanatory Memorandum notes that there is already provision for most of the relevant regulatory bodies to do this.

I would like to ask the Minister about support and guidance for individual employers. This comes back to my first question about how you make the assessment that a test should be undertaken. I should have thought that human resources professionals within NHS organisations would need some careful advice and guidance on this—first, because this may be a sensitive area, and, secondly, because some consistency throughout the NHS would be appropriate.

Finally, there is the question of vexatious complaints, which we discussed in relation to the previous order. Clearly, we have to balance the public interest with that of the appropriate interest of medical professionals. We know that there are cases in which medical professionals have been subjected to complaints that have turned out to be unsubstantiated. Clearly there are political sensitivities around the ability of European immigrants to speak English; I refer the noble Earl back to our previous debate and the points raised by the noble Baroness, Lady Finlay. I want to be clear that the Government understand that, while this is undoubtedly the right measure for patient safety and the protection of the public interest, we have to have regard to ensuring that doctors and other professionals are dealt with fairly under these provisions.

[Earl Howe]

My Lords, I am grateful to the noble Lord for his support of the order. The first point for me to make about what might trigger a language test is that European healthcare professionals currently provide a range of supporting information to accompany their application for registration and admission to the register. It is during that process that if a regulatory body had cause for concern, such as a poorly written application form, it would write to the individual to seek further evidence of English language competence. It is important to restate that the individual would still have their qualification recognised, but would not be admitted to the register until the body was satisfied that they met all the requirements for registration.

The draft order requires the regulatory bodies to publish guidance on the evidence to be provided by a healthcare professional where there is cause for concern about their English language capability. However, the regulatory body, as the independent regulator of the relevant healthcare professionals in the UK, will have the power to decide what the necessary knowledge of English is to practise safely in the UK. All the regulators subject to this order are in the process of developing this guidance. In recent discussions they suggested that, where there is a cause for concern, the evidence required could be the required score in the academic version of IELTS—the International English Language Testing System—or that the healthcare professional has a primary qualification taught and examined in English. In making that determination, the regulatory body will need to be mindful of EU law and ensure that such requirements are necessary and proportionate in view of their scope of practice.

As regards vexatious complaints, responses to the department’s public consultation highlighted the potential serious risk to patient safety posed by a professional practising without adequate English language skills. As I explained, these proposals would allow the regulatory bodies to take pre-emptive fitness to practise action, even if no actual harm has yet occurred, to maintain public protection. We accept that this could lead to a rise in the number of referrals but we are confident that if these are triaged correctly, any discriminatory or vexatious complaints can be identified early on and dealt with appropriately by the regulatory bodies affected by the order. The regulatory bodies will also be responsible for communicating the changes effectively to employers, which may be best placed to deal with issues at a local level. As I mentioned, there is a right to appeal if a person is refused admission on to the register, or is subject to fitness to practise proceedings and then found to be impaired on the grounds of defective English.

The noble Lord asked how we would ensure that the controls were fair and proportionate. Guidance will be published by the regulator on the evidence accepted on initial application for registration. If that has not been supplied, an individual will be sent a letter of recognition requesting further evidence. If it is not supplied at that point, a test will be requested.

The introduction of language controls at national level should not have the effect of requiring individual professionals to undertake the same English language test twice: once at national and once at local level. We agree that that would be disproportionate. However, it must be remembered that the regulatory bodies’ roles as the national regulators of the healthcare professionals affected by the order will be to ensure that all professionals have the minimum English language capability required to work as a practitioner. It will still be for the employer to assure themselves that the applicant has the necessary English language skills for a specific role, which may require more sophisticated language skills. I hope that that is helpful.

NHS: Health and Social Care Act 2012

Debate between Earl Howe and Lord Hunt of Kings Heath

Monday 16th March 2015 Lords Chamber

[Lord Hunt of Kings Heath (Lab)]

My Lords, the noble Earl has been answering health Questions for nearly five years now with courtesy and skill. How does he feel, as possibly the sole apologist, other than Mr Andrew Lansley, for the Health and Social Care Act 2012? What is his response to the independent King’s Fund, which described the Act, which the noble Earl piloted through this House with great skill, as having an impact that was both “damaging and distracting”? Is that not the real answer to my noble friend? The reason he has identified a problem and a shambolic decision by NHS England is that we have a shambolic organisation, which this Government are responsible for.

[Earl Howe]

If I had to single out two or three things from that Act which have been of enormous and incomparable benefit, one would be the enhancement and promotion of clinical leadership within the system, which has happened as a result of the creation of clinical commissioning groups. The second is the creation of Public Health England and the transformation of public health delivery in this country. The third is the separation of elected politicians from the running of the health service, which has enabled the NHS to free itself up to look at innovation in a more creative way

NHS: Cancer Drugs Fund

Debate between Earl Howe and Lord Hunt of Kings Heath

Monday 16th March 2015 Lords Chamber

[Lord Hunt of Kings Heath]

To ask Her Majesty’s Government why the public are not allowed to appeal against a decision to remove certain drugs from the Cancer Drugs Fund list of approved drugs.

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

My Lords, NHS England’s appeal process for the national cancer drugs fund list centres on whether due process is followed with regard to decisions to add or remove drugs from that list. NHS England considers that third parties not involved in the application process, including patients, would not be in a position to make a judgment about whether due process had been followed.

[Lord Hunt of Kings Heath (Lab)]

My Lords, the cancer drugs fund was set up as a way of getting round NICE’s refusal to approve the use of a number of drugs by NHS patients. Would the noble Earl concede that NHS England has, essentially, set up a new rationing tool to exclude patients from drugs which had originally been agreed through the cancer drugs fund? Last Thursday, NHS England listed 19 drugs no longer available. Although the noble Earl said that the process is around the procedure used, does he not agree that in the end this impacts directly on patients who can no longer get those 19 drugs? Why should not patients be involved in an appeal process? How does the mantra “No decision about me without me”, which the Government have set for the NHS, fit the lack of patient involvement in these decisions?

[Earl Howe]

The noble Lord is right that NHS England has just gone through a reprioritisation process. There are three important things to observe in that process. NHS England has assured the department that no patient whose treatment is currently being funded through the fund will have funding withdrawn, as long as it is clinically appropriate that they continue to receive that treatment. In addition, no drug will be removed from the fund where it is the only therapy for that condition. Clinicians will still be able to apply for individual patients to receive a drug not on the national list on an exceptional basis. We have seen through experience that many of those applications succeed.

--- Later in debate ---

[Earl Howe]

I differ slightly from my noble friend on this point. I think that the key determinant for the reprioritisation process has to be clinical input, and that is indeed what happened. It is necessary to have as objective a process as possible when looking at how to reprioritise a cash-limited fund of this kind.

[Lord Hunt of Kings Heath]

My Lords, if I could come back to the noble Earl, the NICE processes make sure that patients are involved in every stage of the process. I do not understand why there is a difference between the NICE process, which is incredibly thorough and well regarded internationally, and this hurried rationing tool used by NHS England, which is more about its own budgetary problems than an effective solution to these issues.

[Earl Howe]

My Lords, I do not agree about the hurried rationing tool, as the noble Lord puts it. The tool used by NHS England is one that has been tried and tested, and accepted and shared with the pharmaceutical industry. The point here, as I said in my original reply, is that there is due process here. NHS England believes that any patient group or third party not involved intimately with that due process would not be in a position to make a judgment about whether the process had been followed correctly.

Standardised Packaging of Tobacco Products Regulations 2015

Debate between Earl Howe and Lord Hunt of Kings Heath

Monday 16th March 2015 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, I sense that the House is ready to come to a view on this very interesting matter, and I am looking forward to the response of the noble Earl, Lord Howe. I should start by declaring my interest as president of the Royal Society for Public Health.

Not surprisingly, noble Lords will know that I support the regulations, for which the Labour Party campaigned vigorously. The noble Lord, Lord Stoddart, is right that they come on the back of a successful amendment in your Lordships’ House to ban smoking in cars when children are present. Like the noble Earl, I pay tribute to the noble Lord, Lord Faulkner, the noble Baronesses, Lady Tyler and Lady Finlay, and the noble Lord, Lord McColl, for their outstanding work on this issue in your Lordships’ House.

I have some questions to put to the noble Earl, Lord Howe, in relation to the effectiveness of the measure, following the debate. That is the fair test that we need when reaching a decision. First, can the noble Earl confirm that opinion polls have shown very strong support among the public for this policy? Does he agree with me that, if we look back at the measure we passed in relation to smoking in cars with children present, again the public showed enormous support for the action that was being taken? It is not as if we have an authoritarian measure, imposing a sort of public-health view on the public; what we have here is a sensible measure that the great majority of people in this country support.

I turn now to the evidence. I listened with care to the comments of the noble Lord, Lord Naseby. Does the noble Earl stand by the evidence contained in the impact assessment published with the Explanatory Memorandum? Is it his view that, far from what the noble Lord, Lord Naseby, said, the evidence is clear about the Australian experience so far? Industry leaders have talked about market decline in Australia. On a point made by the noble Lord, Lord Walton, I refer to Sir Cyril Chantler. He may not be a marketing expert, but, goodness me, he is a man of enormous reputation in his ability to sift evidence, so can the noble Earl confirm that Sir Cyril Chantler took a highly dispassionate view on this issue? He made himself available to people on all issues. It is not an emotional report; it is a dispassionate, weighing up of the evidence.

On the issue of illicit trade, can the noble Earl confirm that the HMRC concluded that standardised packaging is not likely to have a significant effect on that? In answer to the point raised about the paragraph in the assessment, is his reading of it that, on balance, it is “very unlikely” to have an impact on illicit trade? The words, “very unlikely” mean that obviously there is a small percentage chance that it might not. That is my reading of that paragraph. Will he confirm that I am right about that?

As for the view of the noble Viscount, Lord Falkland, that because it is legal we should therefore not place any controls around it, I fail to understand the argument. Driving is legal, but we do not recoil from setting speed limits. There is general support for seat belts. Is that not the same issue? It is a legal activity, but we are right to place constraints on it to safeguard people from its worst effects.

On whether the packaging industry will be hit by the change to plain packaging, can the Minister confirm that cigarette packaging accounts for less than 5% of all packaging cartons manufactured in the UK—and, of course, packs will still be required in future? Perhaps he can then address points made about questions asked in the other place that were not answered. There is a question about the process and timetable to be followed once the regulations, if accepted by your Lordships’ House, are put in place.

The question of enforcement was raised today. I understand that several local authorities have advocated the need to ensure that trading standards officers are equipped and trained to implement the measure. That is clearly important, and perhaps the Minister can say something about the programme by which the Government intend to help local authorities once the regulations come into law.

My view is that the noble Earl, Lord Howe, in his speech today, in the regulations, in the Explanatory Memorandum and in the impact assessment has made a very powerful case for why the regulations should be passed. I sincerely hope that the House will listen to that and pass the regulations.

[Earl Howe]

My Lords, this has been a very powerfully argued debate. I am grateful to those noble Lords who have welcomed the regulations for the many supportive points that they have made. I also thank my noble friend Lord Naseby for setting out his objections and concerns with his customary clarity and courtesy. Several noble Lords have already done part of my job for me in responding to my noble friend’s critique, but I believe it to be incumbent on me to address directly all the matters that he raised, as well as the questions posed by other speakers.

I turn to the issue of the illicit trade and the evidence from Australia. Contrary to what the tobacco industry would have people believe, the evidence from Australia does not show an increase in the illicit market in that country following the introduction of plain packaging. There have been a number of criticisms of the tobacco-funded reports on that issue. It is therefore useful to consider the data provided from official Australian government sources. Official data from Australia on the use of illicit tobacco show a drop in those aged 14 years and over currently smoking illicit tobacco following the introduction of plain packaging. From 6% using illicit tobacco in 2007, the figure dropped to 5% in 2010 and then to under 4% in 2013—after plain packaging had been introduced.

A study published in BMJ Open analysed data from smokers before, during and one year after the introduction of plain packaging in Australia. The proportion of smokers reporting current use of illicit tobacco did not change significantly after plain packaging was introduced. I assure the House that the Government have looked very carefully at the potential impact on the illicit market. Tackling tobacco smuggling is a government priority. I can tell the noble Lord, Lord McFall, in particular, that, due to the fantastic work of HMRC and others, there has been a long-term decline in the tax gap for tobacco products over the past decade. The potential impact of standardised packaging on the illicit trade was considered extensively by HMRC, Sir Cyril Chantler, the Select Committee’s inquiry on smuggling, the Trading Standards Institute and RUSI. They all concluded that standardised packaging will not have a significant impact on the illicit market. HMRC has undertaken a detailed assessment of the potential impact of standardised packaging on the illicit market, which is the most comprehensive and reliable information available. Its assessment is that:

“We have seen no evidence to suggest the introduction of standardised packaging will have a significant impact on the overall size of the illicit market or prompt a step-change in the activity of organised crime groups.”

The Trading Standards Institute, which has extensive experience of tackling illicit tobacco at retail level, said in its consultation response that it,

“is aware that the tobacco industry regularly argues against standardised packaging for the reason that it will inevitably lead to an increase in the illicit tobacco trade. The Institute does not regard this as a valid argument”.

My noble friend referred to the system known as Codentify. That system is a voluntary security feature developed and controlled by the tobacco industry. We know that HMRC is starting to make use of the system to assist in identifying illicit tobacco. We are working across government to ensure that anti-counterfeit systems that are useful to HMRC and other enforcement agencies now and in the future can continue to feature on standardised packs. That will require such anti-counterfeit systems to be put on to a statutory footing.

My noble friend suggested that the prevalence of smoking had increased in Australia and that standardised packaging had not helped. Australian government figures show that smoking prevalence is in fact at an all-time low since the implementation of standardised packaging, with a 15% drop between 2010 and 2013. This change is likely to be attributable to the cumulative effects of a range of policies, including standardised packaging.

My noble friend also referred to the study by Kaul and Wolf apparently showing that smoking had increased among teenagers. The Kaul and Wolf report was funded and its release was closely directed by Philip Morris International, part of the tobacco industry. It was based on a specific survey of population smoking that is not intended to provide reliable estimates of smoking among teenagers, and the sample size was very small. It also compared figures immediately before and after implementation, and the effects of standardised packaging are more likely to be gradual. It is not a reliable study, we suggest, from which to draw any conclusions.

My noble friend Lord Blencathra urged the Government to wait for more evidence from Australia. He may like to know that studies in Australia have found that smokers buying standardised packets reported being more likely to prioritise quitting than smokers using fully branded packs. Calls to quit lines have increased. Smoking has decreased in outdoor cafes and fewer packs are being displayed on tables.

What has happened to tobacco sales in Australia? There have been suggestions that sales have gone up. Sales of tobacco can be measured in many different ways—sales by manufacturers to wholesalers, wholesalers to retailers or by retailers to consumers. Different pictures of sales emerge depending on the source of the data and the timeframe. In fact, official government data from Australia suggest that a continuing decline in per capita consumption of tobacco products has taken place. Commonwealth Treasury figures show that excise and customs clearances of tobacco declined by 3.4% in 2012-13, and that is generally regarded as the most reliable indicator of population sales.

I turn now to the print industry and my noble friend’s complaint that more time should be given to the print industry to enable a proper lead-in period. Standardised packaging is not a policy that has been sprung on the print industry. It has been under discussion since 2008 and two public consultations have been held on the subject, as I mentioned earlier. The regulations would come into force in May 2016, which provides the print industry with a lead time of over a year. I confirm to my noble friend Lady Tyler that the regulations will be implemented at the same time as the European directive is transposed in May 2016, so the industry does not have to undergo two changes to its manufacturing process.

The previous changes to tobacco packaging, such as the requirement for picture warnings in 2008, showed that a 12-month period in which to sell through old stock is appropriate and that stock sells through more quickly than one year. In answer to my noble friends Lord Naseby and Lord Blencathra, it is not true to say that standardised packaging will make it easier to copy packs and therefore make things easier for counterfeiters. Standardised packaging would remain complex to counterfeit. The packs will continue to feature large and complicated to reproduce picture health warnings and will retain all the security features currently on packs, including covert anti-counterfeit marks. The European Union directive includes provisions on the printing of labels. As I said, we have given very careful and measured consideration to that. We believe that the synchronised introduction of the provisions in the directive with the coming into force of these regulations is a sensible course.

Mention was made of intellectual property issues. As I said earlier, we have given very careful and measured consideration to all legal aspects of the policy, and this includes intellectual property aspects. These regulations regulate the use of tobacco branding, which includes trade marks. I emphasise that we regard tobacco as a unique consumer product in this context because it is a uniquely harmful consumer product. For the record, we do not consider that these regulations breach intellectual property laws or our international obligations in relation to trade marks.

I listened with care to my noble friend Lord Geddes, who argued from experience of his National Service that plain packs would not deter smoking. He referred to “Blue Liner” cigarettes, which I was interested to hear about. However, there are several key differences with regard to our proposals. First, the regulations we are considering mandate health warnings, which did not appear on “Blue Liner” cigarettes. Secondly, there is the colour of the packaging. Our regulations take into consideration the extensive market research the Australian Government undertook to determine the most effective designs for standardised packaging. Of the eight different colours tested during the research, dark brown packaging was the least appealing and thought to contain cigarettes most harmful to health. After carefully considering the research, our regulations adopt the same dull brown colour as the packs required in Australia.

The noble Viscount, Lord Falkland, referred to the possibility of unintended consequences. We believe very firmly that the benefits of these regulations far outweigh any of the unintended consequences that might come from introducing standardised packaging. In some cases, we are not convinced that certain predicted unintended consequences are anything more than scare stories. The department has run two consultations on standardised packaging, which contributed to our understanding of all the relevant factors in making our decision.

My noble friend Lord Blencathra queried the Explanatory Memorandum. I think he might have been referring to the impact assessment, which was rated green by the Regulatory Policy Committee, meaning that it is fit for purpose.

The noble Lord, Lord Hunt, asked about public support for standardised packaging. Multiple surveys have shown that the public support it. A YouGov poll in spring last year, with a representative sample of 10,000 people, found that 64% of adults in England supported standardised packaging while 11% opposed it. Even among smokers, more people were in support of or neutral towards standardised packaging than opposed it. After the implementation of standardised packs in Australia, support for the policy increased from 28% to 49% among smokers. Survey data from Australia show that more smokers approve of the policy than oppose it.

The noble Lord, Lord Stoddart, made a point that I have heard him make powerfully before—that alcohol is, in fact, the most addictive and harmful drug, not tobacco. I just say to him, as mentioned in my speech, that all smoking is addictive and harmful to health, and half of regular smokers are eventually killed by smoking-related illness. That is simply not true of other consumer products such as alcohol. Tobacco is being treated uniquely in regulatory terms because it is a uniquely harmful consumer good. All smoking is addictive and harmful to health. Therefore, to be absolutely clear, we see the introduction of standardised packaging as a unique approach to tackling smoking and its appalling effect on public health. It fits within a comprehensive tobacco control policy.

We are proud that smoking rates are the lowest ever recorded in this country, and my noble friend Lord Naseby was right to point that out. However, we cannot rest on our laurels. In other parts of the world we have seen that if Governments take their foot off the pedal with tobacco control, smoking rates can go up. For the good of public health, we want to continue our policy action to see smoking rates continue to fall, which is why I once again commend these regulations to the House.

Health and Social Care (Safety and Quality) Bill

Debate between Earl Howe and Lord Hunt of Kings Heath

Friday 13th March 2015 Lords Chamber

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

My Lords, I shall first address a concern that several noble Lords have flagged up most prominently: that the regulations are not sufficiently clear that the duties that we are talking about here are duties on providers rather than individuals. The regulations apply to registered persons. Schedule 1 to the Interpretation Act 1978 makes it clear that in legislation “person” includes not only natural persons but legal persons, such as companies. Under the Health and Social Care Act 2008, the registered persons are providers, not individual members of staff.

The noble Lord, Lord Hunt, asked why the clause does not list the bodies covered by the Bill. The clause amends Section 20 of the Health and Social Care Act 2008. It is the 2008 Act which sets out who the regulations apply to. They apply to registered persons who, under the Act, are the providers, not individual staff, as I said. He also asked whether almost all providers would be likely to be in breach of the regulations for one reason or another. The clause amends the Secretary of State’s regulation-making powers. It would not by itself impose requirements on providers. Those requirements will be as laid down in the fundamental standards regulations, to which I shall come in a moment. On the specific example that the noble Lord gave, where a surgeon did not engage meaningfully with the WHO checklist prior to an operation, my answer is that that would be a disciplinary issue for the employer and/or the professional regulator, if it became known.

[Lord Hunt of Kings Heath]

That is an extremely helpful answer, but will it be made absolutely clear to employers in the guidelines to be issued alongside the regulations that they have not only a right to take disciplinary action but a duty to do so? If that is set from the centre, that will give a lot of authority to boards, which they sometimes feel that they do not have at the moment.

[Earl Howe]

That is a very important point, which I shall be happy to take away.

Amendment 1, tabled by the noble Lords, Lord Turnberg and Lord Warner, would replace the reference to “no avoidable harm” with “take steps to reduce” avoidable harm. I accept that in some settings regulated by the CQC, including the NHS, that phrase may better reflect the scale of what can be achieved. However, regulation by the CQC is not just about the NHS. In the case of some health and adult social care services, I believe that it is reasonable to strive to eradicate all avoidable harm. It is for that reason that I prefer the current wording. Yes, it is more ambitious, but its ambition contains an incentive to strive towards a continuous reduction of avoidable harm across all settings regulated by the CQC.

The amendment would also result in requirements on providers to monitor the steps they take to reduce avoidable harm and to train staff in the reduction of avoidable harm. That is clearly desirable, but I must question whether it needs to be a duty set out in primary legislation. The training of staff in reducing avoidable harm is important, and Section 20(3)(d) of the Health and Social Care Act 2008 already expressly provides for regulations to include requirements on the training of staff.

The fundamental standards regulations, to which I referred a minute ago, which were passed by this House in November and come into force in April, already meet the test of the Bill, and no change to regulations is required. The fundamental standards require that care and treatment is provided in a safe way for service users. They give the CQC power to take action against providers where a failure to take steps to provide care in a safe way results in avoidable harm.

The regulations are breached not whenever avoidable harm occurs, but where there has been a significant failure effectively to manage the risks of harm. They are clear that that involves assessing the risks and taking steps to mitigate them. They ensure that staff have the right skills and qualifications, that premises and equipment are safe and that medicines are properly managed. They also require providers to have systems in place to assess, monitor and improve the quality and safety of services.

Noble Lords have cautioned that the clause might lead to staff taking a risk-averse approach. The noble Lord, Lord Hunt, expressed the concern that it could encourage staff to lose sight of the patient and instead focus on covering up mistakes. I firmly believe that the reverse is the case. What it does is to underpin our efforts to strive for the very thing so strongly advocated by the noble Lord, Lord Turnberg: an open reporting culture where identifying errors helps organisations to improve the safety of care. Where providers take the steps to manage the risk to safety, front-line staff can focus on the needs of patients and service users, content in the knowledge that the environment in which they work promotes safety and quality.

Our debate up to now has perhaps given the erroneous impression that the fundamental standards are just about the systems and processes. They are not. They focus on the outcomes of care and treatment. The new regulations, which come into force in less than three weeks, place patients and service users at the heart of service provision. They require that treatment and care meet the needs of service users and reflect their preferences. They prohibit providers from providing care without consent. They also put in place a new duty of candour that requires providers to inform service users where there have been failings in their care.

In those ways, patients and service users are central to the fundamental standards. Clause 1 rightly ensures that safety and the reduction of avoidable harm will always be the foundation of the regulatory system operated by the CQC.

I turn to Amendment 4, in the name of the noble Baroness, Lady Finlay. I am confident that all noble Lords share the same objective as that of Clause 1, which is to place patient safety at the heart of the delivery of services. The Committee will be aware of the importance that the Government place on improving safety. The recent report of the Morecambe Bay investigation has re-emphasised that that is the right approach. Moving towards the reduction of avoidable harm requires action across the health and social care system.

I agree with those who say that the main way to reduce avoidable harm is through changes in culture. None the less, there is also a role for legislation. The role of the law in this area is straightforward: it can define minimum acceptable standards and introduce ways to protect patients who are put at risk when those standards are not met. It provides a safety net that protects people from harm.

I stress that the regulations issued under Section 20 of the Health and Social Care Act 2008, which Clause 1 amends, apply to registered providers of health and adult social care in England. There are two important points here. First, the regulations do not apply to individual members of staff but to the providers of care. In that respect, they offer protection to staff as well as to patients and service users. Secondly, the scope of the regulations is not restricted to the health service but applies also to adult social care. In that respect, the scope of the clause is broader than that of the noble Baroness’s amendment. For that reason, I prefer the current wording, which offers the same protection to patients and service users wherever they receive care, not just in the NHS.

The noble Baroness asked whether the clause applies to all care organisations, including those in the voluntary sector. All providers of regulated activities must register with the CQC and meet the registration requirements, including voluntary sector and independent sector providers. She also asked whether the regulations will be consulted on and subject to affirmative resolution. The answer to both questions is yes, but having said that, the fundamental standards regulations are consistent with the objective of Clause 1. Those regulations were consulted on and were subject to affirmative resolution. Any future regulations amending or replacing those regulations would also be consulted on and, unless the changes are minor, would be subject to affirmative resolution.

--- Later in debate ---

[Lord Hunt of Kings Heath]

My Lords, this has been an interesting debate. I thought that the noble Baroness, Lady Finlay, raised some important points in relation to the definition of “best interests”. Because she referred to a number of identification streams within the health service, I ought to declare my interest as president of GS1 UK, the barcode association. Barcoding is, of course, another indicator that can be used.

I recently had an interesting discussion in Solihull with people who are helping the integration board that is aiming to bring health and social care together to provide integrated services. It was interesting to get an insight from a company that is helping the statutory providers to do this by confronting situations in which individuals are provided with services from a number of different statutory agencies but where there is, seemingly, no co-ordination at all between them. One often gets professionals arriving at the same time but not communicating with each other. This is partly due to the problem over information systems.

I should like to ask whether the noble Earl considers that the passage of the Bill will help the integration of that information, provided that the public have confidence in the process under which information is shared. There is clearly a balance to be drawn between the benefit of information sharing between statutory bodies in terms of integrating provision, alongside the safeguards necessary to the public. One should be in no doubt that this is quite a tension. Yesterday, the parliamentary Intelligence and Security Committee published a report on the holding of information by the security services. Reading it gives some cause for concern, in many cases, about the amount of information available about individuals. Although, as I understand it, the committee report says that that information is often never referred to or used, it none the less could be. The whole issue regarding the integrity of confidential information is important. On the other hand, we know that we have considerable failures in service because there is no sharing of information. The point that the noble Baroness raised about what we mean by “best interests” and the issue of how we can ensure public confidence is extremely important.

I support the amendment in the name of the noble Baroness, Lady Hollins, which offers an opportunity to debate the importance of including people’s communication needs in the information shared between health and care professionals. I have received helpful briefing from Mencap, the RNIB, the National Autistic Society and Sense. It has become abundantly clear that failure to understand the best way in which to talk to individuals can result in misunderstandings, misdiagnosis and, ultimately, poor care. Accessible and easy-to-read information, perhaps with pictures, to which the noble Baroness, Lady Hollins, referred, and the presence of family, advocates or interpreters, can make the difference between diagnosis and misdiagnosis.

It would be very helpful if the noble Earl could clarify that the communication needs of disabled people and the reasonable adjustments that they might need will be an important part of the health information that should be shared between professionals. I certainly hope that he is willing to place on record that guidance associated with the Bill will reflect this and that it will reach the relevant professionals.

[Earl Howe]

My Lords, let me turn first to Amendment 5. I understand the noble Baroness’s concern that there should be no confusion over the “best interests” wording in the Bill and the more technical and prescribed “best interests” checklist test in the Mental Capacity Act 2005. The key point for me to emphasise straightaway is that in this Bill the phrase “best interests” is ascribed its ordinary meaning: the consideration of a range of factors, including the wishes of the individual. Nothing in the Bill detracts from patient autonomy or the importance of supportive partnership working between clinicians and patients. This is in marked contrast to the “best interests” test checklist found in the Mental Capacity Act, which the noble Baroness was instrumental in shaping. In that Act, which concerns individuals who lack capacity, the term is not defined. A checklist of considerations helps professionals to determine what a patient’s best interests are.

The information-sharing provisions of the Bill respond to concerns expressed by the National Data Guardian. Dame Fiona Caldicott, in her 2013 review of information sharing, identified a risk-averse culture and concluded that the duty to share information for a person’s own direct care should be considered as equally important as the duty of confidentiality. I quote from her review:

“Health and social care professionals should have the confidence to share information in the best interests of their patients”.

These provisions seek to establish that sentiment in law.

The presence of the phrase “best interests” in this Bill ensures that it complies with the central principle of the Data Protection Act and the Caldicott review: to share information only where necessary and relevant. The term “best interests” is used elsewhere in primary legislation, including in the Human Fertilisation and Embryology Act 1990 and Section 38 of the Medical Act 1983. It was also used more recently in the Charities Act 2011, the Legal Services Act 2007, and in the Pensions Schemes Act 2015, which received Royal Assent last week—all are without reference to the checklist in Section 4 of the Mental Capacity Act. It is a term used across a wide-ranging legislative landscape with its ordinary meaning.

The “best interests” test in this Bill is no different from that in the pensions Act or the Legal Services Act. It requires a professional to apply a common-sense approach. I appreciate the noble Baroness’s concern that the use of the word “best” could herald a return to a “doctor knows best” kind of paternalism and to disempowering patients in the process. I sincerely hope that I can convince her that this is neither the intent nor the effect of this Bill. I am sure that the whole House will agree that the focus of information sharing should be on the needs of the individual, rather than defensive, risk-adverse behaviour of the type we have sometimes seen in the past.

I can confirm that the Department of Health will provide guidance to support the interpretation of these new duties. This will include a clarification that the term “best interests” is ascribed its ordinary meaning. The Government will also amend the Explanatory Notes to that effect.

[Lord Hunt of Kings Heath]

My Lords, that was a very helpful response. May I just ask the noble Earl whether explicit examples will be given in the guidance? The issue of professional defensiveness is very important. He will know that, out in the field, people often have a different view about data protection. Sometimes it gets in the way of sensible, professional working together. I urge that the guidance should be as practical as possible and that it should be aimed at field workers, rather than just the organisations they work for. Let us take as examples care workers, health service workers, health visitors and nurses, in regard to whom it is clearly in an individual’s best interests that information is shared about visits, and that sometimes responsibilities are shared, and that they are not inhibited because of some myth about their inability to share information.

--- Later in debate ---

[Lord Hunt of Kings Heath]

My Lords, I am not sure about the noble Lord’s latter point. I think my noble friend has done us a great service in raising this issue. Since we are talking about unique personal identifiers again, perhaps I may first remind the House of my presidency of the bar-coding association, GS1.

As a resident of Birmingham, I thank my noble friend for his work as the Children’s Commissioner, which has been invaluable. Your Lordships will have a great opportunity to discuss these matters further on Monday night after we debate standardised packaging of cigarettes, because I have a Motion to Take Note on the Birmingham electoral order, which changes the electoral cycle in Birmingham following the work of the three commissions and the Permanent Secretary at the DCLG.

On the substantive point, my noble friend raised the case of Victoria Climbié, on which I well remember making the Statement to this House a long time ago now. What was so striking in that report was that she went through, I think, at least eight or nine public agencies. If any one of them had talked to another, it is likely that she would still be alive today. It was a shocking report, because there were so many failures by so many different organisations. Although, inevitably, the local authority always tends to be the focus of concern, neither the health service nor the police covered themselves in glory. I am not really in a position to commit the Opposition in exactly the way that my noble friend wants, but if the noble Earl would like to institute some urgent cross-party discussions with my noble friend, we would certainly be very happy to take part.

[Earl Howe]

My Lords, to start with a given, I am sure I speak for the whole Committee when I say that we are all committed to taking whatever steps are necessary to protect children from abuse and neglect. Clauses 2 and 3 are, as they stand, based on long-standing policy intentions. They have real buy-in and support from those who will need to deliver them.

As regards children’s social care and wider children’s services, the difficulty with proceeding without delay in the direction that the noble Lord, Lord Warner, is advocating is that we do not yet have robust evidence on the impact of the potential burdens and risks of an extension of these duties. Moving to the use of a common identifier for the education and children’s social care sector would represent a substantial change. In the discussions that I have had on this, I have been persuaded that it is only right that we fully understand and assess the impact before considering legislation.

However, I can give the noble Lord, Lord Warner, some hopeful news. I am pleased to inform him that the Department for Education has committed to undertake an evidence-gathering exercise to understand fully the impact of adopting a consistent identifier for these types of provision. That exercise is expected to report before the end of the year. I hope the noble Lord will understand that we would not want to pre-empt the outcome of that or make decisions now on behalf of Ministers in the next Government, who will wish to consider the evidence once it is available.

The amendment would also have the effect of creating a power to extend Clauses 2 and 3 to other public bodies where there was evidence that this would benefit the health and well-being or protection of children. I recognise and welcome the sentiment and reasoning behind the desire to extend the information-sharing duty under this Bill to encompass child protection issues. As I have already assured the noble Baroness, Lady Finlay, there are clear requirements on professionals to share information to protect children. I hope that reassurance is helpful.

--- Later in debate ---

[Lord Hunt of Kings Heath]

My Lords, some very important points have been raised by the noble Baroness, Lady Finlay, and my noble friend Lady Pitkeathley. My regret is that we are dealing with these regulatory matters in this Bill. A number of statutory instruments will also come through your Lordships’ House, one from the GMC, in the next few days.

We had a Law Commission draft Bill which should have been a fifth Session Bill and would have enabled your Lordships to look at the statutory regulation provisions in the round. However, because of the Government’s decision not to proceed with that Bill, not even in pre-legislative scrutiny, we now have to look at this matter in a piecemeal way. It is wholly unsatisfactory. I am very sorry that we are having to deal with these issues in this way without enough time to focus on them properly. I am worried about Clause 5; I think that we are going to let it through without understanding its implications. We would be very grateful for anything that the noble Earl can do to clear this up.

[Earl Howe]

My Lords, I very much hope that I can allay the concerns of both noble Baronesses and the noble Lord. In its report, the Law Commission recommended a consistent main objective for professional regulators and the PSA around patient safety. It also recommended two subsidiary objectives: maintaining confidence in the profession and proper professional standards and conduct. The Law Commission’s report describes this proposal as restating the existing legislative position that public protection is the regulators’ main objective. The Government’s view is that public protection is sufficiently important that it should be expressly adopted in the legislation.

The noble Baroness, Lady Pitkeathley, asked whether public confidence might conflict with public health, safety and well-being. In the example of the Professional Standards Authority identifying a poorly performing regulator, it is clear that the interests of public protection and public health, safety and well-being would require the PSA to take action. In this example, any argument that the objective of promoting and maintaining public confidence in the professions would require the PSA to conceal poor performance would clearly run counter to public protection. The objective of promoting and maintaining public confidence in the professions does not mean that the PSA or the regulatory bodies should be promoting the reputation of the professions generally. Rather, it is about taking action where there is a risk that confidence in the profession as a whole is undermined to the extent that it may deter people from seeking the treatment or care that they need and impact on public protection. This example highlights the fact that while the objectives are all linked to public protection, in practice they may not always necessarily be relevant, or relevant to the same extent in particular cases. It is not a case of one objective overriding another or preventing it being considered but ensuring that they are pursued only where they are relevant to public protection.

The Bill does not prioritise or weight one element of public protection over another. It is for the PSA to determine how it applies those elements in carrying out its functions in relation to the regulators and considering the issues of the case. My view is that health, safety and well-being will always be relevant to public protection when the PSA is carrying out its functions in relation to the regulators. It will be for the PSA to determine how to apply the objectives appropriately.

The noble Baroness asked whether the objective to promote and maintain public confidence might inadvertently lead the regulators to be less transparent in highlighting bad practice. Equally, that might lead to regulatory committees and panels punishing professionals who do not pose any threat to the public. If the actions of a doctor appear likely to reduce confidence in the medical profession and influence the decision of individuals as to whether to seek medical help at all, it may be right to take action. However, panels and committees will be asked to reach their own objective judgment as to whether particular acts or omissions would affect public confidence if no action were taken. A subjective view, uncritically influenced by public opinion or the media, would be an unacceptable basis for a decision.

Turning to the term “well-being”, the BMA has raised concerns with my ministerial colleague Dr Dan Poulter about how it would be interpreted by fitness to practise panels and committees. Well-being has been a long-standing and established feature of the legislation for three of the regulators. It encompasses those aspects of a professional’s role that may have an impact on individual patients but not directly impact on their health or safety. Dignity, compassion and respect are all important in delivering care, and it would not be right to disregard them.

It will be for the regulators to formulate and issue guidance for fitness to practise panels on interpreting and applying the objectives in practice, including the term well-being. The legislation makes clear that those objectives are considered only under the umbrella of public protection.

My officials will draw the regulators’ attention to those concerns should the overarching objective become law. That is in order to inform any guidance that will be needed to implement both this Bill and the secondary legislation for the GMC.

The noble Baroness, Lady Finlay, also asked about how we view the definition of “public” in the Bill. It of course includes patients and service users, as well as other parts of the collective public. I hope that that reassures the noble Baroness that the objectives in relation to well-being and public confidence will not be pursued outside the regulators’ objective to protect the public.

Local Authorities (Public Health Functions and Entry to Premises by Local Healthwatch Representatives) and Local Authority (Public Health, Health and Wellbeing Boards and Health Scrutiny) (Amendment) Regulations 2015

Debate between Earl Howe and Lord Hunt of Kings Heath

Tuesday 10th March 2015 Grand Committee

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

My Lords, these regulations mandate the provision of five health and development assessments and reviews as set out in the healthy child programme. The healthy child programme for the early life stages focuses on a universal preventive service, providing families with a programme of screening, immunisation, health and development assessments and reviews, supplemented by advice around health, well-being and parenting. The assessments and reviews are to be offered to pregnant women and children from birth to age five.

These regulations also adjust the 12-month exemption period from the community right to challenge for health visiting, the Family Nurse Partnership and other child health services for reviewing the development and promoting the health and welfare of children under five years of age.

The Local Authorities (Public Health Functions and Entry to Premises by Local Healthwatch Representatives) Regulations 2013 set out steps that local authorities are obliged to take in carrying out their health improvement functions and describe what they must do in the exercise of certain of the Secretary of State’s public health functions. This instrument amends those regulations by prescribing what local authorities must do to provide or secure the provision of universal health visitor reviews, thereby ensuring that certain elements of the healthy child programme are provided by all local authorities in England.

I am pleased to report that according to the most recent management information—from January 2015—published by NHS England, the number of health visitors has increased by 3,736, which is an increase of 46% since May 2010. We will know in due course exactly when the coalition’s commitment of 4,200 has been achieved, but I can say now that an enormous amount of effort, both locally and nationally, has gone into delivering the additional numbers, and those efforts continue as we speak.

It should also be noted that the latest indications show that the Government’s commitment to increase the number of Family Nurse Partnership places to 16,000 will be met. This is crucial, as family nurses deliver the five reviews these regulations aim to mandate to those families under the care of the FNP programme.

The policy document Healthy Lives, Healthy People: Update and Way Forward, published in 2011, sets out the Government’s intention to transfer responsibility and power to local government, allowing local public health services to be shaped to meet local needs. The document set out the progress made to date in developing that vision and identified those issues where further development was needed.

Subsequently, public health services for children and young people aged five to 19 and other mandated functions were transferred in April 2013. The transfer of public health services for children age nought to five was delayed until 2015 to provide NHS England with sufficient time to deliver the Government’s commitment to increase the number of health visitors and transform the service, allowing the transfer of a much improved public health service.

This Government are committed to improving the health outcomes of our children and young people so that those become among the best in the world. What happens in pregnancy and the early years of life impacts throughout the life-course. Therefore, a healthy start for all children is vital for individuals, families, local communities and, ultimately, the whole nation. Health visitors provide valuable advice and support to families and are trained to identify health and well-being concerns. We have supported the profession more than ever before to transform the service.

By introducing these regulations we intend to provide a degree of consistency within local government for the delivery of these services. I am confident that that sends a clear signal to health visitors, family nurses, local authorities and the public of the Government’s ongoing commitment to universal public health support for pregnant women, children and their families.

We have been clear that we need to avoid creating new unfunded burdens. I can confirm that the requirement on local government in this instance to make arrangements for the reviews will be no greater than at the point of transfer. The funding for local authorities will reflect that for services at the point of transfer. However, the regulations require local authorities to act with a view to continuous improvement in participation in the five mandated reviews.

Back in 2010, at the time of the publication of the White Paper Healthy Lives, Healthy People: Our Strategy for Public Health in England, the Government consulted on the funding and commissioning routes for public health services and proposed how the department might create a public health outcomes framework. Over 2,000 responses to the consultation were received from a wide spectrum of individuals and organisations.

Respondents were generally supportive of the proposal that local authorities should commission public health services for five to 19 year-olds. However, a number of respondents commented that having different commissioning routes for children’s public health services from pregnancy to the age of five, and five to 19, could lead to fragmentation. The transfer of commissioning to local authorities from 1 October 2015 and these regulations will address this, and will allow for joined-up commissioning from nought to 19 years, improving continuity for children and their families.

In the period since the formal consultation took place we have continued to work alongside our stakeholders to develop plans for the nought-to-five transfer and to draw up these regulations. We are grateful for their continued input and would like to express our gratitude in supporting us to get to where we are today.

The Government have committed to fund local authorities for their new commissioning responsibilities that will transfer to them. The exact costs of delivering the mandated reviews will vary across the country. However, the funds being transferred—£428 million for the half year from 1 October 2015—are more than sufficient to enable local authorities to deliver the mandated elements as set out in the impact analysis. However, the mandated elements are only part of the nought-to-five service transferring.

Subject to parliamentary approval, the amendments in these regulations provide that a review may be carried out of the performance of local authorities around the five mandated universal reviews. The provisions in the draft regulations confirm that these regulations will cease to have effect on 31 March 2017. However, if a future Government conclude, after considering the results of any review, that the new provisions in these regulations should continue to have effect, the regulations amended by these regulations may need to be further amended accordingly.

The second area covered by these regulations concerns the community right to challenge. The Localism Act 2011 makes provision for a community right to challenge, under which a local authority has a duty to consider expressions of interest made by voluntary and community bodies, and certain other persons, in providing or assisting in the provision of its services. In line with the original government intention to exempt health visiting and other similar child health services for children under five years for one year from the point of transfer, these regulations amend provisions in legislation for the exemption period from the community right to challenge so that it would begin from the revised date of transfer—namely, 1 October 2015—and end on 30 September 2016.

I commend these regulations to the Committee. I beg to move.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I thank the noble Earl for his very detailed explanation of these regulations. I want to ask just a couple of questions.

First, the original plan for transferring the commissioning of services to local government from the NHS was due to start on 1 April and has now been changed to 1 October. I may have missed it in the noble Earl’s introduction, but could he explain the reason for that delay?

Local Audit and Accountability Act 2014 (Special Trustees) Amendment Regulations 2015

Debate between Earl Howe and Lord Hunt of Kings Heath

Tuesday 10th March 2015 Grand Committee

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

My Lords, these regulations are among a number of statutory instruments relating to the audit of the accounts of relevant authorities in the new regime introduced by the Local Audit and Accountability Act 2014. The Act also abolishes the Audit Commission, passing responsibility for auditor appointments to the local public bodies.

I will not take up the Committee’s valuable time by repeating the arguments put forward during the passage of the 2014 Act in this debate. There was broad support across the House during the debates on the Act for creating a more efficient audit system, giving greater responsibility to local bodies while providing greater opportunities for local people to hold those bodies to account.

These regulations introduced today make a minor but important change to the application of the Act, relating to one particular type of local public body—special trustees appointed by the Secretary of State for NHS charities. Special trustees are established by the Secretary of State to administer property or funds held on trust at particular teaching hospitals. There are currently special trustees at only three hospitals— Great Ormond Street Hospital, Moorfields Eye Hospital and Royal National Orthopaedic Hospital. All the special trustees were established to manage charitable funds and they represent some of the largest NHS charities.

The Local Audit and Accountability Act 2014 makes provisions for audit appointment, conduct and regulation for a range of local bodies which are defined as “relevant authorities”. The relevant authorities include local government, parish councils, NHS trusts, clinical commissioning groups and special trustees. The special trustees’ charitable accounts fall outside the account definition in the Local Audit and Accountability Act. These accounts are covered by the Charities Act 2011, which sets the audit and reporting arrangements for all English NHS charities. However, the Local Audit and Accountability Act 2014 applies generally to matters which do not relate to the accounts of trustees. For example, there is a requirement in the Act for relevant authorities, which include special trustees, to have auditor panels. The intention, however, was that the Act should apply to special trustees only if they held non-charitable funds.

These regulations therefore amend the definition of relevant authorities as far as it relates to special trustees so as to restrict its application to instances where the trustees are dealing with non-charitable funds. The amendment would also remove any overlap which exists in relation to matters which are already covered by the Charities Act 2011, and so it will restore the current position, making special trustee arrangements consistent with those for other NHS charities. This amendment will also make the application of the Local Audit and Accountability Act to special trustees clearer. The fact that the Act does not apply to special trustees’ charitable accounts is currently not directly stated. To establish this, readers have to follow two cross-references to other Acts. In preparing these regulations, we discussed the implications with the Charity Commission and the Association of NHS Charities, which agreed that the overlap between the Acts should be removed.

In conclusion, these regulations will amend the Act so that it does not apply to the charitable trust funds of special trustees and applies only where the trustees are dealing with non-charitable funds. I commend these regulations to the Committee.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I am sure that we all are grateful to the noble Earl. As he will understand, I laboured long and hard over these regulations. Rather like the previous RIA, they are quite remarkable in that there has been no consultation, guidance or impact assessment, no charities are affected apart from the charitable trustees—I do not think that the special trustees count as charities in that sense—and they do not impact on small and medium-sized enterprises. No doubt if there had been an RIA, it would have been another “Nul points” return.

I think the noble Earl said that as of today the regulations will have no impact because the three special trustees who still exist do not engage in non- charitable activities. I have a genuine question for the noble Earl with regard to the Government having adopted a deregulatory or better regulatory approach. I wonder whether this SI was really necessary and whether a letter from his department to the three special trustees telling them not to engage in non-charitable activities might not have been a better option. I was going to ask him which three special trustees still existed, but he very kindly gave their names. I wonder why they are still special trustees. He may not know why, but it struck me that, with the options that are now available for these trustee arrangements, other NHS trusts and foundation trusts have decided on different options.

Finally, it is worth noting that in some cases we are talking about quite considerable sums of money that, in one way or another, have been left or that special trustees operate. They can therefore have a major impact on the activities of those hospitals, particularly on research but also on contributions to patient comfort. I do not know whether the noble Earl really thinks that these funds are generally in good hands and whether there are any trends in giving at the moment; clearly the NHS finds them to be extremely useful.

Maternity Services in Morecambe Bay

Debate between Earl Howe and Lord Hunt of Kings Heath

Tuesday 3rd March 2015 Lords Chamber

[Lord Hunt of Kings Heath (Lab)]

My Lords, I thank the noble Earl for his well-judged Statement and entirely echo the sentiments he expressed. Families in Barrow and the wider Cumbria area were badly let down by their local hospital and the NHS as a whole. He was right to apologise to them on behalf of both the Government and the NHS, and I do the same for the previous Government. It is hard to imagine what it must be like to lose a child or partner in these circumstances, but to have the suffering intensified by the actions of the NHS is inexcusable. Bereaved families should never again have to fight in the way that these families have had to fight to get answers. The fact that they found the strength and courage to do so will benefit others in years to come, and I pay tribute to them all, but particularly to James Titcombe. The report finally gives families the answers they should have had many years ago. It explains in detail both what went wrong and the opportunities missed to put it right.

I echo the noble Earl’s praise for Dr Bill Kirkup, the investigation team and the panel which assisted them. Our shared goal must now be to ensure that this report changes this hospital trust and the NHS as a whole for the better. Its recommendations are powerful but proportionate. We support them all, and the noble Earl can rely on our full support in introducing them at the earliest opportunity.

People’s first concern will be whether services are safe today. Clearly there are parts of this report where the alarm bell is being rung. It identifies the root cause of the failures as the dysfunctional local culture and the failure to follow national clinical guidance. There are suggestions in the report that this problem has not entirely disappeared. It says that,

“we also heard from some of the long-standing clinicians that relations with midwives had not improved and had possibly deteriorated over the last two to three years”.

It goes on,

“we saw and heard evidence that untoward incidents with worryingly similar features to those seen previously had occurred as recently as mid-2014”.

I am sure the fact that problems have been acknowledged means there is improvement. I very much take the latter point the noble Earl made in that regard, but can he say more about those findings and what steps are being taken to ensure that the trust now has the right staff and safety culture?

After safety, people will rightly want accountability, not just for the care failures but for the fact that problems were kept hidden from the regulators and the public for so long. When information did come to light it was not acted upon. Lessons were not learnt and problems were not corrected. The investigation recommends the trust formally admits the extent and nature of the problems and apologises to those affected. I am sure that this House, as well as the other place, will endorse that and want to see it done both appropriately and immediately.

Can I ask the noble Earl to ensure that any further referrals to the GMC and NMC are made without delay? Will he ensure that any managerial or administrative staff found guilty of wrongdoing are subject to appropriate action? I wonder whether it is time to revisit the issue of the regulation of managers and administrators because of this concern about staff moving on to another organisation and still being in the employ of the service, seemingly without being subject to accountability for their actions. We know a number of staff have left the trust in recent years, many with pay-offs. Will the noble Earl review those decisions in the light of the report and take whatever steps he can to ensure that those who have failed are not rewarded?

One of the central findings of the investigation is the particular challenges faced by geographically remote and isolated areas in providing health services. The investigation warns of the risks of a closed clinical culture, where,

“practice can ‘drift’ away from the standards and procedures found elsewhere”.

Given that, is not the report right to recommend a national review of maternity care and paediatrics in rural and isolated areas, and will he take that forward? Will the noble Earl comment on the concerns about the sustainability of the Cumbrian health economy? My honourable friend the Member for Copeland has today written to Simon Stevens, the chief executive of NHS England, to call for a review of the specific challenges it is facing. I hope that Ministers will be sympathetic to this call.

On the question of the CQC, the role of the regulator is to be a champion for patients, to expose poor care and to ensure that steps are taken to root it out. It is clear the regulator failed in that duty in this case. Given what was known, the decision to register the trust without conditions in April 2010 was inexplicable, as was the decision in 2012 to inspect emergency care pathways but not maternity services. In doing so, it failed to act on specific warnings. The report says there was, and remains, confusion in the system as to who has overall responsibility for monitoring standards, with overlapping regulatory responsibilities. We support the moves to makes the CQC more independent, but does the noble Earl agree that the journey of improvement at the regulator needs to continue and that there is a need for further reform, as recommended?

Will the noble Earl ensure that NHS England draws up the recommended protocol on the roles and responsibilities for all parts of the oversight system without delay and does he agree that the CQC should take prime responsibility? Does he also agree that the answer to a number of the problems identified is a much more rigorous system of review of deaths in the community and in hospitals than currently exists? Is it not the case that the reform of death certification and the introduction of a new system of independent medical examination are well overdue? We know Ministers have previously said that they are committed, in principle, to bringing this in but nothing has happened. I hope that the noble Earl will agree to bring this new system in without delay. It needs to go further, too. We need to look at mandatory reporting and investigation as serious incidents of all maternal deaths, stillbirths and unexpected neonatal deaths. We need to see how we can move to a mandatory review of case notes for every death in hospital. We have asked Professor Nick Black to advise us and inform a review which we want to conclude by the end of the month. I hope the noble Earl will support us in that review.

There are two other points I would like to raise with the noble Earl. I want to ask him about leadership of the profession nationally. He will know that maternity services are coming under great pressure at the moment. With the increase in the number of births, many maternity services are facing huge difficulties and challenges, particularly in recruiting midwives to work in those units and in making sure that they can respond to the pressures that are undoubtedly there. We do not have a chief midwifery officer, either at the Department of Health or at NHS England. I wonder whether we need a leader of the profession who can really start to raise the morale and tackle some of these issues which have been around for many years. There will be a head of profession within his department who will be working with the Chief Nursing Officer, but I wonder whether we need a more visible leadership of the profession.

The noble Earl also mentioned the work of the NMC and the King’s Fund review into midwifery supervision and regulation. I very much understand those recommendations and am very sympathetic to the need to look at this carefully. That clearly has major implications for the current supervisory role of midwives. I take the point he and, indeed, the King’s Fund report make, about that role needing to be independent of the employing authority. Can he confirm, though, that much of what supervisors do is of value and that, in moving to a new system, we would not want to lose the value of the work that current supervisors undertake? I echo the noble Earl’s views on the work of the NMC. Under the current leadership it has shown great signs of improvement, and it needs to be supported.

Finally, I pick up the point that the noble Earl made about the acceptance of honest mistakes as long as people and organisations are open. I agree with that, but could he reassure me that he believes that that philosophy is consistent with the Private Member’s Bill of the noble Lord, Lord Ribeiro, in relation to the issue of doing no avoidable harm? I believe that it is. Perhaps we will come back to this when we debate the noble Lord’s Bill, but if the noble Earl was able to say that it is consistent, it would provide considerable reassurance to those health organisations that have reservations at the moment.

[Earl Howe]

My Lords, I welcome the measured and constructive comments of the noble Lord, Lord Hunt. He asked me a series of questions and I shall answer as many as I can. First, on how things are today at the trust and the safety of its services, clearly the CQC is the body best placed to make judgments about the quality of services. At the last inspection of the university hospitals of Morecambe Bay in February last year, safety in the maternity service at Furness was rated as good but overall the maternity services were assessed as requiring improvement. As a whole, the trust has been rated as inadequate. This demonstrates that, while the trust is making progress, there is still a long way to go, and it is clear that embedding changes of this nature takes time. The CQC will reinspect the trust in May 2015 and will make a judgment on whether it has made the required improvements.

The noble Lord asked about referrals to the NMC and the GMC. Where there are failings by a member of staff, they must be held to account. If an allegation is made about a medical doctor, a nurse or midwife, who may not meet the professional standards required in the UK, the relevant professional regulator has a duty to investigate—and, where necessary, to take action to safeguard the health and well-being of the public. The Department of Health is aware that the NMC and the GMC have each received a number of fitness to practise referrals linked to maternity and neonatal services provided by the University Hospitals of Morecambe Bay NHS Foundation Trust. As an independent body, each of them is responsible for operational matters concerning the discharge of its statutory duties. I would hesitate—in fact, I think it would be wrong of me—to comment further on those fitness to practise cases. However, we are confident that the NMC will take account of the recommendations and findings in the report.

The noble Lord made a number of comments about managers. As he well knows, the NHS is a huge and complex service staffed by committed people who often work under a huge amount of stress. I believe that those tasked with leading our NHS organisations, whether in management positions or clinical ones, are committed to making good decisions on behalf of patients. When it becomes clear that they are not up to the job, they should be replaced. Many senior leaders at Morecambe Bay have now been replaced. The current leadership should be allowed a period of time to refocus the trust on those values that are so vital to good patient care—staff morale, sound governance, strong leadership, team working and a focus on delivering high-quality care.

On the issues that are particularly pertinent when you have NHS services that are geographically remote, NHS England has today announced details of a major review of the commissioning of NHS maternity services as promised in the five-year forward view. The review will assess current maternity care provision and consider how services should be developed to meet the changing needs of women and babies. Recent advances in maternity care, changes in the demographics of women having babies and preferences of where they want to give birth will form the key focus. This review, which is expected to report by the end of the year, will be led by an external chair, supported by a diverse panel, and will include a review of UK and international evidence on safe and efficient models of maternity services.

I listened with interest to the noble Lord’s comments on the Cumbrian health economy as a whole. I am not in a position to comment on that at the moment but, if I may do so in writing, I shall be happy to. As for further reform of the CQC, we will examine the recommendation on this score in detail and publish a full response in due course. Further consideration is needed to ensure that the overall responsibility for patient safety sits in the right part of the system and the department has already committed to consider with relevant organisations the options for transferring NHS England’s responsibilities for safety to a single national body. We will also continue to look for opportunities to improve both the operation of the oversight arrangements in place at present and the understanding of those arrangements by NHS organisations and the public.

On the matter of reviewing all deaths and picking up the recommendations around death certification, a number of the recommendations in Sir Robert Francis’s Mid Staffordshire inquiry report refer to our planned reform of the death certification system and the introduction of the role of medical examiner in England and Wales. A new system of medical examiners has been successfully trialled in a number of areas around 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 county-wide basis on a scale that will be required for implementation by local authorities when legislation is introduced. We will publish shortly a report from the interim national medical examiner, setting out the lessons learnt from the pilot sites. I hope that that gives the noble Lord an indication that this is work very much in progress.

On mandatory reporting of maternal, stillbirth and neonatal deaths, the Government are committed to doing further work to review avoidable deaths. We are working with NHS England to introduce a national standard approach for undertaking case-note review. This has the potential to enable NHS trusts to develop a better understanding of avoidable deaths. However, a top-down approach to ensuring that every trust reviews every death is not, in our view, appropriate. Our aim is to ensure that trusts focus their efforts on improving patient safety through learning about the root causes that have led to avoidable death. A systematic, but not necessarily burdensome, approach is needed, which is why we are moving ahead to develop a national rate and produce an estimated number of avoidable deaths for each hospital. The numbers will be made public. Trusts will be expected to report annually to the Secretary of State for Health on their actions to reduce avoidable deaths.

The noble Lord made a very interesting suggestion about the possible appointment of a chief midwifery officer. I would be happy to consider that idea. Of course, he knows that there is a head of maternity in NHS England at the moment.

On the performance of the NMC, it is, as the noble Lord is well aware, an independent body accountable to Parliament, via the Privy Council, for the way in which it carries out its responsibilities. In addition, its performance is monitored by the PSA, and the Health Select Committee has also chosen in recent years to hold an annual accountability hearing with NMC leadership. So there are a variety of robust measures in place to hold the NMC to account. I am aware that the performance of the NMC has a troubled history, which is why Ministers commissioned the Professional Standards Authority’s predecessor body, the CHRE, to undertake a full strategic review in 2012. As noble Lords will remember, the final report of the strategic review was published, putting forward 15 high-level recommendations for improvement in delivering the NMC’s regulatory functions, with the expectation that demonstrable improvements should be seen within two years. We welcome the new NMC chair and we hope that, under Dame Janet’s leadership, it will continue to make improvements to become a confident and capable regulator.

Human Fertilisation and Embryology (Mitochondrial Donation) Regulations 2015

Debate between Earl Howe and Lord Hunt of Kings Heath

Tuesday 24th February 2015 Lords Chamber

[Lord Hunt of Kings Heath (Lab)]

My Lords, I sense that the House wants to come to a decision.

Just over 14 years ago, I asked the House to agree that embryology research could be extended to cover diseases such as Parkinson’s disease, Alzheimer’s disease, cancer and diabetes. This provision had been anticipated and included as a regulation-making power in the Human Fertilisation and Embryology Act 1990, which had allowed embryology research but only for conditions such as infertility and congenital diseases.

The 2001 regulations were passed following a Motion moved by the noble Lord, Lord Alton, to whom I pay tribute for his integrity and perseverance. However, his Motion to establish a Select Committee prior to the regulations being approved was defeated by 212 votes to 92.

The 1990 Act followed the work of a committee led by the noble Baroness, Lady Warnock, which made recommendations on developments in science and medicine in relation to human fertilisation and embryology. I pay tribute to the noble Baroness for her outstanding work in helping us get the balance right between the respect owed to human embryos and the potential for the use of embryos in research and treatment for devastating illnesses.

The 1990 Act was a model in the regulation of certain infertility treatments and embryo research. It reflected the need to have a strict framework in which regulation could be conducted to take account of the advances in medicine anticipated by both the noble Baroness, Lady Warnock, and Parliament in 1990.

Since 1990, the science and research have developed, just as has the need for Parliament to keep up and anticipate further developments. Thus, in 2001, we passed emergency legislation to put it beyond doubt that human reproductive cloning could not take place in the UK. In 2004, we passed regulations in which the identity of the donor of eggs, sperm or embryos could be given to the adult donor-conceived person under certain circumstances.

We have heard about the 2008 Act, which amended the 1990 Act to include restrictions on the types of embryos that may be placed inside a woman. Importantly, the 2008 Act amended the 1990 Act to insert a regulation-making power to enable techniques which were under development at that time to be used in treatment to prevent a child being born with serious mitochondrial disease. Surely, the noble Viscount, Lord Ridley, and the noble Lord, Lord Walton, are right—at every significant stage of embryology research and potential treatment, Parliament has been asked to give its approval and thus ensure public confidence in our scrutiny of these most difficult decisions. My view is that Parliament has discharged that responsibility thoroughly and well. However, I am glad that the noble Lord, Lord Deben, has given us the opportunity to have this debate. Of course, we would have had a debate but the noble Lord has served a great purpose in encapsulating the core argument and I am grateful to him for so doing.

We find ourselves asked to make a crucially important decision, with powerful contributions having been made on both sides of the argument. On the one hand, we celebrate the triumph of science that these new techniques represent. We have within our reach the possibility of eradicating mitochondrial disease from families who have been blighted by it for generations. On the other hand, we are grappling with serious moral, legal and ethical questions that are raised by the proposed introduction of such techniques for treatment. We on this side of the House have a free vote. Speaking for myself, and myself alone, I will vote in favour of the regulations.

The noble Earl, Lord Howe, will respond to many important points that have been raised, but I ask him to focus on a number of very important considerations that have also been raised. On the question of continuing research and the comments of the expert panel, will he confirm that the panel said there was no evidence to suggest that the techniques proposed in the regulations are unsafe? Will he also confirm that the panel has agreed that further research and reviews could take place either before or after the regulations are approved?

As regards whether this matter is being rushed through Parliament and would benefit from further scrutiny by a Select Committee, the question here is: what would be gained by delay? Will the noble Earl confirm that the principles that we are discussing were approved by Parliament in 2008 after thorough debate? I do not need to go over the work of the Nuffield Council on Bioethics or that of the HFEA and its expert panel because noble Lords have mentioned that, but I should comment on the 90-minute debate that took place in the House of Commons. I agree with the noble Lord, Lord Alton, that 90 minutes is too short. However, I have read that debate and it seems to me that it was thorough and well informed and that the points on both sides were put forcefully and interventions were made. My honourable friend Luciana Berger was asked a number of very tough questions, as was the Minister. Could anyone say that at the end of those 90 minutes MPs were not in a position to come to a conclusion? Indeed, can anyone say that we are not in a position to come to a conclusion following a debate which has lasted at least three and a half hours?

We have heard from eminent lawyers on both sides of the argument on the legal questions. We have had written submissions from the Department of Health and the legal advice of the Wellcome Trust, and other legal propositions have been put to us. However, you reach a point when it is time to make a decision. I think that we are in a position to make such a judgment.

A number of noble Lords, including the noble Lord, Lord Alton, referred to the two techniques and how one should be considered in relation to the other. I understand the point that the noble Lord, Lord Alton, made. However, will the noble Earl, Lord Howe, confirm that the panel believes that at present there is insufficient evidence to choose between the two techniques? Does he consider that that is still the Government’s position? The noble Lord, Lord Deben, said that this was a question of resources. I have not seen evidence to suggest that that is the case. The important question is: can the Minister refute that? Can he say that the sole issue is that at the moment we are not in a position to judge which technique is likely to be more effective, and that it is solely for that reason that we are permitting the two techniques to be in the regulations?

Finally, we come to the position of the HFEA. At every point of our debates—this goes back to 2001—we have relied on the robustness of that body. The robustness of the HFEA is absolutely essential. There have been discussions and debates about how effective it is; my noble friend Lord Winston is a well known critic of some of its activities. Fair enough—but I believe that the HFEA has proved itself a highly effective and robust regulator over 20 years. I ask the Minister to confirm that it is the Government’s intention to continue to support the robustness of that regulatory approach.

As for the Chinese experience, will the Minister confirm that, although there are issues in connection with the techniques used, one big difference between the UK and the Chinese position is the regulatory framework and the robustness of the HFEA? I suspect that that was not the case in China years ago when those developments took place.

The question is whether the benefits of trying to eradicate this dreadful disease by preventing the transmission of mitochondrial disease, in view of the likelihood that otherwise children will continue to be born who will die in infancy, outweighs the risks of the techniques, which some noble Lords have described tonight. The scientific community—on the basis not of some kind of cosy consensus but of hard evidence—and the families experiencing this disease are clear that we are right to support the regulations. It is now up to us individually to decide whether we agree them. I, for one, am convinced that it is the right thing to do.

[Earl Howe]

My Lords—

Francis Report: Update and Response

Debate between Earl Howe and Lord Hunt of Kings Heath

Wednesday 11th February 2015 Lords Chamber

[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.

NHS: Financial Tariff for 2015-16

Debate between Earl Howe and Lord Hunt of Kings Heath

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.

--- Later in debate ---

[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.

Smoking: E-Cigarettes

Debate between Earl Howe and Lord Hunt of Kings Heath

Tuesday 3rd February 2015 Lords Chamber

[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.

Smoke-free (Private Vehicles) Regulations 2015

Debate between Earl Howe and Lord Hunt of Kings Heath

Tuesday 3rd February 2015 Grand Committee

[Lord Hunt of Kings Heath (Lab)]

My Lords, I, too, welcome the regulations. They follow on from my amendment at Report to the Children and Families Bill, which was agreed by 222 votes to 197, to ban smoking in cars when children are present. I am very proud of that amendment and I express my thanks to organisations such as ASH, the British Lung Foundation, the BMA and others who lent their support to it. I echo the tributes to the noble Lord, Lord Ribeiro, and to other noble Lords who have been campaigning on this matter for some years, including the noble Baroness, Lady Finlay, my noble friend Lord Faulkner, and the noble Baroness, Lady Tyler. My noble friend Lord Simon persuasively and eloquently illustrated the issues that we are dealing with. I am confident that these regulations, if they come to be successfully implemented, will do a lot on those issues.

My noble friend Lord Foulkes was very brave, a long time ago, to pioneer the proposal. What he had to say about the tactics and activities of the tobacco companies was a point very well taken. I welcome the Government’s decision to go ahead with standardised packaging regulations but we know that many of those companies will do their best, through representative bodies, to sabotage them—as I think they have attempted to do in Australia. We must be ever watchful about that.

I agree with the noble Baroness, Lady Tyler, that it is interesting how much public support there is for this measure. She may well have seen the work by the British Lung Foundation which has shown, in survey after survey, that a huge majority of children wanted action to be taken. We have also had the ASH poll conducted last March by YouGov, which showed that 77% of all adults—including 64% of smokers—agreed that action should be taken. Does the noble Earl agree that that shows that there is public support for measures such as this, particularly when it comes to the protection of children? I wonder whether he shares our ambition on this side of the Committee to reduce smoking prevalence to 10% by 2025 and, over the longer term, our goal that all children born in 2015 and beyond will become the first smoke-free generation in hundreds of years.

I noted that the regulations come into force on 1 October 2015. The noble Earl explained why 1 April is not appropriate but I wonder whether 1 July could not have been chosen instead. The noble Baroness, Lady Finlay, raised the experience in Wales. Is the noble Earl confident that the provisions for Wales will come in at the same time as those for England? Could he say a little more about the public marketing plan being developed by Public Health England? That very much relates to the questions asked by my noble friend Lord Foulkes about enforceability, which is so important. I am confident that a great majority of the members of the public will in fact respect the change in the law. The evidence is pretty strong on that. None the less, we need an effective public health campaign and the support of the police in being prepared to take action against those who transgress the law.

[Earl Howe]

My Lords, I am very grateful to all noble Lords who have spoken and I am grateful for their universal welcome for these regulations. I begin by referring to the remarks of my noble friends Lady Tyler and Lord Ribeiro and the noble Viscount, Lord Simon, all of whom reminded us why we are doing this—the noble Viscount from a very personal perspective. Three million children are exposed to second-hand smoke every year and we want to protect them. Existing smoke-free legislation is popular, as has been said, and has a very high rate of compliance. Personally, I credit the public with more willingness to follow the law and therefore protect their children from second-hand smoke, rather than thinking of elaborate ways to break the law.

The noble Lord, Lord Hunt, asked about public attitudes in relation to these regulations. We know from the responses to the consultation that there is widespread support for protecting children from the harms of second-hand smoke. I do not expect people to go to great lengths to carry on smoking in cars when they know that it is an offence to do so. As has been said, legislation can be instrumental in driving behavioural and cultural change. That has certainly been true in other areas of regulation in the past. Of course, we have to inform the public in a reasonable way before these regulations come into force.

More generally, we agree that education is essential in informing people of the harms of second-hand smoke, particularly to children, and we recognise the importance of social marketing campaigns. The department and Public Health England will continue to protect children from the harms of exposure to second-hand smoke by encouraging voluntary action through social marketing. Previous campaign results illustrate that such campaigns have been effective both in changing behaviour and in driving quit attempts. Of course, I agree with the noble Lord, Lord Hunt, that our ambition as a nation should be to drive down the prevalence of smoking to the maximum extent that we can. We are going to monitor progress in respect of these regulations by assessing the reduction in the number of children who are exposed to second-hand smoke in cars from the current level of 26%, and it is possible to do that.

As I said, I agree with my noble friend Lord Ribeiro about the importance of building public awareness of these health harms. Once again, I pay tribute to all his efforts in this sphere of activity. I also add my thanks to the noble Lord, Lord Foulkes, for his welcome for these regulations, and I acknowledge his far-sightedness in this context, even if he felt like a voice in the wilderness for a number of years. He expressed concern about the enforcement of the regulations—in particular, in view of his perception that the police do not go to great lengths to enforce the mobile phone laws. In fact, my advice is that the police assure us that they endeavour to enforce mobile phone legislation, as they would any law. In fact, in 2012 more than 90,000 fixed penalty notices were issued for mobile phone offences. We estimate that considerably fewer fixed penalty notices will be issued for smoking in private vehicles—possibly around or slightly above 2,000 each year.

The noble Lord, Lord Foulkes, also questioned whether the £50 figure was sufficient. The regulations were drafted following discussions with the police and others to provide for effective enforcement. As I said, the police have confirmed that they will enforce these regulations in the same way as they enforce other laws, such as those relating to seat belts and the use of mobile phones. It is for individual police forces to decide how enforcement will be carried out locally. They have advised that this can be taken forward by local police officers in conjunction with their wider functions on road safety. For example, when running an operation to check compliance with the laws on seat belts or child car seats, the police would also check for anyone smoking or discuss the offences with the driver if there was tobacco in the car. A fine of £50 is consistent with the existing smoke-free legislation, but that level of fine could certainly be subject to review when the regulations as a whole are reviewed.

Medical Innovation Bill [HL]

Debate between Earl Howe and Lord Hunt of Kings Heath

Friday 23rd January 2015 Lords Chamber

[Lord Hunt of Kings Heath (Lab)]

My Lords, I, too, welcome the amendment and thank my noble friend for his efforts. I also thank the noble Lord, Lord Saatchi, for the way in which he has been prepared to listen and to support amendments which we see as improving the Bill. This amendment goes a long way to meeting some of the concerns expressed by medical bodies about what might be described as unintended consequences arising from the Bill.

I do not agree with the noble Baroness, Lady Gardner, that this amendment could be seen as delaying action. I think it is rather the reverse. Having this provision and the need to act within it would give confidence to doctors. I think the definition of,

“a representative body of respectable medical opinion”,

is a question of you know what it is when you see it. I would have thought that doctors would have no doubts about to which responsible body they should turn.

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

My Lords, my interpretation of the amendment moved by the noble Lord, Lord Winston, is that it aims to ensure that in obtaining the views of one or more appropriately qualified doctors, a doctor is carrying out a test equivalent to the Bolam test. I recognise that these words are carefully chosen, and I listened closely to what the noble Lord, Lord Winston, said. However, I do not believe that the language of the amendment accurately reflects the requirement of the Bolam test.

To go a bit further, I am concerned that the amendment would create more confusion than clarity for both doctors and the courts. In particular, how would a court determine what is meant by the phrase “command the respect of”? It certainly does not mean agreement. If Noble Lords want an illustration of the difference, I deeply respect the noble Lord, Lord Winston, but, as in this case, I do not always agree with him.

Like my noble friend Lady Gardner, I question what might count as,

“a representative body of responsible medical opinion”.

Again, this wording is not in the Bolam test. The Bolam test sets out that a doctor is not negligent if their decision is accepted as proper by a responsible body of medical opinion. Bolam accepts that a doctor is not negligent merely because there is a body that would take a contrary view. Therefore, the courts recognise that there is not necessarily a representative body of medical opinion. The wording of the amendment would be open to interpretation by the courts.

I recognise that the noble Lord’s aim in tabling this amendment is thoroughly worthy and is to ensure the protection of patients. I assure him that the existing provisions in the Bill seek to achieve that same aim. Therefore, the Government do not consider the amendment moved by the noble Lord, Lord Winston, necessary. The Bill’s provisions boil down to one key test: a test of responsibility. Clause 1(2) states:

“It is not negligent for a doctor to depart from the existing range of accepted medical treatments for a condition if the decision to do so is taken responsibly”.

This objective test of responsibility ensures that the decision about whether a doctor has been negligent is based on the same premise as the existing Bolam test: has this doctor acted responsibly? Patient safety is an integral part of this test. Clause 1(3) makes clear that the risks of any innovative treatment must be considered, so if the treatment was likely to compromise patient safety unacceptably, it is highly unlikely that it would be considered a responsible decision when later judged in court. Furthermore, the Bill does not require doctors simply to obtain the views of experts in the field; it requires a doctor to take full account of those views in a responsible way. As such, a doctor could not simply listen to, or note, the views of colleagues and then proceed to disregard those with which he or she disagrees. A doctor can fully expect a court to scrutinise closely how they have taken account of those views and consider whether they had acted on the views in a responsible way.

It is that requirement which ensures that the Bill is the nearest equivalent to that of the Bolam test. I fear that the amendment of the noble Lord, Lord Winston, despite its best intentions, would not add to the operative provisions of the Bill but would only risk creating confusion as to the language of the existing Bolam test. It is not just that the Government consider this amendment unnecessary—which we do—but that we also have serious concerns about whether the language of the amendment will create confusion for doctors and, indeed, the courts.

Alcohol: Impact on Accident and Emergency Services

Debate between Earl Howe and Lord Hunt of Kings Heath

Wednesday 21st January 2015 Lords Chamber

[Earl Howe]

My Lords, we have taken a strong policy on taxation in recent years, particularly to reduce the availability of cheap, strong alcohol. Since the 2010 general election, duties on spirits have risen by more than 18%, which is well above RPI, and on wine by more than 21%, again well above RPI. We have also introduced a ban on the sale of below-cost alcohol, which should stop the worst cases of cheap and discounted alcohol sales.

[Lord Hunt of Kings Heath (Lab)]

My Lords, can I ask the noble Earl about the attitude of the drinks industry? He said that it is responsible but can he confirm that the long delay in the publication of new guidelines from the Chief Medical Officer on safe drinking levels is because she wants to reduce those levels but the drinks industry objects, and the Government have given in to it?

[Earl Howe]

Not at all, my Lords. As I explained the last time the noble Lord asked that question, the reasons were purely technical and nothing to do with a disagreement. The CMO is overseeing a review of the alcohol guidelines so that we can ensure that people make better-informed choices. That is now under way and in its second phase. During the review we will look at any significant new evidence that relates to pregnancy, in particular, to consider whether our advice needs to be updated. We expect to consult on new guidelines by the middle of this year.

NHS: Clinical Negligence

Debate between Earl Howe and Lord Hunt of Kings Heath

Tuesday 20th January 2015 Lords Chamber

[Earl Howe]

My Lords, moneys paid in settlement of clinical negligence claims cannot be reclaimed or recycled in the way that my noble friend appears to suggest because, in the nature of NHS care, it is free from the patient’s perspective. We are, however, concentrating on various ways to reduce the number of clinical negligence incidents and, indeed, to improve patient safety, which is of course part of the way in which we can reduce the number of claims in the first place.

[Lord Hunt of Kings Heath (Lab)]

My Lords, what view have the Government taken of the Medical Defence Union recommendation for repeal of the Law Reform (Personal Injuries) Act 1948? In essence, that would mean defendants could buy NHS healthcare packages as opposed to the more expensive private care packages, and, presumably, would reduce some of the cost of the claims that are currently going through.

[Earl Howe]

My Lords, we are looking at that proposal, but there are currently no plans to repeal that particular piece of legislation.

Alcohol: Addiction

Debate between Earl Howe and Lord Hunt of Kings Heath

Monday 12th January 2015 Lords Chamber

[Lord Hunt of Kings Heath (Lab)]

My Lords, how many meetings have been held between Ministers and representatives of the alcohol industry since the last election? Why are the Government delaying the publication of the Chief Medical Officer’s review of safe drinking levels until after the election? Are the two connected?

[Earl Howe]

No, my Lords, they are not. The Government have regular dialogue with the industry, but the industry does not formulate policy and never will do. There has been a delay on the new guidelines; the consultation on them had been planned for December last year but will not now happen until shortly after the general election. That is simply due to problems with Public Health England commissioning expert advice on guideline methodologies, which took longer than intended. The academic body that PHE wanted to do the work decided that it did not have the capacity to do so. A tender exercise was therefore necessary and the work is being carried out by a team from Sheffield University.

NHS: Accident and Emergency Services

Debate between Earl Howe and Lord Hunt of Kings Heath

Wednesday 7th January 2015 Lords Chamber

[Lord Hunt of Kings Heath (Lab)]

My Lords, I join the Minister in paying tribute to the staff of the NHS who are facing such a pressurised situation at the moment. Does he accept that, for all the actions that he has listed today, the fact is that too many vulnerable people are currently being exposed to too much risk in the NHS as a result of the crisis in A&E? How many hospitals have declared major incidents in the past two weeks? Does he agree that the crisis has been caused principally by the savage cuts in social care and the chaos caused by NHS reorganisation? Why have the Government overseen the closure of dozens of NHS walk-in centres? Why did the Government oversee the replacement of qualified NHS nurses in NHS Direct by unqualified call-centre staff in NHS 111, who have computers programmed to encourage people to go to A&E? When will the Government get a grip?

[Earl Howe]

My Lords, the noble Lord will understand that I am under instructions to keep my answers brief, in the nature of Urgent Questions. To cover his main points, though, we have made social care a priority at the same time as protecting the NHS budget and reducing the deficit. Since 2010 we have allocated additional funding from the NHS each year to support social care worth £1.1 billion in the current year and £2 billion next year. With regard to walk-in centres, there is no evidence that the closure of those centres, where that has occurred, has resulted in additional A&E attendances. A Monitor report in 2013 found that closures were often part of reconfigurations to replace walk-in centres with urgent care centres co-located with A&Es. On NHS reorganisation, I simply point out to the noble Lord that the pressures that we are seeing in the English health service are replicated just as strongly in the NHS in Wales, Scotland and Northern Ireland. Our A&E departments are in fact coping even better than those in the devolved Administrations.

Alcohol-related Disease

Debate between Earl Howe and Lord Hunt of Kings Heath

Wednesday 17th December 2014 Lords Chamber

[Lord Hunt of Kings Heath]

To ask Her Majesty’s Government what action they are taking to address the increase in alcohol-related disease.

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

My Lords, we have set out the Government’s approach to reducing the incidence of alcohol-related disease in the Government’s alcohol strategy. Our ambition is to radically reshape the approach to alcohol and reduce the number of people drinking to excess. We are seeing encouraging signs of change, with the first significant fall for some years in alcohol-related deaths in England in 2012.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I am sure the whole House would wish me to congratulate the noble Earl on being nominated by Health Service Journal as the 29th most powerful person in the National Health Service.

[Lord Hunt of Kings Heath]

Coming in at 95, I look on with admiration, but from some way behind. Did the noble Earl notice that a Mr Lynton Crosby came 50th in that list? Does he think that that reflects the rather close relationship between the Conservative Party and the drinks industry—and does that explain the outrageous delay in the publication of the Chief Medical Officer’s review of what safe levels of drinking should be?

[Earl Howe]

My Lords, I am sure the noble Lord would not expect me to agree with him on the position of Mr Crosby in relation to the drinks industry. We feel it right to engage with the industry because it is in a position of influence over consumers, and we have seen, through the responsibility deals, some real progress, which it has instigated at our prompting. I recognise the issue that the noble Lord raises on price. That, of course, is only one aspect of the issue of alcohol consumption and its prevention.

NHS: Medical Staff

Debate between Earl Howe and Lord Hunt of Kings Heath

Monday 15th December 2014 Lords Chamber

[Earl Howe]

My noble friend makes a very important point. As he will know, the UK signed the World Health Organization code of practice on the international recruitment of health personnel. My department worked together with the Department for International Development to produce a definitive list of developing countries—based on economic status and the availability of healthcare professionals—that should not be targeted for recruitment. He may like to know that the WHO is planning an assessment of the implementation of that code of practice and is due to report in 2016. However, we are mindful of the point made by my noble friend. Particularly with the Ebola crisis, it is important that we are sensitive to the serious issues that pertain in Sierra Leone in particular.

[Lord Hunt of Kings Heath (Lab)]

My Lords, given that, and given the Health Select Committee’s recommendation that although the contribution of overseas staff to the NHS should be celebrated, we should not be dependent on significant flows of trained staff from overseas, does the noble Earl still agree with the decision in 2012 to reduce the number of medical school training places by 2%? Does that not need reviewing?

[Earl Howe]

My Lords, as the noble Lord is aware, we rely on Health Education England to determine the number of training places that the NHS needs going forward, looking at not just the short term but also the medium to long term, informed by the work of the local education and training boards. That is as good a system as we believe we can get. Health Education England is properly funded to do that and we must rely on its expertise.

Learning Disabilities: Health and Care Services

Debate between Earl Howe and Lord Hunt of Kings Heath

Wednesday 3rd December 2014 Lords Chamber

[Earl Howe]

My Lords, the report contains a number of important recommendations which we will consider. This report was commissioned by NHS England for NHS England, to make recommendations for a national commissioning framework under which local commissioners would secure community-based support for people with learning disabilities and/or autism. It is an important report, it is right that we take a bit of time to digest it, and, together with NHS England, we are looking carefully to do just that.

[Lord Hunt of Kings Heath (Lab)]

My Lords, can the noble Earl clarify something? He knows that NHS England set a target of June 2014 to stop placing people with learning disabilities in inappropriate in-patient facilities. It appears that that has not been followed through by clinical commissioning groups. Can he confirm that, and say whether the Government will discuss with the regulator, the Care Quality Commission, whether a moratorium on the approval of new registrations for inappropriate in-patient facilities will be considered as part of the reforms that need to take place?

[Earl Howe]

The noble Lord is quite right that progress has not been nearly as swift as we, or indeed anyone, would have liked. NHS England has stated its ambition to achieve a 50% reduction in the number of people who were in in-patient beds on 1 April this year by March 2015. Although the latest data for November shows that some 2,600 people were in in-patient settings, the number of people with a transfer date has gone up by more than 1,100 in the last three months, so progress is being made. On CQC registration, the CQC may at any time decline to register or indeed cancel the registration of a provider where it is failing to comply with the registration requirements set out in law. That includes the new duty of candour and the fit and proper persons requirement, which came into effect at the end of last month.

HIV: Stigma

Debate between Earl Howe and Lord Hunt of Kings Heath

Monday 1st December 2014 Lords Chamber

[Earl Howe]

Yes, indeed, my Lords. I can tell my noble friend that there is such co-operation and constant communication between the public health authorities in England and the devolved Administrations on this, as on many other matters.

[Lord Hunt of Kings Heath (Lab)]

My Lords, the noble Earl made it clear in answer to my noble friend that academies are not subject to the core nature of the curriculum as regards sex and relationship education. As he will know, there have recently been a number of inspections by Ofsted that have shown up defects in the approach of schools to sex and relationship education. Surely that gives rise to concern that the issue of stigma is simply not being addressed properly in some schools. Is his department willing to take this up with Ofsted?

[Earl Howe]

I would be happy to do that.

HIV: Late Diagnosis

Debate between Earl Howe and Lord Hunt of Kings Heath

Monday 1st December 2014 Lords Chamber

[Earl Howe]

The noble and learned Baroness is absolutely right. Those who are at risk of partner violence are of course at greater risk of contracting a sexually transmitted disease. We know this to be true particularly in countries overseas. The work to combat domestic violence, which the noble and learned Baroness is very familiar with, continues. It is vital, not just in this area of work but more generally in the field of mental health, to ensure that women at risk of violence—particularly women—have a place of refuge and a source of advice.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I am sure that the new money would be even more welcome if it had not consisted of quite a lot of old money rebadged. The noble Earl referred to the three-year HIV prevention campaign, which promoted testing and condom use. Perhaps I might ask him about how the campaign will go forward. Are the Government going to fund such a campaign and for how long, and can he say what proportion is going to be spent in the future compared with the past?

[Earl Howe]

My Lords, the Terrence Higgins Trust is the vehicle through which we conduct campaigns. Terrence Higgins has a three-year contract, which ends in March next year. We have yet to finalise all our spending commitments from April 2015. We expect that the funding for Terrence Higgins will have to be pared back by some measure because of the current funding constraints, but we are in discussion with Terrence Higgins about that.

Nursing and Midwifery (Amendment) Order 2014

Debate between Earl Howe and Lord Hunt of Kings Heath

Thursday 27th November 2014 Grand Committee

[Lord Hunt of Kings Heath (Lab)]

My Lords, I, too, am very grateful to the noble Earl, Lord Howe, for explaining the details of the order so clearly. However, he did not mention the Law Commission proposals for legislative changes relating to all health regulatory bodies. I note that the Explanatory Memorandum says that the Government will publish a response in due course, but I have to say that there is huge disappointment among the regulators that no Bill appeared this Session—not even one for pre-legislative scrutiny. Essentially, we are now faced with a series of Section 60 orders dealing with the regulatory bodies in an individual and piecemeal way, without the consistency and modernisation of the regulatory landscape that was promised by the Law Commission work. I hope that the noble Earl will be able to say a little more about when the Government will publish their response to the Law Commission proposals and perhaps give a little more information about how he sees the pipeline for Section 60 orders coming forward.

In particular, he will know that, in relation to the NMC, part of the Law Commission proposals were that there would be a reduction in the number of public hearings that have to take place. That would reduce the cost to the NMC and the time it takes to deal with cases. Given that we are not having primary legislation, is it the Government’s intention to bring forward as quickly as possible a Section 60 order in relation to that? As far as the proposals in this order are concerned, they seem sensible and unexceptional. I hope that they will lead to the NMC being able to be more efficient in its processes.

Having read the consultation document, I would just like to raise a couple of points on it. First, I will follow up what the noble Baroness, Lady Brinton, said about case examiners. The consultation document refers to a small number of people who are unsure about this proposal. I am particularly worried that as case examiners will be employees of the NMC, they will be target driven rather than acting as independent professionals. The consultation response from the Government says this will not be the case. It states:

“Although employed by NMC, Case Examiners will be both registrant and lay (non-registrant) and experienced senior decision makers who are used to making independent decisions”.

I very much endorse the comments of the noble Baroness, Lady Brinton, on training and the need for people to be brought in to provide fresh challenges. However, this issue about targets is a very important one, and I wonder whether the noble Earl can give me a reassurance that there will not be targets—even unseen ones—in relation to cases and their outcomes. Can he just say a little more about how we can ensure that case examiners will be wholly protected when they carry out their duties? If they are in a managed organisation, they will be accountable to a manager, and we need to have some assurance that there is not going to be interference by the hierarchy of the NMC in case examiners’ decisions.

I would like to ask about another point raised in the consultation document. One response was about the need for more diversity on panels,

“in particular a point that black, minority and ethnic (BME) employees are disproportionally represented within the disciplinary systems of both employers and regulators”.

The consultation says:

“These comments have been fed back to the NMC to consider”.

Has the NMC now given consideration to that issue?

Turning to the Deregulation Bill, the noble Earl was present at our debate last week and will know that we have some concerns that, according to a list issued apparently by the Government, the Professional Standards Authority is subject to the economic growth duty within that Bill. I do not expect the noble Earl to answer me on that today. But, given that the Professional Standards Authority is to be involved, can I take it that by implication that duty will fall also to the NMC, the GMC and other professional regulatory bodies? Obviously, we will come back to this issue when the Deregulation Bill returns on Report but we are finding it difficult to find out the list of organisations that the Government consider should be encompassed within it.

Of course, the issue is that there may be an impediment to the non-economic regulators taking regulatory action because they now have to consider the economic growth duty. In the main, that will apply more to the CQC when dealing with organisations than it will to the individual regulatory bodies. But as the Government think that the PSA is encompassed within the Bill, I would be interested in a response from the Government.

Will the noble Earl say something about the overall performance of the NMC? He will know that this has been the subject of some concern and indeed scrutiny by the Health Select Committee. At the most recent accountability hearing in 2013, the Health Select Committee concluded:

“The NMC is an organisation with a recent history of poor performance, including lack of focus on its core regulatory activities, financial mismanagement and long delays in processing Fitness to Practise cases”.

The PSA’s 2013 performance review of the nine healthcare regulators it oversees, which was published in July this year, stated that the NMC,

“is not yet meeting eight of the 24 Standards of Good Regulation”.

I know that in the 2013 accountability hearing the Health Select Committee concluded that,

“the NMC has made progress”—

indeed, I pay tribute to the chief executive and the chairman, who have done a lot to ensure that this happens—but it also says that,

“more progress is required before the NMC can be regarded as an effective regulator”.

Would the noble Earl care to comment on that?

The Select Committee also looked at the issue of revalidation. Following the introduction of revalidation for doctors, the need for revalidation for nurses is self-evident. The Health Select Committee says that it welcomes,

“the commitment of the NMC to introduce revalidation for nurses and midwives from the end of 2015”,

but that,

“it does not believe the NMC yet has a workable plan to deliver this commitment”.

That is the 2013 report of the accountability hearing. The Select Committee has not yet had the 2014 hearing, which I think will take place in January. Will the noble Earl update the Committee on whether he now thinks that the NMC has a workable plan?

Overall, this is a sensible order. We need to do everything we can to help the NMC improve its processes. I express my thanks to the current leadership of the NMC and the work that it has done. It clearly needs to do more and Parliament needs to be prepared to help it. If we are not going to have a substantive Bill, I would have thought it a priority to bring further Section 60 orders in relation to the Nursing and Midwifery Council, particularly on the question of whether we can help it streamline its fitness to practise hearings.

[Earl Howe]

My Lords, I am grateful to my noble friend and the noble Lord, Lord Hunt, for their questions and comments. My noble friend Lady Brinton asked for reassurance about the case examiners. Under the proposals, the two case examiners will independently review the evidence and then agree their decision. This is the same process as used by GMC case examiners, and I am not aware of any particular difficulties that it has encountered in this connection. If the case examiners cannot agree the decision, the case will then be referred to the investigating committee for determination, as I explained.

My noble friend asked about training of the case examiners. Two case examiners, one lay and one registered nurse or midwife, will consider an allegation of impairment of fitness to practise, whereas three investigating committee members are required at present. Co-ordinating meetings of the investigating committee members is time-consuming due to panel members having other commitments or requiring refreshed training. A case examiner will be a skilled role. They will develop expertise that will lead to greater consistency when making decisions because they will be considering a greater number of cases on a regular basis than individual members of a large pool of investigating committee members. This will speed up the fitness-to-practise process and result in reduced costs.

My noble friend asked whether the job specification of case examiners, as employees of the council, must specify that they carry out their roles without fear or favour and be truly free to make comments. Case examiners will be employed by the NMC, whereas investigating committee members, who currently consider allegations of fitness to practise, are chosen from a pool of around 100 individuals who provide their services to the NMC as independent contractors. But, once again, there is no reason to suppose that, as professional people, they will feel inhibited from voicing their full and frank views whenever they feel the need to do so. Despite their being employees, it is more than any professional’s self-esteem is worth to feel inhibited in that sense. It is a very responsible role. While the individuals will need to be carefully chosen, I have confidence that this arrangement will work.

My noble friend asked about the removal of the requirement for a registered medical practitioner to form part of the panel where health is an issue. We consider it more appropriate for medical advice to be provided by independent expert witnesses and medical reports. Having an independent medical witness will ensure that the panel remains detached from that part of the process and is therefore more able to make an independent decision so making the process more robust and transparent. This would ensure consistency between registration appeals and fitness-to-practise appeals.

The noble Lord, Lord Hunt, expressed concern that case examiners might be target driven, and this was an issue raised in the consultation. We do not believe that this will be the case. Although they will be employed by the NMC, case examiners will be both registrant and lay; that is, a registrant nurse or midwife and a lay person. Their role will be distinct; they will be responsible only for making an assessment of whether a registrant has a case to answer against an allegation that is made to the NMC that their fitness to practise is impaired. They will make their decisions impartially and independently, and based solely on the information provided for the case, including any representations made by the registrant. Any such decision would be made by a pair of case examiners. The NMC will seek to appoint people to these roles who have demonstrated sufficient skills and experience to make robust decisions. The NMC’s case examiner resource will be sufficient to ensure that all decisions will be considered on their merits, without any undue time pressure. Case examiners will not be involved in undertaking the fitness to practise investigation itself, nor in presenting cases at any final hearing.

Deregulation Bill

Debate between Earl Howe and Lord Hunt of Kings Heath

Tuesday 18th November 2014 Grand Committee

[Lord Hunt of Kings Heath]

My Lords, like the noble Earl, I make a happy, though unexpected intervention in the proceedings of this Grand Committee. I thank him for giving me advance warning that he intended to move an amendment on the question of trust mergers. I certainly would not oppose the amendment, but I should like to put some points to him. As this is being introduced at such a late stage, perhaps I could ask him about the Department of Health’s approach to deregulation, because it is entirely relevant to the amendment.

The noble Earl will know that a later clause in the Bill introduces a new duty for non-economic regulators to have regard to the desirability of promoting economic growth while exercising their regulatory functions. From the list that we have been given by the Government, we understand that the Care Quality Commission is encompassed in the list of organisations to which the new provisions may apply. The Opposition have asked the CQC for its views on the clause, but we have been informed that the Department of Health has told the CQC that it was not appropriate for the CQC to respond to our query, given that it is an arm’s-length body of government. I am surprised by that. As the noble Earl has frequently said to us, the CQC is an independent body. I am surprised that the CQC even approached the DoH for advice, and I am shocked that the DoH should prevent CQC from giving its advice to parliamentarians on the Bill. I do not expect the noble Earl to respond to this point today, because I doubt that he could, but I ask him to respond to me in due course.

What is the Department of Health’s approach to deregulation? My understanding is that it is in favour, and recently told the Health Select Committee that, unless issues of public safety are concerned, it is not in favour of extending statutory regulation to other professions within the health service, which is entirely consistent with what Ministers are saying in the Bill.

The noble Earl will not be surprised that I then want to ask why the department is still attempting to require non-doctor public health specialists to be statutorily registered. I recently asked a Written Question about that. I cannot for the life of me see that public health non-doctors pose any risk to public safety. That conviction has been reinforced by the evidence that the Professional Standards Authority for Health and Social Care, which is the overarching regulator, has now given to the Government, in which it confirms my view that minimal risks are posed by public health specialists. There is a very limited number of them. Whether they are statutorily regulated or not is not a major issue. The problem is that, by so doing, the Government are threatening the viability of a voluntary register, the UK Public Health Practitioner Register, because it depends on the fees of those non-doctor specialists for its viability. I should have thought that a voluntary register accredited by the Professional Standards Authority is just what a deregulatory approach would lend itself to.

Again, I do not expect the noble Earl to give me a response today, but I wanted to raise with him that there is considerable puzzlement that a Government who brought forward this deregulatory Bill is hell-bent—for some reason that no one can understand—on forcing a statutory approach to non-doctor public health specialists, which will put at risk a voluntary register that is entirely consistent with the deregulatory approach that the Government are taking within the Bill.

I will ask three or four questions about the noble Earl’s amendment. It arises from the issue in Staffordshire. Essentially, the services that were being run by the Mid Staffordshire foundation trust are being transferred to two other trusts: North Staffordshire and the Royal Wolverhampton, one a foundation trust and one an NHS trust. The technical amendment that the noble Earl has brought forward seems eminently reasonable in that context, but I wonder whether he would care to reflect on the process by which that has occurred. He will know of the trust’s special administrators, who were appointed to deal with the problems at Mid Staffordshire. I was very surprised that the estimated cost of that process has been between £12 million and £15 million. Can the noble Earl confirm that and say whether he really thinks that we got value for money from that process?

The second question is whether he can assure me that this new amendment will not make it easier to force through mergers without proper public consultation. Staffordshire health service has a bit of form recently. He will know that the clinical commissioning groups have made some very controversial decisions, including—I think this was announced yesterday—the outsourcing of much of their commissioning responsibility. It is notable that the CCGs are very reluctant to debate or discuss those proposals in public. We have debated Lewisham hospital in south London, which is in a special administration process, and we have had some discussion about how services in Staffordshire are to be reorganised. I have been to a number of meetings in Staffordshire and there is real concern that a lot of these major changes are taking place without adequate public consultation. For instance, in relation to services in Mid Staffordshire, assurances were given—it was called the double-lock assurance—by the Secretary of State that there would, as I understood it, be proper public involvement and support for the changes. I am not entirely sure that that has happened.

I would just like to make two further comments. As I understand it, by statute, mergers have to be approved by Monitor, the economic regulator for NHS foundation trusts—and presumably, for non-foundation trusts, by the NHS Trust Development Authority, acting on behalf of the Secretary of State. In the light of experience, does the noble Earl not think that the Secretary of State should have to give their approval to mergers even if they involve foundation trusts? I realise that this amendment is based on parent legislation that goes back further than 2006—perhaps to 2003—and that we now have a much more fragmented system than we had then.

A trust merger is not a business arrangement; essentially, what usually happens is that one trust has fallen into a great deal of trouble and has to be rescued. That will often have a dynamic impact on the services to be provided; Mid Staffordshire is a good case in point. Given that, should the Secretary of State, because of his direct accountability to Parliament, not have to sign off that merger? The noble Earl may know of Clive Efford’s Private Member’s Bill, which I think is being debated in the Commons on Friday. There is a clause in the Bill which actually says that the merger of NHS trusts or foundation trusts should require the consent of the Secretary of State, so I am sure that this is a matter to which the department will be giving consideration.

My final point is about the impact of the amendment on PFI schemes. The noble Earl has already explained about the transfer of criminal liabilities, which makes eminent sense, but let us say trust A is being acquired by trust B. As I understand it, trust B takes on the liabilities of trust A. But what happens to the indemnity that the Secretary of State has made in respect of a PFI scheme entered into by trust B? When trust A takes on trust B’s liabilities, including possibly a PFI scheme, does the Secretary of State’s indemnity also now apply to trust A? I understand that the Department of Health has said that it does not and I would be grateful for some clarity on that.

[Earl Howe]

My Lords, I am grateful to the noble Lord for his comments and questions. I shall certainly write to him on the two issues that he raised: first, in relation to the CQC and to extending statutory regulation to non-doctor public health specialists.

NHS: Funding

Debate between Earl Howe and Lord Hunt of Kings Heath

Monday 17th November 2014 Lords Chamber

[Earl Howe]

My noble friend is right to highlight the role of public health. That is why many people are encouraged that health and well-being boards, which now oversee the planning and prioritisation of healthcare in their local areas, are taking those public health goals into account and building them into the strategic health assessments. So the co-ordination of healthcare and public health is in a much better position than it was before the reforms.

[Lord Hunt of Kings Heath (Lab)]

My Lords, the Minister referred to the Better Care Fund. How does he respond to the criticisms made by the National Audit Office in the last few days? It said that the programme had poor management and hugely unrealistic expectations, and that it was not going to reduce emergency admissions. Can the Minister explain why the NAO concluded that the programme had no national leadership, limited risk analysis and no analysis of local planning capability?

[Earl Howe]

My Lords, that report is somewhat out of date. Plans have now been through the nationally consistent assurance review. The results have been published and shared with local areas, which have stated some clear ambitions. They are to have 163,000 fewer stays in A&E, to make £532 million savings for health and care services, and to have 101,000 fewer unnecessary delays spent in hospitals, along with other goals besides. We are very satisfied with progress reached in producing the Better Care Fund plans. Not all plans have been approved, but we are well on course.

NHS: Health and Social Care Act 2012 Reforms

Debate between Earl Howe and Lord Hunt of Kings Heath

Wednesday 22nd October 2014 Lords Chamber

[Lord Hunt of Kings Heath (Lab)]

My Lords, let us come back to the Question, which is about funding. If the picture was so rosy, why is it that a record number of NHS trusts and NHS foundation trusts are in deficit? If the picture was so rosy, what does the Minister have to say about the report a couple of weeks ago by the Nuffield Trust? It states:

“Prompt access to services has declined … In mental health services, demand”,

is,

“outstripping capacity for urgent care and for younger people. The wellbeing of frontline staff in both health and social care is”,

deteriorating. When he says that the Government are not ashamed of what they did, who is he speaking for? Is he really speaking for the Prime Minister and the leadership of his party?

[Earl Howe]

I am indeed and the NHS is under pressure for the reason that the noble Lord has just quoted—demand has risen dramatically. However, productivity has also risen dramatically, which it failed to do under the previous Administration.

NHS: Cancer Diagnosis and Treatment

Debate between Earl Howe and Lord Hunt of Kings Heath

Monday 13th October 2014 Lords Chamber

[Lord Hunt of Kings Heath]

To ask Her Majesty’s Government what is their assessment of the report by Cancer UK highlighting gaps in the provision of National Health Service cancer diagnostic and treatment services.

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

My Lords, there has been significant growth in the provision of cancer diagnostic tests and treatment over the course of this Government. For example, urgent GP referrals for suspected cancer have increased by more than 50% since October 2009. NHS England is taking action to support the NHS to improve performance, including establishing a cancer waiting times task force. We are investing an additional £750 million over four years to improve diagnosis and treatment of cancer.

[Lord Hunt of Kings Heath (Lab)]

My Lords, on the question of waiting times, can the noble Earl confirm that the 62-day target for cancer treatment has been breached in the last two quarters? Can he say why that is and can he confirm that it is really a result of the shambles that Mr Lansley’s changes have brought to the NHS?

[Earl Howe]

My Lords, the noble Lord is correct that although most waiting time standards are being maintained there has been a dip in the 62-day pathway standard in the last two quarters. However, survival rates are improving and we are treating a record number of NHS patients for cancer. Last year, 450,000 more patients were referred with suspected cancer than in 2009-10. That is an increase of 51%. In addition, campaigns such as Be Clear on Cancer have been exceptionally successful in raising awareness of symptoms. In large part, that is what has accounted for the pressure on the waiting time standards: in a way, the campaigns are a victim of their own success.

Learning Disabilities: Premature Deaths

Debate between Earl Howe and Lord Hunt of Kings Heath

Wednesday 30th July 2014 Lords Chamber

[Earl Howe]

My Lords, I can assure the noble Lord that there is currently a whole-system response to the recommendations in the review. As I said earlier, this is a response from NHS England, Public Health England, local organisations and, indeed, Ministers overseeing the Learning Disability Programme Board. I shall take away the noble Lord’s question about a formal annual review, consider it carefully, and write to him.

[Lord Hunt of Kings Heath (Lab)]

My Lords, does the noble Earl recognise that the confidential inquiry showed that there are great failings in the health treatment given to many people with learning disabilities, which probably contributes to their very poor life expectancy? He will be aware that my own former trust, Heart of England, appointed specialist liaison nurses who could help people with learning disabilities find a pathway through their healthcare. Would he advise other NHS trusts to follow that example?

[Earl Howe]

My Lords, the noble Lord makes a good point. Following the recommendations of the UK review of learning disabilities nursing, we have set up an independent collaborative to address that workforce’s needs. We are also working with Health Education England’s 13 local education training boards to develop greater links with the independent and voluntary sector which will help with workforce planning. This year Health Education England increased its national commissions for student learning disability nurses by 4.5%. We are working on a number of initiatives to raise the profile of learning disabilities nursing and promote the profession as an attractive career choice.

Health: Midwives

Debate between Earl Howe and Lord Hunt of Kings Heath

Tuesday 22nd July 2014 Lords Chamber

[Earl Howe]

My Lords, I do not have information on the confidential enquiry in my brief but, according to international statistics, the NHS remains one of the safest places in the world to give birth. The latest independent CQC survey found that maternity care in England has improved, with women reporting a high level of trust and confidence in the staff caring for them. I shall gladly let my noble friend know the latest that my department has on the issues she has raised.

[Lord Hunt of Kings Heath (Lab)]

My Lords, did the noble Earl see the report in the Times this morning that the Nottingham University Hospitals NHS Trust maternity unit closed 97 times in a period of 12 months due to pressure? Freedom of information requests have shown that some 62 maternity units were forced to close because of pressures in 2013. Is that not a firm indication of a shortage of midwives? Does it not show that the Government are less than active in seeking to put this right?

[Earl Howe]

It is up to commissioners to ensure that facilities are available to meet the needs of women who are due to give birth. There may be limited occasions when a maternity unit cannot safely accept more women into their care. That is why we have seen some temporary closures of units. Any decision to redirect women is made by a clinician as part of a carefully managed process. It is not something that suddenly happens. However, commissioners need to be alert to the risks for provider facilities that a bulge in births can create.

Learning Disabilities: Community-Based Support

Debate between Earl Howe and Lord Hunt of Kings Heath

Tuesday 22nd July 2014 Lords Chamber

[Lord Hunt of Kings Heath]

To ask Her Majesty’s Government what action they are taking in the light of the events at Winterbourne View hospital to ensure that people with learning disabilities inappropriately placed in hospital are able to move to community-based support.

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

My Lords, the Government are working with health and care system partners, self-advocates, family carers and other stakeholders to improve safety, quality of care and outcomes for people with learning disabilities, including reducing significantly reliance on in-patient care, by reviewing people’s care and moving them to alternative, community-based support where appropriate.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I am grateful to the noble Earl for that. Can he confirm that the Government set a deadline of 1 June for the transfer of thousands of people with learning disabilities out of institutions such as Winterbourne View? The latest figures show that only one in 10 such residents has actually been so moved. Will the noble Earl accept responsibility for this and tell the House what the Government intend to do about it?

[Earl Howe]

My Lords, the Government’s mandate for NHS England in the current year includes an objective which covers Winterbourne View concordat commitments. He is right that the deadline was missed. We are not satisfied with that and we are working very hard with NHS England to set out our expectations for progress and improved rates of discharge from in-patient settings. NHS England is going to produce an action plan this August but, in the mean time, it is doing three things. It is complying with the transforming care and Winterbourne View concordat commitments, which we have tasked it to do. It will set out what progress it expects to make and by when, with milestones, and it will provide real clarity on what success looks like—an important issue if we are trying to hold it to account—and how progress will be measured.

NHS: Ambulance Response Times

Debate between Earl Howe and Lord Hunt of Kings Heath

Monday 21st July 2014 Lords Chamber

[Earl Howe]

My Lords, I am aware of a number of those tragic cases. It is, of course, up to each response team to decide on the configuration of personnel and the skill mix on each ambulance that goes out. That judgment often has to be taken quickly. Sometimes it is a difficult judgment and, tragically, it is not always the right judgment. However, I know that every ambulance service in the country is mindful of the need to reach patients in emergencies with the greatest possible speed and the right professional skills.

[Lord Hunt of Kings Heath (Lab)]

My Lords, can the noble Earl confirm that the average waiting time for the most urgent 999 calls has lengthened in all parts of the country on average in the past three years? What are the Government doing to improve ambulance performance, and particularly could he comment on the very poor performance of the East of England Ambulance Service?

[Earl Howe]

The noble Lord is right. Ambulance trusts are experiencing high demand and we realise that a handful of services have experienced difficulty. Broadly, we are taking action in the short term and in the medium to long term. In the short term, we are supporting trusts with operational resilience plans so that they are better equipped to manage peaks in demand and we are providing clinical commissioning groups with additional funding, as I mentioned in my original Answer. Over the longer term, the NHS England review led by Sir Bruce Keogh is considering whole-system change, incorporating ambulance services.

With regard to the east of England, I met the East of England Ambulance Service NHS Trust’s chief executive, Dr Anthony Marsh, on 8 July to discuss performance since his appointment in January, and he assured me that the trust is now in recovery stage. Having seen his detailed proposals, I accept that judgment.

NHS: Hospital Waiting Times

Debate between Earl Howe and Lord Hunt of Kings Heath

Thursday 10th July 2014 Lords Chamber

[Earl Howe]

Yes, she is. I have known the new president of the royal college for some years. She is a very considerable surgeon, and I agree with what she has said. Clinical priority is the main determinant of when patients should be treated, and should remain so. Clinicians should make decisions about the patient’s treatment and patients should not experience undue delay at any stage of their referral, diagnosis, or indeed treatment. That is why we have moved away from targets to standards—to signal the importance of clinical priorities, which doctors should always feel able to act on.

[Lord Hunt of Kings Heath (Lab)]

My Lords, does the noble Earl agree that, whatever he says about targets, the previous Labour Government reduced the maximum waiting time for in-patient treatment from 18 months to 18 weeks? Was that not a substantial reduction? Is the Minister not concerned that if we take a whole raft of measurements, it shows a health service now under great pressure financially and in terms of waiting times?

[Earl Howe]

Yes, of course, the previous Government did an enormous amount to reduce waiting times. I also hope, though, that the noble Lord will give us credit for what we have done to reduce waiting times for those who have been waiting the longest, who were never targeted under the previous Government. I acknowledge that the system is under strain at the moment, but we have plans for the short, medium and long term to address that situation.

Health and Social Care Act 2012: Risk Register

Debate between Earl Howe and Lord Hunt of Kings Heath

Wednesday 9th July 2014 Lords Chamber

[Lord Hunt of Kings Heath (Lab)]

Referring to the noble Lord, Lord Marks, methinks the Lib Dems are trying to rewrite history. They underpin this dreadful change that the 2012 Act brought to the NHS and they bear responsibility for the shambles that it has caused. I am very confused by the approach of the Department of Health. It has berated the National Health Service for not being open and transparent; in fact, it published a league table of those who are good and those who are not good. The NHS bodies are required to publish risk registers, so why should it be different for the Minister’s own department?

[Earl Howe]

The Government of which the noble Lord was such a distinguished member took the same approach to risk registers. Of course, transparency is an important principle in health and care. It is important to drive up performance and expose institutional failure, and I believe there is a revolution taking place in the level of transparency and access to health and care information. I am sure we are agreed on that. The point that I sought to make earlier is that when it comes to policy-making within government, Ministers and civil servants are entitled to some safe space, so the principle of transparency has to be moderated to a certain extent. That is the balance that we have struck.

Health: Cancer

Debate between Earl Howe and Lord Hunt of Kings Heath

Wednesday 9th July 2014 Lords Chamber

[Earl Howe]

Yes, my Lords. Radiotherapy, particularly of this kind, is highly cost effective when it is clinically indicated. In fact, SABR is available in eight radiotherapy centres in England. The number of centres providing this treatment is increasing, with over a quarter having equipment capable of delivering the treatment. Current evidence supports treating only a small number of patients with this treatment: that is, in early-stage lung cancers for patients who are unsuitable for surgery. That is about only 1,000 patients a year.

[Lord Hunt of Kings Heath (Lab)]

My Lords, the noble Earl will be aware of a pledge made by the Prime Minister last October that this kind of treatment would be available to cancer patients who needed it. He will also be aware of a statement by Mr Lawrence Dallaglio, who was asked by the Government to help in this. He described it as a “national disgrace” that NHS England reneged on a deal to fund these cancer treatments. Is the noble Earl absolutely certain that the reason the number of treatments has fallen is due entirely to clinical reasons?

[Earl Howe]

Yes, my Lords: that is the advice I received. It goes hand in hand with other advice around other forms of radiotherapy treatment that are increasing very dramatically. For example, intensity-modulated radiotherapy is a similar form of radiotherapy for different types of cancer—head and neck cancers, principally. The use of that radiotherapy has grown very considerably, partly as a result of considerable investment by the current Government.

NHS: Rural General Practitioner Dispensing

Debate between Earl Howe and Lord Hunt of Kings Heath

Tuesday 8th July 2014 Lords Chamber

[Earl Howe]

My noble friend makes a good point. That is why the rules contain an exception for those who find it difficult to travel and who may therefore wish to have medicines dispensed from their own dispensing GP practice. Those rules do apply to disabled people and to those whom my noble friend describes.

[Lord Hunt of Kings Heath (Lab)]

My Lords, does the Minister not regard it as somewhat ironic that yesterday we had the Government trumpeting their Deregulation Bill but today he defends what essentially is an uneasy truce between the BMA and the pharmaceutical interest, in which often the public are the losers? Is it not time for that to be reviewed again?

[Earl Howe]

I simply ask the noble Lord why his Government introduced those rules when they were reviewed only a few years ago, before the current Administration came to office.

NHS: Better Care Fund

Debate between Earl Howe and Lord Hunt of Kings Heath

Thursday 3rd July 2014 Lords Chamber

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

My Lords, I join other noble Lords in thanking the noble Lord, Lord Kennedy of Southwark, for enabling us to consider a topic of considerable significance for patients and service users.

In every area of the country, CCGs and local authorities are now planning together to use the better care fund to transform local health and care, to improve outcomes for people and to secure the best possible value for money by pooling resources. This is one part of a wider picture of change for health and social care. We must move away from traditional models if we are to provide responsive, effective services to a changing population.

Noble Lords will remember that the need for greater integration of health and social care has long been a recognised issue. The NHS and the social care system provide some fantastic care for people when they are already experiencing acute poor health and high care needs. We must, however, get better at providing care for those with long-term, chronic conditions by keeping people as healthy and independent as possible, living in their own homes and communities for longer, and going to hospital only when they really need to for specialist medical treatment. People will be supported to return to their homes, and to independence, as soon as possible.

We are living longer now than ever before, which is obviously good news, but we do not live all our lives in good health. As people live longer, we are seeing a corresponding rise in long-term conditions that require regular treatment. A lot of this treatment currently occurs in hospitals when it does not have to. It happens because the NHS was founded to treat episodic cases of sickness in hospitals, but the needs of the people are changing and we as the Government must work with the health and social care sector to adapt.

The noble Lord, Lord Turnberg, gave us some of the statistics. ONS projections show that between 2010 and 2030 the number of people aged 85 and over will increase by 95%. This increase is equivalent to more than 1.1 million people or a local authority the size of Birmingham. By 2030, there will be more than 3 million more people than today with three or more serious, long-term conditions.

Much long-term care can be undertaken in a way that promotes independence, sometimes with family members and carers, or with the support of professionals in people’s own homes and communities. People have told us this is what they want and, yes, it is a more efficient use of resources. As I said, these truths have been recognised for some time, and this Government are the first to address it head on. There is broad consensus that greater co-ordination of health and social care services to enable this kind of home and community-based care for the majority is the right direction in which to go. The better care fund presents a real opportunity for radical change at scale and pace for people to receive the right care in the right place at the right time. Local authorities and CCGs are working together to plan and deliver this shift to a more integrated system, with resources used to best effect where they are needed most. As the noble Lord, Lord Hunt, pointed out, acute trusts should indeed be part of that work.

As my noble friend Lord Bridgeman mentioned, for the first year of the BCF, it will include £1.9 billion of the real cash increase in the NHS budget. This represents 2% of the 2013-14 NHS budget, and it is being redistributed to help fund care in non-NHS parts of the system, which will in turn help to make acute care more efficient.

The noble Lord, Lord Kennedy, asked about funding for the longer term. I cannot yet commit to a five-year plan because we have said that it is for the incoming Government to look at their priorities next year. The 2013 Autumn Statement, however, made it clear that pooled budgets would be an enduring part of the framework for health and social care past 2015-16. While the structure of the fund and the pay-for-performance elements may change as progress is made, the principle is very much here to stay.

The noble Lord, Lord Turnberg, asked a similar question about funding for health and social care generally. We will set out the funding levels for social care from 2015-16 in the future spending review but the Government have already set out their plans for changes in how social care will be funded in the future through the Dilnot reforms.

On the specific issue of winter funding, which my noble friend Lady Brinton put to me, the Department of Health is constantly looking to the future, as she may well be aware. Possible pressures on the NHS and social care are very much part of that thinking. We have considered what pressures there will be in the coming winter and I can assure her we are planning appropriately.

Leading care professionals—hospital staff, care workers, GPs and researchers—all agree on the need for resource to be put into integrating our health and social care services, so that a better service can be provided at the same cost. This will certainly involve changing the way things are currently done. The NHS model is geared toward treating people as they get ill. We must shift our approach to focus increasingly on keeping people well and providing acute care in hospitals for those who unavoidably get sick. Keeping people well and out of hospital for as long as possible, and reducing their length of stay by co-ordinating with social care, will reduce the strain on NHS acute services. It will also improve people’s experience and improve health and well-being. An integrated service would allow this to happen, and that is what the BCF has been formed to do.

The noble Lord, Lord Kennedy, asked me whether dementia will be prioritised in the BCF. Guidance on the better care fund sets out that dementia services provision can be a part of the better care fund. Many area plans already contain good examples of health and social care working better together to provide dementia services. He also asked me what seven-day social working means. It is imperative to see social care working over seven days. Too often people have to stay in hospital because they are unable to leave at the weekend. Seven-day working, which will see social care operate at the weekend, as it already does in many areas, will see people return home at the earliest opportunity.

The noble Lord, Lord Turnberg suggested that all this was about robbing Peter to pay Paul. With respect, I do not see it like that at all. This is not about taking money from one part of the system and giving it to another. The better care fund will be held jointly by CCGs and local authorities for them to decide between them how best to spend it. They will decide how to make best use of the money available across the whole care system. This provides a real opportunity to join up services and transform people’s lives, particularly vulnerable people.

As I have explained, one of the aims of the BCF is to reduce the burden on acute services caused by avoidable admissions to hospitals. The way that funding for acute services works means that hospitals receive a marginal level of funding for unplanned admissions. Using the available budget to fund better-integrated, more proactive services will help hospitals to balance their budgets by reducing the operational and financial burden created by avoidable admissions. I am sure the noble Lord will be familiar with the 30% tariff for emergency admissions above a certain threshold. All this will allow hospitals to focus on providing specialist and trauma services, for which they receive full funding so it will make them more financially viable than they would be if the current system was retained. I say to the noble Lord, Lord Hunt, that evidence suggests around a fifth of all emergency admissions are avoidable in some way. If we get it right, transforming hospital care could therefore prevent these unnecessary admissions, which can be distressing for patients, quite obviously, and are costly to the NHS.

The noble Lord, Lord Turnberg, asked me whether the Government have plans to recruit more doctors into general practice. I am sure he will know from statistics that the number of GPs has increased since 2010, but our mandate to Health Education England requires them to increase the proportion of trainee doctors going into general practice from 40% to 50%. We have also set out our ambition to increase the primary care workforce as a whole—not just doctors, but nurses and other primary care professionals—by 10,000 by 2020.

Using resources to keep people out of hospital, by improving other methods of care—social care and home care—will lead to better use of NHS services, ensuring that services are focused on people who cannot be treated at home or in the community.

That brings me to the issue raised by the noble Lord, Lord Turnberg, of the impact of the BCF on acute care. All areas need to show that they have assessed the impact of their BCF plans on the acute sector—that is, hospitals. No plan will be approved without this. They will need to show that they have considered both the operational and financial implications and how these will be—

[Lord Hunt of Kings Heath]

My Lords, I realise that the noble Earl does not have much time but can he just answer this point? Why not give the acute trusts the ability to sign up to it, or not, to prove that it will reduce capacity?

[Earl Howe]

My Lords, we are looking at ways to assure these plans, and to assure them in a way that is satisfactory to the acute sector. At the moment, I cannot tell the noble Lord precisely how that mechanism will work but his central point is well made. I hope that in due course we will be able to share some of our thinking with him. However, the key point is that acute providers must have been consulted in this process.

This sort of approach is being pursued around the country. We know that it can work. For example, a network of 14 pioneer areas around the country are currently working with central government and health sector and third sector organisations to demonstrate the logic of integration and to disseminate what they have learnt to the rest of the country. That includes data-sharing—a point raised by the noble Lord, Lord Kennedy. Areas that have made significant progress in that respect are Southend, Leeds and South Tyneside.

There are other examples, too. In Greenwich, more than £1 million has been saved from the social care budget. In addition, 64% of people who went through their new integrated care pathway required no further services upon completion of the pathway. That has helped to lead to a 50% reduction in the number of people entering full social care.

My noble friend Lord Bridgeman asked whether admissions had been taken into account in the pilot scheme. Greenwich is a good case in point. More than 2,000 patient admissions were avoided there due to immediate intervention from the joint emergency team.

In Northamptonshire, £3.5 million has been saved through prevented admissions, exceeding the target by 14%. In Leeds, children and families now experience one service supporting their health, social care and early educational needs, championing the importance of early intervention. Since the service has been in operation, the increase in face-to-face antenatal contacts has risen from 46% to 94%.

Those examples, along with many others, should demonstrate to noble Lords that the integration of our health and social services can, and indeed has been, achieved in several areas. Integration will not only preserve our ability to provide services but improve them. The better care fund exists to enable all the local areas in England to do what the pioneers and others are doing to move towards a more responsive, effective and sustainable system that makes much better use of the resources available.

Health Care and Associated Professions (Indemnity Arrangements) Order 2014

Debate between Earl Howe and Lord Hunt of Kings Heath

Monday 30th June 2014 Grand Committee

[Lord Hunt of Kings Heath (Lab)]

My Lords, I am grateful to the noble Earl for his introduction to the order, following, as he said, the Finlay Scott review. The Opposition have no argument with the principle of the order, but I want to raise with the Minister some of the practical consequences of its implementation. The Government’s consultation states that about 4,200 self-employed nurses and therapists may be required to obtain indemnity cover. For most concerned, the insurance premium is modest. The Department of Health’s consultation estimate was that for nurses the insurance premium would be £195 per annum, and for therapists between £255 and £256 per annum. There should not be a problem with those practitioners being able to pay that premium, but we run into great difficulty when it comes to independent midwives.

I take the point made by the noble Baroness, Lady Emerton, that of course the safety of the mother and baby is paramount, and her point about the issue of professional support for independent midwives. I am sure that she would recognise that for some women, the support of an independent midwife is very important to them. Sometimes the reason why a woman will turn to an independent midwife is that they find that statutory services are either not prepared to help her to have a baby at home or are less than sympathetic. It would be a great pity if, as a result of the order, that very small group of professionals was unable to practise. The RIA accepts that affordable commercial cover is not available to independent midwives working as individuals. The consultation estimates that there would be an annual cost of indemnity cover of about £15,000 per individual independent midwife. There is no way that an independent midwife is likely to be able to pay that sum.

It is fair to ask the Minister whether he considers that independent midwives will be able to practise in future as a result of the order. I take the point that the noble Baroness, Lady Brinton, made, about the benefit of this EU regulation, but what an irony that the Conservative Party, in particular, with its histrionics about Europe and the extraordinary behaviour of our Prime Minister in the past few days, is now bringing in a European order that will put independent midwives out of business. I wonder whether the Government really recognise that. They may find that independent midwives are in fact no longer able to practise, and the Government may come in for considerable criticism as a result.

I was unimpressed by the response given by Dr Dan Poulter in another place. He has been very unsympathetic to the issue of independent midwives. That is a great pity. When this order was debated in the Commons a few days ago, I thought that the government response was weak, unsympathetic and gave very little comfort indeed. It is all very well talking about social enterprises in the Wirral as if that is an answer. Clearly, that will not be an answer for many independent midwives. The impact of agreeing to the order is that independent practitioners will not be able to practise any more. Either they will be forced to come into the NHS or they will simply not be available to women in future. I would like the Minister to give his assessment of what he thinks the impact of the order will be on those independent midwives.

Having read the Commons debate, I am not clear what happens to staff who provide care, sometimes complex care, independently but who are not a member of a regulated body. What about care assistants practising independently? The Minister said that where they are employed they are covered because of the vicarious liability of the employer, but I am not clear about those practitioners in the health and care field who provide services but who are not part of a regulated profession.

As a general principle, the Opposition support the order because it is eminently sensible, but the Government could have found a more sympathetic way to help independent midwives to be able to practise in the future. I for one am fearful that, as a result of the order, they will not be able to do so.

[Earl Howe]

My Lords, I am grateful to all noble Lords who have spoken. I shall endeavour to answer all questions that have been put to me as fully as I can. To the extent that I cannot, I shall of course write to noble Lords after this debate.

The centre of attention in noble Lords’ contributions has been independent midwives. Independent Midwives UK is the body which has expressed most concern about the regulations. I am the first to say to my noble friend Lady Cumberlege that continuity of care and service in the NHS is important, and that is part of the mandate to NHS England. We fully accept the value of independent midwives. NHS England will refresh the maternity commissioning guidance to CCGs over the summer to support the plurality of providers and to help social enterprises get NHS commissions.

However, as my noble friend is aware, we are dealing here with self-employed, independent midwives. It is therefore important to look at the factors which pertain to that group of people in particular. My noble friend suggested that the order effectively puts certain independent midwives, the self-employed practitioners, out of business. I do not see it in that way at all. We recognise that self-employed independent midwives may be required to change their governance and delivery practices to comply with an indemnity policy, and it is for the individual practitioner to determine a suitable operating model under which they are able to continue to practise. Social enterprises are the obvious route to that.

The suggestion that independent midwives have not received the fullest attention from officials in my department is seriously misplaced.

Legislative Reform (Clinical Commissioning Groups) Order 2014

Debate between Earl Howe and Lord Hunt of Kings Heath

Tuesday 24th June 2014 Grand Committee

[Baroness Brinton (LD)]

My Lords, the NHS Act 2006 started us down the route of commissioning; obviously, with the updating and creating of clinical commissioning groups under the Health and Social Care Act 2012, we are still moving into fairly new territory. Inevitably, CCGs are feeling their way in the new structures, including joint working. I am pleased that the order will now legislate more formally for CCGs to work closely with each other and with NHS England, and to jointly commission where appropriate.

One of the many reports that come back to your Lordships’ House from CCGs and NHS trusts is the desire to gold-plate any system with legal advice. For example, we know that the Health and Social Care Act enabled tenders to be taken for quality and efficacy, not just on cost, as under the 2006 Act, yet we hear time and again that lawyers tell commissioners that cost is the most important point. I also welcome the issues around CCGs and National Health Service England overlapping. The Minister referred to some of those; it is also important where there is a pathway in rare diseases, where there may also be some linkages with CCGs perhaps implementing at a lower level. That will smooth the way for that to work well.

To this non-lawyer at least it seems extraordinary that CCGs could not form joint committees to commission over boundaries. This draft order now makes it crystal clear that joint commissioning and the arrangements for ratification by the separate CCGs are not just acceptable but welcome. It is encouraging to see in the accompanying notes that the consultees to this order also see it as a cost-efficient measure; I add to that smoother working systems and, most importantly, joined-up services for users of the NHS.

[Lord Hunt of Kings Heath (Lab)]

My Lords, on the face of it the order is unexceptional, although I agree with the noble Baroness that CCGs have got themselves into a ludicrous state of getting legal advice on almost everything. It is patently obvious that there are ways in which they can come together to make decisions. We also see that as regards tendering, where, despite the commitments the noble Earl made, we see CCGs absolutely panic-stricken about making a decision not to tender out services. If ever one wanted evidence of the foolishness of the arrangements we now have, it would be the kind of reaction we are seeing from CCGs.

I will ask two or three questions on the order. I noted in paragraph 4.6 of the consultation paper that the department points out that there was opposition to the proposal to enable CCGs and NHS England to form joint committees. I understand that while it is mainly about CCGs forming joint committees, they can also form a joint committee with NHS England. The necessary protection is laid out in paragraph 3.6 of the paper we received, which says that:

“The Minister considers that the proposals maintain the necessary protections. CCGs enjoy a degree of autonomy”.

I thought that they were going to be autonomous, but there we go; it has been qualified in that document. The paragraph goes on:

“To this end, NHS England is under a duty … to promote the autonomy of persons exercising functions in relation to the health service. The wording of the proposed amendment to section 14Z9 is designed to ensure that a CCG function can only be jointly exercised with NHS England where both parties are in agreement, thus preserving a CCG’s autonomy”.

I put the point to the noble Earl that if you talk to CCGs, they do not feel autonomous, because they are used to being beaten up by NHS England—receiving incessant phone calls from the local offices of NHS England—and they and the accountable officer find themselves under huge pressure when there are problems with the system. Therefore the idea that there is an equal partnership between NHS England and the CCG as regards a joint committee is simply not believable. Clearly, local area teams will use that mechanism to force CCGs into joint committees and then force decisions through. I would have thought that that is patently obvious from what is happening in the field in the National Health Service. I would be grateful to hear the noble Earl’s comment on that.

Of course, I have no problem about CCGs working together so that we can get rid of some of the current fragmentation. If we take my own patch of Birmingham, where three and a half CCGs cover the city, there is no chance, it seems, of actually having a strategy for the city which can embrace all the trusts and commissioners unless it is done jointly. I would like to hear from the noble Earl how in fact this mechanism is going to be used to encourage CCGs, which are patently too small in many areas, to come together so that we get some decent strategic planning instead of the fragmented and inadequate contracting process that so many CCGs are undertaking at the moment.

I would also like to ask the noble Earl about consultation when decisions are made by a joint committee. I assume that the consultation rights and responsibilities would apply to a joint committee as much as they do to an individual CCG but, as there is scant evidence of CCGs undertaking proper consultations, I suppose that that is not much comfort. It would be good to hear a little more about how CCGs are going to work this. I must say that after two years of this wonderful new system, I am still waiting for a letter from my CCG saying that it actually feels some form of accountability to me as an individual, but alas that letter has yet to come. From the legal cases which have been brought against some CCGs, it is clear that they do not have any sense of accountability to their local population. That is not surprising because they are membership organisations. They are owned by GP practices, which are the members of the organisation.

This morning I listened to Simon Stevens, appearing before the Public Administration Select Committee, talk about the proposal to hand over some of the contractual responsibilities of NHS England to CCGs. So, in effect, not only are the CCGs membership organisations, they are now going to be given co-power with NHS England to contract with the individual members of the organisations in relation to primary care services. I can well understand why the local area teams do not have the capability to manage the primary care contract. It was patently obvious that they were not going to do so. But what it comes back to is that the governance of CCGs is hopelessly compromised. They ought to be public bodies with much greater lay representation. If they were, we would have much more confidence in the arrangements, but they are not. They are dominated by contractors who have a vested interest in the decisions made by those clinical commissioning groups.

Finally, I turn to page 3 of the impact assessment that provides the evidence base for the supporting paper. It is implied that decisions to deal with specific funding requests might be dealt with by a joint committee. That, of course, is a euphemism for rationing services. Again, we know that some CCGs are making highly dubious decisions about restricting patient services to which NHS patients are entitled. I would like some reassurance that if the joint committee is going to do this, it will be done in public, not behind closed doors, and after full consultation. Recently I have been particularly concerned about evidence which shows that NICE technology appraisals are not being fully implemented in the National Health Service. I remind the noble Earl that it is a legal requirement for a NICE technology appraisal to be fully implemented by the NHS. Again, I would like to hear what the Government are going to do to ensure that CCGs actually play fair by the public and do not unnecessarily restrict treatments.

The order itself is unexceptional and it is supported, but I have to say that the performance of some CCGs leaves a lot to be desired. It is because of the potential of the joint committees to make major decisions that I raise some concerns today.

[Earl Howe]

My Lords, I am grateful to my noble friend and the noble Lord, Lord Hunt, for their comments and questions. My noble friend was quite right to cite the example of rare diseases and specialised services as one which will be assisted by the order before us, because while we have a mechanism for NHS England and CCGs to get together to discuss these things, we lack the ability for decisions to be taken about the whole patient pathway. This, of course, is vital when we look at the aspiration to join up services for the benefit of patients—not just the specialised care they receive in a centre of excellence, but also the follow-on care that they receive in the community. I therefore share my noble friend’s welcome for this aspect of the order.

I turn to the questions put by the noble Lord, Lord Hunt. A key plank of the Government’s reforms was to increase clinical commissioning. We do not want to depart from that, or from the principle of giving clinical autonomy to those who run clinical commissioning groups. We want to encourage them to enter into arrangements that have the buy-in not just of the local GPs, but of health professionals in their local area and the local authority. We have been clear on the need for a different splitting out of the commissioning functions—for example, to avoid CCGs commissioning individual GP practices and the conflicts of interest that may arise. The arrangements for safeguarding against conflicts of interest are still in place, but what we hear is that as organisations become more established they need a bit more flexibility to work together. In any commissioning structure, there is going to be that need and this order is about allowing those CCGs to work more efficiently. I emphasise that point about allowing them and not requiring them to do so. There is no compulsion about this. The noble Lord indicated that he felt that CCGs do not feel autonomous. I am surprised to hear that, because the arrangements that we have put in place are designed to ensure that local area teams of NHS England are there to support CCGs, not to oppress or breathe down their necks. That is my experience as I go about the health service. This is about joint working and taking decisions together in the best interests of patients.

The noble Lord asked me about transparency. CCGs are under certain duties with respect to patient involvement and transparency when they exercise their functions. Those duties would continue to apply when they exercise their functions jointly with other CCGs. The duty to consult still applies. CCGs will be under the statutory obligations as to patient and public engagements. However, it will be up to committees to agree precisely how they will work in accordance to their obligations. Some consultation responses that we received refer to committees in common that meet in public. Joint working does not have to entail working behind closed doors.

The noble Lord asked about NICE technology appraisals. He is right that some CCGs are slower than they should be under the legal provisions that pertain to adopting and commissioning approved technologies flowing from NICE. To shine a light on that, as he may know, under the Innovation Health and Wealth provisions, we have the NICE implementation collaborative, which is the mechanism designed to measure the extent to which local commissioners adopt approved technologies. The innovation scorecard is also designed to show how innovation in various forms is being rolled out and diffused across the NHS. I believe that mechanisms such as these will be enormously helpful in exposing the laggards in the system.

I hope that I have answered the noble Lord’s questions. I shall write to him if I have failed to cover any substantive point.

National Health Service: Nursing Staff

Debate between Earl Howe and Lord Hunt of Kings Heath

Monday 16th June 2014 Lords Chamber

[Earl Howe]

I agree with my noble friend. To ensure that nurses have the leadership skills, styles and behaviours that our healthcare system needs, the NHS Leadership Academy has launched the largest and most comprehensive approach to leadership development ever undertaken. More than £46 million has been invested in core programmes that will map to foundation-level, mid-level and executive-level leadership development, with two programmes specifically for nurses and midwives that started in March last year.

[Lord Hunt of Kings Heath (Lab)]

My Lords, given the answer that the Minister has just given to his noble friend, surely it is ironic that throughout the NHS the number of senior posts is actually being squeezed. Would he not agree that that runs counter to what Francis said post-Mid Staffordshire about the need for highly effective quality supervisory nurses? Is the reason why this is happening not that the NHS cannot afford to increase its nurse staffing levels with the amount of money that it has been given by the Government? Something has gone, and unfortunately it is these crucial posts that seem to be having to give way.

[Earl Howe]

My Lords, I do not agree with that because nursing numbers are now at a record high, which cannot indicate that hospitals are being starved of resources for their nurses. I do not see it as ironic that some senior posts have been reduced, bearing in mind the effect of Robert Francis’s report which has caused hospitals to increase the number of nurses on the wards. By and large, nurses at grades 7, 8 and 9 are in managerial positions and not in front-line posts.

Health: Transition to Adult Health Services

Debate between Earl Howe and Lord Hunt of Kings Heath

Wednesday 11th June 2014 Lords Chamber

[Lord Hunt of Kings Heath]

To ask Her Majesty’s Government what action they are taking to ensure the continuity of standards of care for teenagers with long-term health conditions who transfer to adult NHS services, as recommended in the Care Quality Commission report From the Pond into the Sea.

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

My Lords, our 2013 pledge to improve health outcomes for children and young people included the ambition to co-ordinate care around the individual young person with complex needs to deliver the best experience of transition to adult services. The partners to the pledge—including NHS England and Health Education England—are working to deliver this. Our mandate to NHS England calls for improvements in the way that care supports smooth transitions between children’s and adult services.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I am grateful to the noble Earl. He will know that this is a worrying report and that it would appear that young people with long-term health conditions often fall through the net when they transfer to adult services. He said that the mandate to NHS England requires it to do something about this, but can we be confident that NHS England actually will take note of what Ministers ask for? I would just refer him to the inability of NHS England to implement the Winterbourne recommendations and its failure to fund mental health services in accordance with parity of esteem. Does the mandate amount to anything at all? Too often Ministers have come to this House and said that something would be done, but nothing has actually happened.

[Earl Howe]

I think that I can reassure the noble Lord on this point. NHS England is currently developing service specifications across the range of commissioning models: specialised commissioning, CCG secondary and primary care commissioning, adolescent mental health and special educational needs, and learning disability. Those will translate examples of best practice and published outcomes into specifications for commissioning to hold providers to account for the delivery of robust transition services with measurable quality standards attached to them.

Healthcare Professions: Regulation

Debate between Earl Howe and Lord Hunt of Kings Heath

Tuesday 10th June 2014 Lords Chamber

[Lord Hunt of Kings Heath]

To ask Her Majesty’s Government what plans they have to modernise the regulatory framework for the healthcare professions.

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

My Lords, we asked the Law Commission to undertake a major review of professional regulatory legislation, which reported in April this year. The report is complex and needs thorough consideration, which we are currently undertaking. We are committed to legislating on this important issue when parliamentary time allows. In the mean time, we are already using secondary legislation to make urgent changes necessary to make sure that patients can continue to be confident they are receiving safe care.

[Lord Hunt of Kings Heath (Lab)]

My Lords, the noble Earl will recognise that the Law Commission work has been extremely valuable. The outcome is potential legislation to modernise all the regulatory bodies in the health service, which has the full support of all the regulatory bodies. The noble Earl cannot be serious in suggesting that a lack of time prevents Parliament considering that Bill. It was widely expected to be taken in this Session, and I am sure that we could come back a week or two earlier to help the noble Earl get this through. Is the real case not that the Government are so worried about their stewardship of the NHS that they dare not bring a Bill on healthcare in this Session?

[Earl Howe]

No, my Lords. We understand the frustration felt by the regulators that this has not been taken forward yet, but other government priorities have had to take precedence. That is the reality that we must accept. As I have said, we are committed to legislating on this important issue when time allows. With that in mind, we are currently working hard in consultation with key partners, including the professional regulators and patient and professional representatives, on our response to the Law Commission’s work. The complexity of that exercise cannot be overemphasised.

Independent Living Fund

Debate between Earl Howe and Lord Hunt of Kings Heath

Monday 12th May 2014 Lords Chamber

[Earl Howe]

My Lords, the provisions in the Care Bill will apply equally to everyone with care and support needs, including those who are currently receiving support from the ILF. The aim of the ILF is to support independent living for disabled people. The overarching aim of the Care Bill is to give people with care and support needs more choice and control over their lives. It focuses specifically on their well-being and the outcomes that they want to achieve, and puts them at the heart of the system. That would be my reply. There is no question of forcing people into residential care. The starting point is: what are the needs and wishes of the individuals involved, and how can care be built around those?

[Lord Hunt of Kings Heath (Lab)]

My Lords, can the noble Earl guarantee that no current recipient of the fund will lose out when money is transferred and it is the responsibility of local government? Will he tell the House why this money is not being ring-fenced? Will he acknowledge that in two recent examples of money being transferred by his department to local government—the Healthwatch budget and the public health budget—local authorities have not passed on the full amount? How will he ensure that local authorities spend that money on independent living?

[Earl Howe]

As the noble Lord knows, local government social care funding is not ring-fenced. We believe that allowing local authorities the flexibility to manage their budgets locally means that they can respond to local needs and priorities better. The Care Bill, as I have just said, will require local authorities to involve the person in the development of their care and support plan and, as far as possible, agree that with them. The person’s care and support plan may be different from their current package, but the central point is that they will be at the heart of the process to ensure that the package provides them with choice and control over their lives.

NHS England: Health and Social Care Act 2012

Debate between Earl Howe and Lord Hunt of Kings Heath

Wednesday 7th May 2014 Lords Chamber

[Lord Hunt of Kings Heath (Lab)]

My Lords, I beg leave to ask the Question standing in my name on the Order Paper and draw Members’ attention to my interests.

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

My Lords, the Government have no such plans to amend the Health and Social Care Act 2012. We believe that the power and responsibility for commissioning services should be exercised by the healthcare professionals closest to patients. That is why we legislated through the Act to establish autonomous local clinical commissioning groups supported by NHS England, an independent and accountable national body.

[Lord Hunt of Kings Heath]

My Lords, that is a pity because the 2012 Act must be the most flawed piece of health legislation there has ever been. On the question of autonomy, first, can the noble Earl tell me why CCGs are not allowed to be autonomous and why they are subject to very overbearing, day-to-day control by NHS England? Secondly, because NHS England is discriminating against the funding of mental health services and against the precept of parity of esteem, why are the Government not intervening and telling NHS England to reverse its policy?

[Earl Howe]

My Lords, I do not accept that CCGs are subject to unreasonable controls from NHS England. It is the task of NHS England to support CCGs and hold them to account, and that is what I believe it is properly doing, not least through the outcomes framework. Ministers are not intervening on the question of mental health funding because funding is just one part of the story when it comes to parity of esteem. We have set NHS England a strategic objective to make measurable progress towards achieving true parity of esteem for mental health. NHS England is responsible for allocating funds to clinical commissioning groups, which are best placed to invest in services that meet the needs of their local communities. However, we will of course hold NHS England to account for that. What we must not do is to single out certain elements of the equation at this stage.

Care Bill [HL]

Debate between Earl Howe and Lord Hunt of Kings Heath

Wednesday 7th May 2014 Lords Chamber

[Earl Howe]

My Lords, this has been an extremely helpful debate. I first pick up a point emphasised by the noble Baroness, Lady Murphy. Trust special administration is indeed a last resort, which was why I took care to spell out the other steps that we might expect to have taken place before administration is even considered. But the previous Government realised, rightly, that we have to have a mechanism in statute designed to deal with long-standing and apparently intractable situations in provider trusts—and not just to have a mechanism of that sort, but one that provides a reasonably swift resolution to the problem of significant failure.

The previous Government provided for a defined statutory timetable for the TSA process and they were absolutely right to do that. Indeed, as the noble Baroness, Lady Finlay, generously acknowledged, her own amendment, had it been accepted, would allow other affected commissioners to consult the public further about the administrator’s final recommendations. Consultation would be through the usual NHS process, taking about 12 weeks. It would fall completely outside the timetable of the trust special administrator and the net effect of such a change would be to reverse the effect of Clause 118. The administration regime would not be creating a complete and timely solution to the problem. It would render the strict legal timetable for the regime ineffective and delay what would be an uncertain resolution very significantly. I hope that noble Lords will not wish to follow that part of the noble Baroness’s amendment. I was glad to hear her say that she would not be moving it.

The noble Baroness asked me whether the committee to be chaired by Paul Burstow on the guidance will continue. Yes, it will. The Government’s commitment in relation to a committee chaired by my honourable friend to review the guidance still stands. The guidance is still important for setting out in detail how the statute should operate. The Government believe that there is significant value in advice from the committee about the guidance. She was right to say that that process should give the public and patients confidence that this is not a set of guidelines dreamt up by Ministers and civil servants on their own.

The amendment of the noble Lord, Lord Hunt of Kings Heath, suggests that the guidance should be laid before Parliament. I need hardly say that that idea falls considerably outside what is usual practice. It is not usual practice to lay statutory guidance before Parliament in the way that the amendment envisages. However, in recognition of the keen interest of parliamentarians in both Houses, we invited my honourable friend Mr Burstow MP to chair a committee of MPs and Peers to consider the guidance. I hope that that mechanism will be sufficient for the kind of buy-in from patients and the public that I have referred to, and will command confidence.

The noble Lords, Lord Turnbull and Lord Hunt of Kings Heath, referred to the situation where commissioners or providers declined to accept the administrator’s recommendation. The noble Lord, Lord Hunt of Kings Heath, asked whether a clinical commissioning group has a veto. Each commissioner of services provided by the trust under administration and affected trusts has to give agreement for the draft and final TSA reports to go forward, but NHS England has a role—which is already in statute—in deciding whether to agree the TSA reports if not all the CCGs agree. I believe that that is right. We cannot expect or oblige every CCG to agree to the TSA proposals in every single case. There has to be a way of resolving any lack of unanimity and this is the mechanism that we believe is right.

[Lord Hunt of Kings Heath]

My Lords, perhaps the noble Earl will clarify that. If we take the case of south-east London referred to earlier, the trust special administrator would have produced its report, which the Lewisham CCG would not have agreed to, and so the TSA would not have had an agreed report. I suppose the risk is that NHS England or its regional office or a combination of local area teams would none the less have said that they would process the report, even without that agreement. As the noble Lord, Lord Horam, said, the eventual outcome was actually much better than the original recommendation by the trust special administrator.

[Earl Howe]

My Lords, that last statement is a matter of opinion. We will have to see how the situation pans out. I do not want to make any judgments here and now, but I think there is a difference of view about that.

However, if one or more commissioners does not support the administrator’s recommendations, under existing legislation NHS England can still agree them, if, in its view, the recommendations achieve the objective of the trust special administration. Under our amendments, NHS England has that same role, but its decision would also be in respect of whether the recommendations harm essential NHS services at other affected trusts, and would look at both the definition of essential service and the existence of any harm. NHS England can therefore take into account the views of the commissioner which did not provide support on the basis that it felt the recommendations damaged the essential services that it commissions, and it would then decide whether the argument is convincing.

The noble Lord, Lord Turnbull, took that situation to the extreme and asked what happens if complete stalemate ensues between CCGs. In what we believe would be the unlikely event that a CCG made a decision which amounted to a failure to discharge its duties to act consistently with wider NHS imperatives, there are powers of direction by NHS England to ensure that those duties are discharged properly—but I emphasise that that would be a drastic and unexpected situation.

This regime is about ensuring that the TSA works closely with and consults formally all affected commissioners and providers so that they can input into, agree, plan for and adapt to any recommended pattern of services. CCGs must act consistently with the duty of the Secretary of State and NHS England to promote a comprehensive health service. Given that duty, we would expect CCGs to work closely and constructively with a TSA to avoid what one might call parochial decision-making and to take into account broader considerations for the delivery of publicly funded services in the interests of patients and the taxpayer.

In the end, the NHS must do the greatest good for the greatest number of people. On occasion and in exceptional circumstances, where a TSA is appointed, commissioners and providers may need to see local service change as a means of improving NHS services in the local health economy. I hope that those remarks are helpful by way of explanation and background to these amendments.

--- Later in debate ---

[Earl Howe]

My Lords, this has been a very fruitful and excellent debate. I thank all noble Lords for their contributions. Before I address the amendments in the names of the noble Lords, Lord Hunt, Lord Turnberg and Lord Owen, I hope it will be thought to be in order for me to cover some of the questions that have been raised by noble Lords.

I start with the issues raised by the noble Lord, Lord Patel, who asked me a series of questions. First, he asked about the “one strike and you’re out” intention to which I referred. We believe that this will be a criterion that the Confidentiality Advisory Group, the CAG, will take into account in its advice to the HSCIC on the dissemination of data that might be used to identify an individual, so there is already scope for flexibility and common sense within this provision. We anticipate that the transparency of the information centre’s decisions to release data, which is provided for in the 2012 Act, would provide further safeguards and reassurances that a “one strike and you’re out” rule was being used appropriately—so there is flexibility. This is one matter on which NHS England in particular will want assurance as the engagement exercise proceeds, as will Ministers.

The noble Lord asked about accredited safe havens. I can commit that the Government will consult on proposals to introduce regulations before bringing forward any new regulations that would enable greater access to data for commissioning purposes, for example through accredited safe havens. As affirmative regulations, any such changes would be subject to debate in both Houses. Will personal identifiers be excluded from the collection? The information centre will of course need identifiers in order to be able to link health and care data from different settings. That is vital if it is to become the source of linked data that all sides seem to desire. Of course, this would be with the protections set out in the 2012 Act, to ensure that the information centre could release information that could be used to identify individual patients and service users only where there is a legal basis for it to do so.

The noble Lord, Lord Patel, also asked about effective links to the patient records standards board, to define the content of patient records. Following the department’s recent review of informatics governance arrangements, it has proposed a committee that will focus specifically on information standards: the so-called SCCI. That committee has oversight of the operational framework and supporting infrastructure to enable the appraisal and approval of information standards and collection across health and care systems in England. The committee will be the mechanism by which the patient records standards board will be able to engage with the delivery community and the wider system, in order to define and gain approval for the content of patient records.

The noble Lord, Lord Patel, suggested that there should be straightforward mechanisms for the personal opt-out. NHS England’s extension period and engagement processes do allow space and time for fuller listening, engagement and debate on that vital programme. As part of the process, I understand that a wide range of stakeholders—including the BMA, medConfidential, Macmillan and indeed the noble Lord, Lord Turnberg—are invited to regular advisory group meetings with the NHS England team. Those processes will be key to helping work through how best to provide reassurance and trust in the care.data programme, not least on how best to ensure that the opt-out process will work in practice and can be clearly communicated and understood by both GPs and patients.

The noble Lord asked whether I would assure the House that no changes to the law would be made to provide for access by commissioners to this kind of data without consultation. I can give that assurance. I can commit that we will consult on proposals to introduce regulations, as I have already mentioned.

The noble Lord asked whether I could say anything about secure data labs or fume boxes for handling data. Yes, I can say a little. I understand that the information centre is working to see how best it can implement this kind of technology. It is tremendously encouraging and could offer real potential benefit from the wealth of information held by the information centre without putting people’s confidentiality at risk. That is the potential benefit.

My noble friend Lady Brinton asked about the extraction of musculoskeletal data from GP records. I understand that NHS England and the information centre are working to ensure that musculoskeletal data will be included in the GP extraction.

The noble Lord, Lord Hunt, suggested that patients should not have to go to their GP to opt out—a point that he has made to me on more than one occasion in the past. This is mostly a matter for NHS England, but GPs, as data controllers, have legal responsibilities under the Data Protection Act for ensuring that all patients are aware of how their information is being used and shared. That does not relate just to care.data but to any use of data for wider purposes. They also have professional and moral objectives to ensure that their patients are informed about the use of their data.

[Lord Hunt of Kings Heath]

I do not want to delay the House and I am grateful to the noble Earl, but he will know that there is a widespread concern about the quality of GP practices in some parts of the country. The first report of the chief inspector of primary care within CQC contained some hair-raising concerns. The idea that one of those GPs will be responsible for protecting data in those circumstances fills me with gloom and despair. Clearly, something will go wrong. If this ever gets off the ground, which I doubt in current circumstances, something will go wrong and the whole thing will collapse again.

[Earl Howe]

At the same time, if anyone is going to come up with a better solution, now is the time. I have not heard one. In all seriousness, however, all GPs are well aware of the duty of patient confidentiality. I have never met a GP who has not been aware of that and conscientious about it.

The noble Earl, Lord Erroll, took us to the subject of the proposed European general data protection regulation, which is of considerable concern to the Government. We believe that clinical research is already highly regulated in the UK, so that the interests of privacy are effectively balanced against the value to the public that the research will deliver. The data protection proposals will, as I am sure he is aware, be subject to the co-decision of the European Parliament, the Council of the European Union and the 28 member states. Officials from the Department of Health are working closely with the Ministry of Justice, which leads on the negotiations with the EU on the UK's behalf, ensuring that stakeholders are engaged on key issues such as consent, the use of pseudonymised data, and when the legitimate interests of data controllers can be applied in order to process personal data.

We have also flagged up our concerns with MEPs on specific issues, including the narrowing of the exemption from consent generally and in relation to a rigid reliance on consent or pseudonymous data in order to process data. We strongly agree that we need to take a very firm position on research within the Council and are resisting all changes that would make the use of health data for research more problematic.

I turn now to the amendments themselves. In doing so, I not only thank the noble Lords who spoke to them, but particularly thank my noble friends Lord Lester, Lord Ribeiro and Lady Brinton for their supportive comments about the Government’s amendments and the Government’s position generally.

Amendments 45E and 45F would place Dame Fiona Caldicott’s independent advisory panel on information governance on a statutory footing to provide advice on information governance across the health and care system. It would require the Secretary of State and NHS England to have regard to its advice when making directions to the Health and Social Care Information Centre under Section 254(1) of the 2012 Act. The Secretary of State would also be required to have regard to its advice when making regulations to establish an accreditation scheme for private sector information providers. The amendment would also revoke directions made to the information centre by NHS England in 2013 to implement the care.data programme and to establish data services for commissioners.

Let me say immediately that we are sympathetic to the desire to see the oversight panel placed on a statutory footing. In an area as complex and important as information governance, it is essential that we have a source of clear, authoritative advice, available to all parts of the health and care system, which creates the right conditions for informed judgments to be made on the use of information, and on decisions to share or not to share. When the Secretary of State asked Dame Fiona Caldicott to chair the Independent Information Governance Oversight Panel, it was in recognition of her extensive knowledge and experience in this area. I agree with the noble Lord, Lord Turnberg, that Dame Fiona is uniquely well placed to lead the panel in providing strong, visible leadership to the health and care sector. It is our clear intention that the panel be best supported to do this. My department continues to work closely with Dame Fiona to ensure that the panel is equipped to deliver the role it has been charged with performing.

There may well be merit in establishing the panel in law and giving legal force to its advice on data sharing. I strongly feel, however, that on this important matter, so crucial to people’s privacy and confidentiality, to the safe and efficient operation of the health and care system, and to the research agenda, it is vital that we ensure the system of oversight, scrutiny and advice is robust and coherent. I undertake that we will explore with Dame Fiona Caldicott and all interested parties how best to achieve this, which may include using existing legal powers to establish an independent committee able to advise on data-sharing matters. Dame Fiona Caldicott has confirmed that she would explore options on existing legal powers to establish an independent committee and has noted the importance of considering further and clarifying the functions of the panel before doing so. I hope that those statements, as far as they go—and they are intended to be helpful—will reassure the noble Lord, Lord Owen, and other noble Lords.

I turn now to the directions made to the HSCIC by NHS England in 2013, covering the establishment of data services for commissioners and the implementation of the care.data programme, which would be revoked by this amendment. These directions, inter alia, describe the intended operation of the patient opt-out processes in the event that a patient objects to his or her information being shared. A key focus of NHS England’s engagement activity is to ensure that the opt-out process is implemented in a way that reflects the outcome of the listening exercise, and this will need to be reflected in the new directions to the HSCIC. As there will be new directions, it is not necessary and would be inappropriate to use primary legislation to revoke the current directions.

With those assurances and with a commitment to ensure that the oversight panel is supported to deliver its objectives—including a commitment to explore using existing legal powers to establish an independent committee to advise on data sharing—I hope that the noble Lord will see fit to withdraw his amendment.

It may be helpful to address Amendments 45C and 45D together as they cover very similar ground and, I believe, have similar intent. Amendment 45C would narrow the purposes for which the information centre may disseminate anonymised and certain other information under its general dissemination power. Government Amendment 45 provides that the information centre may disseminate information under its general dissemination power only for the purposes of the provision of health care or adult social care, or for the promotion of health. This amendment would replace the latter of these purposes with “biomedical and health research”, with the effect of curtailing dissemination for any other health promotion purpose. Amendment 45D seeks to define the health promotion purposes for which the HSCIC may share anonymised and certain other information under its general dissemination power in regulations.

I understand the concerns raised by some noble Lords that government Amendment 45 would allow commercial companies—including fast food and tobacco companies, for example—to access information under this provision for commercial gain. I hope I can offer reassurance that the scope of this provision will enable us to tap the potential of the wealth of data available for research, while explicitly preventing the use of such data for purposes that will not promote health.

NHS: Mental Health Funding

Debate between Earl Howe and Lord Hunt of Kings Heath

Wednesday 2nd April 2014 Lords Chamber

[Lord Hunt of Kings Heath (Lab)]

My Lords, I beg leave to ask the Question standing in my name on the Order Paper, and refer noble Lords to my health interests.

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

My Lords, our aim is to ensure that mental health has equal priority with physical health. We have made this an objective of NHS England. The mandate of NHS England makes it clear that everyone who needs it should have timely access to the best available treatment, including in mental health services. We enshrined in law the equal status of mental and physical health in the Health and Social Care Act 2012.

[Lord Hunt of Kings Heath]

My Lords, that is all well and good, but the noble Earl knows that NHS England has not carried out the instructions in the mandate, and in the tariff for this year it has discriminated in the funding of mental health services. In our most recent debate on this, the noble Earl said that we should not worry about it because clinical commissioning groups will be heavily monitored. But the Government have no power to instruct clinical commissioning groups to make up for this rather perverse decision by NHS England. So I ask the noble Earl: will he not intervene and tell NHS England to reverse this funding policy?

[Earl Howe]

My Lords, as the noble Lord will know, the tariff for mental health services is determined locally. Having said that, we are clear that it is important that these tariffs and the priority given to mental health are scrutinised very carefully indeed, which is why my honourable friend the Minister of State for Care and Support has said he will do just that in the case of every single clinical commissioning group. If he determines that the plans are unsatisfactory, we as Ministers will work with NHS England, which we do regularly, to ensure that there is indeed that progress to parity of esteem that we all want to see throughout the country.

Health: Folic Acid Fortification

Debate between Earl Howe and Lord Hunt of Kings Heath

Wednesday 2nd April 2014 Lords Chamber

[Earl Howe]

My Lords, I note the noble Lord’s helpful suggestion but it is important that the Government take a decision on folic acid that is right for our own population, rather than anyone else’s. It is worth remembering that no other country in the European Union has taken the decision to fortify flour with folic acid. We need to do this by evaluating the risks and the benefits, as I said, based on the most up-to-date data we can get.

[Lord Hunt of Kings Heath (Lab)]

My Lords, we know that 50 countries have introduced folic acid. On the fluoridation question, the legislation is for local people and local authorities to decide, so there is a clear difference. It is clear that the Government have already briefed out that they will agree to this. We are going off on a very long Easter Recess. Joy would be unconfined if the noble Earl told us now what we know the Government have agreed to. Why does he not come clean on it?

[Earl Howe]

Because I have been told I cannot.

NHS: Bed Capacity

Debate between Earl Howe and Lord Hunt of Kings Heath

Thursday 20th March 2014 Lords Chamber

[Lord Hunt of Kings Heath (Lab)]

My Lords, I beg leave to ask the Question standing in my name on the Order Paper, and refer noble Lords to my health interests.

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

My Lords, moving patients between wards overnight should happen only for good clinical reasons, because it can be a distressing experience for them and their families. We have asked NHS England’s medical director, Sir Bruce Keogh, to write to all hospital trusts requesting that they minimise transfers that are not aimed at improving patient care. As the Government’s response to the Francis inquiry highlighted, listening to and learning from patients to improve care is a top government priority.

[Lord Hunt of Kings Heath]

My Lords, it is all very well the Minister’s telling the NHS not to do it any more, but does he agree that the real problem here is the pressure on hospital services, particularly on A&E services, which then leads to a desperate search for beds, which then causes patients to be moved in the night time, as this survey has reported? Do Ministers have a response to the more general issue of the acute pressures on our acute hospitals at the moment?

[Earl Howe]

My Lords, many hospitals have been under pressure, particularly during winter, as they always are. It is telling that if one looks at the tell-tale signs of pressure, such as bed occupancy, the rates have remained stable for a number of years. In fact we have more clinical staff on the front line, particularly in A&E, than we had a few years ago. There is no doubt that there are times when hospitals feel acutely under pressure. However, despite rising demand, average waits for assessment in A&E are around 30 minutes at the moment, compared with over 70 minutes in 2009-10.

--- Later in debate ---

[Earl Howe]

I am not aware that it is mandatory. It is certainly good practice for hospitals to inform families, just as they should inform patients. Every decision taken about the patient should be explained to that person.

[Lord Hunt of Kings Heath]

My Lords, can I come back to the point raised by my noble friend? The noble Earl will know that Monitor is requiring foundation trusts to make five-year plans ahead. My understanding is that almost all such plans made by acute trusts are predicated on reducing bed capacity in order to keep within the budgets that they are likely to have over that period. Can he assure me that as those bed numbers are reduced, community care and social care provision will increase in order to enable patients to be discharged appropriately?

[Earl Howe]

It is for that very reason that we are setting up the Better Care Fund as from April 2015, so that health and social care are more joined up, people are kept out of hospital and we can therefore safely reduce the number of beds. We have to take an all-systems approach to this; it is no good looking at one part of the system—health and social care have to be looked at together.

Health: Local Healthwatch Funding

Debate between Earl Howe and Lord Hunt of Kings Heath

Wednesday 19th March 2014 Lords Chamber

[Earl Howe]

I agree with the noble Baroness that, in the normal course of events, expenses should be reimbursed, but I say again that it is not the role of Ministers to second-guess the judgments of local authorities. We believe in local autonomy. There are plenty of other ways in which many local authorities are supporting voluntary groups in their areas apart from Healthwatch, and making a difference in that way.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I refer noble Lords to my health interests. I can hardly believe what I am hearing. Of course I understand why the noble Earl’s department does not want to tell local authorities what to do, but surely this is a question of upholding propriety in the use of public money. His department allocated more than £43 million to the DCLG to distribute to local authorities for Healthwatch. Somewhere along the line, either in the DCLG or in local authorities, someone has nicked £10 million. Does the department not want its money back?

[Earl Howe]

I do not believe that anybody has nicked £10 million, my Lords. The issue here is the one raised by the noble Lord, Lord Harris, and others: the absence of ring-fencing should not be seen as something negative. It has enabled councils to take a strategic approach to allocating their resources, in line with local needs and priorities. It has given them freedom to deploy their resources across the piece to achieve value for money. It is now, as I said earlier, up to local communities, but also local Healthwatch itself, to hold their local authority to account and thereby to demonstrate the impact that they are having, and make the case for more money if they feel that they merit it.

Mental Health: Funding

Debate between Earl Howe and Lord Hunt of Kings Heath

Tuesday 18th March 2014 Lords Chamber

[Earl Howe]

My Lords, the Government are committed to the principle of transparency in these areas. I can tell the noble Lord that last month NHS England published expenditure data from its programme budgeting data set for 2012-13 which show that expenditure on mental health in that year was £11.28 billion.

[Lord Hunt of Kings Heath (Lab)]

My Lords, the noble Earl cannot escape his own responsibility and that of his ministerial colleagues. He sets the mandate for NHS England. NHS England has specified that for the next financial year mental health trusts are to be discriminated against as compared to acute trusts. Ministers cannot evade their responsibilities. Why do they not intervene?

[Earl Howe]

My Lords, we have intervened. I have already referred to the action my honourable friend Norman Lamb has taken, making it very clear that not only would there be ministerial oversight of clinical commissioning group plans but that we would ensure that every decision made by a clinical commissioning group with regard to its mental health patients could be justified.

Alcohol: Calorie Labelling

Debate between Earl Howe and Lord Hunt of Kings Heath

Thursday 13th March 2014 Lords Chamber

[Earl Howe]

My Lords, this area is currently under scrutiny by my ministerial colleagues in the Treasury.

[Lord Hunt of Kings Heath (Lab)]

My Lords, the noble Earl mentioned the Chief Medical Officer. Did he see her comment last week that the Government ought to consider a sugar tax? What response have the Government made to their own Chief Medical Officer?

[Earl Howe]

My Lords, as I have just indicated to the noble Lord, Lord Harrison, taxation is always an instrument that Governments consider. We continue to keep the international evidence on that under review, but we think that for now the voluntary action we have put in place is delivering results. We will keep a close eye on progress but taxation is always an instrument that Governments can deploy.

Contracting Out (Local Authorities Social Services Functions) (England) Order 2014

Debate between Earl Howe and Lord Hunt of Kings Heath

Tuesday 11th March 2014 Grand Committee

[Baroness Brinton (LD)]

My Lords, it is encouraging that the results from the social work practices pilots are very positive. Phrases like “innovative”, “flexible” and “less bureaucratic” are very important to begin to change the culture in the way people work. It is also as important that the real personalisation of services is balanced by the job satisfaction of staff.

The Explanatory Notes that accompany the order are almost entirely positive. I picked up a slight nuance in the Minister’s comments. I wonder if there were any identifiable less positive or concerning features about which it might also be worth advising local authorities in how they are going to be commissioning work in the future. Apart from that, it is inevitably unfortunate that there is a short notice period that this is intended to cover, before the Care Bill comes in. At least there will not be a gap now, which is to be praised.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I should have declared on the previous order—and do on this order—my chairmanship of the Heart of England NHS Foundation Trust and that I am president of GS1 and a consultant and trainer with Cumberlege Connections. I am happy to support this order. I think it is the third time the noble Earl has been before the Committee to present such an order and, as I understand it, it is an interim measure until the Care Bill is enacted; the noble Earl has said that that is expected to be on 1 April 2015.

To pick up the point raised by the noble Baroness, Lady Brinton, I suppose it would have been helpful if we could have seen the draft of the final evaluation report at this point—it is now not going to be published until April. The noble Earl referred to some of the main findings of the draft final evaluation report from King’s College. He said that it was mainly positive although there were clearly some issues, which are identified in paragraph 7.6. Perhaps he might like to say a little more about that.

Perhaps I could also ask the noble Earl about right to control. This was considered in the previous order, and in this order a reference is made to the fact that decisions on the future of the right to control pilot scheme have yet to be made and hence no provisions are included in the new order in this regard. When we debated this on 20 November 2012, the noble Earl referred to the interim evaluation of the right to control programme, published in February 2012, which showed that disabled people were benefiting but there simply was not enough evidence to make a decision on a wider rollout. He went on to say:

“Clearly, an extension of the kind that we seek will give us more evidence. The early signs are positive but that does not provide the basis for a robust decision on permanent arrangements”.—[Official Report, 20/11/2012; col. GC 150.]

Has the department now given this further consideration? Can the noble Earl say why no decisions on the future of right to control have yet been made and when he thinks such decisions will be made?

[Earl Howe]

My Lords, I am grateful to both noble Lords for their comments and questions. They both asked whether in the draft report from King’s we found any negative advice about the results from the pilots. I think the answer is no but it is worth repeating what I alluded to in my initial remarks—that King’s commented that the success of the pilots critically depended on the quality of the contract and the relationship with the local authority. The pilots that worked best were those where those two things had been got right. However, there was nothing to negate our general policy intention to roll out the right of delegation more widely. When the evaluation is published—I, too, have not had the opportunity to have sight of it yet—I am confident that it will be helpful to local authorities looking to delegate functions and I am sure we can be grateful to the team who put the report together for a very thorough piece of work.

The noble Lord, Lord Hunt, asked me about the right to control pilots. As he will have noticed, the order before us does not cover the right to control them. The pilot finished in December 2013. It was considered that there was no need to continue the pilot, which is currently being evaluated. Unfortunately, I cannot tell him when an announcement will be made on that issue but as soon as I am made aware of the date I will be happy to inform him of it. However, we were clear that the order before the Committee today need confine itself only to the matters to which I have already referred.

Health: Midwives

Debate between Earl Howe and Lord Hunt of Kings Heath

Wednesday 5th March 2014 Lords Chamber

[Earl Howe]

My Lords, I hesitate to correct my noble friend but Independent Midwives UK submitted a business proposal to the department which would require the Government to provide a £10 million grant to support the inception of an insurance scheme for its members to provide full maternity care. We have considered two options, either of which would deliver that result. The creation of any government scheme specifically for Independent Midwives UK would effectively position the Government as the underwriter of the independent sector. That is something that we have hitherto found difficult to consider.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I refer noble Lords to my health interests. It sounds to me as though the Government are perhaps going to come up with a positive outcome. Why have independent midwives been excluded from the NHS Litigation Authority’s clinical negligence scheme for trusts? Would that not be a very straightforward way of allowing independent midwives to continue and to be regulated? Clearly, one of the big issues at stake is that, without cover, it is likely that they will not receive proper registration in the future.

[Earl Howe]

Yes, my Lords, that would be a very simple solution but it was rejected by Independent Midwives UK when it was put to it.

NHS: NICE-appraised Medicines

Debate between Earl Howe and Lord Hunt of Kings Heath

Thursday 27th February 2014 Lords Chamber

[Lord Hunt of Kings Heath (Lab)]

My Lords, I beg leave to ask the Question standing in my name on the Order Paper and I refer noble Lords to my health interests.

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

My Lords, patients have a right to drugs and treatments that have been approved by the National Institute for Health and Care Excellence that their doctor decides are appropriate for them. There can be many reasons for variation in use but we are determined to tackle unjustified variation where it exists.

[Lord Hunt of Kings Heath]

My Lords, I am grateful to the noble Earl for that response. Does he agree that one of the conclusions of the report is that there can be a tenfold variation in the take-up of innovative new medicines that have been approved under the NICE technology appraisal programme? Given that it is a legal requirement for clinical commissioning groups to fund those treatments, as I understand it, what sanctions can be taken against commissioning groups which do not fund those treatments? What can patients do in each area if they are refused such treatments? Is there a process of appeal that they can take their concerns to?

[Earl Howe]

My Lords, there is a process of appeal. Patients can go to their clinical commissioning group or, indeed, to NHS England and ask for the matter to be specially looked at. However, it is important to understand what these figures are and what they are not. They are not intended to be, and do not claim to be, a statement of whether certain drugs are being underprescribed or overprescribed in a particular area. One has to drill down into the reasons. In fact, when one does that, for most of the groups of medicines where it was possible to compare observed and predicted use, the report shows that use has increased over time, and we are introducing additional tools to allow the NHS to get to the heart of the reasons for variations in local areas.

NHS: General Practitioners

Debate between Earl Howe and Lord Hunt of Kings Heath

Wednesday 26th February 2014 Lords Chamber

[Lord Hunt of Kings Heath (Lab)]

My Lords, I beg leave to ask the Question standing in my name on the Order Paper, and refer noble Lords to my health interests in the register.

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

My Lords, the GP patient survey showed that the vast majority of patients are satisfied with their GP and rated their experience of making an appointment as good. To improve access further we have announced a £50 million fund to support GP practices in improving services and access for their patients. We have also reduced the quality and outcomes framework, the QOF, by more than a third. This will free up space for GPs to provide more personalised care. In addition, by March 2015, all practices will have the facilities to offer online appointment booking and repeat prescription services, increasing ease of access to GP services.

[Lord Hunt of Kings Heath]

My Lords, the noble Earl will know that the analysis by the Royal College of General Practitioners at the weekend showed, according to its work, that 10% of patients were finding it difficult to find an appointment with their general practitioner. Can the noble Earl tell the House what the Government are going to do about that? Does he agree that as hospitals are now moving to full seven-day working, the accessibility of primary care must be improved?

[Earl Howe]

I do agree with the noble Lord’s final comment in particular. We know that GPs are hard pressed. GP consultation rates have risen by 40% since 1995. We therefore need to take several steps to address that. One is in the medium to longer term: we need more GPs, and we have tasked Health Education England to ensure that at least 50% of medical students move to the GP specialty. In the immediate term, there are the measures that I mentioned relating to the GP contract and the £50 million fund, both of which are designed to make the use of GPs’ time a lot more productive than it is at present.

NHS: Patient Data

Debate between Earl Howe and Lord Hunt of Kings Heath

Tuesday 25th February 2014 Lords Chamber

[Earl Howe]

My Lords, I am aware of concerns around the leaflet. Many people have said that they have not received it, which is clearly a concern. NHS England, which is leading on the development of the programme, will consider how to ensure that it engages fully with stakeholders and the public over the coming weeks and months and respond to the concerns that have been raised. The Government will also be engaging with stakeholders to see what we can do from a broader perspective.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I refer noble Lords to my health interests. Is not one of the problems that if a patient wants to opt out of the system they have to go to or communicate with their general practitioner? I am sure the noble Earl will have seen the report at the weekend from the Royal College of General Practitioners that GPs are sometimes rather difficult to find. Would it not give the public more confidence if they could opt out in a straightforward way rather than have to go to see their GP and then depend on the GP to enact that in practice?

[Earl Howe]

My Lords, I cannot agree with that. The GP surgery is where the records are kept and would seem to be the natural place for patients to go. They do not have to make an appointment to do that. If they are concerned, they can write a letter or send an e-mail to the GP practice and then have a conversation later if they would like to. I do not think this is a difficult process.

Drug Companies: Medical Trials

Debate between Earl Howe and Lord Hunt of Kings Heath

Monday 24th February 2014 Lords Chamber

[Earl Howe]

My Lords, I readily acknowledge the work done by the previous Government, which makes this country probably the best prepared in the world for a flu pandemic.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I come back to the question raised by the noble Baroness, Lady Brinton. Once a medicine goes off patent it can, through generic production, remain available to members of the public for many years. The evidence seems to be that trials that give a favourable verdict are twice as likely to be published as trials giving unfavourable results. Could the noble Earl focus a little more on whether the industry can be encouraged to produce evidence around those trials in relation to current medicines as well as future ones? I also refer noble Lords to my health interest in the register.

[Earl Howe]

My Lords, it is important to point out that the MHRA does not have evidence that there is systematic or large-scale withholding of data. However, it has investigated cases in the past where clinical trials and safety data were not properly reported. The Government believe that the proposals included in the new EU clinical trials regulation will, as I said, contribute to greater transparency in the area of clinical trials. It must be remembered that any company infringing even the current rules can lay itself open to some very severe penalties.

Health: Folic Acid

Debate between Earl Howe and Lord Hunt of Kings Heath

Monday 24th February 2014 Lords Chamber

[Earl Howe]

My Lords, I recognise that this is an extremely important decision for the Government to make, affecting many people’s lives. I do not accept the implication behind the noble Lord’s question that the numbers involved in the analysis were somehow statistically invalid. I am assured that they represent a valid statistical base. We welcome all robust new evidence around the issue of fortification, such as the study published last week by the Wolfson Institute, and I can assure the noble Lord that we will take a decision on this matter as soon as possible.

[Lord Hunt of Kings Heath (Lab)]

My Lords, could the noble Earl give a little more precision as to what “as soon as possible” actually means? He referred to the study produced by the Wolfson Institute last week. Is he aware of the comments of Sir Nicholas Wald of the Wolfson Institute that it will be a public health tragedy if this country does not follow the example of the many other countries that have introduced this in a mandatory way? Is it not time that the Government simply made a decision? Indeed, they are clearly briefing to the media that they are going to make a positive decision. Why do not they just come clean and say, “We’re going to do it”, and say which date it will start from?

[Earl Howe]

My Lords, as I have explained on earlier occasions, it is very important that we use the latest data to reach a robust and defensible view of the risks and benefits on this issue. We will take the new National Diet and Nutrition Survey data on folate status into account when we do reach a decision. As for the position taken in other countries, while a number of countries have introduced mandatory fortification of flour with folic acid, others notably have decided against it, including Ireland and New Zealand.

Health: Meningitis B Vaccine

Debate between Earl Howe and Lord Hunt of Kings Heath

Monday 24th February 2014 Lords Chamber

[Earl Howe]

I can tell my noble friend that the JCVI has been considering both those issues: first, the possible need for a population-based evaluation of the MenB vaccine to address uncertainties in its effectiveness; and, secondly, what the possible effect of the MenB vaccine on the carriage of meningitis B bacteria might be. I say again that we need to wait for the JCVI’s final statement of advice to get clarity on either of those issues.

[Lord Hunt of Kings Heath (Lab)]

My Lords, of course I understand that we need to await the outcome of the Joint Committee’s further deliberations. However, following up the Question asked by my noble friend, if the committee sticks to the view that a vaccine would have a huge impact on an estimated 1,000 young people every year but still considers that that is not cost-effective, surely it calls into question the methodology that it is using. Will the noble Earl say a little more about how the Government can ensure that this methodology is put under full scrutiny?

[Earl Howe]

Last October, in recognition of concerns about the methodology currently used for assessing cost-effectiveness of vaccines, the JCVI agreed that a working group should be formed to consider two issues: first, how the impact of vaccination programmes to prevent rare diseases of high severity should be best assessed; and, secondly, whether there were aspects of cost-effectiveness in relation specifically to children that should be addressed. It is a complex issue both economically and, indeed, ethically. We should not expect a report from that group, once it has been established, until next year at the earliest.

NHS: Black and Minority Ethnic Nursing Directors

Debate between Earl Howe and Lord Hunt of Kings Heath

Monday 10th February 2014 Lords Chamber

[Earl Howe]

We have to be a little careful about doing anything that appears to look like positive discrimination or setting quotas, because we stray into areas of dubious legality if we do that. Having said that, as I have indicated, the priority of the Chief Nursing Officer is extremely clear and substantial resources have been put behind this. I pay tribute to the work that the noble Lord, Lord Crisp, did when he was NHS Chief Executive. We have picked up a lot of the ideas that he promoted at that time. I would be very disappointed if there were not progress within a few years but one has to set a realistic time horizon.

[Lord Hunt of Kings Heath]

My Lords, I refer noble Lords to my health interests. One answer to the question raised by the noble Lord, Lord Mawhinney, would be to point out that 18% of the NHS workforce in England is from a BME background and 14% of the population of England is from a BME background. As 2.6% of nursing directors comes from a BME background, that shows that there is a very long way to go. Is the Minister confident that NHS England is acting in accordance with the Equality Act? If he is not confident, what is he going to do about it?

[Earl Howe]

My Lords, just to correct the noble Lord, the latest figure I have from 2012 is that total ethnic minority groups in nursing, midwifery and health visiting comprise 19.7% of the nursing workforce. That underscores the basic point that he made. One cannot aspire to 19.7% of those ethnic nurses becoming nurse leaders because there is only a limited number of leadership posts. However, we are clear that this should be a priority for the NHS.

The answer to the noble Lord’s second question is that the Equality and Diversity Council has published some refreshed guidelines. One of its goals is to have a representative and supportive workforce throughout the NHS. It is putting that in train by asking NHS organisations to monitor their equality performance jointly with their patients, communities and staff.

NHS: Competition

Debate between Earl Howe and Lord Hunt of Kings Heath

Monday 10th February 2014 Grand Committee

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

My Lords, I join other noble Lords in thanking the noble Lord, Lord Turnberg, for tabling this topic for debate. I will begin with three simple statements, to serve as mental marker posts, as it were, before I respond to the questions that have been raised.

First, amid the many changes that we made to NHS commissioning through the Health and Social Care Act, one area of the law that has not changed one iota is the law relating to competitive tendering. That law has been in place for a number of years; it has been governed by a European directive; and, as regards the rules governing NHS procurement, the Section 75 regulations change nothing at all.

Secondly, the noble Baroness, Lady Thornton, referred to “Mr Lansley’s agenda” on privatisation. There is no government agenda to privatise NHS services—quite the contrary. We made it illegal in the Health and Social Care Act for the Secretary of State, Monitor or NHS England to have a policy deliberately favouring the independent sector.

Thirdly, the noble Lord, Lord Hunt, spoke of a deliberate policy of enforced competition and marketisation. I must correct him. It is NHS commissioners alone who will decide whether, where and how competition in service provision should be introduced. There are no obligations on commissioners to create or promote markets; nor are they required to fragment services against the interests of patients.

Those three points are key to understanding what the Government are doing and what we are not doing. I will now turn to the place and value of competition in the NHS, which has long existed. As the noble Lord, Lord Turnberg, pointed out, patients have long exercised choice over where they receive services from. I was pleased to hear the noble Lord, Lord Hunt, acknowledge that third sector and independent providers play an important part in providing NHS care; for example, in hospice care for terminally ill patients, mental health services and long-term nursing care for the frail elderly.

We have seen over the past decade the independent sector treatment centre programme and the introduction of payment by results in 2003, the advent of patient choice in 2006, and the transforming community services programme of 2008. I must point out to the noble Lord, Lord Turnberg, that it was this changing landscape that introduced greater competition to the NHS; it was not the Health and Social Care Act. There is robust evidence from a variety of sources that quality-based competition can work to the benefit of patients, and I shall come on to cite that evidence in a moment.

The previous Administration put in place a set of rules to manage that competition, known as the Principles and Rules for Co-operation and Competition, and the Government committed in their response to the NHS Future Forum report to maintain these and place them on a statutory footing so that they could continue to apply to commissioners. That is exactly what we have done; there has been absolute continuity in how the rules apply. Clinical commissioning groups work within this framework to secure the best services for patients that they can, from whichever provider best offers that prospect. In essence that is the value of this framework of rules. They will be supported in this activity by guidance from NHS England and Monitor, and through the work of commissioning support units.

The noble Baroness, Lady Thornton, asked me what I would regard as a reasonable proportion of NHS activity to be put out to tender. I have no view on this, and nor should I. The decisions on tendering are entirely up to commissioners and not Ministers. The noble Baroness also indicated that seven out of 10 NHS contracts have gone to the private sector since last April. I point out that that figure is highly misleading. It was quoted in a newspaper article, but the contracts in the sample that was quoted amount to a tiny and unrepresentative sample of the scale of NHS activity. In reality, spending on healthcare from private-sector providers equates only to around 6% of total NHS expenditure. It was roughly 5% at the end of the previous Administration.

My noble friend Lady Brinton asked whether there will be guidance from Monitor to clarify the duties on commissioners, and the noble Lord, Lord Hunt, suggested that commissioners are confused about that. Monitor has now published its guidance to support commissioners in understanding and complying with the Section 75 regulations. Monitor, along with NHS England, will undertake further engagement with commissioners to support them in understanding the requirements. I acknowledge that there is a degree of misunderstanding out there, but not everywhere. NHS England’s forthcoming procurement guidance will provide further guidance on the EU requirements.

The noble Lord, Lord Hunt, raised concerns about fragmentation and barriers to integration. To the extent that fragmentation exists, I say to him that it existed as greatly under his Government. I am proud to say that this Government are taking practical steps to make integration more commonplace throughout the country. We are supporting a number of integration pioneer sites, which will trailblaze new ideas to bring care closer together. They will be leaders of change—a change we have to see in the system if we want to offer the best-quality care.

We are also supporting the system through the £3.8 billion Better Care Fund, which will encourage organisations to act earlier to prevent people reaching crisis point, to offer seven-day services, and to deliver care that is centred on people’s needs. That idea and that fund have been widely welcomed. Therefore, our focus is for commissioners to innovate and to work with partners in the sector to design integrated care pathways for patients that allow for a seamless experience of care. I assure the Committee that the competition rules do not stand in the way of that. In fact, the Section 75 regulations explicitly allow for it.

Under the regulations, the objective of a commissioner must always be to secure the needs of patients, including through services being integrated. For example, in Milton Keynes, substance misuse services used to be delivered by several providers, resulting in fragmented care. Users found services difficult to navigate, which impacted on treatment entry and retention rates. In response to this, NHS Milton Keynes CCG and Milton Keynes Council developed an outcomes-based approach to commissioning. Existing services were brought together into one fully integrated, recovery-focused service, delivered by a third sector organisation, which enabled more effective delivery of care and efficiency savings of 15% to 20%. That is a clear example of good commissioning delivering improved services for patients.

I turn to the OFT’s role and the review of mergers. Again, it is important to realise that the NHS has long had arrangements in place to review mergers on competition grounds, and that in considering mergers the competition authorities are acting under their existing powers under the Enterprise Act 2002.

The noble Lord, Lord Turnberg, criticised Part 3 of the Health and Social Care Act. Repealing Part 3 of that Act would not remove the powers of the competition authorities. In fact, the 2012 Act was important in clarifying those powers in order to address the legal uncertainty for NHS bodies as to whether mergers between them would be considered by the OFT or the CCP. Without this clarification, providers would have been at risk of double jeopardy, with both bodies potentially seeking to undertake a review.

The noble Lord, Lord Turnberg, cited several examples of challenges being issued on competition grounds which he attributes to the existence of Part 3 of the Act. I do not want to comment on the detail of those cases—it would be wrong of me to do so—but I would point out that challenges of that kind would have been quite capable of being brought even if the Government had never introduced the Health and Social Care Bill.

[Lord Hunt of Kings Heath]

My Lords, I understand where the noble Earl is coming from in relation to the Enterprise Act. However, is it not a fact that essentially what happened was that the 2012 Act was a signal to the market that a market was being put in place? Why have a 300-page Act and why have the Section 75 competition regulations? In essence, the Government opened the door in this regard and that is why these challenges are now taking place. They did not take place before the 2012 Act.

[Earl Howe]

The market, however, did exist, which was the point that I made. The market was out there well before the 2012 Act and well before this Government came to office. It was incumbent on us to clarify and simplify the rules that the previous Government put in place. We did that through Part 3 of the Act. It was not a signal to anybody to marketise the NHS. Indeed, as I said, we explicitly provided for it to be illegal for Ministers or Monitor to prefer the independent sector over public sector providers. That is explicit in the Act, so the noble Lord cannot accuse the Government of enabling legislation to promote marketisation.

NHS: Seven-day Working

Debate between Earl Howe and Lord Hunt of Kings Heath

Thursday 6th February 2014 Lords Chamber

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

My Lords, I congratulate my noble friend Lord Ribeiro on securing a debate on this important issue. I know that as a former consultant surgeon and former president of the Royal College of Surgeons this is a subject in which he takes a great deal of interest. I also take this opportunity to pay tribute to the work done on seven-day services by NHS England, the NHS Services Seven Days a Week forum, the Academy of Royal Medical Colleges and the Royal College of Surgeons, among others.

The historical five-day service model offered in many NHS hospitals no longer meets justifiable patient and public expectations of a safe, efficient, effective and responsive service. I very much echo the comments of the noble Lord, Lord Parekh, in that context. Over the past 10 years, a growing body of national and international evidence has emerged that links poor outcomes, including a higher risk of death, to patients admitted to hospital at the weekend, around the world. It is impractical and inefficient to continue to operate a five-day approach when our illnesses and conditions do not limit themselves to office hours. Patients are entitled to receive the same standard of care regardless of the day of the week.

As the largest and most comprehensive health service in the world, the NHS is well positioned to solve the issue of poorer outcomes and reduced levels of service provision at the weekend. That is why NHS England has set out a vision for the NHS which is of a service more closely organised around the lives of the public it serves. To develop this vision, NHS England established the NHS Services Seven Days a Week forum in February last year to consider how NHS services can be improved to provide a more responsive and patient-centred service across the seven-day week.

The forum’s work has been met with nothing but positive feedback and support from the public and patients, the Academy of Medical Royal Colleges and the British Medical Association, among other organisations. The immediate focus for improvement activity will be addressing the need for high-quality urgent and emergency care services, seven days a week. NHS England is also looking to make similar improvements across primary and community health services and social care, and the forum will report in autumn this year, setting out proposals for the creation of a fully integrated service. NHS England’s ambition is for seven-day services to be fully implemented in England by the end of 2016-17.

I recognise that we cannot talk about the idea of seven-day services without giving full consideration to questions of staffing and finance; many noble Lords have raised those issues. NHS providers and their commissioners already face difficult choices when deciding where to invest their resources in order to maximise the outcomes for patients and value for taxpayers. Early indications are that seven-day services have the potential to be part of the solution. However, more information is needed. NHS England is therefore conducting research which will provide a helpful indication of the likely costs providers and commissioners face when considering how to redesign their services to provide comprehensive seven-day care. In addition, to answer my noble friend Lady Brinton, NHS England intends to commission financial and system modelling and analysis of the implications of its strategy for achieving seven-day service provision in the NHS.

My noble friend Lord Ribeiro rightly highlighted the workforce implications of having a consistent, high-quality service seven days a week. The department, alongside NHS England, Health Education England, NHS Employers and a number of strategic partners, is considering that very issue. Its analysis is considering issues such as junior doctors feeling unsupported during weekend working and the resulting need to ensure that education contracts include appropriate seven-day senior supervision; and numbers of diagnostic and scientific staff, with NHS England intending to undertake a thorough assessment of the different roles needed in diagnostic and scientific services to support an extended service.

Of course, many commissioners and providers will need support to address the challenges presented by seven-day services. To that end, NHS Improving Quality has just introduced a new, large-scale transformation change programme, set up in collaboration with all healthcare commissioners and providers, to support the spread of seven-day services over a three-year period.

I realise that the move towards seven-day care will not be easy, but there are encouraging examples of pioneering NHS organisations that have moved to make healthcare services more accessible seven days a week to avoid compromising safety and patient experience. For example, Sheffield Teaching Hospitals NHS Foundation Trust has adopted seven-day service provision, improving patient flow of frail and older people through the emergency pathway. Bed occupancy for emergency care for older patients has now reduced by more than 60 beds. Other examples in my brief include Salisbury District Hospital and the Lancashire Intermediate Support Team, both of which have produced impressive results.

We know that across the country, more hospitals, primary and community care organisations and social care services are working together to break the link between poorer outcomes for patients and the reduced level of service provision at the weekend. We also know that patients and the public want us to act now to make seven-day services a reality in all parts of our NHS.

A number of noble Lords, including my noble friend Lord Ribeiro and the noble Lords, Lord Parekh and Lord Hunt of Kings Heath, raised the issue of cost. Interestingly, there is already evidence that seven-day services can be implemented in a way that does not increase the overall cost of healthcare. The average cost of implementation at trusts pioneering the service was 1.5% to 2% of their total income. Costs vary according to local service models, but research shows that they can be reduced by reconfiguring services and by trusts working collaboratively. Seven-day services at the front end—that is to say, A&E departments—could also pay for themselves by reducing admissions and lengths of stay.

Seven-day services would not work under a one size fits all model—a point made by my noble friend Lord Ribeiro. Local solutions need to be found and pioneering NHS providers and commissioners are already working to develop them.

In answer to the noble Baroness, Lady Masham, on the issue of safety at weekends, we expect all NHS services to be able to meet patients’ needs as they arise. To do this, trusts should adopt the clinical standards developed by the seven-day services forum to drive up clinical outcomes and improve patient experience at weekends.

My noble friend Lady Manzoor referred to the CQC. The CQC and the Chief Inspector of Hospitals are considering how implementation of the clinical standards could best be assessed by the CQC and how this might be reflected in its forthcoming ratings and the judgments it makes when it inspects.

As I said, workforce is a major issue. The noble Baroness, Lady Masham, was right to raise that point. There are over 12,200 more clinical staff in the NHS than there were before the election, thanks to the money we have invested in the service and to the reforms we have carried out. Nevertheless, there is an issue about motivating staff to work at weekends, as the noble Baroness rightly said. We understand that contractual levers and incentives are required to drive change. NHS England and a number of key strategic partners are already looking into this. However, in many cases seven-day services have reportedly already had a positive impact on individuals’ work-life balance, offering greater certainty in planning ahead and flexibility in time off. In addition, the medical royal colleges are all in support of seven-day services. Building seven-day service provision into recruitment, job planning and appraisal processes will help create a sense of common purpose to underpin organisational delivery.

A number of noble Lords, including my noble friends Lord Ribeiro and Lady Barker, referred to the role of GPs. To address that important role in the mix of services the NHS provides, we recently announced the setting up of a £50 million fund to support innovative GP practices in improving services, and in particular access for their patients, including seven-day week access and evening opening hours and the testing of a variety of services including Skype, e-mail and phone consultations.

However, as the noble Lord, Lord Hunt of Kings Heath, emphasised—as did my noble friend Lady Barker—community services and social care are absolutely integral to this as well, particularly when it comes to the care of the frail elderly. Social care and the NHS are priorities for the Government and we know that there is interdependency between the two systems. However, providing more resources is not enough on its own. We have provided more resources from the Department of Health but we need to do more. NHS England is currently working with the Local Government Association to create a health and social care system that is truly seamless so that people receive the right care at the right time and in the right place. The Seven Days a Week forum will report on that work in the autumn, setting out proposals for a fully integrated service.

The Better Care Fund is a key enabler for change, as my noble friend Lady Manzoor pointed out. As part of the process for accessing funding, clinical commissioning groups and local authorities will have to demonstrate, as part of agreed local plans, that they are addressing a number of national conditions, including seven-day services in health and social care.

The noble Lord, Lord Warner, asked whether the Government would expect A&E departments to have weekend consultant cover. We recognise that the consultant contract is a key enabler of seven-day services. In October last year the Government mandated NHS Employers to enter into formal negotiations with the BMA to deliver joint proposals for consultant contract reform, including changes that will support seven-day services.

My noble friend Lord Bridgeman focused on the working time directive. He may know that we asked the president of the Royal College of Surgeons, Professor Norman Williams, to chair an independent task force to look at the implementation of the working time directive, and the impact of the directive on the delivery of patient care and the training of the next generation of doctors. The independent review will provide its report during March 2014. Professor Williams is working with stakeholders from the Royal College of Surgeons, NHS organisations, the BMA, National Voices and others, and we ourselves are working with the task force to ensure that it has appropriate legal and analytical support.

There is a compelling case for healthcare services to be accessible seven days a week. To echo the noble Lord, Lord Parekh, if we were starting the NHS from scratch I very much doubt whether we would design a part-time system. We would surely create a seven-day service to better meet patients’ needs. Seven-day service provision is about equitable access, care and treatment, regardless of the day of the week. It is a cause for some pride that the NHS will be the global pioneer in providing equality of access to consistent, high-quality healthcare seven days a week.

[Lord Hunt of Kings Heath]

My Lords, before the noble Earl sits down, I was remiss in not declaring my interests at the start as chair of a foundation trust, president of GS1 and a consultant trainer with Cumberlege Connections. I know that we all know that, but I have to do it every time.

NHS Property Services Ltd

Debate between Earl Howe and Lord Hunt of Kings Heath

Thursday 30th January 2014 Lords Chamber

[Earl Howe]

My Lords, I am not aware of the detail of that particular case, but I will gladly write to my noble friend about it.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I refer noble Lords to my interests in the register; I should have done that yesterday on another health Question, for which I apologise to the House. Can the Minister confirm that the chairman of this organisation resigned early, that capital money was raided to cover a revenue shortfall and that, only months after the organisation formally started, an investigation has been mounted by the National Audit Office? Given that the shares in this company are owned by Ministers, will Ministers take responsibility and can the noble Earl confirm that this was forecast in the NHS risk register, which the Government have not yet published?

NHS: Cancer Treatment

Debate between Earl Howe and Lord Hunt of Kings Heath

Wednesday 29th January 2014 Lords Chamber

[Earl Howe]

My Lords, I am with the noble Baroness all the way in wishing to see your Lordships live a healthy and long life but, as regards the population generally, I hope that I have made clear the Government’s determination to see that all citizens of this country receive treatment according to their ability to benefit from it.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I am sure we are all with the noble Baroness in those sentiments. Can I refer the noble Earl back to the research that my noble friend referred to? The report seems to show that survival rates for cancer patients over the age of 75 are very poor in this country compared with other European countries. The noble Earl has said that he will ensure that action is taken through the mandate to NHS England. Should he not give instructions to clinical commissioning groups to start commissioning cancer services with no age discrimination?

[Earl Howe]

My Lords, commissioning is an important ingredient in this, but there is a range of actions that we can take and have taken. We know that low levels of awareness and late diagnosis are particular problems for older patients, so it is welcome news that Public Health England is to run a national campaign to raise awareness of breast cancer in women over the age of 70. We are also raising the screening age for breast cancer to include women aged 71 to 73, and the extension of the NHS bowel cancer screening programme to men and women aged 74 is now complete.

Children and Families Bill

Debate between Earl Howe and Lord Hunt of Kings Heath

Wednesday 29th January 2014 Lords Chamber

[Earl Howe]

My Lords, this has been a fascinating and very helpful debate and I am very pleased with the support that I have heard for the government amendments on standardised packaging. I would like, if I may, to commend noble Lords for their continued work in supporting tobacco control. We all want to drive down rates of smoking in this country and, in particular, to stop young people from taking up smoking in the first place. Let me address the points on standardised packaging first.

The noble Baroness, Lady Finlay, the noble Lord, Lord Faulkner, and my noble friends Lady Tyler and Lord McColl tabled a revised amendment following discussion in Grand Committee, and I see that they reflected the comments that I made in redrafting it. I particularly welcome their support for the Government’s amendments and can reassure them that our amendments would achieve all of the things that they seek to do.

My noble friend Lord Naseby raised a number of legal issues. I would like to reassure him that we have given very careful consideration to the legal situation. We believe that the government amendment gives us sufficient room to proceed with the regulations, should we choose to do so, and introduce standardised packaging, if that is what is decided. He queried the fact that the amendment is drafted in such a way that the devolved Administrations and Assemblies have to give consent, but it is the Secretary of State and not Parliament who gives consent in England. We do of course want Parliament to have a say, which is why we have introduced Amendment 63B to make the regulations subject to the affirmative procedure.

The noble Lord, Lord Stoddart—whose robust state of health I very much welcome—indicated that there has been no proper consultation on standardised packaging. In fact, in 2012 the Government ran a full public consultation and received almost 2,500 substantive responses and well over half a million postcard and petition responses. The consultation asked 15 specific questions and invited comments on the consultation stage impact assessment, which was also published. So it was a very thorough exercise.

The noble Lord, Lord Stoddart, suggested that this was the thin end of the wedge, if I can put it that way, and might herald similar measures in relation to junk food. I think we need to remember that tobacco is a uniquely harmful consumer good. Tobacco kills one in two long-term smokers. There is no safe level of smoking. That is why we have a range of specific legislation and an international treaty around tobacco control.

My noble friend Lord Naseby referred to illicit tobacco. We received a wide range of responses to the question in the consultation on illicit tobacco. They are summarised in the consultation report. In 2000, around 21% of the UK cigarette market was illicit. The latest estimate from HMRC, for 2012-13, is that this has dropped to around 9%. It is too high, I concede, but we are heading in a positive direction.

The noble Baroness, Lady Howarth, asked about the timetable for the regulations. I emphasise here that I do not want to pre-empt any decision that the Government may make on whether to proceed with standardised tobacco packaging, and I know that the noble Baroness understands that; but equally for that reason, it would be premature to set out a detailed timetable. What I can confirm is that the regulations would be subject to the affirmative procedure to ensure an appropriate opportunity for parliamentary scrutiny in both Houses. She may like to be aware that before being laid in Parliament, any draft regulation that seeks to regulate tobacco packaging would need to be notified to the European Commission and member states. There is a process that goes with that, which would mean that we would not be able to lay regulations instantly after taking a positive decision. I am happy, however, to reiterate the Government’s commitment to make a decision quickly when we receive Sir Cyril Chantler’s independent report. Tabling these amendments is, I hope, evidence of our commitment to act without delay if we decide to go ahead. But the Government, as I am sure she appreciates, must rightly consider the wider issues raised by this policy, and I can assure her that we will do so.

I can understand the intention of the noble Lord, Lord Hunt, in tabling both of his amendments, Amendments 57BA and 61, which seek to compel Ministers to introduce standardised packaging. However, I am sure that he will not be surprised to hear me say that we cannot accept provisions that tie our hands in this way. One of the amendments imposes an arbitrary timetable for government action, and both pre-empt Ministers’ proper and careful decision-making, involving consideration of all the relevant issues. Litigation by the tobacco industry is always a risk when introducing tobacco control legislation. Indeed, the World Health Organisation says that one of the six main forms of tobacco industry interference in public health is the intimidation of Governments with litigation or the threat of litigation. Government must have time and space to give proper consideration to the wider issues raised by standardised packaging of tobacco, and demonstrate that it has done so. Doing so will also reduce the risk of successful litigation. I do appreciate the desire to go faster but we must follow the proper decision-making process to enable us to arrive at the right policy decision. It is right that we should wait for Sir Cyril’s report. Once we do, I say again, we will make a decision quickly.

The noble Lord, Lord Hunt, asked me to put on the record that we will definitely introduce the regulations should the case be made and should we be persuaded of the case that Sir Cyril presents. I hope that I have been clear about that. I will repeat the comments made by my honourable friend the Minister for Public Health when she announced the review:

“The Government will introduce standardised tobacco packaging if, following the review and consideration of the wider issues raised by this policy, we are satisfied that there are sufficient grounds to proceed, including public health benefit”.—[Official Report, 28/11/13; col. WS 96.]

I thank the noble Lord, Lord Faulkner, the noble Baroness, Lady Finlay, and my noble friends Lady Tyler and Lord McColl for having made clear their intention not to press their amendment on standardised packaging. I hope that the noble Baroness, Lady Hughes, and the noble Lord, Lord Hunt, will do the same with theirs.

I turn to smoking in cars. Since we considered the issue at the previous stage of the Bill, I have met a number of noble Lords who support the idea of legislating to stop smoking in cars with children present. I have also listened very carefully to the debate as it has proceeded this afternoon. One thing is clear from those meetings and the debate—we all want to eradicate smoking in cars carrying children. None of us wants to see children continuing to be exposed to harmful second-hand smoke, whether in the home or the family car. However, although we agree on the destination, I have to acknowledge that there are differing views on the most effective route. As your Lordships will know, the Government believe that encouraging positive and lasting behaviour change by making smokers aware of the significant health risks of second-hand smoke will be more effective than resorting to the use of legislation—which is of course a blunt instrument—to tackle the problem. I believe very clearly that we should consider resorting to the use of legislation only if our work to promote positive changes in behaviour is shown not to have had the desired effect.

When we debated this issue in Grand Committee, a good deal of time was spent considering the practicalities of enforcing an offence of smoking in cars carrying children. I do not propose to rehearse those arguments in detail again today. Nevertheless, I want to encourage your Lordships to reflect on just how difficult it would be to enforce such a provision. My noble friend Lord Cormack referred to this. In my view, there would be substantial challenges in enforcing any such legislation, particularly with respect to vehicles travelling at speed. Currently, local authorities enforce smoke-free legislation, but they do not have the powers or the means to require moving vehicles to pull over. We would need therefore to set up a complex and probably resource-intensive enforcement regime, which would need to involve the police. These remaining questions of how to achieve effective enforcement undermine the credibility of the measures that have been proposed. If it were known that there was little chance of enforcement action, I have to ask whether individuals would comply with the law.

[Lord Hunt of Kings Heath]

I am most grateful to the noble Earl. Would he accept that my amendment has been drafted in a way that allows your Lordships to vote on the principle but then allows for work to be done, hopefully cross-party, and for the Government to bring in regulations, during which some of these matters could be talked out thoroughly?

[Earl Howe]

I have noted the way the noble Lord’s amendment has been drafted. However, we need to be very careful before accepting it, for the reasons that I am explaining now. One of the points made about enforcement was that we could make a useful comparison with seat-belt legislation. I understand why that comparison has been made but it needs to be borne in mind that we are not comparing like with like. Seat-belt legislation is a road safety measure which is properly enforced by the police; smoking in cars is a public health matter and the police have no public health role or functions. That is part of the reason that the issue is so complex. Before launching into the kind of amendment that the noble Lord, Lord Hunt, invites us to accept, we need to take stock of these questions. There is no point in putting something on the statute book if it is impractical to implement.

Health: Confidential Patient Information

Debate between Earl Howe and Lord Hunt of Kings Heath

Thursday 23rd January 2014 Lords Chamber

[Lord Hunt of Kings Heath (Lab)]

My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I refer noble Lords to my interests in the register.

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

My Lords, while we have concerns about the EU proposals, there has been no cause to conduct an assessment of the sort suggested at this stage. The Government do not sell confidential patient information to companies. Drug and insurance companies can receive patient confidential information only where they have a legal gateway, either consent of the patient or some form of statutory authority. In these circumstances the cost of providing information may be recovered, but it is not sold.

[Lord Hunt of Kings Heath]

My Lords, clearly there is great advantage in using patient research in large-scale research projects. However, can the noble Earl assure the House that patient confidentiality can be assured? Also, is it right that projects such as the UK Biobank could be put in jeopardy were the proposed European legislation to be enacted in its current draft form?

[Earl Howe]

My Lords, under the 2012 Act, the Health and Social Care Information Centre cannot release data that could be used to identify an individual without a legal basis to do so. As a result, there are strict controls about how such information is released. As regards the UK Biobank, the noble Lord is right to be concerned because the proposed text from the so-called LIBE committee would rule out the work of the UK Biobank, in that it would need explicit and time-limited consent for any research project that it undertook, instead of being able to support a range of research purposes, as it now can, using its existing consenting mechanism. So there is cause for concern if this text is adopted, but that is not yet clear.

Health: Flour Fortification

Debate between Earl Howe and Lord Hunt of Kings Heath

Tuesday 21st January 2014 Lords Chamber

[Earl Howe]

I am sure the noble Lord would agree that we have to take a decision based on the most up-to-date data. The data that we had prior to this were 10 years old and it is important to take a decision in the context of the nutritional state of health of the population. On his first question, all I can say is that the risk to which I referred was considered as part of SACN’s overall assessment and we will draw on that in reaching our decisions on the fortification of flour and give it the appropriate weight that it deserves.

[Lord Hunt of Kings Heath (Lab)]

My Lords, on the issue of up-to-date information, as the noble Lord, Lord Rooker, has said, we now have the Wolfson study, which actually leads that organisation to recommend that all countries should introduce folic acid fortification. The Government already have the recommendation of the Scientific Advisory Committee on Nutrition for mandatory fortification. Yes, it says it should be accompanied by actions to restrict voluntary fortification of food with folic acid for the reasons to which noble Lords have already referred. Why on earth are the Government delaying action on this?

[Earl Howe]

My Lords, I can only repeat what I said before, which was that taking this step would be a major step by any standards. We must base it on a proper assessment of the risks and benefits. We have some excellent advice from SACN and we need to evaluate that advice fully before taking a decision.

Public Health Responsibility Deal

Debate between Earl Howe and Lord Hunt of Kings Heath

Tuesday 14th January 2014 Lords Chamber

[Earl Howe]

My Lords, we should welcome any measure that encourages us all to improve our diet, to reduce physical inactivity and to be aware of what we need to do to keep our weight under control. I do welcome that letter.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I hope that the noble Earl will encourage his own noble colleagues to look at themselves in the mirror in the light of that unwarranted attack on my own Benches. Perhaps I can just refer the noble Earl to the report of the National Obesity Forum yesterday, which suggested that, on one of the worst-case scenarios, more than half of the population of this country will be obese by 2050. Does he not think that the volunteer approach may no longer be appropriate? Do the Government not have to take a greater lead on this?

[Earl Howe]

My Lords, there are certainly no grounds for complacency on obesity levels throughout the nation. However, the current data do not support the claim by the National Obesity Forum. In 2007, the Foresight team projected that, based on data from 1993-2004, more than half the population could be obese by 2050 if no action is taken. An analysis based on recent data suggests a flatter trend than the one projected by the Foresight team. I do not agree that we should belittle the responsibility deal. It has many worthwhile achievements to its credit and they are being added to month by month.

Health: Birth Defects

Debate between Earl Howe and Lord Hunt of Kings Heath

Wednesday 18th December 2013 Lords Chamber

[Earl Howe]

My Lords, I recognise the opinion that is shared among many members of the medical community on this. However, the advice we received from SACN, our expert adviser, clearly showed that there are risks and benefits associated with this proposal. It is not an open-and-shut case. Among the things that we have had to consider are the practical implications of implementing SACN’s advice, which is no small matter.

[Lord Hunt of Kings Heath (Lab)]

My Lords, does the noble Earl not recognise that in fact the scientific committee he referred to has looked at the issue that he raised and has upheld its previous recommendation that the Government should go ahead? Some 50 countries have already done that; the scientific advice is clear; why on earth are the Government not getting on with it?

[Earl Howe]

My Lords, as I said, SACN’s recommendations highlighted both the risks and the benefits of this proposal—and I certainly acknowledge that there would be benefits. However, there are also implications. For example, SACN recommended that mandatory fortification should proceed only if accompanied by:

“Action to restrict voluntary fortification of foods with folic acid; measures for careful monitoring of emerging evidence on any adverse effects of long-term exposure to intakes of folic acid … and guidance on supplement use for particular population groups”.

We have to take those recommendations into account before taking any long-term decision.

Health and Social Care Act 2012: Risk Register

Debate between Earl Howe and Lord Hunt of Kings Heath

Wednesday 4th December 2013 Lords Chamber

[Earl Howe]

My Lords, the risk register, as the noble Lord knows, is simply a tool that records the risk assessment process and the actions that need to be taken to mitigate those risks. However, to be effective, the process has to be robust and consider all likely implications—and indeed some that are not so likely—of a proposed course of action. The candid recording of risks enables them to be effectively managed. However, as the noble Lord knows, we have gone as far as we can in publishing the areas of risk that are contained within the risk register. I remind the noble Lord that in 2012 we published an extensive document that set out quite a lot of detail. That document is still available on the department’s website.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I refer noble Lords to my health interests. To return to the Question asked by my noble friend, is it not a fact that officials warned Ministers that they would be introducing a shambolic reform of the health service? Those officials, much-maligned by the noble Lord’s ministerial colleagues, have been proved to be absolutely right. As we are all looking forward to the new musical by the noble Lord, Lord Lloyd-Webber, can the noble Earl tell me which will be published first: the full Profumo papers or the noble Earl’s risk register?

[Earl Howe]

My Lords, I do not accept the noble Lord’s description of the transition, which has gone extremely smoothly. By most measures the NHS is performing very well indeed. Waiting times are low and stable, the number of people waiting more than 12 months has plummeted since 2010, hospital-acquired infections are at an all-time recorded low, we have more doctors and healthcare professionals in the system, and mixed-sex accommodation has been reduced to minimal levels. That does not indicate to me that the reforms have had a damaging effect—quite the reverse.

NHS: Clinical Commissioning Groups

Debate between Earl Howe and Lord Hunt of Kings Heath

Wednesday 27th November 2013 Lords Chamber

[Lord Hunt of Kings Heath (Lab)]

My Lords, I beg leave to ask the Question standing in my name on the Order Paper and refer noble Lords to my health interests in the register.

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

My Lords, the Government have been discussing health funding, including progress on the fundamental review of allocations, at regular accountability meetings with NHS England. This NHS England-led review began in December 2012. The independent Advisory Committee on Resource Allocation, ACRA, is providing advice on changes to the formula. NHS England will consider ACRA’s recommendations. Initial views should be available to inform 2014-15 allocations.

[Lord Hunt of Kings Heath]

My Lords, my understanding of the formula is that it would move resources from areas where people have worse health outcomes to areas where they have better health outcomes. The noble Earl has said that he and his ministerial colleagues are in discussion with NHS England. Can he confirm that this is a decision for NHS England? If that is so, what is the nature of the discussion that has taken place between Ministers and NHS England? Is it being left to NHS England to decide?

[Earl Howe]

My Lords, very definitely yes. It is precisely to avoid any perception of political interference that we made NHS England responsible for the allocation of resources to clinical commissioning groups. However, we were very specific in the mandate, as the noble Lord will recall, that the principle on which NHS England has to operate is equal access for equal need, with particular attention being paid to health inequalities while not destabilising the NHS. Those are the things we discuss in our regular meetings with NHS England but the actual nature of the formula that it will decide in its board meeting next month is entirely up to it.

--- Later in debate ---

[Earl Howe]

My Lords, ACRA has recommended that CCG mental health services allocations should be set using the same overall approach as that for other hospital and community health services. That means that a large part of the allocation is linked to the diagnoses reported for people registered with each GP. That makes the formula very sensitive to need. It has the potential to improve the way we allocate resources for mental health services, in particular.

[Lord Hunt of Kings Heath]

My Lords, will the noble Earl arrange for NHS England to meet interested parliamentarians before it takes its decision at the meeting next month?

[Earl Howe]

My Lords, I will certainly feed that request back to NHS England.

NHS: Accident and Emergency Units

Debate between Earl Howe and Lord Hunt of Kings Heath

Tuesday 26th November 2013 Lords Chamber

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

My Lords, I join other noble Lords in thanking the noble Baroness, Lady McDonagh, for raising this important issue, in which I know that she has a significant interest. I thank other noble Lords who have contributed to this very interesting debate.

I would like to respond initially by explaining the Government’s policy with regard to service change in general, before moving on to the provision of care in A&E specifically. I find it difficult to say much about the noble Baroness’s speech beyond observing that there is such a gulf separating us in our respective understanding of the facts and what is actually happening in the NHS that I shall have to write to her—and I shall do so.

The Government are absolutely clear that the design of front-line health services, including accident and emergency units, is a matter for the local NHS. It is the policy of this Government that services should be tailored to meet the needs of the local population. Reconfiguration is about modernising the delivery of care and facilities to improve patient outcomes, develop services closer to home and, most importantly, to save lives. Therefore, all service changes should be led by clinicians, and be in the best interests of patients, not driven from the top down. That is why we are putting patients, carers and local communities at the heart of the NHS, shifting decision-making as close as possible to individual patients, by devolving power to professionals and providers, and liberating them from top-down control.

[Lord Hunt of Kings Heath]

My Lords, if that is so, why has NHS England put so much pressure on clinical commissioning groups to close walk-in centres? It is simply not happening that clinicians are deciding. The fact is that NHS England is carrying on a micro- management of what is happening; it is simply not playing out in the way that the noble Earl describes.

[Earl Howe]

I would be grateful if the noble Lord could supply me with the relevant facts to back up his statement about pressure from NHS England to close walk-in centres.

Health: Tuberculosis

Debate between Earl Howe and Lord Hunt of Kings Heath

Thursday 21st November 2013 Lords Chamber

[Earl Howe]

My Lords, there are regulations covering ports and airports which provide a contingency for when a passenger on a ship or a plane enters the UK, is suspected of having a notifiable disease and perhaps refuses to seek medical attention. The regulations include provisions for notification of such a case to the destination port health authority and for the detention of that person for the purposes of a medical examination. There are also quite flexible powers for local authorities to deal with incidents or emergencies where infection or contamination presents or could present a significant risk to public health.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I refer noble Lords to my health interests. The Minister referred to a number of strategies in London, Manchester and Birmingham. Will he confirm that the implementation, particularly of some preventive strategies, will depend on the work of TB specialist nurses? Is he aware that some budgets are under pressure and there is a risk that we will not have enough nurses to do the job? Will he guarantee that we will see an increase in the number of TB nurses?

[Earl Howe]

My Lords, as the noble Lord is aware, NHS England allocates funding to clinical commissioning groups which commission health services on behalf of their local populations. It is for CCGs to decide how best to use the funding that is allocated to them, underpinned by clinical insight and knowledge of local healthcare needs. We expect health and well-being boards to have a major say in those areas where TB is commonplace.

Children and Families Bill

Debate between Earl Howe and Lord Hunt of Kings Heath

Wednesday 20th November 2013 Grand Committee

[Earl Howe]

That indeed is my understanding. Noble Lords have taken the opportunity of this Bill to raise the dangers of smoking, particularly of passive smoking for children, and I have no issue with that. I merely point out that there are problems with the amendment as drafted. I am not saying that it would not be possible to draft another amendment which noble Lords might care to consider between now and Report. Being able to enforce these provisions as drafted is also a significant aspect. For example, it may be hard to judge whether a product could reasonably be expected to attract children, as the amendment would require, or to determine what might be aimed at or would attract 18 year-olds but not, let us say, 17 year-olds or 13 year-olds.

I am grateful to noble Lords for raising this important issue and for keeping this debate at the front of our minds. It is a debate that we need to continue. As I have said, the Government have yet to make a decision on this policy, but if we were to bring in such a measure, we would not want it to be circumscribed in the way that is proposed. We would not want to set up a situation in which both branded and standardised packs could be sold legally depending on where they were sold and what other products were sold alongside them. I therefore urge noble Lords not to press their amendments and respectfully suggest that they consider other avenues for bringing this matter before the House on Report.

[Lord Hunt of Kings Heath]

I always admire the noble Earl’s eloquence when defending the indefensible and he has done that par excellence today, but is not the reality that this is an opportunity for the Committee and the House to express a view in principle on the issue? It would then be up to the Government. As the noble Earl knows, when that happens, the Government simply come back with an amendment at Third Reading to deal with the technical issues. Surely the issue here is whether the House goes forward to a vote in principle, which I hope it might be able to do.

[Earl Howe]

Well, my Lords, if I could repay the compliment to the noble Lord, Lord Hunt, he has very eloquently presented the case for the Government to go away and think further about this, which indeed we will do. I come back to what I said at the beginning of this debate: the message from this Committee has been delivered loudly and clearly. I am grateful to noble Lords for that. I say again that the Government’s mind is not closed on this issue.

National Health Service (Approval of Licensing Criteria) Order 2013

Debate between Earl Howe and Lord Hunt of Kings Heath

Tuesday 12th November 2013 Grand Committee

[Lord Hunt of Kings Heath (Lab)]

My Lords, first, I thank the noble Earl for that very full explanation of this order. In the context of the order, I should declare my chairmanship of an NHS foundation trust, which is subject both to Monitor and the Care Quality Commission.

I thought that the noble Earl’s full explanation of the order really reinforced concerns about the complexity of Monitor’s role and potentially the conflict between its licensing responsibilities, its independent regulation of pricing of NHS services and the general support that it gives for NHS foundation trusts. Now that Monitor has had time to consider these matters, since the passage of the 2012 Act, can he explain how it avoids conflicts of interest between these three separate roles? He will be aware that we discussed that issue when we debated the Bill.

Clearly, a lot of responsibility in Monitor rests on the leadership of Dr David Bennett. The noble Earl will be aware that in the pre-scrutiny hearing in the other place, the Health Select Committee—after examining Dominic Dodd, who had been proposed as chairman of Monitor—said of David Bennett that he,

“was appointed as interim Chief Executive in April 2010, and appointed as substantive Chair in March 2011. Since then he has filled the roles of both Chair and Chief Executive—effectively Executive Chair—and has led Monitor through the whole process of change brought about by the Health and Social Care Act 2012. This has been a period of great uncertainty for Monitor, with the nature of its role in the new system being unclear for most of the 18 months between the introduction of the Bill in January 2011 and its passing in 2012. Dr Bennett has both shaped and interpreted the role that Monitor now plays in the system which makes the transition to another individual taking on the Chair an especially difficult one. We do not think Mr Dodd is the right person to undertake that difficult transition”.

I understand that, following that, Mr Dodd withdrew his nomination, or at least his nomination was withdrawn.

In the context of this order, which sets the framework in which licensing will be undertaken by Monitor in future, can the Minister say a little more about the Government’s intention with regard to leadership, particularly the continuing role of Dr Bennett as both chairman and chief executive? As the Minister will know, in normal corporate governance terms that is not normally encouraged.

My third question relates to the Explanatory Memorandum, rather than the order itself. I was interested to see that, under “Policy Background”, paragraph 7.2 sets out three key functions of Monitor. I have already referred to them as,

“working with NHS England to provide independent regulation of pricing … protecting patient choice and”,

addressing,

“anti-competitive behaviour … and … working with commissioners to secure continuity of services”.

I just wondered where integration had got to. Have the Minister’s officials forgotten that? We debated this at great length and the Bill was amended to ensure the importance of integration. The noble Earl will recall that Monitor was given that express role. I am very disappointed to see that it is not referenced in the policy background but I am not surprised because, frankly, we have seen very little work on integration coming out of the various bodies concerned with the health service.

There has, however, been an awful lot to do with competition. As the noble Earl will know, in evidence to the Health Select Committee—I think it was only two weeks ago—the chief executive of the NHS railed against the way in which competition was being introduced in the health service. He knows, as everyone working in the health service knows, that a huge amount of money is being spent because of the enforced tendering of services that is undoubtedly taking place. It is very important that the Government reconsider the architecture that they have now put in place.

In addition to Monitor, we have the CQC, the NHS Trust Development Authority, the NHS Executive—I am sorry, I meant NHS England; that was a Freudian slip—and Ministers. Compared to the previous Secretary of State, the current Secretary of State takes a very different view of his role, and so we have a very confusing architecture. We also have the Office of Fair Trading making extremely unhelpful and unwelcome interventions, which again seems to act against the appropriate integration of services. It really needs to be sorted out.

I have no doubt that we will talk about this in a few minutes, but after Monitor’s welcome report on walk-in centres—I do not know whether it was as welcome to the noble Earl as it was to me—we have a situation where NHS England has undoubtedly been encouraging clinical commissioning groups to close down walk-in centres to make savings. However, yet another part of the architecture has come out with a report essentially saying that this has been a big mistake and has added to the pressure on A&E departments. One is entitled to ask: who on earth is really driving the policy at the moment?

Although I welcome the Monitor report, I was interested to know why it has produced it. At paragraph 1.2 on page 9 of the report, Monitor says:

“Our decision to review walk-in centre provision is grounded in our main duty as health care sector regulator: to protect and promote the interests of patients by promoting the provision of health care services that is effective, efficient and economic and that maintains and improves the quality of services”.

Well, yes, but is Monitor’s role really to look at this area of service provision? Fine—it is a good and welcome report, but it is confusing as to where one regulator’s role stops and the other starts. I have this great impression of five or six large, powerful bodies, all with well paid executives and strong boards, vying for influence. What that does at a time of huge pressure in the health service is to create uncertainty about who is leading, who is setting the policy and who is responsible for its implementation.

Finally, I come back to the question raised by Don Berwick in his very interesting report on patient safety, which the Government commissioned. In that report, which was published only a few months ago, he said:

“The current NHS regulatory system is bewildering in its complexity and prone to both overlaps of remit and gaps between different agencies. It should be simplified”.

It certainly should be simplified. He went on to say:

“The regulatory complexity that Robert Francis identified as contributing to the problems at Mid Staffordshire is severe and endures, and the Government should end that complexity”.

Does the noble Earl agree that the order he brings before us today is simply a sign of greater complexity? I do not think that we have had a response from the Government on this recommendation. I know that the noble Earl has a regulatory Bill up his sleeve for the next Session. Given what Don Berwick said and the evidence that Sir David Nicholson gave to the Health Select Committee, does he not agree that it might be sensible to go wider and look at this whole business again, to get much greater clarity into what is a complex situation?

[Earl Howe]

My Lords, I am grateful to the noble Lord, Lord Hunt, for his questions. I start with the issue that he raised initially, which was about the role of Monitor and what he perceives as the conflicts within that role. I address that by saying that there is no fundamental conflict, although he is perfectly right to say that Monitor has distinct, separate functions. Different executives within Monitor lead on each of those areas. Monitor has a board, which functions to ensure that David Bennett’s dual role as chair and CEO works effectively. At the same time, the Department of Health, as the steward of the system, keeps Monitor’s performance under review. It does that through quarterly accountability meetings. I suggest that the conflicts that the noble Lord perceives are much more in the perception than the reality. There are mechanisms in place within Monitor to ensure that the functions are kept distinct and that, where appropriate, Chinese walls operate.

The noble Lord referred to the nomination of Dominic Dodd as the chair of Monitor and the Select Committee’s view that he was not the right person to lead the organisation. That was a view which Mr Dodd himself accepted, and he volunteered to step aside. In the light of that, we are currently considering options for a sustainable solution to Monitor’s leadership. We will make an announcement as soon as we can on that, but, meanwhile, I emphasise that we have complete confidence in David Bennett’s leadership of the organisation.

[Lord Hunt of Kings Heath]

I meant no criticism of Dr Bennett in his role. I just point out that if one goes back to Cadbury and all sorts of reports since then, the evidence is clear that it is undesirable to have the same person carrying out both roles.

[Earl Howe]

I completely take the noble Lord’s point. We will of course be looking carefully at how best to proceed. It was, of course, with a view to appointing a separate chair that Mr Dodd’s name was put forward.

The noble Lord referred to the importance of integration. He is of course right that we debated the issue extensively during the passage of the Health and Social Care Act and have done so since. The Health and Social Care Act established Monitor as the sector regulator of healthcare. That involves a duty placed on Monitor to protect and promote patients’ interests by promoting provision of NHS services which is economic, efficient and effective and which maintains or improves the quality of those services. Within those broad headings, integration fits neatly.

The provider licence is a key tool which Monitor will use in carrying out its duties and in influencing and regulating the provision of NHS services. Specifically, the licence enables Monitor not only to set prices for NHS-funded care, which it does in partnership with NHS England, but to enable integrated care. The fact that that is not explicitly referenced in the Explanatory Memorandum is not something to which noble Lords should attach particular significance. Integration is part and parcel of Monitor’s overall duties.

Professional Standards Authority

Debate between Earl Howe and Lord Hunt of Kings Heath

Thursday 7th November 2013 Lords Chamber

[Earl Howe]

My Lords, the Francis recommendations made no reference to voluntary registers for healthcare support workers. The broad position is that the PSA has not received any applications from organisations holding voluntary registers for healthcare support workers, and therefore no voluntary registers for healthcare support workers have been approved. As accredited registers are voluntary, I am afraid that the Government are not in a position to predict how long it will take for all healthcare support workers to be registered.

[Lord Hunt of Kings Heath (Lab)]

My Lords, going back to the question raised by the noble Lord, Lord Taverne, is the Minister confident that every intervention by a doctor is actually based on robust clinical evidence?

[Earl Howe]

My Lords, as the noble Lord knows, it is the responsibility of local NHS organisations to make decisions on the commissioning and funding of any healthcare treatments for patients, taking account of issues to do with safety, clinical and cost effectiveness and the availability of appropriate practitioners. However, it is interesting to note that there are a number of complementary and alternative therapies referenced in NICE guidance, and I would expect any self-respecting doctor to take account of those.

Care Bill [HL]

Debate between Earl Howe and Lord Hunt of Kings Heath

Tuesday 29th October 2013 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, I do not seek to brush it aside. However, this clause relates to the responsibility,

“of a local authority, in exercising a function under this Part … to promote that individual’s well-being”.

Spiritual issues are subsumed under the amendment moved by the noble Earl, Lord Howe. With the greatest of respect, this does not relate to an employment law issue between an employer and an individual. This is very much around the kind of support that should be given to an individual by the local authority. There is a distinction between the situation that the noble Lord raised, and the issue that is set out in this clause.

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

My Lords, before I move to the matter in hand, I thank noble Lords for the tremendous dedication that they have shown to the scrutiny of the Bill during its passage through the House. It is a landmark piece of legislation, and I hope that the House will agree that the changes that the Government have made in response to the debates that we have had have strengthened the Bill so that it will pass to the other place in an even better state. Many noble Lords across this House have dedicated impressive time and energy to improving the provisions in all parts of the Bill, but time does not permit me to thank all noble Lords individually, as I would like to. However, I thank again those noble Lords who played such an important role in improving the Bill as members of the pre-legislative scrutiny committee.

I turn to my noble friend’s amendment. Under Clause 1, local authorities must promote individuals’ well-being and must also have regard to individuals’ views, wishes and feelings. As I set out during our debate on Report, we consider that these provisions mean that a local authority would take a person’s spiritual views, wishes and feelings into account in promoting their well-being. However, in response to concerns raised by a number of noble Lords on Report, I have now tabled an amendment to make it absolutely clear that these matters should be considered where they are of importance to the individual.

My amendment adds “beliefs” to the matters to which a local authority must have regard when exercising care and support functions. Having regard to someone’s beliefs includes their spiritual beliefs; for example, ensuring access to an appropriate figure of religious authority during palliative care. This approach achieves the same aim as Amendment 1 in the name of my noble friend Lord Hamilton, but I suggest to him and to the House that the government amendment is preferable, for two reasons.

First, my amendment quite deliberately does not refer specifically to “spiritual” well-being, but applies instead more widely to beliefs, which was the point made very effectively by my noble friend Lady Barker. That is because we do not wish to exclude those who may not consider themselves to have “spiritual” beliefs. That issue was raised by the noble Lord, Lord Warner, on Report, in relation to humanists.

Secondly, despite the comments of the noble Baroness, Lady Warnock—to whom I listened as always with great attention—spiritual well-being is not a well understood or defined concept. It carries a risk because it may confuse the practical application of the well-being principle on an individual level. There is another problem here. My noble friend’s amendment would effectively mean that local authorities had a duty to promote an individual’s spiritual well-being or beliefs. It is not appropriate to require a local authority to promote spiritual matters, except in so far as they affect the emotional well-being of a person.

--- Later in debate ---

[Lord Hunt of Kings Heath]

My Lords, perhaps I may raise a couple of points with the noble Earl, Lord Howe, on this. First, to reinforce the point made by the noble Lord, Lord Best, about the cost falling on local authorities in providing facilitation to independent, regulated financial advice, there is a much more general point about the capacity of local authorities to implement the measures in this Bill. The Bill leaves us, albeit with many amendments, with an underlying concern about whether local authorities will have the wherewithal to implement a raft of new responsibilities over the next few years.

Secondly when the noble Earl argued against similar amendments on Report, he spoke of the concerns of local authorities that they might be held liable if they referred a person who comes under the Act to a financial adviser who subsequently gave poor financial advice. We have heard from the noble Lord, Lord Best, that the LGA supports the general thrust of my noble friend’s amendment. Can the noble Earl confirm, first, that a regulated financial adviser will be subject to FCA requirements and come under its disciplinary and regulatory codes? Secondly, can he reassure local authorities that they can offer names of regulated financial advisers in the way that I understand a number of local authorities do at the moment without fear of subsequent action being taken against them? I was puzzled by the argument put forward on Report and it would be good to have this cleared up at this stage.

[Earl Howe]

My Lords, Amendment 3 brings us once again to the important matter of financial advice. As we have covered this subject at some length previously, and in the interests of time, I will endeavour to keep my response reasonably short. At the same time, I do not intend to make brevity a substitute for substance.

My discussions with the noble Lord, Lord Lipsey, my noble friend Lord Sharkey and the noble Baroness, Lady Greengross, and my officials’ discussions with the financial services industry have persuaded me that we are all seeking the same end point for financial information and advice. I believe that any apparent distance between the positions of the Government and noble Lords on this issue reflects only the way that I have expressed our intentions thus far. We want to ensure that when people take decisions about how to fund their care it is done in a considered and informed way. We agree that the local authority has a pivotal role to play in ensuring that this happens. I want to set out what I see that role as being in the hope that noble Lords will agree that we are indeed in concordance.

We believe that the local authority should take a proactive role. What does that mean in practice? Under the new system we expect many more people, a large number of them self-funders, to approach the local authority to start their meter running. This provides an invaluable opportunity for local authorities to reach out to these people and tell them about the support that is out there to help them better plan, prepare and provide for the costs of their care. It is particularly important for self-funders that this includes the relevance and the availability of regulated independent financial advice. To pick up the word in the noble Lords’ amendment, this should be a facilitative role for the local authority, providing a nudge in an appropriate direction.

In trying to define what we mean by facilitation, I wholeheartedly agree that handing out a leaflet or placing a page on a website is not sufficient. Instead, local authorities should talk to people and use the opportunity of contact with self-funders and others to give them individually tailored advice that suits their personal circumstances. They are likely to know something about a person’s financial situation and so will be able to tell them about the range of information and advice that might be most relevant to them in considering their care options, whether that is light-touch budget planning or advice from a regulated organisation. It would not be sufficient for local authorities just to tell a person about the types of information and advice available. They will also have to explain how it could be accessed and provide information to enable them to do so.

There is more work to be done before we can finalise what the guidance will say. To get it right, we will need to work collaboratively with stakeholders, including the financial services industry. We have begun to do that already and have had initial discussions and workshops involving representatives from the finance industry. They have confirmed what we all know of some of the necessary complexity in the system, so how and at what stage a person or their family is facilitated to take up regulated financial advice will depend on how and where they have made contact to obtain information and advice. We will gather examples of best practice to inform statutory guidance to help local authorities identify the types of information and advice that different people may need, inform them of those options at the right time and help them to access them.

In addition to the call for evidence and responses to the consultation on funding reform, background work has already been undertaken over the summer that supports the development of statutory guidance. Work commissioned through the Think Local Act Personal partnership has resulted in two publications on information and advice, principles for the provision of information and advice and an interactive map evidencing the difficult pinch points in people’s typical journey through the care system.

We have commissioned detailed work with six local authorities chosen from 40 examples of current practice collected earlier this year to draw together evidence on benefits and effectiveness in developing information and advice services. A number of those examples, including West Sussex, involve directing people to regulated independent financial advice. Helpfully, the ABI has invited my officials to participate in a workshop on access to financial advice being held on 14 November, which we expect further to support the development of guidance.

I am confident that no further amendments are needed to effect what I believe is a shared ambition. The Bill sets out the framework, the skeleton if you like, but it is the statutory guidance and implementation support that will put meat on those bones. What I have set out today is what we will put into practice through guidance. This guidance will be developed in co-operation with all interests, including the Association of British Insurers and the Society of Later Life Advisers, SOLLA, which will build on the good practice that already exists in many areas. We really want this to be the product of co-development which achieves the aims that I firmly believe that the noble Lord and I share.

The noble Lord, Lord Hunt of Kings Heath, expressed concern about what I said on Report about the possibility that local authorities could be held liable in the event that a regulated financial adviser gives poor advice. He pointed out, quite rightly, that such an adviser would be covered under FCA codes, and so on. The issue here is about the local authority making a recommendation to an individual adviser. We do not consider that there is any problem with local authorities providing a list of advisers from whom a person could choose.

On the impact of local authority responsibilities, we have established a partnership with the Local Government Association and the Association of Directors of Adult Social Services and have set up a joint programme and implementation board. We have a lot of ground to cover, and I think that no one would deny that we have our work cut out over the next few months, but I can tell the noble Lord that, together, we are absolutely committed to providing the support that is needed by local government to enable it to fulfil its functions. I hope that we have achieved a meeting of minds on this matter and that what I have said today will give the noble Lord, Lord Lipsey, sufficient reassurance to withdraw his amendment.

--- Later in debate ---

[Lord Hunt of Kings Heath]

My Lords, I am looking forward to the response of the noble Earl, Lord Howe, and hope that he can reassure the House on this point. It is important that the House should be reminded that the universal deferred payment scheme was discussed on pages 65 and 66 of the Dilnot commission report, which set out an analysis and evidence supporting its recommendations. It explained why the current arrangements and deferred payment schemes were not widely used, and why in the main report the commission recommended extending the current system to a full universal offer across the country.

In its arguments, the commission accepted that local authorities should be able to charge interest and recover their costs and that a scheme would be cost-neutral to the state, although it might require an initial cash injection. Dilnot also made it clear that the Government needed to strengthen and standardise the deferred payment scheme in the light of their decision on the level of the cap, means-testing and the contribution to general living costs.

I accept that the scheme was not intended to be generally available to the very wealthy and asset-rich. As my noble friend Lord Lipsey has so convincingly argued, though, being required to spend your assets down to £23,250 seems far too restrictive to deliver a viable scheme. Indeed, as it would be of no use whatever to people of middle income, it is very difficult to see if anyone at all is going to use the scheme. My question is: why have the Government been consulting on such a figure? Does that actually mean that they do not want the scheme to succeed? Do they recognise that it cannot possibly succeed if you have to get down to such a low figure before the scheme can apply?

My only reading of why the Government have consulted on this low figure is because of Treasury concern about the initial cash injection. Is that so? Will the Minister also acknowledge that there is a question about whether in the long term—or indeed in the short term, because the scheme will begin to pay for itself within a very short time—his department thinks that there is going to be a cost-neutral scheme? It will be interesting to hear from him about why the Government seem so cautious and have been consulting on what seems to be such a low figure.

For the reasons that my noble friend has persuasively put forward, although in the end the number of people who will use the scheme may be counted in their thousands rather than their tens of thousands, there is no doubt that having a scheme available will provide a great deal of comfort to many people and their families, and it would be a great pity if this was going to be stillborn. We need to see a scheme that will be practical and will not squeeze middle-income people. I hope that the Minister will be able to reassure the House that the Government are having second thoughts in this area.

[Earl Howe]

My Lords, Amendment 5 returns us to the issue of deferred payments. I begin by saying that I welcome the opportunity to debate this subject again. Unfortunately, the Government’s position on it has been fraught with misunderstandings, and I would like to take this opportunity to dispel at least some of those.

First, I remind the House that a consultation on funding reform has been running over the past three months, and it closed last Friday. During these three months, officials have travelled across the country explaining our proposals and seeking people’s views. What we have put forward so far are proposals—something for people to consider. These are not set in stone. We will listen to what we have heard through our consultation, and indeed in this Chamber, as we develop our policies over the next few months.

The purpose of this amendment, as the noble Lord, Lord Lipsey, has explained, is to ensure that anyone—even people with assets of great monetary worth in addition to their main home—can have a deferred payment agreement. I have to make it clear that if one takes this amendment literally, I disagree with that principle. I do not think the public purse should be helping people who do not need financial support to pay their care fees. This would seem a long way from the Dilnot commission’s view that deferred payments should be used to support people who,

“would be unable to afford care charges without selling their home”.

For a person with a substantial sum in their bank account or substantial liquid savings, a deferred payment agreement might be a cheap loan—a convenience, one might say—but it would not be serving its core purpose.

I hope that we can therefore agree that the principle of having an upper threshold for non-housing assets is a sound and a necessary one. If we agree that this is a sound principle, all that is left to do is agree on an amount. Our consultation sought views on that amount. The noble Lord, Lord Lipsey, asked what was wrong with an asset threshold of £118,000. From April 2016, we are extending means-tested support for people with up to £118,000 when the value of a person’s home is taken into account in the financial assessment. This determines when an individual may be eligible for local authority support with their care costs. Deferred payment agreements are designed to help people to pay for their care costs; their ability to meet these costs in the short term will be dependent on their liquid non-housing assets rather than housing wealth. I can say to the noble Lord that we are happy to consider using a threshold of £118,000 as we analyse the consultation responses. We are happy to consider a range of figures.

The noble Lord, Lord Hunt, asked why we proposed the £23,250 threshold. We were seeking to identify those people most at risk of having to sell their home to pay for their care. The reason we proposed £23,250 specifically is because it provides consistency with the threshold for means-tested support when the value of someone’s home is not taken into account, and with the principle that people with non-housing assets under that amount are likely to need state support to pay for their care costs. Indeed this is the same figure and the same reasoning that the previous Government applied in their White Paper. Therefore, from that point of view if no other, it is a little surprising to hear the noble Lord, Lord Hunt, arguing against it.

There is an interesting point about people with more than £23,250 in savings. About 60% of people entering residential care are state-supported, meaning that they have only limited assets. Of the remaining 40% who enter residential care as a self-funder, less than half have liquid savings of more than £23,250. This means that the proposed threshold of £23,250 excludes only the richest 15% of people entering residential care. By increasing the liquid savings threshold to £118,000, the scheme would be available to all but the richest 5% of people entering residential care. I hope that that is a helpful contextual analysis. However, I reiterate—particularly to the noble Lord, Lord Lipsey—that we are not wedded to the figure of £23,250. We will analyse the responses to the consultation before making any further decision.

To answer the question posed by the noble Lord, Lord Hunt, about whether the scheme will actually be cost-neutral, we intend and believe that in the long run the scheme will be cost-neutral. We have committed £330 million to fund the implementation of the cap cost system, and deferred payments to cover the initial set-up costs.

I hope that in the light of what I have said the noble Lord will, on reflection, agree that his amendment would be undesirable as drafted and that he will be content to withdraw it.

NHS: EU Legislation

Debate between Earl Howe and Lord Hunt of Kings Heath

Monday 21st October 2013 Lords Chamber

[Earl Howe]

We have asked the review to report by the end of January next year. We believe that that is an achievable target from the point of view of those carrying out the review, and the Government will not be slow to react to any recommendations made.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I refer noble Lords to my health interests in the register. The noble Earl will be aware that this country has introduced a strong process of revalidation of doctors and continuing professional development. Can he assure the House that doctors who come to practise in the UK from other European countries will have been subject to as strict a regime as that in the UK?

[Earl Howe]

My Lords, the noble Lord will know that doctors from the European Economic Area are deemed to have professional skills equivalent to those of doctors trained in this country. When doctors come from outside the European Economic Area, then, indeed, the GMC puts procedures in place to ensure that the skills of those professional people match those that we would wish to see in the National Health Service.

Care Bill [HL]

Debate between Earl Howe and Lord Hunt of Kings Heath

Monday 21st October 2013 Lords Chamber

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

My Lords, the reason for this Motion is that the Government wish to give the House the opportunity to amend the order in which we take our Report stage debates today. Last week, I became aware of some concern that my Amendment 168A, relating to trust special administration, would have fallen for debate at a rather late hour this evening. I assure the House that this was not by design and that the Government are more than happy to facilitate an earlier debate. Clearly, the issue of trust special administration is an important one. I understand the wish of some noble Lords to debate it fully in prime time. Accordingly, the Motion in my name would allow the debate on Amendment 168A to be taken at the start of today’s proceedings on the Bill. I should also indicate to the House that in response to the request put to me last week by the noble Lord, Lord Hunt of Kings Heath, I would have no objection to relaxing the rules of debate that normally apply on Report so that this amendment can be debated in full if that, too, is the desire of the House. I beg to move.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I am most grateful to the noble Earl, Lord Howe, following my intervention last week. I made a similar proposition to the usual channels last Thursday, only to be told that there would be dire consequences for everything that your Lordships hold dear. I am glad that sense has none the less prevailed. I very much welcome this and support the noble Earl in his Motion.

Care Bill [HL]

Debate between Earl Howe and Lord Hunt of Kings Heath

Monday 21st October 2013 Lords Chamber

[Earl Howe]

My Lords, the matters we have debated today are of great significance. Of course—and I need to make this clear—we do not want to see any NHS trust or foundation trust fail, but equally we cannot shirk the responsibility to take action if and when that happens. In our taxpayer-funded health system, every pound counts and every pound should be put to best use, providing high-quality, effective care. Failed organisations squander resources. I do not want to be derogatory about them in other ways, but they usually take for themselves an unfair proportion of resources in relation to the local health economy more widely. Failed organisations, if nothing is done, have to be propped up by government bail-outs. That cannot be right, particularly at a time when resources are as constrained as they are now. We need an effective regime for tackling these issues.

The House has agreed with this on two previous occasions, passing legislation in 2009, during the time of the previous Government, and again in 2012 to provide failure regimes for trusts and foundation trusts respectively. We thought that those regimes would be effective, but experience now shows that they need clarification. The noble Lord, Lord Hunt, suggested that this amendment represented a major change of policy and the noble Baroness, Lady Warnock, characterised it as an arbitrary overturning of the decision of the court in the south London case. The Government’s policy has been consistent. It is entirely unchanged. It is self-evidently not a change of policy. Had it been so, the recommendations made by the trust special administrator in south London would have been ones that we would have questioned as legally dubious in the department. On the contrary, we believe that the administrator’s recommendations fell squarely within the wording of the 2009 Act, which, as I mentioned earlier, used the phrase, “in relation to”. That was the phrase around which the judge’s ruling revolved, and it was a different interpretation of that phrase that the judge took.

The noble Lord, Lord Hunt, is very knowledgeable about the heath service, but I am afraid that on this matter he is wrong. His amendment would render the failure regime quite useless. Five years is too long for a failed hospital and the patients it serves to wait for an effective remedy, to say nothing of the cost to the public purse. One of the provisions that the noble Lord has tabled would require the Secretary of State to justify making the power operational after the end of the five-year period, but is that not the debate we should have now? In any event, the effect of accepting his amendment would lead to an incoherent muddle. Either the House believes that a trust special administrator must be able to take the action necessary to resolve serious and prolonged problems at a trust or it does not. A long wait and a report will make no difference to the issues of substance. I urge the House to be decisive on this rather than doing what is effectively kicking a can down the road.

I know that fears have been expressed that the clause we are inserting would enable the Government to make free with every hospital around the country. That is not so. In fact, I submit to your Lordships that that suggestion is scaremongering. The powers could have been used for a long time if it were the Government’s intention to close down every hospital or lots of hospitals. The regime was designed by the party opposite, lest we forget, to deal with the specific circumstances of a trust in failure. It enables an external expert to be appointed as administrator to take a fresh look at the situation and, working with the trust and its commissioners, to develop recommendations for the future.

One needs also—I say this particularly to the noble Lord, Lord Warner—to recognise that trust special administration is only ever invoked when the normal processes for agreeing a reconfiguration have hit the buffers. In normal circumstances commissioners and providers in a locality get together and very often agree about the way services should be reconfigured to make them clinically and financially sustainable. In the case of south London and in the case of Mid Staffordshire that process has been going on for a long time. It is only because we reached an intractable position that administrators were appointed in those instances.

We have heard today that some aspects of our amendment provoke strong feelings, particularly the clarification—and it is a clarification—that a trust special administrator can make recommendations that include other providers where those recommendations are necessary for, and consequential on, his core recommendations. I bring noble Lords’ attention to those key words. Of course I recognise those views, but I do not share them. The clarification is vital for the failure regimes to be effective. It may be possible for the solution to the problems faced by a failed organisation to be found within the boundaries of that organisation, but it may not. Indeed, it is quite likely that it will not be. The health service is formed of a complex network of interdependent providers, all influencing one another. It is plain that making changes to one has a knock-on effect elsewhere. The amendment is a reflection of that reality.

I have a degree of sympathy with those who have argued that the effect of this could be unfair on the successful provider impacted by the failure of a neighbour. Such a step would, of course, be taken reluctantly. But I argue that it must be possible to take such a step if, and when, that is the only way of resolving the problem. The amendment would not apply retrospectively. The date of the court hearing in the south London case is therefore not relevant.

The rest of my amendment makes minor changes and I hope that they will be acceptable to the House. I hope more strongly that the amendment as a whole will find favour. It could be, as some noble Lords have suggested, that additional things need to be done. We do not believe that to be the case but I have heard the arguments put by a number of noble Lords that the amendment might need additions at some time in future. Our minds are open to that. But I beg noble Lords not to lose this opportunity of passing my amendment, as it matters a very great deal, not just in local areas but in the health service as a whole, in the interests of equity and fairness, which, after all, underpin the whole NHS. I believe that noble Lords should reject the amendment proposed by the noble Lord, Lord Hunt.

These are going to be rare cases and they are always difficult. The problems by their very nature are intractable and serious. We must fix them and have mechanisms to do that in order to put services back on a sustainable footing. Otherwise, I respectfully submit, we ourselves will have failed. I beg to move.

[Lord Hunt of Kings Heath]

My Lords, I am grateful to the Minister and other noble Lords who have spoken in what has been an excellent debate. My feeling about the debate is that the House has conclusively come to a view that further discussion needs to take place on the matter. I will come back to that in a moment.

I agree with the noble Earl that failed organisations squander millions of pounds. He is absolutely right to say that the need for them to be propped up by others has a deleterious effect on the NHS as a whole. We know that at least 20 NHS trusts or foundation trusts are in severe financial difficulty at the moment. It is likely that that number will grow in future. That is why there is considerable doubt that the special administration provisions will apply to only a very small number of cases. There is every possibility that, over the next two or three years, it will have to be used in many cases. That is why I am concerned that the provisions that the noble Earl is asking us to agree to today will be used to lead to configuration of services in which the interests of the failing trust will be put at the heart of the process rather than interests of the health service as a whole in a given area. That is the crux of the issue and that is why Lewisham is so important. It is a very good hospital—it was minding its own business—and then, suddenly, a special administrator came along and said that to solve the problem of the trust that it was dealing with it would have to reduce Lewisham hospital services. That is the crux of the argument and why we are concerned about the provisions being put forward by the noble Earl today.

The noble and learned Lord, Lord Mackay, suggested that we should let the Government have their amendment today and it can then be dealt with in the other place. Of course, I always admire the other place’s assiduous attention to duty when scrutinising legislation, but the fact is that the other place is simply not geared up or able to do that. The noble Earl, Lord Howe, was rather rude about my amendment which was, of course, perfectly formed and correct in every way. Will the noble Earl, having listened to this debate, agree to pause and allow us to have further discussions—even between now and Third Reading in eight days’ time—to see whether it would be possible to come back with an amendment that is more suited to the circumstances he described? Is the noble Earl prepared to do that? If he were, I would welcome it.

[Earl Howe]

My Lords, I am more than willing to have discussions between now and Third Reading but I suggest to the House that it is necessary to pass the government amendment now and to look at whether we need to change that amendment at a future date. Our minds are open to that but, unless we pass the government amendment, we will have missed a historic opportunity to correct a vital lacuna in the law for the benefit of the NHS as a whole.

[Lord Hunt of Kings Heath]

My Lords, I am very grateful to the noble Earl. It would, however, be possible for him not to move his own amendment today, to allow for further discussions and to table a revised amendment at Third Reading. That is as far as I can go in offering the Opposition’s help in this matter.

[Earl Howe]

I am grateful to the noble Lord. However, as I indicated, this is a pressing and urgent matter. While I am always open to inter-party discussions, the time has come for the House to take a decision.

[Lord Hunt of Kings Heath]

My Lords, in view of that, I wish to test the opinion of the House.

--- Later in debate ---

[Earl Howe]

The answer to that question is the rating system, which the chief inspectors are planning to bring in. Proposals for that will be announced very shortly. We attach great importance to that kind of transparency, not only in the NHS but in the care sector. On my noble friend’s question about whether all this would cover the care sector as well as the NHS, as he will know, the CQC issues sector-specific guidance on how to meet staffing registration requirements. Obviously NHS England would only provide guidance that relates to the NHS. As I already said, the Chief Inspector of, say, Adult Social Care would inspect regularly against CQC guidance. The plan is to consult in April 2014 on the CQC guidance on social care.

My noble friend spoke about an emerging consensus on a minimum level of staffing below which care is unsafe. I understand his point, but I am sure he will acknowledge—and did, implicitly, in his remarks—that staffing is not simply about crude numbers; it is not just about nurses. Healthcare assistants and other members of the team all have a key role to play. My noble friend Lady Gardner was absolutely right to point out that the skill mix is relevant in these circumstances. Patient safety experts agree that safe staffing levels should be set locally. It is not for Whitehall to set one-size-fits-all staffing rules. That is exactly why we have asked NICE and other nursing experts to review the evidence, to help organisations to make the right decisions on staff numbers at a local level and then, essentially, to govern themselves. I make it absolutely clear that we fully agree that safe staffing should apply in all settings and that point will be taken into account as we develop our plans.

I hope noble Lords are reassured that action is already being undertaken in a combination of ways, through Compassion in Practice, the CQC registration process, and, shortly, through the role of the Chief Inspector of Hospitals. That will ensure that providers are open and transparent about their staffing numbers and that they assess these staffing levels, not just on the day of an inspection but on a regular basis, using evidence-based tools, and by taking into account local factors that relate to local patient needs and outcomes. I therefore hope that noble Lords will be content to take stock of what I have said and will not press their amendments.

[Lord Hunt of Kings Heath]

My Lords, I am grateful to all noble Lords who have spoken. I will say at once that I very much support Amendment 159. I agree with my noble friend Lord Warner that the two amendments run in parallel very well indeed.

I know that the noble Baroness, Lady Gardner, thinks that my amendment may be a little too modest. Perhaps it is a start. I assume that the noble Baroness was not chair of the Royal Free when the “poaching” that she described took place. The point was well made.

The noble Earl, Lord Howe, has listed a number of ways in which we could be assured that staffing numbers and skill mix will be okay both in the NHS and the care sector. The fact is that, however much information is published and however much this might be part of the licensing regime of CQC, these organisations have been around for some time. There is consistent evidence that staffing levels are not sufficient. We have already had the Francis report, which said that NICE should undertake benchmarking on staffing levels. The Keogh report on the 14 hospital trusts said:

“The review teams found inadequate numbers of nursing staff in a number of ward areas, particularly out of hours—at night and at the weekend. This was compounded by an over-reliance on unregistered support staff and temporary staff”.

The Berwick report goes over the same ground. At the end of the day, I do not think there is enough beef in the system to ensure that we have adequate support staff. If NICE is going to carry out the benchmarking, which is a very good thing, we need to make sure that the regulator actually has some beef in terms of ensuring that we get adequate staff levels in clinical areas. I think that my Amendment 144 ensures that that will happen. I should like to test the opinion of the House.

--- Later in debate ---

[Earl Howe]

My Lords, I shall speak also to Amendments 152B to 152F. These are amendments to the clauses that establish a new offence and penalties where care providers provide certain false or misleading information. Together with the new duty of candour on providers that we considered last Wednesday, this measure is key to supporting openness and transparency among care providers.

We are making two substantive amendments. First, Amendment 152F extends the offence to directors and other senior individuals who consent to or connive in an offence committed by the care provider, as well as to cases where the negligence of senior individuals has led to the offence by the care provider. This amendment brings the offence into line with a number of other offences that are committed by organisations, such as Health and Safety at Work etc. Act offences and offences under the CQC legislation, where senior individuals are also liable for the offence. This will encourage directors and other senior individuals leading organisations to take greater ownership of the provision of information.

Secondly, since Committee, the Government have reflected on the penalties for this offence. The provision of accurate information is central to the safe functioning of the health and social care system as it provides the intelligence on which commissioners and regulators form judgments about the quality of care. Where that information is wrong, it can result in delays in taking action to protect patients and service users. Falsifying such information is a serious matter that can frustrate attempts to provide safe care for patients and service users. In the light of this, we believe that a custodial sentence is warranted in the most serious cases. I am therefore bringing forward Amendment 152E, which introduces a maximum penalty on indictment of two years’ imprisonment. I emphasise that the Government are not of the view that the custodial penalty will be used with any frequency. The aim of the offence is not to punish directors and other senior individuals but, rather, to drive improvement and performance.

The amendments also address a number of concerns that were raised in Committee. There was some debate about the scope of the false or misleading information offence. I should like to make it as clear as possible that the false or misleading information offence will apply only to the provision of publicly funded care. We will specify in regulations—a preliminary draft of which we have shared with noble Lords ahead of the debate—which information this will relate to, starting with information provided by hospitals. We are making a small number of amendments to clarify the scope of the offence. First, we are amending the definition of a care provider to make it clear that this does not include commissioners or regulators. We are also amending the wording so that the offence could apply to sole traders and all types of partnerships, such as GP practices, and to care providers who are funded by service users under direct payment arrangements. I beg to move.

[Lord Hunt of Kings Heath]

My Lords, I want to ask the noble Earl just one question. Why does it not apply to commissioners? We know from events that have happened in the past few years that in many cases commissioners have been responsible for issues by sins of omission or by not being completely open. It is a puzzle to me why all the emphasis is on providing and not on the way that commissioners actually operate. There is evidence, for instance, that the way some commissioners operate can have a direct impact on the quality of provision. We have already discussed this in relation to 15-minute visits. I am puzzled as to why so little attention is being paid to the way that commissioners themselves should operate.

[Earl Howe]

That is a perfectly reasonable question. The short answer is that, in determining the scope of this offence, our focus was and is on information that is closest to patient care, where inaccurate statements can allow poor and dangerous care to continue. That approach responds directly to the Francis report concerns about the manipulation of patient safety information. We believe, therefore, that the proposals are focused and proportionate. We are targeting this offence on the key patient safety and quality data that commissioners and regulators use to assess performance. We think that we have the balance right.

Business of the House

Debate between Earl Howe and Lord Hunt of Kings Heath

Wednesday 16th October 2013 Lords Chamber

[Lord Hunt of Kings Heath (Lab)]

My Lords, before we move on to Report, I would like to raise a point arising from an amendment to the Care Bill that the Government laid late last night—indeed, some might say “sneaked out 10 minutes before the start of the England-Poland game”. This matter will come to be decided by your Lordships on the last day of Report on Monday night.

Amendment 168A is not a technical or insubstantial amendment; it relates to the powers of special administrators in dealing with NHS trusts that are considered to have failed. It follows what happened in south London. Following the appointment of special administrators, proposals were made to downgrade Lewisham Hospital’s accident and emergency department, even though Lewisham is a well run and much supported hospital. This hospital was completely outside the remit of the special administrators. This led to court proceedings where the Government had to back off in relation to the changes to Lewisham Hospital.

This amendment would essentially permit what the Government wanted to happen with Lewisham Hospital, but which was stopped, to be able to happen in future. Whether or not the Government are right or wrong, this is a very important subject. It deserves full scrutiny in your Lordships’ House, not to be taken as last business on the last day of Report when the House has had no other opportunity of discussing this important matter. I ask the noble Earl, Lord Howe, to agree that this amendment be recommitted to a Committee of the House in order that it can receive full and appropriate scrutiny.

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

My Lords, I do not propose to debate this amendment now, but I will refer the noble Lord’s request through the usual channels.

Care Bill [HL]

Debate between Earl Howe and Lord Hunt of Kings Heath

Wednesday 16th October 2013 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, this has been a very important debate and I am sure we are grateful to the noble Lord, Lord Low, for the persuasive way in which he moved his amendment. There was a lack of certainty about the scope of the Human Rights Act, arising from the YL case which decided that a private care home providing residential care services under contract to a local authority was not performing a public function and its residents were therefore excluded from the protection of the Human Rights Act.

The noble Lord, Lord Skelmersdale, was right to remind us that we are on Report, but I wanted to reflect on a point made by the noble Lord, Lord Pannick, in Committee. To an extent, it is an answer to the noble Lord, Lord Faulks. What the noble Lord, Lord Pannick, said is that the vulnerability of the person receiving care and the risk of abuse is the reason why he thought the law should impose duties on the provider under the Human Rights Act. In all those circumstances, it should encourage the maintenance of high standards and provide a direct remedy for the victim in appropriate cases.

In Committee, we heard from the then Minister, the noble Baroness, Lady Northover, who relied on two defences of the Government’s position. The first was—as the noble and learned Lord, Lord Hope, has reminded us—that those providers of publicly arranged health and social care services, including those in the private and voluntary sectors, should consider themselves bound by the duty. I am sure that we should all consider ourselves to be bound by many things, but the fact that we consider ourselves to be so does not mean that we are bound by them.

The Government’s second defence was that the Care Quality Commission as the regulator is subject to the Human Rights Act and that may give rise to a positive obligation to ensure that individuals are protected from treatment that is contrary to their convention rights. It is a duty that falls on the CQC itself, and I remind the House that we are talking about thousands and thousands of providers of services. I do not think that it is a sufficient defence for people who are caught in a vulnerable situation. The noble Lord, Lord Faulks, expressed doubts about including a private function and he pointed to a number of safeguards that already exist, including Section 6 and the CQC, but the vulnerability of so many of the people who we are concerned about seems to express a need for greater statutory provision.

I also remind noble Lords that many of the people we are talking about will move in and out of private care and public care, and at some point under this legislation will actually be in receipt of public support as well as contributing to the cost of their care. We know that when the cap comes in, people will then be entitled to public support, but that does not cover the hotel costs which are estimated at around £12,000 a year. Many people will be in receipt of public support while also having some form of private contract and top-ups, which we have discussed. It would ensure that people had a relationship both in terms of public support and a personal relationship with their private providers. For all these reasons, the argument put by the noble Lord, Lord Low, is very persuasive indeed.

In Committee, the noble Baroness, Lady Northover, said that she thought that talks would be undertaken. I am not aware of those talks and certainly the Opposition have not been invited to them. I hope that the noble Earl will be able to report on what discussions have taken place. At this point, however, we should note the arguments that have been put and I have great sympathy with the noble Lord, Lord Low.

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

My Lords, noble Lords have spoken eloquently in support of these amendments and I appreciate the strength of feeling across the House. This is an important issue that is fundamentally concerned with the safeguarding of vulnerable people. While I always hesitate in the extreme to disagree with so many distinguished noble Lords, including noble and learned Lords, I have to say to the House emphatically that these amendments are neither necessary nor an appropriate way to achieve the objectives that are being sought.

As I said before on this issue, the Human Rights Act is about public functions; in other words, it is legislation that concerns the interface between the individual and the state. This philosophy underpins the European Convention on Human Rights and therefore also the Human Rights Act. The noble and learned Lord, Lord Hope of Craighead, to whom I listened with great attention, referred to the case of YL in response to my noble friend Lord Willis, and he urged that the judgment in that case should be accepted and that we should essentially move on. I respectfully agree with that, but I suggest that the key point in this context is what the previous Government did through the Health and Social Care Act 2008. The Act strengthened the regulatory powers to ensure that the Care Quality Commission can enforce regulatory requirements that are in line with the relevant provisions of the European convention, and this applies to all providers of regulated activity, which includes personal care whether publicly or privately funded.

--- Later in debate ---

[Earl Howe]

My Lords, I am pleased that I have been able to table amendments that significantly strengthen these important provisions, and I am grateful to noble Lords for acknowledging that. Currently, assessment under the transition provisions has to be requested and I sympathise with the concern that in some instances, people who are unaware that they can request an assessment may lose out.

Amendments 84, 87, 89, 92, 94, 96, 98, 102, 103, 106, 108 and 113 remove the need to request the assessment. I have also tabled Amendments 85, 95, 99 and 104. They will replace provision that local authorities may assess a child, a child’s carer or a young carer when it appears to them that it will be of significant benefit to the individual to assess and where they are likely to have needs once they turn 18, with a duty that a local authority must assess in these circumstances.

Amendments 110 and 111 reflect an amendment to the young carer’s amendment to the Children and Families Bill. This is an example of the detailed work undertaken to ensure that the two Bills work together. I want to reassure my noble friend Lady Gardner in that context that we have done a great deal of work over the summer to make sure that that is indeed the case. Amendments 83A, 84A, 89A, 93A, 94A and 94B, tabled by the noble Lord, Lord Patel, and the noble Baroness, Lady Finlay, reflect concern that a local authority may leave it too late to carry out an assessment. I need to be very clear about this. The amendments I have tabled place a duty on local authorities that they must assess at the time where it appears to them that there is likely to be a need when the young person turns 18, and it is of significant benefit to that individual to assess at that time. My noble friend Lady Gardner was worried that the government amendments might not be sufficiently precise or prescriptive. The clauses are formulated in this way precisely so that assessments happen at the right time, whether that is before or after the age of 14, depending on the individual. The Bill approaches transition planning with a firm focus on assessing at the right time for the individual by the new duty to assess where it would be of significant benefit to the individual. I am not persuaded that the interests of young people are best served by prescribing when assessment should take place.

[Lord Hunt of Kings Heath]

I understand what the noble Earl is saying: it is difficult to prescribe in legislation. However, does he take the point that experience suggests that in the main assessments do not take place early enough, so when the young person is a little older it is often too late to put in the necessary arrangements? Behind the stricture of saying that it should be done at that age lies a real concern about how it works out in practice.

[Earl Howe]

My Lords, I accept that that is a problem in many cases and it needs to be addressed. It should be addressed satisfactorily by the government amendments in combination with guidance, which I am about to refer to.

To prescribe the age thresholds proposed would run the risk of failing young people and their families by creating a system that is run according to the age of an individual, rather than according to what is best for the individual at a given time in their life. I remain absolutely committed to ensuring that the question of when to assess a child, carer or parent carer is further addressed in guidance. This will do justice to the broad range of needs and circumstances of young people and their families at the point of transition. Guidance will be developed with the involvement of stakeholders.

Care Bill [HL]

Debate between Earl Howe and Lord Hunt of Kings Heath

Wednesday 16th October 2013 Lords Chamber

[Earl Howe]

My Lords, I am sure that we are all aiming for the same effect and that there is little difference in the approach that we are taking. The amendment of the noble Lord, Lord Hunt, is drafted as a stand-alone duty: it would place a duty of candour on providers, but it would operate outside of the CQC registration system. As such, it is not clear who would enforce the duty of candour or what would be the consequences for a provider who did not observe the duty.

Introducing the duty as a requirement for registration with the CQC comes with a ready-made enforcement vehicle, including the power to prosecute providers who do not meet the duty. In Committee, we explained why this is our preferred approach. It would give the flexibility to develop the duty in consultation with service users and carers. I can indeed confirm that patient groups will be included. The duty itself will have the same legal power in secondary legislation as it would in primary legislation.

We are making real progress in taking this forward. In the summer, the CQC consulted on plans to introduce a duty of candour set through its registration requirements. The CQC is due to publish the findings from the consultation shortly. The department plans to consult on a draft regulation later in the autumn. I assure noble Lords that both I and my officials would be pleased to discuss the content of the draft duty of candour regulation with them in detail as we develop the final regulation. I confirm to the noble Lord, Lord Hunt, that these will be affirmative regulations.

On the threshold, both the Francis and the Berwick reports recommended that the statutory duty of candour for CQC-registered providers should apply in instances of death or serious injury/incident. There is a balance to be struck. We accept the Berwick report finding that an automatic duty of candour covering every single error could lead to defensive documentation and large bureaucratic overheads that would distract from care.

I hope that my amendment reassures noble Lords of our strong commitment to introducing a duty of candour and that they will feel able—

[Lord Hunt of Kings Heath]

Can I take it that, if that is the Government’s position, which will be set out in regulations, guidance to the providers of services regulated by the CQC would none the less make it clear that the principle of candour would apply to all such cases? I can see the distinction with regard to the seriousness of the incident in relation to the action that can be taken. The risk would be that a statutory duty of candour within the regulations might be taken the wrong way for cases which were not classified at such a serious level.

[Earl Howe]

I certainly take the noble Lord’s point. There is an issue of interpretation which we will want to clarify through guidance. That is what we intend to do. I look forward to discussing this with him and other interested noble Lords in due course. I hope that that will be sufficient to persuade the noble Lord, Lord Hunt, not to press his amendment when we get to it.

Tobacco Products Directive

Debate between Earl Howe and Lord Hunt of Kings Heath

Tuesday 15th October 2013 Lords Chamber

[Lord Hunt of Kings Heath (Lab)]

My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I refer noble Lords to my health interests in the register.

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

My Lords, we are very pleased to see the move towards tougher action on tobacco, with Europe-wide controls banning flavoured cigarettes and the introduction of stricter rules on front-of-pack health warnings. However, we are disappointed that the Commission’s proposal to regulate nicotine-containing products, including e-cigarettes, as medicines was not supported by the European Parliament. We believe that these products need to be regulated as medicines and we will continue to argue for this during further negotiations.

[Lord Hunt of Kings Heath]

My Lords, I am grateful to the noble Earl, but is he particularly disappointed that it was Conservative MEPs who voted to weaken tobacco packaging warnings and blocked a ban on slim cigarettes, which are targeted at young women? Will the Government make amends by agreeing to amendments to the Children and Families Bill which would mandate the introduction of standardised packaging in this country?

[Earl Howe]

My Lords, the tobacco products directive, as the noble Lord will know, does not seek to introduce standardised packaging. As he will also know, the Government have decided to wait before making a final decision on that issue but we want member states to have the flexibility to make further progress on domestic tobacco control measures in certain key areas that go beyond the new directive. We have been helping to shape the final text of article 24 to achieve that objective.

Care Bill [HL]

Debate between Earl Howe and Lord Hunt of Kings Heath

Monday 14th October 2013 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, I have added my name to Amendment 76 of the noble Baroness, Lady Greengross. I also support Amendments 123 and 124. Leonard Cheshire Disability put it so well when it said that it was concerned that the Bill, in placing a number of important and complex duties on local authorities, will have a substantial impact on the lives of older and disabled people without providing appropriate routes for appeal against unjust or factually inaccurate decisions. It says that there is a compelling case for the Government to set up a system to resolve cases where there are disagreements between the local authority and the individual.

When we think of the various ways in which local authorities can impact on individuals who have come within the care system—support eligibility criteria, financial assessment, operation of the cap, charges, personal budgets and the boundary between NHS continuing care and means-tested social care—surely there have to be opportunities for a person to appeal against decisions of the local authority. In Committee, the noble Earl relied first on the current complaints system of local authorities and, secondly, he went on to point out that if a complainant was not satisfied with the response from the local authority, they were then able to refer the case to the Local Government Ombudsman.

However, a complaints system is not really what noble Lords are calling for. Anyone who has seen responses from local authorities to complaints will know that they tend to find in favour of themselves and rarely reopen a question of substance. Noble Lords want an opportunity for a person concerned to put their case and for that case to be considered by a group of people who may be said to be independent of the local authority. Like the noble and learned Lord, Lord Mackay, and my noble friend Lord Warner, I am keen on the tribunal approach which deals with social security cases; I have witnessed these cases. Although the noble Earl felt in Committee that these would be expensive, I believe that it is a cost-effective way of allowing people to put their case and for that matter to be decided. I am sure that in the long term it will be more expensive if there is no proper decision. I suspect that we will see lots of judicial reviews being initiated against local authorities. They do not and will not have a proper system for dealing with appeals.

The noble Earl said in Committee that the Government were consulting on processes for providing redress. Although he thought that the results of that review would be available before the Bill had concluded its passage through Parliament, I suspect that that will be too late for your Lordships’ consideration. I therefore hope that the noble Earl might be able to give us some comfort that he will in fact give further consideration to this. I hope that we might return to this point at Third Reading.

[Earl Howe]

My Lords, at the heart of these amendments is an important issue: the voice of older and disabled people. I hope that I can give some reassurance to the House.

Amendments 76, 123 and 124 would include in the Bill provisions for an appeal system that allows individuals to appeal against decisions of, first, the local authority relating to their needs for care and support and, secondly, the relevant NHS body relating to their eligibility for NHS continuing healthcare. Of course, those are quite separate matters.

On the amendments relating to local authority decisions on care and support, I will briefly run through the current, essentially complaints-based, arrangements. These arrangements were reformed via the 2009 regulations, which require local authorities to publish arrangements for the consideration and timely handling of complaints. Local authorities have flexibility in developing their own procedures, which may of course result in varying user experiences. If, having raised a complaint with a local authority, a person is not satisfied with the response, they can refer the complaint to the Local Government Ombudsman. The ombudsman is independent of the local authority. It can investigate whether the decision-making process has been conducted appropriately and make a recommendation to the local authority.

As has been said, the Bill will result in many more people being brought into contact with their local authority, so it is appropriate that we are reviewing the current arrangements regarding appeals via a public consultation. If that is consistent with what the noble Lord, Lord Hunt, regards as the Government having a second look, I believe that we are doing so. Through the consultation we have heard from user representatives a concern voiced this evening by the noble Lord, Lord Warner: that current arrangements are not sufficient to withstand the additional pressures of the Bill reforms.

While our initial view is that it is likely that some changes are needed, we really need to wait for the consultation to close before making any judgments. I will be in a position to update noble Lords about that in December. Although I acknowledge that this is a work in progress, the Government are on the case. I hope, with that assurance, that the noble Baronesses and the noble Lords will therefore be content to withdraw Amendment 76 and not to move Amendment 123.

In response to the noble Baroness, Lady Meacher, who asked whether we would consider a formal tribunal, our current assumption is that a tribunal process would be likely to slow down the process of resolving complaints and would add significant costs which would, in turn, produce a further burden on the system. There is a range of approaches to resolving complaints and providing redress. It is advantageous to have a flexible system that works well and efficiently at a local level, in a manner that is proportionate to the type of complaint.

The noble Baroness also asked whether we might consider an independent panel rather than a tribunal, although I was not sure whether those two were the same thing in her mind. The funding reform consultation that covers this issue will close late in October. Following this review, should we decide to make a change we expect we could do so through secondary legislation. Of course, we are not ruling anything out in the consultation. If it transpires that we wish to make changes that require primary legislation we would ensure that proposals were brought forward at the earliest opportunity. However, if changes were desired—for example, to introduce a requirement whereby a decision was reviewed by an independent panel—in this case we would do that by amending existing regulations.

The noble Baroness asked whether I could assert that decisions in this area will not vary across the country and that there will not be errors. Of course, there is scope for errors to take place and for variation. I can say that we would want the following principles to underpin the mechanisms for redress and resolving complaints: clarity, local accountability, fairness and timeliness. Lastly, there should be an independent element. I hope that that is helpful as a guide at this stage.

NHS: Health and Social Care Act 2012

Debate between Earl Howe and Lord Hunt of Kings Heath

Wednesday 9th October 2013 Lords Chamber

[Lord Hunt of Kings Heath (Lab)]

My Lords, I beg leave to ask the Question standing in my name on the Order Paper, and draw the House’s attention to my health interests in the register.

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

My Lords, Part 3 of the Act does not change the requirements on clinical commissioning groups when they tender health services. The rules are the same as under the Public Contract Regulations 2006, introduced by the previous Administration, and as set out in the rules for commissioners.

[Lord Hunt of Kings Heath]

My Lords, the noble Earl will recollect our debates on the Health and Social Care Act 2012, when repeated assurances were made by Ministers that clinical commissioning groups would not be forced to tender out services. However, all the evidence to NHS England and the advice which clinical commissioning groups are getting from their lawyers suggests that under Section 75 of the Act, they have to do so. Does the noble Earl agree that that is an awful waste of money and effort, and that all it is doing is fragmenting services?

[Earl Howe]

My Lords, commissioners do not have to use competitive tendering for all services. First, acute elective care—which represents the vast majority of NHS services—is not secured through competitive tendering at all, and that will continue to be the case. Secondly, a single-tender action may be justified on the basis that there is only one provider able to meet the clinical quality and safety standards that the commissioner requires. There will be guidance coming out on that, and draft guidance has already been published. Any confusion that exists among commissioners should be clarified by that means.

Care Bill [HL]

Debate between Earl Howe and Lord Hunt of Kings Heath

Wednesday 9th October 2013 Lords Chamber

[Earl Howe]

I can do no other than to look at this again, but I want to reassure my noble friends that their concerns are groundless because of the way that this clause has deliberately been framed. It is framed in terms of high-level principles. It is not designed to exclude any form of well-being whatever. It is designed to look at the person holistically and to ensure that no aspect of well-being is overlooked. I shall of course have a fresh look at this question, but I ask my noble friends, and the noble and right reverend Lord, Lord Harries of Pentregarth, to understand that this clause has been framed in a particular way quite deliberately, not to exclude any form of well-being but to encapsulate all forms of well-being.

In other words, the provisions allow consideration of this and indeed many other matters where relevant. I hope that with these assurances the noble Lord will feel able to withdraw his amendment, and indeed to support the amendments which I have tabled.

[Lord Hunt of Kings Heath]

The noble Baroness, Lady Barker, will respond to the point in relation to Amendment 4. Part of the confusion arises because the Department of Health seems to equate spiritual well-being with emotional well-being. I do not think that that would be generally held to be appropriate. Whether you have a faith or none, it does seem to me that by classifying spiritual belief within emotional well-being, the department has fallen into a pit of its own digging. I hope the noble Earl will indeed go back, and I assume that means this could be debated at Third Reading. Clearly noble Lords would wish to come back to it.

Whether this is for the noble Baroness, Lady Barker, or for the noble Earl, taking up the point raised by my noble friend Lord Warner, the chairman of the All-Party Humanist Group, my assumption would be that the duty on a local authority in relation to spiritual well-being would apply only when a person had a belief. Whether one defines humanism as spiritual I do not know—we are getting into deep waters here. I assume it is not intended that a person of no religion be required to be treated by the health service or local government as having a spiritual need.

We welcome Amendments 2, 3 and 138, and I beg leave to withdraw Amendment 1.

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[Earl Howe]

My Lords, Amendment 28 is in my name and therefore I consider it to be well shaped and well drafted. I am not about to suggest improvements on the hoof, but I shall take the noble Baroness’s suggestion away with me.

[Lord Hunt of Kings Heath]

My Lords, it is good to know that after due consideration the noble Earl is satisfied with his own amendment. On the housing amendments, the noble Lord, Lord Best, will make up his own mind, but it struck me that he is relying on the difference between the local authority as the local housing authority and the local authority as the care authority. He is of course right to say that in county shire areas in some places it is a different function. However, there remains a concern, given that in relation to care and support we are talking about difficult circumstances, often with vulnerable people, over whether the appropriate advice and support will be given. No doubt the noble Lord, Lord Best, will reflect on that.

On my Amendment 11, on integration, the noble Earl relies on existing duties of co-operation on the NHS, and Clauses 3 and 6. Where I fundamentally disagree with him is on the impact of the 2012 Act. The noble Earl may not be aware of just how difficult it now is for the NHS to put a cohesive plan and programme together in every locality, because the current incentives do not encourage that integration. I know that he warns us against putting what he thinks is a superfluous clause in the Bill—but this Care Bill is vitally important. It revises social care legislation and adds the foundations of the implementation of the Dilnot commission. It would be very helpful if there were an explicit duty of co-operation on the National Health Service, because we will not bring about integrated care without the full support of the National Health Service. On due reflection, I would like to test the opinion of the House.

Care Bill [HL]

Debate between Earl Howe and Lord Hunt of Kings Heath

Wednesday 9th October 2013 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, I agree with the noble Earl that the commissioning policies of some local authorities are called into question. However, are there some issues here regarding the resources they have available? Is the overall reduction in local authority expenditure not also responsible for some of these policies?

[Earl Howe]

My Lords, we certainly know that the reduction in resources has had some effect. However, it is interesting that the feedback from local authority chief executives and directors of adult social services suggests clearly that the detrimental effect on the provision of adult social care is not as dramatic as one might suppose from the drop in local authority budgets. This is partly because of the funding provided by my department to local authorities to make up some of the gap. I would not wish to say that there has been zero effect. We think, from the feedback, that the volume of services has diminished by about 5%. This is 5% too much, in most people’s eyes, but may not be as significant as some have feared.

My second point is that central prescription risks prohibiting practices that may, in some circumstances, be consistent with high-quality care. For example, 15-minute homecare visits could well be appropriate in some situations, for instance for helping people to take medication, which is not a process that takes very long at all. Further, using legislation to ban specific processes may result in perverse incentives arising, without addressing the actual problem. A number of noble Lords made that point.

Thirdly, legislating for a specific period of time for which homecare visits must last risks reinforcing one of the key problems here: inappropriate use of time and task commissioning. Instead, we need to move away from overly prescriptive commissioning practices which focus on—

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[Earl Howe]

I do understand that and apologise if I implied anything different. I was seeking to make the point that once you specify a period of time in a Bill it starts to look prescriptive, even if that is not the intent or the effect.

As I was saying, we need to move away from overly prescriptive commissioning practices that focus on price and time-slots, to consider how local authorities can deliver better outcomes and quality care. None the less, there is more that we can and will do to tackle poor commissioning practices. There is a role for regulation. We are therefore proposing an amendment that will make it clear that the CQC may, with approval from both Secretaries of State of DH and DCLG, undertake a special review of local authority commissioning of adult social services in cases of systematic failure. Subsequent to any such review, CQC could issue an improvement notice in the event of a non-substantial failing and recommend special measures to the Secretary of State in the event of substantial failings.

We also intend to issue statutory guidance specifically on local authority commissioning. This will be a valuable opportunity to influence local practice. In particular, we will include in this guidance clear examples of high-quality and poor-quality commissioning practices to support local authorities to develop and improve their own approach.

As well as tabling Amendment 27, we have also, in response to points raised in Committee, tabled Amendment 24, which will require local authorities to consider through their commissioning decisions the importance of fostering a workforce able to deliver high-quality services when shaping local markets. This amendment is, of course, not just about local authority commissioning practices but more widely about how the local authority can work with the market in its area, including with providers from which it does not commission services, to foster a high-quality workforce. This reflects our strong belief that the characteristics of the workforce, including opportunities for learning and skills development, have a direct relationship with the quality of the care that individuals receive. Improving the capability of the workforce through continued skills development and appropriate working conditions is therefore a key component of market shaping.

I therefore fully agree with the intention behind Amendment 151, but I note that the CQC already has powers to take into account standards of employment as part of its inspection of providers. A separate duty on the CQC to undertake periodic assessments of employment standards would duplicate what the commission is already able to do and compel it to undertake assessments of a very specific nature. For that reason, I cannot support Amendment 151, tabled by the noble Lord, Lord Hunt. It is vital that we give the commission the time and freedom to develop its own performance-assessment methodology. In the fullness of time, this may mean that ratings consider employment standards, but this should be a matter for CQC to determine after considering the views of key stakeholders.

[Lord Hunt of Kings Heath]

I am grateful to the noble Earl for giving way and I imagine that we can debate this more fully when we come to his amendments around CQC independence. However, there is surely a distinction to be drawn between the way that the commission does its work and the overall strategic framework in which it does it. I should have thought that it would be appropriate for Parliament to lay down that it would be right for the CQC to focus on standards in the care sector. Does the noble Earl agree that you can draw a distinction between the framework that is set out in legislation and the way in which the CQC does its work—and I very much support the idea of its independence?

Earl Howe: Yes, I accept that distinction, but Parliament has already vested in the CQC considerable scope to focus on any aspect of a provider it wishes to, which could well include its employment practices. It is not as if, when the CQC moves in on a provider and conducts an inspection, it cannot decide for itself that the employment practices are the mischief that it needs to investigate most closely.

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[Earl Howe]

My Lords, I should like to thank the noble Baroness, Lady Greengross, for tabling Amendments 29 and 125, on what is undoubtedly an extremely important issue, not just for the system but, most importantly, for the patients themselves. When someone is discharged from an acute care setting, care and support must be joined up to prevent unnecessary delays and readmissions that can be distressing to patients and their families and carers. The noble Lord, Lord Hunt, was absolutely right on increasing pressure on acute trusts, not least in A&E.

There is a mixture of reasons why this is occurring: the weight of patient demand; the acuity of patients who present at A&E, more of whom have to be admitted; workforce issues in some A&E departments; hospital discharge practices that may not be as efficient as they should be; an absence of follow-on care in certain locations or, indeed, adult social care services; and delays in installing home adaptations. One cannot generalise about this problem. One can say only that in many areas it is very real.

I will just correct the noble Lord on one issue: the £250 million that we have allocated to ease the pressures on A&E. Those moneys went to 53 NHS trusts before the end of September. They went to trusts that were most at risk of breaching the A&E standards. They were not chosen by Ministers or the Government. The process was led by NHS England and Monitor, so it was done on a structured and objective basis.

[Lord Hunt of Kings Heath]

The point is that the chief executive of each of those trusts had to sign, if you like, for the money, but they did not get all the money. Most of the money went to clinical commissioning groups. Some of them are still meeting to discuss how to spend it, which is the worry.

[Earl Howe]

At least we have given them more notice this year than they have had in previous years. Quite often, winter pressure money has been released into the system only around Christmas. We have consciously tried to do it several months earlier. While I acknowledge the truth of what the noble Lord said in certain areas of the country, I hope and believe that by the time the pressure becomes significant, those crucial decisions will have been made.

NHS: Out-of-Hours Services

Debate between Earl Howe and Lord Hunt of Kings Heath

Monday 29th July 2013 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, I beg leave to ask a Question of which I have given private notice. In doing so, I refer noble Lords to my health interests in the register.

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

My Lords, NHS England has closely monitored performance for all 111 providers, including NHS Direct, and reports weekly on performance to the Secretary of State for Health. NHS England will recommission NHS Direct’s 111 contracts and transfer staff who currently provide them to alternative providers. Patients should be reassured that they will continue to receive a safe and high-quality service when they call 111.

[Lord Hunt of Kings Heath]

My Lords, It is on this Government’s watch that a service staffed by unqualified call handlers has put patients at risk. When will Ministers take responsibility, and why did the noble Lord reject a plea from Dr Buckman, then chair of the BMA GP Committee, for the rollout of 111 to be slowed down because of risk to patient safety? Will the Government now agree to the release of all official advice given to Ministers on the service’s introduction?

[Earl Howe]

My Lords, the NHS 111 service is not unsafe—it is a safe service. In the vast majority of the country it has been provided very well for patients. We were confident that the service could be provided well, and so it has proved. The isolated cases where the service has fallen short are highly regrettable, but there is no issue about the quality of NHS Direct’s provision of NHS 111. I am afraid the issue there is that it got its sums wrong and cannot provide the service economically.

Care Bill [HL]

Debate between Earl Howe and Lord Hunt of Kings Heath

Monday 29th July 2013 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, this has been a very interesting debate. I open on today’s Committee by declaring interests as president-elect of GS1, chair of a foundation trust and a consultant trainer with Cumberlege Connections.

There is no doubt that the backdrop to our discussion is one of the availability of resources. As every day goes by in Committee, we have discovered new responsibilities being placed upon local authorities: the provision of information and advice; the assessment of adults’ and carers’ needs for support and the provision of that support; the implementation of the national eligibility criteria; the Dilnot proposals; and the assessment of self-funders.

I am sure that my noble friend Lord Lipsey is right. We have said a number of times, without really getting a response yet from the noble Earl, that the moment that self-funders become aware that they are essentially subsidising the people funded by local authorities, there will be an end to that. I am absolutely convinced that self-funders will express the view that they ain’t going to put up with it. I wonder whether the Government have thought through the implications of that. I doubt that they have, but those implications will have to be thought through. People will not find it acceptable to be paying above the local authority rate, then taking longer to get to the £72,000 cap, and then finding that the local authority will fund them only at its rate, with potential consequences for where they can be provided with care. It will possibly not be in the care home to which they have already been paying for their own resources. There is real concern about the financial implications of the Bill, which noble Lords all generally welcome, and the fact that the gap between the expectation and the reality could be very wide indeed.

We are of course confronted by the very difficult funding pressures that are on local authorities at the moment. Noble Lords have spoken eloquently about that. My noble friend Lady Bakewell pointed to the differential funding as a result of the Government’s change in formula as far as local authorities are concerned. That is why the Labour Party has called for £1.2 billion of NHS underspend to be transferred to social care over the next two years. However, that is just the start. We are going to see major demographic challenges, which will affect the NHS as much as social care. That is why my noble friend’s amendment has so much ingenuity in suggesting that the Office for Budget Responsibility be asked to complete a review of funding of adult social care by the end of 2014.

This has to be linked to NHS funding as well. I was very interested in a piece in the Independent this morning, emanating from Sir Bruce Keogh. It pointed out that for the NHS since 1948, the amount of money that has been made available has gone up by an average of about 4.5% a year. Now, he says, we are looking at no increase at all. I am not sure that the bodies for which the noble Earl’s department is responsible have woken up to that. For instance, NICE continues to produce guidance which, if implemented, would cost more money. The reports coming from royal colleges and the Keogh review of the 14 trusts talk a lot about staffing deficiencies, but the whole thrust still coming from these reports is to increase expenditure. There is genuine concern that we are talking up the expectation on health and social care knowing that at the moment we cannot see our way to finding where the resources are going to be. Without making this too much of a political debate, I thought that Mr Lansley’s comments in the run-up to the previous election in relation to the so-called death tax were very unfortunate in trying to get a dispassionate debate about how we are to find our way to funding health and social care in future.

This is a very interesting debate. My noble friend has done us a great service in allowing us to discuss this in depth. I hope there may be some sympathy from the Minister for the amendment.

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

My Lords, in some ways this is a reprise of an earlier debate we had in Committee, but none the less it has been valuable. I am grateful to all noble Lords who have contributed. I begin by saying to the noble Lord, Lord Warner, that I am in total agreement that care and support funding is vital. It is essential for the success of the reforms we have been discussing that these services are fully funded. I start by assuring the noble Lord on one key point, which is that the costs of these reforms have been clearly set out in the Bill’s impact assessment, as was our duty.

I listened with care to the case put by the noble Lord that the Office for Budget Responsibility should conduct a review of care and support funding. I do not believe that such a review would be necessary or desirable. As noble Lords will be aware, the Government recently announced the conclusion of the spending round for 2015-16. It is only right that decisions on care and support funding are taken by the Government at the same time as spending plans are set for all areas of government. It is the job of the Government to decide on priorities and what is affordable. Any further review by the OBR would clearly cut across that process.

There is also an issue about the OBR’s autonomy. The OBR performs its duties independently with complete discretion to determine the content of its publications and its programme of research and analysis. It would not be in keeping with the OBR’s duties or its independence to have the Secretary of State commission a report in the way the noble Lord, Lord Warner, suggests. The main duty of the Office for Budget Responsibility is to examine and report on the sustainability of public finances, including a statutory obligation to publish an annual fiscal sustainability report. The most recent of these was published this month and already includes long-term projections of care and support spending, taking account of the cap on care costs and the extension of the means test. A further report, such as the one proposed by this amendment, would risk duplication and repetition.

It will perhaps be helpful if I confirm that the projections set out in this OBR report are broadly in line with the department’s own, and it is on the basis of this analysis that I am in a position to say that the spending round settlement delivers the funding required for the care and support system. We have identified the financial burdens facing care and support, including those arising from this Bill and demographic pressure, and we are putting enough money in to maintain service levels. This will ensure that care and support can be protected and will allow us to deliver on the reforms set out here.

However, we need to do more than simply put more money into care and support. We also need to improve the way that health and care is delivered, and in particular how these services work together. That is why the settlement includes a £3.8 billion pooled health and care budget—the noble Lord, Lord Warner, referred to this—which will be given only on the basis that services are commissioned jointly and seamlessly between the local NHS and local councils.

This is, in many ways, a historic moment. What we intend to do represents a genuinely new departure. It will help to ensure everyone gets a properly joined-up service, with people getting the care they need from whoever is best placed to deliver it—whether that is the NHS or the local authority. Chris Ham from the King’s Fund has welcomed this, calling it,

“a much more ambitious approach to delivering integrated care and a real opportunity to improve the co-ordination of services for patients and service-users”.

We will ask local areas to work collaboratively together in drawing up plans for the use of this money, ensuring that the priorities of both the NHS and care and support are addressed. All plans will include a commitment to protect care and support, ensuring that this money goes where it is needed.

The settlement also provides the funding for the commitments and duties set out in this Bill, and factors in the growth in demand from an ageing population and a growing number of disabled people. With additional pressure on the system, we must ensure that the NHS and care and support services are working together to offer the best possible services for patients, while also addressing the growing demand on the system, which noble Lords have rightly referred to.

The creation of pooled budgets will help to achieve the more efficient use of resources in the system as a whole, driving down costs by tackling expensive pressure points in the system, like A&E, by improving preventive services, reducing unplanned hospital admissions and by allowing people to stay in their homes and live independently for longer. It is intended that £1 billion of the pooled fund will be linked to outcomes achieved, ensuring that local areas are incentivised and rewarded for achieving better outcomes, including those that could reduce financial pressure on the system.

Noble Lords have rightly referred to the pressure on local authority budgets. Of course, we recognise that the last spending round provided local government with a challenging settlement. That is why we took the decision to provide extra funding to help local authorities maintain access to services; that includes £1.1 billion in 2014-15. In fact, spending has been roughly flat over the period since 2010-11. The latest survey shows that councils are expecting a small increase in expenditure next year. The survey also shows that the vast majority of the savings that have been made have been efficiencies. Councils have largely been able to protect services. They should now, however, be looking at how they can transform care by innovating and exploring new ways of working. Many local authorities are achieving much greater integration between health and care services and thereby improving the care for those they look after.

The latest ADASS budget survey shows that only 5% of directors of adult social services believe that quality has suffered as a result of the savings they have made. Five per cent is regrettable but it is a lot less than some of the figures that we see printed in the media.

In 2012-13, bed days lost because of delays attributable to social care were nearly 50,000 fewer than in the previous year. One of the other criticisms one hears is that quality is getting worse in social care and that that is having an impact on the NHS. But if we are going to continue to make these sorts of improvements, we need radically to rethink how we deliver health and social care and move to a more integrated system.

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[Lord Hunt of Kings Heath]

My Lords, subject to later comments about funding and the issues raised by my noble friend Lord Beecham, I have a great deal of sympathy with my noble friend Lord Dubs in wanting to have some kind of transparent appeal decision. It is clear from our debates on the Bill that local authorities will be called upon to make decisions which will have a fundamental impact on people living in their local authority area—eligibility, care plans, personal budgets, support for carers, self-funders baseline assessment and many more. We know that this will be hard for many people and their families to navigate. At the moment, it appears that the Government are relying either on local authorities themselves to develop their own mechanism, which might not enjoy public confidence, or on referrals to the Local Government Ombudsman. As my noble friend Lord Dubs says, that would be on the basis of maladministration rather than, perhaps, on the facts of the case.

Judicial review is hardly an option for many people. The reduction in legal aid will have an impact on the ability of places such as law centres to take JR cases forward on behalf of clients. I am the patron of Birmingham Law Centre, which has had to close its doors. In the last few years, the law centre was able to undertake a number of JR cases but it is no longer there to do that. The availability of a simple, low-cost appeal system would command some support.

When I was DWP Minister, I attended a day at the Birmingham tribunal centre looking at how cases were conducted. I was impressed at the ability of the three-person panels to allow the complainant to put their case across in a fairly informal setting with decisions made pretty rapidly. We know that these tribunal systems have been used more frequently with the introduction of the new arrangements. They command some public confidence. While I do not want to add to the financial burden on the system as a whole, I wonder whether it would be cost effective, as my noble friend Lord Warner says, for there to be a simple, fast, low-cost system. This will give people some confidence that, where they felt that the local authority had not made a reasonable decision, there would be allowance for it to be reconsidered. I am sure that this is a matter for discussion between Committee and Report and perhaps the noble Earl would be prepared to meet with my noble friend to discuss this further.

[Earl Howe]

My Lords, I am pleased that this important issue has been raised. I hope that I can provide the noble Lord, Lord Dubs, with at least a measure of reassurance relating to his concerns. As he has explained, the purpose of Amendment 104ZE is to include in the Bill provision for adults to make an appeal to the First-tier Tribunal if they disagree with the local authority about its decisions relating to matters such as eligibility, financial assessments, care and support plans and other obligations under this Bill. Often the individuals who access the care system are some of the most vulnerable in our society and it can seem daunting to challenge the decision of the local authority. I entirely agree that it is important that such people have the opportunity to make their voice heard if they feel that the local authority has reached the wrong decision in their case and that their argument is given the fullest consideration before a transparent, fair outcome is reached. The changes which the Bill would bring about will result in many more people being brought into contact with their local authority. This is why it is appropriate that we are now reviewing the current arrangements regarding complaints.

The current complaints arrangements for adult care and support were reformed in 2009 and are set out in regulations. The regulations require the local authority to have a publicised arrangement for the consideration and timely handling of complaints. Local authorities have flexibility in developing their own procedure for dealing with complaints. Each local authority will have a different process, and we appreciate that local variation may result in varying user experiences.

If a complainant is not satisfied with the response from the local authority, they are then able to refer the case to the Local Government Ombudsman, as has been mentioned. The Local Government Ombudsman is independent of the local authority. It can investigate complaints about whether the decision-making process has been conducted appropriately and can make a recommendation to the local authority.

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[Earl Howe]

Certainly, I anticipate that the results of the review will be available before the Bill has concluded its passage through Parliament. I stand to be corrected on that but I think I am right. In any case, changes to the way in which complaints are handled can be made through regulations under existing legislation, so I think that provides the necessary flexibility.

[Lord Hunt of Kings Heath]

Would the noble Earl find it helpful if, on Report, we introduced an order-making power in the primary legislation that is specifically built around the Bill?

[Earl Howe]

That might prove helpful but I will take advice on it. We do not want to duplicate powers that already exist in legislation. However, if we decide that changes are needed, we need to make sure that they can be expedited properly. I am advised that the consultation will close in October this year and that the review of complaints arrangements, of which the consultation is a part, will conclude in the winter. Therefore, if changes need to be made to the Bill, they will need to be made in another place.

The noble Lord, Lord Dubs, said that in our response to the Joint Committee it is vital to consider redress. Of course, the principle of that is not in dispute. Our review of complaints arrangements is in line with our response to the Joint Committee’s recommendation, as I hope he acknowledges. In answer to the noble Lord, Lord Warner, I agree with him that there are likely to be teething problems as this system is established. That is precisely why we felt the need to review the current system. We will aim to ensure that any new mechanisms are in place before implementing the new system, as I have already indicated.

With that, I hope that I have provided at least some reassurance to noble Lords opposite that we take this issue seriously. We understand the concerns that have prompted this amendment and will certainly give further consideration to the noble Lord’s idea of a tribunal system in the light of the outcome of the consultation. I hope therefore that for the time being he will feel content to withdraw his amendment.

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[Lord Hunt of Kings Heath]

My Lords, very briefly, I support my noble friend. In a sense, we have already had two debates on the employment practices of providers that are contracted by the local authority. The first was on Clause 5, regarding the local authority’s market-making role. We have also discussed under Clause 80 whether the Government, through regulations, will ensure that the CQC’s oversight of local authorities’ commissioning will be treated as a major priority.

The challenge for us on Report will be to deal with this issue by bringing it all together. There is no doubt that there is real concern about the employment practices of a number of companies that work in the adult social care sector and the lack of monitoring by local authorities in their commissioning. One way or another, the Bill will be very much enhanced if we can get to grips with this problem of poor employment practice. I have no doubt whatever that the general use of zero-hours contracts and the fact that those workers who are often low-paid have to pay the cost of travel themselves and are not paid for the time they take to travel from client to client leads inevitably to an impact on the quality of care, however worthy those people are. We will have a great opportunity on Report to do something about it and we will do so.

[Earl Howe]

My Lords, these are indeed serious issues and I am grateful to the noble Lord, Lord Warner, for raising them. Those who work directly providing care and support play a vital role in helping and supporting vulnerable people. Organisations that provide care must do all that they can to make sure that their workforce provides compassionate care and that people are treated with dignity, consistent with well-being principles.

Although the majority of care and support provided is good, I am aware that in some cases the practice of both providers and commissioners of care risks a negative impact on the well-being of those cared for. For example, the recent report of the Low Pay Commission has warned of lack of compliance with the national minimum wage, such as by not paying for travelling time between appointments. I am also aware that some local authorities’ contracts with care providers may lead to inappropriate practices, such as very short visits.

I agree entirely with the noble Lord’s intent to see a move away from such practices, which can undermine well-being, independence and dignity, as well as disempower those responsible for providing care and support. The question is how to do that. I believe that addressing these issues requires a broad range of approaches, some of which are already included in the Bill, but I am doubtful that further legislation is appropriate.

The terms and conditions of care and support workers, including pay, are set by employers within the existing requirements of employment legislation, with the same enforcement through HM Revenue and Customs, penalties and sanctions as in other sectors. All providers must, of course, pay at least the national minimum wage. This is law, and failure to meet the requirement is never acceptable. However, the law need not be repeated in the Bill or, indeed, in separate regulations that effectively duplicate those that we already have.

Where care and support is funded by the state, it is allocated through local authorities, which must ensure that the providers they commission from offer good value for money and a high-quality service. Clause 5 establishes a new duty on local authorities to promote a sustainable, diverse and high-quality market for care and support in their area, and is clear that an authority’s own commissioning practices must be in line with this duty. The Department of Health is working with the Association of Directors of Adult Social Services, the Think Local, Act Personal partnership and local authorities to embed this duty and improve commissioning generally.

We are providing firm leadership in this area. The Minister of State for Care Services, my colleague Norman Lamb, recently announced a home care challenge, whereby we will work with the sector to generate new ideas around improving quality in home care services and local authority commissioning. The department is also offering support to local authorities to develop their market-shaping capacity, and encourage high-quality provision and an understanding of market capacity and capabilities.

I am sure that the noble Lord, Lord Warner, will appreciate, without my needing to say this, that wages and associated employment practices are not the only determinant of service quality and a range of factors affect care workers having the right attitude, values and skills. The Department of Health is working on a number of initiatives with partners to develop a code of conduct and a recommended minimum training standard. Further work includes supporting workforce training through a workforce development fund and working with Skills for Care and the National Skills Academy for Social Care to improve the capability and skills of care workers. For the first time, this will now include support and training for personal assistants as well as people working for more formal providers. The department is also working with Skills for Care to develop a sector compact to promote culture change and skills development in the sector.

More broadly, through registration and monitoring, the Care Quality Commission enforces standards in this sector. The CQC requires that employers ensure that staff are well managed and have the opportunity to develop and improve their skills. Once services are registered, the CQC continues to monitor and inspect them against essential standards.

[Lord Hunt of Kings Heath]

I have never really been able to tempt the noble Earl to comment on the priority to be given by the CQC to the role of the providers and the responsibilities of local authorities in commissioning services. Can I tempt him to say more? Clause 80 clearly states:

“The Commission must, in respect of such English local authorities as may be prescribed … conduct reviews of the provision of such adult social services provided or commissioned by the authorities”.

Would the Government be willing to say to the CQC, “We will prescribe regulations that make it clear that this will indeed be a priority”? I have long felt that the way to deal with this is through the CQC’s own monitoring of how local authorities commission those services. It would be a way through if the Government were prepared to say that. The more I listen to our debates, the more I begin to think that this ought to be, of all the things that the CQC does, its number one priority.

NHS: Accident and Emergency Services

Debate between Earl Howe and Lord Hunt of Kings Heath

Thursday 25th July 2013 Lords Chamber

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

My Lords, the Government recognise the severity of this issue and acknowledge that there was a dip in performance. We are taking robust action to address these issues and the 95% standard on four-hour A&E waiting times has now been met for the 12 consecutive weeks ending 14 July. The Government and NHS England are now looking at how we address the long-term issues facing A&E and the wider NHS.

[Lord Hunt of Kings Heath]

My Lords, the crisis in A&E happened on this Government’s watch as a result of the disastrous structural changes that they embarked on, the drastic cuts in social services and the disastrous launch of the 111 service. The noble Earl has talked about robust action being taken, but he will be aware that yesterday the Health Select Committee made it clear that local urgent care boards are simply not getting to grips with the problem. We are therefore heading for another very difficult winter, with many services at breaking point. Will Ministers take responsibility? Why, when the noble Earl talks about robust action, is the Government’s emergency care review only to be implemented next spring, six months too late?

[Earl Howe]

My Lords, I do not share the noble Lord’s analysis of the problem. A&E departments are currently meeting targets, but the long-term pressures have been building up for many, many years. Over the past decade, emergency admissions have risen by 35% and an extra 1 million patients have attended A&E compared to three years ago. This is not anything recent. The Government’s reforms will, if anything, help to ease the pressure because doctors now have the freedom to provide the health services their patients really need. The action we are taking in the immediate term is to encourage doctors and all the key players in the health system to get together in urgent care boards to make sure that next winter we see a much easier picture.

National Health Service (Licence Exemptions, etc.) Regulations 2013

Debate between Earl Howe and Lord Hunt of Kings Heath

Thursday 25th July 2013 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, I am sure that the whole House is indebted to the noble Earl for his lengthy explanation of the order before us. I just want to ask him three or four questions.

I noticed in the Explanatory Memorandum that there is an intention to review how licences are working and that it is to take place during the next Parliament. I must say that I thought it was rather presumptuous of officials to assume that this will be done. Of course, it is for me to point out that Governments cannot bind their successors to action to be taken, so I look forward to a Bill that will perhaps do away with some of the requirements that will be necessary.

The noble Earl will not be surprised if I ask him a question about the NHS Trust Development Authority. Reference was made in his remarks and in the Explanatory Memorandum to the relationship of the NHS TDA to the other regulatory bodies. Can he update the House on how long he now thinks that the NHS TDA is likely to be in existence? Of course, this relates back to the question we debated in the Bill, which is: what is his expectation in relation to non-foundation trusts and the pipeline, if you like, towards foundation trust application? Can he also give an indication of which services are likely to be designated as commissioner-requested services?

Paragraph 7.15 of the Explanatory Memorandum says that Regulation 7,

“exempts any provider that is not required to register with the CQC from the requirement to hold a licence from Monitor … This exemption would cover, for example, providers of ophthalmic services”.

Can the Minister tell us the rationale for why ophthalmic services are excluded? Is it to do with the fact that they are regulated in a different way?

The Explanatory Memorandum, at paragraph 7.16, says that NHS England is,

“well placed to enforce standards in relation to primary medical and dental services”.

As there has been a considerable amount of debate in the last few months about the quality of primary medical services and out-of-hours performance, can the Minister say anything about how NHS England will go about its business in ensuring standards in primary medical services? There are questions about whether it has the capacity to do that, and any reassurance on this subject would be welcome.

Finally, on exemptions, as I understand it, CCGs, when commissioning services from GP practices, are not exempted by Regulation 5. However, if the practice is large and goes over the £10 million threshold under Regulation 8, it may be covered, whereas if its turnover is below £10 million it is exempt under Regulation 8. The Minister will know that when we debated the Bill that became the Health and Social Care Act 2012 we had a great deal of debate about conflicts of interest. I have never been satisfied that that problem has been resolved satisfactorily. If, under these arrangements, CCGs are commissioning services from GP practices—remember that those practices are members of the CCG, so there is always a potential conflict of interest—I would have been more reassured if there had not been an exemption for practices with a turnover of less than £10 million. I would have thought that most traditional GP practices would fall below that threshold.

I understand the rationale for not wanting to catch small businesses under the regime, but does the Minister accept that when CCGs are commissioning services essentially from themselves—in the sense that GP practices make up the CCG—greater safeguards should be built into the regulations?

Other than that, these regulations are unexceptionable. I should, of course, remind the House of my interests in health, as president-elect of GS1, chair of a foundation trust and a consultant and trainer with Cumberlege Connections.

[Earl Howe]

I am grateful to the noble Lord for his questions, some of which I shall write to him about. He first asked me about the review of licensing exemptions that the department plans to carry out in 2016-17. He is, of course, right to say that no Government can commit their successor, of whatever colour, and it will be open to a successor Government, if they are of his party, to revise that aspiration. However, we think it right that after such an interval, the department should look to see whether the exemptions are continuing to prove appropriate, and if they are not it should propose amendments. I do not think that is a very controversial aim.

On the working life of the NHS Trust Development Authority, it will not have escaped the noble Lord’s notice that the original lifespan that we marked out for the TDA will now be exceeded. We have quite consciously, and rightly, determined that the process for approving foundation trusts should be extended, bearing in mind the outcome of the Francis review and the need for trusts, some of which by their very nature will prove more difficult to bring to foundation status, to focus on those aspects of the Francis report which need to be addressed if they are to be worthy of foundation trust status. Therefore, the length of life of the NHS TDA will undoubtedly extend into 2015. I cannot be more specific than that at this stage. It is a special health authority established by order. We will review that order in the normal course of things in three years’ time to assess whether there is a need for the authority. That is mentioned in the Explanatory Memorandum to the establishment order.

The noble Lord asked me why ophthalmic services are exempt. It is because they are not subject to registration by the CQC. We will of course keep those exemptions under review, as I have said. If evidence emerges to suggest that we should extend the licensing or make further exemptions, we will do so. When I spoke to the ophthalmic sector, it said that it did not see the need for a licence from Monitor, and we have taken account of its views.

The noble Lord asked me for some examples of commissioner-requested services. It is difficult for me to do that because they will be services which commissioners deem are in need of additional regulation to protect patients’ interests. Monitor has published guidance for commissioners to help them determine the considerations around commissioner-requested services. It will very much depend on the needs of the local population and what services are considered to be indispensable in a particular area.

The noble Lord asked me why GPs and dentists are exempt. As he knows, providers of primary medical services and primary dental services under contract to NHS England will be exempt from the requirement to hold a licence. As NHS England holds the contract with providers of those services, it is clearly well placed to place requirements on those providers that are similar to some of those in the licence. An agreement between Monitor and NHS England will underpin the arrangements. Monitor and NHS England are currently working on that. GPs and dentists sometimes provide other types of services under contracts with commissioners other than NHS England, such as minor surgery clinics or diagnostic testing services. They will be subject to licensing in respect of these services but at the same time be eligible for the de minimis threshold exemption. In addition, all providers of designated commissioner-requested services will require a licence, even if they would otherwise qualify for an exemption. It is therefore conceivable that a service provided by a GP practice might be considered a commissioner-requested service, but that is a speculative assumption on my part.

The noble Lord referred to conflicts of interest when such services are commissioned from GP practices by clinical commissioning groups. As I am sure he knows, there are clear rules around conflicts of interest. While GP practices are, by definition, members of a clinical commissioning group, the commissioning process must be done as much at arm’s length from an individual GP practice as possible. If someone in the clinical commissioning group has a direct personal or professional interest in the decision being taken, he or she must follow the rules surrounding that conflict.

The noble Lord asked me how NHS England is going to maintain standards in primary medical services. I have largely covered that point. NHS England will monitor the quality of care being delivered under the contract via the local area teams. Clinical commissioning groups are themselves engaged on peer-review exercises of their member practices which will, in turn, inform NHS England’s assessments.

I think I have answered all the noble Lord’s questions, but if I have not I will follow up in writing.

NHS: Children’s Congenital Heart Services

Debate between Earl Howe and Lord Hunt of Kings Heath

Tuesday 23rd July 2013 Lords Chamber

[Earl Howe]

My Lords, the noble Baroness makes an extremely important point. I know that NHS England is cognisant of the need to ensure not only that parents are included in this consultation but that there is a system going forward which will inform parents appropriately.

[Lord Hunt of Kings Heath]

My Lords, I refer the House to my health interests as set out in the register of interests. In the mantra of the market in the health service, which the noble Earl and his party are so wedded to, can he tell me when the Competition Commission can be expected to intervene in this issue, given that under the market mantra the decision to reduce the number of children’s heart centres reduces choice?

[Earl Howe]

My Lords, before I answer that, perhaps I may be so bold as to offer the noble Lord my congratulations on his silver wedding anniversary. I recognise why he has asked that question. It is too early to prejudge the final outcome of NHS England’s review, and I should stress that there is no preconceived result in its head. What I can say is that NHS England will need to engage with all key stakeholders throughout this review, including around any competition considerations.

Care Bill [HL]

Debate between Earl Howe and Lord Hunt of Kings Heath

Monday 22nd July 2013 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, the noble Earl has said, and I am sure it is welcome, that the Government intend to set a maximum interest rate to be charged by local authorities. Does he agree that, since it is a crucial part of a deferred payment scheme, setting a rate nationally is consistent with a much more uniform approach? That is why I would have thought my noble friend’s amendment would be a sensible way forward. It is not being mandatory and does not go as far as my noble friend Lord Warner, but simply asks for a model scheme to be introduced.

[Earl Howe]

We are absolutely on side with the suggestion that there needs to be a uniform approach to the essentials of this scheme. That includes a national maximum interest rate. I suggest to the noble Lord, Lord Warner, that we do not need a national body running an all-singing, all-dancing, nationally mandated deferred payment scheme. We want to build on the good work already going on out there. The noble Lord made a fair point that only a minority of local authorities currently operate deferred payment schemes. Of those that do, many provide us with a very good basis on which to build and share knowledge with other local authorities. That can start now before the regulations are drawn up. We can and will start work with local authorities to ensure that they are gearing themselves up in the right way to approach this task.

Care Bill [HL]

Debate between Earl Howe and Lord Hunt of Kings Heath

Monday 22nd July 2013 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, this is an important debate and the collapse of Southern Cross has brought it home to us how the risk of financial failure is likely to be a continuing problem in this sector. That is why it is important to understand whether the regulatory regime that the Government are proposing will be robust enough and whether it will have access to the kind of information that will enable the regulator to take a view on the viability of those companies which seek to do business in this area.

We are going back partly to our earlier debates when we discussed the new failure regime. At that time, I referred to the Department of Health factsheet that we were given, which said that the new failure regime will give regulators clear roles in tackling failure. However, I do not think that is actually so in practice. According to the department, the Care Quality Commission will focus on exposing problems and requiring action while Monitor and the NHS Trust Development Authority, which deal with non-foundation trusts, will focus on intervening if a poorly performing provider is unable to resolve the situation by working with commissioners. As we have heard today, the CQC retains enforcement powers for social care, general practice and independent sector providers. This whole picture is very confusing and in his Mid Staffordshire inquiry Robert Francis made it clear that regulatory complexity can contribute to system failings.

I am still unclear about the interrelationship between Monitor, CQC and the NHS Trust Development Authority so as to know whether they are going to work together to ensure that problems are acted on. I am still unclear whether when Monitor and the NHS Trust Development Authority are asked to intervene as a result of the CQC’s concern about findings in relation to safety and quality, they simply carry out the instructions of the CQC or have to go through the same process to satisfy themselves as public bodies with specific statutory duties—certainly in the case of Monitor—whether they share the concern about quality or simply take the CQC’s word on trust. As the actions of these regulators are likely to be tested in the courts, one way or another, clarity at this stage would be very welcome indeed.

My noble friend makes the case that, because of its expertise and experience, Monitor would be a better bet for looking at financial issues to do with care providers. It is very difficult to understand why bits of the system have been dealt with differently and the CQC is considered acceptable in relation to private care providers for adult social care and so on but not for NHS foundation trusts. The Government have brought a rather curious mish-mash to your Lordships’ House.

On my noble friend’s second amendment, I share his view and am not sure that NHS England is the right body to have a duty to scrutinise the commissioning plans of local authorities. However, I very much agree with my noble friend that it is very important that there is a method of checking on the performance of local authorities in their commissioning of adult social care services. My noble friend mentioned Winterbourne View as an example of where a number of local authorities placed clients but having placed them paid no attention to their experience. That was a salutary warning about the problems of local authority commissioning.

I wonder whether the CQC ought to be the body which undertakes that responsibility. Clause 5 sets out that the local authority is responsible for promoting diversity and quality in provision of services. The local authority clearly has responsibility for ensuring that there are sustainable providers in the market. I also refer my noble friend to Clause 80 which sets out the CQC’s responsibilities in performance assessment and performance ratings. My noble friend will see that under Clause 80(2) the proposed new Clause 46(3) of the Health and Social Care Act 2008 sets out that:

“The Commission must, in respect of such English local authorities as may be prescribed … conduct reviews of the provision of such adult social service provided or commissioned by the authorities as may be prescribed”.

My reading is that the CQC is given powers to do what my noble friend wants. The question—we debated this when we debated Clause 5—is the extent to which the Government are so going to prescribe. I would like to hear from the noble Earl, if possible, that the Government have reflected on our earlier debate and have come to the view that it would be a very good thing to prescribe that all local authorities should have their commissioning performance reviewed by the CQC as a matter of priority.

My noble friend raised the question of Winterbourne View. We debated the problem of the contracts local authorities have set with private providers where they are contracting staff on very low rates of pay. These are the same providers which in some cases are giving 15-minute periods of service, with staff on zero-hour contracts and often having to pay the cost of their travel. I do not believe that those are the right circumstances in which a quality service could be given. That is why I believe that the CQC should prioritise the commissioning responsibilities of local authorities. If it did, it would answer the question posed by my noble friend.

[Earl Howe]

My Lords, I begin with an observation that I hope is incontrovertible: it is unacceptable for care users to be left without the services that they need, particularly where the interruption of those services, or the worry that this might happen, could badly affect their well-being and place unacceptable stress on them and their families, friends and carers. As the noble Lord, Lord Hunt, rightly observed, the collapse of Southern Cross in the autumn of 2012 highlighted the importance of this principle. Although no one was ultimately left without the services they needed, many people suffered from a considerable amount of stress and anxiety as a result of worries over whether the services that they, their friend or their relative relied on would stop being provided. At the time, there were no formal mechanisms for the Government to ensure that that was the case.

The Government are therefore introducing, through the Bill, a new system of financial oversight of the 50 to 60 providers of care and support that are the most difficult to replace. The system will provide local authorities with early warning that one of those providers is likely to fail or could fail, and will support authorities to ensure that, if a provider does fail, the continuity of care is maintained. The Care Quality Commission will assess the financial sustainability of all providers that are part of the regime, ensure that providers are taking adequate steps to tackle any risks to the sustainability of their business and support local authorities to tackle the risk of individuals suffering gaps in the services that they rely on when providers fail.

I sympathise with the arguments set out by the noble Lord, Lord Patel of Bradford, in favour of this function being undertaken by Monitor. He should be under no misapprehension: the decision about which regulator should undertake this role was a finely balanced one. This would have been a new role for either regulator. For the CQC, although its existing powers extended to some financial issues, it had not in practice used them significantly. For Monitor, this would have been an extension into a new market and type of provider with which it had had no previous experience. In the end, we came to the view that the CQC was the most appropriate body to perform this market oversight function, for three key reasons. First, this approach ensures that there will be a single regulator for care and support providers. The financial performance of a provider, whether exceptionally good or exceptionally poor, can be a leading indicator of serious quality failures. The CQC will be able to integrate quality and financial information and assess both together.

Secondly, the CQC is better placed to implement this regime because of the existing working relationships that it already has with providers through its current role. This should also contribute to minimising the regulatory burden on providers by ensuring that they have to work with and provide information to only one regulator rather than two. Thirdly, the CQC already has established working relationships with local authority commissioners. The main objective of this regime is to support local authorities in managing the failure of a difficult-to-replace provider. The CQC’s existing relationships will be invaluable in assisting it in performing this function effectively.

The noble Lord, Lord Hunt, questioned that rationale and pointed particularly to the advantages of Monitor undertaking the role, not least because of its current functions. I am the first to accept that Monitor has existing expertise in financial regulation, but it does not have experience in the care and support services market. The nature of Monitor’s licensing regime differs from this market oversight role in two key ways.

--- Later in debate ---

[Lord Hunt of Kings Heath]

Is the Minister satisfied that the CQC will be able to have access to sufficient information about the ownership of these companies? To pick up the point made by my noble friend, ultimately, when a home is at risk of going down, there is a danger that the interests of shareholders are put before the interests of the residents. Clearly, issues to do with ownership become very important there.

[Earl Howe]

The noble Lord makes an extremely important point, and one that has not been lost on us. We recognise that ownership structures can be extremely complex and that true ownership can be hidden from normal view. It is one of the factors that we will have to build into our discussions with the CQC. I do not pretend that there is an easy answer because some businesses quite consciously and deliberately set themselves up to ensure that it is very difficult to probe the true state of their financial affairs and their true ownership. As and when I can come back to the noble Lord on where we are with that, I will be very happy to do so.

--- Later in debate ---

[Lord Hunt of Kings Heath]

My Lords, it was remiss of me not to declare an interest during our debate today as president-elect of GS1, chair of a foundation trust and consultant trainer with Cumberlege Connections.

Perhaps I, too, may raise the connection of this Bill with the Children and Families Bill. As my noble friend Lord Warner said, with the Care Bill applying to adults from the age of 18 and the Children and Families Bill setting the framework for children and young people up to the age of 25, there is a clear overlap in their jurisdiction in the context of social care provision. Education, health and care plans under the Children and Families Bill also include an assessment of a child or young person’s social care needs, which means that young people between the ages of 18 and 25 may be eligible both for an EHC plan and an adult care and support plan. That seems to reinforce my noble friend Lord Warner’s comments.

My understanding—perhaps the Minister could confirm this—is that the Government are considering bringing forward amendments to the Children and Families Bill to make sure that the two link together. If that is so, the problem that we have is that the Children and Families Bill will not go into Grand Committee until we come back in October, whereas this Bill should have cleared the House by about the fourth week in October. It would be very disappointing if we, in debating this Bill, were not able to see the changes that the Government were going to make to the Children and Families Bill so that we could make sure from our perspective that the two hung together. Can the Minister assure us that, if the Government are contemplating some amendments, we could see them so that we could debate them within the context of this Bill?

[Earl Howe]

My Lords, I thank Members of the Committee, and especially the noble Lord, Lord Patel, for a debate which illustrates the significance of transition to young people and their families and the need to get the legal framework right for them.

As we have heard, these amendments cover a range of issues. In respect of Amendments 92D, 98 and 100, I have listened with interest to concerns about the absence of a requirement that transition assessment should take place at a particular age. We are in agreement that the timing of assessment is crucial, but this is essentially a question of approach.

The Care Bill proposes that two tests be used to ensure that assessment takes place at the right time for each young person or carer. We believe that this is preferable to rigid timescales which take no account of an individual’s needs or circumstances. First, a local authority may assess a young person, their carer or a young carer where it appears to the local authority that the child or carer is likely to have needs upon the child turning 18. This is to be used in conjunction with the second consideration, whether assessment would be of “significant benefit”. This recognises that a one-size-fits-all approach is not in the best interests of young people or their carers.

Amendments 92B and 92C would limit the group of young people who can benefit from transition planning to those who are already in receipt of services. We would not wish to impose any such restriction. Indeed, this restriction was removed following public consultation and pre-legislative scrutiny, because transition planning may equally benefit those who are not currently in receipt of services.

I have heard the concerns expressed that local authorities are not under a duty to assess in every case. This is indeed true, and for very good reason. Some young people will not have needs for care and support after the age of 18. It will not be appropriate, nor indeed will it be in a young person’s interests, to assess in every case.

I listened with interest to concerns about provision for carers of children. We need to be clear about this. Support should be available where it is needed. The question is the source and nature of that support. Clause 59 provides a power, rather than a duty, for local authorities to provide support because existing children’s legislation already includes provision for support to a child’s carer. Duplication of existing legislation may cause confusion and is unnecessary. This power is intended to enable support to be provided under adult legislation where a certain service is available only locally via that route.

I turn now to planning for transition and Amendments 92BA and 94. Provision for transition assessment is focused on the outcomes that the individual wants to achieve. I can reassure the noble Lord, Lord Patel, that such outcomes may include employment, education or housing. I also share the noble Lord’s expectation that, when a child has an education, health and care plan, any assessment under these clauses should take the EHC plan into account and the assessment should be integrated into that plan.

The Care Bill and the Children and Families Bill include provision that assessment can be joint, including joined-up assessments in relation to an EHC plan. These issues will be addressed by both the guidance supporting the Care Bill and the Department for Education’s SEN code of practice.

In respect of Amendment 94, I briefly add two further points. First, when a young person over the age of 18 has an EHC plan, and as such the care part of that plan is provided under this Bill, we would expect co-operation between adult and children’s services in relation to any review of the plan under Clause 6(5)(a) and (b). Such co-operation for those under 18 who are in transition is provided for by Clause 6(5)(c). This would include co-operation with the preparation, maintenance and review of the EHC plan as provided for by the Children and Families Bill, in respect of children. Guidance can ensure that this is clear.

Secondly, requiring a local authority to make arrangements to secure provision for children and young people with a transition plan would not be appropriate. Services to children cannot be provided under the Care Bill. Children’s legislation provides for this. Services to young people over the age of 18 would be provided, if necessary, under provisions earlier in Part 1.

In relation to Amendment 104ZA, I agree on the need to ensure continuity of care. However, we must avoid creating overlap or confusion with local authorities’ existing duties in relation to children, including rights to assessment and support under the Children Act 1989. For this reason, it would be preferable for the young person to request assessment as they see fit and for the local authority to initiate this conversation with the child. The request itself is not envisaged as a formal process. Indeed, for some young people the request will form part of a conversation the local authority initiates about transition to adulthood. Guidance can be used to make this point.

Young people and their families will need information in order that they can understand the adult care and support system and, crucially, that they are aware of their right to request assessment. Clause 4 requires local authorities to establish and maintain an accessible system for information and advice including information and advice about how to access the care and support that is available.

Through Amendments 95, 96 and 97, the noble Lord, Lord Patel, the noble Baroness, Lady Pitkeathley, and the noble Lord, Lord Patel of Bradford, have also expressed concern that there should be provision to support children with care needs to move between areas, without the fear of experiencing a gap in their care and support. I agree. Provision for people over the age of 18 already exists at Clauses 36 and 37 and provision for children with an Education Health and Care plan exists in the Children and Families Bill. If a young person under the age of 18 who has had an assessment under the provisions of Clauses 55 or 60 moves to a new area, the general duties of co-operation, in particular with other local authorities under Clause 6(6)(b), would also apply.

I should like to reassure the noble Baroness, Lady Pitkeathley, in relation to Amendments 93B, 100A and 104ZZA that consideration of “other matters”, a person’s own capabilities and the other support that may be available does not exclude the provision of more conventional care and support services where needed. Indeed, when the child becomes 18, if the individual’s needs are eligible, the local authority must meet them, in accordance with Clause 18, if the adult wants the authority to do so, and those requirements are not diminished by these three paragraphs. The intention is to recognise that, in order to make the right connections to the local community and the variety of support available, the local authority should consider how these matters, along with more formal care and support provision, could be of benefit in achieving the adult’s outcomes.

The noble Baroness suggested that carers might be pressurised by these provisions into providing care. It is certainly not our intention that pressure is put on carers. The clauses make it very clear that a carer must be willing and able to provide support and that the impact upon carers’ well-being must be considered.

She flagged up the concern that the new provisions in Clauses 56, 58 and 61 are departures from the draft Bill and asked why that was the case. The Bill as introduced includes greater clarification as to the nature of the assessment that should be carried out and what should be considered. It is largely for drafting reasons that we split the subsections relating to children, children’s carers and young carers into two subsections for each group.

The noble Lord, Lord Warner, pointed out that, in his view, the Bill is framed as though young people are strangers to the local authority. The Bill makes provision both for those who are receiving children’s services and are known to social services and for those who are not currently receiving care and support. Clause 6 provides a duty to co-operate, including within the local authority. In particular, in relation to children transitioning to adulthood, there is a duty for those internal discussions to take place. The request mechanism in the Bill is not intended to be a formal or bureaucratic process, as I mentioned earlier.

The noble Lord, Lord Hunt, asked me to confirm whether the Government are considering bringing forward amendments on carers, and expressed his concern that the timing of the Children and Families Bill relative to this Bill is unfortunate. I can tell him that my noble friend Lord Nash, at Second Reading of the Children and Families Bill in your Lordships’ House, said:

“As my honourable friend the Minister for Children has said, we are considering how the legislation for young carers might be changed so that rights and responsibilities are clearer to young carers and practitioners alike. We will also look at how we can ensure that children’s legislation works with adults’ legislation to support the linking of assessments, as set out in the Care Bill, to enable whole-family approaches”.—[Official Report, 2/7/13; col. 1201-02.]

The Minister for Children and Families and the Minister for Care and Support have met the National Young Carers Coalition to discuss the key principles for taking this work forward over the summer, as well as how we can most effectively involve the NYCC during this period.

Finally, the government amendment in this group will ensure that the provision added to Clauses 58 and 61, following consultation and pre-legislative scrutiny, specifying that a needs assessment must include an assessment of the impact of the adult’s needs for care and support on their well-being, is also added to Clause 56.

We have had much discussion recently about the need to ensure that services are organised around the needs of individuals. I hope that I have been able to explain how this legislative framework for transition is focused on meeting that aspiration. I hope, too, that I have provided some reassurance about the approach we are taking to smooth the transition to adult care and support. I hope that the noble Lord, Lord Patel, will feel able to withdraw his amendment.

NHS: Foundation Trusts

Debate between Earl Howe and Lord Hunt of Kings Heath

Tuesday 16th July 2013 Lords Chamber

[Earl Howe]

My Lords, I hope my noble friend will allow that that is a little wide of the Question on the Order Paper, which is about bringing trusts to foundation trust status. Nevertheless, I refer my noble friend to the Written Answer which was published in Hansard yesterday and which sets out the immediate steps we have taken to instruct all hospitals to review all patients currently on the Liverpool Care Pathway and to make sure that there is a named, responsible clinician for every patient at the end of life.

[Lord Hunt of Kings Heath]

My Lords, I refer noble Lords to my health interests in the register. Is the failure to publish the reconfiguration paper by Sir Ian Carruthers due to the intervention of the Competition Commission in proposed mergers and reconfiguration of services in the NHS? Is the noble Earl aware that it was reported in the other place this morning that the intervention of the Competition Commission in the Dorset merger will cost £6 million which should have been spent on patient services? When will the Government start to ensure that the foolish intervention by the Competition Commission which is not needed in the health service stops and money that could be spent on patient services is actually spent on them?

[Earl Howe]

My Lords, I am sure the noble Lord is aware that the provision for reviewing NHS mergers on competition grounds is not at all new. Responsibility for reviewing NHS mergers has moved from one independent body—the Co-operation and Competition Panel—to another, the OFT. This is a continuation of the approach that has been in place since 2009. In all these decisions what matters is what is in the interests of patients. The competition authorities will continue to review whether the potential benefits of a merger outweigh the potential costs to patients.

Care Bill [HL]

Debate between Earl Howe and Lord Hunt of Kings Heath

Tuesday 16th July 2013 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, I hesitate to come between my noble friends Lord Warner, Lord Lipsey and Lord Campbell-Savours, and indeed knowing what is good for me I am not intending to do so. I say to my noble friend Lord Campbell-Savours that I understand the point that he is making and I agree that Dilnot is not the answer to many of the really pressing problems that we are talking about.

I want to tempt the noble Earl to say a little bit more on two areas which have been referred to by noble Lords. The first is the complexity for local authorities of what they have to administer. The noble Earl has not really responded in detail on this matter so far. Indeed, it is noticeable that local authorities have not responded. We have received a huge amount of evidence, but not very much from local authorities and the local authority associations. This worries me. I understand why local authorities would be keen to play a prime part in the administration of this new system, but these are genuine concerns about whether there is capacity to make changes of this complexity happen. Nothing would be worse than the new system coming into being and collapsing almost on day one. At the moment, that is my view on what is going to happen. I do not know what the Government intend in terms of testing out the robustness of the system for when it is due to come in. I hope that at some point during our debate the noble Earl will be able to tell us.

Secondly, the next group of amendments deals with the public understanding the complexity of the system being considered, but it seems to me that this issue relates to the point about insurance raised by my noble friend Lord Lipsey. My understanding is that one benefit of full implementation of Dilnot—although I am not sure that the Government have gone down that path—would be that, if the public knew that their liabilities would be capped, there would be likely to be a ready insurance market. A number of us have looked with interest at the comments of the Association of British Insurers and other parts of the insurance industry. I have to say there does not at the moment seem to be much optimism about whether there is going to be a market and whether packages are going to be developed. This may come up in later amendments, but at some point I hope that the noble Earl will give a little more information about the Government’s view of the potential of the insurance market to develop products which the public can understand and will be willing to invest in.

[Earl Howe]

My Lords, as the noble Lord, Lord Lipsey, explained very clearly, these amendments would mean that the capped system counted time rather than costs. I agree that there are advantages to this approach. The Dilnot commission, in considering this option, said that using years instead of costs would be easier to administer and simpler to understand, and I appreciate those arguments. However, the commission also made the case that to adopt this approach would disadvantage those with more intensive care needs, who over a given period of time could spend significantly more on care than those with less intensive needs, so that what we might gain in simplicity we should lose in fairness. I am sure that we all want to see a fair care and support system giving the most support to those in the greatest need. Using time instead of costs would undermine that goal.

We are committed to using notional spend—in other words, the equivalent of what the local authority would pay to meet an adult’s eligible care needs. As with using time, it is in fact relatively simple to administer because it fits in with the current system of needs assessment. It also ensures that people with more intensive needs are not disadvantaged. That is why the Government agree with the Dilnot Commission, which said,

“the only suitable way of deciding when a person has reached the cap is to meter notional spend.”

The noble Lord, Lord Lipsey, pointed to the understandable fear that Dilnot will mean spending money on administration rather than on meeting people’s needs. I accept that times are challenging for councils, but we are committed to funding these reforms. Critically, we are also committed to co-producing the implementation of the reforms to minimise the bureaucracy that accompanies them and maximise the benefits that they bring. The noble Lord suggested that local authorities might not be ready to implement Dilnot in 2016, and the noble Lord, Lord Hunt, also asked about this, and whether we were intending to test the robustness of the system. We shall be coming to the issue of readiness in the next group, but I agree with the noble Lord, Lord Warner, that there is sufficient time to develop what he referred to as a taxi-meter system.

The noble Lord, Lord Campbell-Savours, took us to a point that he has made in this Chamber before about Dilnot, and his view that it is fundamentally unfair. I simply say to him that the vast majority of state support, under the Dilnot system, will be provided to the roughly 40% of older people with the lowest income and the lowest wealth. The cap, and the extended means test, provide the most reassurance to that particular group. Our view is that we need a system that protects people with the greatest lifetime care needs. It is not about protecting people with the greatest wealth.

To clarify the question that the noble Lord, Lord Warner, raised in the previous group of amendments about the guidance under Clause 71, this will indeed be statutory guidance, and it will look and feel like a code of practice. Importantly, it will have the same legal status. However, we do not think that guidance should be subject to parliamentary scrutiny every time it is updated, as with a code of practice Statutory guidance under this Bill will have the same status as the current guidance issued under Section 7 of the Local Authority Social Services Act 1970. I hope that this is helpful.

In a later group of amendments we will come to what local authorities think about the new system and indeed the whole area of financial services. However, I was reassured that the Local Government Association said that it fully supports and welcomes the inclusion of a cap on what an individual will pay. The Association of British Insurers has welcomed the announcement that we have made as a positive step forward in tackling the challenges of an ageing society. Arising out of that is a sector-led review that is working constructively with government to understand how the market will develop and create the right environments for products to succeed. That review will be completed over the summer.

I hope that with those comments the noble Lord, Lord Lipsey, will for now be content to withdraw his amendment. I hope that he found my comments, if not ones that he can agree with immediately, at least ones that he will put into the context of the Bill in, I hope, a manner that he will understand.

--- Later in debate ---

[Lord Hunt of Kings Heath]

My Lords, my Amendment 90ZA requires the Secretary of State to report to Parliament,

“in advance of this section coming into force with the Government’s assessment of the likely impact of the cap on care costs; and … annually once the section is in effect, with the Government’s assessment of the impact of the cap, in particular its distributional impact across the income spectrum”.

I echo some of the points already made. The operation of the cap ought to be, and continue to be, subject to ministerial oversight. The opportunity to report to Parliament and for us to have an annual debate should not be missed. This links into the amendment of my noble friend Lord Lipsey, Amendment 92ZZB, because it would enable a ministerial advisory group to feed into an annual report on how the scheme is being implemented and whether changes need to be made.

It is important to bear in mind the concern of my noble friend Lord Campbell-Savours that simply operating Dilnot will favour the better off at the expense of the worse off. We must keep an eye on how it impacts on the distributional spectrum in this regard. That is why I have the second part of my amendment.

Like other noble Lords, I agree with Amendment 89E in the name of the noble Lord, Lord Sharkey, and Amendment 90 in the name of the noble Baroness, Lady Greengross. I have learnt over the past few months how complex this issue is, and if noble Lords do not understand the full complexity of the scheme—and I gladly hold my hand up that I have yet to believe that I have full mastery of how it will operate—how can members of the public be expected to understand its full consequences?

In our debate on Clause 2, we discussed the responsibilities of local authorities in providing advice and we debated the need for independent financial advice to be made available. The consequences for a person making the wrong decision on funding could be catastrophic. It is therefore important that advice is readily available, and I agree with those noble Lords who think that it ought to be a national responsibility. Whether I would give it to the current Secretary of State, I am not quite so sure.

I remember how the Government spun this Bill in the Queen’s Speech and the Prime Minister giving the impression that no one would for ever more have to sell their home and that the £72,000 cap was the limit. However, as we have gone through the Bill has become quite clear that neither is the case. I agree with my noble friend Lord Campbell-Savours that the Government have not thought through the implications of what the noble Earl said last week about the issue of transparency.

The point is that most people have to spend more than £72,000 because self-funders do not pay local authority rates. In his sophisticated response last week, the noble Earl suggested that local authorities took advantage of procurement at scale, which is why they were able to get a rate lower than self-funders. That was a remarkable argument. Most people see this as a case where local authorities underpay and that if homes only existed under local authority rates many of them would not be viable. It is therefore not surprising that many homes are on a cliff edge of viability on the one hand and at risk of being put out of business because of CQC inspections on the other. There is no doubt that it is generally thought that self-funders subsidise the people in those homes who are paid for by the local authority.

However, most people do not know that. Only an inside circle is aware of the issue. However, come the new implementation, everyone will know—as the noble Earl said last week, it will be transparent—and people will not put up with it. That is why, first, it is essential that more thought is given to implementation. I am not sure whether my noble friend Lord Lipsey is right to want to delay it by a year, but I am sure that he is right to say to the Government that they need to look carefully at the practicalities of implementation.

Secondly, it is important that self-funders are in future fully aware of the consequences of any decisions they take. At the moment, I and many other noble Lords are not convinced that the public are aware. That is why it is so important that a duty is laid on Ministers to fund, and continue to fund, a national campaign of information and that we come back to our debates on Clause 2 in relation to independent advice being made available.

Thirdly, I hope that the noble Earl will readily accept the amendment of my noble friend Lord Lipsey about the need for a ministerial advisory committee, which could then enable the Secretary of State to report to Parliament annually in relation to the implementation of the Dilnot proposals.

The noble Earl will be aware that, in general—my noble friend Lord Campbell-Savours aside—the Care Bill enjoys support. However, there is a risk of our disagreeing on implementation. If he can reassure us on the readiness of local authorities, on the willingness to provide independent advice and on the willingness to establish some kind of independent mechanism to report on a regular basis, it would provide a great deal of comfort.

[Earl Howe]

My Lords, the clauses on the capped-costs system represent a significant step forward, ending decades of uncertainty, with the introduction of a clear system that fairly shares costs. For the first time, people will be protected from spiralling costs and will no longer have to fear that their home will be sold while they are in a care home. In response to Amendment 90ZA, I can confirm that we published an impact assessment of the reforms which includes the distributional impact by income.

The current system exposes those with little savings or modest housing wealth to the greatest risk of losing everything to pay for their care and support. We will enable people to keep more of their capital and still receive a contribution from the local authority towards their residential care costs. Under new regulations, those with capital assets of less than £118,000 will see the local authority pay a proportion of their residential care costs rather than only those with assets of under £23,250.

As I mentioned earlier, the vast majority of state support will be provided to the 40% of older people with the lowest income and wealth. The cap and extension to means-tested support provides the most reassurance to this group. This is about protecting people with the greatest lifetime care needs and not people with the greatest wealth. The reforms must be sustainable and affordable for the long term, which is why we have accepted the Dilnot commission’s recommendation that the level of the cap should be adjusted annually in line with inflation. It is an approach used in taxes, pensions and benefits, ensuring they remain equally fair year after year.

I turn to amendments 92ZZB, 92ZZC and 104ZC. The noble Lord, Lord Lipsey, shares our aim in drawing up the Care Bill of ensuring the system can respond to changing circumstances. However, that dynamism must be balanced with some certainty about the basis for changes. That is why Clause 16 requires annual adjustments to be made to the cap and to an adult’s accrued costs, so that they keep pace with inflation. Clause 66 provides some certainty that changes are likely to occur only as a result of the annual adjustment or five-yearly review. In reviewing the level of the cap and the means-test threshold, the Government will want to involve a range of experts in assessing how external factors such as demographic change and healthy life expectancy are affecting affordability and the benefits of the capped costs system. A standing independent committee is therefore unnecessary and could suggest that the system is subject to constant change—which may, perversely, result in fewer people planning and preparing on the basis of these reforms.

Amendments 90A, 90B and 90C would require the annual adjustment to be made in line with average care costs. The first point to make is that there is no nationally recognised measure for care costs inflation. Linking the annual adjustment to a care costs inflation measure that has no national benchmark would not give people, or the financial services industry, certainty or confidence in the system. It would of course be possible to develop such a measure, but we feel it is unnecessary, as a robust proxy already exists. Average earnings is one element of the measures used to determine the state pension and therefore represent changes in people’s ability to pay. Earnings is a national statistic certified as compliant with the code of practice for official statistics. In addition, care costs and average earnings are related since labour is a substantial proportion of the cost of care. The latest Laing & Buisson market survey states that,

“in the longer term, fees are inevitably driven by costs … the major cost item is payroll”.

Turning to Amendments 89E, 90 and 104ZD, which is where my noble friend Lord Sharkey began this debate, I fully agree that it is critical that people are made aware of the reforms and what they will mean. The Dilnot commission rightly recommended that there should be an exercise in raising awareness alongside implementation of the reforms. Many people do not realise that they may have to pay for their care and support, which acts as a significant barrier to effective planning and prevention. The Committee will be aware from the debate on Clause 4 that we know that easier access to good quality, trusted information and advice is a critical enabler. The Bill places a duty on local authorities to provide information and advice, including on the capped cost system.

I assure the noble Lord, Lord Campbell-Savours, that we have absolutely no intention to or interest in allowing spin to replace clear and balanced information for the public. In improving awareness and advice, national and local must work together. It will be in the interests of local authorities, the public, government and the financial services industry to make sure that people are aware of the reforms and have access to the right information and advice at the right time so that they can plan and prepare to meet their care and support needs. We will seek views in the forthcoming consultation on the design and technical implementation of the funding reforms, which will include addressing the best way to raise awareness of these reforms nationally and locally.

My noble friend Lord Sharkey made the good point that awareness and understanding of the Dilnot reforms has to be evaluated and measured over time. As with any other policy, we will seek to evaluate the effectiveness of this particular policy, but we believe that to require an annual report in the Bill would incur a potentially high and unnecessary cost. There are other ways of delivering the same aim.

Care Bill [HL]

Debate between Earl Howe and Lord Hunt of Kings Heath

Tuesday 16th July 2013 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, I, too, have a great deal of sympathy for the core of my noble friend’s proposal to change the means test to increase personal allowances to support people so that they have enough money for what he described as “small treats”. Like my noble friend Lord Warner, I should be interested in the noble Earl’s response to that point.

I also sympathise with my noble friend’s second proposal to help those with modest assets by making the means test less severe. It is clear to most of us that the benefits of Dilnot will go to the better off. I think that one must be sympathetic to my noble friend’s aim of trying to spread the benefits more widely. Of course, that comes with a cost, and my noble friend’s answer to that is the proposal to abolish the nursing care allowance or to phase it out. Perhaps the term is grandparenting; I am not sure of the phrase but the Lords reform proposals come to mind—the transition.

Whether that is the right approach must of course be subject to some debate, and I would certainly need some convincing about the phasing out of the nursing care allowance. However, I think that my noble friend has done us a service and I hope that we will have further discussions on it between now and Report.

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

My Lords, on one level I sympathise with the intention of the noble Lord, Lord Lipsey, to redistribute funding between health and care and support so as to increase the personal expenses allowance and local authority support for those in residential care. However, we need to face the reality of the current economic climate. One important aspect of our reforms is that the greatest support will go to those with the greatest need, and that is surely the policy aim that we need to keep most closely in mind in this context.

Currently, the NHS funds nursing homes to support the provision of registered nursing care. This reduces the burden on the NHS of having to provide NHS nurses in residential care homes. Removing this funding would risk increasing costs elsewhere in the NHS, but it would also breach a serious point of principle. If we were to stop people in residential care homes from being eligible for NHS-funded nursing care, it would undermine one of the founding principles of the NHS, which is that it should be a service free at the point of delivery. I am sure that noble Lords would agree that we would not like to see that.

I understand why the noble Lord seeks to increase the personal expenses allowance. If someone is contributing to the costs of their residential care from their net income, for example from their pension, the personal expenses allowance is the amount people can retain to spend as they wish. This is currently set, as he rightly said, at £23.90. The amendment would increase it to £32.75. When living at home, people pay for their food and heating from their income. It is right that people should continue to contribute towards these costs in residential care. The personal expenses allowance reflects the fact that for most people these costs represent a large proportion of their income, but it allows people to retain some of their income for other uses. The reality is that spending additional resources on the personal expenses allowance would reduce the resources available to provide support to those with the greatest needs.

I heard what the noble Lord, Lord Lipsey, said about the loss of the attendance allowance meaning that people would be worse off. Local authorities should support people to maximise their income. If a given individual would be better off receiving the attendance allowance, the local authority should support them to achieve this. We will bear this in mind as we draw up the regulations.

I turn now to Amendment 91, which relates to financial assessments. One of the problems the Dilnot recommendations attempt to tackle is the cliff edge between being a self-funder and being supported by the local authority. By extending the means test for people in residential care, we aim to avoid a situation where a small change in a person’s capital results in a large change in what they pay for care.

From 2016, the maximum tariff income for someone with £118,000 in assets will be £404 per week. If we reduced the rate at which people contribute toward their care costs from their assets to £1 per week for every £500 of assets, the contribution for someone with £118,000 in assets would become £202 per week. This means that an individual facing a typical care home fee would be over £200 per week better off if they had assets of £117,000 than if they had assets of £119,000. This would reintroduce the cliff edge that surely none of us wants to see.

I believe that our plans represent a fair balance between the individual and the state. People with care needs will receive additional support with care and support costs through the extended means test, safe in the knowledge that health services will remain free at the point of use and that they are protected by the cap from unlimited care costs. I hope the noble Lord will see that there is method in the Government’s proposals. While I totally understand much of his rationale, I think our proposals have a better balance. I hope that he will feel able to withdraw his amendment.

Health: Anorexia and Bulimia Nervosa

Debate between Earl Howe and Lord Hunt of Kings Heath

Thursday 11th July 2013 Lords Chamber

[Earl Howe]

My Lords, I am sure that this is an area that NICE will need to look at when it refreshes its guidance to the clinical community. The noble Countess is absolutely right to raise the issue. CFS/ME can often be misdiagnosed; it can be mistaken for other conditions without proper differential diagnosis having taken place. We know that there is more work to be done in this area. However, the range of programmes now available to GPs, some of which I have referred to, can be helpful in this area.

[Lord Hunt of Kings Heath]

My Lords, I refer noble Lords to my health interests in the register. Perhaps I can take the noble Earl back to my noble friend’s question. She mentioned “parity of esteem”, which of course the House legislated for in the 2012 health and social care legislation. Could he tell the House how the Government intend to ensure parity of esteem, particularly ensuring that mental health services are given their fair share of resources in the health service? How do the Government intend to take that forward?

[Earl Howe]

My Lords, I do not wish to duck the fact that this is a very difficult area to define. We all know that we want to achieve parity of esteem. It depends on ensuring not only that mental health services are given their fair share of the budget but that the right treatments are delivered to the right people, and that everyone in the country has access to appropriate treatments. We are currently firming up with NHS England what the right metrics are in order to judge whether they have met that aim. I will write to the noble Lord with the latest news on that front.

Health: Prescription Drugs

Debate between Earl Howe and Lord Hunt of Kings Heath

Thursday 11th July 2013 Lords Chamber

[Earl Howe]

I am happy to take that suggestion away. I shall write to the noble Baroness about it.

[Lord Hunt of Kings Heath]

My Lords, the noble Earl will be aware that in the past few years nurses have been given much more authority, once they have been properly trained and authorised, to prescribe medicines. Can he confirm that the measures he has talked about will apply to nurse prescribers as well as to doctors?

[Earl Howe]

My Lords, yes.

National Health Service (Licensing and Pricing) Regulations 2013

Debate between Earl Howe and Lord Hunt of Kings Heath

Wednesday 10th July 2013 Grand Committee

[Lord Hunt of Kings Heath]

My Lords, I was just going to refer the Minister to his remarks about the Competition Commission, because it is relevant to the regulation. There is great confusion in the health service about the commission’s role. The Minister will know that there have been interventions in Dorset and Bristol on what seem to be entirely sensible proposals. In Dorset it was the merger of two small acute trusts, while in Bristol it was the “divvying up”, I suppose the phrase is, of services between two trusts in order to allow for more patients to be treated and all the benefits that you get from that, with one trust focusing on some services and the other focusing on others. In anyone’s terms, those are both examples of the kind of configuration of services that is entirely sensible and that the Government in other guises are supporting.

It is quite clear that the OFT has been trying to get into the health service for some years. I will not get into Section 75 now but the OFT now feels that it can get into the health service, although it is very difficult to see what the point of that would be. The OFT is independent, I understand that, but Ministers have been silent about this. There is utter confusion in the health service and, I believe, among the regulators about how to run these two issues—on the one hand, the Competition Commission and OFT approach, and on the other the need for us to be aggressive in terms of the reconfiguration, and in many cases the centralisation, of services. This matter needs to be teased out.

The regulations ought to be considered in relation to more general policy on pricing as part of the national tariff. The Minister will know that in October last year, when the House of Commons Health Committee had its annual accountability hearing with Monitor, David Bennett, the leader of Monitor, talked about perverse incentives with regard to the tariff. He said that he was not sure that they were fundamental to the pricing system but he agreed that the way it is working can create perverse incentives. One example he used was that if we want to move activity out of hospitals and into a community setting, one thing we have to think about is that there some real transition costs which will have to be paid one way or another. The question is: is the tariff being adjusted to allow for that?

The Health Select Committee published its subsequent report in March of this year and concluded:

“The setting of the tariff is of great significance to the NHS because of its implications … for short term cash flows in the system, and for longer term incentives for”,

service changes. It recommended that,

“Monitor and the NHS Commissioning Board … attach a high priority to this process … because NHS parties need to know the likely tariff in 2014–15 as soon as possible, but also because the long term framework of the tariff will have an immediate effect on service design and the integration of service provision”.

I would be interested to know whether it is the noble Earl’s view that progress is in fact being made, so that the regulations and the tariff to which they relate are much more sensitive to the need for change and reconfiguration in the health service. We must reorganise our services to get higher quality, and the work that Bruce Keogh is doing is surely driving us towards this. However, it sometimes seems as though some of our regulatory apparatus is now at risk of getting in the way of what, on anyone’s evidence base, would be a sensible move. I would be interested if the noble Earl is able to respond to any of those points.

[Earl Howe]

My Lords, I am grateful to both noble Lords who have spoken. First, I hope that I can reassure the noble Baroness, Lady Finlay, on the question she posed about the cross-border aspects of patient flows and the tariffs that apply. The tariff will apply only to services commissioned by commissioners in England: that is to say, CCGs and NHS England. Any provider who provides healthcare services for the purposes of the NHS which are covered by the proposed tariff will be able to object to Monitor’s proposed methodology, so I do not see that patients in Wales or on the border need to be anxious about this.

The noble Lord, Lord Hunt, asked a series of questions. First, he questioned the wisdom of allowing Monitor to fine providers. It is worth saying that the discretionary requirements which Monitor can impose, as laid down in these regulations, are based on those used for other regulatory offences. In fact, they are based on Part 3 of the Regulatory Enforcement and Sanctions Act 2008. That menu of options has been picked up and put into the 2012 Act.

As regards fines, we need to be clear—and it is certainly my understanding—that Monitor regards fines as a last resort. It will need to consider each case carefully and has a responsibility to ensure that its regulatory actions are reasonable, while deterring poor conduct in the future. It must also consider whether its other powers would be more appropriate. I understand the point that the noble Lord has raised but it is unlikely that we will see Monitor exercising this power with any frequency. We must bear in mind that 10% of turnover is of course a maximum figure.

The noble Lord asked about the thresholds as laid down in the regulations. The 20% threshold relating to licensing is based on a similar process which was in place for modifying licences in the energy sector. We considered that the situation here in the health service was comparable, and it is a threshold that commanded general acceptance.

Care Bill [HL]

Debate between Earl Howe and Lord Hunt of Kings Heath

Tuesday 9th July 2013 Lords Chamber

[Earl Howe]

Under the cap arrangement, there will be for all to see a notional rate that the local authority will pay for care. That is the rate at which the progress against the cap will be measured for a particular individual in a particular area. We are moving to a different system.

[Lord Hunt of Kings Heath]

We are almost anticipating a later debate when it comes to the Dilnot cap. This is an important issue. It is well-known, is it not, that self-funders essentially subsidise those people funded by local authorities. We know that some homes simply would not be viable if they existed only on local authority rates. In a transparent era, will self-funders put up with that? The cap relates only to local authority rates, so self-funders, in many cases, will have to pay much more than £72,000 before they can look to the local authority for support. If they now know that in addition to having to pay well above the £72,000 they have actually been subsidising people who have been supported by local authorities, I think it is going to lead to some severe problems.

I do not expect the noble Earl to be able to respond in detail, and perhaps this is in anticipation of the debate that we will have in our next session, but I am not sure whether the issue of fairness has been factored in to an understanding of how this is going to work in practice.

[Earl Howe]

Local authorities and individuals can pay different prices for care. That can be because individuals have consciously chosen premium facilities or because the local authority has negotiated a lower price in exchange for buying care for a larger number of people, which can often happen as well. As is the case now, local authorities and providers will continue to negotiate arrangements and fees for providing care and support. This process should ensure that contracts reflect the market price for providing care. Local authorities that fail to negotiate properly with providers and do not have regard to the actual cost risk legal challenges to the care fees that they set. However, in response to the noble Lord, Lord Campbell-Savours, I would say that in future the independent personal budget will set out the cost to the local authority. That is the transparency point that I was trying to get at earlier.

Care Bill [HL]

Debate between Earl Howe and Lord Hunt of Kings Heath

Wednesday 3rd July 2013 Lords Chamber

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

My Lords, this has been a very useful debate and in addressing this group of amendments, it might be helpful if I began by setting out why we believe this clause is necessary.

At the moment, there is no straightforward way for members of the public to get a clear view of performance in hospitals and care homes, nor is there a measure to help drive up performance, so we believe that a new system is needed to give patients and the public a fair, balanced and easy to understand assessment of the quality of care provided. Clear ratings on performance will help to incentivise providers to improve their services, as they will be able to see how well they are doing. One of the central principles behind this clause is that it will enable the CQC to develop the new performance assessment system—informed by the views of stakeholders, of course, but nevertheless independent of government. In its report into ratings, the Nuffield Trust said:

“While there is a legitimate role for … government … to influence priorities, the process should largely be sector-led including the public and users”.

I am rather pleased that we did not debate this group of amendments on the previous Committee day because the CQC has, in the mean time, published a consultation on changes to the way in which it regulates, inspects and monitors care. I draw that to the attention in particular of the noble Lord, Lord Campbell-Savours, whose points I will address in a moment. This consultation, A New Start, sets out the commission’s initial thinking on the timetable for implementing ratings. The consultation document also sets out some detailed thoughts on how the CQC will rate NHS acute hospitals. I take the point made by the noble Lord, Lord Sutherland: this rating process will have to have some fundamental differences from that followed by Ofsted. However, the ratings will be based primarily on inspection judgments. They will be informed by a series of indicators, using data already available and the findings of other bodies such as those from accreditation schemes, clinical peer review and the judgments of other regulators. The CQC will be consulting on this model more fully later this year.

Noble Lords have raised concerns about the ability of a rating system to reflect the complexity of NHS acute hospitals. I assure the Committee that both the CQC and the Government are fully alive to this risk. The CQC is committed to producing ratings at a level which recognises the complexity of NHS services and is useful to people who use them, as well as those who commission NHS care. It is therefore proposing to provide ratings for certain individual services, such as emergency and maternity services, as well as for each hospital.

A rating will also be provided against each of the CQC’s key questions. They are: is the service safe? Is it effective? Is it caring? Is it responsive to people’s needs, and is it well led? This will mean that where the evidence is available, a trust would have five ratings at three different levels—for the individual service level, for the hospital site and for the whole trust. I am sure that noble Lords will agree that this is an ambitious aim, and one that seeks to reflect the complexity of the organisations that provide care.

The Government will draw up regulations that will enable the CQC to develop the programme of performance assessment in the manner outlined in A New Start. The consultation is the first small, but important, step in the process of developing a robust system of performance assessment of providers of health and adult social care. The first ratings of acute hospitals will appear at the end of this year: I will come on to the timetable in a moment. This will be another significant step in developing a ratings system, but it will not be the end of the journey. The Government are clear that the development of ratings will be a process of continuous evolution.

Amendments, 74, 75, 76ZA, 76ZZA and 76ZAA set out areas that the CQC must or could consider as part of its performance assessment of providers. These amendments would mean that the CQC would be required to include or consider the specific issues raised as part of its methodology. The Government share the view of noble Lords on the importance of the issues they have raised through these amendments. I am sure we can all agree that they are useful ideas. However, I hope that they will equally accept the importance of the central principle that we believe should be adhered to: that the CQC should be given freedom to develop its own methodology for the new performance assessments. The clause is deliberately designed to be flexible in that sense. I therefore hope that noble Lords will be content to withdraw their amendments, in the knowledge that the CQC is ready and willing to listen to all good ideas as it puts its final plans together.

The noble Lord, Lord Hunt, has also tabled Amendment 76ZB, which would require the CQC to undertake a pilot of its new performance assessment system and require the evaluation report to be approved by Parliament. The Government agree that the CQC’s new performance assessment methodology should be subject to evaluation. This is why, in our response to the Francis inquiry, Patients First and Foremost, the Government made the commitment that:

“The Department of Health will commission an independent evaluation of the operation of the new ratings system, and this will inform future adaptations”.

The amendment would give Parliament a power of veto over the methodology which the CQC develops for performance assessment. This is not desirable as it would constrain the freedom of the CQC to act on the findings of its consultation with stakeholders. I therefore hope that noble Lords will be content not to move that amendment.

Amendment 74A would require the CQC to undertake performance assessments of commissioners of healthcare services, specifically clinical commissioning groups and NHS England. The wording of Clause 80 could enable the CQC to undertake reviews of local authority commissioning of adult social care services. The absence of a similar requirement for healthcare commissioning therefore requires an explanation. The requirement for the CQC to review healthcare commissioning was removed by the Health and Social Care Act 2012 on 1 April 2013 when primary care trusts were abolished. This is because the function of supporting the development of the commissioning system for healthcare in England has become the responsibility of NHS England. NHS England’s role is to determine how the performance of healthcare commissioners, including clinical commissioning groups, is assessed and managed. There is therefore no need for the CQC to carry out a virtually identical role. I trust that the noble Baroness will be content to withdraw her amendment, but I would like to address the particular points raised.

[Lord Hunt of Kings Heath]

I do not quite see the logic of that, because in a sense NHS England has a vested interest in ensuring that all is well with the CCGs. It is not an independent body in the way that the CQC would be.

The other question is about NHS England itself. It is a massive commissioner of specialist services. If a local authority is to be assessed, I still do not see why NHS England ought not to be subject to some kind of independent assessment. It could have a huge impact on where specialist services are going to be provided in future. We know that Ministers are no longer prepared to answer questions about lots of things that NHS England does, so there seems now to be a gap in the architecture.

[Earl Howe]

Ministers most certainly are willing and able to answer questions about what NHS England is doing, and will continue to do so. Parliament, of course, will be entitled to keep NHS England’s performance in the spotlight; that architecture was built into the 2012 Act very deliberately. I do not accept the noble Lord’s point about clinical commissioning groups, because it is for NHS England to assure itself that the commissioning system for healthcare in England is working properly. There will be a high degree of transparency in that regard. The performance management role of NHS England will be right there, and I think that the proof of that will emerge over the coming months.

Perhaps I could cover the individual points raised by noble Lords. The first point was raised by the noble Lord, Lord Hunt, and echoed by the noble Lord, Lord Campbell-Savours, about how we expect the CQC culture to change in a relatively short time. I say to both noble Lords that I firmly believe that the CQC is already very much a changed organisation. It has a new leadership team in which I have full confidence. It has a new board—which, incidentally, the noble Lord, Lord Hunt, may be interested to know will include Kay Sheldon—and I think it has a new attitude to openness and transparency, as its handling of the Grant Thornton report demonstrates.

On 16 July, the CQC’s chief inspector of hospitals, Professor Sir Mike Richards, will start in post, so that is very soon. By September the CQC will be publishing a list of hospitals that it has the greatest concerns about, and it will be using its new surveillance system to develop this list. The CQC is committed to learning from the past and pressing ahead rapidly to improve for the future. I agree with the noble Baroness, Lady Howarth, that the CQC needs stability.

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[Earl Howe]

I agree that dignity is a very important concept, which is why we expressly amended the Bill to include that word right at the beginning. Clause 1, which defines the well-being principle, is the foundation for everything that follows. While one could pepper the Bill with references to the word “dignity”, I am not sure that that would add very much in practice.

[Lord Hunt of Kings Heath]

My Lords, I am grateful to the Minister for that response. I hope that he will reflect a little on the amendment from the noble Lord, Lord Bichard, and the noble Baroness, Lady Tyler. I understand what he is saying about the words in the Bill; I think that noble Lords just wanted to find a way of giving that greater focus. That will be well worth giving further consideration to. With regard to the amendment from the noble Baroness, Lady Barker, I am grateful for the reassurance that the Minister has given.

On Amendments 78 and 79, the Minister has essentially said that he still sticks to the general principle that the well-being clause applies to local authorities and individuals. The point here, though, and the reason why I am glad he is taking it away, is a point raised by a number of noble Lords: this legislation, which is a wholesale recasting in the light of the Law Commission’s work, is likely to endure for many years to come. That is why it is so important that the link between the Secretary of State’s duties, and those of local authorities, and the Secretary of State’s powers regarding guidance and regulations are brought together. I hope that the Minister will find a way of getting this into the Bill.

The noble Baroness, Lady Campbell, was very eloquent when she talked about what happens if health and social care do not provide an integrated service. She gave an example of a very distressing case of someone who could be out of hospital and back into work. This was down to a failure of two public bodies to sort things out. I know that the Minister says that in fact the legislation is okay; the problem is that these public bodies will continue to fail people who fall between two stools. These bodies do not seem to have an understanding that it is imperative for them to look after the interests of those individuals. I hope that the noble Baroness might return to this at a later stage.

The noble Lord, Lord Black, made some wholly persuasive arguments. My noble friend Lady Wheeler reminded me that Canine Partnerships is another organisation that is very much involved in pet companions for people with stroke, epilepsy and other illnesses. I myself have come across organisations in Birmingham in connection with the health service that do a fantastic job. All I would say is that if the noble Lord put this to a vote, the Opposition would be right behind him, so let us see. I beg leave to withdraw the amendment.

NHS: Mid-Staffordshire NHS Trust

Debate between Earl Howe and Lord Hunt of Kings Heath

Monday 24th June 2013 Lords Chamber

[Earl Howe]

My Lords, the latest figure that I have for the cost of the Department of Health’s media centre is for 2011-12 and is £2.57 million. I will write to my noble friend as soon as I have more recent figures. She may be interested to know that the names and contact details of each of the department’s press officers are published on the GOV.UK website. Currently, 28 Department of Health press officers are listed there. I do not have to hand the details of the number of press officers employed by NHS England, but, again, I shall write to my noble friend with that information. In the department and in NHS England, internal line management arrangements are in place to measure performance.

[Lord Hunt of Kings Heath]

My Lords, I refer noble Lords to my health interests in the register. I was very interested in the Minister’s first response, in which he agreed that oversensational statements about the NHS are doing great damage. Has he shared that view with his right honourable friend the Secretary of State? Hardly a day goes by without the Secretary of State taking an opportunity to attack various aspects of the National Health Service. Will he take it from me that this is having a very bad effect on morale in the NHS? His right honourable friend should desist, and a period of silence from him would be very welcome.

Care Bill [HL]

Debate between Earl Howe and Lord Hunt of Kings Heath

Wednesday 12th June 2013 Lords Chamber

[Earl Howe]

I understand the issue that the noble Lord has raised. There are a number of ways of exercising leverage on foundation trusts, if I can put it in that rather impolite way. One of them relates to the funding from the National Institute for Health Research. The noble Lord may well be aware that as from 1 April that funding is conditional on the 70-day timeline for the recruitment of the first patient into a trial. If that timeline is not met, the funding does not follow. I can tell the noble Lord that that has concentrated minds rather effectively across the health service, including in foundation trusts, towards achieving a much more efficient and effective decision-making process.

I am aware that I did not answer a question from the noble Lord, Lord Patel, about rationalising the number of research ethics committees, which may well bear upon this issue in another sense. The HRA and its predecessor have made good progress in reducing the timelines for ethical approval, something that stakeholders have recognised. The current special health authority feasibility study is looking at how to address other delays whereby trust decisions can be made based on their capacity and capability to take part in research. This is ongoing work. I come back to my point about the core function of the HRA, which is, above anything else, to protect the interests of patients and the public. It might not be advisable to load on to it too many other roles that could detract from that core function.

[Lord Hunt of Kings Heath]

My Lords, I am grateful to the noble Earl for that comprehensive response. I cannot help thinking that in order to protect the patient and the public there must be recognition that high-quality research is one of the best ways to enhance the quality of patient care. I remain concerned that bodies in the NHS still do not understand the importance of getting their act together in research approval. That does not mean that they do not have to go through a thorough process, because there clearly has to be a rigorous process to protect the public. I would like to see stronger language in the Bill that essentially allows the HRA to intervene if undue delays take place. I hope that we can return to that on Report.

I am grateful for the noble Earl’s comments on value-based pricing. All I would say to him is that I have been disappointed that there has been a great lack of public debate on this matter. I know that the department is shortly to publish further work. It is essential that these ideas are tested, and I am concerned that this is going to be simply a matter of negotiation between his department and the industry without there being a wider discussion of the implications. I appeal to the noble Earl for some opportunity on that.

Finally, the Minister has made it clear that the list in the clause represents bodies concerned with regulation, and that is now well understood. I come back to the question raised by the noble Baroness, Lady Emerton: is there not a case for another clause stating that there is a general duty of co-operation? There is an argument that while, of course, you have your statutory regulators which need to co-ordinate their efforts, you also want a lot of organisations and people to be involved, including the Chief Nursing Officer and the Director of Nursing at the department. I put that forward as a suggestion and beg leave to withdraw the amendment.

Medicine: Experimental Drugs

Debate between Earl Howe and Lord Hunt of Kings Heath

Monday 10th June 2013 Lords Chamber

[Earl Howe]

My Lords, the noble Lord is right that the two issues are distinct. It has always been the case that a doctor can, under his or her own professional responsibility, in certain circumstances, prescribe an unlicensed medicine. However, he is also correct that clinical trials need to take place within a framework of proper ethical and organisational approval.

[Lord Hunt of Kings Heath]

My Lords, I refer to my health interests in the register. Will the introduction of value-based pricing inhibit or encourage early access to new medicines?

[Earl Howe]

My Lords, the noble Lord will have to wait, I am afraid, for the results of the current discussions that are going on with the pharmaceutical industry about what value-based pricing will look like in the end. Certainly, it is our ambition that the price of a medicine should more fairly reflect its benefit to the patient and society. Therefore, if doctors have greater confidence that those two things apply when they are made aware of the price of the medicine, we certainly hope that uptake will follow.

Care Bill [HL]

Debate between Earl Howe and Lord Hunt of Kings Heath

Monday 10th June 2013 Lords Chamber

[Earl Howe]

My Lords, like my noble friend Lady Cumberlege, I pay tribute to the noble Baroness, Lady Greengross, for her very carefully crafted amendment. It seeks to extend compulsory statutory regulation to healthcare assistants and care assistants and to make further amendments to legislation to account for this. I want first to acknowledge the crucial role played by healthcare and care support workers in the delivery of high-quality care to patients and service users throughout the country. That much is a given. The vast majority of workers give the very highest quality of care and are relied on and valued for the way they improve people’s lives. However, we have all seen evidence that a minority let patients down. This is a cause for concern and it is right that there is discussion about how we can ensure consistent, high standards of care.

My noble friend Lady Cumberlege made some very compelling points on the terms of the amendment but on the wider issue of principle the Government do not believe that the case for regulation is proven. Compulsory statutory regulation is not, of itself, an effective way to assure the quality of care by these workers and it can detract from the essential responsibility of employers to ensure that any person they appoint is suitably trained and competent for the role.

There are already existing tiers of regulation that protect service users, including the standards set by the Care Quality Commission and the Disclosure and Barring Service. We also need to be clear that professional regulation is not a panacea. It is no substitute for good leadership at every level and proper management of services. It can also constrain innovation and the availability of services. Experience clearly demonstrates that a small number of those workers who are subject to compulsory statutory regulation from time to time fail to ensure that their practice is up to date and delivered to the standard that we expect. In these circumstances it is too often the case that regulation can react only after the event.

The placing of hundreds of thousands of individuals on a list would not, of itself, ensure that we never again see the appalling failings in care highlighted by the Francis report into Mid Staffordshire or, indeed, Winterbourne View. Strong and effective leadership of the workforce is where the focus for improvement should lie. Employers and managers who are closest to the point of care must take responsibility for ensuring standards.

We also recognise that we need to facilitate employers to appropriately employ, delegate to and supervise health and social care assistants. To this end, as I have previously mentioned, we commissioned Skills for Health and Skills for Care to develop a code of conduct and minimum training standards for these groups in England.

In addition, we have announced the Cavendish review to consider what can be done to ensure that all people using services are treated with care and compassion by healthcare and care assistants in NHS and social care settings. The Nursing and Care Quality Forum has been established to help all those involved in providing nursing and care in all care settings to deliver the fundamental elements of good care and achieve their ambition of providing the very highest quality of care. That is in part an answer to the point made very powerfully by the noble Baroness, Lady Masham.

The noble Lord, Lord Hunt, suggested that these workers are not being given the tools to upskill themselves. We want to ensure that all healthcare assistants provide safe, effective and compassionate care, and we have already announced a number of measures to support this, including a £13 million innovation fund for the training and education of unregulated health professionals, the publication of a code of conduct and minimum training standards for healthcare and care assistants, and a review of induction training by the CQC. This is work in progress.

Having made these points, I want to reassure in particular the noble Baroness, Lady Greengross, that we have an open mind as to the range of measures that need to be put in place. However, before we can take a rounded view of what those measures should be, we need to take account of the recommendations that flow from the Cavendish review. I suggest to the noble Baroness that that is the most sensible approach.

[Lord Hunt of Kings Heath]

My Lords, I am grateful to the noble Earl for giving way, but the terms of reference of the Cavendish review do not cover the regulation of healthcare support workers.

[Earl Howe]

No, the terms of reference encompass the core concern of the noble Baroness, Lady Greengross, which is the competence and skills of this sector of the workforce. That gets to the heart of the concerns of my noble friend Lady Browning around safety and the rest. The Cavendish review will point the way to a number of ideas that can move us in a positive direction.

Care Bill [HL]

Debate between Earl Howe and Lord Hunt of Kings Heath

Monday 10th June 2013 Lords Chamber

[Earl Howe]

My Lords, I would rather have a creative tension than a disconnect. If we get this right the tension will be there but it will be mutually reinforcing. You will have accountabilities running in both directions, essentially, from the national to the local and from the local to the national. In the past this has been a notoriously difficult area to get right. We hope and believe that the structure we are putting in place, in which the LETBs are committees of the national body but which have their own autonomy to a certain degree, will ensure that the tension that the noble Lord referred to really is creative, rather than the reverse.

[Lord Hunt of Kings Heath]

My Lords, that was a very useful exchange. I do not disagree with this architecture, in which national leadership comes from HEE but considerable autonomy is given to LETBs. When looking back at the history of the NHS I remain concerned, as does my noble friend, about failure to implement national strategies in relation to the workforce. This is because decisions are being taken locally which do not fit into the national strategy, particularly over training commissions. This afternoon the noble Earl said that HEE has enough powers to intervene if that were to happen. I think the question is whether HEE has enough national leadership and confidence to actually ensure that a national strategy is implemented. Of course, we will have to see.

On membership, I note the noble Earl’s statement about the number of different professional groups that will have to be covered by LETBs, which is why postgraduate deans are not listed on the face of the Bill. I think that my noble friend really was persuasive on this point. Doctors may not be the only profession, but they are a very important profession. I would have thought it quite extraordinary not to have a postgraduate dean among those around the table of the LETB. Equally, I do not think that the patient advisory forum is sufficient at national level. Considering the NHS record over the last few years, one of the areas causing most concern has been whether trained staff are fit for purpose when it comes to clinical areas. To have a representative of a patient or carer around the table at a LETB would have been very important. However, this has been a good debate, and I beg leave to withdraw my amendment.

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[Lord Hunt of Kings Heath]

My Lords, like my noble friend Lord Campbell-Savours, I remain puzzled by the Government’s approach. I am grateful to the noble Baroness, Lady Emerton, for setting out a number of persuasive arguments for why there ought to be mandatory training for health and care support workers. There seems to be a general consensus around the House and no doubt the Minister will agree with it. My reason for supporting the amendment is that mandatory training is clearly very important, but it is inevitable that if you have mandatory training you have regulation; the two run together. Those who are proposing these amendments ought to recognise that there is an inevitability that if you have training then you must have a list of people who are trained; action has to be taken against those people who have been trained but are then found to be unsafe in dealing with vulnerable people; and there has to be a way of removing them from the list of those who have been trained that has been published. If you go down this route, one way or another you are clearly signing up to mandatory regulation, and a jolly good thing too.

Amendment 23A puts forward an eminently sensible suggestion for healthcare support workers to be certified to show that they have been trained in basic standards, with employers to register individuals who hold such certificates. We need to go back to the Francis report. Mr Francis is widely reported to be disappointed with the Government’s response to his report, and it is not hard to see why. His report commented on the absence of minimum standards in training and competence. This is compounded by huge variations in the approach of employers to job specifications, supervision and training requirements. That is why my noble friend Lord Campbell-Savours has come across so many instances of poor-quality healthcare support.

The Prime Minister’s Commission on the Future of Nursing and Midwifery noted that training for support workers was very variable and recommended that they should be better trained. In response, as the noble Earl told us earlier, the Government have commissioned Skills for Health and Skills for Care to work together to develop a code of conduct and minimum induction and training standards. We now know from the mandate issued by the Secretary of State to Health Education England that it is obliged to establish minimum training standards for healthcare assistants by spring 2014. At this point, I ask the noble Earl: how far does that go? Will it be mandatory for all entrants to the role of healthcare assistant to undertake such training? If that is so, will this extend to care assistants? What about existing health and care support workers? Will this training extend to them, or will it apply only to new people coming into the healthcare profession?

Under the proposals, how will employers know if their support workers have undertaken the minimum standard of training? Will a nationally recognised certificate be issued? Will a national list be established, indicating those who have undertaken such training? If there is not a list, does that not leave a big burden on employers seeking to check whether prospective staff have undertaken the minimum training requirement under the mandate? I come back to the point I made at the beginning: if a list is established, would that, in essence, not amount to a register? If there is such a list or register and it becomes clear that a support worker is unsuitable to care for vulnerable people, is there a way in which an organisation or employer could then apply to have such an individual removed from the list of people who have received the minimum level of training?

Having a certificate showing that someone has achieved a minimum level of training will be generally regarded as a certificate of an ability to practise. If there is such a certificate, there must be a way to remove that certificate if people are found to be wanting. In effect, once one begins to lay down minimum standards and to specify mandatory training, will there not be an inevitable step towards regulation? Amendment 23A poses those questions to the noble Earl. I hope that he will answer sympathetically.

[Earl Howe]

My Lords, I first thank the noble Baroness, Lady Emerton, for an interesting set of proposals and I am grateful for her thoughtful introductory remarks. I agree that ensuring the capability of the health and care support workforce is vital to delivering high-quality care to patients and service users across both health and social care settings. The issue is how we achieve this. Key requirements for delivering high-quality care can best be achieved by providers having the right processes in place to ensure they have the right staff with the right skills and the right training to deliver the right care in the right way to patients and service users.

The idea of statutory requirements can seem an attractive means of ensuring patient safety, yet Robert Francis’s report demonstrates amply that this in itself does not prevent poor care. I confess that I was a little surprised by the vehement support of the noble Lord, Lord Hunt, for the idea of statutory regulation because it was an idea that his Government resisted for some time. I suggest that they resisted it for a number of reasons and they came to the conclusion that it is not as self-evident as some like to make out. That is certainly this Government’s position. This is not, as the noble Lord, Lord Campbell-Savours, suggested, a laissez-faire attitude on the part of the Government. As we made clear in Patients First and Foremost, the initial response to the Francis inquiry, the Chief Inspector of Hospitals will ensure that all hospitals act to make sure that all healthcare assistants are properly trained and inducted before they care for people. I suggest that this is an important step forward.

Care Bill [HL]

Debate between Earl Howe and Lord Hunt of Kings Heath

Monday 10th June 2013 Lords Chamber

[Lord Hunt of Kings Heath]

There are various definitions relating to LETBs. For instance, Clause 90(3) says:

“In carrying out its main function, an LETB must represent the interests of all the persons who provide health services in the area for which the LETB is appointed”.

However, the general interpretation on page 89 defines not “health services” but rather “the health service” as,

“the comprehensive health service in England continued under section 1(1) of the National Health Service Act 2006”.

My question is: does “health services” in Clause 90 equate to “the health service” in Clause 110, or is “health services” in Clause 90 a wider interpretation that embraces the argument of my noble friend Lord Campbell-Savours?

[Earl Howe]

It may be convenient for the Committee if I take together the questions of the noble Lords, Lord Campbell-Savours and Lord Hunt, because the noble Lord, Lord Hunt, asked me about the role of the independent sector in participating in training and indeed in funding it. Perhaps I may clarify that.

The Health and Social Care Act 2012 placed a duty on the Secretary of State to ensure an effective education and training system, as I mentioned earlier. The Act also placed a duty on commissioners of health services to ensure that providers support the Secretary of State in this duty when contracting with them. The Government have already put into place measures to deliver the Secretary of State’s education and training duty by amending the commissioning contracts and supporting regulations for the delivery of services, so they now require co-operation on education and training. This means that all providers of NHS services are expected to co-operate and, where appropriate, this co-operation will involve them providing education and training.

--- Later in debate ---

[Earl Howe]

The answer is twofold. First, the Care Quality Commission inspects every care home to a uniform standard. One of its duties is to ensure that the staff in a care home are sufficiently capable and trained to deliver care in the right way to the patients and service users who live there, taking into account the acuity of need of those people. Secondly, as the noble Lord may be aware, the Government have proposed that a system of star ratings should be reintroduced for both healthcare settings and adult social care settings. In that way the general public may have a much closer and more detailed sense of the quality of care provided in the care home, as assessed by the Care Quality Commission. Again, this is work in progress. The Care Quality Commission is working out its methodologies for delivering those star ratings, but if we get this right, I believe it will take us several steps forward in transparency of quality and the ability of members of the public to choose, in a much more meaningful way, the setting that they wish to see either themselves or their families benefiting from.

[Lord Hunt of Kings Heath]

My Lords, that has been extremely useful. The intervention of my noble friend Lord Campbell-Savours has been particularly useful. Reading Clause 86 (5) together with Clause 93 and the interpretation in Clause 110, it becomes clear that many nursing homes will receive some funding from the NHS in providing continuing healthcare for some residents. That seems to me to be very helpful indeed because, given that there is a great deal of concern about the quality of staff in nursing homes and the training of those staff, it gives local education and training boards a clear remit to concern themselves with the staff in a lot of nursing homes in their area. I hope that it will be possible for a message to be sent to Health Education England from this debate that, if it is looking at the most vulnerable areas in terms of vulnerable people, that ought to be where the priority should be. My noble friend has teased out a very important indicator of the way in which LETBs should work in future. I hope we will see in their plans that a major effort will be devoted to the staff in those homes.

On the more general question, I noted that the Minister had been urged to be cautious by various bodies in relation to whether there should be a levy on private sector providers. It is a bit rich of the Future Forum to worry about the third sector contribution since it is the Future Forum that has tried to open the door to a competitive market in the NHS. The third sector and Sir Stephen Bubb cannot have it all ways. If he wants to have a competitive market, as he seems to, then the third sector can jolly well make a contribution alongside the NHS. They cannot have it both ways.

[Earl Howe]

My Lords, I hear what the noble Lord has said on this. In practice, as he knows, most education and training take place in the public sector, but we expect Health Education England and the LETBs to seek advice from a range of stakeholders. Indeed, HEE has reinforced the importance of this in the appointment criteria that it has set for LETBs which state that they should demonstrate meaningful collaborative working relationships with stakeholders, including third and independent sector providers. This will help to establish stronger links with the independent sector so that it can deliver clinical placements and perhaps also postgraduate training programmes where appropriate.

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[Earl Howe]

My Lords, I beg to move Amendment 53, and at this point it will be convenient to consider government Amendments 54 to 57 as well.

The importance of balancing a person’s right to confidentiality with the benefits of using information to improve the current and future health and care of the population cannot be underestimated. The NHS constitution sets out a number of rights and commitments in this regard.

Section 251 of the NHS Act 2006 provides the Secretary of State with a power to make regulations that modify the common law obligations of confidentiality so as to allow researchers, public health staff and other medical practitioners to access information where there is no reasonably practicable way of obtaining consent to use such information for the purposes of medical research; that is, in the interest of improving patient care or in the public interest.

The Health Service (Control of Patient Information) Regulations 2002 made under Section 251 of the NHS Act make provision for public health surveillance and risk management, work associated with cancer registration and approvals for the processing of confidential patient information for medical purposes in certain circumstances, provided that the processing has been approved by the Secretary of State.

These amendments provide continuity for the functions of advising on the approval of processing of confidential patient information for medical purposes, other than direct patient care. These functions were previously carried out by the national information governance board and its ethics and confidentiality committee. The special health authority has been directed to undertake these functions since 1 April this year, and so the provisions would ensure continuity.

I turn to the detail of this group of amendments. The amendments would require the Health Research Authority to appoint an independent committee to provide advice on applications to process confidential patient information. The committee would advise on approvals to process confidential patient information for medical research purposes and for other medical purposes. As the Bill is currently drafted, the Health Research Authority would have the power to appoint such a committee under its proposed functions in Schedule 7 to the Bill, but this would be discretionary.

This group of amendments would ensure that such a committee is established and that it is independent. This is important to ensure that the arrangements that are currently in place will continue, maintaining public confidence in the decisions made. In the interests of consistency across the system, these amendments would require a single, independent committee to advise both the Health Research Authority itself on approval for medical research purposes, and the Secretary of State on all other approvals for medical purposes.

The Health Research Authority special health authority has established an independent committee, known as the Confidentiality Advisory Group, to advise the existing Health Research Authority and the Secretary of State on approvals. The provision of transparent, expert and independent advice to support approvals for processing of confidential patient information is vital. It protects and promotes the interests of the patient while facilitating the appropriate use of confidential patient information beyond direct patient care. It ensures that each application for approval is carefully considered and that there is consistent, expert advice to inform approval decisions.

I hope noble Lords will accept that these amendments will ensure that there continues to be independent advice on applications to process confidential patient information for medical purposes. I beg to move.

[Lord Hunt of Kings Heath]

My Lords, I am sure that the amendments will be welcome, and that access to confidential patient information needs to be accompanied by full safeguards for the protection of individual patient privacy. However, will the noble Earl also confirm the importance of access to this information for the purposes of legitimate research? Can he also confirm that by transferring these functions to the HRA, we can look forward to a more transparent, consistent and streamlined process in the future?

[Earl Howe]

My Lords, as I indicated, we have always needed to strike a balance—reflected in the 2002 regulations which the noble Lord brought forward in that year—between protecting the rights of the individual and ensuring that ethical approved research can take place using confidential patient data only where appropriate. I agree with the noble Lord that we should not place any undue barriers in the way of research, but there are clear rules around this which we need to honour and protect. We will be reaching a group of amendments around the issue of transparency, and if the noble Lord will allow it, I will reserve my remarks on that until we reach that group of amendments.

Care Bill [HL]

Debate between Earl Howe and Lord Hunt of Kings Heath

Tuesday 4th June 2013 Lords Chamber

[Earl Howe]

It may not surprise my noble friend to know that I asked my officials the self-same question, because I anticipated an appetite for draft regulations. I am, unfortunately, not in a position to make that promise, much as I would like to do so, because there may not be the necessary time available for the regulations to be drawn up in draft. However, I will take back the strength of my noble friend’s request and see whether there can be any reconsideration of that point.

[Lord Hunt of Kings Heath]

My Lords, it has been a very good debate, and I am grateful to the noble Earl and other noble Lords for taking part. It is the role of noble Lords always to ask the Government for draft regulations but, alas, I fear that we may not see them. If we cannot, perhaps we could at least get a sense of instructions that might be given on policy direction.

First, let me say that the Government’s reflection on the Joint Committee’s recommendation with regard to clinical expertise, and the change that has been made, is welcome. I listened with care to the noble Earl when he said that the needs of Health Education England and the education and training of staff may change over time, which is why that is best left to regulation. That makes sense, but I cannot believe that there will ever be a time when research and nurse representation will not be important. I ask the noble Earl to give that further consideration.

I will just reflect on the comment of the noble Baroness, Lady Emerton, that this has been a consistent theme of restructurings over the years. The noble Baroness, Lady Cumberlege, and I have lived through many restructurings and they always start with the premise that there will not be a nurse on the board. Then, after argument and sometimes experience, it is discovered that you need to have a nurse. I would have thought that the Francis report, at its heart, focused a lot on nursing experience and leadership. I ask the noble Earl to give this further consideration. It would be a very visible sign that the Government are listening to this point and that they actually set out in primary legislation that a registered nurse should be appointed.

I am glad that the noble Earl picked up the point about non-registered staff and managerial staff. It is not just in the health service. In the further education sector there is a similar problem, with only a limited number of people applying to be college principals. We need to think very hard about what we can do to give greater support and encouragement to bright young people coming through so that they aspire to take on these top jobs. No one should underestimate the pressures that those leaders are under, but we really want good people. I endorse the noble Earl’s reference to clinicians. We need to encourage more clinicians to take on leadership roles.

I was very interested in the contrast between the desires of the noble Earl not to give autonomy to the board to appoint its own chief executive, but to give it autonomy when it came to the salaries of its staff. I ask for some consistency here. If the Secretary of State appoints the chair and the non-executives—which is absolutely right—he or she should then have confidence in their judgment to allow the board to appoint a chief executive.

Finally, on the intervention of the noble Baroness on integration, it might help our future debate if the noble Earl could confirm that Clause 88, on matters to which HEE must have regard and in which subsection (1)(h) refers to,

“the desirability of promoting the integration of health provision with health-related provision and care and support provision”,

answers the point that the noble Baroness raised—that in effect HEE does have to have an understanding of the needs of those providing social care because of the contribution that they can make to integrated services.

[Earl Howe]

I can answer that immediately by saying yes, it does mean that; indeed, it is that particular provision to which I think the amendment of the noble Lord, Lord Warner, is attached.

[Lord Hunt of Kings Heath]

My Lords, I am very grateful. Having said that, I beg leave to withdraw my amendment.

Care Bill [HL]

Debate between Earl Howe and Lord Hunt of Kings Heath

Tuesday 4th June 2013 Lords Chamber

[Earl Howe]

My Lords, Amendments 9, 18 and 34 seek to require Health Education England to seek the advice of regulatory bodies and royal colleges in the exercise of its functions. Similarly, Amendment 36 seeks to amend Clause 89(3) to require Health Education England to seek advice from all the medical royal colleges. Amendment 15 seeks to amend Clause 85 to require HEE to seek representations from relevant organisations to define sufficient workforce numbers and the appropriate skills mix when carrying out its duty.

The education and training landscape is multifaceted. Many organisations have an interest in the development of health professionals, ranging from local employers in the NHS through to national organisations such as the professional regulators, including the Nursing and Midwifery Council, and professional bodies such as the medical royal colleges and those supporting other professions. To carry out its role effectively, Health Education England and the local education and training boards need to tap into all this knowledge and expertise. These bodies have crucial responsibilities in setting professional standards, shaping curricula and driving forward improvements in the quality of education and training. Health Education England simply has to work closely with them to deliver its functions.

The medical royal colleges in particular play an essential role in supporting the development of the medical profession, shaping curricula and the development of training programmes, supervising training, examining trainees to ensure the highest professional standards, promoting and supporting research, supporting audit and evaluation of clinical effectiveness, and generally providing support and advice for doctors at all stages of their careers. So I can reassure the Committee that Health Education England is already required to work with the professional regulators and medical royal colleges to obtain their advice on the exercise of its functions.

Clause 89 requires Health Education England to obtain advice on the exercise of its functions. Clause 89(2) requires HEE to seek to ensure that it receives representations from bodies which regulate healthcare workers and persons who provide, or contribute to the provision of, education and training for healthcare workers. This includes universities, professional bodies and the medical royal colleges.

The noble Lord will be pleased to hear that Health Education England is already working with the professional regulators and medical royal colleges. When he gave evidence to the Joint Committee that scrutinised the draft Bill, Professor Ian Cumming, the Chief Executive of HEE, was very clear that he saw the professional regulators and royal colleges as partners in developing the next generation of staff. Professor Peter Rubin, the chair of the GMC, gave evidence in the same session and reinforced that view, reassuring the committee that the GMC has a very good working relationship with Health Education England.

HEE is not starting from scratch in building these relationships. It is building on the good work previously done by Medical Education England and others to strengthen engagement and partnership-working with the professions. As I mentioned earlier, the HEE special health authority has established profession-specific advisory groups, involving employers and key partners including national regulatory and professional bodies. These will look at profession-specific workforce development across medicine, dentistry, nursing and midwifery, the allied health professions, pharmacy and healthcare science. They will each have a patient representative and be co-chaired by Health Education England and the professional lead in the relevant field.

In addition to having profession-specific advisory groups, Health Education England is establishing a multi-professional advisory group to bring all professions together to look at cross cutting issues. I hope that is a positive piece of information for the noble Baroness, Lady Emerton, in particular. I hope that the noble Lord, Lord Hunt, will be pleased that it is also setting up a patient forum to ensure patients and service users can engage in education and training and inform work in that area.

[Lord Hunt of Kings Heath]

I am very grateful to the noble Earl on that point. Is there a case for replicating that at local level, through the LETBs?

[Earl Howe]

Certainly, I do. I am happy to take that idea away, and if I can give him any further information during the course of our debates I will. Equally, the LETBs have strongly established connections with professional regulators and professional bodies. For example, the postgraduate medical and dental deans, who are now an integral part of the LETBs, work very closely with the GMC and medical royal colleges in the management and quality assurance of training for junior doctors. I hope that those remarks will reassure noble Lords sufficiently for them not to press the relevant amendments.

In reply to my noble friend Lord Willis, who expressed concern about the way the Explanatory Notes were framed, it is important to look at the entire context of the passage he quoted. The words “such as” appear in that passage before “the medical Royal Colleges”, so it is not meant to denote an exclusive reference to the medical royal colleges; it is very much trying to say that the professional bodies in general will be relevant here.

Amendment 35, tabled by the noble Lord, Lord Hunt, and the noble Baroness, Lady Wheeler, seeks to amend Clause 89 to require HEE to seek advice from the Care Quality Commission and Monitor. It is very important that Health Education England works closely with those two bodies. The Care Quality Commission plays an important role in assessing the quality of healthcare services, and in so doing it assesses their ability to deliver services safely and effectively. In doing so, it will consider whether healthcare providers have suitably skilled staff and in the right numbers. It will need to work closely with Health Education England to share findings and evidence to support improvements in education and training. Health Education England will also be able to share information on the effectiveness of providers in supporting clinical placements and training programmes to support the Care Quality Commission in its role.

HEE and Monitor will work closely together to ensure the financial stability of the health system. This will include working together on the reform of education and training funding and the development of education and training tariffs. To reflect the importance of these relationships, the Bill places a clear and reciprocal duty on Health Education England to co-operate with both the Care Quality Commission and Monitor. I hope noble Lords will feel reassured by that and will be able to withdraw this amendment.

--- Later in debate ---

[Earl Howe]

My Lords, I understand the point. In view of the hour, if I may, I will write to both noble Lords to flesh out the remarks that I have made. I hope that I can give them some comfort in that area.

Amendments 25 and 27, tabled by the noble Lord, Lord Hunt, focus on the importance of long-term and national approaches to workforce planning in education and training, as does Amendment 26. We have strengthened the Bill, following feedback in consultation and at pre-legislative scrutiny, in Clauses 87 and 93 to reflect the importance of HEE and the LETBs taking a long-term perspective on workforce planning and education and training. It is the Government’s expectation that all workforce planning, be it national level planning by HEE or local planning by the LETBs, should be based on a well informed, long-term workforce strategy that looks at needs over the next five years, 10 years or beyond. Any workforce strategy to be credible and deliverable has to be developed in partnership with those partners and stakeholders who have a stake in it. The very same principle applies to the development of national workforce priorities and outcomes and the Government are committed to working with everyone involved in education and training to shape the education outcomes framework and the mandate for Health Education England.

Health Education England will be expected to develop a national workforce plan, building on the local plans developed across England by local education and training boards. I hope that the noble Lord will feel reassured by those comments.

I turn now to Amendments 33 and 14, which seek to amend the Bill to require HEE to have regard to any official guidance and standards on staffing numbers and skill mix. HEE must work with commissioners and healthcare providers to ensure that workforce plans focus not only on how many staff are required but the breadth of skills required to deliver safe services. These plans need to be integrated with service and financial planning so that the needs of all patients and local communities can be met. Individual healthcare providers are best placed to determine how many staff they need to employ, the skill mix required across the various teams and how they need to deploy them to support services and so on. It is the responsibility of individual healthcare provider boards to be accountable for staffing levels and the skill mix of staff in their organisations. Where changes are planned to the size and shape of the workforce, including the skill mix, healthcare organisations must provide assurance that the safety and quality of patient care is maintained or improved. The process should include clinical involvement, leadership and sign off. I hope that these comments will be reassuring.

The noble Lord, Lord Hunt, asked me about the definition of “sufficient” and whether we were talking about equilibrium or oversupply. I will write to him on that, but in delivering that duty, HEE will seek to match supply and demand so far as that is practically possible. It will also promote the importance of a flexible workforce that can adapt to changing circumstances.

I will also, if I may, write on the issue of staffing ratios. I would just say here and now that staffing is clearly not just about crude numbers and not just about nurses. It is also about how the staff work and ensuring that the right staff are in place to meet the needs of the patients whom they are looking after. Again, it is local healthcare providers that are in the best place to decide how to configure those staff in the right way and to ensure better outcomes and value for money. It really depends on the skill mix, the clinical practice and local factors. I think we would say that it is right that nurse leaders should have the freedom to agree their own staff profiles. But I shall follow up that point.

Amendment 19 seeks to amend Clause 86(2) to add to Health Education England’s main functions the promotion of the importance of practical based training in the education of clinicians. I wholeheartedly agree that practical experience while training is essential to ensure that clinicians have the necessary skills to deliver high-quality and compassionate care and have the correct values and behaviours to practise in the NHS and public health system. It is the responsibility of the professional regulators to ensure that the right standards are in place for professional education and training. Practical experience is already a requirement of the professional regulators. Nursing students, for example, are required by the Nursing and Midwifery Council to undertake half of their training in a practice setting. The GMC also expects every medical student to gain practical experience of working with patients throughout their degree. We have placed a strong duty to secure continuous improvement in the quality of education and training on Health Education England. HEE is already working with the professional regulators, as I have already mentioned, to ensure that the Bill remains clear and simple. However, we have not specified the integral elements of the training programmes to which this duty applies. I would add, though, that the need for practical experience is one of the key priorities that the Government have set for the Health Education England Special Health Authority in the mandate. Health Education England will work with the LETBs and healthcare providers to deliver high-quality clinical and public health placements that provide students and trainees sufficient time working with patients to gain experience.

On Amendment 29, I can reassure the noble Lord that, where appropriate, Health Education England will take a national lead in the planning and management of education and training activities. The Bill already makes provision for this in Clause 94(2). The HEE Special Health Authority has already taken on responsibility at national level for crucially important arrangements to manage recruitment into foundation and specialty training programmes for junior doctors. Where there are controls on workforce numbers at national level—for example, in medicine or pharmacy—it will work with partners such as the Higher Education Funding Council for England to develop national plans that will deliver the staff needed across England.

Amendment 30 seeks to amend Clause 88 to add a requirement for Health Education England to have regard to the need,

“to co-ordinate its activities with the NHS in Scotland, Wales and Northern Ireland”.

Of course, it is very important that HEE works closely with the other UK nations in developing workforce plans and shaping education and training. It will be important for it to take a UK-wide perspective and, where appropriate, an EU-wide or indeed global perspective in planning for the future and reforming education and training. I refer the Committee to paragraph 17 of Schedule 5, which enables Health Education England to exercise corresponding functions on behalf of the devolved authorities. The special health authority is already working closely with its partners in Scotland, Wales and Northern Ireland, building on previous arrangements.

I sympathise completely with Amendment 28 and I wholeheartedly agree that there should be equality of funding for education and training across England. Moving to a tariff-based system for funding clinical education and training would enable a national approach to the funding of clinical placements and would provide a more level playing field between different providers. It will ensure that providers are reimbursed fairly for the education and training that they deliver and are incentivised to provide high-quality clinical placements to their students and trainees. For consistency of opportunities across the country, Clause 85 places a duty on HEE to ensure that sufficient numbers of health professionals are trained and available to work in the health service throughout England.

I hope that noble Lords will feel reassured by those remarks. Before I close, I will quickly respond to my noble friend Lord Willis, who expressed concern about the mandate containing little on nursing and support workers. There is a clear and strong commitment to supporting the development of the care assistant support workforce. Similarly, there are clear national priorities focusing on development of the nursing and midwifery workforce. Again, if I can elaborate on that in writing, I would be happy to do.

[Lord Hunt of Kings Heath]

My Lords, I am very grateful to the noble Earl for that comprehensive response. I am sure that we will all want to study it very carefully in Hansard. I will just make two points. One is that I hear what he says about the obvious intention of HEE to undertake long-term planning, but putting something in the Bill might help it with that. Secondly, I realise that my amendment on practical-based training is not very sophisticated but there is a kernel of truth within it that I would like to pursue on Report. But I am most grateful and beg leave to withdraw my Amendment 11.

NHS: GP Dispensing

Debate between Earl Howe and Lord Hunt of Kings Heath

Thursday 16th May 2013 Lords Chamber

[Earl Howe]

My Lords, the rules as they stand do not present a major obstacle for disabled patients. Many pharmacies, for example, offer a free prescription collection and delivery service if a patient encounters difficulty in getting into the pharmacy premises. Under that arrangement, the pharmacy collects the prescription from the surgery on behalf of the patient, dispenses it and delivers it to the patient. Patients can contact their local pharmacies to see whether they offer that service.

[Lord Hunt of Kings Heath]

My Lords, I refer noble Lords to my health interests in the register. I well understand why the noble Earl does not want to reopen the issue, having chaired meetings at the department of the two representative bodies myself. However, I wonder whether the current arrangements are justifiable in 2013. Does the Minister not think that it might warrant his department asking an independent reviewer to look at the situation again, particularly from the point of view of the consumer and patient rather than of either the pharmacist or the dispensing doctors?

[Earl Howe]

I am sure that the noble Lord is as aware as anyone of the balance that has to be struck here. A GP’s primary purpose is to provide comprehensive medical care and treatment to his or her patients. More than 90% of prescription items are dispensed by pharmacies, which is what most patients expect. However, we must have arrangements to enable patients who live in rural and more remote areas to access medicines more easily. I think the noble Lord will understand that the arrangement for some GPs to provide dispensing services has always been the exception rather than the rule. I do not think there is an appetite on anyone’s part among the professions to reopen these arrangements.

Emergency Services: Paramedics

Debate between Earl Howe and Lord Hunt of Kings Heath

Wednesday 15th May 2013 Lords Chamber

[Earl Howe]

My Lords, it is up to the employer—in this case, the ambulance trust—to ensure that it has a body of suitably trained and experienced staff. That depends on regular monitoring and ensuring that training is kept up to date. Equally, it is up to commissioners to ensure that the service that they are receiving is delivered by suitably experienced and qualified people. The CQC will also have a role in this regard.

[Lord Hunt of Kings Heath]

My Lords, I refer noble Lords to my health interests in the register. To follow on from the noble Earl’s final comment, is this not an example of staff such as nurses being trained to be practitioners in the health service but finding that they have not been given enough practical training when they come to treat people on the front line? The noble Earl will know that Health Education England is being established as a non-departmental public body in the Care Bill. Can we ensure that that body has much more control over the curriculum of those being trained to fill these very important posts?

[Earl Howe]

The noble Lord makes a series of very important points about training. The answer to his final question is that, yes, Health Education England will certainly be looking at the degree of training required to fulfil specific professional tasks across the piece in the health service, including the ambulance service. However, I do not think that this case reflects a lack of appropriate training on the part of the individuals involved. They were appropriately trained; they were just incompetent. That is the point.

NHS: 111 Telephone Service

Debate between Earl Howe and Lord Hunt of Kings Heath

Monday 13th May 2013 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, I beg leave to ask the Question standing in my name on the Order Paper and refer noble Lords to my health interests in the register.

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

My Lords, we recognise that the NHS 111 launches in March did not go as smoothly as planned and that a number of providers have delivered an unacceptable service, especially at weekends. NHS England is working closely with clinical commissioning groups to stabilise providers who have failed to deliver an effective service and to ensure that areas yet to go live are in a safe and fit state to do so.

[Lord Hunt of Kings Heath]

My Lords, I am grateful to the noble Earl for that response, but on what grounds was the decision made to go ahead with the national rollout in the light of the results from the pilots, which showed problems with the scheme, and the fact that many people in the NHS advised Ministers and NHS England not to roll it out because it was not ready?

[Earl Howe]

My Lords, the University of Sheffield did work for the department reporting on the first four NHS 111 pilots. That showed that 92% of patients were satisfied with the service and that 93% felt that the advice given was helpful. It also found that, overall, the service was meeting its objective of getting people to the right place first time. On that basis, it was considered safe to go ahead with a rollout. Unfortunately, in particular areas of the country, the resources deployed to meet the demand have not been accurately assessed, but I stress that that is in a minority of locations.

National Health Service (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013

Debate between Earl Howe and Lord Hunt of Kings Heath

Wednesday 24th April 2013 Lords Chamber

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

My Lords, we are debating a set of regulations on which, as we have heard this evening, a great deal of passion and a large quantity of printers’ ink has been expended over recent days and weeks. I would like to begin with three very simple statements, which I hope will be helpful as mental marker posts before I respond to the concerns and questions that have been raised.

First, amid the many changes that the Government have made to NHS commissioning, one area of the law that we have not changed one iota is the law relating to competitive tendering. That law has been in place for a number of years. It has been governed by a European directive, and as regards the rules that govern NHS procurement, these regulations usher in nothing new at all.

Secondly, there is no government agenda to privatise NHS services—quite the contrary. The House may remember that we made it illegal in the Health and Social Care Act for the Secretary of State, Monitor or NHS England to have a policy of deliberately favouring the independent sector.

Thirdly, it is NHS commissioners and no one else who will decide whether, where and how competition in service provision should be introduced. These regulations do not confer any obligation on commissioners to create or promote markets, nor do they require commissioners to unbundle or fragment services against the interests of patients.

I begin with these simple statements because they are key to understanding what the Government are doing and what they are not doing. What we are doing, above all, is having a set of arrangements in place that will protect the interests of patients. The basic purpose of the regulations is to prevent commissioners failing to think about how the needs of their patients can best be met. Equally, their purpose is to ensure that commissioning in the NHS is protected from abuses arising from conflicts of interest or anti-competitive behaviour that works against the interests of patients. There is no encouragement in these regulations, explicit or implicit, to commission services from the independent sector, or indeed any other sector. The regulations enshrine the principle that patients must receive services from the providers, from whichever sector—public, private or voluntary—that are most capable of meeting their needs and improving the quality of services that they receive.

Mechanisms to make sure that this happened were put in place by the previous Administration. These mechanisms consisted of the Principles and Rules for Co-operation and Competition, which were overseen by the Co-operation and Competition Panel. Now that primary care trusts no longer exist, we need to carry over those arrangements so as to apply them to clinical commissioning groups. The Government committed, in their response to the NHS Future Forum report, to maintain the previous rules and place them on a statutory footing in order that they could continue to apply to commissioners. That is exactly what we have done; the panel has been transferred into Monitor, so that there is absolute continuity in how the rules will be applied.

This is a key point for noble Lords to understand. Monitor is now the sector-specific regulator for the NHS. In practice that means that it, not the courts, will be the guardian of patients’ interests and will adjudicate if allegations of anti-competitive conduct arise. In effect, it will act as a firewall between commissioners and the courts. If the House annuls these regulations, that firewall will disappear and I suggest to the House that this could not possibly be in the interests of the health service.

The regulations also make it clear that Monitor has no powers to direct commissioners to go out to tender, which brings me to Regulation 5(1). People who have looked at that regulation have stated that it requires commissioners to go out to tender for just about every NHS service. That is not so. It is not even remotely near the reality. First, the wording of Regulation 5 which refers to “one capable provider” is almost exactly the same as that of the previous Government’s guidance to PCTs. My noble friend Lord Clement-Jones was quite right in pointing this out. I shall now read from that guidance. It said that PCT boards “must act transparently” and without discrimination,

“and be able to demonstrate rationale for decisions on whether or not to competitively tender. In particular, where the commissioner decides to procure through single tender the rationale must demonstrate that there is only one capable provider to deliver the services”.

The circumstances in which a commissioner may therefore award a contract without a competition under the regulations are exactly the same as they have been up to now. There is no daylight between them.

It is worth my making a point about that guidance. It was not guidance that PCTs could take or leave but guidance that was declaratory of public procurement law, which applied to PCTs, so those who think that we are replacing a rather loose arrangement with something more stringent are mistaken. The law was binding before and it is binding now. These regulations are declaratory of the existing legal position, just as the previous Government’s guidance was. However, we also need these regulations to ensure that the various protections for patients and commissioners afforded by Monitor, as agreed during the passage of the 2012 Act, are in place.

We have heard concerns this evening from the noble Lord, Lord Davies, about what might happen to the unbundling of hospital services. I would like to put that misconception to rest. Elective hospital care is not relevant to these regulations. The previous Government brought in a policy known as “any willing provider” for elective hospital services. We have continued with that policy, which means that patients have a free choice between hospital providers who meet NHS quality standards and contractual terms. There is therefore no question of tendering for those services.

In the main, the services where tendering might be relevant are those delivered in the community and certain more specialised services. Again, the overarching principle to guide commissioners is Regulation 2—to do what is in the best interests of their patients. In some circumstances, tendering may be appropriate, but in many cases it will not: for example, where there is only one provider capable of providing the integrated package or pathway of services which the commissioner wishes to secure for its patients. In another situation, they may judge that only one provider is able to meet the clinical quality and safety standards that they require. They may decide not to tender where they conclude that it is necessary for services to be co-located because of the interdependencies between them—a point raised by the noble Lord, Lord Davies, once again—in order, for example, to ensure patient safety.

It is worth looking at the actual wording of Regulation 5(1), which says:

“A relevant body may award a new contract … without advertising … where the relevant body is satisfied that the services to which the contract relates are capable of being provided only by that provider”.

The relevant body has to be satisfied. This means that a commissioner needs to go through a process to make sure that it is taking sensible decisions that genuinely address the interests of its patients. In other words, it must have a rationale for what it does and be satisfied that it is doing the most appropriate thing. As long as it has that rationale, that is where the matter ends. I repeat: in those circumstances there is no one who can oblige the commissioner to go out to tender.

Those who maintain that these regulations usher in a lawyers’ charter are not looking at the evidence. The evidence to date tells us that only a tiny handful of cases have been referred to the Co-operation and Competition Panel in the space of several years. I can tell the noble Baroness, Lady Hollins, that none has gone to court. Since the rules on NHS procurement are staying exactly the same, I fail to see why we should expect a sudden avalanche of challenges to commissioning decisions.

As I said during the passage of the Health and Social Care Act, there is no requirement in these regulations or anywhere else to create markets. Nor, as I have said, is there any requirement for commissioners to unbundle or to fragment services to facilitate competition: in other words, to separate out individual services so they could be provided by a larger range of providers. The decision whether and when to create these conditions and the services to which they apply remains entirely with commissioners.

One of the arguments produced by the noble Lord for annulling these regulations is that they lack clarity, particularly Regulation 5(1). I suggest that is a specious argument. First, the law has not changed. Secondly, employees of commissioning support units, whose job it is to support CCGs in commissioning decisions, are very largely the same people who did exactly the same jobs in PCTs and are entirely familiar with this area of the law. Thirdly, there is already guidance out there, produced by the NHS Commissioning Board Authority last year. Fourthly, Monitor will be providing further guidance to support commissioners in understanding the circumstances in which single tender is appropriate, including specific case studies. This guidance will be consulted on shortly. Monitor will continue, as the Co-operation and Competition Panel did before it, to provide informal advice to help commissioners understand the regulations. We really do not have to worry about lack of clarity here.

I turn now to one or two of the specific questions that were posed in the debate. The noble Lord, Lord Owen, asked why other countries have not applied these procurement laws. All member states in the European Union have been required to transpose the EU directive on public procurement into their own national legislation. In fact, it has been applied in Wales and Northern Ireland through the Public Contracts Regulations 2006.

The noble Lord, Lord Hunt, maintained that the OFT’s role in mergers is evidence of the Government’s agenda to marketise the NHS. First, that issue is in no way related to the regulations that we are debating tonight. Perhaps I could remind the noble Lord that the OFT is acting independently under the powers conferred on it under the previous Administration through the Enterprise Act 2002.

With regard to the Competition Commission gagging clinicians in the Bournemouth and Poole merger case, I suggest that that is not relevant either. My understanding is that those arrangements are simply to prevent the merger proceeding further while it is being reviewed. They should not get in the way of providers co-operating with each other in the usual way in the interests of patients. The noble Lord said that Monitor is anti-bundling and that it would be policing the regulations at the same time. That is misleading. Decisions about whether or not to bundle services are not for Monitor to make; they are squarely for commissioners to take in the best interests of their patients, and Monitor is under a duty to enable integrated services.

The noble Lord, Lord Owen, raised concerns about charities. I have seen the brief from National Voices, Marie Curie and others in this regard. Those concerns are helpful in illustrating the point that there is no one-size-fits-all approach to the commissioning of services. It is interesting that some stakeholders have raised concerns about unbundling leading to fragmentation, while others are concerned about the effects of bundling too many services together. In practice, it is for clinically led commissioners to take decisions on whether or not services should be bundled in the best interests of patients. That is their job, and these regulations do nothing to require them to bundle or unbundle, as I have said.

The noble Lord, Lord Davies, asked me whether the regulations take into account the financial viability of hospitals and economies of scale. First, I remind the noble Lord that these regulations are not relevant to the vast majority of elective hospital services, so they do not herald the prospect of large numbers of services being hived off. Secondly, it is for commissioners to make decisions about the need for services to be bundled or co-located, as I have said. It is not in their interest to destabilise providers. Thirdly, the NHS tariff is being improved in order to ensure that it is properly reflective of the costs faced by providers. This would mean that profit-making services would no longer need to cross-subsidise other services.

The noble Lord, Lord Hunt, asked me why there is no contract value threshold below which commissioners do not have to go out to tender. Where the value of a contract is such that it would be disproportionate for the commissioner to hold a tendering exercise, there is no requirement under the regulations or the law to do so.

The noble Baroness, Lady Hollins, said that Monitor should publish figures relating to the cases that it considers. Paragraph 21 in Schedule 8 to the Health and Social Care Act 2008 requires Monitor to publish an annual report on the exercise of its functions and lay a copy before Parliament, and to provide the Secretary of State with such other reports and information relating to the exercise of its functions as the Secretary of State may require. We would also expect Monitor to publish reports on cases considered by it, as the Co-operation and Competition Panel has to date.

I of course took due note of the criticisms made by your Lordships’ Scrutiny Committee. However, I would say that there was a formal public consultation on the requirements of the original set of regulations between August and October last year. Engagement events were held up and down the country. The response to the consultation demonstrated broad support for the proposals from a wide range of stakeholders. The revised regulations did not substantially change the policy, and for that reason I suggest to the Scrutiny Committee that further consultation was not necessary.

Let me be clear about what we would lose if the regulations were not in place. The main thing that we would lose is the adjudication role of Monitor as an expert health sector regulator with an overarching statutory duty to protect and promote patients’ interests. That would mean that NHS commissioners would be exposed to the full force of public procurement law, as interpreted by the courts. I firmly believe that in that situation we would be more likely to secure the very kind of risk-averse behaviour by commissioners that some have argued today must be avoided. In addition, without the regulations, patients’ right to choice under the NHS constitution would not be protected; commissioning processes would be much less transparent and accountable; we would lose safeguards to protect against and address conflicts of interest, discrimination and anti-competitive conduct that work against the interests of patients; and requirements to ensure that the objective of procurement must always be in pursuit of meeting the needs of patients and improving quality would not be in place.

Although in one sense, the regulations can be seen as unexceptional, because they largely carry forward existing rules and arrangements; but in another sense they are more than that. They are vital for anyone who believes that the central interest that the NHS should have at its heart is that of the patient. With that observation in particular, I urge the noble Lord to withdraw the Motion.

[Lord Hunt of Kings Heath]

My Lords, we have had a long debate and I know that the House will want to come to a decision very soon.

I agree with the last comment of the noble Earl, Lord Howe. These are very important regulations, although there is disagreement about what they mean when it comes to practice in the field. The essential test of the regulations is whether they accord with the assurances given by Ministers during a difficult time in getting the Bill through your Lordships’ House and the other place as to whether clinicians would be free to commission services in the way that they considered best.

The noble Earl, Lord Howe, is always reassuring and was so tonight on the content of the regulations. If you read them and the comments of your Lordships’ Scrutiny Committee, you will see that that simple statement—that clinicians will be free to commission services in the way that they wish to—has been hedged in by the product of many statutory rules contained in the regulations. When it comes to Regulation 5, there is a division of opinion between the Government and the Opposition, and between lawyers, as to what the single capable provider test means. It is arguable that the health service will be confused as to whether it can define a local service as one that can be provided only by one provider, or whether, in many parts of the country, similar services will provided by different organisations within the facility of the CCG. There will be considerable doubt whether the CCG will be able to go ahead and award a contract without some competitive tender process. That is at the heart of some of this argument.

I do not accept the idea that Monitor’s involvement will somehow prevent legal action from ending up in the courts. The general confusion about these regulations will inevitably lead to cases coming before the courts. The advice that will be given to many CCGs by their legal advisers is to act defensively and to go out to more competitive tendering than the noble Earl has suggested.

The noble Baroness, Lady Williams, and the noble Lord, Lord Walton, are of course strong supporters of the National Health Service. I say to them that every day, up and down the country, a market is unfolding in the NHS. People in the NHS believe that that is happening. They are seeing contracts already being won by the private sector. They see themselves being undercut, and they worry about the fragmentation of services and about the overall intent of the Government.

Of course the NHS is not perfect but, my goodness, it enjoys tremendous public support. I have worked with the noble Baroness, Lady Cumberlege, over many years. She referred to international comparisons. I end by referring her to the US Commonwealth Fund, which produces an evaluation of the most developed health care systems in the world. Its latest evaluation placed the UK as No. 2 overall. It placed the US, where the system of markets and competition is most to the fore, as No. 7. When people look at the NHS internationally, they see a lot of things that they wish to commend, not least of which is the integration of purpose and the support from the public. My concern is that at the end of the day I think the noble Earl is right: these regulations are vital. The problem is that they hold open the door to a competitive, marketised service in which I am afraid that, despite the wording that has been used tonight, the interests of patients will be not first but last. I wish to test the opinion of the House.

NHS: Leeds General Infirmary

Debate between Earl Howe and Lord Hunt of Kings Heath

Tuesday 23rd April 2013 Lords Chamber

[Earl Howe]

I say to my noble friend with great respect that the premise of his question is incorrect. The Government have not taken a role in this matter. As I said to the noble Baroness, Lady Howarth, and to the noble Lord, Lord Warner, this is a matter that the NHS itself has led. There is no agenda by the Government at all, apart from our desire to see the best possible children’s cardiac services provided in this country.

[Lord Hunt of Kings Heath]

My Lords, I refer noble Lords to my health interests. Would the noble Earl accept that Sir Bruce Keogh has an outstanding record in the health service in improving outcomes from heart surgery, and therefore he has to be listened to with a great deal of respect?

On the more general issue of the reconfiguration of services, on which NHS England has promised to become much more assertive—which, I am sure, is welcome—is the noble Earl concerned that the Office of Fair Trading and the Co-operation and Competition Panel seem to be intervening in sensible reconfiguration decisions on the spurious basis that they impact on competition? Will he tell these bodies to desist?

[Earl Howe]

My Lords, if the noble Lord can supply me with some examples, of course I will look into them. I remind him that tomorrow we are debating a set of regulations that bear on this very question and I shall have plenty to say on that occasion, which I hope will assuage his concerns.

NHS: ECMO Machines

Debate between Earl Howe and Lord Hunt of Kings Heath

Monday 22nd April 2013 Lords Chamber

[Earl Howe]

I fully agree. The noble Lord is quite right. ECMO cannot be provided by just any ICU team. It is a highly specialised treatment with significant potential for serious complications, and considerable expertise is therefore required, including having a multidisciplinary team of the kind that he outlined. In general, capacity has much more to do with having suitably trained staff than with having the equipment itself.

[Lord Hunt of Kings Heath]

My Lords, I refer noble Lords to my health interests. On the question raised by the noble Lord, Lord Patel, about evidence, would the noble Earl consider referring this to NICE for its expert advice?

[Earl Howe]

I shall certainly take that idea away with me, but I think that there is broad consensus among the medical community that the key to success with ECMO is getting the patients connected to the equipment quickly. Although it is a moving scenario, all the evidence so far suggests that ECMO confers no benefit if some hours have elapsed since the cardiac arrest.

NHS: Out of Hours Service

Debate between Earl Howe and Lord Hunt of Kings Heath

Tuesday 26th March 2013 Lords Chamber

[Earl Howe]

Increasingly, this is likely to happen, because our changes to the GP contract this year are bound to make sure that GPs think more about long-term integrated care for their patients. The recommendations from NICE underpinned the new arrangements in the GP contract, and my noble friend is absolutely right that that has to remain very squarely in the sights of all GPs.

[Lord Hunt of Kings Heath]

My Lords, I refer noble Lords to my health interests in the register. The Minister mentioned the NHS 111 service. Is he aware of reports up and down the country of a shortage of staff and long waiting times to get through to the service? Is he also aware that the system is increasing pressure to close walk-in centres? Combined with a poor-quality out-of-hours service, is it any wonder that acute hospitals are under such pressure? Will the Government look at this again?

[Earl Howe]

I am aware of teething problems in two particular areas of the country, but we know from the pilots of NHS 111 that there is a high rate of patient satisfaction with the service. As noble Lords will know, NHS 111 is designed to put the caller through to the right service first time around, whether it is a nurse, a doctor or an ambulance, if that is required. There are bound to be teething problems, and rolling out a service like this across the country is, of course, a major task. But the concept of increased flexible access to healthcare and advice is absolutely right, and we are determined to see the service work very well for everybody.

UK: Ageing Population

Debate between Earl Howe and Lord Hunt of Kings Heath

Tuesday 19th March 2013 Lords Chamber

[Earl Howe]

My Lords, change is an increasing imperative, at least in my judgment, at local level. I talk not only to professionals in the health service but to local authorities, which will very soon be charged with looking in the round at the needs of patients and service users in their area. They know that with the financial constraints that are upon us, services need to change in order to remain sustainable and affordable. That will be a very strong driver to ensure that some of these very good recommendations are driven forward at pace.

[Lord Hunt of Kings Heath]

My Lords, the Opposition warmly welcome the report. I am sure that it will be influential in the way we develop policies in the future. I was interested in the noble Earl’s response when he talked about public sector reform. Does he agree that the overwhelming message of the report is the need for a fully integrated health and social care system? Is he not as worried as I am that the changes in the NHS that he is introducing on 1 April will in fact lead to a disintegrated system in which, instead of co-operation and integration, competition will become the name of the game?

[Earl Howe]

No, I do not agree with that. We have always said that competition is but one tool in the armoury of commissioners. It is not a panacea by any means. As for disaggregation, I see the opposite at local level. Health and social care, public health and patient organisations are getting together for the first time to break down silo barriers and the traditional divisions that have existed.

Health: Cancer Drugs Fund

Debate between Earl Howe and Lord Hunt of Kings Heath

Wednesday 13th March 2013 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, I beg leave to ask the Question standing in my name on the Order Paper, and refer noble Lords to my health interests.

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

My Lords, we will ensure that there are arrangements in place from 2014 to protect individual patients receiving treatment with drugs funded by the cancer drugs fund. From April 2013, the NHS Commissioning Board will take on oversight of the fund. For the longer term, we are considering ways in which patients can continue to benefit from drugs provided through the fund, at a cost that represents value to the NHS.

[Lord Hunt of Kings Heath]

My Lords, my understanding is that the Government’s original intention was that the fund would be replaced from January 2014. Can I take it from the Minister’s response that the Government are no longer continuing with the introduction of value-based pricing for drug remuneration in future?

[Earl Howe]

No, my Lords, negotiations are now in train with the pharmaceutical industry with a view to introducing a value-based pricing scheme for medicines licensed after 31 December this year. That is still the Government’s intention.

--- Later in debate ---

[Lord Hunt of Kings Heath]

My Lords, can the noble Earl assure the House that the introduction of a value-based pricing system will not delay the introduction of new drugs into the UK, given that the current system of remuneration for drug companies provides a clear incentive for early introduction in this country as opposed to other countries in Europe?

[Earl Howe]

The noble Lord is absolutely right. That, again, is a point that we are bearing very closely in mind in our discussions with the industry.

Health: Cardiology

Debate between Earl Howe and Lord Hunt of Kings Heath

Wednesday 6th March 2013 Lords Chamber

[Earl Howe]

My Lords, a variety of programmes is running, including Change4Life and the national screening programme. However, as my noble friend will be aware, the kind of sudden cardiac death mentioned in the Question is rather different from cardiovascular disease, which afflicts people in later life. We are talking in the Question about unexplained, very sudden cardiac death in the young, which we believe has little to do with lifestyles and much more to do with genetic susceptibility.

[Lord Hunt of Kings Heath]

My Lords—

[Lord Patel]

My Lords, will the Minister explain a little bit more about the proposed public consultation on screening? The evidence for the screening of families where a cardiac death has occurred, particularly in a young person—which is linked to a gene—is conclusive, so what is the public consultation about?

Medical Research: International Rare Diseases Research Consortium

Debate between Earl Howe and Lord Hunt of Kings Heath

Thursday 28th February 2013 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, I declare my interests in the Register in the health service. Following on from the previous question, I understand that the commissioning costs of rare diseases will be met nationally by the NHS Commissioning Board. However, when patients require regular medication, which would presumably be prescribed by their GP, will funding responsibility fall on local clinical commissioning groups? If so, will they be given specified resources to fund what are often very expensive treatments?

[Earl Howe]

My Lords, the funding for expensive treatments will be very much the responsibility of the Commissioning Board. However, of course the noble Lord is right, because a patient with a rare disease will need to be treated along a pathway of care, some of which will be specialised and some of which will be more routine. It is therefore important that we build into our UK plan for rare diseases an awareness of that pathway so that this is a seamless process. The commissioning must be joined up between the board, clinical commissioning groups and, indeed, local authorities that provide social care.

NHS: West London Hospitals

Debate between Earl Howe and Lord Hunt of Kings Heath

Thursday 28th February 2013 Lords Chamber

[Earl Howe]

My Lords, I cannot comment specifically on that particular set of proposals. However, I can say that we made it very clear nearly three years ago that reconfiguration proposals, wherever they arise, should be underpinned, as should the arising decisions, by four reconfiguration tests. Local plans must demonstrate support from GP commissioners; a strengthening in public and patient engagement, which is the issue raised primarily by my noble friend; clarity on the clinical evidence base for whatever is proposed; and support for patient choice. We expect that where proposals of this kind arise, those four tests need to be met.

[Lord Hunt of Kings Heath]

My Lords, again I declare my interest in health. On that, I am puzzled because of what has happened in the case of Lewisham A&E where the clinical commissioning group itself is clearly absolutely opposed to the downgrading of that A&E service. Why has the Secretary of State determined to go ahead with those changes?

[Earl Howe]

Five out of the six clinical commissioning groups involved in that area were supportive of the changes. It is true that Lewisham CCG was not. However, the four tests were looked at and it was clearly determined by the trust’s special administrator that those tests had been met.

NHS: Healthcare UK

Debate between Earl Howe and Lord Hunt of Kings Heath

Thursday 14th February 2013 Lords Chamber

[Earl Howe]

My Lords, we are determined that that should not happen. We recognise that the whole of the UK healthcare sector, both private and public, has a great deal to offer internationally. This does not just apply to a few elite organisations. We want to support any NHS organisation that wants to work internationally by helping it to build its capacity and capability to do so. We also want to help industry. In doing that, I stress that we view it as of paramount importance that any work undertaken in no way harms or compromises the quality of patient care here in the UK.

[Lord Hunt of Kings Heath]

My Lords, the NHS clearly has much to offer other countries. Does the Minister find it puzzling, as I do, that, in one sense, we are promoting the NHS all over the world yet, when people from other countries want to come and study here, particularly in health and medical sciences, they find that the visa restrictions are obstructive? When will the Government review their whole policy on visas?

[Earl Howe]

My Lords, the noble Lord raises a pertinent issue in the context of medical trainees. We are addressing it. In particular, we are looking at a request from Saudi Arabia to send postgraduate medical trainees to this country. We believe that we have found a way through that, and will continue to work on that issue for the benefit of other countries as well.

Health: Healthcare Assistance

Debate between Earl Howe and Lord Hunt of Kings Heath

Wednesday 13th February 2013 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, I beg leave to ask the Question standing in my name on the Order Paper, and refer noble Lords to my interests in the register.

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

The department notes the Health and Care Professions Council’s findings. Levels of assurance are already in place for healthcare assistants, including supervision by regulated professionals and registration of their employer with the Care Quality Commission. In addition, new training and conduct standards for healthcare assistants will be published shortly. We will review the need for further assurance of healthcare assistants in light of the recommendations of the Francis inquiry.

[Lord Hunt of Kings Heath]

I am grateful for that response. Does the Minister agree that the significance of the council’s report is that in relation to social care assistants it has concluded that a voluntary register is not sufficient? Does he agree that the same argument applies very much to healthcare assistants? With regard to the Francis inquiry recommendations, will he undertake for the Government to seriously consider reversing their policy on this matter?

[Earl Howe]

My Lords, we have made it clear that each and every one of Robert Francis’s recommendations will be considered extremely carefully, including the recommendation in relation to healthcare assistants. However, it is worth noting that while the Health and Care Professions Council has signalled some potential limitations to a statutory regulator holding a voluntary register, and we take account of that, nevertheless that does not mean that these potential limitations would apply to other organisations wanting to set up a voluntary register. Our view is that that avenue should be explored. The HCPC also flagged up some major limitations in attempting to regulate healthcare assistance. Those messages bear thinking about.

NHS: Clinical Commissioning Groups

Debate between Earl Howe and Lord Hunt of Kings Heath

Wednesday 16th January 2013 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, I beg leave to ask the Question standing in my name on the Order Paper and declare my interests on the register.

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

My Lords, I can reassure the noble Lord that the board has not discontinued the poverty element of the funding formula. The board was concerned that while the formula provides an accurate model of healthcare need as currently met, if implemented it would target resources away from those areas with the worst health outcomes. It has therefore decided to give all clinical commissioning groups the same growth while launching a fundamental review of allocations.

[Lord Hunt of Kings Heath]

My Lords, I am grateful to the noble Earl for that explanation and understand that a flat-rate increase is to be given next year on top of the existing formula. Will he assure me that if the national Commissioning Board, after this review, decides not to go down the route that the previous Secretary of State, Mr Lansley, wanted this review to take—namely, to take money away from the poorer areas and give it to the well off areas—it will see no interference whatever from Ministers in relation to that decision?

[Earl Howe]

My Lords, that is a very important principle. It is one of the reasons why we felt that the NHS Commissioning Board should be responsible for the allocation of resources to CCGs and not Ministers, to avoid any perception of party-political interference. However, the Government’s mandate to the board makes clear that we would expect the board to place equal access for equal need at the heart of its approach to allocations. That is why ACRA has been charged with developing formulae independently to support the decision that the board takes.

--- Later in debate ---

[Earl Howe]

My Lords, we are determined that it should not happen. I am as aware as the noble Lord of the perception of party-political bias, and it is highly undesirable that there should be such a perception. That is why, in the mandate to the NHS Commissioning Board, we have stated simply that we believe that the right basis for allocating resources is to place equal access for equal need for healthcare services at the heart of whatever formula the board decides to follow.

[Lord Hunt of Kings Heath]

My Lords, perhaps I may come back to that very important point. The fact is that the advisory committee, presumably following guidance from Ministers and officials, came up with a formula that would have taken money from poorer areas and allocated it to richer ones. That is why the national Commissioning Board decided not to accept it and to go for an across-the-board increase. In the noble Earl’s discussions on the mandate, will he ensure that the Commissioning Board is enabled to come to its own view on these decisions?

[Earl Howe]

Yes, my Lords. In this case, the board concluded that the formula proposed by ACRA accurately predicted the future spending requirements of CCGs, but it was concerned that the use of the formula on its own to redistribute funding would predominantly have resulted in higher levels of growth for areas that already have the best health outcomes compared with those with the worst outcomes. In other words, the formula on its own would have disadvantaged precisely the areas that the noble Lord is most concerned about. On the face of it, this would appear to be inconsistent with the board’s purpose, which is to improve health outcomes for all patients and citizens, and to reduce inequalities, which is a key aspect of the mandate.

NHS: Reconfiguration of Services

Debate between Earl Howe and Lord Hunt of Kings Heath

Tuesday 15th January 2013 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, I beg leave to ask the Question standing in my name on the Order Paper and refer noble Lords to my health interests in the register.

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

My Lords, patients’ interests must remain the paramount consideration in any NHS reconfiguration, including merger. We expect the competition authorities to consider the costs and benefits of proposals and to make a final decision based on the balance of impact on patients.

[Lord Hunt of Kings Heath]

My Lords, the noble Earl will recall that the Health and Social Care Bill was amended to emphasise the importance of the integration of services. This merger was designed to integrate services and to provide a higher quality of care in the hospitals concerned. Does he recognise that this intervention by the OFT, which knows virtually nothing about the health service, will send a signal throughout the National Health Service that the ideology of competition is graded as being more important than either the integration of service or the quality of service? Can we expect the Government to send a signal to the OFT that it should desist? Otherwise, this will cause great concern in the National Health Service.

[Earl Howe]

My Lords, the referral of this merger proposal by the OFT to the Competition Commission is not at all a result of the measures brought in by the current Government; it is a result of the provisions of the Enterprise Act 2002. Even if there had been no Health and Social Care Act last year, we would have found ourselves in this situation. This is the very first time that a proposed merger of two foundation trusts has raised competition issues and there is no doubt that the OFT would have had an interest whatever the situation. In the Act we avoided double jeopardy, whereby the Co-operation and Competition Panel, set up by the previous Administration, might have determined its view on this merger and then there would have been a second-guessing process by the competition authorities. We have avoided that and that is very positive. Aspects of this merger obviously impact on patients and patient choice, and it is right, in the judgment of the OFT, that scrutiny should be given to the matter.

Health: Cancer

Debate between Earl Howe and Lord Hunt of Kings Heath

Monday 14th January 2013 Lords Chamber

[Earl Howe]

My Lords, the UK now has the highest national per capita rate of cancer trial participation in the world, which is something that not everybody realises. We have improved the amount of information available to patients, clinicians and the public about clinical trials by establishing the UK Clinical Trials Gateway. I will write to the noble Lord with information about specialist centres, but he will know that surgery for pancreatic cancer is a complex business and needs to be undertaken by those who are very well versed in that particular line of clinical activity. I am sure that a high proportion will be treated in those centres but I will find out more if I can.

[Lord Hunt of Kings Heath]

My Lords, I refer the House to my health interest. On the question of variation, the noble Earl mentioned earlier the role of GPs. Will he accept that there is a wide variation in the performance of GPs? Can he confirm that we can expect the NHS Commissioning Board from 1 April this year to start taking action where GPs are not doing what is required?

[Earl Howe]

Yes, my Lords, because a major role of the Commissioning Board is to support general practice and, indeed, vice versa. In the current year, cancer networks are continuing to support GPs to diagnose cancer earlier through a range of work including continual professional development, primary care-led audits of cancers, and ensuring that GPs are prepared when patients present in response to public cancer awareness campaigns. Therefore, there is a range of work going on to ensure that GPs are better versed in this area.

Department of Health: Budget

Debate between Earl Howe and Lord Hunt of Kings Heath

Thursday 6th December 2012 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, in asking the Question standing in my name on the Order Paper, I remind the House of my health interests.

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

My Lords, the department underspent against its budget by 1.7% in 2010-11 and by 1.3% in 2011-12, or by 1.5% combined across the two years.

[Lord Hunt of Kings Heath]

My Lords, I think that is about £3 billion; perhaps the noble Earl will confirm that. This Government promised to protect the NHS and to cut the deficit. In fact, they are cutting the NHS and the deficit is rising. How can the department justify handing back so much money to the Treasury when large parts of the NHS are under great financial pressure at the moment?

[Earl Howe]

My Lords, the deficit is not rising. The Government are putting £12.5 billion extra into the NHS over the course of the spending review. The noble Lord, Lord Hunt, will know from his ministerial experience that government departments have an absolute requirement to manage expenditure within the financial controls that are set by Her Majesty’s Treasury and voted on by Parliament. For the Department of Health that means that the net expenditure outturn, which incidentally stems from around 400 organisations, all of whose accounts have to be consolidated, must be contained within the revenue and capital expenditure limits. Given those circumstances, it is sensible to plan for a modest underspend to mitigate against unexpected cost pressures.

Contracting Out (Local Authorities Social Services Functions) (England) (Amendment) Order 2012

Debate between Earl Howe and Lord Hunt of Kings Heath

Tuesday 20th November 2012 Grand Committee

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

My Lords, in 2011 an order was passed by noble Lords under the Deregulation and Contracting Out Act 1994 to allow local authorities taking part in two pilot schemes to contract out to outside organisations certain adult social service functions. The order under discussion today amends the original order to allow local authorities to continue this contracting out activity in respect of the pilot programmes beyond the period provided by the original order. The pilots are, first, adult social work practices pilots and, secondly, Right to Control pilots.

The social work practice pilots are testing various models of social worker-led organisations undertaking adult social care functions for which local authorities are currently statutorily responsible. The Right to Control pilots are testing the rights of disabled people to manage some of the state support they receive to live their daily lives. As these are established pilots, I will briefly outline each pilot programme before describing the rationale behind the extensions.

The social work practice pilots were announced in 2010 and the programme has been running for more than a year. The scheme has seen the creation of seven social worker-led organisations that discharge the functions of the local authority in providing adult social care services. On a day-to-day basis, the pilots are independent of the local authority but work closely with it and in partnership with other providers. The local authority pays for the services but maintains its strategic and corporate responsibilities through its contract with the social work practices. We are looking at the pilot sites to test the potential benefits of the social work practices, and whether the innovative approaches improve outcomes and experiences for the people who use them.

The programme aims to bring people who need health and care support closer to those who provide the services they need by reducing bureaucracy, encouraging innovation and increasing the personalisation of services. The Department of Health has provided funding of £1.1 million to help the pilots get up and running and to provide initial support. The pilots are an opportunity to test different models to see what works well. They will be fully evaluated throughout the pilot period, with the final report planned for winter 2013. In considering the need to extend the pilots we listened to the advice of the social work practice working group, which incorporates the sites themselves, and representatives from ADASS, SCIE, the Department of Health and the independent evaluators.

There are two main reasons why we seek an extension to the social work practice pilots from their planned end in summer 2013 to 31 March 2014. First, it has taken longer than we anticipated for many of the sites to become established and begin providing services. This point was highlighted in the recent interim report on the pilots published by SCIE. The proposed extension will ensure that the pilot sites have an increased opportunity to feed into the independent evaluation planned to report in winter 2013.

Secondly, my department must own up to the fact that, in planning the scheme, it did not take into consideration that there would be a gap between the pilots ending and the evaluation reporting. Therefore, extending the pilots to 31 March 2014 will ensure that no pilots will need to end before the evaluation has reported, and that users will continue to be able to access the service. The local authority in each pilot area will have the final say on whether sites are extended. This order creates the opportunity to do so.

The Right to Control, introduced by the previous Government in the Welfare Reform Act 2009 and launched in 2010, gives disabled adults greater choice and control over certain state support they receive to meet their individual needs and ambitions. Disabled adults in the pilot areas are able to combine the support they receive from six different funding sources and then decide how best to spend this to meet their needs. The pilot is due to end in December this year and my honourable friend the Minister for Disabled People intends to extend the pilots by a further 12 months to gain more evidence of the benefits during the pilot programme. A public consultation seeking views on the plans to extend the Right to Control pilot ended on 21 September and among those who commented there was solid support for the extension for a further 12 months.

The Right to Control pilots are being tested in seven trail-blazing areas in England. These trail-blazers, funded by the Department for Work and Pensions, are testing the best ways to implement the right and the results will be used to inform decisions about options on the right in future. Since Right to Control was introduced in 2010, a great deal of progress has been made and over 34,000 people have benefited from it. The interim evaluation of the pilot scheme concluded that there was insufficient evidence on which to make an informed decision about the long-term future of Right to Control. The Government concluded therefore that the best solution was to extend the pilot scheme by a further 12 months to enable us to gather more evidence of what works best, both for disabled people and for the local authorities delivering the Right to Control.

One of the authorities delivering the Right to Control has also been testing delegation of its statutory duty to review social care assessments to third parties, such as user-led organisations. Disabled people have often told us that having their support arrangements reviewed by fellow service users leads to greater satisfaction with the outcome and that the support of their peers gives them greater confidence to request a direct payment and to take control of their own support arrangements. The proposed extension will allow the trail-blazers to continue to test the delegation of this statutory duty. In conclusion, we see the proposed extension in the order as a continued commitment to the developing world of personalisation and one that fully supports the aims set out in the recent care and support White Paper and draft Bill.

This order has the support of councils and their representatives, as well as service users and their carers. It will allow the continuation of new and innovative ways of working to the benefit of individuals and their communities as a whole. More importantly, it will also maximise the evidence and outcomes available to the independent evaluation in both programmes. I commend the order to the House.

[Lord Hunt of Kings Heath]

My Lords, I thank the noble Earl, Lord Howe, for his full explanation of the order before us this afternoon. I find the contents to be unexceptional and it is right to avoid a hiatus in the pilots’ evaluation. The people affected should not have to go back to an old system before knowing whether the Government have decided that they should be extended, so the logic of the order is clear. I will ask the Minister about a couple of points. He mentioned evaluation. In relation to the trail-blazers pilots, he referred to the interim evaluation which, as he said, found the Right to Control had not been extended to a sufficient number of people to provide evidence to inform a decision about the future of the Right to Control approach. Will he say more about the emerging findings as to the impact on disabled people? He made a few comments about that and suggested that the signs so far are encouraging, with some positive outcomes. Could I tempt him into explaining a little more to the Committee?

I also ask the Minister about potential links between the Right to Control trail-blazers and initiatives taking place on public health. Following the debate when the order was first brought before your Lordships’ House in 2011, the noble Earl wrote to Members who had spoken to the order to say that the Right to Control trail-blazer pilot was intended to be run simultaneously with the public health budget pilots. In particular, he mentioned Manchester, where he said that there was one in-depth public health budget site—Manchester—alongside a Right to Control trail-blazer site. I wonder whether he could report anything on that. I also ask the noble Earl what feedback there has been from users of the service on Right to Control pilots.

On the adult social work practice pilots, I understand that the evaluation has been carried out by King’s College London. I have yet to track down any KCL publication on any emerging findings from those pilots. Perhaps the noble Earl could confirm whether anything has been published so far. I understand, however, that the Department for Education has published an evaluation report by King’s College London and the University of Central Lancashire on the original pilots for children and young people in care, in September 2012. That might be of interest in comparing those pilots with the pilots that are now being undertaken. That evaluation, I understand, found mixed views as to whether the pilots performed better than their local authority counterparts, or whether they represented good value for money. Would the noble Earl be prepared to comment on that? Overall, though, we of course support the extension of the pilots.

Health: Obesity

Debate between Earl Howe and Lord Hunt of Kings Heath

Monday 12th November 2012 Lords Chamber

[Earl Howe]

My Lords, as my noble friend knows, the Secretary of State will set the strategic objectives and policy priorities of Public Health England. It will have operational autonomy and operate transparently. Rates of obesity remain high across England and continue to have clear links to health inequalities. GPs can play a key role in making every contact count by raising the issue of obesity and providing advice or referral to appropriate services, so I do not necessarily accept the criticism that my noble friend levelled at the current QOF indicators. GPs have every reason to act when they see obesity in front of them. I cannot pre-empt exactly what Public Health England will wish to prioritise in the development of the QOF, but I fully expect that it will want to work with NICE to review the evidence base for building on the current QOF obesity indicator.

[Lord Hunt of Kings Heath]

My Lords, I am sure that the noble Earl will agree that action on obesity is best taken when different government departments play their part. If he accepts that, does he regret the abolition of the Cabinet sub-committee on public health?

[Earl Howe]

My Lords, the role of Public Health England will undoubtedly stretch across government departments, because it should and will involve energising the efforts of not just the Department of Health and at not just national level. However, I agree that there is no single magic bullet to solve the problem of obesity. The call to action on obesity published last year set out a range of actions in which government and individuals, as well as local organisations, need to engage if we are to beat this threat to public health.

Health: Cancer

Debate between Earl Howe and Lord Hunt of Kings Heath

Wednesday 7th November 2012 Lords Chamber

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

My Lords, £42 million has been allocated by the NHS Commissioning Board to support strategic clinical networks in 2013-14. Networks will cover a number of priority conditions and patient groups, including cancer. It is for local health communities and the board to determine the number and size of networks, based on patient flows and clinical relationships, and to deploy their resources appropriately.

[Lord Hunt of Kings Heath]

My Lords, does the noble Earl accept that cancer networks have done an outstanding job in improving the quality of service and outcomes? Does he agree that there is widespread expectation that the number of cancer networks will be reduced, the staff in many places will be made redundant and the new set-up will not be as effective as the current one? Will he respond to that?

[Earl Howe]

My Lords, I agree that clinical networks are a success story in the NHS. They have raised standards, supported easier and faster access to services and encouraged the spread of best practice. We very much want to see that continue. The final number of strategic clinical networks and the number of clinical staff who support them have not been finalised yet. Those numbers will be determined locally so it is too early to speak with any certainty about final staff numbers. We do not anticipate many compulsory redundancies at all. A number of staff have been deployed to other posts already. The aim of all this is to achieve not only a more effective series of networks but a more efficient system as well. We believe that that will be delivered.

Mental Health (Approval Functions) Bill

Debate between Earl Howe and Lord Hunt of Kings Heath

Wednesday 31st October 2012 Lords Chamber

[Earl Howe]

The main mischief, I respectfully suggest to the noble Lord, is that the panels which approved the clinicians involved did not, strictly speaking, have the direct power to do that. That is the issue that the Bill tries to capture. The Bill deliberately does not include a comprehensive list of which bodies or persons believed in good faith that they were exercising the approvals function in the past. If we limited the Bill in the way that the noble Lord suggests, we would run the risk of failing to cover some of the approvals given by bodies that we may otherwise have failed to list. I ask the noble Lord to accept that the way in which the Bill is drafted is in the form of a blanket, which gives us certainty that we may not inadvertently have left out any bodies prior to 2002 that may have been guilty of a similar lack of authority.

[Lord Hunt of Kings Heath]

I hope that the noble Earl will forgive my intervention because this is an important point. As the noble Lord, Lord Pannick, said, we are not having a Committee stage, and this is the only time when we can raise this matter.

The problem relates to the approval function. The way that I read it, as the noble Baroness, Lady Murphy, put it so eloquently, is that there might be a quack who somehow got through the system because there has not been the sign-off by the strategic health authority, which could check that the panel had done the right thing by actually exercising an approval function in agreeing—as part of a panel—to someone losing their liberty and being sectioned under the Mental Health Act. The issue is whether this rather open-ended, retrospective clause would give the okay to that as well. The noble Earl has essentially suggested that the problem is the vagueness about the organisational arrangements that were in place prior to 2002. I understand that but it seems to read in such an open-ended way that it could give almost a green light to poor practice or practice that should not have taken place within the panel so constituted under the Mental Health Act.

[Earl Howe]

I understand the question but I believe that that concern is misplaced. The panels operating in this area apply agreed national criteria for approval. Those criteria are clear and extremely rigorous, and that is why we are confident that doctors must meet the same high standards across the country irrespective of whether this technical irregularity applies. The technical irregularity was simply that the panel did not refer back to the strategic health authority for ratification the recommendations that it had made. It is my understanding that strategic health authorities, as a matter of course, accept the advice of the specialist panels. Therefore, I do not share the worry that, somehow or other, quacks or inappropriate clinicians have been appointed to these very onerous and responsible roles.

I now turn to the other main concern raised by the noble Lord, Lord Pannick, and the reason why the Bill has been drafted to refer to, “any person”. I see why he believes that the Bill appears to bestow a wide-ranging retrospective validation on any person, but in fact, the Bill is very narrowly targeted. It only validates any approvals given in the past and it relates only to the function of giving approvals to clinicians as having particular skills, for example, as having experience in the diagnosis or treatment of mental disorder. Once approved, the clinicians are then allowed to carry out certain functions under the Mental Health Act, as I said earlier. It is not the case that the Bill validates anyone other than persons who purported to approve clinicians. It is that role, and that role alone, that is referred to in the Bill.

The persons referred to in Clause 1(1) are as I have described. The Bill deliberately avoids going into further detail about which persons it applies to because, as I have said, attempting to include a totally comprehensive list of which bodies or people who believed in good faith that they were carrying out the approvals function would have created an unacceptably high risk of omitting agencies or individuals that should have been included. I hope that that is helpful.

I am advised in a further answer to the noble Lord, Lord Pannick, that if the power had been wrongly exercised by a panel and an inappropriate clinician had been authorised, that could still be challenged. That is to say: the challenge would be on the basis that the power was wrongly exercised but it would not be a challenge to the power to exercise the approval. I hope that that is helpful further clarification.

On the concerns raised by the noble Baroness, Lady Murphy, she asked how on earth strategic health authorities could have believed that they had this power to delegate. I share noble Lords’ dismay that we could have arrived at this situation but, having been advised by my officials, I am now more understanding of how this could have arisen. Strategic health authorities are able to delegate this function to certain bodies and in certain circumstances. However, they are not able to delegate it in the way that has come to light here. That is why we are legislating.

The options open to strategic health authorities for delegating their functions in relation to all issues are set out in regulations issued in 2002. In relation to the approval of clinicians under the Mental Health Act—which may include clinicians such as psychologists—there were also directions issued in 2008. Such approvals may be delegated to PCTs and therefore there is scope for legitimate confusion as to the exact way in which strategic health authorities had the power to delegate in this area.

I do not think there is any evidence for the fear expressed by the noble Lords, Lord Hunt and Lord Pannick, and the noble Baroness, Lady Murphy, that mental health was somehow not being given the priority it should be in those four strategic health authorities. What happened was that rather than carry out the approval process in-house, the four strategic health authorities decided to deliver the function through a contract with a mental health trust, believing that the focus brought about through a specific contract and the expertise and connections of a mental health trust would deliver a more rigorous and effective approvals process. However, the effect of these arrangements was that the approval functions were to be carried out by the trust, and the regulations and directions specifically set out, as I have said, with which bodies the SHAs may make arrangements to exercise the functions. They cannot completely delegate their responsibility in the way that they did, but it can be exercised on their behalf by a committee, a sub-committee or an officer of the authority. In essence, the panels in the trusts should have been regarded as advisory to the SHA, not having the approval functions themselves.

The noble Baroness, Lady Murphy, asked why this was not picked up sooner. The incorrect delegation was within the process between the strategic health authority and the mental health trust. To all appearances, the process of approving doctors and the quality of the doctors in these four SHAs was the same as in the rest of the country. However, this is a matter with which Dr Harris will no doubt wish to concern himself.

The noble Lord, Lord Hunt, asked me whether we could more precisely define the extent of the problem in terms of the number of patients affected. As of today, my advice is that the north and midlands SHA clusters have reported that they have currently identified 4,117 affected patients—1,265 in the north SHA cluster and 2,852 in the midlands.

I turn now to the questions posed by my noble friend Lady Jolly. She asked me whether the intention of Clause 1 is to give power not only retrospectively but also with effect from today. I hope I have made it clear that that is not the case. It takes effect from today retrospectively as soon as it receives Royal Assent, but it has no effect in relation to future approvals because all people involved in this process have now been properly approved. She asked me to confirm that the people who think they are approved actually are and do not need to undergo any validation or further approvals. The answer to that is yes, if she is referring to approved clinicians or Section 12-approved doctors, which I believe she is.

She asked about the lessons to be learnt from 1 April next year once strategic health authorities cease to exist and how the preparations for the transfer of responsibilities are being progressed. From next April, the Department of Health will be responsible for this specific approval process for approved clinicians. The Secretary of State said yesterday that while this will be a departmental process, we do not want the process to be remote from local areas. He also pointed out that we intend to have a structure that draws on local and regional expertise to help us make the right decisions on the suitability of doctors for the role, and we hope that Dr Harris will advise the department on this when he conducts his review.

The noble Baroness asked where the definitive list of SHA roles and responsibilities is and who is its guardian. The guardian is the Department of Health, while the actual list of strategic health authority roles is set out in the 2002 regulations, the National Health Service (Functions of Strategic Health Authorities and Primary Care Trusts and Administration Arrangements) (England) Regulations 2002, and the precise details on approved clinicians are set out in the Mental Health Act 1983 Approved Clinician (General) Directions 2008. That usefully lists the 28 competencies required of an approved clinician. She asked whether we can be confident that there are no other areas where action has not been taken by some or all of the SHAs. We know of no other areas or functions affected, but again Dr Harris’s review will look at the issues of governance and assurance of delegating responsibilities.

I thank the noble Baroness for making a valid point as regards the transition, but as I have alluded, the Harris review will look at issues of the governance and assurance of delegating responsibilities. Moreover, the review will report by the end of the year, so that will be before the completion of the transition process that my noble friend has so rightly brought to the attention of the House. The one remaining question my noble friend asked me concerned communicating with patients and the timescale of that. I shall repeat what I said before: we think that we need to take time to get things absolutely right, which I know she will understand. However, we hope to be able to issue advice within the next few days. I would reiterate that both the advice and the approach to delivering it will be agreed by both clinical experts and representatives of patients and families. I thought that I had covered every point, although I now see that the noble Lord, Lord Hunt, asked me a question about approvals post April 2013. The one thing I should have added was that we do not intend to delegate the function to the NHS Commissioning Board.

I hope that I have now answered satisfactorily the questions that were raised and that I have provided additional reassurances where necessary. Again, I thank noble Lords and others outside the House for their understanding and for the very significant contribution they have made to the debate.

Bill read a second time. Committee negatived. Standing Order 46 having been dispensed with, the Bill was read a third time and passed.

NHS: Children’s Congenital Heart Services

Debate between Earl Howe and Lord Hunt of Kings Heath

Thursday 25th October 2012 Lords Chamber

[Earl Howe]

My Lords, I hope that my initial Answer will have made it clear that we expect the Independent Reconfiguration Panel to look at the issue in the round, and that includes the consequences of the JCPCT’s decision, were that to be carried through. I hope that that is sufficiently reassuring. However, what the panel cannot do, in law, is review the decision of the Secretary of State. It can, however, take all the circumstances into account, and I believe that it should do so.

[Lord Hunt of Kings Heath]

My Lords, I remind the House of my health interests in the register. I would like to press the Minister on that point. In the other place on 22 October, the Minister there made it clear that the decision to transfer the ECMO to Birmingham was made as a consequence of the decision of the Joint Committee of Primary Care Trusts. Given that the Independent Reconfiguration Panel is now reviewing the decision of the Joint Committee, are the Government not being unnecessarily legalistic on this point? It would be quite open to the Secretary of State to ask the reconfiguration panel for its advice on the question of the ECMO position. Why on earth does he not do that?

[Earl Howe]

My Lords, I can only repeat what I said in my initial Answer to the right reverend Prelate: my right honourable friend has asked the IRP to review the decision around children’s cardiac services and its consideration of the impact of that, which may include consequences for the ECMO service at Glenfield. I hope that that Answer puts this question into context. While the IRP cannot review the Secretary of State’s actual decision about the ECMO, which, as the noble Lord rightly said, followed on from the original decision of the JCPCT, nevertheless there are interdependencies between the two services that we expect to be taken into account by the panel.

Care Services: Elderly People

Debate between Earl Howe and Lord Hunt of Kings Heath

Wednesday 17th October 2012 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, I beg leave to ask the Question standing in my name on the Order Paper, and I refer noble Lords to my health interests.

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

My Lords, providers of services are responsible for the safety and quality of the care they provide, and the well-being of the people they care for. Providers should undertake a risk assessment as to whether a criminal record check is needed or not, and what action to take as the result of such a check. Providers should keep a record of this process as an audit trail of their decision-making.

[Lord Hunt of Kings Heath]

My Lords, I am grateful to the noble Earl, and of course we all welcome the rehabilitation of ex-offenders. However, I refer the noble Earl to reports that recent CQC inspections show that more than 220 care agencies working for older people in England have failed to show that they were employing properly qualified and vetted staff. What action will be taken about this? Further, does this not show that the time is now ripe for the statutory regulation of care-home workers?

[Earl Howe]

My Lords, it is the responsibility of the employing organisation to carry out appropriate checks on the people they intend to employ. They should take decisions in the context of their responsibility for the well-being of the people who use the service. That position has not changed, and indeed it must be at the core of the safeguarding agenda. Organisations need to risk-assess the suitability of their staff for the role, considering all the information they have on the person, including criminal record checks. If someone has a criminal conviction, the employer should consider how old and relevant that conviction is in the context of the activities that the person would be undertaking and the characteristics of the people they would be looking after. That situation cannot, I think, change substantively.

National Health Service (Clinical Commissioning Groups) Regulations 2012

Debate between Earl Howe and Lord Hunt of Kings Heath

Tuesday 16th October 2012 Lords Chamber

[Earl Howe]

My Lords, it will be up to local CCGs to determine their own constitutions, as I have said. What we are attempting to do in these regulations is simply to set down the bare minima. As we discussed during the passage of the Act—these provisions were well rehearsed—providing there are two lay members, a secondary care clinician, a nurse and an accountable officer, that is the extent of the prescriptiveness that we feel is appropriate from the centre. Otherwise, it looks very much like the Government dictating the governance arrangements. The Future Forum’s recommendations were very clear that we should not go down that path.

It was suggested that CCGs were experiencing difficulties in appointing secondary clinicians or a registered nurse. I understand the concerns that noble Lords have raised on that score but I have recently spoken to the NHS Commissioning Board, which has started the process of considering applications from emerging CCGs. The news I have is that CCGs have so far successfully recruited to these roles. In addition, the medical and nursing royal colleges have offered to help CCGs in sourcing appropriate candidates, which is very welcome.

The noble Lord, Lord Warner, referred to the HSJ article of 11 October. I will clarify my answer when I write to him, which I will be happy to do. We are very pleased not only that so many clinicians have chosen to apply for leadership roles, which they have, but that so many first-rate clinicians have done so, whether as clinical chairs or clinical officers in CCGs. What is important is that there is a good mix of expertise in the broader leadership team of clinicians and managers, to help the CCG discharge its responsibilities effectively, and that is what we are now seeing.

I have a number of examples of where the drive towards integration is really taking shape on the ground. My noble friend Lady Jolly mentioned South Devon and Torbay; this is a service designed by secondary care doctors and GPs working together in a clinical pathway group for urology, and the whole impetus of the CCG is to improve collaboration and get over the gulf between primary and secondary care. There is another excellent example of integrated services in Wokingham, which again I would be happy to write about.

The noble Lord, Lord Hunt, asked whether police commissioners and Peers could be members of a CCG governing body. Yes, they can. He also asked who was consulted over these regulations. As I have indicated, the proposals were developed in response to the NHS Future Forum, the listening exercise that set out requirements around the secondary care doctor and registered nurse. The proposals were further discussed with emerging CCGs, primary care organisations, the medical royal colleges and, yes, colleagues in the NHS Commissioning Board Authority.

The regulations discussed today provide a fair and transparent rules-based framework to complement the provisions in the Health and Social Care Act around the establishment of CCGs. Creating a responsible and accountable CCG with good governance is essential for good management, good performance, good stewardship of public money, good public engagement and—our ultimate goal—good outcomes for patients. I commend the regulations to the House.

[Lord Hunt of Kings Heath]

My Lords, I shall be brief. I thank the noble Earl, Lord Howe. He started by referring to the importance of clinical leadership and I would not disagree with him, but he has not really answered the point that the biggest potential conflict of interest is if GPs are in a majority on the boards—and I would hazard a guess that, in most places, they will be. They do not commission primary care, but their decisions can shift resources into primary and community care services. That is the essential conflict of interest.

The Government’s legitimisation of what must be some of the worst drafted regulations that I have ever come across would stand up in relation to conflicts of interest in other professions if one had any inkling at all that they recognised that CCGs carry a huge risk in relation to the GPs’ own position. The Minister said that the CCGs are about clinical leadership. As my noble friend Lord Warner pointed out, you are not even getting that, because only 20% or so of the accountable officers of those CCGs are to be GPs. The remainder are to be managers. Let us be clear: the accountable officer will in effect be the chief executive. The noble Baroness, Lady Finlay, said that the exclusion of local consultants and nurses from CCGs would mean that, in large parts of the country, the people appointed would have no local knowledge whatever. I agree that, in London, it may be more practical; in most of the rest of the country, it will not be.

I agree with all the points raised by the noble Baronesses, Lady Jolly and Lady Williams, but it is not sufficient to say that there will be a review in 2014. At this late stage, I invite them to join us in the Lobbies tonight. I could not disagree with anything that either noble Baroness has said. They tore apart the regulations. Will they not join us tonight?

I was amazed by the remarks of the noble Baroness, Lady Cumberlege. She came to the health service, as did I, through local government. Local government is having to take some immensely tough decisions. Having a local authority councillor around the board table of a CCG would help legitimise its decisions and help tie in the local authority with difficult decisions that have to be made. Excluding them is a huge mistake. I do not understand—clearly, the department forgot them—why elected police commissioners are deemed worthy of service on a CCG board when elected MPs and councillors are not. When my noble friend Lord Prescott is duly elected a police commissioner in a few weeks’ time, as one hopes, he will be eligible to serve on the whole clinical commissioning group, but no MP and no councillor. These are some of the most nonsensical regulations that I have ever seen.

The Minister said that we should not worry because local authority councillors, local doctors and local nurses can serve on the committees of a CCG—no conflict of interest there—but they cannot serve on the board. However, the board is the sovereign decision-making body of the CCG. I would have thought that most clinical commissioning groups would have wanted to have local expertise, whether it is local authority representation, a doctor or a nurse.

The Minister then said that these are only minimum requirements. Well, Schedule 4 states:

“Individuals excluded from being lay members of CCG governing bodies … An employee of a local authority in England and Wales or of any equivalent body in Scotland or Northern Ireland … A chairman, director, governor, member or employee of an NHS foundation trust”.

Excluding a chairman, director or governor of a foundation trust is fair enough, but a member? My trust has 100,000 members. Patients are automatically enrolled in membership of my trust unless they decide to opt out. We are talking about 100,000 people living in the catchment area of my hospital who are not allowed to be lay members of a CCG. Surely they are the very people you would want to be lay members of a CCG.

--- Later in debate ---

[Earl Howe]

They are not allowed to be the statutory lay member.

[Lord Hunt of Kings Heath]

My Lords, I am most grateful to the noble Earl for that enormously helpful clarification. The point is this: why should they not be statutory lay members of the CCG? There is no guarantee that CCGs will appoint any more lay members. I have yet to hear any rational explanation as to why this statutory instrument has been drafted in this way.

As we know, the noble Earl, Lord Howe, is a very fair man and always engages in debate. He will know that this statutory instrument has been ripped apart tonight. Even at this late hour, I ask him to withdraw the instrument. If he is not prepared to do so, I will test the opinion of the House.

NHS: Evidence-based Medicine

Debate between Earl Howe and Lord Hunt of Kings Heath

Wednesday 10th October 2012 Lords Chamber

[Earl Howe]

My Lords, I would expect that my right honourable friend the Secretary of State is well aware of the public comment on his recent statements, but he is entitled to his personal views. The Government’s position remains that it is the responsibility of local NHS organisations to make decisions on the commissioning and funding of healthcare treatments, such as homeopathy, for NHS patients.

[Lord Hunt of Kings Heath]

My Lords, I refer the House to my interests in the register. Following up that point, does the Minister not think that the Secretary of State should at least show some discretion when he comes to make statements on these issues in the sense that he is also head of the Department of Health and the National Health Service? In relation to his response on NICE and guidance, is he satisfied that the technology appraisals that NICE issues are indeed implemented by the health service?

[Earl Howe]

My Lords, I do not think I can add to what I said previously as regards my right honourable friend. No doubt he will take the noble Lord’s comments into consideration. As regards NICE guidance, as the noble Lord will know, there are concerns that in certain parts of the health service NICE guidance is not followed as we would expect it to be. There are various initiatives in train to correct that, both as regards the NICE technical appraisals and also clinical guidelines.

NHS: Primary Care Trusts

Debate between Earl Howe and Lord Hunt of Kings Heath

Tuesday 17th July 2012 Lords Chamber

[Lord Hunt of Kings Heath]

To ask Her Majesty’s Government what action they will take to prevent primary care trusts inappropriately restricting access to patient treatments.

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

My Lords, it is inappropriate for a primary care trust to impose blanket bans on treatments, or to restrict access to treatments on the basis of cost alone. The department will ask strategic health authorities to investigate any examples of such behaviour, and appropriate action will be taken.

[Lord Hunt of Kings Heath]

My Lords, in thanking the noble Earl, I remind the House of my health interests in the register. The noble Earl will be aware that there is now abundant evidence that some primary care trusts are restricting treatments that are deemed appropriate, in some cases against the guidelines issued by NICE. Given that, will he go further and seek to ensure that he and his ministerial colleagues intervene in the NHS where this is happening so that we can be satisfied that the NHS will still provide a comprehensive service?

[Earl Howe]

My Lords, yes, we will intervene if ever it is demonstrated that primary care trusts are restricting treatments on a blanket basis or on a cost basis unrelated to clinical need. Any arbitrary restriction on access to treatment of that kind is unacceptable. We have made that clear repeatedly, as has Sir Bruce Keogh, the NHS medical director, on a number of occasions. However, that is not the same as saying that the NHS should be unconcerned about value for money. It should be very concerned about it. It should not spend money on treating a patient when that patient is unlikely to derive clinical benefit from the treatment. Therefore, we need to distinguish that kind of case from the kind cited by the noble Lord.

NHS: Mental Illness

Debate between Earl Howe and Lord Hunt of Kings Heath

Tuesday 17th July 2012 Lords Chamber

[Earl Howe]

My Lords, as regards GPs, the Royal College of General Practitioners has identified improved care for people with mental health problems as a priority within its enhanced GP training programme, which forms part of the college’s proposals for a new evidence-based four-year programme of training.

As regards the workforce issues, I am aware that there is concern about recruitment into psychiatry. My department and the Royal College of Psychiatrists are looking into this matter. The royal college has established a task force to make recommendations to improve recruitment, and it is investigating the factors before medical school, during medical school, during foundation training and in core and higher psychiatric training so as to get to the bottom of the issue as best it can.

[Lord Hunt of Kings Heath]

My Lords, one of the important recommendations in the LSE Centre for Economic Performance report, which led to this Question, concerns the attitude of other doctors to psychiatrists and the issue that that has in relation to recruitment. The report says that,

“it is routine for”,

surgeons and physicians,

“to make derogatory remarks about psychiatry, which affects not just psychiatrists but also their patients”.

I wonder whether the noble Earl has any answer to that.

[Earl Howe]

The short answer is no, I do not. However, I am aware that the royal college is actively investigating this issue within the terms of its task force, to which I referred in my answer to the noble Baroness, Lady Hollins.

NHS: Private Finance Initiative Costs

Debate between Earl Howe and Lord Hunt of Kings Heath

Wednesday 11th July 2012 Lords Chamber

[Earl Howe]

My Lords, LIFT is one tool that we have in financing capital schemes in the community, many of which have been successful. Such schemes promote integrated services, which I know my noble friend will welcome. All LIFT schemes have been and will be assessed for affordability and value for money. It is not a universal prescription by any means, but we look constructively at LIFT as one way of delivering capital schemes.

[Lord Hunt of Kings Heath]

My Lords, I refer noble Lords to my health interests in the register. Will the Minister confirm that, under PFI, more than 100 new hospitals were built by the previous Administration? Will he also confirm that the annual expenditure on those schemes is less than 1%? In fact, does he agree that the real financial problem of the NHS is the £20 billion that his Government are taking out of it in a four-year period?

[Earl Howe]

We are not taking £20 billion out of the NHS; we are redeploying an increasing budget so that we get better value for money for the taxpayer. I say in answer to the noble Lord’s first point, which I think was more serious than his second, that we have confirmed that we remain committed to public/private partnerships. We think that they can continue to play an important role in delivering the country’s future infrastructure. However, it must be on the right basis, with tighter conditions attached.

NHS: Dental Care

Debate between Earl Howe and Lord Hunt of Kings Heath

Tuesday 26th June 2012 Lords Chamber

[Earl Howe]

My Lords, I absolutely agree with my noble friend about the importance of transparency of information for NHS patients. NHS Choices, which is the department’s public-facing website, already displays a lot of information about fees, the treatment that should be received and how to make a complaint about NHS dentistry, but more work is being done in this area to improve information on patients’ ratings of different practices, and we are updating the patient leaflet as well. What a dentist should not do is mislead a patient or induce a patient to access the surgery and then not provide the treatment that the patient thought they were going to get. If they cannot provide NHS treatment for whatever reason, they should point the patient in the direction of a practice that can, or else refer him or her to the primary care trust helpline.

[Lord Hunt of Kings Heath]

My Lords, I refer the House to my health interests in the register. Following on from the noble Baroness’s Question, can the Minister refer specifically to the OFT report, which showed that thousands of patients, after being told by their dentist that they could not have a certain treatment on the NHS, were persuaded to go private? That is and was inaccurate information. Are the Government going to take action in this area?

[Earl Howe]

My Lords, the OFT report on the dental market was published last month and we very much welcome that study. We note that it found that the vast majority of patients were happy with their dental treatment and that the vast majority of dentists behave ethically. There should be, and are, clear penalties for the small minority who mislead patients, but the noble Lord is right to draw attention to that aspect of the OFT report. It is an area that we are taking extremely seriously and we are looking at what more we can do.

NHS: Liverpool Care Pathway

Debate between Earl Howe and Lord Hunt of Kings Heath

Wednesday 20th June 2012 Lords Chamber

[Earl Howe]

My Lords, I recognise that some people who have been on the Liverpool care pathway have received poor care. The pathway is not of itself a guarantor of best-quality care. It has been consistently made clear in the guidance for the implementation of the Liverpool care pathway that it is in no way a replacement for clinical judgment and should not be treated as a simple tick-box exercise. Rather, it should be seen as a useful framework to guide the delivery of care in a way that complements the skill and expertise of the practitioner using it.

[Lord Hunt of Kings Heath]

My Lords, I refer the House to my health interests in the register. Does the noble Earl agree that the noble Baroness, Lady Knight, has done sterling work in bringing to the attention of Parliament issues to do with the appropriate feeding and nutrition of patients in hospitals, but that on this issue she is wrong? Will he confirm that the national care of the dying audit shows that in fact the vast majority of patients on the care pathway in the last 24 hours of their life were reported to be comfortable and receiving good clinical care, and that his department will continue to recommend the care pathway as good practice?

[Earl Howe]

My Lords, we will continue to do so. The Liverpool care pathway has sometimes been accused of being a way of withholding treatment, including hydration and nutrition. That is not the case. It is used to prevent dying patients from having the distress of receiving treatment or tests that are not beneficial and that may in fact cause harm rather than good. The noble Lord was right that the recent national care of the dying audit of hospitals, run by Marie Curie in collaboration with the Royal College of Physicians, notes that in 94% of documented cases discussions explaining the use of the LCP were held with relatives or carers. That audit process gives clinicians an opportunity to feed in their views about how well, or not so well, the pathway is working in practice.

Tobacco: Control

Debate between Earl Howe and Lord Hunt of Kings Heath

Tuesday 19th June 2012 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, I refer the House to my health interests in the register, in particular as president of the Royal Society for Public Health. I ask the noble Earl to continue his efforts to keep those companies at some distance from him and the Department of Health. Will he confirm that it is the view of the Government, as it was of the previous Government, that the tobacco industry promotes a product that has been described by the WHO as being proven scientifically to be addictive and to cause disease and death, and that we should have very little to do with those companies?

[Earl Howe]

My Lords, I can only agree with the noble Lord, Lord Hunt, that tobacco is extremely damaging to public health. There is no safe level of smoking, and as a party to the Framework Convention on Tobacco Control, the UK has an obligation to take its undertakings very seriously—which means to develop public health policy free from influence from the vested commercial interests of a very powerful industry. However, that does not mean that we close our ears to what the tobacco industry may have to say: we are very happy to hear from it in writing. That promotes transparency, which I think assists everybody in a freedom of information context.

Health Research Authority (Amendment) Regulations 2012

Debate between Earl Howe and Lord Hunt of Kings Heath

Wednesday 13th June 2012 Grand Committee

[Earl Howe]

The noble Baroness is right to draw attention to that omission in my coverage of these instruments. Of course, she is right that there are many different kinds of research that will involve the HRA in one form or another. I have emphasised only the medical and pharmaceutical elements of the HRA’s remit, because these matters were high up on the agenda of the Academy of Medical Sciences when it produced its report in the context of UK plc.

However, the noble Baroness should bear in mind my remarks about joining up health research and social care research. The HRA will co-operate with various bodies for the purposes of creating a unified approval process, not just for health research but to promote a consistent national system for research governance generally. Where this includes a social care or nursing element, the HRA will work closely with the relevant bodies to promote processes and standards that are consistent with the NHS and social care elements.

[Lord Hunt of Kings Heath]

My Lords, I thank the Minister for his positive response. I also thank the noble Baroness, Lady Emerton, the noble Lord, Lord Patel, and my noble friend Lord Turnberg for taking part in this interesting debate. I believe that the appointment and development of the HRA is a positive move forward, and of course we support the appointment of a majority of non-execs. The Minister mentioned the appointment of a chair. I do not know whether that is yet in the public domain or whether he has the name to hand, but it would be helpful to know.

I welcome the publication of draft clauses on the establishment of the HRA as a non-departmental public body in due course.

[Earl Howe]

My Lords, I am happy to inform the Committee, for noble Lords who were unaware of it, that Professor Jonathan Montgomery was appointed chair of the HRA on 11 June, that interviews for non-exec directors will be held on Friday, that interviews for the substantive chief executive were held on 11 June, and that the other executive members will be appointed by the rest of the new board as soon as possible.

[Lord Hunt of Kings Heath]

My Lords, that is very helpful. On the question of the reduction of the regulatory burden and the Minister’s reference to improving the cost-effectiveness of the whole process of approvals, that of course is welcome so long as patient consent and confidentiality are maintained and research is ethical. There is common agreement on that. I welcome his commitment to streamlining the approach in general for health research. I also welcome the decision by the devolved Administrations to encompass some of the work within the HRA, particularly the work of research ethics committees, which I assume will mean that cross-UK multi-centre trials will be subject to the streamlined process that the Minister has referred to.

On the role of the National Health Service in encouraging research, I take the noble Lord’s point about the NHS Commissioning Board’s statement of intent. I have no doubt that at that level Sir David and his colleagues will wish to support research. I am more concerned about the individual organisations in the NHS. I do not think that all NHS bodies quite realise the importance of research not only to patients but to UK plc. Anything that can be done to encourage the NHS to recognise that importance is vital. Sometimes that might mean the practicalities of recognising that their clinicians need time to take part in research activities. At a time when the NHS is having to find large efficiency savings, that may not always be welcome to chief execs of NHS organisations or to clinical commissioning groups. None the less, it would be disastrous if practising clinicians in particular were dissuaded or prevented from taking part in research activities. Again, messages on that matter from Ministers and the NHS Commissioning Board are vital.

Academic health science networks, particularly those outside London, are an important development. They will, I am sure, enhance research efforts. Again, the more support that can be given to them, the better. However, it is important that those networks focus on research—there has been some indication that almost everything about their intent is being put into the bath. One needs to come back to the fact that they are about enhancing our research capacity in the interests of the quality of patient services.

I agree with the Minister that the CPRD is a major step forward. We are uniquely attractive, but can we translate that into research money coming to the UK for what undoubtedly can be offered?

The Minister knows that I have always been sceptical about value-based pricing. He said that there was much to do. I urge him and his department to take their time on this matter. The PPRS allows industry flexibility to set the price within a profits cap. Although the UK is not a great purchaser of branded pharmaceuticals globally, the fact that it is able to set a price has an influence on price throughout Europe. My concern is that taking that away might have an impact on industry’s willingness to invest in R&D in this country, given that we so are slow to take up innovative new medicines. We developed NICE to encourage the health service to do that, and it is still a struggle because unfortunately the default position of the NHS and of clinicians is to be slow to invest in and agree to innovation.

If value-based pricing can encourage the NHS towards innovation in the way that the Minister suggests, that is of course to be welcomed. However, looking more generally at the impact of research, we do not seem yet to have a philosophy that goes hard on innovation where it can definitely improve the quality and outcome of patient care. That is to do partly with the conservative nature of clinicians in the UK and partly, probably, with the mindset of finance directors in the NHS. I know that the noble Earl is the Minister for Innovation and that he is wrestling with those issues. It is very important when we look at both research and value-based pricing that we encourage the NHS as both commissioner and provider to do everything that it can to take advantage of the huge amount of innovation that takes place in this country on the back of a fantastic resource in life sciences, in our universities and in the medical devices industry. Overall, we have had a very good debate and I am glad to support these statutory instruments.

NHS: Public Information and Advice

Debate between Earl Howe and Lord Hunt of Kings Heath

Tuesday 12th June 2012 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, first, I declare my health interests which are set out in the register. Perhaps I may take the noble Earl back to the decision of his department to reduce the number of national campaigns in relation to public health. A survey by the Association of Directors of Public Health published at the weekend shows that, in the transfer to local authorities, there has been a loss both of capacity and of funding. Given that, how can he justify the emphasis on local campaigns at the expense of national focus programmes?

[Earl Howe]

My Lords, there will be national focus programmes led primarily by Public Health England, but we see those as complementary to the work going on at the local level. By no means are we abandoning national campaigns. Indeed, we have seen considerable successes. In 2010-11 we invested almost £11 million to support 59 cancer awareness campaigns around the country. In 2011-12 we provided £8.5 million to support a range of cancer awareness campaigns, and this year we hope to spend even more on cancer awareness than we have in previous years.

National Health Service Trust Development Authority (Establishment and Constitution) Order 2012

Debate between Earl Howe and Lord Hunt of Kings Heath

Monday 28th May 2012 Grand Committee

[Earl Howe]

I apologise. The rules surrounding public appointments will of course still apply, particularly those relating to open competition. The continued existence of those rules and their implementation should give the public confidence that this system will be open and unbiased.

[Lord Hunt of Kings Heath]

My Lords, like other noble Lords, I thank the noble Earl, Lord Howe, for his response. I prayed against this statutory instrument in a genuine spirit of seeking information. I agree with the Minister about the importance of foundation trust status. I have no problem at all with the Government wishing to see NHS trusts becoming foundation trusts as soon as possible; that is absolutely right. Equally, I have no problem about the establishment of the new authority, and I commend the Government on the appointment of David Flory as the chief executive and Sir Peter Carr as chairman. Sir Peter has been a long-standing chairman in various guises in the health service going back more than 20 years. I suspect that he may well be chairman of this authority for a little longer than the department thinks at this moment.

There is genuine puzzlement about how these trusts—more than 100 of them—are to become foundation trusts by 2014. The fact is that many of them are facing great problems, mainly financial. They may have a PFI scheme that is expensive and which the local system is unable to afford without consequences on the rest of the system or, as my noble friend Lord Warner said, it may be tied up with very difficult reconfiguration issues.

Greater London Authority Act 1999 (Amendment) Order 2012

Debate between Earl Howe and Lord Hunt of Kings Heath

Tuesday 22nd May 2012 Grand Committee

[Lord Hunt of Kings Heath]

My Lords, I thank the noble Earl, Lord Howe, for explaining the intention of the order to the Committee. I declare an interest as chairman of an NHS foundation trust and as a consultant and trainer in NHS and health issues. As the noble Earl explained, this will enable the GLA to spend money on improving or protecting public health in Greater London. It has a specific relevance to the London Health Improvement Board, and is consistent with the enhanced role to be given to local authorities in the rest of England and in the London boroughs. We believe that local authorities can make a major contribution to public health and support the general thrust of the order.

The case the noble Earl put forward for a pan-London approach to public health is persuasive. My understanding is that—as he said—it will tackle the major health problems in the capital, including cancer, childhood obesity and alcohol abuse. I particularly note the comments of Dr Simon Tanner, NHS London regional director of public health, who explained that:

“Health issues in London are both complicated and specific to the city. The capital’s biggest health problems such as obesity, cancer and alcohol abuse are often interrelated and cannot be tackled in isolation”.

On behalf of the NHS, he said,

“we want to draw on the diverse skills and experience we have to tackle these areas through the London Health Improvement Board”.

This clearly receives support from the NHS, as well as the London boroughs and the GLA.

I listened carefully to the noble Earl’s explanation of the relationship between the London boroughs, the GLA and the improvement board. He was careful to make clear that the London boroughs are the principal public health bodies for London. In essence, the LHIB will depend on the support of the London boroughs to be able to take the necessary action. I entirely understand that, but I will ask the Minister a question. He mentioned the issue of campaigns. He said that it would be much better to co-ordinate a public health campaign across London, and that the board could have an important role to play, which is self-evident. However, I imagine that it would depend on all the London boroughs signing up to a particular programme and committing a budget to it.

What will happen if the board is not able to get all the London boroughs to join a campaign? When statutory legislation is brought to Parliament, will it enable the board to take account of that in some way? Presumably, one would not want one borough to be able to veto an action that all the others had agreed to. I would be grateful if the noble Earl would also indicate when he thinks legislation will be brought forward to put the board on a statutory basis. I do not know whether it will be primary or secondary legislation. It would be helpful if he could explain that, too.

My final question is slightly outwith the issue, but I hope that the noble Earl will not mind me asking it. We are all agreed that local authorities, whether inside or outside London, should have a stronger role in public health. The appointment of a director of public health by first-tier local authorities, and the establishment of public health departments in those local authorities, is clearly very important. Noble Lords will be aware that there has been concern in the public health community about the extent to which the ring-fencing of budgets will actually hold. If the noble Earl is not able to explain this, perhaps he might write to me in due course.

I am also picking up some concerns that local authorities are being less than sensitive to the debates that we had on the Health and Social Care Bill about the status of the director of public health and the right of direct access to the local authority chief executive. I realise that local government structures have changed since 1974 and that direct access for the DPH could present some problems to local authorities, but it is widely accepted within government that the Chief Medical Officer must have direct access to the Prime Minister and senior Ministers—for obvious reasons in view of the importance of that office. Surely the same applies at local level.

There are some signs that local authorities have not taken that message on board. It would be a great pity if local authorities, almost at the starting gate of assuming greater responsibility, did not recognise the need to ensure that public health has a very strong voice at the top table. Frankly, local authorities are on trial. There is no guarantee that the arrangement will stay for ever if they are not able to accept the responsibility that is placed on them. I realise that this matter goes slightly wider than the order, but any words of comfort would be much appreciated.

[Earl Howe]

My Lords, I am very grateful to the noble Lord, Lord Hunt, for his support for the order. He asked me a number of questions. First, he asked whether, if the London borough councils cannot unanimously agree on a plan, that would affect their ability to commission services from the GLA or through the board. The board can and will be able to deal with the boroughs individually if necessary. The draft Bill that we are bringing forward will make clear in primary legislation how the board will agree plans on a statutory basis. For example, if a group of boroughs wished to get together, excluding other boroughs, there is no reason why they should not do so and commission the GLA to deliver services solely on their behalf.

As I said, the establishment of the board as an NDPB will require primary legislation. Unfortunately, I cannot tell the noble Lord when that will be brought forward, but the draft legislation will be published soon. We published baseline allocations based on the NHS spend for public health, and our intention is to move gradually to a more needs-based formula over a period of years. To move more suddenly would prove destabilising, as I am sure the noble Lord appreciates. That addresses his point about the ring-fencing of budgets, and whether they will hold. I was not aware of concern about that. Of course, some boroughs wish that they had more money than they do, but it is necessary to start from a logical place, and we believe that the baseline allocations reflect current reality.

I was concerned to hear what the noble Lord said about the status of directors of public health and the extent to which they will or will not have access to their respective chief operating officers within a local authority. I will take that concern away with me, and I am grateful to him for flagging it up. If there is anything I can say to him in writing, I will be very happy to do so.

Health and Social Care Act 2008 (Regulated Activities) (Amendment) Regulations 2012

Debate between Earl Howe and Lord Hunt of Kings Heath

Tuesday 22nd May 2012 Grand Committee

[Lord Hunt of Kings Heath]

I am grateful to the noble Earl, Lord Howe. Perhaps I may make just a couple of points. On the consultation on the HFEA, all I should like to say to him is that it might be useful if there were some time for parliamentary discussion in your Lordships’ House around the consultation—not to second-guess the consultation process but, I should have thought, in view of our previous debates, to allow for some discussion among parliamentarians about the consultation document.

Secondly, as regards Kay Sheldon, I fully understand that the noble Earl is not prepared to comment on any individual case. He went on to make the point that the department was concerned to ensure that the board of the CQC was well functioning and effective. One could take that both ways. I understand, in a sense, the ambiguity of the noble Earl’s expressions in relation to that. All I would say to him is that I would ask the department to walk very carefully in this area. I know that he has debated the issue of whistleblowing many times in the past few years, and he has always upheld the rights of whistleblowers. Although it might be argued that a board member is a little different from a member of staff, there will sometimes be circumstances when board members themselves can become frustrated that they have raised concerns that are not then dealt with. Taking action against a board member who has actually given evidence to a public inquiry will send unfortunate signals to the NHS about how strong collectively we are in supporting whistleblowers. I do not expect the noble Earl to respond to that but hope that it will at least encourage the department to think very carefully about their actions in this case.

[Earl Howe]

My Lords, on the noble Lord’s first point, I would be very willing to take part in a debate on the issue involved in our proposals to transfer the functions of the HFEA and the HTA to the CQC. I can only say that I will ensure that the noble Lord’s suggestion is fed into the usual channels.

On the second issue that he raised, I appreciate his understanding that it would not be appropriate for me to comment on the position of individual members of the board. I am sorry if my remarks appeared ambiguous; that was certainly not my intention. All I intended to say was that the CQC will be facing significant challenges over the coming months, as we have been discussing, and the department is committed to ensuring that its board has the skills and capabilities it will need to meet those challenges.

NHS: Risk Register

Debate between Earl Howe and Lord Hunt of Kings Heath

Tuesday 15th May 2012 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, I beg leave to ask the Question standing in my name on the Order Paper and, in so doing, I declare an interest as chair of an NHS foundation trust and as a consultant and trainer on the NHS and health issues.

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

My Lords, the transition risk register will be published when the balance of public interest favours disclosure. We will continue to be open about risk. Last week we published a document containing information on all risk areas in the register, along with a scheme of publication for future review and release of information on risk.

[Lord Hunt of Kings Heath]

My Lords, I am extremely grateful to the noble Earl for that because he said that it would be published when the balance is in favour of the public interest. Can I take him back to the judgment of the First-tier Tribunal, which concluded that risk registers,

“would have provided the public with a far better understanding of the risks to a national institution”,

on which millions depend? Surely the public interest and parliamentary scrutiny actually depended on that risk register being published, and it should have been published when the Bill was in this House.

[Earl Howe]

My Lords, we do not agree with that. We have, as I have mentioned, published a document setting out a summary of all the risks in the register and the mitigating actions associated with each category, but we resist publishing the risk register itself at present. It is essential that officials are able to formulate sensitive advice to Ministers, making frank assessments and using direct language, without the fear of causing unnecessary embarrassment for the Government or damage to their area of policy. That is the essence of the reason.

Health: Clinical Commissioning Groups

Debate between Earl Howe and Lord Hunt of Kings Heath

Thursday 26th April 2012 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In so doing, I remind the House that I am chairman of the Heart of England NHS Foundation Trust.

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

My Lords, in February the NHS Commissioning Board Authority published Towards Establishment which set out general safeguards that clinical commissioning groups (CCGs) should have in place to manage conflicts of interest. More specific guidance outlining safeguards for when CCGs are commissioning services that could be provided by GPs will be published shortly. We expect that both of these will inform the guidance the NHS Commissioning Board must provide for CCGs once it is established.

[Lord Hunt of Kings Heath]

My Lords, I am grateful to the noble Earl for his response. He will be aware of research published at the end of March which showed 22 clinical commissioning groups where the majority of GPs on the board of those groups actually had a financial interest in companies that are in receipt of NHS funding. Given that decisions on future contracts will fall to clinical commissioning groups, can the noble Earl assure me that those GPs will not take part in any discussions or decisions about future contracts? Will he also acknowledge that the problem arises from the weakness of the corporate governance arrangements, because in some CCGs there will be no one left to make the decision?

[Earl Howe]

My Lords, I do not accept that. CCGs will be subject to rigorous safeguards that prevent conflicts of interest affecting their commissioning decisions. Each CCG has to maintain registers of interest. They must have a governing body with lay members on it and other non-GP clinicians who will oversee the arrangements for governance. Each CCG must make arrangements set out in their constitution to manage conflicts and potential conflicts of interest. And the NHS Commissioning Board, as part of its overseeing role, will be responsible for making sure that every CCG has arrangements to manage potential conflicts of interest. So we do not see these problems arising in practice.

Health and Social Care Bill

Debate between Earl Howe and Lord Hunt of Kings Heath

Monday 19th March 2012 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, the noble Baronesses, Lady Cumberlege and Lady Emerton, and other noble Lords who have spoken have argued pretty persuasively for statutory regulation. I think it is a pity that the noble Baroness, Lady Emerton, did not put her amendment to the vote on Report because there is a great deal of support in this House and outside it for statutory regulation. I do not know whether the Minister will accept this amendment, but if the noble Baroness wishes to put it to the vote, we shall support it.

If we look at the first part of the amendment, as I understand it the Minister gave an assurance on Report that the Council for Healthcare Regulatory Excellence would provide some assurance to voluntary registers. If the council is prepared to undertake the work to provide some assurance for voluntary registers, I cannot see why it could not have done that for statutory regulation. I have yet to hear one argument by that body or anyone else about why there should not be statutory regulation on this.

I note that the assured training programme is to be mandatory. It is all very well to say that it is mandatory to attend a training programme, but I would rather like to hear that someone has passed some kind of examination and achieved a qualification rather than that they merely turned up and got ticked in—although we know about being ticked in in your Lordships’ House.

On proposed new subsection (3) in the amendment, my reading is that this will not cover nursing homes. The noble Baroness, Lady Masham, expressed concern that a nurse may be struck off the register of qualified nurses but turn up at a nursing home the next day. However, my reading of this subsection is that it relates only to the care of NHS patients. Clearly, there are large parts of the care market to which this does not apply, and the most vulnerable part of care is healthcare assistants working in the independent sector without much supervision.

On proposed subsection (4), the disappointment is that the noble Earl said that the Government would agree to review this after, I think, three years. That would take us to 2015. We know that it would take two or three years to establish statutory regulation, so we are talking about five or six years from now, according to this amendment, when we would achieve statutory regulation. I am sure that that is the journey that we are on; I am disappointed that it will take so long to get there.

[Earl Howe]

My Lords, we have already had considerable debate on standards and training for healthcare support workers at both Committee and Report stages and I have set out the Government’s view that compulsory statutory regulation is not the only way to achieve high quality care.

We have made it clear that we recognise the need to drive up standards for support workers and to facilitate employers to appropriately employ, delegate to, and supervise health and social care support workers. We have listened to the concerns raised in this House and we have already taken action in a number of areas. We have recognised the concerns about the need for common standards for all those delivering personal care. I believe the steps we are taking will help increasingly to professionalise this set of workers, and ensure that healthcare support workers strive to achieve the best standards of skills to enable them to do their work more effectively.

We have therefore commissioned Skills for Health and Skills for Care to work together to develop a code of conduct and minimum induction and training standards for those support workers working in support of nurses and for adult social care workers. We fully expect this code to make crystal clear the primacy of patient safety, and how support workers must flag concerns to their supervisors. It would also be relevant both to employees and to employers. These will be developed by September 2012, with a view to enabling them to be adopted as the standards for an assured voluntary register from 2013 onwards. They will, for the first time, set a clear national benchmark around the training and conduct of support workers.

In taking that work forward, we expect Skills for Health and Skills for Care to engage with nursing professionals, including educationalists, and the standards will link to the Nursing and Midwifery Council’s updated guidance on delegation. We have also said that we will ensure that the delivery of training for healthcare assistants who are entitled to be included on a voluntary register is professionally led. Further, we remain committed to exploring the evidence base relating to ratios of qualified to non-qualified staff, and we will look carefully at the evidence from ongoing work by King’s College.

Our proposals stop short of imposing mandatory requirements on employers, as it is our view that assured voluntary registration, underpinned by the Care Quality Commission’s registration requirements, is likely to be adequate to assure standards. However, we recognise that there are concerns that voluntary registration may not be adequate and therefore, once a system of assured voluntary registration has been operational for three years, we will commission a strategic review of the relative benefits of assured voluntary registration, compared with statutory registration.

The noble Lord, Lord MacKenzie, asked me whether employers would be able to require workers to be on registers. The answer is most certainly, yes. There are already precedents where employers require, for example, clinical perfusionists or non-medical public health specialists to be on voluntary registers, so we do not see this as a problem.

Turning specifically to the purpose of the amendment, to require mandatory assured training for all new healthcare support workers by 2013, I view that as a big-bang approach—if I may put it in those terms—and I have considerable anxiety that it carries a real risk of overwhelming the system in terms of allowing time for an assured training programme to be developed and implemented. Furthermore, I need to bring to the House’s attention that the introduction of mandatory training would have a significant cost impact on employers across a short period.

The department commissioned an independent analysis of the costs and benefits of regulating around 250,000 domiciliary care workers in 2009. This work indicated that, with a requirement that all workers would have to achieve an NVQ level 2 over two years, or have made good progress towards doing so, the costs would be in the region of £435 million over 10 years. The costs of registration, which would have been met by workers, were only around £70 million over 10 years, with the remaining £360 million or so primarily relating to the costs of providing training, which would primarily have fallen to employers.

Therefore, there are good reasons why we cannot just commit to introducing mandatory training in the current difficult public spending environment, without a clear evidence base for doing so. However, that is where the review comes in. I can confirm that we will consider whether there is a case for mandating training as part of that review, and an appropriate timetable if it were to be introduced.

Allowing for a three-year period once such voluntary registers have been quality-assured by the Professional Standards Authority for Health and Social Care is important. The size and complexity of the workforce we are discussing has already been recognised in our earlier debates. Therefore, in order to ensure that the review is fair and evidence-based, we need to allow an appropriate time period for the assured registers to operate and three years from Royal Assent may not allow sufficient time, for the reasons that the noble Lord, Lord Hunt, alluded to, given that it may take some time to get to a point where a register is properly established.

The scope of this amendment is only healthcare support workers, and I understand the reasons why the noble Baroness has raised it in such limited terms. However, as the noble Baroness, Lady Howarth of Breckland, recognised in our last debate on this matter, the care workforce is significantly wider than that of healthcare support workers. Our proposals recognise this and include provision for common core training and a common basis for a code of conduct.

I know the noble Baroness would like us to go further. However, the review to which I have already committed will provide us with a clear evidence base for any further measures needed to assure the standards of healthcare support workers and we will then consider the need for further measures in light of that review. In view of the proposed review and the ongoing role of the Professional Standards Authority in monitoring voluntary registers, I do not see the need to go any further in terms of rolling out the programme with pilots or some such, but we are more than willing to maintain a dialogue with noble Lords and the profession on what is clearly an important issue.

I also listened to the noble Baroness’s point about the importance of staffing ratios, particularly with regard to midwives, and I can confirm that we will keep these issues under close consideration.

I hope the noble Baroness will be at least partially reassured—maybe substantially reassured—about the general direction of travel here and of our commitment to strengthening the assurance processes in place for healthcare support workers and that, as a consequence, she will feel able to withdraw her amendment at this point.

Health and Social Care Bill

Debate between Earl Howe and Lord Hunt of Kings Heath

Tuesday 13th March 2012 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, when I was in government, I was always very wary of interventions from the noble and learned Lord when he required help on an answer that I had given. I should probably let the noble Baroness, Lady Emerton, answer for herself, but perhaps I may make two points. First, the noble Baroness has been very inventive in using this Bill as a way of raising these concerns. As a number of clauses, to which we shall come shortly, relate to regulation, her amendment is quite in scope. Secondly, this is very much a debate on the principle. I have no doubt that, if the noble Baroness were to press the amendment to a vote and was successful, the noble Earl, Lord Howe, would come back at Third Reading or in the other place with a tidying-up amendment which dealt with the issues that the noble and learned Lord has raised, respecting the intent of the House but ensuring that the statute was as tight as it could be. It is probably not for me to answer for the noble Baroness.

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

My Lords, this has been another excellent debate about a critical issue: how we ensure that the staff who deliver NHS care have the training, support and appropriate regulation to enable them to do so. I pay tribute to the noble Baroness, Lady Emerton, for her advocacy of this cause, which is of course of central importance.

This amendment would require the Nursing and Midwifery Council to regulate healthcare support workers on a mandatory basis. I hope that I do not need to convince the noble Baroness that we have given this considerable thought. The Government’s view, like that of the noble Baroness, Lady Pitkeathley, is that compulsory statutory regulation is not the only way to achieve high-quality care. It is no substitute for good leadership at every level and the proper management of services, which is perhaps the most relevant issue in the context of the examples of poor care cited by the noble Baroness, Lady Young, to whom I listened with great attention.

Regulation can respond to concerns about the practice of professionals when they arise, but the regulator cannot be in the room all the time. On the other hand, employers are often in a position to act early, when concerns first arise and before harm occurs.

Let us remember that there are existing tiers of regulation that protect service users, particularly the vetting and barring scheme, through which unsuitable workers can be barred from working with vulnerable adults and children. I say to the noble Baroness, Lady Masham, in particular, that that includes where regulated nurses are struck off. If there are concerns that they may pose a risk, they should be referred to the Independent Safeguarding Authority. The Care Quality Commission also enforces standards for providers of health and social care services.

There is no difference between the noble Baroness, Lady Emerton, and the Government on the central issue. We recognise the need to drive up standards for support workers and to facilitate employers appropriately to employ, delegate to and supervise health and social care support workers. To this end, we have commissioned Skills for Health and Skills for Care to work with professional stakeholders on the development of a code of conduct and minimum induction and training standards for healthcare support workers and adult social care workers in England. The noble Baroness has expressed her doubts about that decision, but I noticed with interest that, in its recent addendum to its response the House of Commons Health Select Committee, the NMC stated clearly that it supports the Government’s announcement that Skills for Health and Skills for Care have been commissioned to do this work and to develop a delegation standard for nurses and midwives that will provide an effective framework for public protection.

We confidently expect Skills for Health and Skills for Care to engage with nursing professionals, including educationalists, in taking this forward. There are registered nurses on the proposed membership of the steering group for the work that we have commissioned from Skills for Health and Skills for Care, and I am happy to suggest in response to the noble Baroness that a university lecturer should also be included. More generally, we would expect a broad programme of engagement as part of the work to take this forward. We expect the standards to be agreed ahead of the establishment of voluntary registers for healthcare support workers and adult social care workers, which could be operational from 2013 onwards; so, to be clear, those workers meeting the standards of training and conduct would be able to be included on an assured voluntary register. We will ensure that the delivery of training for health and care assistants who are entitled to be included on a voluntary register is professionally led, and I can confirm that, following this debate, I will be writing to Skills for Health and Skills for Care to make this absolutely crystal clear.

Health and Social Care Bill

Debate between Earl Howe and Lord Hunt of Kings Heath

Tuesday 13th March 2012 Lords Chamber

[Earl Howe]

My Lords, I hope it goes without saying—I think that all noble Lords would agree—that patient safety has to be the key priority for all those working in the health service. We cannot allow it to be an add-on or an afterthought. For that reason, the Bill puts safety at the heart of the NHS, not at arm’s length. Currently, the National Patient Safety Agency’s core function is to improve the safety of NHS care by promoting a culture of reporting and learning from adverse events. It does that, as the noble Lord, Lord Hunt, rightly mentioned, through its national reporting and learning system. As noble Lords are aware, it is our intention that Clause 22, or new Section 13Q, will give the NHS Commissioning Board responsibility for this function, including the collection of information about patient safety incidents, the analysis of that information and the sharing of the resulting learning with providers of NHS care—those who contract with clinical commissioning groups or directly with the board.

The noble Lord, Lord Hunt, asked whether it was sensible to do as we propose. Safety is, of course, a key domain of quality and we believe that the board, as the body legally responsible for ensuring continuous quality improvement in the NHS, will be best placed to drive a powerful safety agenda through the NHS. The board will use its leadership, expertise and oversight of the system, including oversight of the national reporting and learning system, to lead continuous quality and safety improvement. Its unique perspective would allow it to ensure that appropriate levers are used to drive safety improvement across the system, based on the needs of the NHS. Embedding safety across the system is vital to increase the pace of development, and it is the intention that the patient safety function will be conferred on the shadow body—the NHS Commissioning Board authority—in June of this year.

It is intended that the operational management of the NPSA’s national reporting and learning system will transfer on a temporary basis to Imperial College Healthcare NHS Trust on 1 April 2012. From April, Imperial College will manage the team responsible for the existing NRLS function for a temporary period of two years. During the two-year period a full tendering process will be developed by the NHS Commissioning Board that is intended to identify the future specification of requirements for a national system to capture and analyse patient safety incident data.

Within the board there will be a patient safety team of around 40 staff led by the director of patient safety and bringing together policy, insight, advice and guidance. The arm’s-length bodies review recommended the abolition of the National Patient Safety Agency. It made clear that the agency’s functions, while necessary within a system supporting wider quality and safety improvement, did not need to be performed at arm’s length. For me, one of the key arguments for making this change is that the National Patient Safety Agency did not have the authority or position to exploit fully the information gained from the national reporting and learning system. In contrast, the board will have the necessary authority and be positioned at the very heart of the system, and therefore be better placed to lead and drive improvements.

The noble Lords, Lord Hunt and Lord Warner, questioned whether the board was actually the right body. I understand the noble Lords’ concerns regarding the independence of the NRLS, but I feel as well that the board will prove to do an excellent job. In particular, it is worth remembering the board’s specific duty with regard to this in new Section 13Q.

As regards conflicts of interest, the NPSA is not being placed within the Commissioning Board as an ALB organisation; it is being abolished. We are putting safety at the heart of the NHS. The NHS Commissioning Board will assume responsibility for securing some functions of the patient safety division of the NPSA relating to reporting and learning from patient safety incidents so that we can embed patient safety into the health service through commissioning and the contracts that commissioners agree with providers. If incident reports suggest that commissioning is the problem, this would be picked up by the system.

The noble Baroness, Lady Finlay, asked me what the proposals will mean in the context of the devolved Administrations. There is provision in the Bill for the NHS Commissioning Board to make information on reporting and learning available to others as it deems appropriate. Such information may be shared with devolved Administrations, and the board will have powers to enter into agreements with them to provide services.

The noble Lord, Lord Patel, asked who would be responsible for making the information available and acted upon. The board will have responsibility for provision of all appropriate guidance and advice. It is for the board to determine how best to ensure that this information is made available, particularly in the NHS. Clinical commissioning groups must have regard to that advice and ensure, through their contracts with providers or otherwise, that appropriate steps are taken to reduce risks and secure the safety of patients. The board would have to ensure that the advice and guidance that it provides is effective. The Bill also provides the board with the ability to deliver any of these functions through those that it considers best placed to maximise safety.

Patients rightly expect that any service provided through NHS funding will be safe, and making the board responsible for the key functions on safety will place responsibility for the safety of care where it should be—at the centre of the NHS. In saying that, however, I pay tribute to the positive contribution made by the National Patient Safety Agency and to make clear that its abolition is not at all to belittle its functions. It is, rather, a consequence of ensuring that vital functions are carried out in the best place in the new system. I believe that this is at the heart of the NHS—with the board—rather than at arm’s length.

I hope that I have sufficiently reassured the noble Lord, Lord Hunt, and that he will feel able to withdraw his amendment.

[Lord Hunt of Kings Heath]

My Lords, I must say I am very uneasy because I think that the arm’s-length bodies review completely missed the point. It was my understanding that the NPSA itself was not charged with improving safety. The whole point about setting it up was to have an independent body to which people in the NHS could report adverse incidents. Information would then be used in different ways, first in the issuing of safety bulletins and reports on a pattern of safety incidents, which would improve safety in the health service. It was always the expectation that responsibility for safety rested with the health service and the regulator, CQC.

--- Later in debate ---

[Lord Hunt of Kings Heath]

I must say that I am surprised that the noble Lord moved this amendment. He told me yesterday that he was not going to and did not have the courtesy to tell me that today he is. The amendment raises a very interesting question. No doubt we will be very interested to hear the response of the noble Earl, Lord Howe. He might perhaps add the membership of the review team to the details of the review.

[Earl Howe]

My Lords, I am very grateful to my noble friend, to whom I should like to pay a particular tribute for his work to bring interested parties together on this important issue to see whether a common view could be found on a practical way forward.

Both I and my ministerial colleagues are determined to ensure that we address the concerns of pharmacists and registered pharmacy technicians about the risk of prosecution for inadvertent as opposed to wilful or reckless dispensing errors. We and the profession want to see a learning culture that encourages the reporting of dispensing errors so that any helpful lessons can be learnt. Equally, we must make sure that any changes we introduce continue to give patients protection under the law and do not in any way compromise patient safety. It was therefore disappointing to me that, after a great deal of dialogue in recent months, there has not been a sufficient measure of agreement to proceed on a specific legislative change at this time. I have to accept the reality of that, despite everyone’s best efforts.

Health and Social Care Bill

Debate between Earl Howe and Lord Hunt of Kings Heath

Thursday 8th March 2012 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, I refer to my chairmanship of a foundation trust. From the opposition Benches, we very much support this amendment and wish to reinforce the importance of education and training.

It is right that we should emphasise the importance of NHS foundation trusts recognising their responsibilities in relation to education and training. It is equally important that they have an influence over the architecture for education and training. As the noble Earl will know, there are going to be local boards responsible for commissioning the education and training of professional people. It is very important that the people who run hospitals should be very much involved in the selection of students and ensuring that the curriculum is effective. The noble Earl will know that the Future Forum paper chaired by the chief executive of University Hospitals Birmingham NHS Foundation Trust emphasised the importance of looking at these matters.

We will be debating the quality of nursing next week, but there is no doubt that there is a real problem with public perception of the quality of nursing in particular, and issues to do with nutrition and basic nursing skills. I am convinced that there is a real problem that the universities that train our nurses, in the end, are much more focused on academic practice, because that is what universities do. I am anxious that no one has been able to put their finger on the solution. One way of improving the quality is to involve the foundation trusts much more in these matters. My noble friend’s amendment is very helpful in that respect.

[Earl Howe]

My Lords, as noble Lords will know, we have had a number of earlier discussions about education and training and I welcome this new opportunity to return to the subject. As the noble Lord, Lord Turnberg, is aware, we are putting in place what we see as a strong national system for education and training, with a strengthened focus on quality outcomes.

In the Bill we have introduced a clear duty on the Secretary of State to ensure that such a system is in place. We are now making good progress in establishing Health Education England and the local education and training boards. We are acutely aware of the importance of a safe transition to the new system. We are proceeding with care and at a sensible pace to ensure that the new system is fully up and running by April 2013.

We have also introduced amendments to strengthen links with the wider system. Our Amendments 61 and 104, which were accepted in an earlier debate, place duties on the board and on clinical commissioning groups to have regard to the need to promote education and training. They are designed to ensure that commissioners of NHS services consider the planning, commissioning and delivery of education and training when carrying out their functions.

We also accepted an amendment tabled by the noble Lord, Lord Patel, to strengthen co-operation among providers of NHS-funded services, which would place a duty on commissioners to ensure that any person providing services as part of the health service would have to co-operate with the Secretary of State in the discharge of his education and training duty, or with any special health authority discharging that duty—that is, Health Education England. This aims to ensure that providers, too, play an active role in education and training.

The noble Lord, Lord Hunt, spoke with his customary authority on this subject and I agree with what he said. I particularly agree that employers best understand the workforce they employ and the kind of workforce they want to employ. They also understand the need to link service planning and workforce planning. They are able to focus on the whole workforce and to recognise the levels of contact with patients and service users, and the varying local needs. Evidence from other sectors and feedback from providers has been clear that in order to deliver successful and responsive world-class services, employers need to have clear ownership and involvement in the education and training and planning of their workforce. I am entirely at one with the noble Lord on that.

Employers have welcomed our plans for education and training. They believe that this approach should provide real opportunities so that healthcare providers have the right incentives to secure the skills that they wish to have, invest in training and innovate to improve the quality of services that they provide. They welcome the opportunity to have the incentives to align service, financial and workforce planning, and to have greater flexibility to respond to the strategic commissioning intentions of the NHS Commissioning Board and clinical commissioning groups.

The NHS Confederation, NHS Employers, Foundation Trust Network and the Association of UK University Hospitals all support a system that provides greater accountability for employers. Strategic health authorities are working with employers to support them in developing these local partnerships so that they can take full responsibility for workforce planning, education and training.

I hope that that is of reassurance to the noble Lord, Lord Turnberg. What is happening on the ground almost pre-empts the speech he so articulately made. We are rapidly moving towards the kind of system to which he and other noble Lords aspire. Having secured the amendments that are already in the Bill, we do not believe that it is necessary to build in any more. On the strength of what I have said, I hope that the noble Lord will feel comfortable in withdrawing his amendment.

Health and Social Care Bill

Debate between Earl Howe and Lord Hunt of Kings Heath

Wednesday 29th February 2012 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, this is an important debate. I want the noble Earl, Lord Howe, to make it absolutely clear in relation to Amendment 71 that the intervention of the Secretary of State will follow if the Secretary of State considers it to be in the interests of the health service when one of these bodies is failing to discharge a function properly. The wording of this amendment means, in effect, that if issues are raised in Parliament about NHS performance on which the Secretary of State, quite naturally and properly, wished to intervene, the Secretary of State can indeed do that. In the end, only the Secretary of State can, in those circumstances, consider what is in the interests of the health service. It is absolutely right and proper for the Secretary of State to be in that position.

The second set of amendments starts with Amendment 294. The noble Baroness, Lady Murphy, is absolutely right to point out the problem of conflict between the CQC and Monitor, which is almost built in intentionally. The second report of the Francis inquiry into the Mid-Staffordshire trust may have some points to make about that. However, we are also adding to the architecture of the national Commissioning Board, and there is inevitably going to be tension between those three bodies. For instance, the national Commissioning Board and Monitor are to be given roles relating to the tariff, and it is clear that there is confusion over the roles in respect of quality issues. Monitor is now involved in making some inquiries of foundation trusts relating to quality, which is no doubt a defensive reaction to the criticism that will flow from the Francis inquiry. The national Commissioning Board is so powerful in the new structure that there are bound to be some issues about its relationship with the quality and economic regulators. We would like to hear from the noble Earl, Lord Howe, that the Secretary of State will not hesitate to intervene and knock heads together if the natural—and probably useful—tension goes beyond that and becomes a problem.

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

My Lords, this group consists of amendments to the Secretary of State and the Commissioning Board’s powers of intervention over health bodies and to the Secretary of State’s powers in the case of breaches of duty to co-operate. First, I should like to discuss the amendments relating to the powers of intervention. In doing so, I thank my noble friend Lord Marks for tabling the amendments and presenting them to the House so ably. He committed a great deal of time and effort to developing these amendments and I believe that they will make this a better Bill.

As noble Lords will be aware, the amendments sit within the package of amendments relating to ministerial accountability that was agreed through a process of cross-party negotiation and consensus-building. They address concerns from several Peers that, in the words of my noble friend Lord Marks,

“the bar may be set too high against the Secretary of State’s intervention”.—[Official Report, 11/10/11; col. 1572.]

I hope they provide reassurance to the House that this will not be the case. I support the amendments and hope that other noble Lords will follow me in doing so.

In answer to the noble Lord, Lord Hunt, my noble friend’s amendments clarify that the Secretary of State can intervene where he considers that a national body is failing to discharge its functions consistently with what he considers to be the interests of the health service, provided that he considers that the failure is significant. They also clarify the same point for the Commissioning Board’s intervention powers over CCGs and, in addition, where a national body may have functions beyond the remit of the health service, these amendments clarify that the Secretary of State can intervene where the body significantly fails to exercise the function consistently with the purpose for which it was conferred. I hope that that explains fully the point of the amendments and answers the noble Lord’s question.

--- Later in debate ---

[Lord Hunt of Kings Heath]

I thought that there was a question to the Minister as to whether he would consider the matter between now and Third Reading. Am I not right?

[Earl Howe]

My Lords, I should be happy to meet my noble friend to discuss the matter further between now and Third Reading.

--- Later in debate ---

[Lord Hunt of Kings Heath]

Does that mean that the matter can be brought back at Third Reading? I think that is the point here.

[Earl Howe]

I am not giving my noble friend a green light to do that, because I genuinely do not think that these amendments are necessary, but that can be a matter for discussion.

Health and Social Care Bill

Debate between Earl Howe and Lord Hunt of Kings Heath

Monday 27th February 2012 Lords Chamber

[Earl Howe]

My Lords, this has been a very good debate indeed and I thank noble Lords for the careful consideration that they have given to how CCGs should best manage conflicts of interest. I have listened carefully to the various points raised and it is clear that this is an area of key concern. I hope that the House will therefore forgive me if I start by setting out the position on this issue before I turn to the detail of the amendments before us.

At the heart of the Bill is an intention to balance autonomy with accountability. We are giving freedom to those best placed to take decisions in the interests of patients to do so, but we will also hold them to account, not only for the outcomes they achieve but also for their managing this responsibility effectively, transparently and with integrity.

CCGs will be the guardians of significant amounts of taxpayers’ money, as the noble Lord, Lord Hunt, rightly pointed out, so it is only right that there are strict requirements in terms of governance, probity and transparency of decision-making. We must balance the benefits of the clinical autonomy of doctors with a robust management of potential or actual conflicts of interest. It is essential to get this right, and that means a proportionate and reasonable approach.

I reinforce the point that the Bill already provides very real safeguards in relation to conflicts of interest. The CCG must make arrangements in its constitution for managing conflicts and ensuring the transparency of its decision-making process. The CCG must have appropriate governance arrangements, including a governing body with lay members and other health professionals. These arrangements will be scrutinised by the NHS Commissioning Board as part of the process of ensuring that a CCG is fit to be established as a commissioner.

Let me be clear that this is not just about declaring conflicts of interests, which of course is vital, but also about putting in effective and appropriate arrangements to manage these conflicts where they arise. There is not, and cannot be, a one-size-fits-all approach to managing conflict, as it depends on the interest itself and where it may become a conflict. However, likely methods may include absenting the person from decisions in that area, or bringing in others—for example, the independent lay members—to oversee the process for decision-making in a particular area. The key factor here is that they cannot avoid the need to manage the conflict and to be clear about how they are going to do so.

The provisions around conflict of interest apply to all aspects of a CCG’s commissioning activity, which means that they would apply to how it worked with a commissioning support organisation. I appreciate that there is apprehension and, in some cases, misunderstanding about the role of commissioning support organisations, so I shall set out the facts about this issue for the benefit of noble Lords today, in particular my noble friend Lady Barker, to whom I was grateful for referencing the brief on this issue provided by Professor Allyson Pollock.

Commissioning support organisations are not intended to act on behalf of a CCG in making decisions. They provide support, which might take the form of analysis of performance or finance data, supporting procurement or the management of a contract, and back-office functions. Let me be clear: at no point can they take decisions for the CCG or assume responsibility for a CCG’s statutory duties. It would be unlawful for a CCG to sub-delegate its commissioning responsibility to another organisation.

I am, however, conscious of the concerns, particularly those raised by my noble friend Lady Barker, about whether members of commissioning support organisations could sit on a CCG governing body. I give noble Lords a commitment today that we will prohibit any representative of a commissioning support organisation sitting on a CCG governing body through our secondary legislation-making powers under new Section 14N.

I should also like to explain some of the other safeguards in the Bill relating to management of conflicts of interest. Under Clause 73, the Secretary of State may make regulations which we intend will impose specific requirements in relation to the management of conflicts of interest. They will also confer on Monitor various powers to investigate the actions of a CCG and take remedial action. Monitor will be required to issue guidance on these regulations.

The NHS Commissioning Board may also provide guidance on conflicts of interest. This renders unnecessary any additional amendment requiring the Secretary of State to issue guidance on conflicts of interest, as Amendments 86 and 93 would do, or to issue a specific code of conduct or financial interest rules, as Amendment 38B requires. I shall return to that point in a moment.

The Bill is also clear on the transparency and accountability of the decision-making process. Schedule 2 provides that the CCG constitution must specify arrangements for securing transparency about the decisions of the CCG and governing body. The NHS Commissioning Board will be able to issue guidance on the publication of minutes and will ensure that the constitution meets these requirements. This meets the intention behind Amendment 92. We cannot accept the amendment because it might not always be appropriate to publish details of all decisions made by a governing body.

Transparency and accountability must not be achieved at the expense of the effectiveness of the commissioner. PCTs are not required to discuss all matters in public now and we should ensure that CCGs are not subject to more onerous requirements. Amendment 91 may well prevent CCG governing bodies discussing potentially commercially sensitive issues relating to contract values or performance without the public being present, which could pose difficulties.

I can fully understand the intention behind Amendment 102, tabled by the noble Baroness, Lady Finlay, to ensure that local knowledge informs the work of the CCG. However, we have always maintained that the presence of health professionals on a CCG governing body is not intended to be a means for the CCG to obtain advice to inform its commissioning decisions. The non-GP members of the governing body are there to provide an independent perspective, informed by their expertise and experience, in the body responsible for ensuring that the CCG adheres to the principles of good governance. They must have no conflict of interest in relation to the clinical commissioning group’s responsibilities. Amendment 102 would mean that a CCG could have only local professionals in the governing body. This would obviously limit the CCG in its choice of governing body members and risks a conflict of interests. I urge the House not to accept that amendment.

GPs in CCGs have to meet the ethical standards set by the General Medical Council in good medical practice. That includes provision to avoid conflicts of interest. Anyone may raise a concern that a doctor has failed to meet the conditions of their registration with the regulator. However, a failure to meet the conditions which Amendment 93 would impose would not necessarily mean that a GP had been in breach of their conditions of registration, and the duty which Amendment 110 would place on the board would be disproportionate. I know that there is a real concern among some noble Lords and that it is felt that this is a necessary sanction, but it is far better to ensure the robustness of the approach that CCGs take and that it is appropriately overseen. It is more appropriate for an independent monitor to police the transactional behaviour of CCGs and to be able to take effective remedial action where it discovers evidence that a CCG has not followed regulations in relation to procurement and the management of conflicts of interest, which is the approach taken in the Bill.

I similarly urge that we do not place in legislation an indiscriminate requirement, as Amendments 38B, 93 and 116 would do, that people with an interest withdraw from the relevant decision-making process of the CCG. Clearly, that is often going to be the most appropriate means to manage a conflict of interest, and that is made clear by the NHS Commissioning Board Authority’s guidance, Towards Establishment, which was published recently. However, it should not lead us to impose on CCGs a blanket ban on individuals being involved in a decision-making process or sitting on the governing body in all circumstances in which they have an interest. It ignores the fine line that can be drawn between situations in which withdrawal is absolutely necessary and those in which it would be more effective for the CCG’s exercise of its commissioning function for the conflict to be managed, carefully and with external oversight, in a different way that maintains the integrity of the CCG.

I listened with great care in particular to the speeches of the noble Lords, Lord Warner and Lord Walton, on this theme. The best example of the second category that I mentioned is where a CCG is commissioning for local community-based alternatives to hospital services and it determines that the most effective and appropriate way to secure these is from all local GP providers within its geographic area. There are already inherent safeguards in the legislation to help manage conflicts in this scenario. The CCG would have to declare its commissioning intentions as part of its annual commissioning plan, on which it would consult the public, and it would engage with health and well-being boards in developing; and that makes the proposal transparent. It enables the health and well-being board and others to challenge the proposals. CCGs could similarly secure additional involvement in the decision-making process—for instance, by involving members of the health and well-being board or, indeed, other CCGs or members of the CCG’s audit committee. There is a choice. We have not identified one single right way of doing this. We think it is important to allow best practice to evolve rather than trying to pin it down in legislation. If all GP members of the CCG had to withdraw from the decision-making, it would be extremely hard for the CCG to actually make a valid decision, as it could not be delegated to the non-GP members of the governing body or a similar arrangement. It is only in certain circumstances that we would expect individuals with a conflict not to withdraw absolutely, but we have to keep this option open in legislation.

For the same reasons, I cannot support the proposals of the noble Lord, Lord Hunt, and the noble Baroness, Lady Thornton, in Amendment 38B, which would either require a CCG not to contract with a provider in which any member of the CCG had an interest, or require them to secure an exemption from this rule from the NHS Commissioning Board. The conflict and financial interests rules, which this amendment references, already require an individual to withdraw from any part of the decision-making process with a provider in which they have an interest. It is hard to see why it would be necessary also to prevent the CCG from contracting with such a provider or undergo a cumbersome—I have to say cumbersome—exemption process. That approach would make the board have to scrutinise individual procurements and generally police the transactional behaviour of CCGs. It would not allow for alternative local arrangements for quality-assuring the openness and transparency of a CCG’s approach. It should not have to be the board only that can ensure the probity of the commissioning decision. As I have suggested, the health and well-being board might provide a suitable external view, as might another CCG.

[Lord Hunt of Kings Heath]

I am grateful to the noble Earl for giving way so freely. I understand what he is saying about the bureaucratic process. However, will he not accept that the reason for that is that the corporate governance processes around the clinical commissioning group are so weak? For instance, why is there not to be a majority of independently appointed non-execs, as there would be on any other public board?

[Earl Howe]

I will come to that point in a moment. I do not agree with the noble Lord that the governance arrangements are weak. As I have said, one of the things that the board will have to do when authorising CCGs is to assure itself that there are fit and proper governance procedures in place.

I turn to the question of sanctions, which has been raised by a number of noble Lords. It is essential that patients and clinicians remain confident that members of clinical commissioning groups will always put their duty to patients before any personal financial interest. It is important that CCGs take all possible steps to avoid conflicts of interest. We foresee that the guidance that Amendment 79A requires the board to produce would set out the need for CCGs to make clear in their conflict of interest policy that any member of a CCG found to have failed to declare an interest may face a number of possible sanctions and individuals may also be referred to their professional body, which is a serious matter. The noble Lord, Lord Walton, was quite right in all that he said. I am very drawn to the provision of Amendment 79A, and I will come on to that more fully in a moment.

--- Later in debate ---

[Lord Hunt of Kings Heath]

My Lords, I think that that is a very disappointing response. The noble Earl, Lord Howe, said that clinical commissioning groups will balance autonomy with accountability, and he acknowledged that they will be guardians of billions of pounds of taxpayer’s money. He went on to say that there were three safeguards: the constitution, transparency and the governing bodies. However, he still fails to respond to the fundamental gap, which is the lack of proper corporate governance around clinical commissioning groups. Looking at other public sector bodies—NHS trusts, for instance; not foundation trusts, but NHS trusts—how would we feel if the Government came forward with proposals stating that the board of an NHS trust would consist of executive directors and one or two lay members? It is just possible—but it is not certain—that one of those lay members will be the chairman of the trust, or they could, indeed, be the chief executive. That, in essence, is what the Government are proposing for the governance of clinical commissioning groups. A group of GPs will sit round the table. They will have a couple of lay members who presumably will be appointed by the clinical commissioning group, because the Government consistently fail to say whether there will be an independent appointments process. The noble Earl never responds to me on this point. They will be deciding how billions of pounds should be spent. The noble Earl refuses to acknowledge that these GPs are business people who run businesses which depend mainly on contracts—

[Earl Howe]

My Lords, I realise that I did not answer the noble Lord and I apologise to him. It may be helpful for him to know that we intend to work with patient and professional groups and with emerging clinical commissioning groups to determine the best arrangements for appointing members of governing bodies. We will be issuing regulations in due course setting out in more detail the requirements for appointing clinical—that is to say, non-GP—members to the governing body.

The report that we had from the NHS Future Forum stated that it would be unhelpful for clinical commissioning groups’ governing bodies to be representative of every group under the sun. We agreed with that. Requiring a bigger group of professionals on the governing body itself, or expanding it in any way at all, would not really mean that a broader range of interests are involved in designing patient services. It would just lead to governing bodies that are too large and slow to do their job well. However, we think that it is important for clinical commissioning groups to be led clinically. That is the point.

[Lord Hunt of Kings Heath]

My Lords, I am grateful to the noble Earl. However, that ultimately means that a majority of the people on the board of a clinical commissioning group will potentially be able to take advantage of the commissioning decisions of that group. That is why the corporate governance is so concerning. I accept that my amendment might be regarded as rather lengthy. However, I am pushing this forward because I am trying to replace the lack of effective corporate governance.

The noble Earl says that sanctions will be contained in guidance, but I do not think that that is sufficient. The potential for conflicts of interest are so great and the amount of public money involved so considerable that we should have in the Bill a clear commitment to sanctions. I do not agree with the noble Earl that this is something that can be left to professional bodies. My noble friend Lord Warner was absolutely right to mention that case. It shows some of the risks of what essentially was, in that person’s case, a managerial issue being pursued by a regulatory body. I do not think that that is the right way of dealing with GPs who, it was alleged, had pursued actions in breach of whatever guidance was issued.

[Earl Howe]

The noble Lord should not forget what I said about Monitor’s powers to look at improper conduct at the CCG level.

[Lord Hunt of Kings Heath]

My Lords, I am sure that Monitor will play an extremely useful role, but surely it would be much better to give further and clear guarantees that these matters will be dealt with effectively. I believe that we need more provision in the Bill specifically on sanctions. I should like to test the opinion of the House.

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[Lord Hunt of Kings Heath]

My Lords, I would like to echo my noble friend Lord Rea and noble Lords from the Cross Benches on the importance of this group of amendments. At its best, primary care can be brilliant, but at its worst it can be absolutely appalling. The variation in primary care is probably wider than in any other part of the National Health Service. As the changes take place we can see that this may cause many problems in the future.

We are all agreed about the need for an integrated approach and for a smooth patient pathway. Clearly, primary care potentially has a very important role to play. However, it needs to step up to the plate. If acute hospitals are to reduce the scale of their operations, more will be expected of primary care. Yet acute hospitals are open every hour of the day: primary care is not. Indeed, there are often very big issues about how primary care can be accessed out of working hours. The out of hours services are not always as effective as they might be, and there are some practices where patients know that it is very difficult to get attention unless they turn up at the convenience of the doctor, and so they then end up at the accident and emergency department. As I read where the NHS is going, this is no longer going to be acceptable. If money is being taken away from acute care and more money is being spent on primary care, which must be the logical outcome of clinical commissioning groups, unless those clinical commissioning groups can ensure that GPs do what is necessary to ensure that primary care takes up the responsibility, we are going to end in great difficulty, where acute care services will continue to be demanded by patients and money is being spent on primary care but it is not doing the necessary job. Therefore issues around the monitoring and performance management of primary care become very important indeed.

The Government have decided not to place the contracts of GPs within clinical commissioning groups. I understand that because clearly there is another potential conflict of interest. They are to be held at the local offices of the national Commissioning Board. However, there are real questions to be asked about how bureaucrats, as the Government seek to call them—I like to think of them as managers—are going to handle those contracts. What will happen within a particular clinical commissioning group if there is a group of GPs who simply will not do what is required of them to make a contract work with a local hospital? For instance, there may be a risk-share arrangement with a local hospital, where essentially agreement is made on the contract price, but part of it is very much about demand management, where there is a risk share between the clinical commissioning group and the acute trust. That will depend on all the GPs within a clinical commissioning group doing what is necessary, playing their part and contributing to demand management measures. Frankly, there are a lot of GPs who will not have anything to do with that. We know that at the moment. It is happening everywhere, up and down the country, with GPs who do not give a damn about anything to do with demand management. What will happen? Who will be able to intervene in those circumstances? Clinical commissioning groups do not have many levers when it comes to poor performance among general practitioners. I suspect that the national Commissioning Board will not have the expertise either. That is why this group of amendments is so important. We all know that primary care can make a huge contribution to a good NHS in the future, but we have to admit that, of all parts of the NHS, we can probably also find the poorest quality of service as well. That is why we are looking for reassurance from the noble Earl that this new system will be able to deal with those poor performers.

[Earl Howe]

My Lords, I am grateful to the noble Lords, Lord Kakkar and Lord Patel, for their contributions to this debate and, indeed, to other noble Lords who have spoken. We have heard some very powerful and persuasive arguments. I have listened very carefully to them.

Amendments 43A and 43B highlight the concerns that I expect all of us in this Chamber share in relation to the need to ensure high-quality primary care for all patients. The noble Lord, Lord Hunt, made some very telling points in that regard. Of course, there can be no doubt that good primary care contributes to good healthcare outcomes overall. I fully agree that the NHS Commissioning Board should be held to account properly for its performance in commissioning primary care. I do not think, however, that the right way to achieve that is to prescribe that this must be part of the mandate. Our aim is that the mandate should have at its heart the NHS outcomes framework, which covers the range of care that the NHS provides. I make the simple point that good primary care will be essential to improvement against the NHS outcomes framework.

More widely, the department will be keeping under review the performance of the board and the way that it carries out its functions, including its direct commissioning. What matters here are the accountability mechanisms and how those in the system are monitored and held to account. Just as the board will have a commissioning outcomes framework to hold CCGs to account for the quality of their commissioning, it will be important to have robust and transparent information to assess the quality of what the board commissions itself.

We come back to what the Bill already says: it places duties of quality on the Secretary of State, on the board and on CCGs, requiring each of them to exercise functions with a view to securing continuous improvement in the quality of services provided to patients. The Bill also sets out robust arrangements for holding those bodies to account for delivering quality improvement. As noble Lords will be aware, the Bill already requires the board to submit a business plan setting out how it proposes to exercise its functions, and a report setting how it has exercised its functions, to the Secretary of State on an annual basis. In turn, CCGs must also submit their commissioning plans and annual reports to the board. Both the board, in reporting to the Secretary of State, and CCGs, in reporting to the board, will be expected to demonstrate how they have fulfilled their quality improvement duty, including in relation to primary care. Consequently we expect, for example, that both the board and CCGs will wish to monitor the standard of care and services provided by all primary medical services providers in fulfilling their duties.

It is possible that we will need a dedicated objective relating to primary care in the mandate—I am not ruling that out. It would be better, though, not to prescribe that in primary legislation. What matters is that there are clear and effective accountability arrangements, and the Bill as it stands provides flexibility to ensure just that.

The noble Lords, Lord Kakkar and Lord Rea, asked about the QOF. I agree with the noble Baroness, Lady Finlay, that the QOF is a separate issue, but I can say that the whole of the QOF is kept under review in consultation with the profession to ensure that it reflects the best available evidence and supports continuous improvement in the quality of care for patients. Over the coming months we will continue to discuss with the profession and its representatives how to focus the QOF on securing better healthcare outcomes and what that means for existing GP contractual arrangements.

I turn to the final amendment in this group, Amendment 95A. The Bill already ensures that the board has the information that it needs to demonstrate how it has fulfilled its duties. CCGs are required to provide information to the board in the form of the annual commissioning plan and annual report. In addition, the board and CCGs are under a duty to co-operate. In the normal course of business we expect this to involve the sharing of information as necessary but, in the event that a CCG might have failed, be failing or fail to discharge any of its functions, the board’s powers enable it to require any information or documents that it considers necessary from CCGs.

The noble Lord, Lord Hunt, posited the situation that there might be reluctant GPs who did not fulfil their part of the bargain, whatever that was, with the acute sector. There needs to be a way of investigating allegations that actions by GPs in their practices are adversely affecting a clinical commissioning group. Where a general practice is operating in such a way that it is a barrier to a clinical commissioning group meeting its functions, it will be for the commissioning group to work with the members of that general practice to support it to improve and contribute to the work of the commissioning group as a whole. Ultimately, if it is unable to do so, a clinical commissioning group may need to refer such cases to the NHS Commissioning Board, along with the evidence of the failure of the practice and details of any support that the commissioning group has provided to the practice to help it overcome any perceived difficulties.

Among other matters, the board may wish to consider if the practice’s actions are in breach of the practice’s primary medical services contract. Separately, the NHS Commissioning Board will have the power to investigate the suitability of individual GPs under the medical performers list provisions. As the noble Lord will know, this power is currently with primary care trusts.

In a nutshell, therefore, the Bill already imposes a duty on CCGs in respect of the mandate and allows the board to ensure that CCGs fulfil it. Further specific requirements in relation to providing information to the board are therefore unnecessary, so I hope that what I have said reassures the noble Lords, Lord Kakkar and Lord Patel, sufficiently to enable them to withdraw their amendment.

Health and Social Care Bill

Debate between Earl Howe and Lord Hunt of Kings Heath

Monday 27th February 2012 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, this is a useful debate and I hope that the noble Earl, Lord Howe, will be able to describe how he thinks specialist services and services for less common conditions will be protected in the new arrangements.

We know that there have been problems with the current commissioning arrangements by primary care trusts, the issue being that if they are dealing with services that cover only a small group of patients they do not have the experience or expertise to commission services effectively. The possibility exists that clinical commissioning groups that cover even smaller areas than PCTs will have the same challenges to face. We know that the NHS Commissioning Board will be commissioning some services at a national level. It would be helpful if the noble Earl, Lord Howe, could explain the distinction between those services that will be deemed to be of national importance but there is clearly concern that CCGs will not be able to have the critical mass to commission locally, and so they fall to be commissioned nationally. Where will the line be drawn? There is a powerful case for highly specialist services and those that are known as services for less common conditions to be given some protection in the system.

Amendment 64ZA is rather different but it comes back to the point raised by my noble friend Lord Walton in our debates in Committee on the need for strategic direction on reconfiguration issues. I am sure that he is right, as indeed was the noble Baroness, Lady Finlay, to point out that decisions on emergency care and specialist networks are very difficult to make. We know that we probably have too many hospitals providing emergency care at the moment, but we also know that it has often been very difficult to reach local consensus. I know that the thrust of the Government’s legislation is for local determination but that is asking a lot. If you take a region you are asking for a huge number of clinical commissioning groups to come together and sign up to some kind of reconfiguration process which would lead to a more integrated approach in relation to emergency care. Without strategic health authorities and unless the local outposts of the national Commissioning Board are actually going to take an assertive role, there is a risk that we will not have the mechanism for making the kind of hard decisions that need to be made.

I am convinced that some strong, national leadership is required if you are to get movement on better emergency care and an acceptance that the current arrangements in some parts of the country simply will not do. It is interesting to see the debate in Mid Staffordshire following the problems in that trust and the recent publication of letters sent by the local clinical commissioning groups about the future of that hospital, causing a furore in the area. It shows some of the problems of an individual clinical commissioning group seeking to come to a view about the kind of reconfiguration of acute services. Of course, CCGs will need an input, but some external view and leadership would be very helpful to enable us to get better provision of services. As my noble friend Lord Walton says, one of the best examples of this is in relation to stroke services. The experience in London has shown, without any doubt, that pooling stroke services together in a limited number of acute centres has led to hugely enhanced outcomes. As a result of the London experience the strategic health authorities are requiring the same to be done throughout the rest of the country. The question I put to the noble Earl, Lord Howe, is: under the arrangements in the Bill, how can we ensure that that kind of national leadership will continue?

[Earl Howe]

My Lords, this has been another excellent debate. It is worth saying at the outset that I fully appreciate the importance of the board and CCGs paying due attention to the way they commission specialised services and services for less common conditions and indeed emergency services. I fully endorse the importance of services being delivered in an integrated way when that is in the best interests of patients. I listened very carefully to the case put forward by the noble Baroness, Lady Finlay, on Amendment 50A. She made a very persuasive case about the importance of only ever commissioning specialised services with a close acquaintance with the relevant guidance and evidence base. I could not agree more with her on that. Commissioning of specialised services requires specialist skills and this is precisely why we feel that the Commissioning Board is the right body to commission such services. The board will be able to draw on a great deal of expertise in doing so. I hope the noble Baroness recognises our shared commitment in this area. Very shortly we will be publishing a consultation document as a UK response to the EC recommendation on rare diseases. We hope to be able to do that within a few days. The consultation document and responses will form the basis of the UK’s plan. She will see in it that a great deal of thinking is going into how these services should be commissioned.

The noble Lord, Lord Walton, spoke with his customary authority about Duchenne muscular dystrophy. He may like to know that all regional specialised commissioning groups have undertaken reviews of neuromuscular services in their localities. Improvements to services are already being put in place. For example the NHS has invested in care co-ordinator posts which can reduce emergency admissions and readmissions. The national specialised commissioning group has also included neuromuscular disease as a priority in its 2012 work plans and it has been looking at emergency admissions as part of that work.

The noble Lord, Lord Winston, referred to rarer conditions, including those of genetic origins, as did the noble Baroness, Lady Masham, in relation to neuroblastoma. I identified closely with all that they said. Many of these conditions are extremely rare, fortunately. It is not possible for all health professionals and carers to have detailed knowledge of conditions which they will see only very rarely in their working life. However, already we are addressing this through such initiatives as NHS Choices. It is one of a number of initiatives that we have developed to provide comprehensive, clinically accredited information about health and health services. Comprehensive information to support clinical decision-making is also included on NHS Evidence, the new web-based portal hosted by the National Institute for Health and Clinical Excellence. It provides access to a range of information, including primary research literature, practical implementation tools and guidelines. I am not suggesting that it is the total answer to this conundrum but it is certainly a demonstration of the direction of travel. We want to see much more information available to commissioners at a local level.

I think there has been consensus in this debate as to the need to think long and hard about how and at what level particular services should be commissioned. I completely agree with that. It is not always clear cut and it does require careful thought. The Bill says that certain services will be for the board alone to commission. We expect these to include certain highly specialised services—I direct that assurance particularly to the noble Lord, Lord Walton. Other services will be by and large for CCGs to commission, but in collaboration if need be with other CCGs and supported by the board.

I appreciate the keenness of the noble Baroness, Lady Finlay, to ensure that the board’s commissioning of highly specialised services pays due regard to NICE guidance. However, we would prefer not to impose a blanket requirement on the board to exercise its functions in respect of specialised services, or any of its commissioning functions, in accordance with NICE guidance. NICE guidance will undoubtedly be relevant to specialised commissioning—that is obvious—but the amendment could well have the effect of requiring the board to have regard to it at the expense of other authoritative sources of advice. I have already referred to a couple. In exercising its duty to obtain expert advice, we would expect the board to draw on as wide a range of professional expertise as possible and not be constrained into prioritising that of NICE, valuable though that would be.

It is important for us to remember that CCGs must be competent to commission all services to meet the reasonable needs of all those for whom they are responsible. This includes services to meet the needs of patients with “less common” conditions, as Amendment 63A points out. CCGs will need to be well supported in developing as commissioners and the Bill provides a framework for just that. It provides for collaborative working, in Section 14Z1, between CCGs. The NHS Commissioning Board must publish guidance on commissioning, to which the CCG must have regard, which could also cover issues relating to commissioning for less common conditions.

The clinical senates and networks will be overseen by the board to ensure that CCGs can access specialist advice. Clinical commissioning, by giving responsibility for ensuring services meet the reasonable needs of patients to the very clinicians who deal with those patients daily and understand their needs, provides a far stronger basis for ensuring that commissioning caters to the needs of those with less common conditions than the current commissioning arrangements. GPs will be able through their membership of the CCG to seek to ensure that commissioning takes account of the less common conditions, which might not be of great significance across an entire geography but which are of great concern at the level of the individual GP practice.

I can assure the noble Baroness that the NHS Commissioning Board will be required to have a robust authorisation process to ensure that CCGs have made appropriate arrangements to discharge their functions competently, including consideration of the extent to which CCGs have collaborative arrangements for commissioning with other CCGs or local authorities as well as any appropriate commissioning support.

However, while I completely recognise the importance of commissioning services for this particular group of patients, I am afraid that I would prefer not to single out a requirement for authorisation to look at specific groups of conditions in the Bill. It would not make the NHS Commissioning Board’s process any more effective, but it might lead emerging CCGs to add undue weight to this if it was the only part of the services that CCGs will be responsible for commissioning that was specified in relation to the authorisation process.

I hope that it is recognised by your Lordships that in opposing Amendment 64ZA I do not wish to suggest that the concerns of that amendment, to ensure the quality of urgent and emergency care and the integration of its different elements to the benefit of patients, are unimportant—indeed, quite the opposite. The framework in the Bill for ensuring the competence of commissioners, securing continuous improvement in the quality of care and ensuring the promotion of integration applies to emergency and urgent care services every bit as much to as other areas of care. Commissioners will use the expert advice from senates and networks, and from other sources, to determine the best approach to commissioning integrated approaches to the delivery of urgent and emergency care, and within the context of a far-reaching national programme. As the House will know, we already recognise the importance of integration across the health service, particularly in urgent and emergency care. The introduction of NHS 111 will act as a driver for the redesign of local urgent and emergency care systems to create a more integrated system that is easier for patients to access and understand.

Health and Social Care Bill

Debate between Earl Howe and Lord Hunt of Kings Heath

Monday 13th February 2012 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, I support Amendments 13 and 16. This debate follows on from our useful discussions on education and training last week. Once again, we see a tension between the need for a national strategy on education and training and the need for local ownership. Amendment 16 in the name of the noble Lord, Lord Patel, gives us that, and I hope that the noble Earl will be sympathetic to it.

We all know about the problems that have arisen in the past where there has not been sufficient national leadership. Decisions about training places have been left to local bodies and the budget has been squeezed, the result being that a few years later there have not been enough people coming into the National Health Service, which has had a very damaging impact. I think there is unanimity in your Lordships' House that there has to be a very strong national strategy.

I very much take the point made by the noble Baroness, Lady Emerton, that there must be co-ordination in workforce planning between Health Education England, as the national strategic body, and commissioners, but I would add providers because it is they who will employ the staff who have been trained. It is essential to get our workforce planning and our commissioning at a national level into sync. It is more an art than a science, and I suppose that it has never been achieved to 100 per cent satisfaction. None the less, that is what we should strive to do. Speaking as a foundation trust chair, I say to noble Lords who have discussed the national element of this that it is vital that NHS trusts and foundation trusts play a full part in the discussions. At the local level, the local education boards have a crucial role to play.

I very much support the argument of the noble Lords, Lord Patel and Lord Kakkar, on independent chairs and transparency. That is important, but it is also important that the education providers feel sufficient challenge from local NHS bodies when it comes to the quality of their education and training. I am sure that we will come later to the issue of nurse education and training. There are some real issues about the quality of nurse education and training in our universities. It is important that the local education bodies and employers provide sufficient challenge to the work of the universities. I hope that in accepting the need for an independent chair, noble Lords will agree that there should be no cosy relationship between commissioners, who ultimately have no real responsibility for the employment of staff, and universities. Unfortunately, the current system has led to too cosy a relationship. I look to the noble Earl, Lord Howe, for recognition that NHS trusts and foundations have to be very much around the table.

It would be useful if the noble Earl replied to the noble Lord, Lord Kakkar, and gave some sense about where postgraduate deans are to be placed within the new structure. I also hope that postgraduate deans will be able to recognise that in the new circumstances they can have a huge impact on NHS trusts and foundation trusts when it comes to their visitations. I also hope that clinical commissioning groups will recognise that if they are going to start shifting resources away from NHS bodies, that might have an impact on their capacity to provide education and training in the future.

That brings me to the point raised by the noble Lord, Lord Kakkar, about whether private providers will have contractual obligations with regard to education and training. It is important that there is a level playing field. If the Government insist on more contracts being placed with private sector providers in the future, there will have to be obligations on the part of providers. It would be grossly unfair and in the end it would not lead to the establishment of a national coherent system if private sector providers did not pay their fair share.

On governance, again, the noble Lords, Lord Patel and Lord Kakkar, made some substantive points about local education and training boards. It would also be helpful if the noble Earl responded to the point raised about academic science networks. We all agree that we must make the most of the fantastic basic education and science capacity in this country, and the links with the provision of patient care and the pharmaceutical industry. They have great potential. It would be useful to know how the noble Earl thinks they will fit into the new structure and particularly how they will link to the postgraduate deans and the academic science network. Overall, I am sure that the noble Earl will be able to come forward with a constructive response and I certainly hope that he is prepared to accept Amendments 13 and 16.

[Earl Howe]

My Lords, as I set out in our previous discussion on education and training, the Government are putting in place a strong national system for education and training, with a strengthened focus on quality outcomes.

We have introduced a clear duty on the Secretary of State to ensure that such a system is in place, and are now making good progress with establishing Health Education England and the local education and training boards. We are acutely aware of the importance of a safe transition to the new system and are proceeding with care and at a sensible pace to ensure the new system is fully up and running by April 2013.

As noble Lords will be aware, we have confirmed that we will set up Health Education England as a Special Health Authority in June 2012, so that it can take on some operational functions from October 2012 and be fully operational from April 2013, when it will take on the strategic health authority education and training functions. I repeat those assurances today. It will have an independently appointed chair and non-executive appointments. For this reason, we do not think that that part of Amendment 16, tabled by the noble Lord, Lord Patel, and others, which would place a duty on the Secretary of State to set up Health Education England as a new special health authority, is necessary.

I hope that the undertaking will be sufficient by way of reassurance to noble Lords on that score. Nevertheless, in addressing the more detailed issues set out in that amendment, it would be helpful to elaborate a little on what I was able to tell the House last week.

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[Lord Hunt of Kings Heath]

On that welcome news, I assume that would mean that it would also not involve having a higher education chair and that, in fact, to have an independent chair means that they should be independent of commissioning, providing and university providing.

[Earl Howe]

That is a logical inference but, if I can get further and better particulars for the noble Lord, I would be happy to do so. Each local board will set up local advisory arrangements to reflect the breadth of local interest and ensure that its decisions are informed by clinicians, clinical networks and education providers. My noble friend Lord Willis and the noble Lord, Lord Winston, asked about “any qualified provider” and whether non-NHS providers will have to play their part. Yes, indeed; all providers of NHS services will be expected to participate in education and training activities, and Health Education England will invest only in organisations which do that. The answer to the question from the noble Lord, Lord Hunt, is indeed yes. He is correct.

By April 2012, we expect the strategic health authorities to establish sub-committees that will develop the emerging local education and training boards. The role of strategic health authorities to lead on education and training has been extended until April next year. When Health Education England is fully functional as a special health authority from April 2013, it will then, as I have explained, take on the responsibility for hosting the local boards. There are plans for a safe and effective transition to the new system, which will ensure that the strategic health authority functions for education, training and workforce planning, including the work of the postgraduate deaneries, are continued. LETBs will take on these education and training functions and it is expected that many SHA and deanery staff will migrate to the local boards to ensure continuity and essential skills and knowledge for the future, subject to affordability.

As I emphasised in our earlier debate, postgraduate deans will continue to be a critical part of the medical training arrangements. We expect LETBs to be able to demonstrate that their postgraduate deans will be able to act independently so as to be able, among other things, to provide challenge where necessary—a point raised, quite rightly, by the noble Lord, Lord Hunt. There will be systems and indicators in place to hold local education providers to account for the quality of education delivered by individual providers. Postgraduate deans will have all the powers that they have now to respond to any concerns about the quality of training, and to take action where required to improve standards and to assure the professional regulators, and indeed Health Education England, that poor performance is being tackled. In the new system, they will have support from the LETBs themselves and, if necessary, from Health Education England to challenge poor quality and behaviours.

Our proposed funding mechanisms reinforce that focus on quality by putting responsibility for education and training decisions in the right place, to be transparent so that funding follows the student on the basis of quality and value for money. The MPET budget will, as now, be predominantly provided to support the next generation of clinical and professional staff. Local boards will have some flexibility to invest in innovative approaches to continuing professional development and the education and training of the wider workforce. Health Education England will be responsible for developing a more transparent allocations policy for distributing education and training funding to local boards.

Now that the policy framework has been worked out, we need to push on and get the foundations of the new education and training system in place. We are doing that by establishing Health Education England and supporting the development of the emerging LETBs. It remains our intention to consolidate the functions of Health Education England by establishing it in primary legislation as a non-departmental public body. That will enable it to operate on a permanent statutory basis at arm’s length from the Department of Health while remaining accountable to the Secretary of State.

We want to do all this on the basis of consensus. We want to ensure that people with an interest have the opportunity to comment on and feed into the design of the new system, ahead of bringing forward the primary legislation in a second Bill. With that in mind, we intend to publish draft clauses on education and training for pre-legislative scrutiny in the second Session to ensure that the legislation is fit for purpose and to give Parliament an additional opportunity to scrutinise the proposals. I add that our vision for an education and training system that gives greater responsibility to employers and health professionals has been warmly welcomed.

As noble Lords will see, we have tabled amendments to strengthen links with the wider system. We have already discussed government Amendments 61 and 104, which would place duties on the board and on CCGs to promote education and training. These amendments were accepted in a previous debate. They are designed to ensure that commissioners of NHS services consider the planning, commissioning and delivery of education and training when carrying out their functions. The noble Lords, Lord Patel and Lord Warner, have tabled the very similar Amendments 62 and 106, and I hope that they will be reassured by the amendments that we have tabled and will feel able to withdraw them.

The noble Lord, Lord Patel, has tabled Amendment 13 on the role of providers. I say straight away that I am sympathetic to his intentions and I have given the amendment significant thought since it was first put down. In the beginning I thought that an amendment might not be needed, given that, in order to be established, LETBs will need to demonstrate that they meet robust authorisation criteria set by Health Education England, including demonstrating that all providers of NHS-funded services are fairly and properly represented in the LETB’s business.

At this point I shall answer the question posed by my noble friend Lord Mawhinney about the estimated costs of the amendment. I understand that Amendment 13 would be delivered by requiring commissioners to place a duty of this kind in their commissioning contracts. We do not anticipate any additional costs as a result of the amendment. Employers have told us and the Future Forum that they are keen to participate and play a leading role in the planning and commissioning of education and training through the LETBs, and of course we plan to legislate further for education and training, which will provide the opportunity to consider any duties that might be required of providers.

However, the amendment is satisfactorily drafted. In the light of what the noble Lord and others have said today in support of it, and in recognition of the strength of feeling on the issue, I can tell the noble Lord that I am willing to accept his proposal and support the amendment.

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[Earl Howe]

My Lords, during the passage of the Bill we have had much discussion about the importance of freeing front-line professionals from needless bureaucracy and ensuring that they are able to focus on patient care—not least when we considered the duties of autonomy. This is one area where the House is in agreement. Certainly one aim of the Bill is to reduce bureaucracy and micromanagement, prevent politicians in Whitehall second-guessing the decisions of doctors and nurses, and streamline the architecture of the NHS.

The noble Lord, Lord Hunt, indulged himself in one of his occasional rhetorical forays, which I enjoyed. However, the amendment is rich coming from him. Perhaps I should remind the House that the previous Government did to management costs what the noble Lord accused us of doing. Since 2002-03, the management costs of PCTs and SHAs have increased by more than £1 billion—a rise of more than 120 per cent. The Bill aims to get a grip on a problem that under the previous Government simply got out of control. The noble Lord will know that my department has confirmed an overall running-cost budget of £492 million. That represents a 50 per cent reduction in costs and staff compared to the current cost of functions that will transfer to the board. At board level, the work previously done by 8,000 people will be done in future by approximately 3,500 full-time equivalent people. That is a major reduction.

The amendment tabled by the noble Lord seeks, first, to introduce a new duty on the Secretary of State to prevent bureaucracy and, secondly, to minimise the layers of management tiers within the Commissioning Board. The noble Lord produced a confection of arguments to bolster his case that bureaucracy in the NHS is increasing rather than diminishing. I can tell the House that the opposite is true. In saying that, I should stress that I am not in any way denigrating NHS managers. I have never done that and I will never do it.

Setting aside the noble Lord’s knockabout routine and getting back to earth, I agree with the principle behind this amendment. Noble Lords will already be aware of the autonomy duties, which we have recently amended, in no small part due to the Constitution Committee. Those duties ensure that proper consideration is given to whether any requirements or objectives set by the board or the Secretary of State will place unnecessary burdens on the health service or distract from good quality patient care. In addition, the Bill places duties on the NHS Commissioning Board, CCGs and other bodies to exercise their functions effectively, efficiently and economically. That is in new Section 13D of the National Health Service Act 2006 for the board and new Section 14P for CCGs. Together, I believe that these provisions ensure that the duty to maximise efficiency and minimise bureaucracy is embedded throughout the system. We do not need anything further.

The noble Lord, Lord Warner, asked me a question that I have been asked before in these debates. It concerned why we did not simply reform the PCT model. We chose not to try to reform the PCT model because it would not have delivered the empowered clinical commissioners we want to see and, indeed, the Opposition want to see. This Government supported the principle of practice-based commissioning, but there is one thing to say about practice-based commissioning: it was not working. It did not live up to the ambitions that people had for it. Central to this was clinical commissioners’ lack of autonomy. Only by conferring functions directly on clinical commissioners, as this Bill does, can that autonomy and responsibility be properly established.

Subsection (a) of the noble Lord’s amendment refers rather bafflingly, as my noble friend Lord Fowler pointed out, to a minimum level of management tiers. I am not quite sure how that would be interpreted by the courts, but I believe that the noble Lord is drawing attention to the published proposals for the board’s organisational structure. In line with the vision we set out in the White Paper, the proposals put forward make clear that the board will be a single nationwide organisation that will work across the country to improve quality and outcomes. However, there are some who have focused on the board’s proposal for a maximum of five layers of management, claiming that this represents some sort of increase rather than a reduction in bureaucracy. That is not the case. The structure proposed by the board is based on sound and well recognised principles of effective organisational structure. The proposed organisational structure for the board is designed above all to support it in its overarching role to improve health outcomes. What surely matters is the board’s efficiency and effectiveness. In fact, as I have already said, the board will operate with a 50 per cent reduction in running costs in comparison with the current system. I am not attracted to the part of the amendment that requires the Secretary of State to influence the number of management tiers in the NHS Commissioning Board. Apart from being inappropriate, it is unnecessary. The Bill already makes clear that the Secretary of State sets the resource limit for the board and new Section 223E of the 2006 Act allows him to impose a cap on administrative spend. Together these provisions ensure that financial limits are placed on the board, which will necessarily influence the way in which it is structured. However, I believe it would be inappropriate for the Secretary of State to go any further than this in influencing the organisational design of the board. The board is the body best placed to determine how to organise itself in the most effective and efficient way. It is therefore our intention to allow it as much autonomy as possible in determining its own membership, structures and procedures.

All our proposals for modernising the NHS, including the provisions in the Bill, are designed to minimise bureaucracy, micromanagement and unnecessary waste to enable the whole system to focus on what really matters, which is patient outcomes. For example, the outcomes framework will directly link quality improvement and outcomes with commissioning; clinically-led commissioning groups will be judged, through the commissioning outcomes framework, on whether they improve patient outcomes and experience rather than process targets; the NHS Commissioning Board will hold GP commissioners to account for their performance against NICE indicators; and CCGs will hold providers to account for driving up quality improvement using contracts and incentives. It is quality and outcomes that matter and with the safeguards already in place to limit administrative spend throughout the system, I believe that the noble Lord’s amendment is unnecessary. I hope that he will feel able to withdraw it.

[Lord Hunt of Kings Heath]

I must say that I am really rather disappointed by the noble Earl’s response to my constructive amendment. He does not seem to have answered the charge that is being made. First, I think we are all agreed that when we talk about bureaucracy we are not talking about the fine managers that the NHS has to whom we owe so much. This is an argument about the structure, the layers and the cost of a market that the Government wish to bring in to the health service. It is not about managers in the health service.

The fact is that the Secretary of State and his colleagues, including the noble Earl, have continued to intervene in the health service on a daily basis. They have yet to explain how, if this Bill eventually receives Royal Assent, at that point, magically, Ministers are going to step back and simply let this new system continue. I do not believe a word of it. What I believe will happen is that on the one hand you will have this complex structure where the mantra is that it is all arm’s length, it is all down to the clinical commissioning groups, the market and the gentle guidance of Sir David Nicholson and his colleagues at the national Commissioning Board, and Ministers can simply step back. It will not happen. What we will have is the system that the Bill enacts, if it is enacted, and Ministers continuing to micromanage. It is inevitable that Secretaries of State are accountable to Parliament, and they will be required by the very process of parliamentary democracy to continue to intervene and to take a close interest in what is happening. That is the charge I put to the Government as to why I believe that this is going to be a very complex situation indeed.

It is always good to debate with the noble Lord, Lord Fowler. Twenty years ago, I enjoyed debating with him issues mainly to do with the funding of the National Health Service. I think the National Association of Health Authorities and Trusts was a very modest organisation. It was very lean and certainly not subject to the strictures of the noble Lord who suggested that it was part of the bloated bureaucracy that I think he was implicating me in. He does not like the idea of declaratory law. That is all very well, but what is Clause 4 but a declaratory statement: “The Secretary of State’s duty as to promoting autonomy”? Indeed, the noble Earl, Lord Howe, referred to it in his winding-up speech. I have to say to him that if the duty of autonomy were currently on the statute book, I do not think that he could have brought this legislation in under it because it states that,

“unnecessary burdens are not imposed on any such person”.

This whole edifice is going to impose enormous burdens on many such people within the National Health Service.

The noble Lord, Lord Fowler, referred to the Griffiths report—at 24 pages, it was a remarkable letter which had a long-term impact on the health service. He will recall that we were very strong supporters of the introduction of general management. I am very concerned about the structures that are now being brought in because they may well inhibit the kind of leadership and clinical engagement that we saw as a result of the Roy Griffiths management inquiry.

I have to say to my noble friend Lord Harris that the description of Sir David Nicholson as the chief inquisitor was a little unfair.

--- Later in debate ---

[Lord Hunt of Kings Heath]

My Lords, Amendment 19 comes back to a theme which takes us to the overriding responsibility of the Secretary of State for a comprehensive health service and to the relationship between the Secretary of State and the national Commissioning Board. I do not want to go over the ground that we went over in the previous debate but I want to make just two or three points.

The Minister will recall that in Committee we debated the whole question of the concurrent power being given to the national Commissioning Board in relation to the Secretary of State’s responsibilities in Clause 1. Given Clause 1 and our really important debates on it, and the welcome agreement on the first day on Report regarding the way in which an amendment was accepted to make clear that the Secretary of State is accountable to Parliament for NHS provision, I remain concerned as to whether it is right that a body such as the national Commissioning Board should carry such responsibilities as well—that it should have a concurrent responsibility and duty.

Surely, ultimately, the national Commissioning Board is a secondary body as compared to the Secretary of State. The very fact that there is a mandate in which the responsibilities and duties of that board are laid down on a regular basis by the Secretary of State reinforces the proper relationship between an unaccountable body, such as the national Commissioning Board, and an accountable person, such as the Secretary of State. I should be grateful if the Minister would give further reflection as to whether a concurrent power really is the appropriate way in which that relationship should be set out.

Of course, that is associated with the power of intervention by the Secretary of State. It seems to me that in the end, since the Secretary of State is accountable to Parliament for provision and for ensuring a comprehensive service, if he feels that the national Commissioning Board is not doing the right thing or that there is a matter which requires the intervention of the Secretary of State, it is right that that intervention can be taken out without obstruction or legislation. In my view, that would lead to a confusion of role as between the Secretary of State and the national Commissioning Board.

When we discussed this issue in Committee, I asked the Minister what would happen if there was an issue. Let us take, for instance, some of the recent interventions by the Secretary of State. He has expressed concern about the way in which primary care trusts have manipulated waiting lists. Rightfully, in my view, he sought to intervene. How would you do that under the new arrangements if clinical commissioning groups or some individual clinical commissioning groups were not doing what the Secretary of State thought to be appropriate?

From our debate in Committee, I had the impression from the Minister that in those circumstances provision could be made in the mandate set for the board by the Secretary of State. I can see that every so often you can alter the mandate to deal with an issue like that. But sometimes he will need to intervene rapidly rather than have to wait for the process of a mandate to be set. I also suspect that there is a risk that the mandate could become very detailed and prescriptive—in other words, the micromanagement that the Minister is so keen not to see introduced. There will be issues that arise during the year which might not have been envisaged when the mandate was drawn up.

The noble Earl may well say that we will have the intervention powers set out in proposed new Section 13Z1 set out on page 24. My problem with this is that the wording constrains the intervention because it has to be based on a failure to discharge or a failure properly to discharge any of its functions, and the failure is significant. Of course, the intervention none the less is based on what the Secretary of State himself considers, and no doubt he would always be properly advised by his officials and, in extremis, the Government Law Officers. But I can envisage situations in which the NHS Commissioning Board actually rejects the Secretary of State’s view and where it would be deemed that the issue is not one that comes under the auspices that could lead to intervention under Section 13Z1. I think that there should be a clear right in the Bill for the Secretary of State to have a power of direction.

In the end the sole accountability of the national Commissioning Board has to be through the Secretary of State and thus to Parliament. The board is not elected; it is an appointed body. There has to be full accountability, and for me, one element of that accountability is that the Minister responsible to Parliament has the right to tell that body what to do. I feel very uncomfortable with a body that is floated off. Okay, we have the mandate, but in the end it is not an accountable body except through the relationship it has with the Secretary of State, so it is right that the Secretary of State should issue direction powers without being fettered as I believe he is in Section 13Z1.

I do not think I need to mention the other two amendments at great length. Amendment 23 merely tries to encourage the noble Earl to say that clinical commissioning groups have the function of safeguarding the comprehensive provision of NHS services. It is very important that within all the autonomy that the Secretary of State wishes to give the clinical commissioning groups, it is made clear that they must, none the less, sign up to the overriding responsibility of anyone involved in the NHS to ensure that comprehensive provision is safeguarded. Amendment 70 is really consequential on Amendment 19. I beg to move.

[Earl Howe]

My Lords, Amendments 19 and 70 seek to reintroduce the Secretary of State’s powers to direct the health service. I have listened with care to what the noble Lord has said, but I continue to believe that this would be a retrograde step on every count, not least that of transparency. Under the Bill as it stands, the Secretary of State will be able to set objectives and requirements both through the mandate and through “standing rules” regulations under Clause 19, but unlike directions, these would be subject to full scrutiny, and the Bill creates a clear expectation that they would be set only once a year in order to provide certainty for planning. Ministers would also have robust intervention powers in the event of significant failure, as the noble Lord mentioned.

The system we are creating is designed to be predictable, transparent and structured, and will provide stability for the health service. I think that this is a better approach than allowing the Secretary of State to direct the health service whenever he wants, which risks returning us to the unpredictability and opaqueness of the current system. The noble Lord described the Commissioning Board as “unaccountable”. I must scotch that myth. The Secretary of State will have wide-ranging powers over the Commissioning Board, most prominently through the mandate and the standing rules, which will enable the board to be held rigorously to account. In addition, the board will have to meet in public, produce a business plan and an annual report, both of which will have to be laid before Parliament. Further, I would remind the noble Lord of Clause 51, which covers the,

“duty to keep health service functions under review”.

The process of holding the board to account is not a once-a-year task. In turn, the Commissioning Board will hold CCGs to account for the quality outcomes they achieve and for financial performance—and, again, will have the power to intervene where there is evidence that CCGs are failing or likely to fail to fulfil their functions. If the Commissioning Board fails to hold CCGs to account, the Secretary of State could then direct the board to do so. If the board failed to comply with that instruction, the Secretary of State could either discharge the function himself or make arrangements for another body to do so on his behalf. So it is quite wrong to say that there are no levers available to the Secretary of State.

I turn now to Amendment 23, which emphasises the need for clinical commissioning groups to safeguard,

“the comprehensive provision of NHS services”.

Noble Lords will recall that the House has already agreed an amendment to Clause 12 which explicitly requires CCGs to act consistently with the discharge by the Secretary of State and the Board of their duties to promote the comprehensive health service, and with the objectives and requirements in the mandate.

I fully appreciate and support the intentions behind this amendment, and I hope that the discussion we have already had and the amendment we have already discussed to Clause 12 will offer the noble Lord a reassurance that the effect of this amendment is already covered in the Bill. In the light of what I have said, I hope that he will feel able to withdraw the amendment.

[Lord Hunt of Kings Heath]

My Lords, I am grateful to the noble Earl, Lord Howe, particularly for his remarks in relation to Amendment 23. Clearly we are not going to agree about this matter. I do wish that the late Lord Marsh could still be present because he would have enjoyed these debates. I think that he would have reminded us of the traditional relationship between the chairman of the board of a nationalised industry and the Minister responsible to Parliament. Although we have lost those nationalised industries, in one sense the Department of Health is now busily engaged in setting up the kind of structure that in many ways is akin to those industries. That is because the chairman and chief executive of the national Commissioning Board are, in essence, being handed a huge amount of power by the Secretary of State. They are to be given the budget, the mandate and the standing rules, and are to be told to get on with it. If we go back to our experience with the nationalised industries, of course it never worked because there was a continuous tension between the board of a nationalised industry and the Minister which arose from the fact that the Minister was accountable to Parliament for the running of the railways, iron and steel and the coal board.

That is exactly what we are constructing today. We have the myth that simply by having a mandate and standing rules, we can say to the national Commissioning Board, “Get on with it. I as a Minister will no longer intervene unless in extremis”, under the circumstances set out in Bill. Life is not like that. Parliament will continue to debate the health service, issues will arise and Ministers will make pronouncements. I do not believe for a minute that the 12 or so pronouncements we have heard from Ministers over the weeks that this Bill has been in your Lordships’ House will not be followed by similar pronouncements under the new structure. They will be forced to do so because Parliament will require it. That is the risk and why I believe it is such a complex system. On the one hand there is a structure which is based on an arm’s-length relationship, a market, with clinical commissioning based on a mandate, while on the other hand there is still the Secretary of State who will be fully held to account in Parliament. There will be enormous tension and great confusion within the National Health Service. For that reason, there is a strong argument for accepting that, in the end, the Minister is accountable and ought to have a power of direction. Saying that this can be done through a mandate and standing rules is not realistic, and no doubt, if the Bill is enacted, we will see this played out. I do not think anyone should be under the misapprehension about the fact that we are building into these arrangements a very unstable situation. But we have had a good debate, and I beg leave to withdraw the amendment.

Health and Social Care Bill

Debate between Earl Howe and Lord Hunt of Kings Heath

Monday 13th February 2012 Lords Chamber

[Earl Howe]

My Lords, I will attempt to answer the noble Baroness in a moment. She is right that the chief executive designate, Sir David Nicholson, was appointed before the establishment of the NHS Commissioning Board Authority. My right honourable friend felt that not only was it a sensible and good appointment, as we think very highly of Sir David—as most people do—but that it would provide continuity for the NHS. I hope that the noble Baroness accepts that it was a rational decision. As I outlined, Malcolm Grant, too, was the Secretary of State’s appointment, as was appropriate. I will probably have to come back to the noble Baroness on the non-executive directors because I am not aware of the precise timescale or mechanism for doing that, but I will enlighten her as soon as I possibly can.

The noble Lord, Lord Rea, asked me about the relationship between the board and Public Health England. Public Health England will be an executive agency carrying out functions of the Secretary of State with relation to public health. Those functions are conferred on the Secretary of State primarily through Clause 10. As regards the relationship between the two bodies, the simplest way of putting it is that they will work very closely together on public health issues. I have no doubt that there will be a number of ways in which Public Health England will commission public health services from the board in one or other of the aspects of its health protection role.

To get back to what I was saying before the intervention, the Official Opposition at one moment want the Secretary of State to be hands on and at another moment to be hands off, so perhaps I am entitled to feel a little confused about the direction that they are coming from here. The noble Lord, Lord Hunt, questioned the rationale for the Secretary of State appointing the chief executive. As I said in Committee, the requirement for the Secretary of State to consent to the appointment of the chief executive of the board is included for the very important reason that the chief executive of the board will be the accounting officer for the commissioning budget—more than £80 billion of public money—for which the Secretary of State is accountable to Parliament. It is entirely appropriate in our view that the Secretary of State should approve his or her appointment. It is quite usual for chief executives of non-departmental public bodies to be designated as the accounting officer by the department to which they are accountable.

I hope the noble Lord will agree on reflection that we have struck an appropriate balance between autonomy and accountability in the current provisions for appointments to the board and that he will be content to withdraw his amendment.

[Lord Hunt of Kings Heath]

My Lords, I am very grateful to the noble Earl, Lord Howe. He thinks that I am being inconsistent with some of my amendments, but I still believe that at this stage it is appropriate to put forward probing amendments. If I am inconsistent, I am trying to point up the inconsistency in the Government’s approach, which is that on the one hand we are told that the national Commissioning Board is to be at arm’s length from the Department of Health and Ministers, but then we find that it is at such arm’s length that the chief executive has to have his appointment approved by the Secretary of State.

On parliamentary hearings, the noble Earl said that the Office for Budget Responsibility is rather different from the national Commissioning Board because it has a unique role in being dually accountable to government and to Parliament. My argument is that the national Commissioning Board is different from many other public bodies because of the concurrent powers it is given in Clause 1 and the fact that, unlike many bodies, it does not have a straightforward ministerial power of direction, as we have discussed. The Government have deliberately sought to put it on a different plane. For that reason, it would have been useful for them to have followed the example of the Office for Budget Responsibility and given the appropriate Select Committee a veto over the appointment of the chairman. As I said earlier, I accept that the Government have certainly gone halfway in the sense that Professor Grant appeared before the Health Select Committee. That is very welcome, and I am sure it sets a precedent for the future.

On public health representation on the board, for which my noble friend Lord Beecham and the noble Baroness, Lady Williams, argued, I hope that the national Commissioning Board will take account of the views expressed in your Lordships' House to ensure that there is strong public health input at the NCB level.

The first point the noble Earl made was that the national Commissioning Board is to have as much autonomy as possible. If it is, then it jolly well has to show that it is going to be accountable. I hope that the NCB will give parliamentarians a regular opportunity to discuss with it its programmes and the way that it is going to work in the future. I would be very concerned if, through the autonomy philosophy, Ministers in one way or another resisted debates or interventions in relation to the actions of the NCB and the NCB itself proved not to be open to having debates with parliamentarians. That is where the problem may well arise.

We will have to see but I for one hope that the national Commissioning Board will accept that it has been given enormous power—albeit with some constraints, which we have discussed today—and that it has to show it is going to be properly accountable for it. I beg leave to withdraw my amendment.

--- Later in debate ---

[Earl Howe]

My Lords, let me begin by setting out what we intend for the standing rules. We intend to use the rules to replicate core elements of the current system that need to be maintained in the future. For example, the standing rules will be used to provide the legal basis for certain patient rights as set out in the NHS constitution. Amendment 38, tabled by the noble Lord, Lord Hunt, will do three things. First, it seeks to require the Secretary of State to make standing rules as opposed to enabling him to do so. Secondly, it would require rather than enable him to update the standing rules no less than once a year; and finally, the Secretary of State would be obliged to share the standing rules with the relevant committee of the House of Commons for consideration at least two months before they are laid in Parliament. I hope that I can help the noble Lord here.

It is already our intention to make standing rules and to review them on an annual basis alongside the mandate. Where it is necessary, the Secretary of State would update the standing rules. Imposing a requirement on him to produce regulations regardless of whether an update is necessary will introduce what I believe is a needless administrative and bureaucratic burden on the system, and we surely do not want that. The amendment would also set out a requirement in legislation for the Health Select Committee to examine the proposed standing rules. I hope that I can reassure him that the committee would have the opportunity to examine proposals, and that Ministers in the department would engage constructively with the committee on any inquiry. However, I do not think that it is usual practice for legislation to set expectations as to the subject that Select Committees should examine or what areas committees should focus on. I should also remind the House that any regulations laid in Parliament are also considered by the Merits Committee of your Lordships’ House, as well as the Joint Committee on Statutory Instruments.

I turn now to the remaining issues. I think that it would be helpful to set out what we aim to achieve with the mandate. The mandate will bring with it an unprecedented degree of transparency, scrutiny and accountability to government policy for the NHS. For the first time, the Government’s core objectives for the NHS commissioning system will be subject to full public consultation.

A number of the amendments in this group, both government and from your Lordships, focus on the parliamentary scrutiny of the mandate. Amendments 41 and 46, tabled by the noble Lord, Lord Hunt, would make the mandate subject to the affirmative resolution procedure and require the Secretary of State to lay the mandate in Parliament in draft. I hope that I can reassure your Lordships that we have already built in sufficient parliamentary scrutiny of the mandate to render the amendments unnecessary.

Following the Delegated Powers and Regulatory Reform Committee’s recommendations, the Government have tabled Amendments 45 and 47, to which I now speak, to allow specific parliamentary scrutiny of the “requirements” within the mandate by providing that they can be brought into effect only by regulations subject to the negative resolution procedure.

However, making the mandate as a whole subject to the affirmative procedure would go too far. Parliament will set the parameters that the NHS will operate within, through this Bill and the legislation that will support it. This is a Bill that takes many powers away from Ministers and gives them back to Parliament, but it should be for the elected Government of the day, not for Parliament, to set specific policy objectives within that legislative framework following full consultation.

Of course, parliamentarians will have an interest in the mandate, and will have the opportunity to debate and influence it in the usual ways. As Clause 1 of the Bill makes clear, following our debate last week, the Secretary of State retains his responsibility to Parliament for the health service; and Parliament has the right to hold him to account for the health service, including the setting of the mandate.

Amendment 43, tabled by my noble friend Lady Williams and three of my other Liberal Democrat noble friends would require the Secretary of State to explain how the mandate supported his cross-cutting duties. I think that part of the motivation for the amendment is a concern to ensure that the mandate is not simply about financial issues. I hope that I can reassure my noble friend Lady Williams in particular on this point. It is our firm belief that the mandate should focus on the strategic outcomes and policies that the Government wish the NHS Commissioning Board to achieve. At the heart of this should be objectives for improvement against the NHS outcomes framework. The mandate will also be an opportunity for the Government to set specific objectives about the policies that we have set out in the NHS White Paper and the government response to the NHS Future Forum; for example, about extending patient choice and enabling clinical commissioning groups to flourish.

While the mandate will set the budget for the board and could include objectives relating to efficiency or financial management, it definitely will not be primarily about financial controls. Of course financial controls are essential, but the Bill has separate provisions for these under Clause 23. The mandate will not be a narrow and technical financial document which requires a separate justification of how the Secretary of State has fulfilled his legal duties; rather, it will visibly embody his duties. So I do not believe that an extra reporting requirement in the Bill is necessary.

Amendment 49 would require the board in consultation with the Secretary of State to set standards for the management of commissioners’ and providers’ accounts to enable efficiency comparisons. This comparison would be published annually by the Secretary of State. I understand the concerns which have led to the tabling of the amendment, but it would be an unnecessary and perhaps bureaucratic imposition on NHS providers and commissioners, distracting them from improving outcomes for their patients and the wider QIPP challenge.

It is important to be able to make comparisons of efficiency, but the board and, in turn, CCGs should be given the autonomy to decide whether and how to do this. I happen to know that work is currently proceeding in this area.

Monitor’s role currently includes the oversight of the financial management of foundation trusts, and the Trust Development Authority will do the same for non-FTs, so this information is already available for providers.

My noble friend Lady Jolly referred to HealthWatch England. It is specified in subsection (8) of new Section 13A as someone the Secretary of State must consult in developing the mandate. HealthWatch England will be able to feed in the views of local healthwatch as well.

Amendments 48 and 293, tabled by the noble Lord, Lord Hunt, would require parallel mandates to be set for Monitor and the Care Quality Commission. Again, I hope that I can persuade him that that is not necessary.

Monitor and CQC are independent regulators, with clearly defined statutory functions. Their core role is unchanging and regulatory, rather than about achieving a series of evolving policy objectives. Therefore, there is far less reason for the Government to set them a specific mandate. The fact that there is a statutory mandate in the Bill for the Commissioning Board reflects the different nature of the board’s role.

As with any arm’s-length body, there is a framework agreement between it and the sponsor department, which is used as the basis for monitoring the body’s ongoing performance. That is the approach that the department uses and will be using for all of its arm’s-length bodies, including CQC and Monitor. That will be underpinned by formal reviews of each organisation’s capability, at least every three years.

The department will retain overall stewardship, system leadership and accountability for ensuring that the different national bodies are working as Parliament intended. As I have mentioned on previous occasions, the Secretary of State will have formal powers to intervene in the event of significant failure. I hope that that reassures the noble Lord, and that he will feel able to withdraw his amendment.

[Lord Hunt of Kings Heath]

My Lords, I thank the noble Earl for a comprehensive response to the interesting amendments that have taken us to the duly appointed hour. He has given quite some assurance about the fact that parliamentary Select Committees will have an opportunity to scrutinise both the mandate and the standing rules, and that is to be welcomed. I urge him even now to reflect on whether the parliamentary scrutiny might not be beefed up somewhat by some reference in the Bill alongside some of these amendments.

The noble Earl has said that the process will be transparent. That is to be welcomed. But in the end, if Ministers are determined to hand off power to the national Commissioning Board, it seems only sensible and right that the mandate in the standing rules under which that should be done should be subject to decent parliamentary scrutiny. I very much hope that the Government will give that further consideration.

This has been a good debate to round off tonight. I am most grateful and beg leave to withdraw the amendment.

Health and Social Care Bill

Debate between Earl Howe and Lord Hunt of Kings Heath

Wednesday 8th February 2012 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, that is a very good point. As I say, it is always helpful when noble Lords point out errors and omissions in the drafting of amendments. Amendment 2 refers to “health care professionals”, and I am clear that nurses must be embraced within that definition.

On Amendment 62, I would not detract from the use of,

“education and training of the healthcare workforce”.

[Earl Howe]

We are not debating that amendment yet.

[Lord Hunt of Kings Heath]

My Lords, the noble Earl, Lord Howe, has kindly reminded me that we are not debating Amendment 62. It will be debated in a later group, which allows me a little time to reflect on the point raised.

[Earl Howe]

My Lords, this has been a very useful debate. Perhaps I can begin with a clear statement that the Government are committed to the education, training and continuing development of the healthcare workforce. This is fundamental in supporting the delivery of excellent healthcare services across the NHS. I am pleased that so many noble Lords share that view.

We are, however, in the rather odd position of having before us two groups of amendments on education and training. Given that we still await a further debate on the subject today, I should like to reserve some of the detail of my remarks, if I may, for that debate, when I address one of the amendments in the name of the noble Lord, Lord Patel. However, to begin with, and for now, I think that it will be helpful if I set the scene.

First, I confirm to the noble Baroness, Lady Finlay, that we made it clear in Liberating the NHS: Developing the Healthcare Workforce—From Design to Delivery, which was published recently, that we are committed to a national framework for education and training, with Health Education England providing national leadership and being directly accountable to the Secretary of State.

Health Education England will ensure that the healthcare workforce has the right skills, behaviours and training, and is available in the right numbers to support the delivery of excellent healthcare and health improvement. It will work with a range of key partners, including the medical royal colleges, professional regulators and the academic and research sectors. The national input and oversight will be there in all the areas which, rightly, the noble Baroness is concerned about. Health Education England and the wider education and training system will, as I said, remain accountable to the Secretary of State, who will have a duty to secure an effective system for the planning and delivery of education and training in the NHS. Employers and healthcare professionals will play a leading role in workforce planning and development through the establishment of local education and training boards, working with the education and research sectors. I shall have more to say about that in a moment.

I can reassure noble Lords straight away that postgraduate deans will continue to be a critically important part of the medical training arrangements. The Government listened to the concerns expressed in Committee by a number of Peers that the Bill did not go far enough in safeguarding the future education and training system. In this group of amendments, which I shall speak to shortly, we have tabled a number of proposals designed to address the gaps that noble Lords identified.

On Amendment 2, tabled by the noble Baroness, Lady Finlay, the Government have already introduced a duty for the Secretary of State to maintain an effective system for education and training. Our duty is more comprehensive than this amendment in that it applies to the whole healthcare workforce and not just doctors. The noble Baroness asked about the scope of Clause 6. Our duty applies to people who are employed, or who are considering becoming employed, in an activity which involves or is connected with the provision of services as part of the health service in England. This covers healthcare professionals at the centre of delivering healthcare, including doctors, dentists, nurses, midwives, pharmacists, healthcare scientists and the allied health professions. It includes registered and unregistered professions. It also covers non-clinical staff who are involved in, for example, the commissioning or administration of services. In the light of that, I hope that the noble Baroness will feel reassured to some extent and feel able to withdraw her amendment.

--- Later in debate ---

[Lord Hunt of Kings Heath]

My Lords, the government amendments on health inequalities are welcome. I take this opportunity to ask the noble Earl about clinical commissioning groups. Has he given further consideration to the links between health and well-being boards and clinical commissioning groups? He will recall the debate in Committee, when what I thought was a persuasive argument was made that to ensure that the links between clinical commissioning groups and local authorities taking on public health responsibilities were as strong as possible, it would be a good idea if a local authority nominee from the principal local authority served on the board of the clinical commissioning group.

My noble friend Lord Harris suggests in his comments about population coverage by clinical commissioning groups that there will be a grammar school-type impact, a creaming off of patients by some clinical commissioning groups so that the remainder will be left in other clinical commissioning groups. There will be areas of a city or locality where the health inequalities and morbidity and fatality ratios will cause a great deal of concern. It would be good to hear some assessment of that from the noble Earl. We have seen mapping of clinical commissioning groups in different parts of the country and they look weird and wonderful. They are not aligned to electoral wards and it will be very difficult to plan sensible provision of services because there is no geographical alignment.

I also ask the noble Earl, Lord Howe, to follow on from the remarks of the noble Baroness, Lady Finlay. We hear very little about primary care performance in our debate, but when I think back to the original speeches made by Mr Lansley, the whole purpose of the reforms is about GP performance. The argument is that GPs are responsible for most expenditure through referrals or prescribing, and that if you give them the budget, they will therefore be much more responsible in their behaviour. We have yet to be told how a clinical commissioning group will influence the behaviour of GPs within it. I know that that is a concern among the leaders of clinical commissioning groups.

If, for example, a clinical commissioning group has reached an agreement with providers, NHS trusts and NHS foundation trusts, on a shared risk approach to demand management—which I hope will be the outcome of most of these agreements—what on earth do you do if some GPs do not exercise responsibility over their referral or prescribing performance? We know that the variation in quality among GPs is very wide. What are the levers that will bring poorly performing GPs to the table? The leverage that clinical commissioning groups have is very limited. On balance, I think it would have been better if they had had the contracts of GPs. I know that there is an issue about Chinese walls and conflicts of interest, but the fact is that the contracts of GPs will be with the branch office of the national Commissioning Board. Therefore, the levers that the clinical commissioning groups have are likely to be very limited.

Then we come to the issue of, for example, prostate cancer. I very much agree with and support my noble friend Lady Royall on the need for quality standards and I hope that NICE will get a move on in relation to this. However, as my noble friend Lord Harris said, underpinning an argument about prostate cancer is the question of how you make such a standard work at the local level. If there is to be a quality standard, I doubt very much whether it will simply be confined to what an NHS hospital, a clinical commissioning group or a GP is expected to do. The quality standard will look at an integrated approach at the local level which will straddle various features of the architecture of the NHS locally. It might even have some regional aspects too where an input needs to be made.

Therefore, the question is: who on earth at the local level is supposed to sign that off? Who is going to take the leadership role? The clinical commissioning groups will be far too small to do that within a locality, so either they will come together and agree a strategy that will cover a sufficiently large population or, as I suspect, the national Commissioning Board will have to do it itself. I think that we will come on to these debates when we deal with the role of the national Commissioning Board. We have all been highly entertained by the paper produced by Sir David Nicholson showing the less bureaucratic approach that the Government have adopted in relation to the health service with the various layers of bureaucracy that are being brought in. However, I am still left completely clueless about who at that sub-regional level, where so many critical decisions have to be made, is going to take responsibility. We know that in relation to prostate cancer much more needs to be done.

The noble Earl will remember the debates that we had on prostate cancer 10 years ago. He will remember the controversy over testing and how noble Lords were very keen to put their point of view across. That has rather gone away and I think that it has been replaced by a much more informed debate about a cancer on which we know we could do very much more and on which we know there has to be education in the public domain.

I very much support my noble friend in what she is seeking to do but it also raises the issue that the noble Earl’s amendments touch on—that is, the architecture surrounding how a quality standard is implemented in the future, assuming that NICE is able to produce that standard as quickly as possible.

[Earl Howe]

My Lords, I am grateful to noble Lords for some very valuable contributions to this debate, which has ranged quite widely. I think that the first thing we can all do is agree on the importance of reducing health inequalities and developing NICE quality standards, which was where we began with the noble Baroness, Lady Royall. She is right that the Bill presents a major opportunity to drive up quality in the NHS, not least through the development of NICE quality standards.

The noble Baroness expressed her concern about the time that it is likely to take for this library of quality standards to be rolled out. I completely understand her desire to have NICE working quickly and effectively in producing quality standards. Against that, I simply say that we have to balance the need for speed with the need to produce standards of a high quality. We have already set NICE a challenging programme to produce the quality standards and we have to recognise that, if it is to do the job well, it cannot be done in a hurry.

However, we continue to believe that the programme is ideally placed to deliver a steady stream of quality standards over the agreed timescales. That will lead to a comprehensive library of quality standards, to which she referred, within five years. Of course, I understand that that timescale is disappointing. However, I simply say that, while the quality standard for prostate cancer, in particular, is clearly important, there are many things that we can do, and are doing, to improve the care of cancer patients in the NHS, and we have recently debated some of those in your Lordships’ House.

Health and Social Care Bill

Debate between Earl Howe and Lord Hunt of Kings Heath

Wednesday 8th February 2012 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, from the opposition Benches we too welcome the amendments, which very much reflect the debate that we had in Committee on the importance of research. The Chief Medical Officer has paid a visit to Birmingham over the past two days; he gave a lecture at Birmingham University and visited my own trust to discuss research and the role of the NHS in it. My noble friend Lord Warner has put his finger on it: the question to the Minister is how we make sure that the NHS makes a sufficient contribution in future to the development and support of research. The Minister will know that the Chief Medical Officer is a passionate advocate of research and excellence in the NHS, and that is to be warmly welcomed.

There are some issues that need to be tackled. We have already heard about the issue of getting approval for clinical trials. We still have the problem, which has been with us for many years now, of local committees taking far too long and repeating work by other committees. I understand that there are some issues around the fact that, because foundation trusts are separate legal entities, they have to go through the process themselves, but if they join a clinical academic network some of that work can be reduced. I know that there is to be an announcement at, I think, the end of March about how these clinical networks are to be developed in the future. That is a very important way of enhancing research.

There is no question that the more we do in research, the better the outcomes not only for patients but for the UK’s reputation and economic well-being. Healthcare research is surely an area to which we need to give great priority. The noble Earl, Lord Howe, is of course responsible and we are very glad that he is leading this work. However, there is no doubt that, welcome though these amendments are, we should be given some assurance that the Government will now take them forward into the new situation with enthusiasm.

[Earl Howe]

My Lords, I begin by saying how much I agree with the remarks of the noble Lord, Lord Hunt. There are two very good reasons why research needs to be promoted in the NHS. The first is that it is for the good of patients. The other is that it is potentially for the good of UK plc. If we can attract investment in translational and clinical research to this country, it will be a major advance. The sad truth is that in recent years the UK has been slipping back in the international league table as a location for clinical research. The Government are determined to reverse that trend, as were the previous Government. We are trying our best to build on the foundations that the previous Government set.

Noble Lords have asked me to explain how the Secretary of State’s duty to promote research will work in practice. I shall try to do so in a few words. The Secretary of State will use the mandate to set priorities for the health service, based on his legal duties. One of those duties is to promote research within the health service, which is shared by the board and CCGs. What are the tools at the Secretary of State’s disposal? The National Institute for Health Research—the NIHR—which is headed by Professor Dame Sally Davies, provides transparent, competitive funding to support clinical and applied health research, the training and development of health researchers, systems to support research and the NHS infrastructure for research. The NIHR will continue to be part of the Department of Health. Its budget of £1 billion is held centrally by the department. The Chief Medical Officer will remain responsible for the NIHR and its budget.

The second main route that the Secretary of State uses, and will continue to use, to support research, is through the NHS. Since the NHS was established, its patient care budget has funded the patient care costs of patients who are taking part in research in the NHS, as set out in existing guidance. In the future, the NHS Commissioning Board and clinical commissioning groups will ensure that these costs continue to be met through these arrangements. The research costs of these studies are paid by the Government and charity research funders such as the Medical Research Council, the NIHR, Cancer Research UK and the Wellcome Trust. The NHS benefits greatly from the evidence provided by this research.

Let us not forget, too, that the Secretary of State will be held to account for what he does. He must report annually to Parliament on the performance of the health service. There is an expectation that he will report on how he has fulfilled his statutory duties.

That brings us to the duties placed on the board. In the document we published, Developing Clinical Commissioning Groups: Towards Authorisation, we set out the early thinking on the authorisation process. The document highlights that as part of the process CCGs will need to demonstrate how they will exercise important functions, such as the duty to promote research, and the NHS Commissioning Board will seek consistency in the way in which CCGs exercise these duties. Furthermore, a CCG’s commissioning plan, and its annual report, as well as the board’s annual assessment of the group’s performance, will cover the exercise of all the CCG’s functions, including the duty to promote research.

I hope that that has given noble Lords a clear outline of how this is all going to work. We regard these duties as extremely important. These amendments are extremely important, as my noble friend said. I am in no doubt that both the health service and its patients will be better off as a result of them.

Health and Social Care Bill

Debate between Earl Howe and Lord Hunt of Kings Heath

Wednesday 21st December 2011 Lords Chamber

[Earl Howe]

I note the noble Lord’s liberality of spirit in this Christmas season. The problem is that it is not up to him, or indeed me as an individual, to cut across the practice which has been laid down across government. However, I have undertaken to look further into this question and I shall indeed do so.

[Lord Hunt of Kings Heath]

My Lords, it is of course open to my noble friend to simply seek access to papers that he was given advice on as a Minister. I suggest to my noble friend that perhaps he should ask to see those papers. Having done this myself, I know that you have to see them within the department. Usually you get a cup of coffee from the Permanent Secretary’s office, and you cannot take the papers away, but you can summarise and make notes. If the department is not going to make the papers available, perhaps my noble friend would care to do that.

--- Later in debate ---

[Lord Hunt of Kings Heath]

I rise to support the noble Lord. Earlier today, he made a very pertinent point on Lords reform, and this one seems equally pertinent. Before I do so, perhaps I may take this opportunity to say that my noble friend Lady Gould has just vacated the Deputy Speaker’s seat. That was her last session, and I wanted to say to her—I am sure on behalf of the whole House—what a wonderful job she has done. She has accompanied us through many pieces of legislation, often very late at night, always with tolerance and very efficiently, as befitting a former fearsome organiser of the Labour Party, if I may say so.

[Earl Howe]

And never more smoothly or efficiently than in today's Sitting.

[Lord Hunt of Kings Heath]

It would be churlish, then, to spoil the atmosphere by commenting overall on the Bill because, as the noble Lord suggested, it is open to us to have a kind of Second Reading speech, but I will resist—to the benefit of noble Lords opposite, if not my noble friends.

The noble Lord put it very well. The fact is that the reforms are being enacted; they are taking place at this moment. The Government have not waited for legislation. Primary care trusts have effectively been abolished. The new system is coming into being. We have shadow clinical commissioning groups, although they cover much larger areas than originally envisaged, so it would be quite right and proper for early post-legislative scrutiny to take place. Because the changes go to the heart of the National Health Service, I should have thought that it would have been useful to have an annual report and to allow Parliament to debate it.

I invite the noble Lord, Lord Kakkar, to go one step further. He will know that the noble Earl, Lord Howe, has always been fond of sunset clauses. He moved many such amendments when in opposition. I should have thought that the Bill deserves a sunset clause. I would give it two years, because then, if the coalition survives that long, the noble Earl will be back to put right all the problems that he is now enacting.

On that note of Christmas spirit, I invite the noble Earl to accept the noble Lord’s amendment.

[Earl Howe]

My Lords, if the noble Lord, Lord Hunt, is addressing us in the guise of Christmas spirit, it is well disguised from most of us.

However, it may be worth reflecting at this juncture that this is the 41st day that the Bill has been debated on the Floor of this House or that of the other place—a quarter of all sitting days in this calendar year. I thank all parliamentarians, especially noble Lords, who participated in subjecting the Bill to such unprecedented scrutiny. It is a better Bill as a result; the Government are better informed as a result; and I look forward to our further debates in 2012.

I completely agree with the noble Lord, Lord Kakkar, that parliamentary scrutiny of legislation and the actions of government are of paramount importance. The Bill has, as I said, received a huge amount of parliamentary scrutiny during its passage, and I have no expectation that this will stop following Royal Assent—and nor should it. Ministers will continue to provide information to Parliament—for example, in response to Parliamentary Questions and Select Committees. I am sure that we will be providing a lot of information both on the implementation of the Bill and on health and social care more widely in the months and years ahead.

Health and Social Care Bill

Debate between Earl Howe and Lord Hunt of Kings Heath

Monday 19th December 2011 Lords Chamber

[Lord Hunt of Kings Heath]

—not the mess, my Lords, but my noble friend’s vigorous discussions—because of the wish to ensure that those global companies continued to invest in the UK. The problem with the Department of Health is that while it sponsors the industry, its real concern, when it comes down to it, will always be the cost of drugs to the National Health Service—hence my concern that powers of direction by the NHS Commissioning Board will not be used in a way that is conducive both to the independence of NICE and to the continued R&D spend on pharmaceuticals in this country. I do not really want to institute a debate on value-based pricing at this point, but I hope that the Government will look very carefully at its introduction and all the consequences from it. Having said that, unless the noble Earl wishes to answer the point on direction, I certainly beg leave to withdraw.

[Earl Howe]

My Lords, I will drop the noble Lord a letter on the funding direction, but it is our intention to place this in secondary legislation, appropriately amended as he indicated. It is possible that this will be incorporated in the standing rules as a fixture. On value-based pricing, I can tell him only that quite detailed work is currently under way on the model and that, while I agree in many ways with his comments on the PPRS, it has two unsatisfactory features. One is that it does not recognise fully the factors that society values; the other is that it does not incentivise research sufficiently to address areas of unmet need. If we can achieve both those things, it will represent an advance, but the noble Lord is right that there is still some way to go before this model is finalised.

--- Later in debate ---

[Lord Hunt of Kings Heath]

My Lords, I follow on from the noble Lord, Lord Owen. Clause 231 says:

“The relevant commissioner may direct NICE to prepare statements of standards in relation to the provision of … NHS services”.

In relation to a quality standard regarding the provision of NHS services, the relevant commissioner means the Commissioning Board.

I come back to the point about independence: surely it should be the Secretary of State who should direct NICE to prepare statements of standards in relation to the provision of NHS services. Surely, under this architecture, the concern of the Commissioning Board will be money. It is going to have to ensure that the NHS delivers what the Secretary of State requires in the mandate, which is growing ever longer as we debate the Bill, and that will mean quite a lot of pressure on it. I am worried that because it can direct NICE to prepare statements of standards, it is bound to be governed by finance; in fact, it is bound to relate the number of standards that it directs to the resource issue.

Of course one has to take account of resources, and the very fact that NICE’s technology appraisals are concerned with cost effectiveness is a recognition that we have to make judgments about the use of resources, but I would have thought that there was benefit in there being a distance between that direct concern of the Commissioning Board and the overriding leadership of the service that the Secretary of State must provide.

I wonder if the Minister would be prepared to give this further consideration. In this part of the Bill and in Clause 236, where the board can give directions to NICE, one simply has anxieties that, at least visibly, the independence of NICE might be compromised.

[Earl Howe]

My Lords, NICE’s independence is the foundation of its reputation as an authoritative source of evidence-based advice. To guarantee that independence, to pick up the point made by the noble Lord, Lord Hunt, the Bill contains no direction-giving power to enable NICE to be directed as to the substance of a quality standard, and explicitly prohibits regulations from enabling the Secretary of State or the NHS Commissioning Board to direct NICE on the substance of its advice, guidance or recommendations. I reassure noble Lords that the independence of NICE’s advice is assured by the very mechanism by which it formulates it—through public consultation and collaboration with respected authorities such as medical royal colleges.

I shall explain in a moment how we propose that the NICE quality standards should be commissioned, because there are different arrangements for different types of quality standard. However, the amendments begin to chip away at what we want to see—that is, a clinically led process—by specifying what really does not need to be specified, as the evidence of the quality standards published to date shows. I appreciate that many people have an interest in this programme, and that is why subsection (7) not only requires NICE to establish a process for its quality standards programme but requires a consultation on that process. That gives ample opportunity to patients, clinicians and other interested parties to have a say in how the programme is delivered.

NICE is expected to develop a broad library of between 150 and 175 quality standards, spanning the domains of the NHS outcomes framework and commissioned by the NHS Commissioning Board. The Secretary of State will have responsibility for commissioning quality standards for social care and public health. For integrated pathways of care covering NHS treatment together with public health and/or social care interventions, the Secretary of State and the Commissioning Board will be able to commission quality standards jointly. So, NICE will prepare quality standards when commissioned to do so by the board for NHS healthcare services, by the Secretary of State for the public health service and social care and jointly by the Secretary of State and the board for integrated pathways.

The noble Lord, Lord Warner, expressed his disappointment at the rate of progress of the rollout of NICE quality standards. Actually, there has been a steady start to this: we have some two dozen quality standards at the moment and, as I mentioned, we will have between 150 and 175 of them over a five-year programme. We agree with the noble Lord that it is crucial to maintain momentum with this important work, and NICE has told us that it believes that the programme is realistic. It is unnecessary to undertake to agree a programme of quality standards each year. The current programme that is being overseen by the National Quality Board is ideally placed to deliver that steady steam of quality standards over the agreed timescales.

The noble Lord, Lord Patel, asked how we will ensure that standards will stand the test of time. NICE regularly reviews its products, including guidelines and standards. This is an established part of NICE’s working procedure that has helped it to attain its high standing with patients, clinicians and, indeed, the industry. NICE is keen to take into account any new evidence and to be responsive to changes in circumstances.

As I said earlier, NICE quality standards bring clarity to quality, providing definitive and authoritative statements of high quality care and based, as the noble Lord, Lord Patel, rightly said, on the evidence of what works best. As we move towards a system that will focus on improving the outcomes that matter most to patients, it is vital that quality standards reflect these.

Amendment 343, which places a particular emphasis on long-term conditions, is understandably motivated but it may have the unintended consequence of excluding other conditions. While I sympathise with the sentiment, it is probably undesirable to specify that in the Bill. That is why the National Quality Board is overseeing the development of a process for selecting topics for the rest of the library that will integrate and build on the current process for selecting the NICE clinical guidelines. This process recognises the importance of ensuring that smaller specialties are taken into consideration. I have a long list here of topics in the proposed programme that address long-term conditions. I am happy to let noble Lords have that. This reflects the fact that these quality standards are needed to help the NHS improve outcomes in this area, as we envisaged in the NHS outcomes framework.

NICE recently completed an engagement exercise on the proposed library of quality standards. The responses were overwhelmingly positive about the programme and the role of quality standards in the new system. This feedback is reassuring, and I hope it reassures the noble Lords sufficiently to enable them not to press their amendments.

--- Later in debate ---

[Lord Hunt of Kings Heath]

Is not the point that NICE enjoys a global reputation for the excellence of its work, as we discussed earlier? I do not know how many hits it has on its website every day but I understand that it is a considerable number. Is this not a huge advantage for the UK and that all the Government are seeking to do is to ensure that NICE can exploit that so that its work in the UK can be developed elsewhere?

[Earl Howe]

The noble Lord is exactly right. He will know from his time as a Minister with responsibility in this area that NICE has steadily grown its reputation overseas, and that with that have come opportunities to sell its services in a number of quarters. We simply want to see that continue.

Health and Social Care Bill

Debate between Earl Howe and Lord Hunt of Kings Heath

Tuesday 13th December 2011 Lords Chamber

[Earl Howe]

That is helpful. My noble friend and I are clearly in agreement. I apologise if I imputed any different views to him.

The noble Baroness, Lady Armstrong, indicated that she felt that the oversight powers for foundation trusts should be retained. As the regulator of all providers of NHS-funded services, Monitor will continue regulating foundation trusts under this Bill. These would be enduring functions, not transitional. I hope the noble Baroness is reassured by that. What would be transitional, however, is Monitor’s power to remove foundation trust boards and board members. That is what Clauses 109 to 112 provide for until 2016, although the Secretary of State would be able to extend the transition period by order, as I indicated earlier, if he or she considered it necessary.

My noble friend Lord Ribeiro sought assurances that all providers will work on a level playing field. I am happy to assure him that all providers will indeed be required to meet the same quality standards for the same procedures. Before being qualified, providers will be required to demonstrate that they can meet those quality standards and Monitor will set fair prices for all providers. Competition, as I have said on previous occasions, will be on quality and not on price. If my noble friend will allow, I shall write to him in some detail with answers to his specific questions, which of course were extremely pertinent. I will copy the letter to all noble Lords who have spoken in this debate.

The noble Baroness, Lady Armstrong, also said that the Secretary of State should not raid the budgets of successful foundation trusts. I can assure her that this Bill would not enable the Secretary of State to direct individual foundation trusts or to raid foundation trust budgets, which she has rightly cautioned against. She said that there was a need to ensure that the new system should allow care to be shifted out of hospital. I share her view on that. It is essential that the new system enables more care to be shifted out of hospital into people’s homes and communities. This will require strong commissioning, and that is a key point made by the King’s Fund.

[Lord Hunt of Kings Heath]

My Lords, I declare my interest as chair of a foundation trust. It is quite simple for commissioners to be instructed to top-slice, say, 2 per cent of their budget and for the commissioning process to be used to divert money from some foundation trusts to others. What the Minister ignores in his construct of the Bill is the actual practice that is happening in the system at the moment.

[Earl Howe]

The Bill takes us away from what is happening at the moment. That is the point.

[Lord Hunt of Kings Heath]

My Lords, I do not see how the noble Earl can get away from that. We have recently seen that the Secretary of State, having said that he will not intervene, has made three interventions, twice in relation to PCT behaviour and once in relation to the quality outcomes, and in the last debate the noble Earl said that he would continue to use that mandate in future. It seems to me that we will continue to see these kinds of central interventions. It is as if we were in parallel universes. In one, we have the Bill and the theory. In the other, we have the practical management of the health service. Which is it to be?

[Earl Howe]

Once again, the word “micromanagement” springs to mind. We want to get away from the Secretary of State micromanaging the health service. On the other hand, we think it is perfectly right and proper for the Secretary of State, on behalf of voters, patients and Parliament, to set broad objectives for the NHS, such as the NHS outcomes framework. That document has been very well thought out by clinicians led by Sir Bruce Keogh in the department and has, I believe, commanded universal approval. Surely this is the territory that the Secretary of State should be on: to drive up the quality of care and the performance of the NHS, but not to micromanage.

I recognise that there are fundamental fears that this Bill would increase the role of competition in the NHS and take us down the road to privatisation. I need to be clear that it is not the intention of this Bill, and I do not believe that it is the effect of this Bill, to privatise the NHS. The Bill reaffirms that the NHS will always be there for everyone who needs it, funded from general taxation and free at the point of use. Extending choice and increasing competition is not about privatisation. We want patients to be able to choose to receive their care from the highest-quality providers. Competition in services, where it is introduced, should only be introduced when commissioners genuinely and for good reasons believe that it will benefit patients and the quality of their care. Should we allow this to happen without any check that it is happening legally and properly? Our answer is no; it needs to be overseen fairly and apolitically by a sector-specific regulator with the interests of patients as its core duty.

As with other parts of the Bill, I am more than willing to enter into discussion with noble Lords on Part 3, and I have already indicated that I am sympathetic to some of the key concerns which these amendments raise. With that in mind, I hope that we can move on and debate different issues arising from this part of the Bill and that noble Lords will feel content for the time being not to press the amendments.

Health and Social Care Bill

Debate between Earl Howe and Lord Hunt of Kings Heath

Wednesday 7th December 2011 Lords Chamber

[Lord Hunt of Kings Heath]

I am grateful to the noble Baroness for her helpful intervention and I fully accept what she says. I want to make two points. First, we need an acknowledgment by the Government that there is going to be a kind of intermediate tier that, in the end, they can turn to when there are problems—if CCGs cannot work out a strategic approach or if reconfiguration is not taking place, as well as all the things that arise in the health service generally. My second argument is that I believe the health service is somewhat different from HEFCE in that it touches everybody, and the kind of issues that this intermediate tier will intervene on are likely to concern the public much more. There is then a case for making the intermediate tier a statutory body. Essentially there are two points here. I certainly agree with the noble Baroness about the importance of a helpful enabling intermediate tier which occasionally needs to intervene.

[Earl Howe]

My Lords, as I have observed on earlier occasions, I believe that this Bill increases Ministers’ accountability for the health service through a range of mechanisms. However, perhaps I may begin by saying to the noble Lord, Lord Hunt, that I agree that the Secretary of State’s annual report is an important mechanism through which he will account for the system. I am sympathetic to the objective behind Amendments 243 and 243A, which seek to specify areas for inclusion in the Secretary of State’s annual report, but I can reassure noble Lords that I expect to see mention of areas such as the reduction of inequalities set out in the report, as these issues are the foundation of a high-performing health service.

The Bill also sets out extensive powers of intervention in the case of failure, which are essential if Ministers are to be able to retain ultimate accountability for the health service. The intervention powers in the Bill are specific to the organisations to which they apply, which is the issue covered by Amendments 245B and 245C. With that point in mind, I believe that the powers set out by the Bill strike the right balance, enabling appropriate freedom for NHS bodies while ensuring that the Secretary of State can intervene in the event of their failure.

The Secretary of State’s duty of keeping performance under review only applies to national arm’s-length bodies. It does not refer to CCGs. The noble Lord, Lord Hunt, questioned why that was. We think that is right; however, the CCGs will very definitely be kept under review. The Bill sets out a robust process for the board to hold CCGs to account and sets out extensive powers for the board to keep the performance of CCGs under review and to step in where they are not performing.

The noble Lord also queried why there was no mention of a range of other bodies, such as senates and field forces. The answer is that they are part of the NHS Commissioning Board, which is specifically mentioned. As regards health and well-being boards, as the noble Lord will know, we intend them to be part of local government. I do not think local authorities would take very kindly to the Secretary of State for Health keeping them under review.

There are also a number of amendments in this group that are concerned with the transparency and accountability of arm’s-length bodies, such as the amendments of the noble Lord, Lord Warner. Much like the Secretary of State’s annual report, each arm’s-length body’s annual report and accounts must be laid before Parliament. I simply remind the Committee that all ALBs are under a duty to exercise their functions effectively, efficiently and economically, and the Secretary of State is required to keep under review how effectively they are exercising their duties and functions.

Finally, I turn to co-operation between the bodies in the system. The Bill sets out a formal duty on each organisation to co-operate, and the department will hold organisations to account for the way they work with each other, not just how they perform their own functions. As regards Amendments 240A, 243ZA, 350 and 351, I hope I can reassure noble Lords that, through these two routes, the department will work to ensure that duplication is prevented and gaps do not emerge. If the Secretary of State believes that the duties of co-operation are being breached or are at significant risk of being breached, he will be able to write formally and publicly to the organisations. If the breach is significant, sustained and having a detrimental effect on the NHS, the Secretary of State will have a further ability to lay an order specifying that the organisation should take certain actions only with the approval of another specified body, other than the Secretary of State himself.

Amendment 245ZA looks to reinstate a power at Section 2 of the National Health Service Act 2006, which would enable the Secretary of State to provide services. We believe that the role of the Secretary of State should be one of oversight, direction-setting and intervention when organisations are failing. We have had many hours of valuable discussion on this topic; so while I fully understand the various concerns raised by noble Lords, I remind the Committee that all sides of this House have agreed to a process of engagement and discussion on this subject. The noble Lord, Lord Hunt, asked specifically in relation to this amendment whether this issue was covered by that process. The Clauses 1 and 4 process, as I call it, is considering the issue of the Secretary of State’s accountability for the NHS in the round rather than specific clauses in the Bill; so, yes, this would be covered by that process.

I hope that I have provided enough detail on these clauses to enable the noble Lord to withdraw this amendment.

Health and Social Care Bill

Debate between Earl Howe and Lord Hunt of Kings Heath

Monday 5th December 2011 Lords Chamber

[Earl Howe]

My Lords, the SHAs have already published their plans for delivering the Nicholson challenge and those are on the SHA website. There is no secret about that. I can tell the noble Lord that we are on target to deliver the Nicholson challenge over the four-year period as a result of savings already made.

[Lord Hunt of Kings Heath]

My Lords, this has been a very interesting and instructive debate. I should tell the noble Earl, Lord Howe, that I do not have a rose-tinted view of primary care trusts. They were improving, I believe. But the question that I put to the Government is why on earth, instead of going through this convoluted and complex restructuring, they did not say immediately to primary care trusts that they should divest themselves of the services that they ran and get a move on with giving more responsibility to GPs? They could have done it on their first day, instead of which, instead of SHAs and PCTs, we have a much more complex structure, with clinical commissioning groups, health and well-being boards, senates, the NHS Commissioning Board and—blow me down—their field offices as well. I can tell the noble Baroness, Lady Murphy, that as the NHS Confederation says, we now have a very complex structure—not a streamlined approach that will deal with all the problems of the NHS. My goodness me, this structure will cause as many problems as it is potentially there to deal with.

There are some very serious questions about how the Government have done this. I am glad to know from the noble Lords, Lord Mawhinney and Lord Newton, that I am now part of the same region as they are. I look forward to further discussions and perhaps meetings in Nottingham from time to time, if we are summoned together.

The fact is that, in effect, primary care trusts have been abolished in advance of legislation. I understand what the Minister says—that by creating a cluster with non-execs from the PCTs, in effect those non-execs become the non-execs of each primary care trust. That is how the Government are essentially doing it, but that is a very disingenuous way in which to deal with the issue. They are skating on very thin ice, and the potential for judicial review is, I suspect, quite considerable.

Let us take this issue of the interest of the non-execs in Peterborough and Cambridge. I do not know the area particularly well, but let us say that, because of the financial issues facing Peterborough, a decision was made by the cluster to reduce services in Peterborough and ensure that those patients then went into Addenbrooke’s. I suspect that might well be a proposal. The question arises as to the legitimacy of that decision if people in Peterborough think that they are being marginalised from that decision. That some bold decisions need to be taken I do not doubt, but I suspect that there will be some issues about legitimacy.

As for the issue of tiers, my noble friend Lord Warner is surely right. Since 1948, the health service has not done without a regional tier. The fact that the Commissioning Board is going to have to set up local field forces is a recognition of that, but they will have a heavy responsibility. The financial challenge, the reconfiguration challenge and the specialty challenge call for strong leadership at that level. My argument for the Minister is that they surely need to be accountable and seen to be accountable in their communities. I do not believe that in the end the mandate set by the Secretary of State or the outcomes framework really satisfies that kind of accountability, given that they are clearly going to have to intervene at local level and deal with issues to do with finance and reconfiguration.

I have listened to the noble Lord, Lord Mawhinney, when he advised me not to oppose that Clause 30 or 31 stand part of the Bill. I fully accept what he says. However, as the Minister has made clear, my Amendment 236A stands apart from that. It is a question of timing, and I do not believe that these changes should take place until we are sure that they are right. I beg leave to test the opinion of the House.

Health and Social Care Bill

Debate between Earl Howe and Lord Hunt of Kings Heath

Wednesday 30th November 2011 Lords Chamber

[Earl Howe]

Earlier on I noted that the noble Lord drew parallels between CCGs and his attempts when he was a Minister to reduce the number of PCTs. I do feel there is a critical difference. The decision to establish a certain number of PCTs was taken in Richmond House by Ministers. I am not saying those decisions were arbitrary—of course they were not—but they certainly were not bottom-up. With CCGs, the onus is on GP practices to determine the most appropriate size and configuration for their local population. As I have said, the board will then rigorously assess whether this proposal will result in the CCG being able to fulfil its functions. That is a judgment, but it is a proper fitness for purpose test which PCTs never had to go through. I simply do not accept that, come April 2013, there is likely to be a raft of CCGs failing. If a CCG’s proposed constitution is not robust, then it will not receive full authorisation.

[Lord Hunt of Kings Heath]

I do not think that is quite fair, since I was involved in setting up PCTs. I accept the strictures of my noble friend about whether we made them too small. As for the idea that Ministers came up with PCTs, it was of course the service which, basically, came and made recommendations. Frankly, the same tiers are deciding on CCGs as decided on PCTs. There has been huge pressure on CCGs to come together and merge. Yes, it started as a bottom-up idea, but I have to put it to the Minister that the reason why I quoted Dr Mike Dixon is because he, like many people, knows that the “forces of bureaucracy”, as the noble Earl, Lord Howe, likes to put it, have been very strong and have basically said to CCGs that they will not get anywhere unless they merge.

[Earl Howe]

Yes, the noble Lord, Lord Hunt, suggested earlier that there was a process of shoe-horning CCGs into certain shapes and sizes, forcing them to take up external support and merge commissioning functions. I emphasise that CCGs will not be forced to take up external support or merge functions. What is happening at the moment is a process of advice and information from the centre. Obviously, the board will not authorise the establishment of any CCG which could not satisfy the board of its ability to discharge its functions and be an effective commissioner. We want to ensure that the process is not too bureaucratic or cumbersome. The noble Lord suggested that it was likely to be, but I do not accept that. We are working with stakeholders to ensure that emerging CCGs can articulate their requirements for commissioning support. I do not accept the picture that he has painted.

My noble friend Lord Newton spoke about the clustering of PCTs. Clusters bring together PCTs to prepare for and support the transition to clinical commissioning. Until PCT abolition in April 2013, they continue to exercise their functions and remain statutorily responsible for their functions until abolition. Pathfinders, or emerging CCGs, can act as sub-committees of PCTs until this time. The role of PCT clusters during the transition is to support clinical commissioning groups, not dictate how they operate. For the reasons that I have stated, it is important that CCGs have the freedom to develop their own solutions from the bottom up and that they are fully supported in doing so. The latest operating framework for the NHS emphasises this and we will see that it is acted upon.

My noble friend Lord James queried the legal arrangements. The process of clustering has been open and transparent. If it is acceptable to noble Lords, I can provide a written update on the latest position, giving the numbers, locations and so on, to save time.

[Earl Howe]

Of the PCT, because the cluster has no legal standing.

[Lord Hunt of Kings Heath]

My Lords, I thank the noble Earl, Lord Howe, for his response. This has been a really good debate, which has gone to the heart of the Bill and the Government’s intentions. I would like to come back to a point that the noble Baroness, Lady Murphy, made when she reminded us of the central tenet of the Secretary of State. Essentially it is that GPs are responsible, like GPs the world over, for most expenditure in the NHS, either through their referrals or through their prescribing decisions. The clear intent was to put budgetary responsibility with referral and prescribing responsibility, in the hope that it would lead to a more cost-effective system. I think the issue that many noble Lords have is that in the way this has emerged and in the guidance that has been given by the board and the department it is becoming clear that the influence of the individual GPs within this huge structure that is being established is likely to be very limited. On the other hand my Lords, because of the mantra of the Bill and the reforms, patients are likely to believe that it is their GPs who are making the commissioning decisions. Therein lies trouble, because I think the GPs are going to be in a very unenvious position. We as patients will hold them to account for commissioning decisions in a way they have never been held account before, but their influence on commissioning is going to be very limited indeed. I think this has been a very good debate, I beg to withdraw my amendment.

Health and Social Care Bill

Debate between Earl Howe and Lord Hunt of Kings Heath

Tuesday 22nd November 2011 Lords Chamber

[Earl Howe]

Of course, Parliament is the sovereign body and can do whatever it chooses. Nothing will prevent it commenting on the mandate once it has been published. No doubt the Health Select Committee will wish to do this. My point is that to expect the process to feed into a regurgitation or reformulation of the mandate would be unfair on the NHS. The opportunity for Parliament to have its say should surely be during the normal consultation period. Parliament will be able to see the extent to which the Secretary of State has responded to whatever comments it has made.

[Lord Hunt of Kings Heath]

I take up the point that any debate in Parliament should be after consultation has taken place so that Parliament will know what the Secretary of State has decided. The Minister said that this would be debated by a sovereign Parliament. However, he will know that translating that into real time for debates in which noble Lords can question Ministers is problematic. The beauty of the Planning Act 2008 was that it laid down a requirement that was then turned into procedure. Perhaps the Minister will reflect on this. As he rightly said, this mandate is a very important indication to the health service of the Secretary of State’s wishes. If the department gave some further thought to this matter, it might come to the conclusion that it would be right to allow parliamentarians to have a go at the mandate—to question Ministers—before it is finally signed off.

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[Earl Howe]

I am surprised that the noble Lord, Lord Owen, thinks that the health service should be run in that way; that is, Parliament in effect mandating requirements to the health service whenever it chooses. I do not think that is a helpful idea. I think it is helpful for the Secretary of State, as now, to take responsibility for the health service but in the future to take direct responsibility for what lies in the mandate. Should events during a given year raise questions about the performance of the board, the Secretary of State would be answerable to Parliament for whatever the event was, and he would indeed have to take the necessary advice from the board. What he would not be saying is, “This is not my concern, guv”. He is answerable to Parliament in the ways that I have indicated. There is obviously a need for the board to take responsibility for the day-to-day management of the health service. However, we are seeking to achieve a balance between the Secretary of State taking responsibility in Parliament for what is in the mandate and the outcomes that he has set for the health service.

This is a shift of responsibility, it is not an abdication of responsibility—that is the distinction. Power is a zero sum game. If you shift power from the Secretary of State down to the health service, you cannot at the same time expect the Secretary of State to retain the same degree of power. We are transferring power in two directions; from the Secretary of State downwards, and from the Secretary of State upwards to Parliament. That is the picture that I hope noble Lords will keep in their minds.

[Lord Hunt of Kings Heath]

My Lords, I am grateful to the noble Earl, but there are some extra points here. What we have seen from the Secretary of State recently is no desire to desist from day-to-day involvement in the National Health Service. We have seen a number of interventions—which, as the noble Earl knows, I welcome; I believe that is the duty of the Secretary of State. I am still completely mystified as to how the Secretary of State will do this in the future. I can see that you have the NHS constitution; I can see that in the objectives set in the mandate the Secretary of State will say to the NHS Commissioning Board, “You will do the right thing on waiting times”. However, what happens if, because of resource constraints, clinical commissioning groups put in artificial devices to extend waiting while still meeting the 18-week targets? They will be okay under the constitution, but that action is found to be unacceptable in PCTs now. Where does the intervention come? The Secretary of State will be required by Parliament to intervene. There will be no getting away from that.

The second point is about accountability upwards. I say again to the noble Earl that I do not know why he will not take this point away. We have the Planning Act 2008; we have had a highly successful process of examining national policy statements, which must be of the same degree of importance as the mandate. It has been clearly set out how Parliament will scrutinise those: it allows in your Lordships’ House a process in Grand Committee and then in your Lordships’ Chamber if a Motion is moved. However, at the end of the day the Secretary of State can ignore what Parliament says because it is the Secretary of State’s responsibility to set the national policy statement as he would the mandate. If the Government are claiming that this is an appreciable shift of power, I am puzzled as to why on earth Parliament is not allowed more involvement in scrutinising the mandate.

[Earl Howe]

Because it would get Parliament into the territory of micromanaging the health service, if it so chose. That is not the territory we would want to be in, any more than we wish the Secretary of State to micromanage the health service. That is the problem. The Secretary of State has to take responsibility for the objectives set for the health service. I think there is a general acceptance among those in the health service and indeed the public at large that the health service has to be judged on a different set of measures than it has been in the past—namely, on its outcomes and the cost effectiveness with which it approaches the use of the budget given to it.

We believe that undue political influence is undesirable. Parliament is capable of exercising that kind of interference every bit as much as a Secretary of State. We are saying, however, that Parliament has every right to scrutinise the Secretary of State’s proposals, to feed into those proposals, to be listened to and to be responded to. However, in our contention, it is undesirable for us to go beyond that because in the end, the health service has to know where it stands. If this is an endless process of Parliament second guessing the mandate and coming forward all the time with suggested changes, we will not have a workable system.

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[Lord Hunt of Kings Heath]

My Lords, I am grateful to my noble friend for moving the amendment. I should like to start with the question about the scale of the financial challenge. As my noble friend suggested, the amount of money that has got to be taken out of the NHS through efficiency in the next four years is considerable. The indications are that while in the current financial year there will be some parts of the NHS that really struggle, by and large the service is going to get through. However, years two, three and four are going to be much more fundamental challenges. The need for the NHS to use its assets as effectively as possible, to get on with reconfiguration of services, and for all groups involved in the NHS to buy into that kind of change, is going to be essential. The more comparative information that can be provided the better, which is where I hope the Minister will be responsive to my noble friend.

The noble Lord Lord, Lord Owen, mentioned procurement. I should wear a hat as president of the Health Care Supply Association, and say that he is right to identify procurement as a potential area of much greater efficiency in the future. However, the Minister will know that two recent reports from the Public Accounts Committee have raised concerns about procurement and really are inviting the Minister in particular and the department specifically to take on a much greater leadership role in ensuring—it is rather like the Green report suggested—that the NHS makes the most of its potential buying power. I ask the Minister how, in the devolved structure that the Government are enunciating, we can ensure that on issues such as the use of our assets and procurement we still act as one national service making the most of our buying power? Unless we do that, there are going to be continuous PAC reports looking at the problem of national direction.

Finally, I endorse the comments made by the noble Baroness, Lady Williams. What about clinical commissioning groups? The Bill is silent on how CCGs are to be accountable. One way would be the publication of comparative performance of how they use their resources—the more comparative performance, the better. I should also like to ask the Minister about primary medical services. As we know, this has always been a difficult area. We have had various efforts through the GP contract to have much more of a performance culture. I cannot say that has been uniformly successful. However, in these days of stringency, I do not think we can get away with that any longer. It would be good to hear how we can extend the whole concept of efficiency performance measurement into an area of the health service, such as GPs themselves, where I am sure there is much more efficiency to be gained.

[Earl Howe]

My Lords, this has been a useful debate. I should probably say straight away to the noble Lord, Lord Warner, that I am not convinced by the amendment. That is not because I do not believe that the issues that he has raised are important—I certainly do. Good governance is absolutely dependent on having good data and on the financial control that that data enable the board of directors to exercise. It is very much about ensuring throughout the health service that the QIPP agenda is pursued effectively. The QIPP agenda is all about ensuring the more efficient and effective use of money. This could not be a more salient topic at the moment.

However, Amendment 102, which the noble Lord has proposed, would in my view introduce a new layer of bureaucracy. I hope to show that it is not required. My main reason for saying that is that accounting and disclosure requirements for the Department of Health and all NHS bodies are ultimately set by the Treasury. These are already based on independent advice.

I am conscious that that is rather a condensed answer, so, if I may, I should like to go into a little detail as to how this will work. Paragraph 15 of the new Schedule A1 to the NHS Act, inserted by Schedule 1 to the Bill, enables the Secretary of State, with the agreement of the Treasury, to specify the form and content of the board’s accounts and the methods and principles to be applied in their preparation. The Bill places an obligation on the board to produce annual accounts, as well as in-year accounts covering shorter periods if necessary.

In addition, the Bill provides powers for the Secretary of State to require such other information as is considered necessary for the purpose of exercising his functions in relation to the health service. This is what one might term management information—data required by those controlling funding or setting policy alongside the financial returns in order to provide an accurate picture of issues such as staffing levels.

For clinical commissioning groups, it is the NHS Commissioning Board that sets the accounting and reporting requirements. It will do so in a way that is consistent with requirements set by the Secretary of State, and approved by the Treasury for the purposes of consolidation.

My noble friend Lady Williams expressed the fear that CCGs may not be well equipped to handle that kind of reporting. The board will set the accounting and reporting requirements for CCGs, as I indicated. Paragraph 16 of Schedule 1A to the NHS Act 2006, inserted by Schedule 2 to the Bill, allows the board, with the approval of the Secretary of State, to give directions to CCGs as to the methods and principles of accounting which they must use and the form and content of their accounts. That will provide a means whereby much greater control can be had over the form, content and consistency of those accounts.

These provisions are mirrored in relation to NHS foundation trusts, with Monitor or the Secretary of State specifying the form and content of the trusts' accounts, again with Treasury agreement.

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[Earl Howe]

My Lords, I would be delighted to have that conversation. I did not in the least mean to suggest that the ideas the noble Lord has put forward are in any way irrelevant. Indeed, quite the opposite, I am aware that there is a lot of work going on at the moment in the very areas that he has highlighted. I would be happy to write to him about that, if that would help as a precursor to a meeting.

I will just cover a couple of the questions that have been asked. The noble Baroness, Lady Morgan, asked to what extent the Office for Budget Responsibility would be involved. The OBR has a very specific role in terms of producing economic information. We would not see a role for the OBR itself in analysing the impact of NHS spending, but this is an area that is always under close scrutiny across the Government, in the Department of Health and beyond. I am leaving the possibility slightly open, if I may.

The noble Lord, Lord Walton, asked whether Sir David Nicholson would have sufficient financial expertise alongside him on the board. Sir David Nicholson has said in Developing the NHS Commissioning Board, published earlier this year, that the board will have a finance director as part of its leadership team. That is all I can tell him at the moment. However, it is clear that the board will have a major task in ensuring that sufficient financial control is maintained over the health service as a whole. If it fails to do so—as the noble Lord, Lord Warner, rightly reminded us—we are all in trouble.

The noble Lord, Lord Hunt, asked how we can achieve comparable performance measurement of CCGs. The board will be required to publish an assessment of CCG performance annually, including their financial functions. It must also publish a summary report of the performance of all CCGs.

The amendment is well intended; I have no difficulty with that. However, in practice, as framed, it would be onerous and cut across established government responsibilities. I know the noble Lord, Lord Warner, thinks I am just defending the status quo, but I am trying to say that I am not sure his formula would add much value, particularly as the underlying purpose of the amendment is already achieved under existing arrangements. For those reasons, I hope he will feel comfortable—for the time being—in withdrawing it.

[Lord Hunt of Kings Heath]

My Lords, I am grateful for the Minister’s response on clinical commissioning groups, but I come back to the question of GPs. Along with the noble Baroness, Lady Finlay, I do not think I was seeking to look at their business arrangements, but I am seeking to find out how their performance as primary medical providers is going to be measured in the future. When the Secretary of State announced his reforms, shortly after coming into government, he emphasised that he wanted to put responsibility for budgets alongside responsibility for expenditure, on the basis that GPs, either through referral or through prescribing, were responsible for most expenditure in the NHS. I assume the intention was, essentially, to encourage GPs to be much more effective in what they did in primary medicine, as it would impact on their budgetary situation; but, given that, how do we get to a situation where we can start to measure the performance of GPs? I do not pretend that it is easy—as I said earlier, I think our own experience with the GP contract shows some of the challenges. However, I would have thought that for the future, some comparative information about GP performance, in addition to the prescribing information that is now available, would help. For instance, one issue would be how good they are at demand management. How good are they at preventing their patients from inappropriately going to hospital? I would have thought this was a rich gold seam.

[Earl Howe]

I could not agree more with the noble Lord. We want to get closer to the question of what represents value for money in primary care. There are perhaps two principal ingredients of that equation. The first is the money we put into primary care, which we will know through the resource allocation formula, with which the noble Lord is familiar; the second is through highlighting the results achieved through primary care. Primary care clinicians will be accountable as never before by reference to the outcomes that they achieve for their patients. The other ingredient, overarching all that, is transparency. The more measures of performance that we can devise and place into the public domain the better in my view, and in the next few weeks, we will be announcing measures that I hope will be welcome in that regard. However, we are starting from a low base—not much information is currently published. We want to change that, and ensure not only that clinical commissioning groups and the NHS board are aware of all this but that patients and the public are aware of how well or badly a practice is performing. All these things such as prescribing rates and referral rates are key measures of performance, which we have to get closer to. If we can ensure that practices themselves are more able to compare their own performance with those of their peers, that too will be an advance. I am sure that this is a rich seam, as the noble Lord put it, and we very much hope to advance on that front over the coming months.

Health and Social Care Bill

Debate between Earl Howe and Lord Hunt of Kings Heath

Tuesday 22nd November 2011 Lords Chamber

[Earl Howe]

My Lords, this group of amendments usefully focuses us on reconfiguration and the sustainability of NHS services. The sustainability of services will be centre stage for commissioners and providers alike. I should like to set out some key features of the Government’s reforms, which I hope will reassure noble Lords that the system we have put in place will deliver sustainable NHS services. The first key feature is that local clinical commissioners will be responsible for securing continued access to healthcare that meets the needs of local communities in consultation with health and well-being boards. Any proposals for service change will be locally led by clinicians in consultation with patients and the wider community.

The second key feature is that the continuity of services regime requires Monitor to support commissioners to secure continued access to NHS services. Monitor will do this by undertaking an ongoing assessment of risk and intervening to support recovery and to prevent failure where possible. Therefore, the onus is on commissioners and providers to address any problems with the sustainability of NHS services. Only as a last resort where commissioners and providers have failed will Monitor step in to appoint an administrator to take control of the provider in order to secure continued access to NHS services.

The noble Lord, Lord Warner, suggested that there would be nothing between a locally led process leading to an agreed reconfiguration and Monitor triggering the failure regime. That really is not so. It may be helpful to the Committee if I explain. There are various levers available to Monitor before failure is even thought of. First, regulatory interventions are available to Monitor through the licence in order to protect patients’ access to essential services where Monitor considers that a foundation trust is at risk of becoming clinically or financially unsustainable. I agree that there should be a way for the system to respond when, as the noble Lord put it, trouble is seen to be coming down the railway track.

Where it is appropriate, Monitor would be able to direct a provider to appoint turnaround specialists that would provide additional capacity and expertise to support a provider’s management in turning an organisation around. Monitor would also be able to appoint a pre-failure planning team to work with commissioners to develop plans for securing continued access to services in the unlikely event that turnaround was unsuccessful. That process may identify reasons why service reconfiguration would be needed to secure sustainability, but it would remain a commissioner-led process. I hope that I have made it clear that it is appropriate for local clinical commissioners and not Monitor to lead this process with support from the NHS Commissioning Board. The board will be able to support clinical commissioning groups by providing support and advising on the possible effects of larger changes, and Monitor will support commissioners in protecting patients’ access to essential services through the licensing regime.

The noble Lord, Lord Hunt, suggested that the board should play a leadership role. The Bill allows for that to happen in a number of ways, using commissioning guidance to set expectations on how CCGs should deal with reconfigurations that span CCG boundaries. It would also provide access to advice in the form of senates to help them develop their proposals. Ultimately, where a local authority challenges a proposal, the board will be able to direct the CCGs on their plans, so there is an interest in making sure that those plans are robust to start with.

[Lord Hunt of Kings Heath]

My Lords, I am grateful to the noble Earl for giving way. I understand that, but is not the problem as my noble friend said? If you look back over the past 20 to 30 years, the NHS has found reconfiguration decisions very difficult indeed. The new system potentially has weaker bodies, in the form of the clinical commissioning groups, covering smaller areas, such that taking a bold decision on matters such as closing an accident and emergency department would be very difficult. In one way or another, what is being suggested is some kind of external mechanism that essentially forces the local health economy, both commissioners and providers, to come to terms with the latest knowledge in relation to safety and quality. They would actually have to face up to the challenge.

This happens in a way with the various inspections of the colleges and the deaneries, and we know of a number of hospitals where the viability suddenly goes because of an inspection and they are not approved for training. This has a devastating domino effect on the rest of their services. But surely the time has come for a much more proactive external review of each local health economy area. It would be of assistance to those who wish to move and modernise services because they would be able to turn to the mechanism, whatever it is, and say, “We have to change”. If the Government are simply relying in this legislation on local forces, my fear is that that simply will not happen quickly enough.

[Earl Howe]

I understand the noble Lord’s point; it is one that we have thought carefully about, as he might imagine we would. The trigger for local service reconfiguration is often a joint decision by commissioners and providers that the current configuration of services does not offer the highest quality care or that it does not meet current and modern clinical practice. It is usually a dialogue between commissioners and providers which identifies services as being, in some way, not optimal for patients, and that a reconfiguration is the most appropriate way to improve and modernise services, rather than smaller scale operational change.

We are proposing that commissioners should engage and consult on these changes in the normal way, working closely with providers and engaging with patients, the public and local authorities in developing their proposals. However, I agree that there are clear roles for the board, and for Monitor, in ensuring that this process is given a fair wind. They have an interest in ensuring that services are of high quality and sustainable and they will wish to add value to the process.

We talk as if all reconfigurations were long and drawn out—we all know of some that are like that—but the successful reconfigurations tend to be those that have involved more, rather than fewer, local stakeholders. That is why we are strengthening the powers provided by the Bill, so that reconfigurations can take place in a genuine spirit of local engagement and partnership.

Health and Social Care Bill

Debate between Earl Howe and Lord Hunt of Kings Heath

Wednesday 16th November 2011 Lords Chamber

[Earl Howe]

Part of the function of the board is to support decision-making at a local level if that is ever required. If there were a serious disagreement of the kind my noble friend describes, I envisage that the resources of the board could be made available to the decision-makers at local level to try to find a way through whatever disagreement had occurred.

[Lord Hunt of Kings Heath]

My Lords, I am grateful to the noble Earl, Lord Howe, for his response. Essentially what he is saying is that the reasonable requirement duty based on current legislation, together with the discretionary power in Clause 11, is sufficient to ensure that clinical commissioning groups will commission in a comprehensive way and deal with the many specific issues raised by noble Lords in this very interesting debate. He went on to assure us that if they are not doing that, the annual assessment based on outcomes alongside clinical commissioning guidance will make sure that CCGs are kept up to scratch.

My concern as to whether that is going to be sufficient partly comes because of the attitude of some GP practices to what one might call “difficult to reach” patients; for example, homeless people or people with mental health problems. We have heard about the rare disease issue. I am sceptical that the views of GPs in their surgeries are somehow going to be translated into a much more comprehensive vision the moment they step inside the door of the clinical commissioning group. That, at heart, is where people’s concerns are. I agree that framing an amendment to satisfy this point will not be easy, but I suspect that we will all want to come back at Report to try to button this down.

My noble friend Lord Warner referred to the question of interventions, which is relevant to this. I am still not clear. The Secretary of State has been right to intervene with PCTs on the question of artificial waits for treatment but CCGs will do the same because they will have the same problems with resources. We were told last week that we have got this cancer fund, about which there will be no option. Ministers will make other promises in the future and yet money is being taken out of the health service. There is bound to be tension around the CCG board table. What if it decides that the 18-week wait is no longer important to it or it has a rule that if it is not urgent, a patient has to wait for a certain amount of time—because it is a way of controlling its costs? Where, then, is the intervention going to be?

My final point is about this whole question of the mechanism of health and intervention. I have not picked up the local field force yet—this is an innovation. However, it is quite clear that the NHS Commissioning Board, at a local level, will have to be a local player. It has the right of attending health and well-being boards, and presumably, if we do not get integrated health and social care, it will have to take advantage of that presence. It will hold the contracts of all GPs, so I assume that it will deal with complaints. The local field force will have to deal with the allocation of patients to practices where GPs are refusing to accept them. I am left with a sense that, in fact, there will be quite a large bureaucracy at the local level; the difference being that now it is under a proper public board. In the future it will be an outpost of a massive organisation based at the centre. I question whether that really is an improvement on what we have.

This has been a good debate. I sure we will want to come back at Report stage on the reassurance we need about comprehensive commissioning by CCGs, but, at this stage, I beg leave to withdraw the amendment.

--- Later in debate ---

[Earl Howe]

My Lords, the noble Lord, Lord Hunt, has introduced these two amendments which deal with the important issue of mental health, high-secure mental health services in particular. Amendment 85 would reinstate the Secretary of State’s duty to provide high-secure services. I want to reassure the Committee that while this duty has been removed, the Bill is clear that the Commissioning Board must arrange provision of these services. But I recognise the concern and I agree that we must ensure these services are provided and that the Secretary of State continues to be involved. High-secure mental health services are highly specialised and have close links to the criminal justice system. They deliver high-quality clinical care and public protection. We have, therefore, set out in the Bill powers of direction over the NHS Commissioning Board in relation to its commissioning of high-secure services and over high-secure providers in relation to the actual provision of high-secure services. To give a couple of practical examples of the Secretary of State’s accountability, he needs to ensure that there is sufficient capacity in the high-secure system so that when the Secretary of State for Justice directs an offender to a high-secure hospital, there will be a place. Secondly, the Secretary of State for Health also needs to ensure that the high-secure system is safe and secure so that the Secretary of State for Justice is confident that when offenders are directed there, public protection will be upheld. The Bill also requires the Secretary of State to authorise high-secure providers. I am confident that these measures together ensure that these services will be properly commissioned by the NHS Commissioning Board, while retaining appropriate levels of intervention by the Secretary of State. I therefore hope the noble Lord will feel comfortable in withdrawing his amendment. He asked about oversight of secure mental health services. The commissioning of those services, as I have said, will be overseen by the Secretary of State. CQC and Monitor will oversee the provision of secure mental health services.

Amendment 86 would introduce a direction-making power in relation to the NHS Commissioning Board’s commissioning of mental health services in general. The noble Lord did not speak at length to that amendment. I explained just now that it is appropriate for the Secretary of State to have direction-making powers over the board in relation to the commissioning of high-secure mental health services. That is because of the specialised nature of those services and the links to public protection. But the noble Lord will not be surprised to hear me say that the introduction of a direction-making power in relation to the board’s commissioning of mental health services in general is not consistent with the approach in the rest of the Bill. As the noble Lord knows, mental health encompasses a huge range of conditions and services and individual needs and we believe local commissioning by clinical commissioning groups will be the best solution to meet most mental health needs with some commissioning by the NHS Commissioning Board for more specialised areas of care.

The noble Lord expressed doubts about the extent to which CCGs will have the necessary focus on mental health. Here we come back to the role of the board in issuing commissioning guidance to CCGs, underpinned by the quality standards that NICE will produce. We should remember, too, that CCGs will be consistently held to account against the outcome domains of the commissioning outcomes framework. Part of the holding to account will embrace mental health outcomes.

We demonstrated our commitment to mental health with the early publication of the cross-government mental health strategy. We had a lengthy debate about that important area earlier in the Committee's proceedings. I have no doubt that there is more to say, but I hope that, after those few remarks, the noble Lord will feel able to withdraw his amendment.

[Lord Hunt of Kings Heath]

My Lords, I am grateful to the noble Earl. On the role of the board in commissioning services, I will make a general point: clearly the national Commissioning Board will be very important. How it works should be scrutinised. I suspect that this will lead us on to the question of the mandate, which we will debate next week. At this stage, I beg leave to withdraw the amendment.

Health and Social Care Bill

Debate between Earl Howe and Lord Hunt of Kings Heath

Monday 14th November 2011 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, my noble friend should refine his amendment by limiting the number of grammatical devices that can be used.

I raised this matter because of what the noble Earl said. I raised the reported intervention by the Secretary of State in relation to primary care trusts and the concern that because of their financial issues they are essentially putting in some artificial barriers in relation to patient treatment such as having a rule that on non-urgent treatment you have to wait a certain length of time before you can be treated, and other such mechanisms. When I asked the noble Earl how this would work in the future, he told me that it would be put in the mandate. Clearly, what will happen—

[Earl Howe]

I am grateful to the noble Lord for giving way. If the board was not delivering the mandate, it is surely right that the Secretary of State should intervene. He has powers in the Bill to do that. Equally, if it is delivering the mandate, it is also right that it should be allowed to get on without interference from the centre. All we are saying is that the Secretary of State should be clearer about the reasons for his intervention in future. That is in everybody’s interests.

[Lord Hunt of Kings Heath]

Either the mandate is so detailed that you will have reams of paper telling the board what to do or the Secretary of State will rightly become concerned at issues that arise during the year. Those issues will not be covered by the mandate as they will not have been anticipated. The Secretary of State will wonder what to do and how to intervene. He will wonder whether he will be told by the national Commissioning Board, “Back off. It is nothing to do with you”, as nationalised industries used to do. This is no different from a nationalised industry. I am concerned because I believe that giving concurrent powers to the national Commissioning Board as well as to the Secretary of State will lead to a great deal of confusion, tension and ambiguity. At the end of the day I would prefer one person to be accountable—the Secretary of State. However, I am encouraged by what the noble Earl said about agreeing to look at this in the context of the other questions about the duty of the Secretary of State. I beg leave to withdraw the amendment.

--- Later in debate ---

[Earl Howe]

My Lords, this has been an excellent debate on a set of important issues, and I am glad to count my noble friend Lord Greaves as one of my staunchest supporters.

The NHS Commissioning Board is one of the key elements of our vision of a modernised NHS—a highly professional organisation, focused on quality and able to support clinical commissioning groups in delivering the best care possible to patients. I completely accept that these amendments were proposed with the best of intentions, to strengthen the way in which care is commissioned. However, in setting out why the Bill is drafted as it is, I hope that I can explain to your Lordships why I cannot accept them.

It will be key to the effectiveness of the board to ensure that it obtains sufficient advice and input from clinicians, public health experts, other professionals and those with relevant experience of the NHS—patients and the public—and that it has effective working relationships and arrangements with local authority government. We have stated our intention that there should be clinical and professional leadership on the board, but in terms of the legislative framework for the board it is an important principle to maintain that it should have autonomy of decision-making on matters such as its own membership and its structures and procedures, as far as possible, to determine how best to exercise its functions. This would include, for example, whether it has a vice-chair or a senior independent director, as Amendment 52B suggests.

One thing is absolutely clear. Members of the board will, in practice, need to have a range of skills, knowledge and experience appropriate to the issues faced by the board. Ensuring the right balance of non-executive members from a variety of backgrounds is key to achieving a successful board. But if the majority of non-executives were required to have a particular background, such as NHS experience, as suggested in Amendment 54, that might create an unbalanced board and effectively disqualify potential candidates from the private and voluntary sectors. I agreed with the most reverend Primate in what he said here. It is worth remembering that the board and its members will be expected to follow the seven principles of public life—the Nolan principles—one of which will mean that it must appoint a,

“well-informed choice of individuals who through their abilities, experience and qualities match the need of the public body in question”.

That sums it up very well.

A number of noble Lords made the point that if we require the inclusion of doctors and nurses or a public health specialist as put forward in Amendments 50, 52D, 54B and 56, what about representation on the board of dentists, pharmacists and allied health professionals? The list could go on. It would simply not be possible to accommodate all interests in the board’s membership adequately, and we would surely invite valid criticisms that one group is being prioritised over another. Nor would this be desirable from a Government’s point of view, given that the primary purpose of the members of the board is to hold the organisation to account. Nor, in my very firm view, would it be appropriate for a senior member of another organisation with a different purpose or remit, such as the chair of HealthWatch England, or indeed the Chief Medical Officer, to have a seat on the board, as suggested in Amendments 52C and 54A respectively. That could lead to a potential conflict of interest and confuse accountability. I agreed with the noble Lord, Lord Harris, on that point—although he is not in his place.

Of course, in practice, the board must have the freedom to determine how these varied and legitimate interests are best involved and represented in its work. The noble Baroness, Lady Murphy, was quite right—the board will want advice and expertise readily available to it—but that is a different issue from board membership. It is worth bearing in mind that the board will have the freedom to appoint committees and sub-committees as it considers appropriate, and this may prove useful to the board to bring in interested parties on specific issues.

A number of noble Lords asked about public health expertise. We are coming on to debate clinical senates, but one main reason for establishing them is to bring in this wider range of expertise in a way that would provide practical benefit. This would absolutely include public health expertise. We amended the duty to obtain advice to make this explicit. New Section 13J inserted by Clause 20 makes it absolutely clear that the board must obtain advice from those with professional expertise in,

“the protection or improvement of public health”.

There will be an interrelationship between the board and HealthWatch. The board must inform the body in writing of its response, or proposed response, to its advice; it must also have regard to the views, reports and recommendations of local HealthWatch.

My noble friend Lady Cumberlege asked about the size and membership of the board. The requirements in the Bill are that there is a minimum of seven members; the Secretary of State must appoint a chair and at least five other non-executives, so that is a minimum of six non-executive members. The non-executives must appoint a chief executive, who must be a member of the board. That is to say, there must be at least one executive member. Beyond that, they may appoint other executive members as long as the total of non-executives is always more than the total number of executives. The final decision on the number of other executive posts and the nature of their roles will need to be agreed with the chair and non-executive members, but it is envisaged that the other executive members besides the chief executive will include a nursing and a medical director, a director of finance, of performance and operations and of commissioning development.

All departments are required to ensure that appointments are open, transparent and made on merit. The Commissioner for Public Appointments regulates the processes by which Ministers make appointments to the boards of certain public bodies in England and Wales, and this will continue to be the case. It is not government policy to offer confirmation or affirmation hearings for public appointments, as Amendment 52A, tabled by the noble Lord, Lord Hunt, would require. These are ministerial appointments to make. The Cabinet Office maintains a list of posts that are subject to pre-appointment hearings by a House Select Committee. Ministers would consider the committee’s views, but such hearings are not binding and do not represent a power of veto. Your Lordships will be aware that we followed this process in the recent appointment of Professor Malcolm Grant as the chair of the NHS Commissioning Board.

[Lord Hunt of Kings Heath]

I am grateful to the noble Earl for what he said, but did he pick up my point that the Government set the precedent in relation to legislation with regard to the Office for Budget Responsibility? The Government have moved on, and I am sure that they did it because of the importance of that body. My argument is that the National Commissioning Board will be such a responsible body that there might well be an advantage in giving the Health Select Committee rather more leverage on it.

[Earl Howe]

My understanding is that we are following the normal procedure. There is a list of appointments that are subject to Select Committee scrutiny. Departments are consulted over the list. It is our intention that the role of the chair will be included in that—and that is exactly the same situation that applied under the previous Government. The Office for Budget Responsibility is an exceptional body in this respect, given its role in providing both government and Parliament with essential, impartial information, necessary for both bodies to be able to fulfil their responsibilities. Although I will reflect on the noble Lord’s comments, I do not know that there is the parallel that he seeks to make there.

Amendment 55 would remove the requirement from the Secretary of State to approve the appointment of a chief executive of the board. This requirement is included for the important reason that the chief executive of the board will be the accounting officer for the commissioning budget, so it is entirely appropriate that the Secretary of State should approve his or her appointment.

Health and Social Care Bill

Debate between Earl Howe and Lord Hunt of Kings Heath

Monday 14th November 2011 Lords Chamber

[Earl Howe]

As I have mentioned, the senates will come under the wing, so to speak, of the NHS Commissioning Board. They will effectively be part of the board. While we have yet to receive details of how the board will configure itself sub-nationally, it will clearly have to do so in ways that make sense of the local commissioning and provider architecture in an area so, where you have a university, it might well be that medical experts from that university will be part of the senate. It is too early to say, but I look forward to updating my noble friend as and when I have further particulars.

[Lord Hunt of Kings Heath]

I stand as a supporter of the noble Earl on the concept of senates. He is not getting much support but I agree with the point that he made that if clinical commissioning groups feel that there needs to be a wider strategic view, say on reconfiguration, the clinical senate could provide useful support. The problem is that some clinical commissioning groups may not think that there is a need for a wider strategic view because they will simply seek to defend existing provision. My argument is that you may need a mechanism which is somewhat more proactive, and which can intervene in the way that the noble Baroness's wonderful South West Thames Regional Health Authority used to do.

[Earl Howe]

The noble Lord could be proved right. As I have said, we will see how the functions of senates are defined. That work is ongoing. The initial proposals for the design and implementation of senates are currently being developed and initial straw-man proposals are being tested with the intention of presenting a clear set of recommendations to the top team of the special health authority later this year, so—

--- Later in debate ---

[Earl Howe]

My Lords, I take that point on board. It is my understanding that the NHS Commissioning Board will wish to set common standards for CCGs to follow. However, I will follow up that point with the noble Lord. As I said, the Bill requires each CCG to prepare annual accounts, independently audited. The board may, with the approval of the Secretary of State, direct CCGs as to the methods and principles according to which their accounts must be prepared, and the form and content of such accounts. Therefore, there will be scope for the board to drive consistency in the area the noble Lord mentions.

I turn now to Amendments 169, 175BA, 175C and 101A, which concern membership of, and appointments to, CCG governing bodies. In response to amendment 169, as the Bill stands, under new Section 14N, regulations may already provide that members of governing bodies must include the accountable officer of the CCG. Paragraph 11 of Schedule 1A also specifies that the accountable officer may be one of the following: a member of the CCG, or an employee of the CCG or any member of the group. Restricting the accountable officer to being the “most suitable senior employee” of the group, as Amendment 169 also proposes, would narrow who the officer could be and ignore other able candidates, so I am not attracted to that amendment.

Amendment 175BA, and Amendments 175A and 175B, which we will be discussing in more detail in a future group, clearly intend to ensure CCGs have access to professional or other expertise to advise on all areas of their work. This is undoubtedly important, but the governing body is not the route to achieve this. As the Future Forum advised, a clear distinction should be made between governance of CCGs and clinical involvement in designing care pathways and shaping local services.

Clinical involvement in designing pathways or shaping services is exactly what a CCG will need to ensure in exercising its duty in new Section 14V, which requires a CCG to obtain advice appropriate for enabling it effectively to discharge its functions from individuals, who, taken together, have a broad range of professional expertise.

Clinical senates and networks will, of course, be crucial to effectively meeting this duty and to ensuring that CCGs can access specialised advice, as will the local knowledge and public health knowledge held by health and well-being boards. We believe there is a case for ensuring that governing bodies include the voices of some other professionals—at least one registered nurse and a secondary care specialist—but it would be unhelpful, as the Future Forum also acknowledged, for governing bodies to be representative of each group. That could lead to bodies that are too large and slow to do their job well. CCGs should have the flexibility to determine the professional input into their governance arrangements.

Amendment 175C would provide for regulations to be made setting out how lay members are recruited and remunerated. Subsection (3) of new Section 14N already makes provisions as to the appointment of members, including lay members, to the governing body. Paragraph 12 of Schedule 1A allows the CCG to pay members of its governing body such remuneration and other expenses as it considers appropriate. These existing provisions cover the intent of Amendment 175C.

[Lord Hunt of Kings Heath]

My Lords, can the noble Earl assure me that the appointments will be made by independent bodies, and that it will not be a case of the board of the CCG making the appointments to itself? In terms of corporate governance, can he also assure me that non-executives will be in a majority as they are on every public body which the Government have recently enacted?

[Earl Howe]

If the noble Lord will allow me, I will answer those questions in a moment. Amendment 101A would similarly duplicate existing provision by placing a duty on the NHS Commissioning Board to ensure that all CCG governing bodies meet the requirements for clinical and non-clinical representation. The board already has to do this; under proposed new Section 14C, the board can grant an application only if it is satisfied that the applicant CCG has made appropriate arrangements to ensure that the group will have a governing body which satisfies any requirements imposed by or under the Act. That would include regulations made under proposed new Section 14N providing for minimum levels of clinical and lay representation.

Amendments 170A, 175D, 175CA and 175CB seek to introduce alternative governance arrangements for CCGs. These amendments would remove the existing functions of the CCG governing body and, through the proposed new schedule, replace the governing body with both a board of directors and a board of governors. I was grateful to the noble Lord for explaining where this idea originated. However, the amendments do not propose functions for these boards to exercise. They concentrate almost solely on the form of CCG governance; they neglect the function. As to that form, there is much here which is already provided for in the Bill and in relation to a governing body. I should perhaps explain that our preferred approach is to set through regulations the key requirements in relation to the composition of the CCG governing body and the logistics of their qualification, appointment, tenure and so on. This will, most importantly, allow flexibility for the approach to evolve over time and in the light of experience.

Turning to Amendment 59A on the subject of the area covered by CCGs, in the light of our lengthy debate on this last week, a letter will shortly reach your Lordships to provide further information on the arrangements for geographic areas of CCGs. It includes some analysis of the key issues which I hope will be useful and reassuring. We accepted the Future Forum recommendation that the boundaries of CCGs should not normally cross those of local authorities. If a CCG wishes to be established on the basis of boundaries that will cross local authority boundaries, it will be expected to demonstrate to the NHS Commissioning Board a clear rationale in terms of benefits for patients; for example, to reflect local patient flows and to secure a better service for patients. The board will also be required to seek the views of emerging health and well-being boards. In addition, CCGs will have the flexibility to enter into lead or joint commissioning arrangements with other CCGs; for example, for commissioning of lower volume or more specialist services. I hope that this reassurance will satisfy the noble Lord’s concerns.

Finally, Amendment 92ZZA seeks to mandate the Secretary of State to make regulations imposing a ban on shareholders and employees of commissioning support organisations being given a seat on a CCG committee or governing body of a CCG—I assume that it is the governing body that the amendment refers to rather than the NHS Commissioning Board. We agree that there should be no conflicts of interest between a CCG and any commissioning support organisation that it uses. The support offered by such organisations should inform decisions made by CCGs, but we have always been clear that CCGs cannot delegate their duties or responsibilities. However, such an absolute ban would not take into account situations, for example, where a CCG may wish to invite individual employees from commissioning support organisations to provide expertise on a committee. The Bill already requires CCGs to have robust provision for managing conflicts of interest in how they discharge their functions.

It is clear from the debate that these amendments were proposed with the best of intentions, but I hope that noble Lords will feel that the points that I have made are sufficiently compelling to encourage them not to press the amendments.

I have a few questions that I would like to answer briefly. The noble Lord, Lord Hunt, suggested that the chair and deputy chairs of CCGs should be lay members. Each CCG must have at least two lay members. We are specifying that, and we have committed that one of the lay members of CCGs will be either the chair or the deputy chair of the governing body.

The noble Lord, Lord Rea, asked me how a CCG’s geographic area would be determined. The primary factor in establishing the CCG’s boundaries or geographic area would be the practices that made up the membership of the CCG. The NHS Commissioning Board must satisfy itself that the proposed area for a CCG is appropriate and that the CCG can commission effectively for that area. That is a very condensed explanation of what the Commissioning Board will be looking for.

The noble Lord, Lord Hunt, suggested that he could not understand how CCGs would be accountable. Accountability is a key area. There is no doubt about that and I share the noble Lord’s desire to get this right. We listened to the Future Forum when it said that there is a balance to be struck between the need for good governance and the need to avoid overprescription. Perhaps that is a generally accepted principle—I certainly agree with that. I think the amendment of the noble Lord, Lord Hunt, goes too far. However, we are absolutely clear that CCGs will be materially accountable in a number of ways. I could recite a number of ways that I have in front of me, but at this hour it might be appropriate for the noble Lord to receive that in writing from me. I would be happy to do that and to copy it round.

On the subject of conflicts of interest, we will be having a very full debate in the context of Clause 20 on conflicts of interest. I have a lot of material here, but essentially there are principally three safeguards in the Bill to prevent conflicts of interest: statutory requirements on clinical commissioning groups to have in place arrangements to manage those conflicts of interest—those have got to be set out in the group constitution; secondly, strengthened governance arrangements as regards the governing body, and I briefly outlined those; and specific provision for regulations to require that the board and the clinical commissioning groups adhere to good practice in relation to procurement and in commissioning healthcare services.

My noble friend Lady Jolly asked who will appoint members of the clinical commissioning group boards. We will work with patient and professional groups and with emerging clinical commissioning groups to determine the best arrangements for appointing members of governing bodies. As I have indicated, the Government will issue regulations in due course, setting out in more detail the requirements for appointing non-GP members to the governing body.

The noble Lord, Lord Hunt, asked whether non-executives would be in the majority on boards. I am not currently able to give that assurance. We are still working with a wide range of stakeholders on the regulations for governing bodies. We are well aware of concerns in this area. I will take the noble Lord’s points very firmly on board.

Very briefly in this group, I would also like to speak to government Amendments 172, 173 and 175, which are minor and technical in nature. Amendment 172 clarifies that the remuneration committee of the CCG governing body has the function of making recommendations to the governing body on its determination of allowances payable under a pension scheme established by the CCG for its employees under paragraph 10(4) of Schedule 1A. Government Amendment 172 allows regulations made under new Section 14L(6) to make provision requiring CCGs to publish prescribed information relating to determinations of the allowances payable under a pension scheme. Government Amendment 173 makes provision for the board to publish guidance for governing bodies on the exercise of this function. I trust the Committee will join me in supporting these minor and technical amendments.

Health and Social Care Bill

Debate between Earl Howe and Lord Hunt of Kings Heath

Wednesday 9th November 2011 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, this has been a very interesting debate, and I am very grateful to the noble Lord, Lord Willis, and other noble Lords who have spoken in it very persuasively about the importance of research.

At heart, there are three particular questions that we put to the noble Earl, Lord Howe. First, how is funding for research to be protected? Secondly, how are we to ensure that strong leadership will be given from the centre? The third is the question of levers. What levers are there in this system to ensure that research is given a prominent place?

First, there can be no doubt whatsoever, as the noble Lord, Lord Willis, said, of the direct link between research and the quality of patient care. That must be at the forefront of our consideration. Secondly, he is also right about public health. Research into public health, evidence and epidemiology is vital if we are to improve the overall health of people living in this country. Thirdly, we have the contribution that research makes to UK plc, and specifically the contribution of the pharmaceutical industry.

When I chaired the competitive taskforce with the industry some years ago, we found that out of the 100 most important branded medicines at the time, 30 had been developed in the UK. Although the UK share of global spend on pharmaceuticals was about 2 per cent, our R&D contribution, including that of the industry, was about 10 per cent. I suspect that those figures have slipped a little since that report, but there is no question that the pharmaceutical industry in particular makes a huge contribution to our economy. We cannot be complacent about that in the future.

On the question of leadership, I was fortunate to be present at the recent annual conference of the NHS Confederation. I take the point made by the noble Lord, Lord Mawhinney, that, “They would say that, wouldn’t they”, when it comes to this rather foolish idea that somehow if you just leave it to them everything will be all right, but I recall a speech made by Dame Sally Davies in which she talked about the importance of research. She argued that the NHS itself has to make a greater contribution to research. This was not about funding; this was about NHS organisations recognising that research was important. It was a brilliant speech. It is essential that we continue to have that kind of national leadership in research funding.

There is a big question about what exactly the duty of the Secretary of State will be with regard to research if we end up with a highly devolved structure in which the levers left to the Secretary of State will clearly be limited. It is clear that the day-to-day concerns of most people in the NHS are going to be diverted into a market-orientated culture, where, frankly, the kind of collaboration that research requires across NHS organisations may well be regarded as collusive behaviour by economic regulators and the competition authorities.

I speak with some experience of economic regulation. Ofgem was the last economic regulator with which I had regular dealings as Minister for Energy. What struck me was that regulators’ concerns are much more about day-to-day issues than they are about the long-term viability of a particular industry. We found, with Ofgem, that we had to change the law to make sure that it had some regard to future customers rather than simply being concerned about the actual price of energy to the customers of today. If we have regulators whose main concern is about driving day-to-day competition, I wonder where issues of research come into play.

[Earl Howe]

My Lords, the primary duty of Monitor, as the noble Lord will have observed, is to patients. That is its overriding duty.

[Lord Hunt of Kings Heath]

Yes my Lords, but so was the overriding duty of Ofgem to the customer. The problem is how a regulator defines that responsibility. Since the Government are intent on this very foolish drive into competition, I believe that the risk is that the regulator will also be driven into thinking that that is its most important aim.

There are some real questions here, which I put to the noble Earl, about ensuring that there is sufficient concern, investment and leadership on the question of research. I would also ask the noble Earl how we protect and ring-fence the research budget. I ask him to think of the national Commissioning Board, faced with a hard winter, huge public concern and political pressure about funding, and the temptation to dip into the research budget. We all know that that happens. My noble friend Lord Warner and I were debating earlier who was responsible when there was real pressure on the training commissions. I thought it was my noble friend, actually, but we can continue to debate that.

--- Later in debate ---

[Lord Hunt of Kings Heath]

I should apologise to the noble Earl. The amendment was put down to probe the issues.

[Earl Howe]

I am most grateful to the noble Lord. In that case I shall not dwell on it at great length.

Amendment 40A, tabled by the noble Lord, Lord Turnberg, and other noble Lords, would require the Secretary of State to have regard to the need to promote the use of information derived from patients for research purposes while taking full account of the confidentiality of information. I welcome the intent behind this amendment, but it is in fact unnecessary. We recognise the important role that patient data, if treated carefully and confidentially—and that I hope goes without saying—can play in improving the quality of health research. I spoke earlier about our consultation document An Information Revolution, in which we propose that the most important source of data is the patient’s or the service user’s care record generated at the point of care. Information in these records also provides much of the data needed for other secondary purposes: for commissioners, for managers, for care professionals and, importantly, for research. We are using the responses that we received to the consultation, together with the findings of the NHS Future Forum, to develop an information strategy for health and social care in England. This will highlight how increased transparency and greater access to information supports improvements in care and research. It is the major work stream. I can reassure the noble Lord that we value the use of patient information where confidentiality is appropriately protected as a source of research and that we are looking at ways to embed its use in our information strategy.

Health and Social Care Bill

Debate between Earl Howe and Lord Hunt of Kings Heath

Monday 7th November 2011 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, this has been an interesting series of amendments. The noble Lord, Lord Patel, made a very important point about the influence that legislators can have in drafting legislation on the culture of the NHS. He speaks with great experience because of his work in Scotland on the development of clinical standards, and I am sure he is right to emphasise the words “health” and “clinical” in adding to our understanding of what we seek from the National Health Service.

The point raised by the noble Baroness, Lady Barker, is very interesting. This is meant to be a health and social care Bill, although there is very little about social care in it. Indeed, the only provisions ranging around social care are bad provisions. Remarkably, we are proposing to abolish the General Social Care Council, which ought to be an uplifter of standards among social workers. I give notice that I intend to thoroughly oppose these provisions and place the regulation of social workers into a health body. I look forward to the support of the noble Baroness, Lady Barker, on that when we come to it. I would have thought that the way through is either to add well-being to this part of the Bill or to say “health, clinical and other outcomes” to meet the valid point raised by noble Baroness.

My noble friend Lady Bakewell is very keen in her Amendment 18B to ensure that in securing the outcomes set out in the Bill, we,

“should not exclude sections of the population”,

on grounds of age. We look to the Minister to give us some reassurance on my noble friend’s point about the overarching indicators used extensively in the department and the health service, which go up to only the age of 75. It is not good enough to say that the data are still under development and therefore we will not worry about statistics on the over-75s. One would like to think that those indicators will be revised to embrace people over 75.

Amendment 16A, which is my own amendment, relates to the efficiency of the service. It seeks to add “efficiency” to the criteria that need to be considered. I would be interested to know from the noble Earl why efficiency is not mentioned in line 23 on page 2 of the Bill. My argument would be that a measurement of a service’s effectiveness may be of only limited value. One example might be the fraught question of new drugs and treatment being developed by industry and marketed indirectly to patients, for example through the sponsorship of charities that promote the case for the provision of new treatments in the NHS, and there is a strong case to make those treatments improve the effectiveness, safety and quality of experience. However, if you do not also have to consider efficiency, is there not a risk that you will not look at value for money or productivity and, in the end, not give a rounded analysis of a particular new treatment or technology?

Amendment 19, in the name of the noble Lord, Lord Patel, deals with the standards prepared by NICE under Clause 231. I hope that the noble Earl can clarify the status of NICE standards and guidelines. I have a later amendment on this matter, as do my noble friend Lord Warner and the noble Lord, Lord Patel. We have been concerned by suggestions that the Government are seeking to downplay the role of NICE and the statutory nature of its guidance on technology appraisals. I would be very grateful if the noble Earl could reassure me on that.

I remind the noble Earl that NICE was established because of the traditional delay in the health service when a treatment has been proven to be cost-efficient and effective. There was always reckoned to be a long delay from the time when it was proven to be cost-effective, efficient and clinically effective to the time when it generally available in the National Health Service. NICE guidance was designed to speed up the adoption of such proven new treatments, technologies and drugs. I am concerned about any suggestion of returning to the bad old ways when it was up to each clinical commissioning group simply to decide on a new technology and the group not having to follow the guidance set out in the NICE technology appraisals—if that is what they are called; I think we have probably moved on from that terminology. We will of course return to that later on in the Bill, but some assurance would be welcome.

I turn to my noble friend Lord Warner’s Amendment 109. I never understood the Opposition’s opposition to waiting time targets in the NHS. I remind the Minister that when his Government last left office they had the patients’ charter, which had a waiting time target of 18 months that they did not achieve. We got it down to 18 weeks, which had a hugely beneficial impact on patients. There is no doubt, if you look at regular polling, that the NHS was in very good condition in 2010 because to all intents and purposes the dreadful waiting that had been such a product of the NHS over many decades had been radically reduced.

We know that there is a sense in the health service that the Government are no longer worried about waiting times. I have no doubt whatever that if the pressure is taken off, waiting times will start to rise again. That might suit the Government because of the funding issues that they are confronting the NHS with, and it would certainly suit the private sector, which we know does well out of long NHS waiting times, but it will do patients no good at all. I do not know how far my noble friend Lord Warner intends to take this, either now or at a later stage, but it is important that we say in the Bill that we are concerned about the speed of access to services.

[Earl Howe]

My Lords, I am grateful to the noble Lord, Lord Patel, and other noble Lords for introducing this group of amendments. I agree with the noble Lord, Lord Hunt, that this has been an excellent debate with a shared commitment to ensuring that quality sits at the heart of the Bill. I find that heartening. I recognise the long experience of the noble Lord, Lord Patel, in defining what quality looks like.

The grouping revolves around the definition of the duty of quality and how the term “quality” is addressed throughout the Bill. As was discussed in earlier debates, the duty of quality enshrined in the Bill is derived from the report of the noble Lord, Lord Darzi, High Quality Care for All, published in 2008. The noble Lord set out that quality could truly happen only when three different factors were present: safety, effectiveness and patient experience. That definition was widely welcomed at the time and over the past three years has become valued across the NHS.

The definition did not come out of the blue. The noble Lord’s review was produced with the NHS, with patients, clinicians and managers, using the strategic visions developed in each of the 10 strategic health authorities. Its definition of quality—effectiveness, experience, safety—has survived even the electoral cycle. Indeed, one of our first priorities as a Government when we came to power was to build on the noble Lord’s work. We did this through publishing a consultation paper and then following it up with the first NHS outcomes framework, published in December last year. Respondents to the consultation on the outcomes framework were highly supportive of the continued use of the definition of quality and the fact that the framework sought to measure patient-reported outcomes and patient experience as well as clinical outcomes.

The question we have to ask ourselves about the amendments is simple: does the definition need to change? My view is clear: we should stick with the original definition. However well intentioned the amendments are, there would be risks attached to them.

I shall start with Amendments 19, 110, 134, 179 and 181. The intention, if I understand it correctly, is to specify that the duty of quality should be restricted to clinical matters in order to ensure a focus on clinical quality and outcomes for patients. I understand the noble Lord’s arguments but my fear is that these amendments would have the effect of narrowing the duty of quality and losing the integrated approach that it embodies. Let us consider this with regard to quality standards, covered in Clause 231. Quality standards, as I have already said, bring clarity to quality, providing definitive and authoritative statements of high quality care that are based on the evidence of what works best. That idea opens up the opportunity for quality standards to cover an integrated care package, from public health interventions in primary care to rehabilitation and long-term support in social care, thereby supporting the integration of health and social care services. I fear that we would lose this integrated approach if we were to restrict the Secretary of State’s obligation to looking only at clinical standards.

Health and Social Care Bill

Debate between Earl Howe and Lord Hunt of Kings Heath

Monday 7th November 2011 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, I hope that the noble Lord, Lord Phillips, will continue to waffle on, because it seems to me that he has put his finger on the real concerns that so many have about this Bill and why people are so opposed to it. The continuing puzzle is why we have this Bill at all when the NHS was in such good condition at the time of the last election. The noble Earl, Lord Howe, might get cross that I come back to this point, but that puzzlement is shared by almost everyone working in the National Health Service and certainly by most patients.

We do not understand what this Bill is all about, unless the noble Lord, Lord Phillips, is right that, essentially, this is about taking the NHS on a journey to become a second-rate service for the poor and needy. One can see the building blocks that are being put in place. First, the Secretary of State seeks to downplay his or her responsibility for the provision of services. Secondly, we see the NHS starved of resources.

The NHS—I should perhaps remind the House that I chair an NHS foundation trust—is supposedly receiving a real-terms increase in its resources, but I can tell the noble Earl, Lord Howe, that that real-terms increase has not reached the service. I do not know where that money is. Either the money is being kept as a bung for GPs and clinical commissioning groups or for the costs of the reorganisation and redundancies that will need to be paid, or, perhaps, it is being held in a fund that will be let out when the NHS reaches crisis point this winter. I do not know, but I can tell the noble Earl that, up and down the country, NHS trusts are facing considerable financial challenges. It can be the only explanation for why the Government are putting so much less emphasis on dealing with waiting times. We had the amendment from my noble friend Lord Warner early on. I do not think the noble Earl was able to convince the House that this Government really are concerned about the waiting times for patients. The risk is, as my noble friend Lady Armstrong said, that we will go back to the bad old days of long waiting times, when consultants faced with patients encouraged those patients to go for private treatment. There are so many examples of this perverse practice that I fear we are going back to it again.

Another factor in where we are going is the noble Earl’s refusal to refer to NHS trusts and foundation trusts. All we hear from the Government is this generic term “provider”. Of course we understand that, because it is the mantra of Ministers that there is no distinction; the qualification is qualified providers. So the NHS institutions are simply to be seen as a provider, no different from private sector providers. No wonder Ministers are prepared only to talk about commissioning as being part of the NHS. It is almost as if the provider side has been completely written out of the script when it comes to the National Health Service. It is quite clear that, notwithstanding the fact that Monitor will also have to have a role in integration, its real emphasis is on promoting competition. When one considers the issue of the private patient cap, one has to do it in the context of where one thinks the Bill is going.

I must say that I disagreed for once with the noble Lord, Lord Walton. I have very great reservations about the removal of the private patient cap. I certainly understand that there is a need to review how it is working. If there is local support through the members of foundation trusts or the governing body, maybe even through the local health and well-being board, to remove the cap to that extent, I can see that there may be a case for it. However, there needs to be some control to ensure that NHS organisations do not go mad and seek to have a huge increase in their private patient income, because that would be bound to distort their whole behaviour and how they approach NHS patients. I well remember when I first worked at the Nuffield Orthopaedic Centre in Oxford, where we had a private patient ward—it was called the Mayfair ward, for some reason. I am sure that the doctors and nurses there would say that the clinical care was just the same, but my goodness me it was very interesting to see the succession of the matron, the senior physiotherapists and the senior consultants walking down to that ward and the amount of time they spent there.

Having a large amount of private care within an NHS organisation is almost certain to distort how that organisation approaches NHS patients. That is why this group of amendments is very important. I hope that the Minister will consider coming back on Report and taking part in our further discussions about the private patient cap. The noble Earl, Lord Howe, should be in no doubt that there is widespread suspicion throughout the National Health Service at the Government’s motivations in relation to this Bill. This is one of the core issues that lead to that suspicion.

[Earl Howe]

The noble Lord, Lord Hunt, should be a little bit careful before he comes to this Committee and speaks as though it were Second Reading and as though he were not chairman of the Heart of England trust, which I do not doubt has a goodly number of private patients in its midst. He should bear in mind that it was the last Labour Government who introduced private sector involvement into the NHS in 2007; the independent sector was paid on average 11 per cent more than the NHS price.

--- Later in debate ---

[Lord Hunt of Kings Heath]

I do not know why the noble Earl mentioned the Heart of England NHS Foundation Trust. I declared my interest but I am clearly speaking on behalf of the Opposition here. I thought that was a really unworthy remark. As for the general point being made, yes, we invested in the private sector. Why did we do that? It was because we wanted to tackle waiting times. Why did we have to tackle those? It was because there was a real issue in some hospitals with consultants and their productivity. That is why we introduced independent sector treatment centres and why waiting times were reduced to 18 weeks. As for this issue, the noble Earl says that I have gone outwith this amendment but I refer him back to the comments of the noble Lord, Lord Phillips, who talked, quite rightly, of the risks of a two-tier service. That is exactly the issue of concern that I have with the heart of the Bill.

[Earl Howe]

I have no issue with the private sector acting to provide services for NHS patients, and never have had. My point was that it is a bit rich on the part of the noble Lord to attack the private sector in the way that he did. It is also a bit rich to say that the NHS has been starved of money. If the country had been foolish enough to elect the Labour Government at the election last year, the NHS budget would have been cut. It would not have been kept abreast of inflation, as we have done. It is absolutely monstrous for the noble Lord to pretend otherwise and the caricature that he has given us of this Bill, and what it does, does him no service whatever.

I would like to move on to my noble friend's amendment. Amendments 24 and 30, introduced by my noble friend, would impose on the Secretary of State a duty to have regard to the need to prevent inequalities of treatment and healthcare developing between NHS and private patients. To start with, it is helpful to have clarity around the definitions as there is sometimes scope for misunderstanding. I believe that the amendments are referring to the potential for inequality between services that are paid for by the NHS and those that patients can pay for privately within an NHS hospital. As my noble friend knows, that is of course not the same as the issue of NHS-funded services being provided by private or voluntary organisations. A patient funded by the NHS is an NHS patient, wherever he or she is treated.

In addressing the issues raised by my noble friend, I feel that I have to begin with a basic point. I am not sure, although my noble friend may yet convince me, that it is a matter for public policy to have a target of narrowing the outcomes between NHS and private-funded healthcare. I understand that many people feel uncomfortable at the idea of private-funded healthcare, especially within an NHS hospital. It has always been a controversial subject for Parliament yet the truth, as we heard from my noble friend Lord Ribeiro, is that private healthcare has always coexisted alongside the NHS. Some people will always wish to pay to be treated in more comfort or more quickly than a publicly funded healthcare system can afford and, at the margin, there will always be some treatments that are clinically available but which are not considered cost-effective for the NHS to fund. Some people will want to pay for those and, in a free country, I do not believe that it is the role of the Government to stop that.

However, I do not believe that there is a gaping chasm between the types of clinical treatment offered by the NHS and by private healthcare. The NHS aims to offer a comprehensive health service and, by comparison with many other countries, the private-funded healthcare sector here is relatively small. This illustrates the high degree of public confidence in the NHS as an institution, in that relatively few people decide to pay for a private alternative. Furthermore, rather than making comparisons with private healthcare, we believe that the Secretary of State should be focusing on improving the quality and equity of the services available to those who use the NHS. That is why the Bill introduces for the first time a duty to have regard to the need to reduce health inequalities, and that clearly emphasises our commitment to fairness across the health service. It also recognises the reality that there are many stark variations in quality and access within the services that the NHS funds before we start looking at the comparison between NHS and private healthcare.

In addition, the Bill places a new duty on the Secretary of State to exercise functions with a view to securing continuous improvement in the quality of services. The Secretary of State will therefore be responsible for doing all that he can to ensure that the NHS provides the best quality care to all its patients, no matter what treatment they are receiving or when they are receiving it. The aim of the Government and the Bill is to create a system that delivers world-class healthcare and healthcare outcomes for all NHS patients.

I understand that there is some residual concern that private healthcare might represent a better deal for patients treated by NHS providers but we do not believe that this is the case. Ethically and professionally, clinicians are required to treat all their patients to the same standard and should not discriminate in any way. It would be wrong to suggest that the vast majority who provide an excellent standard of care would do that. We have in place a robust system of service quality regulation that the Bill strengthens and makes more accountable. Fundamentally, the GMC’s Good Medical Practice states that the overriding duties for doctors include making the care of patients a doctor’s first concern and never discriminating unfairly against patients or colleagues. This means that if a doctor were treating private patients to a better clinical service, they would be in breach of these principles and could therefore be putting their registration at risk.

Similarly, any doctor who inappropriately attempts to persuade patients to use private services for their own gain would be in serious breach of medical ethics. For example, the department guidance on NHS patients who wish to pay for additional private care says this:

“NHS doctors who carry out private care should strive to avoid any actual or perceived conflict of interest between their NHS and private work”.

Indeed, the GMC’s own guidance states:

“You must give patients the information they want or need about … any conflicts of interest that you, or your organisation, may have”.

It makes the point again, in Good Medical Practice:

“You must not put pressure on patients to accept private treatment”.

Health and Social Care Bill

Debate between Earl Howe and Lord Hunt of Kings Heath

Tuesday 25th October 2011 Lords Chamber

[Earl Howe]

I am surprised by that criticism because that is designed to capture trainees, who may not have a guaranteed job at the end of the day. If you simply refer to people who are already employed, you surely cut that cohort out of the equation. That is the purpose of those words, and I think they are entirely appropriate.

[Lord Hunt of Kings Heath]

I return to my noble friend Lord Warner’s intervention. In the case that he mentioned, it was I who was summoned before the Health Select Committee to explain what we were going to do about the problem. We intervened and told the SHAs that they jolly well had to sort this out. I do not see, under the arrangement that he is proposing, who on earth is going to be able to intervene.

As the noble Lord, Lord Owen, suggested, I suspect that an intervention against Health Education England will be very rare indeed, in terms of being able to be comprehensively assured that HEE had failed in its duty. Indeed, there is surely a risk that if you have a narrow quango, such as HEE, solely concerned with education and training, it will not be concerned about resource issues or about the duty of the Secretary of State to promote or assure a comprehensive health service; only the Secretary of State himself can come to conclusions about the overall direction of the health service; only the Secretary of State can balance the conflicting demands of education, service provision and resources. There is a great danger of seeking to push all these responsibilities offshore, because when trouble comes—and trouble will come—it will be the Secretary of State whom the public and Parliament will expect to intervene. At the moment, I cannot see how, under this system, if things go wrong, they are to be put right.

Health and Social Care Bill

Debate between Earl Howe and Lord Hunt of Kings Heath

Wednesday 12th October 2011 Lords Chamber

[Earl Howe]

My Lords, that is the firm advice that I have received.

[Lord Hunt of Kings Heath]

My Lords, in my experience, if this House wants something to happen it finds a way for it to happen. Even at this late stage, I ask the noble Earl to give careful consideration to this. I have already said from this Bench that we are happy to meet through the usual channels to agree a date by which the Committee stage will be finished on the Floor of the House. I am sure that the noble Lord, Lord Owen, as far as he is able, will wish to say that he is happy for the special committee to finish by a certain date. I do not believe that it is impossible for agreement to be reached on this.

[Earl Howe]

My Lords, I very much welcome that offer, which has come rather late in the day. My understanding is that discussions over the timetabling of the Bill have taken place over the past week. However, we are faced with the amendment that is on the Order Paper and must vote on it as it stands.

NHS: Future Forum

Debate between Earl Howe and Lord Hunt of Kings Heath

Tuesday 14th June 2011 Lords Chamber

[Earl Howe]

I thank my noble friend for raising this important topic. I cannot provide him with the kind of detailed replies that he seeks. Those should emerge over the next few days as we work through our response fully. But I can tell him that we will amend the Bill to strengthen and emphasise the commissioner’s duty to promote choice in line with the right in the NHS constitution for patients to make choices about their NHS care and to receive information to support those choices. We believe in patients’ choice and in competition, as I have already indicated, where that is appropriate. As recommended by the Future Forum, the Secretary of State’s mandate to the board will set clear expectations about offering patients choice.

We will maintain our commitment to extending patients’ choice of any qualified provider, but we will do this in a much more phased way. We will delay starting until April 2012, and the choice of any qualified provider will be limited to services covered by national or local tariff pricing to ensure that competition, where it occurs, is based on quality. We will focus on the services where patients say they want more choice—for example, starting with selected community services—rather than seeking blanket coverage. Of course, with some services such as A&E and critical care, any qualified provider will never be practicable or in patients’ interests.

I have already referred to the changes in the duties of Monitor, in its competition functions. The NHS Commissioning Board, in consultation with Monitor, will set out guidance on how choice and competition should be applied to particular services, guided by the mandate set by Ministers. That includes guidance on how services should be bundled or integrated.

[Lord Hunt of Kings Heath]

My Lords, I declare an interest as chair of the Heart of England NHS foundation trust and as a consultant trainer in the NHS. Like other noble Lords, I am very grateful to the noble Earl for his stewardship of this matter in your Lordships' House. It is noticeable that the Government are continuing with their policy of placing £60 billion in the hands of commissioning consortia, which would be largely led by general practitioners. What I thought was missing from both the listening exercise and the Government’s general approach was any indication of how the standards in general practice are to be improved. A huge amount of power is to be given to general practice, yet we know that the general quality of GPs is very variable. In some parts of the country, it is very difficult to get access to GPs out of nine to five hours; in some parts, GPs have shown themselves completely unable to engage in demand management. Will these commissioning consortia be able to get to grips with poor quality GP performance?

[Earl Howe]

The noble Lord, Lord Hunt, raises an important issue. I agree with him that the quality of general practice has been extremely variable. We saw a report the other day, published by one of the think tanks, which said exactly that. We have some very good GPs, but we have some who, frankly, are less than the standard that we would want and expect in primary care.

We are doing a lot of work to roll out leadership programmes for general practitioners. The National Leadership Council is working with GPs to agree the skills required for commissioning and will assist GPs in developing these skills as appropriate. The NHS institute is also doing some good work in this area and we will shortly be able to provide a bit more detail on how we can develop leadership, regionally and nationwide.

The noble Lord’s question runs rather wider than that, being about the quality of care delivered by GPs. In rolling out the outcomes framework and the commissioning outcomes framework, and the transparency that goes with that, it will become rapidly apparent which GPs require more support. I have no doubt that the consortia or, as we are now calling them, clinical commissioning groups will see it as being in their interests to ensure that the poorer performers are brought up to the standard of the best.