Health and Social Care Bill

Debate between Lord Clement-Jones and Lord Warner

Tuesday 13th December 2011 Lords Chamber

[Lord Clement-Jones]

I am grateful to the noble Baroness.

[Lord Warner]

Is the Committee happy for me to continue? I consider that research evidence as is available, such as that carried out by Dr Zack Cooper at the LSE, shows the benefits of competition and supports the view that competition, when used sensibly, improves services for patients and can indeed save lives. It is perfectly possible to support both competition and integration; they are not mutually incompatible. I shall not pursue the evidence base for my views today. However, I should like to clarify briefly the circumstances in which we should be supporting the use of competition in the NHS in the best interests of patients and why it is important to tackle barriers to entry to the NHS market. It is important to recognise that we already have an NHS market in which many NHS providers do indeed compete for patients against other NHS providers. The Bill does not suddenly inject competition into the NHS but merely tries to impose some better rules and a system for regulating that competition.

There are basically three sets of circumstances in which competition could—not should—be used. The first is that, as a matter of principle, all NHS providers should be subject to market testing periodically. The second is when there is clear provider failure and it seems sensible to test the market to establish the best set of arrangements for replacing the failed incumbent. The third is where there is a set of circumstances when the NHS itself—the commissioners in practice—wish to change significantly the way in which services are provided and it is not apparent that the current incumbents can adjust quickly to the patient’s needs. The first set of circumstances has often caused a great deal of angst in the discussion of competition. I certainly do not start from that position. I believe that it is the second and third areas that I have described where we need to examine whether there are real barriers to entry by new providers, irrespective of whether those providers come from elsewhere in the NHS—from the private sector, social enterprise or the voluntary organisations.

Amendment 266 is concerned to establish much more clearly than now what the barriers to NHS market entry are. We know from the work of the collaboration and competition panel that primary care trusts have behaved in anti-competitive ways and have frustrated the best interests of patients. We know from the experience of the East Surrey nurses when they tried to set up a social enterprise how frustrated they were at changing themselves from NHS employees into a social enterprise so that they could compete for NHS business. We know that across the voluntary sector, voluntary organisations have been frustrated over their attempts to compete for NHS services over a long period of time. We also know that many private providers of services find the tendering processes for providing NHS services prolonged and excessively expensive and that they are too often frustrated by shifting political opinions about the desirability of competition.

I could go on with examples of the way in which the NHS has effectively shut the door to new entrants. Some of the most recent examples are the ways in which many primary care trusts divested themselves of their provider services without any proper system of market testing when it was clear that many of those services were extremely inefficient. We need to take the NHS out of its comfort zone in a future where it faces a huge set of demographic and financial challenges. Keeping it in the NHS family is no longer acceptable or in the public interest. We need an independent, authoritative and robust analysis of the barriers to entry to the NHS market so that we can consider what action should be taken to remove those barriers. Amendment 266 proposes that Monitor does this within a year of Royal Assent. I believe that Monitor would welcome being given this assignment but I would be more than willing to consider alternatives if the Government thought, for example, that the Office of Fair Trading was a more appropriate organisation to do the job. It is important that we get this job done as speedily as possible. I also support Amendments 278 and 287 to which the noble Lord, Lord Patel, will be speaking and to which I have added my name.

[Baroness Williams of Crosby]

My Lords, I am very grateful that Amendment 265C has somehow managed to escape from the tsunami of amendments so that I can bring it to the Committee’s attention very briefly. It is again an amendment that seeks to make sure that when competition is allowed or encouraged—the noble Lord, Lord Warner, has spoken on these lines himself—it should be because it clearly improves the quality of health and the quality of provision within society as a whole. The purpose of Amendment 265C is to make it clear that competition is welcome when it improves the quality of the service; it narrows inequalities; it ensures, in particular, that there should be a better outcome as a result of that competition; and it is, therefore, a relatively qualifying condition to permitting competition to flourish.

We have heard a number of very well informed speeches in the House, not least from the noble Baroness, Lady Meacher, to the effect that in some situations competition can clearly encourage innovation, can improve new approaches and can help in providing the NHS a way forward to deal with the huge problems that we all recognise exist. However, in large part we are also very worried about the idea of competition as the ruling principle of the health services in this country, and we heard a very moving set of evidence from the noble Lord, Lord Owen, and the noble Baroness, Lady Thornton, about the devastation that unrestrained competition can exercise on a health service.

However, having spent 10 years of my life in the United States, I absolutely corroborate that. I know far too many people, one or two of whom are National Health Service refugees to this country, of outstanding talent, who are not in a category where they can afford the huge prices that are charged for complex and chronic conditions in the United States. How do we achieve this difficult balance so as to have competition that improves the quality of the health service but does not bring about the devastation of a great many human beings because they simply cannot afford the cost of complex operations or looking after the chronically ill? The situation of the chronically ill in the United States is pathetic in very many cases.

Therefore, this amendment and several others in this group would enable us to walk this delicate line in a way that permits competition, but competition that is in the interests of the patients of the health service and not competition that could devastate the health service itself.

Health and Social Care Bill

Debate between Lord Clement-Jones and Lord Warner

Monday 28th November 2011 Lords Chamber

[Lord Warner]

My Lords, I rise to speak in support of Amendments 124, 125, 126 and 196, which are in my name in this group. These amendments are on slightly different aspects of patient involvement and patient choice in new Sections 13H and 13I in Clause 20.

Amendment 124 adds words to the duty under new Section 13H to promote the involvement of each patient. Nothing seems more likely to promote that involvement than ensuring that patients have easy access to their own medical records and, even better, hold their own medical records. The amendment puts those matters in the Bill as part of the duty of promoting patient involvement in decisions about their treatment and care. If patients are to be involved in decision-making, it is important that they can be confident about the information about them that is being held by clinicians and used by those clinicians in making decisions about them. We have moved a long way from a position in which doctors could say, “Trust me, I’m a doctor”. That is not to say that patients do not place a lot of trust in doctors, but the more examples of systems failure that patients hear about, the more I suspect they will want to be sure about what the system has on record about them. This is particularly true when we are dealing with end-of-life issues. Some of us are very keen to ensure that doctors and nurses observe our advance decisions in living wills that are placed in medical records rather than just make decisions on our behalf.

Amendment 125 literally follows on from Amendment 124 and reflects a number of conversations that several of us have had with National Voices, which speaks on behalf of many charities, especially those representing people with long-term conditions. National Voices, with assistance from the Health Foundation, has drawn on a lot of work to distil what it believes service-users expect from those commissioning care. The noble Baroness, Lady Finlay, referred to the work being done by the Health Foundation. This work with National Voices was born from the huge frustration of patients, service-users and carers about the way that they are often treated by those providing services. National Voices has also set out the results of this work in an excellent document called Principles of Integrated Care. Many Members of this Committee may well have a copy of it. If the Minister has not seen it, I commend it to him. I am certain that it has been sent to Sir David Nicholson. Around 50 chief executives or chairs of voluntary organisations involved with National Voices signed a letter to him, commending this piece of work.

Amendment 125 tries to ensure that there is a clear obligation on clinical commissioning groups to pay heed to patients’ and service-users’ voices in their commissioning of services and that the board issues guidance in this area to clinical commissioning groups. I hope that today the Minister will at least take away this amendment, discuss it in detail with National Voices and those of us who are involved in this area, and agree a version that can be included in the Bill and with which everyone is content. Of course, if he wishes to say “Snap!” to these words, we will be delighted. I emphasise that Amendment 125 does not come from the fertile minds of people in this Committee. It comes from the experience and views of many thousands of people with long-term conditions whose representatives have discussed and researched this very thoroughly within the ambit of the Health Foundation and National Voices.

Amendment 126 is on a different topic altogether. It tries to sharpen the duty of patient choice in new Section 13I in Clause 20, which in my view is pitifully vague. When they are exercising choice, people need to know what the speed of access to diagnosis and treatment is; where the location options and alternative providers of service are; and some information on the different levels of performance by those providers. Choice cannot be exercised in a vacuum. If people are to exercise meaningful choice, they need information that they can draw on to make their decisions about what is best for them. They should not simply be guided to local incumbents, which is too often the case in the system as it works now. Very often, those local incumbents may not be the best option for the patient seeking services for their particular condition at a particular time in their life.

I speak with some confidence on this, having spent two years as a Health Minister trying to advance the cause of patient choice. I have had a fair exposure to clinical views about patients not wanting it and just wanting a good local hospital. I have seen at close quarters commissioners in excessively close relationships with local providers. I have heard the voices of patients frustrated at being denied the information they need to exercise choice. I have experienced, at first hand, consultants declining to place their consultation slots on the Choose and Book system. I know that we need much more than the vague wording of new Section 131 in Clause 20 of the Bill. I hope that the Minister, who I know to be a strong advocate of patient choice, will throw away his brief and say yes, we do need more specific wording of the kind in Amendment 126.

I hope the Minister will do likewise in respect of Amendment 196, which applies the same increased precision to the duty as to patient choice and places it on clinical commissioning groups as well as the board. I will not go over the arguments again, as they are exactly the same as those I have deployed on Amendment 126. It is even more important to disturb the cosiness of provider incumbency when we come to clinical commissioning groups. I have added a little piquancy to the clinical commissioning groups amendment by a specific reference to end-of-life care, where we badly need more options for people to choose from if their preferences are to be delivered.

I have spoken for too long already, but I also wish to add my support to the amendments in the name of the noble Lord, Lord Patel, to which I have added my name.

[Lord Clement-Jones]

My Lords, I shall speak to Amendments 127B and 197B. As they relate to pharmacy, I declare an interest as the chairman of the Council of the School of Pharmacy, University of London. The intention of these amendments is to ensure that all relevant healthcare providers, including community pharmacists, are consulted when the NHS Commissioning Board and commissioning groups are discharging their functions and developing their business and communications plans. The essence of these amendments is to retain the long-standing arrangement whereby, under the 2006 Act, commissioning bodies have to consult widely and in good time with all relevant stakeholders, including local service providers or their representatives.

Under the current system, primary care trusts are required to consult widely in relation to their commissioning duties. There is concern in the pharmacy profession that the current provisions under Clause 20, new Section 13J, for the board, and Clause 23, new Section 14V, for clinical commissioning groups, to obtain appropriate advice are too vague. It is important that consultation with all local healthcare providers should be done via local representative bodies as well as directly with providers. Clinical commissioning groups should consult pharmacy professionals when making decisions in relation to the commissioning of relevant services in order that the professional skills, knowledge and expertise of pharmacists are used in planning, commissioning, delivering and evaluating NHS services. They should also demonstrate arrangements systematically to seek the views of all appropriate local clinical groups throughout the commissioning process, in general and for particular services. This would include ensuring that all local representative committees are fully engaged in the commissioning process and signed up to the outcomes agreed.

As part of their local leadership role, clinical commissioning groups also need open and transparent processes for reconciling different professional perspectives and contingency arrangements for seeking the agreement of non-GP professional groups in the case of urgent service change. These processes should be clearly set out as part of the CCG’s governance procedures for commissioning decision-making. The above will be of particular importance in the immediate term, given the influx of new commissioners into the market, to ensure commissioners commission services effectively. Without relevant healthcare providers being consulted, the different contributions that such providers, including pharmacy, can make to local healthcare could be lost.

If used effectively, pharmacy has the potential to deliver a great deal more both to patients and commissioners. For example, it is estimated that some 57 million GP consultations each year involve minor ailments which could be dealt with at a pharmacy. If these patients could be moved to a pharmacy, more than £812 million could be saved annually, and GP capacity could be freed up to deal with more complex cases.

In summary, it is critical that there is a duty on commissioning groups, when developing their commissioning plans, to consult primary care providers such as pharmacists as there is a danger under the proposed legislation that some groups may not do so, leading to ineffective commissioning of services. At the Royal Pharmaceutical Society Conference in September, the Minister said that pharmacists are pivotal to every aspect of the Government’s plans to modernise the NHS. I find those words very encouraging and hope that he can give further encouragement in the course of this debate.