National Health Service (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013

Debate between Lord Davies of Stamford and Baroness Hollins

Wednesday 24th April 2013 Lords Chamber

[Lord Davies of Stamford]

I am in favour of scrapping all these regulations completely and simply voting them down tonight. That is my simple answer. I put the onus on to the noble Lord—if he can come up with a suggestion which reassures me, so much the better.

My second concern is over the future of networks. I was lobbied over the weekend by one or two doctors in Lincolnshire and I undertook to speak about this matter. One of them served as a junior doctor in Newcastle under the noble Lord, Lord Walton, and was full of affectionate and very admiring memories of the way in which he ran his department. Nevertheless, those doctors are deeply concerned—as are so many across the country—about the impact on networks. We have all read the handouts and papers from the BMA on this subject. I notice from the way in which the regulations are drafted that the protections regarding networks and integration in Regulations 2 and 3(4) in no way override the requirement in Regulation 5 to go for tendering. That is not a sufficient protection. They simply say that there is one criterion, and that is not good enough. If the Government want us to take these regulations seriously, I expect them to provide some specific reassurances on that.

My third concern is this. We all know that the ratio of fixed to variable costs in healthcare is extremely high. To use a technical term, the operational gearing of healthcare, particularly in the secondary sector, is very high. That means that if you take out any particular activity from a general hospital, the existing overheads will then fall on a reduced range of activities and therefore a reduced range of revenues. So you will make unviable—or are likely to make both financially and possibly technically unviable—other services which are being delivered in that particular hospital.

Under these new regulations, will it be possible for a CCG to take the view that it does not want to tender either service, which, if it took it away from the existing provider, would make that provider unviable not merely for that service but for the whole range of services currently being provided? In other words, will it be possible for a CCG to take the view that it is not in the interests of the patient in that particular area to run down or destroy a local hospital or a local unit? Will the regulations provide any protection for a CCG which, in the public interest, decides not to tender out for that particular purpose?

My final concern is one on which, again, I should like a specific reassurance from the Government—it can be in a yes or no form. We live in an international digital age. We know that medical services, even remote surgery, can be provided not merely here but anywhere around the world. If electromagnetic waves travel at speed c, that merely means that you have something like a 20th of a second delay if you are operating from India. A 20th of a second may not be crucial to that operation in terms of security.

Therefore, we may well face the possibility of tendering out services all around the world. It may be that a CCG will quite legitimately decide that the Massachusetts General Hospital is the best place to go for a particular type of surgery. That is fine but, again, if a CCG decides—or, more likely, if the national Commissioning Board decides—that it is in the interests of this country to keep a capability here, will it be protected in taking that decision against Monitor or against the competition laws which will then operate?

An even better example, perhaps, than remote surgery is imaging. Whether it is computerised thermography, ultrasound or magnetic resonance, these things can be read anywhere around the world in real time 24 hours a day, seven days a week. It may well be that very good offers will come in from India to provide this particular service. In those circumstances, if we went for those offers in a particular region—perhaps in the whole country—we would not have any radiologists left at all. They would all have gone somewhere else in the world. Will the national Commissioning Board and the CCGs be protected if, in the interests of keeping what they regard as an essential capability in this country, they decide that it is not appropriate to tender out a service or to accept a tender, however financially and technically attractive that tender might be?

[Baroness Hollins]

My Lords, I begin my comments by reminding the House that I am the current president of the BMA and a psychiatrist. The matter we are discussing this evening has been one of the most controversial aspects of implementation of the Health and Social Care Act. We are in a rather unusual situation, debating regulations that have already been subject to revision, following widespread concern about their intent and the strength or otherwise of ministerial assurances. This is remarkable. However, the opportunity has been afforded to us tonight to rehearse the issues once again and to ascertain why there is continued unease about these regulations. It is worrying that these concerns have not abated, despite repeated assurances from the Government during the passage of a Bill that we spent so many hours debating and further assurances received since the regulations were laid earlier this year.

The regulations are intended to ensure good procurement practice, as required by the 2006 EU directive and subsequent case law. They are substantially the same as those that were in place prior to the 2012 Act, which had the status of declaratory guidance and should have been enforceable in the courts. Will the Minister tell us how many legal challenges have been made since 2006 and how many organisations have deferred court action pending Monitor’s new powers? Will he also confirm that in future Monitor will provide regular reports on the scale of legal challenges and on their outcomes? The new regulations have the effect of binding the new clinical commissioning groups into the existing legal framework. This reminds us that the NHS of 2006 was a rather different organisation from today’s NHS, which is evolving rapidly after the radical changes of the Health and Social Care Act 2012.

Health and Social Care Bill

Debate between Lord Davies of Stamford and Baroness Hollins

Wednesday 16th November 2011 Lords Chamber

[Lord Davies of Stamford]

My Lords, there is no provision on the Order Paper for debates on Clauses 8 or 9 to stand part. Rather than risk taking up the time of the House by necessarily opening such a debate, I wanted to make a few general remarks under the heading of this group of amendments because it touches on Clauses 8 and 9.

All of us in this Committee are very concerned about public health. It is a priority for anybody in public life and really must be. Some telling points have been made both this morning and this afternoon, and I particularly retain the remarks about the importance of addressing the threat of obesity, which we know causes an awful lot of medical conditions, and the very important issue of tobacco smoking. We have made tremendous progress in public health by bringing down smoking. The results are already clear in the reduction of the incidence of some of the cancers. It is also important to address the threat of sexually transmitted diseases, and some very good and sensible things have been said about AIDS and hepatitis B and C. To that list I would add chlamydia, which does not normally have fatal consequences but has very sad consequences for infertility. It is far too widespread at the present time.

There are a number of other areas about which we should all be concerned. One that concerns me is the introduction into this country of tropical diseases by airline passengers and the great importance of making sure that clinicians are properly trained to identify the symptoms as rapidly as possible and to deal with them. The facilities are there to quarantine where necessary people who have highly infectious tropical diseases.

Another public health risk that we ought to be aware of is the danger of strains of bacteria emerging that are immune to antibiotics, very largely as a result of the excessive and irresponsible prescribing of antibiotics—sometimes quite disgracefully as a placebo—and a lack of discipline on the part of patients in completing a course of antibiotics. That is a serious issue that has not been addressed by any public campaign, as far as I know.

All of us are concerned about the danger of a viral epidemic in the form of some new strain of flu or something of that kind. We are very much aware of it because the media talk about it a lot. That has not gone away; we must not get complacent about that. I am glad that in the area of the protection of public health, the Government have made it clear that, unlike in the area of the provision of clinical treatment, the Secretary of State has a clear responsibility stated explicitly and unambiguously in the Bill.

However, the Government have missed an opportunity to simplify and rationalise the bureaucratic structures and lines of accountability. That would have been very desirable. What is emerging here is an extremely complex structure of responsibility. The Secretary of State uniquely has responsibility for taking necessary measures for the protection of public health but shares that responsibility with local authorities in the area of improvements to public health. The Bill makes it clear that the Secretary of State “may” and local authorities “must” take measures in this area, so there is the prospect of a highly undesirable situation in which the Secretary of State takes such action but that duplicates what local authorities are doing. I do not think we have heard in the course of the debate exactly how the Minister envisages the relationship between Public Health England, the Secretary of State and local authorities with their new medical officers developing. I almost called them “medical officers for health” because I think this is a revival of that old concept, and they did a wonderful job in their time. However, I believe that they are going to be called “directors of public health” and are to be established under Clause 9 by all local authorities.

We need to understand what the relationship between these bodies is going to be. The noble Baroness, Lady Northover, said earlier that the Health Protection Agency is to be abolished. That is what it states in the Bill, but I understand that actually it is going to be subsumed more or less in toto into Public Health England. We need some transparency on that. I would like to know how many people are going to be involved in the agency because these bodies can be extremely expensive. We want to make sure that we are getting proper value for public money.

I am particularly concerned about the suggestion in Clause 19 that the Secretary of State may devolve on to clinical commissioning groups or the National Commissioning Board his responsibilities in the public health area. So there we have another bureaucracy that has the potential to become involved without being clearly defined. There is a frightening element in that clause which provides that any liabilities arising as a result of the involvement of the National Commissioning Board or clinical commissioning groups in the public health area will accrue to those bodies and to no one else; in other words, not to the Secretary of State. The Secretary of State is not delegating his authority; he is not using the National Commissioning Board or clinical commissioning groups as his agent under his direction, which would be an appropriate thing for him to do; but rather he is abandoning his responsibility to this completely different set of bodies whose main job is in the area of diagnosis and treatment. Again, that is a very confusing picture.

The proliferation of bodies and lack of clarity about bureaucratic responsibilities should be a matter of concern to us all for at least three reasons. The first is that it makes it very difficult for the general public. I find it difficult to understand exactly what the hierarchy of responsibility is. Human beings never give of their best unless their responsibilities are clearly defined and demarcated so that they can be held responsible for those areas for which they really are responsible. They are simply hopeless if other people might be equally responsible. We have not talked about the health and well-being boards. What have they got to do with public health? It is quite unclear to me, but presumably they have some role in this area. It is very confusing and I think that that is very undesirable.

The second reason is the matter of cost. Anybody who has dealt with the NHS as a Member of Parliament, as a business or in any other context knows that one of the great troubles with the NHS is that whenever a decision needs to be taken, there are around 26 people in the room from at least 12 different departments and agencies. That is extremely bad from the point of view of clear decision-making. It means that all decisions take a long time and the costs go up indefinitely. It seems that we have a formula in the area of public health for the replication or even the aggravation of that problem.

The third reason why we should have clarity of responsibility in this area is because people do not perform if they can simply get out of any kind of sense of responsibility by saying that it is someone else’s fault. We are providing endless opportunities for excuses to be made and for people to avoid their responsibilities. I would be very relieved if the Minister could reassure me that these fears are groundless and give clear reasons why that is so.

[Baroness Hollins]

My Lords, I shall speak briefly about the importance of information in an early diagnosis. I have two areas to focus on. First, people with learning disabilities often get a late diagnosis and suffer terribly because of it, with an earlier death as a consequence for many. Often that is because of a lack of accessible information. I speak as the executive chair of a social enterprise, called Beyond Words, which designs pictorial information to try to bring health and social care information to people who cannot read. Any public health information campaigns need to remember that not everybody can read information easily; it has to be designed to be inclusive.

Secondly, I have a question about how the accessibility of information about the bureaucratic structures of the NHS will help with early diagnosis. This is to do with the current “choose and book” system. Something that has happened to a close relative of mind in the past few weeks made me realise that I do not know how the Bill is addressing the whole issue of better choice for patients. I will briefly tell noble Lords the story. It is about somebody who needs an early diagnosis for what seems like a serious, rare, long-term condition and who has been referred through the choose and book system to four different hospitals to see four different specialists in different areas, where those specialists cannot easily communicate with each other because their hospital systems do not speak to each other. The person concerned chose the hospitals that offered the earliest appointments, which is what most people do and what choose and book offers you. You take the first appointment because you are worried, but the hospital consultant is unable to refer to a consultant in the same hospital with whom they would be able to consult. The patient has to go back to the GP and back through the choose and book system. It is not working.

There is something about information and early diagnosis here as well. I could not see where, apart from under information, I could raise this issue. I look forward to hearing a response from the Minister.