Health and Social Care Act
Lord Harris of Haringey Excerpts(11 years, 2 months ago)
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Earl Howe
I intend to meet some of the royal colleges, and I have met one already. I do not feel that a full-scale consultation is appropriate because the Government’s policy has not changed. It is the wording of the regulations that has given rise to anxiety. I therefore think that, having taken on board, as I hope I have, all the concerns that have been raised, a clarification of the regulations is all that is necessary and there is no need to consult on the policy yet again.
Lord Harris of Haringey
My Lords, is it not the case that the Government have form on producing regulations that are virtually incomprehensible as far as the lay reader is concerned, particularly in respect of these health service changes? We had the incident with Healthwatch only a few weeks ago. Even though there is a short timescale, is it therefore not imperative that there is proper consultation to make sure that whatever emerges reflects the very fine and helpful words that the Minister has given us this afternoon? Will he also tell us whether Ministers ever read these draft regulations before they are laid before the House?
Earl Howe
My Lords, it is my intention to issue an invitation to noble Lords to join me in a meeting so that we can discuss these matters. I am very happy to do that over the coming days. The answer to the second question is yes. We read these regulations in conjunction with the Explanatory Memorandum and the line-by-line interpretation that we have also published in this case which make it crystal clear that these regulations do no more and no less than reflect the law and the Government’s policy. However, others have chosen to misinterpret the regulations, and that was something that I could not predict.
NHS: Private Companies
Lord Harris of Haringey Excerpts(11 years, 3 months ago)
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Lord Harris of Haringey
My Lords, it is gratifying that the private sector will be expected to pay corporation tax. However, can the Minister tell us how the private sector will make an appropriate and proper contribution to meet the needs of a full and broad range of training within the NHS, given that in some instances it will not be providing a full range of services?
NHS Bodies and Local Authorities (Partnership Arrangements, Care Trusts, Public Health and Local Healthwatch) Regulations 2012
Lord Harris of Haringey Excerpts(11 years, 3 months ago)
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Lord Harris of Haringey
My Lords, I am becoming increasingly of the view that the Government have mis-sold the concept of Healthwatch. When we first started on this long journey and the Health and Social Care Bill was coming before Parliament, the Government promised that we would get an effective patient-user voice. They promised that we would have a coherent structure. They promised that Healthwatch would ensure that patients’ interests and the voice of users would be heard centrally in the new NHS structures. But that is not what we are getting.
I spent 12 years as director of the national statutory body representing patients’ interests in the NHS and I learnt a number of things during that experience, one of which was that however well argued or well informed the case made on behalf of the users of services in the National Health Service might be, it is not automatically listened to. The powerful vested interests within health militate against that. Let us be clear: there is a power imbalance between the user and the provider of the health service. There is an imbalance in information and in what they can do. For the voice of the users to become as central as repeated government policy has said it should be, that voice has to be substantial and loud. That means that the bodies representing the interests of users have to be able to make waves. They have to make people listen and, on occasion, they have to be a nuisance. That is why, when the Bill was going through Parliament, we asked repeatedly in your Lordships’ House whether Healthwatch would be able to campaign in the interests of the users of the service that they were representing.
We asked in Committee, and the noble Baroness, Lady Northover, assured us that users would be able to campaign. We asked again on Report, and again the noble Baroness, Lady Northover, assured us that that would be the case—Healthwatch would be able to campaign in support of the interests of local health service users. As is widely known, I defer to no one in my respect for the noble Baroness, Lady Northover. To mis-speak once may be regarded as a misfortune; to mis-speak twice begins to look like carelessness. Either the noble Baroness was being extremely careless—repeatedly, both in Committee and on Report—or policy has changed. Despite the intent that these would be vibrant, effective, campaigning voices on behalf of patients, somewhere along the line someone in the Department of Health took a decision and said, “No, we mustn’t allow them to have any sort of effectiveness whatever. They mustn’t be allowed to make waves; they mustn’t be allowed to cause trouble; they mustn’t be allowed to be a nuisance”, because that is what the regulations do.
What are we to make of Regulation 36(1)(a)(ii)? It is unequivocal. Healthwatch will not be allowed to do anything that promotes or opposes changes in,
“the policy adopted by any governmental or public authority in relation to any matter”.
I find it difficult to know what a local Healthwatch organisation will say about the change in the organisation of, say, diabetes services in a particular area that will not be “in relation to any matter”, or determined by a “public authority” or a “policy adopted by” a public authority, so the local Healthwatch cannot object or campaign against it.
I am sure that in trying to defend the extraordinary wording that is placed before us tonight the Minister will try to tell us that paragraph (2) makes it all right. I am aware that the noble and learned Lord, Lord Mackay, is with us, so I hesitate to say that it seems to be a lot of legal gobbledegook. Apparently it will be all right if it,
“can reasonably be regarded as incidental to other activities, which a person might reasonably consider to be activities carried on for the benefit of the community in England”—
and—
“those other activities cannot reasonably be regarded as incidental to activities of the descriptions prescribed in paragraph (1)”—
which is the bit I read out.
That is very clear. I am sure that all the guidance that can emerge from the Department of Health in the future will make it clearer still. But even if you take that as trying to mitigate a blanket effect of forbidding any campaigning that might conceivably be regarded as a,
“policy adopted by … any … public authority on any matter”,
what does it actually mean? What is incidental to other activities? It is not incidental to other activities to say that the reorganisation of diabetes clinics in a particular area is inappropriate. That is what the Healthwatch organisation is there to say on behalf of local users; it is not incidental to something else that it should be doing. What is this meant to mean?
Healthwatch England, all of three hours ago, sent us its comments on the regulations. It said that they could have been worded more appropriately. There is an understatement. I wonder what it really meant. I do not think that the question is one of more appropriate wording. I wonder how much room for manoeuvre Healthwatch England had—given how independent we know that its structure enables it to be—to say what it really thought about the nonsense of the wording. It did feel strongly enough to tell us that it hoped that future regulation in statutory instruments might get it right. That is very interesting.
The definition of an institution that is a political campaigning organisation is any person carrying on or proposing to carry on activities to promote or oppose changes in any law applicable in the United Kingdom. Healthwatch England, by the definition in these regulations, is a politically campaigning organisation. Therefore, no local Healthwatch organisation will be allowed to act in support of a policy that has emerged from the national body representing patients.
I am sure that, however malign the intent was of those who drafted these regulations and of the Ministers who instructed them to do so, they did not mean them to be quite so destructive. I do not know who writes these things. I do not know what they are trying to achieve. However, we should be clear that there will not be one point of contact so that a local Healthwatch would know where to go to be given clear and consistent guidance, because the structure that the Government are creating is fragmented. Each local authority will commission an organisation to provide local Healthwatch services. Individually, around the country, people will try to interpret what the regulations mean—yet they are virtually incapable of being sensibly interpreted.
Of course, there is an answer to this. Ministers could decide, having listened, not to press on with the regulations. They could say that they should be withdrawn. There are two good reasons why they should do that. First, the regulations are appallingly drafted and in practice unworkable—and will be unworkable when they are interpreted in several hundred different ways around the country. The second good reason is that tomorrow we will hear the report on Mid Staffordshire. I suspect that one of the strongest lessons that will emerge from the report is the need for strong, local representation of the interests of local users of the health service. That means strong and effective local Healthwatch organisations. These regulations will not give us strong and effective local Healthwatch organisations, so if the Government are serious in whatever they say in response to tomorrow’s Francis report, they ought to withdraw the regulations tonight and come forward with sensible regulations that will give us the sort of local Healthwatch organisations that the country needs.
Lord Harris of Haringey
The noble Earl has been extraordinarily helpful in telling us what Regulation 36 is meant to mean. My first question is: why does it not say that, as opposed to producing a formulation? Your Lordships are used to this sort of stuff. If every noble Lord who has spoken in this debate apart from the noble Earl has found it difficult to follow, I find it difficult to see how people around the country are going to be able to interpret this with the clarity with which the noble Earl has provided us.
Secondly, the noble Earl then said what local Healthwatch organisations can do. He said that they can campaign provided it is evidence-based and draws upon the opinions of local people. Who is to decide that? Is it, for example, the local authority, which might not like the campaign that is being mounted? Is it then going to say, “Well, you are not actually speaking on behalf of the communities you claim to be”?
Earl Howe
The noble Lord’s first point is a fair one. I was coming on to address it as it is quite clear that at least part of the wording of these regulations has seemed complicated and unfathomable to many noble Lords. I have to acknowledge that that is the case.
To address the noble Lord’s other point, we are talking about the difference between being a genuine voice for local people and simply being an adjunct of a political party. Local Healthwatch organisations should not be swayed or influenced by the activities of any political party. They must act independently. The only influence that matters to them is that of local patients and the public in seeking ways to improve the quality of care for people.
In that sense, the regulations tie down a local Healthwatch no more and no less than any other social enterprise. The wording of the regulations has been constructed in a very similar manner to the wording applied to other social enterprises in regulations. Regulations 36(1) and (2), against which so many missiles have been hurled this evening, are designed simply to reflect the standard community benefit test.
Care Quality Commission (Healthwatch England Committee) Regulations 2012
Lord Harris of Haringey Excerpts(11 years, 6 months ago)
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Baroness Jolly
My Lords, I will not speak at length this evening and will speak mainly of the issue of the independence of Healthwatch England. I was at the launch of Healthwatch England and met some of the members of the committee. As the noble Lord said, many come from wide and relevant backgrounds, and they were really enthusiastic about the task in hand. They represent all regions of the UK, disabilities and gender. I understand that the full committee is now appointed.
There is an undoubted need for a patient watchdog, as we have heard. Many hours were spent in debate in this Chamber, in Committee and on Report, on the Health and Social Care Bill to try to mould it as best as possible to achieve that. During that debate, some of us carried out a campaign with Ministers outside the Chamber as well as inside, but there was no acknowledgement that the siting of Healthwatch England as a committee within the Care Quality Commission would cause concern. Indeed, it was said that the connection would be beneficial to the process and result in improved channels of communication.
Those arguments are now past, and Healthwatch England is now constituted, but the secondary legislation we are discussing today is silent on the issue of independence. We are left to wonder whether that is a missed opportunity or a deliberate omission. I always look on the bright side, so let us assume that it is a missed opportunity.
We know that the chief executive officer of the CQC holds the budget for Healthwatch England. What safeguards are in place to ensure that the money is not used to support core Care Quality Commission business or, indeed, to prevent the board of the Care Quality Commission, of which the chair of Healthwatch England herself is a member, saying that the way that the Healthwatch England committee wanted to spend the allocation was not as it thought fit?
If so, where does that put both the Care Quality Commission and Healthwatch England—and, indeed, the confidence of the public in their watchdog—if a future chair of Healthwatch England goes native or a chair of the Care Quality Commission becomes overbearing? That is a reflection not on personalities or individuals but on roles and responsibilities. Both current incumbents of those positions have assured me that that could never happen, but we all know of instances where what seemed perfectly good appointments change the way that they work over time. Working arrangements honoured under one regime may not carry over to a successor.
I commend the work that Anna Bradley has done thus far in setting up the organisation and her commitment and understanding of the role. She has said:
“We will be accountable to Parliament not the CQC ... We will work with the CQC as strategic partners. Guarding that independence will be a very important aspect of my job and the committee’s job”.
As I said, Anna Bradley sits on the Care Quality Commission board as part of her role and is appointed directly by the Health Secretary. She is adamant that the patients’ champion will be fully independent from the regulator.
A set of arrangements has been developed to safeguard the independence of Healthwatch England, whose budget—£3 million in 2012-13—is determined by the Department of Health. Healthwatch England will have full editorial independence over its publications; its committee will set its own priorities; and the chair will appoint the committee, ensuring that a majority are not Care Quality Commission commissioners, and oversee the work of Healthwatch England’s director, its senior officer. Any disputes between the Care Quality Commission and Healthwatch should be resolved through “open and frank discussion”, with the Department of Health responsible for resolving any intractable issues.
The Government’s intention was clear about the independence of Healthwatch England when the Bill was being debated, and it is to be regretted that that did not find its way into legislation or this secondary regulation. This organisation will be closely watched. Its relationships with partners are clearly defined in legislation. Its first chair has been absolutely explicit about its independence very early in her appointment, with the clear support of both the CEO and the chair of the hosting organisation, the Care Quality Commission.
I want Healthwatch England and local Healthwatch to succeed. We owe that to all patients across the country. With all the changes working their way through the NHS and the care system—it is essential that, despite its name, we should not forget that Healthwatch watches after health and care—it is imperative that it is working as efficiently as possible to its agenda, not that of the many stakeholders. For the sake of the public, those in receipt of care, it must succeed.
I would welcome reassurance from my noble friend that the lack of regulation or independence will not impede Healthwatch England’s independent operation and an indication of how that can be guaranteed.
Lord Harris of Haringey
My Lords, I am pleased to have the opportunity to follow the noble Baroness, Lady Jolly, on this Prayer. She has highlighted the weakness in the Government’s position. I am confident that the people who have set up Healthwatch England are of good will and that they intend and wish it to work; that Anna Bradley will be an excellent person as chair of Healthwatch England; that the outgoing chair of the Care Quality Commission is committed to making it work; and that the chief executive of the Care Quality Commission is committed to making it work. I even believe that Ministers in the Department of Health are committed to making it work.
The problem is that we are provided with a framework of regulation which does not guarantee that in future. One or two appointments down the road, with a new leadership of the Care Quality Commission and, perhaps, with different Ministers at the Department of Health, how will those things be ensured, especially if budgets remain tight and Healthwatch England starts to be effective and makes criticisms which are difficult for Ministers—or, worse still, in this context, for the Care Quality Commission? That is when those problems may arise.
That is why, when the Bill was passing through this House, there was so much concern about the importance of independence for the Healthwatch structure. My concern is that, given that the legislation has passed, this is a wasted opportunity to make it stronger.
One of the lessons that is expected to come from the Mid-Staffs inquiry relates to independence. The report is expected to identify the systemic failure of organisations to focus primarily on the needs of the patients of that hospital. Because each was looking at its own area, nobody was taking the step back to say, “How does this work from the point of view of patients?”. That is where Healthwatch should come in and be influential: to cut through the complicated organisational structures which the Health and Social Care Act has bequeathed to the NHS. That is why the simple issue of how it preserves its independence is so vital.
When the Bill was going through Parliament, the noble Earl held a meeting to discuss how Healthwatch England should work. He made the point that there would be valuable synergies from Healthwatch England being located within the Care Quality Commission. He did not stress, but it was clearly part of the equation, that there would also be some useful cost savings associated with that. The cost savings could be achieved in a whole variety of ways. It would be possible to have an agency agreement whereby some of the back office functions were provided by the Care Quality Commission or any of the plethora of structures that the Health and Social Care Act has bequeathed to the NHS. Similarly, because the duty of co-operation exists, you would hope that those synergies could be activated without the need for the Healthwatch organisation to be subservient to the Care Quality Commission. It would have been possible in these regulations to create a structure which, while preserving the general framework of the Act, would ensure that there was independence.
If we look at the regulations that we have before us, we see a number of flaws. First and foremost, for example, is the size of the Healthwatch England committee. Potentially, this will be a committee of as few as six members. I appreciate that in the initial instance it is larger than that, because people of goodwill are trying to make this structure work. However, in three, four or five years’ time there may not quite be the same atmosphere or there may be a feeling that the wings of Healthwatch England need to be clipped back. In any event, with six to 12 members it is going to be extremely difficult to ensure that there really is the geographical diversity that is necessary; the coverage of all the many major areas of special need that exist as far as health and social care is concerned; and proper recognition of ethnicity and gender within that. Again, the initial membership has provided a reasonable attempt to achieve that diversity, but where is the guarantee of that in the future?
I know there is a feeling that small boards work well. The noble Baroness, Lady Cumberlege, who is not in her place on this occasion, has talked to us glowingly about the value of having small, dynamic boards to run organisations but this is a different sort of organisation. It is supposed to be one that represents the generality of the interests of patients across the whole country and which derives its authority from what is happening in local Healthwatch organisations around the country—the 150-odd local organisations that will exist. It is therefore not appropriate to have a small board in such a case, as it is not the same sort of structure.
Then we have the rather strange arrangements for the appointment process. In the first instance, the chair of Healthwatch England has to get the approval of the chair of the Care Quality Commission before appointments can be made. The future arrangements are that the chair will make the appointments directly but let us be clear: the chair of Healthwatch England is a Secretary of State appointment and has the potential to be the poodle of the Department of Health. I have been in the position of being in charge of the organisation representing patients and I remember successive Secretaries of State, from two parties, making attacks on the organisation because we were being effective and raising issues that were uncomfortable.
Under those circumstances, can we be satisfied with a future arrangement whereby the Secretary of State solely makes the appointment of that individual, who then appoints all the other members of the Healthwatch England committee? In the initial stage, you have a double lock where the chair of the Care Quality Commission gets involved but in future you will have someone who might be appointed as a poodle or to muzzle the watchdog nature of Healthwatch England appointing individuals who are, no doubt, like-minded. That is why the arrangements are strange.
We then have the provision for suspending members, which is set out here. Presumably, the suspension is different from disqualification but the Secretary of State may dispense with the chair of Healthwatch England for a variety of reasons, which includes,
“failing to carry out those duties”.
Who is going to determine what those duties should be? Essentially, we are being told that the Secretary of State will decide what he or she thinks is appropriate for Healthwatch England to be carrying out. Again, the chair then has similar powers in respect of individual members. I make a specific request of the Minister: that in his reply he spells out absolutely that it will not be appropriate for either the chair or the members of Healthwatch England to be suspended from their membership if they are pursuing their interpretation of what is in the interests of patients and their organisations, and the people that they represent.
NHS: Accident and Emergency Services
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Earl Howe
My noble friend makes some important points. As a general point, it is important to say that each ambulance service should plan to provide appropriate resources to meet local demand, because demand varies according to where you are in the country. Planning assumptions in meeting that demand should take into account the likelihood of severe traffic congestion. Plans of that kind may well include resources in addition to traditional ambulance provision, for example, using rapid response vehicles and motorbikes as well as utilising staff such as community paramedics or emergency care practitioners.
Lord Harris of Haringey
My Lords, how many accident and emergency departments in London does the Minister expect to close in the next four years? If he does not know the answer, can he say who is responsible for that and how they are accountable for making a strategic judgment across London about the level of accident and emergency services?
Earl Howe
The premise behind the noble Lord’s question is that it is automatically worse to have fewer A and E departments in an area. I beg to disagree with that premise. In serious or complex cases, the noble Lord will know that patients need to access exactly the right care, so it is often better and safer for them to travel further to see specialists in major centres than to go to a local hospital. Although it may be closer, it may not have the right specialists, the right equipment or sufficient expertise in treating patients with their condition. The prime example of that has been stroke care in London, where 32 centres were reduced to, I think, eight and there has been a dramatic reduction in the number of deaths following admission.
National Health Service (Clinical Commissioning Groups) Regulations 2012
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Lord Harris of Haringey
My Lords, I declare an interest as a vice-president of the Local Government Association and as an adviser to KPMG, which I understand also advises on health matters, although I do not advise it on those matters.
In this debate we are perhaps being asked to suspend our disbelief that the governance arrangements for the clinical commissioning groups make sense. We are being asked to suspend our belief on the question of whether pigs may fly. However, the extraordinary statement from the noble Baroness, Lady Cumberlege, that somehow locally elected councillors are incapable of making decisions which affect the livelihoods of the populations that elect them is disgraceful.
Baroness Cumberlege
My Lords, I object to that. I said that they have a role on health and well-being boards, which is where the strategy is set out, and that is where the NHS, local authorities, Healthwatch and other organisations come together.
Lord Harris of Haringey
I understand that. My point is that the noble Baroness does not seem to understand that today, all over the country, locally elected councillors are making decisions about closures because they are having to balance the reductions in budgets that this Government are forcing on them and on their local communities. They are making those decisions on behalf of the people whom they represent. Why is it being said that somehow they have a conflict of interest which means that they are incapable of making decisions along with colleagues about health matters?
There are issues of principle here and issues of sheer practicality. The issue of principle concerns conflict of interest. The noble Baroness, Lady Cumberlege, has talked about conflict of interest. Perhaps we will also hear about that from the noble Earl in a minute. However, the biggest conflict of interest will be the fact that the primary care practitioners are key elements of the boards of CCGs’ governing bodies. They are not being excluded; it is just everyone else who is being excluded. Let us be clear about who is being excluded. It is not simply elected members but any employee not just of the local authority in the CCG’s area but of any local authority in the country. Therefore, any person who, under paragraph (4) of Regulation 12, the CCG feels has knowledge about the area and who does not have the misfortune of being an elected councillor but does have the misfortune of being a part-time employee of a neighbouring local authority is exempt.
When the Minister replies, I should like him to explain to us why every single employee of every single local authority in the country is being excluded from participation in CCGs. While he is about it and we are talking about conflicts of interest, we have already heard the point made by my noble friend Lord Hunt of Kings Heath that any person who has been public-spirited enough to decide to become—and frankly it is a fairly meaningless undertaking—a member of a local foundation trust or a local NHS trust is also excluded from membership of a CCG. Again, what is the point of that? It is being said that any person who is public-spirited enough already to have had some engagement with the local NHS is not allowed to sit on the board of the CCG.
This is frankly fatuous. You have ended up with a situation in which you have enshrined one set of conflicts of interest and excluded from the membership of the CCG all sorts of other people who could make a valuable and useful contribution. I am afraid that for the first time in our considerations I agree with 99% of what the noble Baroness, Lady Jolly, said. The 1% with which I disagreed was that we should allow this instrument to go through and review it again in two years’ time. It is so flawed and riddled with poorly thought-out considerations of what would work at local level, and so dismissive of the best judgment of local people to decide who is best to be part of the board, that frankly we should endorse my noble friend’s Motion. I urge the Minister to withdraw the regulations and bring forward revised, more sensible regulations.
Baroness Williams of Crosby
I have some sympathy with what has been said, but I want to raise a slightly different issue, which arose from what was said by the noble Baroness, Lady Finlay, and the noble Lord, Lord Warner. I remember well during our long debates on the Health and Social Care Bill that one of the central issues that was brought out time and again both in the broad debates and in the amendments that were tabled were two guiding principles. One was the integration of health services that are absolutely crucial to the changes that need to be made if we are to get through the period of the Nicholson challenge and provide a better experience for patients. The second, alongside integration, was the concept all the way through of bringing together the different professions in a common approach on to how to deal with health services. In Clauses 13 and 14 of the original Bill, now an Act of Parliament, these two themes are pressed, insisted upon and underlined over and over again. Another issue was localisation and the need to try to devolve decisions about health down to a lower level.
What troubles me is that we are now seeing CCGs not as microcosms of that integration and an attempt to try to bring health services together but as being out on their own, essentially as a way of managing the general practitioner contribution to the health service. The noble Lord, Lord Warner, to whom I always listen very closely, was not wholly correct on one point. There is a section of general practitioners who have gone into commissioning. The sad thing is that the 4% or so who have done so are among the very best in the profession. GPs are losing their very best and most experienced leaders to commissioning, which may be essential but means that they are no longer able to give the same leadership to GPs that used to be the case. That is rather serious.
How does one offset that loss of leadership quality of the finest GPs? The noble Baroness, Lady Finlay, is absolutely right that it can be offset only to some extent by secondary care consultants and registered nurses to try to bring the understanding that was rather deliciously and beautifully described by Sir David Nicholson as being the element of compassion, concern and patient involvement required if one is to have CCGs become not businesses but in effect beacons of what was a great public service and that could continue to be a great public service. One cannot get that if one excludes secondary care consultants and a whole group of registered nurses from serving anywhere except on their own patch.
I hope that the Minister can tell us that the wise advice offered by Mister Nicholson—sorry, I know that he is Sir Someone Nicholson—to him and the Department of Health that there ought to be recognition of a more relaxed attitude, which should be taken on board. How does one take it on board? By recognising that the very tough conflicts of interest legislation that was put through this House with the support of all parties is strong enough to deal with people who have come from the same patch but in any way misuse or abuse that position by trying to gain financial advantage for themselves.
Lord Harris of Haringey
Regulation 12(4) refers to a lay person who “has knowledge about”. We are excluding from that category an employee of any local authority, and I want to know why.
Earl Howe
My Lords, the question I was asked was about the officers of local authorities, and I hope I have clarified that. A member of a local authority is an elected councillor, of course, and is debarred from a governing body, as we have discussed. If the noble Lord, Lord Harris, will allow me, I will write to him on the point.
Lord Harris of Haringey
Paragraph 5 of Schedule 4 refers to:
“An employee of a Primary Care Trust”.
Lord Harris of Haringey
They may be excluded from being a lay member, but one of the lay members is defined as someone who has,
“knowledge of the local area”.
However, if by chance they happen to be a part-time employee of any local authority in the country, they are excluded, and I want to know why that is. Why not leave it to the good judgment of the local people?
Health and Social Care Bill
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Lord Deben
I would not dream of suggesting that I know what the tribunal and the commissioner have taken into account. All I am saying is that if they have taken it into account and come to this decision, I think it is wrong, and if they have not taken it into account they ought to have done. That is why I come to the point that the noble Baroness raised when she said that it is all very good because the National Health Service has risk registers and publishes them. They are not risk registers, not in the sense that a business has risk registers. They are not risk registers in the sense that the Foreign Office has risk registers. They are such risks as the National Health Service believes will stand being in the public domain. The risk registers that a Government have are a wholly different kind of thing and need to be. I believe that we must protect them.
Lord Harris of Haringey
Before he finishes his remarks, will the noble Lord explain why the National Security Council publishes its own national risk register of security threats to the UK?
Lord Deben
For exactly the same reason that the National Health Service does.
Health and Social Care Bill
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Earl Howe
My Lords, no Government have routinely made risk registers available. This is a matter of principle. It is not just that the issues associated with the Health and Social Care Bill have been extensively aired—as I said, they have been—but it is a point of principle whether a risk register that is integral to the formulation of policy should be published.
The tribunal agreed with our assertion that the strategic risk register should not be published but disagreed when it came to the transition risk register. Our difficulty is that the case that we made for both documents, which are of a similar structure and have similar content, was based on essentially the same arguments, which makes it extremely difficult to make a decision on whether or not to appeal the decision. I hope, as I say, that the tribunal will give its reasons for the judgment as soon as possible so that we can determine the right way forward.
Lord Harris of Haringey
My Lords, surely this is not about the routine publication of risk registers but about the publication of a risk register for a specific Bill in front of your Lordships’ House and Parliament that is causing extreme concern in the country. Why is it not possible on an exceptional basis? I believe that no less a person than Simon Hughes—if such a thing were possible—has advocated to the Government that the risk register should be put into the public domain so that Parliament can look at the implications properly.
Earl Howe
My Lords, I beg to differ with the noble Lord; this is an issue about routine release. I think I am right in saying that the department has received several dozen requests to release the risk register. If this were to become routine, as some people appear to wish it to become, policy formulation in any department would become virtually impossible.
Health and Social Care Bill
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Lord Harris of Haringey
My Lords, I think this is the part of the Bill which I assume the Minister had hoped would give him a quiet time. Indeed, he has passed on the responsibility for answering this amendment to his noble friend Lady Northover. Originally, one had to respect the Government’s intention with regard to HealthWatch because I am sure the intention was to create effective patient representation at national and local level. That intention has been challenged in the discussions that we have subsequently had and in some of the changes that have occurred over the past few months. However, it is worth going back for a moment to first principles. What constitutes effective patient representation? The first significant element of that has to be independence. The organisation representing patients’ interests has to be independent of the providers of health services, those who commission them and those who regulate them because the act of representation can potentially challenge any or all three of those interests.
Secondly, effective representation at national level must be representative. There must be real representativeness within that structure. It must be derived from local groups and local individuals and have that authority which is derived from being a representative structure. With the best will in the world, you cannot be an organisation which can speak with proper authority on behalf of patients or, indeed, any consumers if you are simply appointed from on high by a Secretary of State. In my time, I have worked for organisations that have been structured like that and I have to say that although they can do good work, they cannot be properly representative. They cannot properly have the authority that comes from being derived from the grass roots. The third element which is critical is that the work and the comments that these bodies produce have to be derived from sound local information, which necessitates being able to pick up information from local networks around the country. That has to be safeguarded in whatever proposals are put forward.
The Government originally promised us that HealthWatch England would be the independent patients’ champion. However, as the noble Lord, Lord Patel, has just pointed out, being a subcommittee of the Care Quality Commission does not demonstrate independence. It demonstrates a subsidiary role in relation to the Care Quality Commission. I am sure that the people currently at the Care Quality Commission are motivated to try to create an arm’s-length structure. We do not know, of course, whether that desire for independence would survive the first occasion when HealthWatch England challenged the decisions made by the Care Quality Commission, or how often it would survive after repeated such challenges. However, independence is also about the perception and the appearance of being independent. How can you appear to be independent if you are a subcommittee of one of the organisations that you may have to criticise from time to time?
This amendment seeks to do three key things. It would set up HealthWatch England as an independent statutory body and write that independence into statute, set out a clear relationship with local healthwatch organisations and safeguard their funding mechanism. I recall some very wise words said to your Lordships' House in July 2007 when we were debating the creation of the Commission for Patient and Public Involvement in Health. It was stated that,
“one signal advantage of the commission is that the money that it distributes to forum support organisations cannot be used for purposes other than those for which forums were established. Under the arrangements in the Bill, however, there is no guarantee at all that money intended to support the activities listed … will actually reach the front line. It would be possible for a local authority to say that it was delivering the activities in the Bill when, in reality, those activities were so minimal that they were hardly worth the name of patient and public involvement. What steps could be taken, in those circumstances, to ensure that such involvement in health and social care is delivered properly?”.—[Official Report, 23/7/07; col. 615.]
The person speaking said that the answer was not delivered by the Bill brought forward at that time by the Labour Government. Who was the person who delivered those words? It was, of course, the noble Earl, Lord Howe—the current Minister. He made it quite clear that the arrangements which he is now seeking to replicate were not adequate and would not, and could not, work. Yet the proposals which were going to establish the independent patients’ champion are weakened precisely because he has not accepted the lessons of his own words.
The noble Earl, Lord Howe, went on to say that he was concerned that, as:
“LINks are going to assume different forms and guises in different localities, it is axiomatic that the level of activity that they undertake is going to vary”.—[Official Report, 23/7/07; col. 615.]
He asked how the amount of money in any given area was to be assessed. Therefore, I ask the noble Baroness—who will respond on behalf of the noble Earl, who gave us that wise advice in 2007—what will be the mechanism for determining how much money is allocated to each local authority for healthwatch in its area? Will this be a global sum that will go from the Department of Health to the Department for Communities and Local Government, and then be allocated to local authorities by the mysterious process by which the block grant from the DCLG is decided for each local authority area? Or will there be a separate formula that will go with that money and decide how much money is allocated to local healthwatch around the country? If it is the latter, will that information be published? Will it be possible for residents in a local area to know how much money has been allocated so that they can see whether it is being used? I suspect that unless we have the answers to those questions we will know that the reality is that this money will disappear in the wash and not be effective. The point about the amendment is that it provides a solution to that problem because the same money would be channelled through a body that would be dedicated to the provision of local healthwatch organisations and want to ensure that the money was spent properly and appropriately.
The Government’s arguments—we have had several discussions about this with Ministers, and I am grateful to the noble Earl and the noble Baroness for providing those opportunities—seem to be broken down into three areas. First, they argue that there is a natural synergy with the work of the Care Quality Commission. However, I have already pointed out that the CQC is one of those bodies that HealthWatch England may have to criticise. There is also a synergy with the work of the NHS Commissioning Board, Monitor, Public Health England and all sorts of other parts of the new NHS. Why is there specifically a synergy with the CQC?
The Government’s second argument was that there would be cost efficiencies and that this would be the most efficient way of doing this because there would be savings due to the collocation. However, as the noble Lord, Lord Patel, pointed out, you can achieve that in many ways. You can simply say that one of the things that HealthWatch England, as an independent statutory body, could be required to do through guidance, would be to look at how its back-office operations could be provided from a variety of organisations of appropriate stature and size, where the issue of conflict would not necessarily arise. That provision could then be made by way of a clear legal agreement. However, that is not being done, and I am not quite sure why the Government are saying that there are efficiencies and cost savings that could be made only by the precise structure that they propose. In terms of providing the funding to local healthwatch, our proposal has to be a more efficient provision that will deliver the resources without leakage and without local authorities deciding that perhaps there is a greater local priority than local healthwatch.
The noble Baroness, Lady Northover, spoke vehemently about the way in which the former Commission for Public and Patient Involvement in Health had operated, and how it had a wasteful and top-heavy way of distributing resources to local patients and for public involvement. That is not the only way to distribute resources. The only reason that the former commission distributed resources in that wasteful and inefficient way is because the Department of Health at that time—I regret, led by a Labour Minister—insisted that it was done in that rather ridiculous and cumbersome way. If Ministers want distribution done efficiently and simply, perhaps that can happen. If you appoint the right people to the initial board of HealthWatch England, I am sure that they would want to ensure that that is the case. It does not have to be done in the way I described.
The third argument that I have heard Ministers make for locating this body within the CQC is that it will provide all sorts of informal support and guidance—that there will be a library, information resources and so on. However, the Government have told us how important the duty of collaboration is within the new NHS and how significant it will be. Why do you need to collocate and have HealthWatch England as a subordinate structure within the CQC when there is a duty to collaborate? Indeed, why cannot HealthWatch England collaborate with other national bodies as part of the NHS?
Baroness Northover
My Lords, this has been another excellent debate. I listened very carefully—as I did before—to the views expressed. Overall, there is clearly complete agreement on all sides of the House that the voice of patients and the public should be at the heart of the NHS. As the noble Lords, Lord Patel and Lord Harris, and the noble Baroness, Lady Masham, and others indicated, the history of how previous Governments tried to implement this is tortuous. The recent past has borne witness to a number of attempts to do it, and noble Lords referred to some of the problems. No attempt—not even Community Health Councils—managed to fulfil the worthy intentions of its architects, and we went from one to another.
As the noble Lord, Lord Patel, recognised—I appreciate his words—we seek here to take the strengths from past attempts, build on them and ameliorate the weaknesses as we develop our proposals for HealthWatch England. In the light of the comments of the noble Lord, Lord Harris, and as the noble Baroness, Lady Murphy, emphasised, it is worth remembering one of these previous attempts: the Commission for Patient and Public Involvement in Health. It was established in July 2003 and operated nationally and regionally, following regional government boundaries. Within five years it had been abolished after being seen to lack clout, to be too bureaucratic and too top-down for the public and those on the ground. Perhaps I may again remind the House of the judgment from the Health Select Committee’s 2007 Report into Patient and Public Involvement in the NHS, which stated:
“The evidence we received was overwhelmingly critical of the Commission”.
We are convinced that trying to recreate the commission is not the best way forward, and instead propose that HealthWatch England should be a statutory committee hosted—that was a very good description from the noble Lord, Lord Patel—by the CQC, which is a far more viable option.
I am well aware that this proposal has met with concern.
Baroness Northover
I will finish and then I will respond to the noble Lord if I need to. I am well aware that this proposal has met with concern from some quarters. I will explain why we are proposing this arrangement and why we do not feel that the case for having a separate body is stronger.
HealthWatch England will have clout. It will have a seat at the top table, taking centre stage in providing advice on patient and public views to the CQC, Monitor, English local authorities and the Secretary of State for Health. Noble Lords were right to say that Healthwatch England must influence all these bodies; that will be its responsibility. My noble friend Lady Jolly, too, made that clear. Each of these persons or bodies will have a duty to respond to the advice. Through local healthwatch, HealthWatch England will be closely linked to the views of people expressing views about the services that most directly impact on their lives. Our proposals for HealthWatch England will place it at the heart of the system—not at the top, divorced from the views of local people, as CPPIH turned out to be.
As a committee of CQC, HealthWatch England will be able to draw on the best of CQC’s evidence base on quality and standards of care. The enthusiasm with which CQC wishes to learn via healthwatch is instructive. It will be helpful to CQC to have information coming from local healthwatch and HealthWatch England to CQC to alert it to problems such as those at Winterbourne View. This will give HealthWatch England a prominent position within a CQC that will have a strengthened role in assuring the safety and quality of health and adult social care services, and a strengthened focus on the concerns of health and social care consumers. This will ensure that from the outset HealthWatch England will have a greater presence and ability to influence than would a body established from scratch.
The Bill already contains significant safeguards to ensure that HealthWatch England will be able to operate effectively in that situation. For example, it will provide advice to a wide range of organisations. I have just mentioned central national organisations and local authorities. However, we listened carefully to concerns expressed in Committee about possible conflicts of interest between the CQC and HealthWatch England. This issue was raised again today. We therefore welcome Amendment 228, tabled by my noble friends Lady Cumberlege and Lady Jolly. It places duties on CQC and HealthWatch England to have regard to guidance from the Secretary of State about managing conflicts between these bodies. This is a sensible suggestion, and we are happy to support the amendment.
While acting independently, HealthWatch England must of course be accountable. Government Amendment 229 places a duty on it to send all local healthwatch organisations a copy of its annual report. It was the noble Lord, Lord Harris, who thought that this was a good idea and tabled an amendment to this effect in Committee. We agreed that it would help to secure the intended wide transparency and communication between HealthWatch England and local healthwatch. I am grateful to the noble Lord for flagging that up and suggesting the idea.
It is also important that local healthwatch—
Baroness Northover
No, I am going to continue, and if there are things that need to be dealt with at the end, I shall deal with them. It is also important that local healthwatch is able not only to provide information to HealthWatch England but to influence HealthWatch England’s actions on matters raised locally that may have national importance. Various noble Lords made that point and they were quite right. We therefore welcome, and will support, the amendments of my noble friend Lady Tyler.
Baroness Northover
My Lords, it may help the House if I continue, but I am very happy to give way to noble Lords who wish to ask questions once I have gone through the various elements.
Government Amendment 226ZG will enable HealthWatch England to make recommendations of a general nature to local authorities about the making of arrangements for local healthwatch organisations and, where HealthWatch England is of the opinion that local healthwatch organisations’ activities are not being carried out properly, to draw this to the attention of the local authority.
Amendment 226A, tabled by my noble friend Lady Cumberlege, would place a duty—I see Companions spinning all around the House, so while noble Lords are studying that—
Lord Harris of Haringey
I want to ask a question, and I think the Minister has moved on to another point.
Baroness Northover
I am very happy to take noble Lords’ questions completely out of order, if need be, at the end if I have not addressed them.
Amendment 226A would place a duty on local healthwatch organisations to have regard to any advice or assistance provided by HealthWatch England under new Section 45A(2). We believe that this is too prescriptive. While we anticipate that local healthwatch organisations will welcome advice and assistance from HealthWatch England, a blanket requirement to have regard to the advice and assistance does not seem appropriate.
The Government very much agree that it is very important to get the membership of HealthWatch England right, the better to ensure its independence, and I thank noble Lords for their contributions on this issue. The Bill already gives the Secretary of State the power to make regulations about the appointment of members, and it is a power that we intend to use. In Committee, we said that we would take away and consider the suggestions put forward by noble Lords. We have heard what was said and have undertaken a public consultation on these regulations. Noble Lords have flagged up that a number of noble Lords are interested in local elections from local healthwatch organisations to HealthWatch England, and that is one of the issues flagged up in that consultation.
The consultation closed on 2 March, and the responses are now being analysed. Government Amendments 225 and 226—I thank my noble friend Lady Cumberlege for adding her name to Amendment 226—would ensure that regulations are able to make adequate and appropriate provision about HealthWatch England’s membership, including procedures for appointing members. It would also ensure that the regulations must require that the majority of members cannot be members of the CQC.
I now turn to aspects of the amendments relating to specific functions of HealthWatch England. It is interesting that some of these have not been flagged in the debate. Amendment 223A includes elements on patients’ complaints, and I think it is important for noble Lords to be aware of some of the elements in it. I would point out that statutory mechanisms have been in place for the investigation of NHS and adult social care complaints for a number of years, and a great deal has recently been done to improve these arrangements.
In 2009, the previous Government—and I give credit to them—following considerable public consultation, introduced new complaints arrangements for the NHS and adult social care. These reforms placed a greater focus on the outcome of the complaint and on speeding up the process. Importantly, they placed emphasis on resolving complaints at local level with recourse to the independent Health Service Ombudsman, if appropriate, so that organisations were better able to learn from their mistakes and to use the information to improve future service delivery. While there is room for improvement in the local handling of complaints, we support the reforms put in place by the previous Government, and it remains this Government’s view that complaints are best dealt with initially at local level. We wish to build upon these solid foundations. However, it is extremely important that the information that can be gathered from people’s experience is fed in and that an individual complaint is taken forward in a largely satisfactory way.
The relevant part of Amendment 223A, which deals with complaints, could, we believe, fundamentally change the nature of HealthWatch, compromise its primary role of consumer champion, lead to confusion among service users, duplicate current arrangements and impact adversely upon the role of the Health Service Ombudsman.
The noble Lord, Lord Patel, laid out extremely clearly what HealthWatch England needs to do. It is extremely important that it is recognised as a very important body in the new structure and that it has input from practical experience. The noble Lord is quite right that information needs to come up from local level to national level and that it needs to feed in at every point of the new architecture. HealthWatch England needs to be part of what drives up standards, and it is different from the regulator. Many noble Lords emphasised that. It is indeed the voice of the people. All, including the Secretary of State, have to listen to HealthWatch England, so it has a huge and important job. The noble Lord is quite right. It will not be buried in the CQC. Hosting is a very good way of describing its situation. It does not have to spend time and effort on back-office functions as CPPIH had to.
How Healthwatch England will be made up, its relationship to local HealthWatch and elections will be dealt with through regulations that will be informed by the consultation to which I have referred.
I now turn to the noble Lord, Lord Harris—
Baroness Northover
I am very happy to indicate when I think I have finished. I now come to answer some of the points made by the noble Lord, Lord Harris, or to address them at least. He may feel that I have not adequately answered them and, after that, he might like to hop up.
Baroness Northover
I bear in mind a long history with the noble Lord, Lord Harris, that goes back quite a way and includes his very complimentary remarks when I gave my maiden speech in your Lordships’ House. Noble Lords might want to look at them.
Both HealthWatch England and local healthwatch have statutory forms—perhaps the noble Lord, Lord Harris, might wish to hear this.
Baroness Northover
I am so glad. Both have statutory forms and functions so they cannot simply disappear in the way that he fears. I pay credit to him for all his work in this area over many years.
It was a shame that the noble Lord, Lord Harris, was not at the meeting yesterday to which the noble Baroness, Lady Murphy, has referred. With his formidable local government experience, I am quite surprised that he does not welcome the local authority involvement in the arrangements that we are putting forward. Had he been there yesterday, he would have heard the enthusiasm of the LGA, the chief executive of East Sussex County Council and others for their new involvement in health services. They are extremely keen to be best informed by flourishing local healthwatches. As they take on their new task, they see having that information as very important.
The noble Lord, Lord Harris, asked about the funding formula. Funding for local healthwatch will continue in a very similar fashion to LINks. It will be allocated primarily through the formula-based grant. Like LINks, this funding will not be ring-fenced, but each local authority’s allocation through the formula-based grants will be publicly available. I hope that that is of help to him. In addition, local healthwatch will receive additional funding through the DH learning disabilities and NHS reform grant.
I have various other responses to various other people, but perhaps the noble Lord wishes to put a question to me.
Lord Harris of Haringey
I am enormously grateful to the noble Baroness. She has answered some of the questions that I put. However, the question I wanted to ask related to her remarks about 15 minutes ago, when her argument seemed to be that this amendment recreated the former Commission for Patient and Public Involvement in Health. Does she acknowledge that this is a completely different structure, because it would be derived from the bottom up, with the support of local healthwatch organisations? What is more, it would not have to be encumbered by the bureaucracy that the Department of Health formerly imposed on that commission. It is a completely different structure.
Baroness Northover
I hear what the noble Lord says, but if he remembers the relationship and the aims of CPPIH, a lot of them echo the arguments that he has been making about such a structure. We may simply have to differ. The Government are very keen to have a structure that is up and running immediately, linking to, plugged into and influencing the national bodies that it needs to, and that it is not spending its time on its central structure. That is why this arrangement has been sought and that is the philosophy behind it.
The noble Baroness, Lady Masham, raised a number of issues, some of which will be considered in the next grouping. Perhaps I could come back to them then so that I do not take too long. I am astonished and delighted to see so many noble Lords who are interested in what I have to say on this.
My noble friend Lady Jolly asked about information-gathering, and she is absolutely right. In many ways this bears out how the CQC is very useful in this regard. By being hosted within the CQC, HealthWatch England will gain support from CQC expertise on the best methods of gathering and making the most of intelligence from local healthwatch. As part of HealthWatch England’s set-up plan, the CQC has dedicated resources to identify and develop the system that will support information flow between HealthWatch England and local healthwatch. I take on board very strongly what she said about the need for that information to be produced in a form that can be generalised and applied nationally, and that there are not lots of disparate bits of information that cannot be put together.
The noble Lord, Lord Warner, asked again about campaigning. I said in Committee that HealthWatch England and local healthwatch can campaign. I followed that up with a letter confirming that, which I hope he got—but perhaps he did not—and I reiterate it here. I hope that that is of help to the noble Lord.
Baroness Jolly
My Lords, I was happy to add my name to Amendment 232, tabled by the noble Baroness, Lady Cumberlege, which puts in the Bill that it absolutely is the responsibility of the local authority to provide the finance for the local healthwatch to carry out its functions.
The local authority needs to develop confidence in its local healthwatch organisation—to see it as a partner, not a threat—enabling it to deliver not only its own services more effectively but those of its health partners. I hope that the Minister can indicate what might be the route to resolve any disputes about funding allocations to local healthwatch.
I will now talk about lay leadership on local healthwatch organisations. Lay leadership is absolutely critical to local healthwatch, and the noble Baroness, Lady Cumberlege, has outlined exactly why that is. It is a new PPI organisation and will need quickly to demonstrate integrity and independence to inspire local trust. The Government’s own model for user-led organisations points the way and I commend it to the Minister. It calls for 75 per cent lay or user representation on the board. Will my noble friend confirm that any guidance the Government produce will give clarity on the composition of lay membership and the involvement of lay members in the day-to-day work of the local healthwatch and that the results of the government consultation exercise will be taken due note of?
Finally, I come to a definition contained within my Amendments 234 and 235. “Local care services” are defined in the Health and Social Care Act 2008 as both health and social care, but “local people” are not defined. This definition is to ensure that no one is omitted from the remit of local healthwatch. It encompasses people living in the council area covered by the local healthwatch, people receiving care in the area and people from the area who are receiving care elsewhere.
Local healthwatch organisations will be critical in the monitoring of the new patterns of health delivery called for within this Bill. They will be vital to ensure that standards do not fall in the time of austerity, and I wish them success.
Lord Harris of Haringey
My Lords, this is a complicated group of amendments. There are, I think, 50 government amendments in this group that completely change the direction of this part of the Bill. Of course, we do not have the benefit of a Committee consideration of these changes, which is unfortunate, given the nature of the changes that are envisaged.
In fact, what we are being confronted with is an almost extraordinary volte-face by the Government about how local healthwatch organisations are going to operate and proceed. As it stood, before these amendments, the Bill provided local healthwatch with a very clear structure and very clear governance. It defined membership and it defined their role. As such, the arrangements were better than LINks, better than PPI forums and, in one or two respects, better than community health councils. It was a very clear statement. There remained the problem that local healthwatches were going to be the creatures of local government without the benefit of ring-fenced money and with the potential issues around conflicts of interest concerning social care. I am reminded that on 15 October 2007, the noble Earl, Lord Howe, clearly took the view that it was inappropriate for a local authority to be host to a LINk. Presumably, the same arguments that influenced his thinking then apply on this occasion.
We have been offered guidance on conflicts but, again, it is not clear how this will work, which is something that we could have pursued perhaps in detail in Committee. The amendment refers to having regard to the guidance on conflicts, which I suspect will not necessarily be strong enough for the sorts of conflicts of interest that potentially could arise. We also have the enormous concession, to which I referred earlier, of Amendment 226ZG, which enables HealthWatch England to write a letter if it feels that something has gone wrong.
That is where we were but now the Government, without explanation or consultation, have decided that local healthwatches will no longer be statutory bodies. We are told that that is all in the name of the need for flexibility. The noble Baroness has mentioned repeatedly the briefing which took place yesterday evening, to which, incidentally, I was not invited. Even had I been, I would not have been able to attend because the meeting clashed with the regular meeting of Labour Peers, which one would think that the Government would wish to avoid. At that meeting various papers were tabled which referred to the importance of flexibility but we are not clear as to what that flexibility will deliver.
In moving the amendment the noble Baroness talked about the Government’s proposals in the Bill as creating a series of “unaccountable quangos”. I recall previous briefings which I attended with Ministers and the Bill team when it was explained that there would be guidance about how the membership of local healthwatch was going to be derived and to demonstrate that these were going to be accountable bodies and not unaccountable quangos. Somewhere along the line, in the past few weeks, there has been this amazing change of attitude, which does not seem to follow the benefit of any real explanation or consultation with those who might take an interest in it.
That underpins the amendments spoken to by the noble Baronesses, Lady Cumberlege and Lady Jolly. The noble Baroness, Lady Cumberlege, highlighted the difficulty that would arise between members and staff. The noble Baroness, Lady Jolly, talked about the importance of lay leadership. In terms of the changes, the Government are going to make it more difficult for there to be lay leadership and the role of members versus staff will be blurred still further. Indeed, the staff will be the dominant influence.
This is not a matter on which there has been consultation. I have received a note from the National Association of LINks Members, which states:
“Ministers say that they are ‘not convinced’ that LHW needs to be a stand-alone, statutory body corporate. It is not ministers who will be relying on LHW to get them a fair shake but the old, sick, vulnerable, frightened and marginalised and these, along with the rest of the patients and the public, are the ones who need to be ‘convinced’ that we have a model that will work”.
It says that it is not convinced. It points out that local healthwatch should,
“have a standard ‘platform’ of presence everywhere in England, not merely through logos, straplines and brands”—
which the Government’s amendments will make happen—
“but through a locally elected membership, a single ‘address’ and identifiable staff that it has appointed”.
It says that only:
“Statutory, body corporate status would deliver this”.
It continues:
“Government says it does not want a top-down model but it is making top-down decisions, and these fly in the face of all the evidence of the past three and a half years of LINks, all the advice of all the LINks’ members of the government’s own HealthWatch Advisory Board, of the National Association of LINks Members, all the advice of many, many LINks all over England. ‘Being heard’ has simply vanished from the national scene. The government pontificates on what it does not practise. It legislates but it does not listen”.
It suggests, although I could not possibly automatically agree, that:
“What the Government actually fears is 152 statutory LHWs, with genuine independence, with real clout and public buy-in, a separate identity, and powerful and committed membership”.
If that is the concern, where do we go from here? I am taken with the sage advice your Lordships received from the noble Earl, Lord Howe, when we debated the creation of LINks, the slightly ill-fated proposal by the previous Labour Government. The noble Earl, in his typically courteous but forceful way, said then—given these government amendments, you can simply substitute HealthWatch for LINks:
“We have come to a group of amendments most of which in their different ways relate to the same problem. I use the word ‘problem’ as the most neutral term I can readily think of for what many of us regard as a most serious and regrettable weakness in this part of the Bill; namely, the absence of even the slightest hint of a statutory identity for LINks. There is a complete lack of any descriptive reference to what a LINk might look like and practically no definition of a LINk”.
That was the noble Earl, Lord Howe, talking about the creation of LINks. Yet today he has brought forward amendments—admittedly he has delegated this to the noble Baroness, Lady Northover, who is acting as his mouthpiece on this occasion—that will do precisely what he complained that the previous Government did.
Of course he said much more than that. I will not burden the House by repeating all the remarks he made in October 2007, but if we substitute HealthWatch for LINks every time it appears, we will get the flavour. He went on to say:
“As the Bill stands there are no provisions for LINks to have any form of governance arrangements; it is left completely open as to how a LINk would be able to make decisions or authorise people to act on its behalf. This is a major issue because without some form of governance you cannot have accountability. If there are no people authorised to act on its behalf, a LINk cannot be accountable”.—[Official Report, 15/10/07; col. 567.]
He later said:
“The key issues around governance are really three: how decisions are to be made; how activities are to be undertaken; and, who is to do these things? Without those minimum requirements we would be left with a situation where someone who has joined a LINk, but who never attended any meetings or received any training or signed any code of conduct”,—[Official Report, 15/10/07; col. 568.]
could proceed in particular ways. So the lack of statutory identity was something that the noble Earl, Lord Howe, told this House was absolutely critical when we debated the creation of LINks. And he was absolutely right. I remember agreeing with him at the time and feeling that my Government had got it wrong. But this is the point. The Government have now brought forward amendments which undo all his fine words at that time and all his attempts to put this right, and that is because statutory status at the local level was what was going to give HealthWatch a cutting edge, an authority in terms of its relationships with other bodies.
The noble Earl also had a few words to say about the underlying argument that this should be delegated down. He said then, and we could say it to him now, that we were told that the Government did not want to be “prescriptive” and that it would be up to each LINk to set itself up in the way it wanted.
In June 2007, he quoted a telling Greek legend. Indeed, he may remember using this example:
“I think it was Proteus who was able to assume any shape or form that he liked. The reason why he did this was in order to avoid foretelling the future. For us debating this part of the Bill, it is almost impossible to foretell the future because neither the governance arrangements of LINks, nor their structures, nor their powers, nor even the precise scope of their activities, are set out here. In a real sense, as with Proteus, we do not know who or what we are dealing with”.
With these amendments before us today, the Government are substituting something else when we would have known what we were dealing with and where there were precise governance arrangements. But they are taking all that away and moving towards something that the noble Earl also, presciently, described in that debate, saying:
“As I understand it—the Minister may correct me—because LINks are not defined they are not classifiable as statutory bodies. We may know a LINk when we see it—although I am not completely sure about that—by virtue of the things that it does … The Bill refers to activities being ‘carried on’”.
I look at these amendments and, my goodness, Amendment 236C in the name of the noble Earl talks about,
“activities carried on for the benefits of the community in England”.
Incidentally, how a local organisation is supposed to act in the benefits of “the community in England” seems to be a very odd use of words. However, phrases such as “activities carried on” were precisely what he said then was the wrong way of going on.
The noble Earl went on to say in that June 2007 debate:
“In fact, in one way or another, there is quite a lot of carrying on in this part of the Bill. There may be a joke there somewhere but I shall refrain from trying to find it. But that nebulous form of drafting is as far as we get. It will be incumbent on us in Committee”—
we do not have the benefit of being in Committee today—to sort out this unsatisfactory regime. He continued:
“The main problem with the Bill is that because LINks”—
and you could say the same about HealthWatch now—
“have no identity or definition, they can be seen neither as bodies whose independence is guaranteed, nor as bodies which have the power to hold local health and social care commissions to account”.—[Official Report, 20/6/07; cols. 252-3.]
Those were the wise words of the noble Earl, Lord Howe, then, but he is the same noble Earl who is bringing forward amendments that create the same precisely the structure that he said was totally inappropriate then.
Let us look at what the Government are doing and I will be brief. Amendment 231B removes the statutory status. Amendment 231C removes all structure, form and governance from the Bill. Amendment 234A talks about “one set of arrangements”. It implies not just a single arrangement in any local authority area, but a set of arrangements, so it would not necessarily be one contractual arrangement: it would be a set of contractual arrangements. The word “arrangement” is in the plural.
Amendment 235C is the great catchall that tells us it is all going to be all right and that all these bodies are going to be the same in that there will be a licence to use a trademark. I am enormously reassured by that. Amendment 235D provides for subcontractors for the different functions. So what we are envisaging is that a local authority will divide up the functions of HealthWatch organisations and contract each of them to a separate organisation. Does that really make sense? Is that the strong patient voice that we were promised at local level?
In Amendments 238ZM and 238ZN there are specific references to contractors. This is essentially moving from a position where there will be a clear number of local statutory bodies delivering patient representation on behalf of their communities, with members from those communities running those organisations, because that is what the governance arrangements were before. This is essentially privatising that process, albeit by so-called social enterprises. This is privatising consumer representation.
How can contractors be representative? Yes, there is an amendment that says that these contractors will be broadly representative of the local community, but how can an enterprise itself be representative of the local community? I find this concept difficult to understand. Because we are not in Committee, we do not have the opportunity to have it explained to us fully and a chance to probe the Government.
The amendments that we talked about a few minutes ago envisaged that local healthwatch would be able to have local representation on the board of HealthWatch England. How will we have representatives from local healthwatch organisations—the arrangements that will be subcontracted for different functions to social enterprises— at the national level for HealthWatch England? Is this going to be board members of a social enterprise, charged with the effective running of that enterprise not the representation of the community? Will it be the staff? That comes back to the point about lay leadership that the noble Baroness, Lady Jolly, raised earlier.
Last night, I got an e-mail from an existing LINk member, with whom I have never previously communicated, saying:
“I’m much involved with my local LINk, which it can be argued, has already been ‘taken over’ by its Host in advance of the Privatisation of the Public’s voice when HealthWatch comes about. Lay ‘Volunteers’ have been demoted from being Members to Participants”—
there is the lay leadership of the noble Baroness, Lady Jolly—
“and our Management Committee has been redesignated as an ‘Advisory Group’”—
again, lay leadership—
“with few if any powers over anything. Expulsions have been initiated against those who don’t toe the new autocratic line—and the local authority just turns a blind eye despite appeals to the Council Leader, CEO and Portfolio holder. What hopes for a voice for the public/patient when Local Healthwatch is in place?”.
I believe that the Minister received a letter from another member of a local LINk who talks about his dedicated service. He lists at some length all the different bodies that he has sat on representing the public, then says that,
“My most precious resource—the time I have given—has, at a stroke, been set to nought”.
There is no local lay leadership in these arrangements. That is why these amendments are so sad.
We have to ask why the Government are doing this. Is it because some unit in the Cabinet Office has suddenly discovered this bit of the Health and Social Care Bill and said, “Oh, they have missed something out about the opportunity to introduce competition so let us put it in this bit of the Bill”? Or perhaps it is because Government Ministers have suddenly realised that the Bill is rather unpopular. There are some difficulties with it, the public’s perceptions of it are increasingly negative, so having proper patient representation would now be extremely dangerous.
Lord Trefgarne
My Lords, the noble Lord has been going on for a considerable period in connection with the government amendment. He now speaks about the Bill in general. That is really a Second Reading issue. This is Report. Could he indicate how much longer he intends to be?
Lord Harris of Haringey
Actually, I had finished my last sentence when the noble Lord stood up. I raised that because the question arises as to why the Government have introduced these amendments. Given the attitude to the whole Bill, one has to question their motivations. I hope that when the noble Baroness eventually—I assume—gives us her usual, extremely full exposition, she will explain precisely the motivation for this change, so as to indicate that the fears being expressed are totally misplaced.
Lord Harris of Haringey
I was trying to establish whether it would be possible, under these amendments, to segment the various functions of local healthwatch and contract them separately. I think the noble Baroness has just confirmed that. Am I right?
Baroness Northover
The key fact is that there is one local healthwatch for any local authority area. If it decides that it wants to subcontract something to best achieve what it needs, that is up to that local healthwatch. The noble Lord might want to bear in mind the statutory functions of local healthwatch and its responsibilities as eyes and ears. If it was not working, I am sure that noble Lords such as he would flag that up. Local healthwatch would then have to justify what it was doing and might need to move away from it.
I realise that time is pressing and it is a Thursday afternoon. I have listened to the concerns expressed about the need for local healthwatch to have strong lay involvement. I completely agree. This will be vital to the success of local healthwatch. Therefore, I confirm to the House today that we will use the power of the Secretary of State to specify criteria, which local healthwatch must satisfy, to include strong involvement by volunteers and lay members, including in its governance and leadership. This will have the effect that a local authority cannot award a local healthwatch contract to a social enterprise unless this condition is satisfied. I hope that that provides reassurance to noble Lords. My noble friend Lady Jolly also flagged this up.
The noble Lord, Lord Low, the noble Baroness, Lady Wheeler, and others raised the issue of funding for local healthwatch. It is important that local authorities can manage local priorities, since they are best placed to respond to their local communities. Therefore, local healthwatch will remain within local authority funding mechanisms, as I mentioned earlier. This view was supported by the NHS Future Forum, which made clear in its Patient Involvement and Public Accountability report that it did,
“not agree that budgets for local Healthwatch should be ring fenced”.
However, to reassure noble Lords, I point out that statutory functions must be delivered. This helps to protect what local healthwatch is there to do.
I believe that there is consensus over our ambition for local healthwatch. We do not disagree about what we want it to do for people or to accomplish in order to raise the quality of care. I hope that I have reassured noble Lords that it is right for local healthwatch to be delivered at a local level by organisations that are accountable locally. To embed healthwatch in localism will not only enable the organisational form of local healthwatch to best meet the needs of the local population but better enable local healthwatch to play an effective role in feeding back people’s views and promoting their involvement in the scrutiny and provision of local care services. I refer again to the positive reaction of several different local authorities and councillors who are very pleased that they will now be involved in many elements of the healthcare services, as they are in public health.
Lord Harris of Haringey
Could the noble Baroness tell us how many LINks have been in touch with the department to say that they welcome these changes?
Baroness Northover
Like the noble Lord, I recognise that the organisations which are in place when change occurs are always concerned. LINks have rightly expressed concern about whether what they know works well in what they do will be taken forward. They are very open about the challenges that they faced and some of the areas in which they have not done as well as intended. I pay tribute to the then Government for trying to make the system work when it was set up. It was a reaction to what had been done before and a looser model. Everybody in the system wanted that to work as a model. However, I think that the noble Lord has admitted that it has not worked universally. It is therefore understandable that the relevant organisations expressed concerns. I hope that they will become involved in the new system and that what they have contributed—the volunteers among them have made an effective contribution in many areas—will feed into local healthwatch. With that, I hope that noble Lords will accept the Government’s amendments.
Health and Social Care Bill
Lord Harris of Haringey Excerpts(12 years, 2 months ago)
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Baroness Cumberlege
My Lords, this is a very simple and non-controversial amendment. Under Clause 51, the Secretary of State has a duty to keep under review the effectiveness of key bodies in the NHS. This is a crucial part of the Secretary of State’s responsibilities in ensuring that he or she can exercise ministerial accountability for the health service. As this is a new body, through the Secretary of State, we will want to ensure that it is to carry out its functions effectively. Healthwatch England has to undertake certain tasks—for example, making annual reports to be laid before Parliament. Other reports will be at its discretion. These activities will be easy to monitor, but it will be much more difficult to assess the quality and the appropriateness of the advice and information or other assistance it chooses to give.
In her letter to noble Lords on 21 December, my noble friend Lady Northover told us that she did not expect Healthwatch England to give the CQC, the NHS Commissioning Board or other bodies an easy ride. She went on to state:
“We fully expect HealthWatch England to raise what at times may be awkward, difficult questions with respect to health … and to be able to do this publicly”.
It is the Government's intention to create not a patsy organisation but one that will be a champion of health and, on occasions, a difficult and awkward companion, focused on improving the quality of care in both health and social services. If it does not, it will not fully represent the voice of patients and service users.
The Care Quality Commission is one body listed in the clause. As the Bill stands, HealthWatch England will be a committee of the CQC. However, as we have discussed in many debates on the Bill—and I believe that more are to come when we come to debate the amendment of the noble Lord, Lord Patel—there will be a need for it to remain operationally independent of the Care Quality Commission. Therefore, I suggest that a review of the Care Quality Commission may not be an appropriate way of fully scrutinising the role of HealthWatch England, and that such scrutiny should be included in its own right in the clause.
That is why I tabled an amendment to add HealthWatch England to the list of bodies that the Secretary of State must keep under review. It would make it clear that HealthWatch England is independently accountable for how effectively it goes about its work, and cannot be overshadowed by—or hide behind—the review of the role of the CQC. I hope that my noble friend will look kindly on this simple and not very earth-shattering amendment. I beg to move.
Lord Harris of Haringey
My Lords, I seek clarification on the amendment. I am sure that the noble Baroness, Lady Cumberlege, means well, but I note that the formulation she used was,
“and its Healthwatch England committee”.
I am sure that it would have been possible to draft the amendment so that it referred simply to HealthWatch England, which would have avoided raising the question that we will come to at a later stage of whether HealthWatch England should be part of the CQC or any other august structure of the NHS. It is an important technical point; I hope that the amendment does not pre-empt any later discussions.
The motivation that the noble Baroness ascribed to the amendment—to demonstrate that HealthWatch England is independently accountable—is extremely important. It is entirely proper that HealthWatch England should be seen to be accountable to the Secretary of State. Certainly it should not exercise that accountability through another body, particularly one which it might on occasions wish to criticise, or about which it might want to raise important concerns or say that it has not done what it might have. Therefore, to demonstrate that HealthWatch England is independently accountable is an important objective. My concern is that the amendment may solidify something that at the moment comes later in the Bill, but which I trust will not remain there by the time we have finished Report: namely, the requirement that HealthWatch England is simply a committee of the CQC.
There is also a question about how accountability will work with respect to the Secretary of State. I suspect that the quotation from the noble Baroness, Lady Northover, to which the noble Baroness, Lady Cumberlege, so approvingly referred, about how difficult and painful would be some of the discussions with HealthWatch England, will sometimes apply also to the Secretary of State. When I was for a number of years director of the Association of Community Health Councils, I collected personal denunciations that I had received from successive Secretaries of State. They came from both parties: indeed, the most vehement denunciation was from a Secretary of State from my own party, who perhaps expected more from me than the criticisms that I had raised.
The point is that this will not be an easy relationship. Even the accountability that is envisaged by the reference to “keeping under review” will, I suspect, lead to tensions. However, I do not believe that one can have a body of this nature that is not accountable in some way to the Secretary of State. I simply look forward to the maturity of future Secretaries of State, of whatever party, who will recognise that a body such as HealthWatch England, and local healthwatch organisations, are intended sometimes to be irritants.
Baroness Wheeler
My Lords, I would have liked to debate this amendment in the light of next week’s debate on the status, powers and functions of HealthWatch England under Clause 180, when we will fully air once again the serious and continuing concerns across the House about the proposed relationship between HealthWatch England and the CQC, and hear from the Minister how the Government intend to address these concerns as they flesh out their proposals for healthwatch, and as the CQC comes under closer scrutiny. However, we support this amendment requiring the Secretary of State to include HealthWatch England in the organisations specified in the Bill that he or she must keep under review. Obviously we do this in the context of the separate independence of HealthWatch and not as a committee of the CQC.
However, it is also important to make it clear that we do not think that the measure in itself, or combined with other government proposals, for example, on the HealthWatch board membership, will be anywhere near enough to provide the independence that HealthWatch England needs if it is to be the robust and trusted patients’ watchdog that is needed—and I emphasise trusted by the public.
The Minister must appreciate that the concerns across the House over the CQC’s relationship are not addressed by referring to the close synergies between the two organisations or to the powers and influence of the CQC rubbing off on HealthWatch. In this context it is difficult not to dwell on the recent developments in the commission and the Department of Health performance and capability review of the commission. I say this as a genuine supporter of the CQC and its work—for example, last year’s excellent special review of stroke services, and the one of residential care—but the department’s major findings that the CQC needs to be more strategic, that accountabilities within the CQC are unclear, as well as the strong concern over the blurring of boundaries between the CQC board and executive team, do not augur well for the future relationship between the CQC and HealthWatch.
Of course, we will come to these matters in detail when we have the full debate on HealthWatch and local healthwatch organisations. I hope that at that stage the Minister will address these ongoing concerns, particularly about the clash of cultures between HealthWatch and the CQC, about public faith and trust in HealthWatch if it is to be formally linked to the CQC, and the lack of confidence in the new arrangements on the part of the overwhelming number of LINks organisations and NALM. As the letter from NALM in the Guardian earlier this week underlined:
“Healthwatch will only be considered the true voice of the public, if it is seen to be independent of those it monitors”.
I look forward to next week’s debate.