Health and Social Care Bill
Lord Harris of Haringey Excerpts(12 years, 2 months ago)
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Lord Harris of Haringey
My Lords, the intervention we have just heard raises a particular point about the position of illegal immigrants. There is a problem here. The number of people who are not here legally varies in different areas. There are concentrations in particular areas where the impact on local health services will be disproportionately high. A simple assumption that this could be lost in the wash does not work. That issue needs to be addressed.
This is a pot-pourri of amendments. Amendment 75 raises an extremely important point, which I hope that we can include in the Bill in some form. The very important Amendment 96, in the name of the noble Baroness, Lady Finlay, raises a completely different set of points.
I want to pick up on Amendments 95 and 111 in the name of the noble Baroness, Lady Cumberlege, and, in particular, the points she made about why she introduced the amendments in this form on the basis of conversations that she had with the government Front Bench and, in particular, the noble Baroness, Lady Northover. She had been led to believe that this would be too burdensome a task for local healthwatch organisations and that they would be too small to carry out the functions that she talked about.
Baroness Cumberlege
That was not in a private conversation; it came out in Committee and was open to everyone who attended that sitting.
Lord Harris of Haringey
That does not alter the point I was about to make, which is that, on the basis of those remarks, it is important to recognise in the Bill that that is the expectation on local healthwatch organisations. That reflects the growing concern of people outside that, despite the Government’s best intentions for how healthwatch will be organised, those organisations will not be anything like as effective as your Lordships would hope. We hear, for example, that there is widespread concern that the Government will remove the statutory nature of local healthwatch organisations—we will no doubt come to that in due course. We are told that the Government are indifferent to the consequence of not ring-fencing their finances. The concerns expressed by the noble Baroness, Lady Northover, in Committee, that those organisations may be too small and unable to cope with some of these loads are real. Therefore, it is all the more important not only that we provide a framework which enables healthwatch organisations to be effective but that we make clear in the rest of the legislation the importance of giving a clear statutory role to healthwatch organisations—in particular, in the vital role of commissioning local services.
Lord Walton of Detchant
My Lords, this is a disparate group of amendments. I shall speak in particular to Amendment 96, which has been so ably proposed by my noble friend Lady Finlay. I do not propose to redeploy the arguments that I expressed when a similar amendment was discussed recently. One thing that is beginning to emerge as the Bill continues its progress through your Lordships’ House is that the size and, perhaps, quality of the clinical commissioning groups will be extraordinarily variable. Some will be large and contain a large number of GPs, and so on; therefore, with the secondary care individuals who will become members of the group, and others, some will deploy a wide range of expertise.
However, it is perfectly clear that in some parts of the country the clinical commissioning groups are going to be very much smaller. The range of issues in highly specialised services will be very limited and the smaller clinical commissioning groups will lack the knowledge and expertise to handle those areas well. For that reason, it is crucial that the national Commissioning Board should have the major responsibility for commissioning highly specialised services, in which I include not only the neurological services, about which I spoke in some detail last week, but cardiological services, cardiothoracic services and many other specialties.
On Rare Disease Day, the point that my noble friend Lady Finlay made about rare diseases is very important. There are thousands of rare diseases affecting a very small number of patients throughout the UK. The Rare Disease UK consortium, chaired by Dr Alastair Kent, the former chairman of the Genetic Interest Group, is deeply concerned, as is the Neurological Alliance, about the mechanism by which these diseases will be given attention in this legislation and proper understanding, control and attention by the national Commissioning Board. As my noble friend said, there are several thousand rare diseases, some affecting very small numbers and some larger numbers.
I spoke in detail last week about muscular dystrophy. As an example, last week I was asked by a former medical colleague in Newcastle to see, with him, a patient—not as a consultation but to look at the problem posed by a condition called haemolytic uraemic syndrome. This is due to a genetically determined disorder of the complement system. It is a disease that affects the kidneys, is steadily progressive and is ultimately fatal. However, recent research has identified and produced a licensed medicine which is effective and which in the patient whom I met, with her husband, has proved to be virtually life-saving. The problem is that there are only 200 patients in the UK with this disease and the cost of the medicine for that patient is £250,000 a year. At the moment, it is paid for by the drug company, which is carrying out trials.
That is one example but there is a huge number of genetically determined rare diseases for which new drugs are coming on stream. There are many cases where the causal, abnormal or missing gene product has been identified and where, slowly but surely, drugs which are beginning to have a beneficial effect on these progressive, disabling or ultimately fatal diseases are beginning to emerge. These are called orphan or ultra-orphan drugs. Whatever happens in the future with the National Health Service, the possibility—the probability—of having a special mechanism to deal with the needs of people with these rare diseases, as well as the needs relating to the orphan and ultra-orphan drugs, is going to be a massive problem. It is crucial that there is a very clear indication in the Bill that rare diseases deserve special consideration. For that reason, I warmly support Amendment 96, which has been proposed so ably by my noble friend Lady Finlay.
Baroness Murphy
My Lords, I quake to disagree with my noble friends Lord Walton and Lady Finlay about Amendment 96 but I do so as someone who has been the chief executive of a very large health commissioning organisation. It is utterly crucial that rare conditions are considered individually and that the level at which they are commissioned is decided by the national Commissioning Board coming together with the clinical senates and the clinicians involved in the area. They are best placed to decide on the best level of commissioning based on epidemiology and public health expertise. In fact, this amendment would achieve the very opposite of what the noble Baroness, Lady Finlay, wanted: to highlight some of these very important rare conditions which we do not want to forget. It is not helpful, however, to have rare conditions identified in this form in the Bill. We must leave it to the clinicians to make a judgment about how they are commissioned in groups. That will protect patients better, in my view, than any statutory guidance of this kind. I hope she will reconsider and not press this amendment.
Lord Harris of Haringey
The noble Baroness is not only disagreeing with the noble Baroness, Lady Finlay, and the noble Lord, Lord Walton, but disagreeing with all the organisations associated with these particular rare diseases. They think that the way forward is in the amendment of the noble Baroness, Lady Finlay.
Baroness Murphy
I will respond briefly to that. We all have tremendous sympathy with the fact that very many rare conditions are not currently commissioned to the standard that we would wish. It is also true, by the way, that many ordinary conditions are not commissioned to the standard of service across health and social care which we think would be best for the patients. That is undoubtedly true, but we would not necessarily fix that by having a special focus on the way we say where it is going to be commissioned. What we need are specialists in each of those rare conditions’ groups to be consulted, to ask patients and their relatives about how they should be commissioned, and some professional advice about the epidemiology of it.
Noble Lords should remember that the national Commissioning Board has the ability in this Bill to use, for example, the good offices of their local offices that will regionally be able to ensure that clinical commissioning groups can come together to commission properly for rare conditions. That is already happening around the country, and that is more likely to be a way forward than this particular statutory amendment. I am not saying that those rare conditions do not need some focus and better commissioning: they certainly do.
Health and Social Care Bill
Lord Harris of Haringey Excerpts(12 years, 2 months ago)
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Lord Walton of Detchant
My Lords, I added my name to this amendment for one reason and one reason only: in the hope of seeking assurances from the Minister. When I first joined the General Medical Council in 1971, the president was the late Lord Cohen of Birkenhead, who was a wonderful man. He was a fine physician, but he was an autocrat and his views were very traditional and in some respects, I have to say, somewhat backward. He told me, “Never apologise to a patient. The lawyers will get after you”. He told me, as a young man, “Never speak to the press or to the television. They will misquote you always”. Happily, since that time the General Medical Council has progressively changed its view. Now the recommendation made to all medical practitioners is that, if you have made a mistake, if you have committed an error, it is your duty to apologise to that patient sincerely. An apology does not mean an admission of liability; it is simply a sincere apology for a mistake. I hope that is the case in respect of all other healthcare professionals whose activity is regulated by law. I would like an assurance from the Minister that that is the case.
The purpose of this amendment, which has been so well proposed by my noble friend, is to confer on health bodies, whether clinical commissioning groups, independent foundation trusts or other organisations providing medical care, a similar obligation and, indeed, the duty to apologise for errors that have occurred under the auspices of those organisations. I simply ask the Minister whether, in the contracts that these bodies hold with the NHS, such an obligation is a part of the contract. If it is, it may not be necessary to have such an amendment on the face of the Bill. I hope the Minister can give me those assurances.
Lord Harris of Haringey
My Lords, I support this amendment because I believe that it is a sincere attempt by the noble Baroness, Lady Masham, to help the Government out. I do not intend to repeat the arguments that we had a few days ago on Report about placing on institutions a rather stronger statutory obligation to inform patients where mistakes had taken place, partly because we have had that debate. During that debate, the Minister repeatedly expressed the view that the objectives of the amendment could be achieved by placing a contractual obligation on organisation to do this. This amendment quite simply requires that that contractual obligation takes place. I am assuming, therefore, that the Minister will accept the amendment, because it does exactly what he said he wanted to do in his previous speech.
The amendment also expresses the concerns raised by a number of your Lordships in Committee and one or two on Report that perhaps placing the duty and obligation directly on organisations and the individuals involved would be inappropriate and that that would provide too rigid a framework. However, as the amendment does what the Government said would solve the problem, I hope that the Minister will indicate that he is happy to accept it in this form.
The reason why I think that it is helpful to the Government is, as may not have escaped the Minister’s attention, a certain amount of criticism of the Department of Health and of this Bill is prevalent at the moment. For example, a letter was published in the Telegraph this morning which said:
“The Coalition Government promised to ensure greater NHS accountability to patients and the public. We believe this aspiration has now been abandoned”.
That was signed by a large number of people active in representing the interests of patients around the country. It is not specifically about this issue; it is about an issue that we will come on to very shortly in terms of HealthWatch. But there is a very widespread concern that, despite all the rhetoric that we have heard from the Government about “no decision about me without me”, that aspiration has been lost in this Bill.
Part of the way of getting patients to have confidence in their health service is through the knowledge that if something goes wrong the fact will be shared with them. The Government said that they did not want a statutory obligation to be placed on individuals or institutions to do that, but they said that they would like contractual arrangements to be put in place. This amendment makes sure that those contractual arrangements are put in place, and I would have thought that the Government would want to accept it so as to demonstrate that even now there is some good faith left around their desire to put patients at the centre of the NHS changes.
Baroness Finlay of Llandaff
My Lords, I support this amendment and urge the Government to accept it as it is written. I hope that the Government can see that this is very helpful; it fits with the points made by the Minister in his summing up in response to the previous amendment tabled by my noble friend Lady Masham about there being agreement on the importance of openness and candour in healthcare. The Minister went on to say that,
“the NHS could only call itself a world-class health service if it embraced openness wholeheartedly”.—[Official Report, 13/2/12; col. 590.]
He added that there was agreement that something needed to change.
The beauty of the way in which the amendment is worded is that it distinguishes between major and minor occurrences. It emphasises the true duty of candour to disclose events that have affected a patient either medically or physically and that may have long-term effects. It does not focus in any way on anything trivial and requires the contractual duty of candour to be put into the contracts, which was exactly the content of the Minister’s summing-up speech last time.
Health and Social Care Bill
Lord Harris of Haringey Excerpts(12 years, 2 months ago)
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Lord Harris of Haringey
My Lords, I have lost track, since I first became a community health council member in 1977, of how many reorganisations there have been of the National Health Service and how many have all said somewhere in the White Paper or in the preamble or in whatever else it might have been that the Government of the day were committed to putting patients first, or at the centre of the NHS. I recall White Papers with titles such as Putting Patients First, which were all about reorganisation of the health service and the administration. I recall successive Secretaries of State—many of whom are not in their place tonight, although they could be as Members of your Lordships' House—telling us proudly that their particular reorganisation was somehow going to ensure that patients would, for the first time ever, be at the centre of the NHS. So I can understand why the noble Lord, Lord Marks, and the noble Baroness, Lady Williams, thought that it might help to try to write that into the Bill. I can understand, too, how the Minister felt that it could be resisted—as, presumably, every previous ministerial occupant of the role that he currently fulfils has resisted writing it into the Bill in the past. But I suspect that simply having statements that say that the basis is that the interests of patients are paramount is not going to be sufficient. Indeed, I suspect that with some of the arrangements envisaged in the Bill, that may produce some genuine difficulties. If, for example, you are a private sector company providing services to the NHS your duty as directors is to the shareholders of that company. So I can see why it will produce a tension—and, no doubt, why the Government will resist the earnest endeavour of the noble Baroness and the noble Lord to get this into the Bill.
The amendments in the group in the Minister’s name are rather helpful, however, because they are specific. They talk about the duty to promote the involvement in various stages of the process. They place a duty on the board and on CCGs to involve patients in the prevention and diagnosis of their illness and their care and treatment. The experience is that where there is that duality, when patients are involved in the assessment of the treatment and the sort of treatment that is to be followed for their illness, the way in which that treatment is then followed by the patient is far greater as a result of that involvement. What is more, patients are usually expert in their own conditions, particularly if they are long-term or chronic conditions. They will often know as much about it as their general practitioner or, indeed, many other people who are engaged in their care. So that principle of involvement is absolutely right. I rather suspect that the Minister’s amendments will do far more by making it clear what the expectation is than rather grand statements about the interests of patients being paramount, as we have seen so many times in the past.
In her very full introduction to Amendment 142, the noble Baroness, Lady Cumberlege, has given a very clear and important explanation of why patient involvement is so important, and has drawn a careful distinction between the different types of involvement that need to be addressed. I hope that in responding to the noble Baroness’s amendment the Minister will clarify—before we get on to the important amendments about healthwatch which we will come to in due course—exactly how the various separate functions and requirements that the noble Baroness identified will be met by the structures proposed in the Bill, and in particular how they will be met in terms of the resources available and the resources guaranteed. That will be the test of whether these changes matter. The noble Baroness indicated the different sorts of patient involvement that are necessary. It is now down to the Minister to tell us how he will deliver in practice, rather than in fine words, the changes that he is proposing.
Baroness Wheeler
I am pleased to speak in support of the Government’s Amendments 56, 97 and 98, which take an important step along the route of making the Bill more explicit on the duties of the NHS Commissioning Board and clinical commissioning groups to promote patient involvement in decisions about an individual’s care and treatment. We particularly welcome the requirement for the board to publish guidance for CCGs on the patient involvement duty. We argued strongly for this in Committee. It will go some way to ensuring that CCGs are clear about what is required of them to meet the duty of involvement of each patient. We know that the evidence shows that many commissioners are currently unaware of the increasing evidence that involving individual patients in their care and treatment is proven to be more clinically effective, provides better patient experience and makes better use of healthcare resources. The guidance will enable strong signals to draw commissioners’ attention to the proven interventions that they require from their providers.
CCGs will need considerable help and support to bring about the changes we need, so clear and explicit guidance to them will be crucial. For individuals, participation must mean involvement in care planning and support for patients who manage their conditions. Sharing in the choice of treatment involves major cultural changes in the behaviour, approaches and attitudes of key professionals from across the specialisms. As we have stressed before, this means changing the way that patients and clinicians, in particular, relate to each other, and changing the way that the NHS relates to patients in terms of, for example, information provision, the organisation of clinics and the style of consultation that professionals have with patients.
Amendment 142 underlines the importance of the provision of information to patients and is supported by us. It includes the participation of the patient in monitoring systems that measure the impact of service delivery or the range of services available, and this is welcome. My noble friend Lord Harris has commented on Amendments 49A and 94A, and I endorse those comments.
In Committee, noble Lords strongly supported the call from patient organisations and other key stakeholders for a definition of patient and public involvement to be included in the Bill. The guidance to CCGs will need to address this issue. I hope that the Minister will also ensure that it focuses on ways in which patients will be genuinely engaged during the development of the commissioning plans rather than just consulted on plans after they have been drawn up. Guidance will help patients, carers and their representatives make informed decisions. This group of amendments form the basis for moving forward. We look forward to the Government also looking favourably on the subsequent amendments, which would also provide real impetus to the patient involvement agenda that we need.
Health and Social Care Bill
Lord Harris of Haringey Excerpts(12 years, 3 months ago)
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Baroness Finlay of Llandaff
My Lords, the question asked by my noble friend Lady Masham illustrates why we need to have a chief environmental health officer for England, as well as having that input in Wales, because by and large elements in the wider environment are determinants of health and play a much greater role in that regard than we recognise. Indeed, if the Marmot review and its aspirations are to have any effect on the health of the nation, we need to address environmental health much more closely.
I declare an interest in the specific areas of carbon monoxide poisoning and the problems contributing to that arising from the environment in which people live, and the link between the roads infrastructure and its air pollution and asthma and the underdevelopment of the lungs of children who live near major road junctions. The interplay between health and the environment in which people live is crucial. Health services on their own will not achieve improvements in health, particularly those outlined in the Marmot review. I hope that the Government will not tell us that the amendment is unnecessary, despite the initial typographical error in the reference to an “Evironmental Health Officer” rather than an environmental health officer. I fear that we will hear that the amendment is deemed to be unnecessary and that the relevant advice can be sought elsewhere. However, there is good evidence from other places that strong leadership from somebody who has a particular role in an area can bring about change and build the bridges to which I referred in the previous group of amendments.
Lord Harris of Haringey
I support the amendment. The significance of the chief environmental health officer’s role would stem from his or her being the national head of the profession. The enormous amount of work that local chief environmental health officers do will be familiar to anyone who has been involved in local government. Their work stretches from food standards in local restaurants right through to housing conditions, as the noble Baroness, Lady Finlay, said. It is important that there is a clear mechanism by which the issues that are being highlighted and the points that need to be followed through by government action are fed up to the national level of government. If the Government resist this amendment, I would be interested to hear precisely what mechanisms they see as being available to local environmental health officers and local health and well-being boards to pass through the sorts of issues that can be tackled only at national level.
Baroness Northover
My Lords, we discussed environmental health in Committee. It is clearly an important area that indeed interlinks with public health, but I hope to reassure noble Lords that we are taking action in this area through non-legislative means. The noble Baroness, Lady Finlay, is absolutely right to say that a narrow definition of public health is inadequate and it seems to me that this is the strength of moving the responsibility for public health to local government.
We need to emphasise the interlinkages in this area and I refer again to the public health outcomes framework. I am looking here at the domain “Improving wider determinants of health”, which includes indicators such as,
“Children in poverty … Pupil absence … First-time entrants to the youth justice system … Killed or seriously injured casualties on England’s road … Domestic abuse … Violent crime … Reoffending … Statutory homelessness … Fuel poverty”,
and many others. The point is that there are wide determinants of public health and it is necessary to link all these areas under the leadership of a director of public health who is drawing them together, rather than identifying an area as being the only one that links in. Directors of public health will need to link up with many other areas, nationally and locally, if that much wider definition of public health is to be accepted and become reality.
It is imperative that we continue to work with all our partners to achieve our ambitions for better public health, better care and better value for all. The Chartered Institute of Environmental Health indeed does an excellent job in presenting the issues nationally and liaising with central government. The environment within which people live, work and play, the housing they live in, the green spaces around them and their opportunities for work and leisure are all crucial to their health and well-being. For example, poor air quality is a significant public health issue and the current burden of particulate air pollution in the UK is estimated, on 2008 figures, to be equivalent to nearly 29,000 deaths at typical ages and an associated loss of 340,000 life-years in the population.
There is no doubt about the significance of that, but I should like to put it in the wider context of all the other areas with which the new director of public health will link up. Every day of the year, local councils have direct contact with many of their residents, and a fully integrated public health function in local government at strategic and delivery levels offers extremely important opportunities to make every contact count for health and well-being. I mentioned the public health outcomes framework and the way that it broadly defines things. It includes four indicators of direct relevance to environmental health professionals, and noble Lords have picked up on a number of those.
At a national level, the Chief Medical Officer will have a central role in providing impartial and objective advice on public health to the Secretary of State and the Government as a whole. We are clear that this role includes advising on environmental health issues. The Chief Medical Officer will, in turn, continue to be able to seek advice on environmental health and other issues whenever necessary, just as she can now. A public health advisory forum will support the Chief Medical Officer in this role. This will bring together expert professionals and leading partners to assist the Chief Medical Officer in providing quality advice and challenge on public health policy and implementation, including areas such as the public health outcomes framework.
The amendment also calls on the Secretary of State to report annually to Parliament on the work of the chief environmental health officer. As discussed in Committee, we agree on the need for transparency and believe that the Secretary of State’s accountability for public health at national level is a major strength of the new system, which is why Clause 52 requires the Secretary of State to publish an annual report on the working of the comprehensive health service as a whole. That will include his and local authorities’ new public health functions.
I understand the arguments that noble Lords are making. We will come on later to issues relating to directors of public health and their leadership role. There clearly needs to be co-operation there, but across other areas too. Noble Lords who have worked in this area for some time have very effectively been arguing the case for this wider definition of public health and what affects it. In the light of that and the reassurances that I have given, I hope that the noble Lord will be willing to withdraw the amendment.
Lord Harris of Haringey
Before the noble Baroness sits down, will she clarify whether she sees the chief public health officer as being essentially the head of profession for environmental health officers around the country?
Baroness Northover
This being Report, and as I am not sure that that was a brief question for elucidation—
Lord Harris of Haringey
It was exactly that. I asked specifically for an answer to the question I put earlier. That is entirely consistent with Standing Orders at Report.
Baroness Northover
Okay. I think the noble Lord has a fairly good idea of what the structure looks like. Therefore, you do not muddle it up with a multitude of different people with different responsibilities at the same level. I think that he can therefore see clearly the answer to his question. Meanwhile—one I prepared earlier—I will also write to the noble Lord in case that is not quite right.
Health and Social Care Bill
Lord Harris of Haringey Excerpts(12 years, 3 months ago)
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Baroness Masham of Ilton
My Lords, Amendment 17 would require the Secretary of State to introduce a statutory duty of candour for all registered healthcare providers, so that they are open with patients when things go wrong and cause harm, by amending the Care Quality Commission’s registration regulations. The amendment has been changed significantly in the light of the previous amendment, which was debated in Committee with the same aims, as a result of the helpful comments made by Members of your Lordships’ House and the noble Earl, Lord Howe. I hope it deals adequately with the concerns raised, as it draws on the existing wording and definitions used in the CQC regulations. This should be the case for most of the issues.
However, I know that, unless things have changed since we exchanged letters, the views of the noble Earl, Lord Howe, and the Government will be different. They will argue that their proposed contractual duty is an adequate or even better way of achieving the same thing. They will argue that the CQC could not cope with regulating such a duty in its regulations. I wish to summarise briefly why they are wrong on both these counts.
In Committee and since, the noble Earl, Lord Howe, brought to our attention the consultation on the proposed contractual duty of candour, which has recently closed. It is very regrettable that the consultation stated at the outset:
“This consultation does not re-open debate about the most appropriate mechanism for requiring openness and the decision to impose a contractual requirement is set”.
The least one might have expected is for it to invite the views of patients, the public, health professionals and other stakeholders before setting the decision in stone. Had this happened, the Department of Health would, I am sure, have heard even more resoundingly that the statutory duty is favoured over the contractual one. None the less, it is clear from the responses that I have seen from leading patient organisations and other knowledgeable people in the field that the department’s proposals are unlikely to enjoy public confidence.
Many Peers will have seen the letter in Tuesday’s Daily Telegraph, which was signed by 10 prominent patient and health organisations in support of this amendment. They include Action against Medical Accidents, National Voices, the Patients Association, the Health Foundation, the National Association of LINks Members, Patients First, the Neurological Alliance, Rethink Mental Illness, Asthma UK and the Stroke Association. May I remind the House that just last year the Health Select Committee in another place also recommended that a duty of candour be included in the CQC’s registration requirements? Also, in his closing submission to the Mid-Staffordshire public inquiry, which found gross examples of what happens when cover-ups are allowed, counsel for the inquiry raised doubts about the adequacy of the proposed non-statutory contractual duty of candour. The inquiry may well have something to say about the merits of a statutory duty. I hope that in his response the Minister will at least indicate whether he can promise that the Government will consider their current refusal to listen to alternative views and what the inquiry has to say and hold a new consultation including the option of a statutory duty.
As your Lordships should be aware by now, the contractual duty will not apply to GPs and others in primary care but just to NHS hospitals. Since the debate in Committee, it has been brought to my attention that the contractual duty proposal has another fatal flaw—it would apply only to those incidents which have already been reported to the CQC through the national reporting and learning system. It would therefore be next to useless in preventing cover-ups and, as the NHS Confederation has said in its response to the consultation, might actually discourage reporting these incidents in the first place.
I am sure that the noble Earl, Lord Howe, has had time to consider responses to the consultation. He will also have seen extreme disquiet from GPs and others who will be on clinical commissioning groups, who are being asked to take on the wholly unexpected role of a national regulator with regard to a duty of candour. They will have quite enough on their hands to cope with without taking on this additional role. Frankly, it is hard to see how they could possibly do it justice.
The argument that the CQC could not cope with regulating the duty of candour proposed for its essential standards of quality and safety is simply not credible. It is clear from the letter the noble Earl sent me that either there has been a fundamental misunderstanding of what is actually proposed by the amendment, or the CQC is playing games, or both. The amendment would mean that organisations would have to demonstrate that they take all reasonable steps to ensure openness with patients. This is the same formulation of words used for the regulation covering the obtaining of consent. It does not mean that the CQC would have to monitor each individual communication of incidents any more than it monitors individual incidents of consent being obtained. It would, however, be able to check that organisations have the appropriate policies and procedures in place and train and support staff in being open. It would be able to take action on suggestions that an organisation was not promoting and supporting openness when things go wrong. The CQC already has in its regulations a requirement for organisations anonymously to report incidents that have caused serious harm through the national reporting and learning system, but no requirement to be open with patients. This is a truly shocking anomaly which would remain in place under the current proposals. How can it possibly be right that the CQC can use enforcement powers as regards an organisation which is not reporting incidents through the official system but cannot take action against an organisation which it knows may be covering up these incidents from patients and their families?
We should just look at the “Panorama” programme that exposed terrible bullying and cruelty to patients at Winterbourne View. We must do better. While the ability of the CQC to use its enforcement powers when there is no compliance is an important safeguard, we should not lose sight of the fact that it is the very inclusion of an issue in the essential standards of quality and safety that makes up the CQC registration requirements. That sends such a powerful message and supports cultural change.
I do not think for one moment that creating the regulation that I am seeking will, on its own, change culture and behaviour overnight. However, just as with the other essential standards, the fact that openness with patients would be enshrined in the standards and given the priority it deserves would underpin and promote a culture change in the right direction. Not to do so sends the message that being open with patients is not really important at all.
I believe we are all in agreement that being open with patients is the right thing to do, and something serious needs to be done to make this a genuine requirement. In effect, the question is whether or not being open should be an essential standard of quality and safety, along with the other essential standards that make up the CQC’s regulations. The Minister pointed out to me that if they were minded to do so, the Government could introduce the statutory duty that I am seeking through secondary legislation, without the need for the amendment. If the noble Earl is able to give the House an assurance today that this is what the Government undertake to do, I would be happy to withdraw the amendment. I beg to move.
Lord Harris of Haringey
My Lords, my name is down in support of the amendment. I want to make it clear at the outset that it is substantially different from the amendment put forward in Committee and has taken on board a lot of comments and points made during the helpful debate at that time.
As far as I am concerned, the origins of this go back to my meeting 18 years ago with William Powell about the death of his son, Robbie, when I was director of the Association of Community Health Councils. Mr Powell was concerned about the failure of the system to give him and his family answers as to why his son had died. Mr Powell is still campaigning for a change in law to place a requirement for some sort of duty of candour. Interestingly, that case eventually reached the European Court of Human Rights in May 2002. In its judgment, the court made it clear that at present there is,
“no duty to give the parents of a child who died as a result of their negligence a truthful account of the circumstances of the death, nor even to refrain from deliberately falsifying records”.
Most of your Lordships would find that a pretty shocking and appalling statement in this day and age, but that is where we are as far as the law is concerned and it remains a continuing consideration.
In September, as chair of the Independent Advisory Panel on Deaths in Custody, I had a listening day with a group of families whose relatives had died while detained under the Mental Health Act. Those families reported a lack of information from NHS trusts. One family reported that they,
“were unaware of any investigation, everything was released in drips”.
Another family claimed:
“They didn’t disclose anything, it was a battle to the end”.
Another said that
“the shutters came down as soon as I started asking questions”.
One parent explained that it was like being,
“in a void whilst waiting”.
These are parents or families of people who have died while in mental health care.
Even more alarming for families was the misinformation frequently provided to them. They thought that there had been a whole series of flaws in the way that the cases of the deaths of their loved ones were investigated. One said:
“The first time I had opportunity to speak to anybody was the consultant. Nobody told me about the investigation. I told the consultant that I wanted a meeting with nurses and see what happened … Consultant and matron came for the meeting with no pen and paper. I was the only one taking notes. After that the matron told me that she would try to get answers for me. I asked how she would remember 20 questions which I asked as she was not taking notes. It took three years for them to give this evidence”.
The problem is that most families feel that the investigations are not independent, and many of them feel that they are presented with lies. The problem is that the existing system does not work. It is not adequate as it presently stands.
The amendment has been significantly changed. It now relates explicitly to organisations rather than individual practitioners. The background is that there is currently no statutory requirement for organisations that provide NHS services to tell a patient, carer, or representative when something has gone wrong during their care and treatment that causes harm. The issue is left to guidance and a non-binding requirement in the NHS Constitution to have regard to the principle of openness. This has allowed cases to occur where NHS organisations have withheld such information from patients, delayed its release or, worse still, actively covered it up.
I understand that the Government have agreed that a duty of candour is required, but their preferred route is a contractual duty built into the standard contracts between commissioners and some providers of NHS services. Patient organisations and others do not believe that that is sufficient. It would not include all NHS providers—for example, GPs, dentists, pharmacists, and so on do not have such contracts—and it would not create access to the sanctions which the Care Quality Commission has at its disposal. Under the Government's proposal, as the noble Baroness, Lady Masham, said, the duty would apply only to incidents which are already being reported through official systems, so it would be useless in preventing cover-ups.
The amendment would require the Secretary of State to create a statutory, enforceable duty of candour by amending the registration regulations of the CQC. All healthcare providers would then have to comply with them to be registered. Of the issues raised in Committee, the most important, raised by several noble Lords, including the noble Lord, Lord Winston, who I do not think is in his place at the moment, and the noble Lord, Lord Walton, was that that might overlap or conflict with the clinicians’ professional duties and the existing arrangements under the General Medical Council and other codes of conduct organised by regulatory bodies. The proposal in the amendment is for a statutory duty of candour placed on organisations, not on individual health professionals. It therefore complements, rather than duplicates or confuses, the duties in health professionals' codes of conduct.
Indeed, Harry Cayton, the chief executive of the Council for Health Regulatory Excellence, has said:
“We support the introduction of a duty of candour in the CQC’s registration requirements, which would mean that the ethical responsibility of health professionals would be shared by organisations delivering healthcare services”.
Frankly, at the moment, doctors and nurses can be put in an impossible position where they would want to honour their ethical and professional obligations but are told by managers and lawyers within the organisation for which they work not to be fully open with patients. That would put them in the position of a whistleblower. This duty would remove that conflict for those individual professionals.
Of course, the amendment is not designed to get in the way of culture change. Several noble Lords said that we want culture change. No one disagrees. The point is that this will support the process of culture change. There is no argument for not setting out in regulations what is by any reasonable assessment as important and essential a standard of quality and safety as the others already set out in CQC regulations.
Lord Walton of Detchant
In relation to candour, the noble Lord may know that the General Medical Council published guidance just two weeks ago making it incumbent on doctors not to sign a contract or agreement that prevents them giving information which might be detrimental to the organisation that employs them. In other words, gagging orders are no longer accepted by the GMC as being part of a contract into which doctors can enter.
Lord Harris of Haringey
I am grateful to the noble Lord, Lord Walton, for that. It is an extremely important step forward and it recognises that there is an existing problem that requires the GMC to take that stance. I think that there is a distinction between gagging clauses and the sort of persuasion and pressure that may be applied to clinicians behind the scenes under such circumstances. This amendment focuses on the organisation’s responsibility and on how the managers and lawyers within an organisation should meet those obligations of candour.
I know that there has been some concern—I think that the Minister has expressed it at various points—about whether the CQC would be able to cope with regulating this duty of candour. It is worth making it clear that there is no question of asking the CQC routinely to monitor every incident with patients; it is simply about the expectation that it will be there as the backstop.
There is already a duty in the CQC’s statutory registration regulations to report to the CQC incidents that cause harm, but it is a duty which requires the organisation to report the incident to the CQC and not to the patient. It is rather anomalous that there is an obligation requiring an organisation to report something to the CQC but not to the patient at the same time. Quite clearly the CQC should have this information and be able to respond to and deal with it.
The point is that the CQC has always said that it could regulate this requirement if the Department of Health so wished. I think that there has been some recent correspondence with the Department of Health which has recognised that the CQC is currently under considerable resource constraints. However, I have seen copies of e-mails released under the Freedom of Information Act—
Baroness Wall of New Barnet
I thank the noble Lord for giving way for the second time. I certainly support the amendment but I worry about the examples that he has used. The cases that he has put forward and the experience of the patients and families concerned are horrendous and outrageous, but what I found troubling and certainly did not recognise at all was when he went on to say that the coercion, rather than gagging, that might take place inside, for instance, a provider trust such as my own—Barnet and Chase Farm—would discourage people from being anything but frank. I have now been the chair of Barnet and Chase Farm for five years. The chair is at the end of the process and during the process has the opportunity to talk to people. I hope that my trust is not unique but in five years I have never known that kind of culture at Barnet and Chase Farm. The noble Lord is looking askance but I ask him to trust me. From my experience—and I hope that it is not a lone experience—I can assure him that that culture does not exist inside my trust; nor, I am sure, does it exist in others. In fact, the opportunity to come clean is used by my trust in the whole way in which patients are dealt with and, indeed, when patients tragically die. If what the noble Lord is saying does happen, then the amendment is absolutely crucial. However, I do not recognise it.
Lord Harris of Haringey
I am grateful to my noble friend for that intervention. She has highlighted the fact that there are different practices around the NHS. Quite a number of trusts take a very positive approach, as she has described, whereby the natural assumption is that you are open because that is what the Department of Health would expect. However, the number of instances where that is not always the case and not always the culture that is adopted, is striking. That was, for example, reflected in the group of families that I met whose family member had died while being detained under the Mental Health Act; it was reflected in the case of Robbie Powell; and it was reflected in a large number of the other cases that the patient organisations which the noble Baroness, Lady Masham, listed, have come across.
So there are two cultures within the NHS and we need to ensure that the culture within the NHS is the best. That is why a statutory duty of candour would support the process, rather than hinder it. It would not cut across the position of the individual professions—indeed it would support it—and, as the noble Lord, Lord Walton, has highlighted, there has been much recognition by the General Medical Council that this is an issue—
Baroness Whitaker
I apologise for interrupting my noble friend. Perhaps I might add something to the other side of the balance. I am aware of two very recent cases—one of a death and one of a hospital-acquired infection—where information was covered up. It is not simply the case that there is a uniform culture of candour.
Lord Harris of Haringey
I am grateful to my noble friend for that reinforcement. I regret that, within some NHS trusts and some provider organisations, there is not the same approach. There is a concern that it is better to keep a patient, or the family of a patient, in ignorance and hope that the whole matter goes away. The purpose of the amendment is not to penalise the individual clinician—we all recognise that accidents happen—but to foster the culture of openness that the department wants to see; it wants to ensure that that duty is reflected, not only as far as the individual professionals are concerned, but also as far as the organisations are concerned. Otherwise, too often the lawyers and managers will say, “In the interests of the trust, let us try to keep this quiet”. I am glad to hear that it does not happen in every instance, as I am sure it does not, but the purpose of the amendment is to provide a statutory framework that will make it quite clear to all those who might otherwise be tempted to cover up these incidents that they must say, “This is important and we have to be open”.
Baroness Tyler of Enfield
My Lords, I have a few remarks to make in support of the amendment, to which my name is attached. I shall be as brief as possible, because much of what I wanted to say has already been said. I pay tribute to the noble Baroness, Lady Masham, for arguing so eloquently for a statutorily enforceable duty of candour.
Having listened to the debate, I remain of the view that a provision in the Bill requiring provider contracts to include a duty of candour clause would be the best way forward and would send the clearest possible signal to the whole healthcare system about the need for openness. We have already heard that, as presently constructed, not all parts of the healthcare system would be covered by the contractual route. It would certainly send a much stronger message than merely relying on the contractual route. I do not see the two being mutually exclusive nor do I think that the principle of contractual freedom would be compromised by having a statutory duty of this sort. I believe that the duty of candour issue is of a different order from much of what else will appear in provisions in provider contracts. I also believe that it resonates very well with the public and would make a reality of what I think should be the most important underlying philosophy of the Bill, putting the patient first and the whole “No decision about me, without me” mantra.
Many noble Lords on these Benches feel very strongly on this issue. The key principle at stake is the right of patients, their families and their carers to know what has gone wrong with their care and treatment when, unfortunately, mistakes, including negligence, have been made. The statutory route would help to ensure consistency. We have already heard an interesting debate about the current lack of consistency. I very much agree with the noble Lord, Lord Harris, about the extent to which it would help to change the culture under which, currently, we know cover-ups have occurred, and make them much less likely to happen in the future. I recognise that a statutory duty alone will not achieve this; it will be a necessary but not a sufficient condition. The culture change that we have heard about will need role models among both clinicians and managers walking the walk, as well as training and support for staff, so that mistakes are acknowledged and, critically, lessons are learnt from the mistakes.
Lord Harris of Haringey
My Lords, is not the point that the contractual obligation that the Government are proposing would in effect be triggered only by the reporting of an incident to the CQC? Is it not also the case that the contractual obligation that the Government are talking about would not apply to primary care?
Earl Howe
I will move on to primary care in a moment, but I do not agree with the noble Lord at all on his first point. What we see happening from a contractual requirement is a process of culture change taking the form of conversations between management and clinicians about the fact that this was something that the organisation had to focus on. I do not agree that it will arise simply by reason of reported incidents.
As I said, any disagreement that I have with the noble Baroness is not out of any difference of intent; it is because of a difference of opinion about what we feel would work. Her amendment would require the Secretary of State to act with a view to securing that any CQC-registered organisation providing healthcare was required—we should perhaps log that word—to take all reasonable steps to ensure that a patient or their relatives were informed of a serious patient safety incident.
The key points here are around a requirement in relation to CQC-regulated healthcare. Any requirement must come with enforcement, otherwise it is not a requirement. The amendment as drafted would extend to providers of purely private healthcare—that is, non-NHS-funded healthcare—which suggests that any requirement would have to be enforced by the CQC. I and my officials have spoken at length with CQC colleagues regarding this. In response, the CQC has clearly stated that it would not be able to routinely monitor and enforce such a duty. This is not due to attaching less importance to this issue than to the others areas that they regulate. It is the very nature of openness that when errors occur, it is not easy to detect routinely where a lack of openness has occurred. When a patient or their relatives are not told of an error and the incident is not reported, it is often very difficult to discover that there has been a failure by an organisation to be open. The only way to fulfil this requirement would be to verify that openness was happening and, given the very nature of the issue, that would not be possible for a national regulator. It would require it to prove a negative—in this case, that people were not told about something going wrong with their healthcare.
Lord Harris of Haringey
I am grateful to the Minister for giving way again, but I am now genuinely confused about why this is different. His argument seems to be that a contractual arrangement—we will come back in a moment to the question of who that will cover and whether it will cover primary care—would magically produce a change in culture but that a statutory obligation, applying to all providers registered with the CQC, somehow would not. This is not about requiring the CQC to monitor every interaction with a patient; it is about creating that culture change and a clear sense of obligation—you cannot be registered as a provider with the CQC unless you are committed to doing this.
Earl Howe
My Lords, I hope that the noble Lord will allow me to remind him very respectfully that we are on Report and not in Committee. I am trying to work through my arguments, which I hoped would have a flow to them, but my flow has been interrupted. I am getting to what I hope he wants me to get to.
I was saying that the amendment would effectively require you to prove a negative—in this case, that people were not told about something going wrong with their healthcare. If they were not aware of the error, they would not be aware that they had not been told about it, and the volume of incidents is such that a single national body could not possibly verify compliance with that requirement.
I know that the noble Baroness advocates that the CQC should not routinely monitor this duty and instead should require organisations only to provide evidence that they encourage openness through having appropriate procedures and policies in place. Unfortunately, what that creates—this point was made by my noble friend Lord Ribeiro—is a tick-box exercise. Organisations can provide all the assurances in the world that processes are in place and therefore they are considered to be compliant, when in actual fact it could be that patients were still not being told about errors in their care. That is not acceptable and would not deliver the culture change that we need. We must have a requirement that ensures that patients are told of errors, not one that pays lip service to this and allows organisations—
Lord Fowler
My Lords, when the noble Lord said that the amendment was not exactly the perfect solution, that was a brilliant understatement of the position, as I think almost everyone would agree. My concern about the amendment is that it is a prime example of declaratory law. Almost no one would disagree with the aim of reducing bureaucracy. I suspect that almost every Government since 1946 have said that that has been their aim, although I am not sure that it takes the argument very much further. I am delighted that the noble Lord, Lord Hunt, is proposing this. He was a former director of the National Association of Health Authorities and Trusts, which I never felt was in the foreground of reducing bureaucracy in the health service, but that is doubtless a very unworthy allegation to make against him. However, going purely on the basis of the wording of the amendment, I think that it is simply impractical to have a,
“minimum level of management tiers” .
What does “minimum” mean? It is a wonderfully generalised statement.
The noble Lord, Lord Hunt, touched on the fact that there is a slight implication—I know that he distanced himself from it—of there being opposition to management inside the health service. Of course I agree with the noble Lord, Lord Warner, that management is absolutely of the essence, and I am delighted to have received praise from him. When I introduced general managers into the National Health Service following the report of the late Roy Griffiths, who, people may remember, did so much and produced a wonderful and exemplary report, it was in the face of opposition from virtually all the health service unions, including, needless to say, the British Medical Association, and most of the people who have been opposing the current Bill. It was also in the face of fierce opposition from the Labour Party—in the Commons at any rate; perhaps it was different in this House. Therefore, if I can make an entirely partisan point, I am delighted that we all agree on this serious point. More than 1 million people are employed in the NHS and there is a vast budget. To believe that you can get through the reorganisation without skilful and good management is completely ridiculous and we need to underline that. We are not talking about administrators—a phrase that is still used far too often. We are talking about managers, and what the health service needs is good managers.
I hope that the noble Lord, Lord Hunt, regards this as simply a good amendment for debate and that he will withdraw it because of its manifest defects. However, he rather criticised the new organisation going down to the local level regarding health promotion. Obviously, if you go down to the local level, you are going to have a number of local authorities. However, I should have thought that one thing on which both sides of the House would agree is that health promotion should be carried out with a ring-fenced budget and with local delivery. I should have thought that most people would want to see that. It contrasts with what the previous Government did and doubtless with what happened before that. Money which went to health promotion—I remember this happening with HIV/AIDS—simply was not used for that purpose; it was used for something else inside the health authority. I think that we are taking a giant step forward with health promotion and I am passionately in favour of that.
The amendment of the noble Lord, Lord Hunt, is interesting. I obviously agree with all the sentiments behind it, as I think most people do. However, as a piece of law, it is, frankly, defective.
Lord Harris of Haringey
My Lords, it is an enormous pleasure to follow the noble Lord, Lord Fowler. I was particularly taken with his support for the principle of ring-fenced funding, which I trust the Minister will take into account when, a little later, we come to consider local healthwatch organisations.
Earlier today, we had a Question on the initiatives that had been taken in London on stroke care. I did not get an opportunity to pose this question but I was interested in who, in the absence of NHS London driving the process, would have taken the quite difficult decision to reorganise stroke care in London, given that it was opposed by a lot of the local providers and local organisations. This question also came up during the first day on Report when we looked at who would make decisions on reconfiguring services and who would make decisions when services were not adequate or when there were issues of equality of healthcare to be addressed. At one point, the Minister said:
“The CCGs will be supported in their efforts to improve quality by the NHS Commissioning Board”.—[Official Report, 8/2/12; col. 314.]
Later on, when I probed him on this, he said that “the board”—that is, the NHS Commissioning Board—“will be represented sectorally”. I was not quite sure what he meant, but it being Report stage I could not challenge him. He said:
“There will be field forces in all parts of the country … The majority of its staff will be a field force”.—[Official Report, 8/2/12; col. 316.]
I do not know how a majority can be a field force, but there we are. Later on, he said:
“However, of course, the board will be represented at a local level rather than only centrally, and we expect that the board will be represented in health and well-being boards and in the discussions that take place there”.
When I questioned whether that meant that they would be members, he said:
“It is entirely open to a health and well-being board to invite a member of the Commissioning Board to be a permanent member, but I am not saying that we are prescribing that”.—[Official Report, 8/2/12; col. 340.]
I took that to mean that the NHS Commissioning Board will be sitting at the centre of the National Health Service with its tentacles going out to all parts of the health service. The Minister did not really like that. He said:
“The role of the board is to support local commissioners; it is to be there as a resource to promote guidance, supported by the quality standards that we were debating earlier”.—[Official Report, 8/2/12; col. 352.]
Lord Hunt of Kings Heath
I must say that I am really rather disappointed by the noble Earl’s response to my constructive amendment. He does not seem to have answered the charge that is being made. First, I think we are all agreed that when we talk about bureaucracy we are not talking about the fine managers that the NHS has to whom we owe so much. This is an argument about the structure, the layers and the cost of a market that the Government wish to bring in to the health service. It is not about managers in the health service.
The fact is that the Secretary of State and his colleagues, including the noble Earl, have continued to intervene in the health service on a daily basis. They have yet to explain how, if this Bill eventually receives Royal Assent, at that point, magically, Ministers are going to step back and simply let this new system continue. I do not believe a word of it. What I believe will happen is that on the one hand you will have this complex structure where the mantra is that it is all arm’s length, it is all down to the clinical commissioning groups, the market and the gentle guidance of Sir David Nicholson and his colleagues at the national Commissioning Board, and Ministers can simply step back. It will not happen. What we will have is the system that the Bill enacts, if it is enacted, and Ministers continuing to micromanage. It is inevitable that Secretaries of State are accountable to Parliament, and they will be required by the very process of parliamentary democracy to continue to intervene and to take a close interest in what is happening. That is the charge I put to the Government as to why I believe that this is going to be a very complex situation indeed.
It is always good to debate with the noble Lord, Lord Fowler. Twenty years ago, I enjoyed debating with him issues mainly to do with the funding of the National Health Service. I think the National Association of Health Authorities and Trusts was a very modest organisation. It was very lean and certainly not subject to the strictures of the noble Lord who suggested that it was part of the bloated bureaucracy that I think he was implicating me in. He does not like the idea of declaratory law. That is all very well, but what is Clause 4 but a declaratory statement: “The Secretary of State’s duty as to promoting autonomy”? Indeed, the noble Earl, Lord Howe, referred to it in his winding-up speech. I have to say to him that if the duty of autonomy were currently on the statute book, I do not think that he could have brought this legislation in under it because it states that,
“unnecessary burdens are not imposed on any such person”.
This whole edifice is going to impose enormous burdens on many such people within the National Health Service.
The noble Lord, Lord Fowler, referred to the Griffiths report—at 24 pages, it was a remarkable letter which had a long-term impact on the health service. He will recall that we were very strong supporters of the introduction of general management. I am very concerned about the structures that are now being brought in because they may well inhibit the kind of leadership and clinical engagement that we saw as a result of the Roy Griffiths management inquiry.
I have to say to my noble friend Lord Harris that the description of Sir David Nicholson as the chief inquisitor was a little unfair.
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Baroness Tyler of Enfield
My Lords, I also support the amendment on prostate cancer, which is a very important area. However, I wish to support the government amendments in this group—Amendments 68, 112 and 144, to which my name is also attached. These amendments all relate to reducing health inequalities and, in a nutshell, create a new duty on the Secretary of State, the NHS Commissioning Board and the clinical commissioning groups to report annually on their progress in tackling health inequalities.
As this is Report stage I will not rehearse the stark statistics on life expectancy that we heard during earlier stages of the Bill. We also heard compelling accounts of what needs to happen to improve health outcomes for those particularly vulnerable and disadvantaged groups whose patterns of usage of the health service often take a different form from those of other sections of the population. These groups include the homeless, those with mental health problems and others whom we heard about earlier.
As I recognised in Committee, the explicit duties on health inequalities which the original version of the Bill placed for the first time on the Secretary of State, Commissioning Board and CCGs were landmark duties. They certainly represented a major shift from the current position. However, as a number of noble Lords, me included, argued in Committee, those duties did not go far enough, and we called for their strengthening, particularly so that CCGs and other parts of the structure would be required not simply to “have regard” to the need to reduce health inequalities but to act to secure real improvements in terms of access to health services as well as outcomes. It is also critical that those bodies should account publicly for their progress in so doing.
I thank very much my noble friend the Minister for listening and acting. The nub of these amendments is that they shine a clear spotlight on health inequalities by introducing real transparency and accountability at national and local levels. I very much hope that the amendments will be instrumental in changing the culture so that things such as sharing good practice in tackling health inequalities become a key part of workforce training and very much part of the currency of everyday language in the NHS.
These amendments have the potential to make a reality of the words in the public health White Paper that spoke of,
“improving the health of the poorest, fastest”.
It is for those reasons that I support these amendments, and I thank the Minister for tabling them.
Lord Harris of Haringey
My Lords, I support the amendments in this group because I believe that it is important that we look at the mechanisms that will be embedded in the Bill, assuming that it eventually receives Royal Assent in some form, and that will in practice drive change in the direction that we all want. That includes improving the quality of the care offered, and it means addressing the issues of health inequality to which the noble Baroness, Lady Tyler, referred.
One of the omissions from the Bill is that, apart from placing some general duties on the various bits of the NHS, there is very little about demonstrating how those duties will then be exercised or creating a mechanism for assessing that. The amendment, which talks about reporting annually to Parliament on the progress made, seems an essential first step in making sure that that happens.
The reports on inequalities will be increasingly important in this area. However, Amendment 112, dealing with CCGs’ annual reports on how they have discharged their duty to reduce inequalities, raises another question, and this comes back to the issue of what will be the catchment areas of individual CCGs. Unless there is far more central direction than I have understood—and perhaps the Minister can reassure us on that—it seems likely that there will be, to use an unpleasant term, ghettoisation in some CCGs.
Lord Harris of Haringey
I just want to make sure that I understand the point that the Minister is making. Let us compare two localities in London. I mentioned Tottenham, so compare that with, say, the residents of Totteridge. They are very different socioeconomic groupings with very different health outcomes. What is the mechanism for addressing health inequalities between Tottenham and Totteridge? Who will be responsible for addressing inequalities between areas that are just a few miles apart but which have very different characteristics and very different social outcomes? The health and well-being boards are borough-based. Tottenham is in the London Borough of Haringey and Totteridge is in the London Borough of Barnet—neighbouring boroughs that are very different in composition. What will be the overarching structure that addresses those inequalities?
Earl Howe
Localism lies at the heart of our approach to these issues. Although I have no doubt that conversations and comparative analyses will take place between different health and well-being boards and different local authorities, in the end it is the responsibility of health and well-being boards to look to their catchments. As I said, the outcomes that are published, both in terms of the NHS performance and public health and social care, will in themselves incentivise improvement, if the local authority and the health and well-being board work together as they should. This is a joint enterprise between public health, social care and the NHS.
We shall no doubt experience the effect of comparative work between local authorities once the early implementer groups have bedded down and begun their work. Both the board, however, and the Secretary of State will have duties in relation to inequalities. They overarch everything that happens and I suggest that that will ensure that a system-wide and strategic approach is taken, for example, through setting objectives in the board’s mandate in relation to inequalities. These could feed down very easily to CCGs through commissioning guidance issued by the board. I hope that that gives the noble Lord a summary, or at least a flavour, of how we envisage this working.
Lord Harris of Haringey
May I just clarify? Will there be nothing between the board at national level? Will it look right across the country and say, “We will address these inequalities”? Will there be nothing, for example, at the London level, to address inequalities between different parts of London or will it simply be driven nationally? That is a recipe for not necessarily making the best decisions in particular areas.
Earl Howe
The noble Lord will know, because the NHS Commissioning Board authority has published its proposals, that the board will be represented sectorally. There will be field forces in all parts of the country. My vision of this, and that of Sir David Nicholson is that in the areas in which the board operates it will take a view across a region and look at how outcomes vary between local authority areas. The board will be very powerfully placed to influence the kinds of inequalities that the noble Lord has spoken of. It is important for noble Lords to understand that the board will not be a collection of people sitting in Leeds. The majority of its staff will be a field force. I hope that that is helpful.
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Earl Howe
My Lords, where a service is commissioned by the NHS Commissioning Board—and let us imagine that it is a specialised service—the patient’s recourse should be to the board. However, of course, the board will be represented at a local level rather than only centrally, and we expect that the board will be represented in health and well-being boards and in the discussions that take place there. It would therefore be possible for a patient to address their concerns, in the first instance, to the health and well-being board, which would have the ability and power to communicate directly with the NHS Commissioning Board, if that was felt to be appropriate. However, as I said, the patient would be able to go straight to the board in those circumstances.
Lord Harris of Haringey
I appreciate that this is very bad manners, given that I missed most of the debate. The Minister has just said—although perhaps I misinterpreted him—that the NHS Commissioning Board will have a representative on every local health and well-being board. If so, how will those individuals be known or accountable? Is that not the most extraordinary bureaucracy? He seems to have made a most extraordinary statement.
Earl Howe
My Lords, we are at Report stage and I hope that the noble Lord will forgive me if I do not reply at length. The point I was seeking to make was not about representation on the board but involvement in the health and well-being board’s wider deliberations. It is entirely open to a health and well-being board to invite a member of the Commissioning Board to be a permanent member, but I am not saying that we are prescribing that.
Lord Warner
My Lords, I had not intended to intervene in this group of amendments, but I want to make a couple of points and leave a question with the Minister. I have always been in the camp that feels that Clause 4 was misguided and should be abandoned. I can see the case, which was put very well by the noble Lord, Lord Marks, for retaining Clause 4 with these more controlled features. Listening to this debate, I have a number of concerns.
There is genuine concern that there might be a really rogue clinical commissioning group, but listening to the noble Baroness, Lady Finlay, has revived my concern that somewhere along the line, if we are not very careful and are too controlling, we will stop the initiatives that we want from commissioners as the NHS faces considerable challenges. As the House knows, I do not have the same fear that other Members of your Lordships' House have about third-sector or independent-sector providers, so I would not want anything in the peace that we see breaking out here to inhibit creative clinical commissioning groups setting off on new paths for new types of services simply because major people in the NHS have not woken up to the need for significant change. I hope that the Minister can reassure me that, in accepting this more nuanced version of Clause 4 on autonomy, we are not really inhibiting the creativity of clinical commissioning groups to bring in new players, even if it may seem a rather radical idea when they start to do it.
Finally, as the Minister knows, I have a mild obsession with the whole issue of a pre-failure provision in this legislation, which we will come to later. One of my continuing concerns is that we do not want to end up with a situation where we are restricting the ability of the National Commissioning Board to begin to intervene—to tackle failure at the local level—simply because autonomy requires people to flounder along as long as they like on the grounds that it is all about localism. I hope the nuanced version of Clause 4 that we are getting is still accepted as something that would enable the National Commissioning Board to intervene when there was a total failure by providers and commissioners at the local level to tackle the problems of clinical and financial unsustainability.
Lord Harris of Haringey
My Lords, every time I look at Clause 4—[Laughter.] I cannot understand what my noble friends find so amusing, but every time I look at this particular clause—if that makes it easier for them—and particularly listening to the remarks of the noble Lord, Lord Marks of Henley-on-Thames, I have been confused as to what problem the Government think they are solving by the clauses on autonomy.
There is apparently a concern about micromanagement. There is a desire to have local innovation, flexibility and local responsiveness. What is it about the current arrangements in the NHS that necessarily prevents local innovation, flexibility and local responsiveness? Why are we having these discussions? If there is a concern from the Government that they are micromanaging, they have a solution—they stop micromanaging. Again, what are we trying to do here?
However, once you include,
“the desirability of securing, so far as consistent with the interests of the health service”—
or whatever form of words you choose to have—this principle of autonomy, you are setting up an automatic conflict. If the form of words that the Minister and the noble Lord, Lord Marks of Henley-on-Thames, have put their names to was in the Bill, does this mean that the Secretary of State will be intervening when there are clear cases of postcode lottery? That presumably is the implication. Or is the Secretary of State now going to say that in fact a postcode lottery is what this legislation is designed to create? We should be clear about what these clauses are trying to prevent. What is the problem that they are trying to solve?
The noble Lord, Lord Marks of Henley-on-Thames, was moving in his description of how the Secretary of State would weigh these difficult issues of the possible conflict between,
“the desirability of securing, so far as consistent with the interests of the health service”,
autonomy and the priorities of the fundamental role of the NHS. This is a balance that has to be weighed. He talked about this line of accountability that will exist between the NHS Commissioning Board and the CCGs—these tentacles that the NHS Commissioning Board will put throughout the NHS. They will be unaccountable and anonymous, and individuals will be operating at regional or at local level.
There will be an army of people operating as the tentacles of the NHS Commissioning Board. They will be informing the Secretary of State so that he can exercise his judgments about the balance between autonomy and meeting the principles of the NHS. I wonder whether the Secretary of State is creating the most extraordinary bureaucratic monster to solve a problem that could be easily solved simply by resisting his tendency to micromanage.
Earl Howe
My Lords, the noble Baroness, Lady Thornton, has spoken to Amendments 10 and 52, which, as she has said, would remove altogether the autonomy duties on the Secretary of State and the board. The noble Lord, Lord Harris, asked me what the problem is that the Bill is trying to solve in this regard. The duty is intended to promote a culture of fostering local autonomy rather than to outlaw specific practices; but without a focus on autonomy, it is possible that the mandate from the Secretary of State to the board or the framework document from the board to CCGs could impose disproportionately burdensome requirements on the system. The Government believe that local operational autonomy is essential to enable the health service to improve the outcomes of care for patients, provided that autonomy is within the framework of clear ministerial accountability.
The noble Baroness will be aware, because I have said it before, that we are aiming to free those closest to services to take decisions that are right for patients, free from central micromanagement by either the Department of Health or the NHS Commissioning Board. The amended duties, with the caveat that the interests of the health service take priority, achieve the right balance between autonomy and accountability. Without the clause, a future Secretary of State could choose to ignore one of the fundamental principles of the Bill, which is that those closest to patients are best placed to take clinical decisions. Without the clause, a future Secretary of State would be free to use his extensive powers to micromanage the NHS. The autonomy duty is a necessary part of the Bill, placing a duty on the Secretary of State to consider the expertise of those in the health service while recognising that there will be circumstances—
Lord Harris of Haringey
My Lords, the noble Earl seems to be saying that you cannot trust your own Secretary of State not to micromanage unless they are effectively forbidden from doing so. We have all talked of the Secretary of State’s accountability to Parliament. Surely the principle is that an accountable Secretary of State will be under enormous pressure from Parliament not to micromanage. If it is such a central issue of policy, Secretaries of State should simply be told not to do it, rather than requiring an Act of Parliament.
Earl Howe
I challenge the noble Lord to think of one Secretary of State, with the distinguished exception of my right honourable friend Mr Lansley, who has not succumbed to the temptation of micromanaging the NHS. No Secretary of State has been able to resist that temptation because, frankly, Parliament expects them to do it. That is what the system has expected of the Secretary of State. This is a burden on commissioners and clinicians, and, in the end, it does not well serve the interests of patients. It is all very well for the noble Lord to say, “Well, just stop”, but the system encourages it and the duties on the Secretary of State are there to encourage it.
Health and Social Care Bill
Lord Harris of Haringey Excerpts(12 years, 4 months ago)
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Earl Howe
I do think that the objections that the Royal College of Nursing has raised have very little to do with the Health and Social Care Bill. They are much more about what may or may not be happening in certain hospital trusts, which are matters that, in general, the Bill does not affect.
Health and Social Care Bill
Lord Harris of Haringey Excerpts(12 years, 5 months ago)
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Lord Harris of Haringey
My Lords, we have already debated to some extent the way in which HealthWatch England might operate. However, this group of amendments returns not just to that issue, but to a number of other important issues which go to the core of the extent to which HealthWatch England is genuinely going to be an effective organisation. I give Ministers and the Government the benefit of the doubt on this—that that is something that they want to see happen. Therefore, the way in which HealthWatch England is established, the way in which it functions and the powers that it has are going to be critical to whether or not this body will simply join the long list of organisations that have been set up over the years to represent patients’ interests and have then been dismembered after a short period, or in some cases a slightly longer period, because they are not seen to be effective. If the Government are genuine about putting patients at the heart of the new NHS, then they need to ensure that HealthWatch England and healthwatch organisations are effective.
My noble friend Lord Warner, slightly unusually, pulled his punches. He talked about it perhaps being a major mistake to host HealthWatch England within the CQC. I have to say there is a danger that this could be a disaster. It is a disaster because of the sustained attacks that the CQC is currently undergoing, which seem to emanate in some instances from Government and Ministers who clearly are not satisfied with the direction of travel. There are clearly concerns that this is an organisation which is being asked and expected to do far too much at the moment. To add this additional responsibility is not necessarily helpful.
I can understand that it is important that HealthWatch England relates effectively to the Care Quality Commission: that is one of the organisations it must relate closely to. But it must also relate closely to the NHS Commissioning Board. It must also relate properly, under certain circumstances, to Monitor. Simply saying that the relationship with the CQC is paramount does not necessarily make an enormous degree of sense.
My noble friend Lord Warner made a specific point. If the motivation for hosting HealthWatch England within some other national organisation is to save money—I understand that it may not be the prime motivation but it is a concern in all this—then there are plenty of other ways of achieving those savings in terms of back-office functions. Those functions can be provided by agency agreements; you can have organisations which are in the same building and able to share some of the physical facilities and so on. It does not necessarily require that the organisation sits as an integral sub-committee within or as part of the organisation concerned. You can do it in other ways; you can achieve those savings in other ways.
However, if you place HealthWatch England in the Care Quality Commission, or for that matter in the NHS Commissioning Board or any of the others, you are in danger of there being either a real or perceived conflict of interest. It may well be the case that HealthWatch England will, on occasions, be asking the Care Quality Commission to do certain things. It may well be the case that there will be, on occasions, circumstances in which HealthWatch England will be saying that the Care Quality Commission has failed to do certain things. That is not a happy situation; nor is it one that is likely to engender the trust of the public if they are seen as being part of the same organisation. That is the principle which underpins some of these amendments.
There is then the question of the extent to which HealthWatch England is seen as being a creature of either the CQC or Government. That then relates to how the ruling body of HealthWatch England—the committee, if it is a sub-committee of the CQC—is appointed. That is why one of the amendments to which I have my name, Amendment 307, specifically refers to the committee of HealthWatch England being,
“elected from local Healthwatch organisations”.
It is a principle of accountability; it is a principle of ownership; it is a principle of safeguarding that independent viewpoint and voice. That is why that is necessary and that is why Amendment 307 in this group is so important.
We also have a series of amendments, Amendments 308, 309, 312, 313, 315 and 316, which try to make sure that it is absolutely explicit that HealthWatch England's role is not just to provide information or advice but, on occasions, to make recommendations to the bodies concerned. It may be a recommendation to the CQC or to the other major national organisations. This group of amendments specifies that that is part of its functioning. It also makes it clear that there should be proper responses to those recommendations from the bodies to whom they are directed. Again, if the Government are serious about making HealthWatch England effective and about having a genuine and clear voice of the users of the NHS and social care services, surely placing in the Bill the power to make recommendations is central to that.
Amendment 314, to which I have also put my name, essentially requires HealthWatch England to provide the CQC with information and advice on the views of patients and the public, and of local healthwatch organisations. It is not a question of it being a discretionary responsibility but a clear responsibility—it “must” rather than it “may”. I know that, in this Committee or in your Lordships’ House more generally, we sometimes get into esoteric discussions about the relative force of “must”, “shall”, “may”, and so on and so forth. I am quite clear that must is stronger than may. That is to avoid a situation where the national body fails to take into account the views and opinions being expressed locally. It is saying that this is an obligation on the organisation to reflect that. Again, if you want to see an independent voice for patients at national level, it must be clear that that body is obligated to put forward the views of patients, the public and local healthwatch organisations.
Amendment 317 also goes to the heart of the relationship between HealthWatch England and local healthwatch organisations. It is a very simple expectation, which I am surprised was not included in the Bill already. HealthWatch England must send a copy of any report it produces to all local healthwatch organisations. This is about the way in which local healthwatch organisations relate to their national body. I speak as someone who ran a national body for patients for a number of years. I know that we would have had an extremely difficult time with our member community health councils had we been making advice and recommendations at a national level without keeping the local organisations, on whose advice those recommendations were based, fully informed of what we were saying and doing. The Bill sets out some of the people who should receive the reports produced by HealthWatch England, but fails to mention local healthwatch organisations. It is a simple change. I am sure it was a mere error in drafting and that the Minister will be able to accept Amendment 317 without wasting time at Report on the issue.
Amendment 318 relates to the relationship between the Secretary of State and HealthWatch England. Clearly, there is a nagging concern in the Department of Health that HealthWatch England may not do all that the Government are hoping, which it certainly will not be able to do unless they make some of the changes being suggested in this group of amendments. However, the Secretary of State has taken upon himself the power to give directions to HealthWatch England. Personally, I do not have a problem with that. I accept that Secretaries of State like to have that in respect of all sorts of organisations. However, before making those directions, which the Secretary of State should not make lightly, Amendment 318 provides that the Secretary of State,
“shall consult local Healthwatch organisations”.
If the Secretary of State were to give a direction on the basis that it was failing to discharge its functions, that should be in the light of the knowledge that local healthwatch organisations, to which HealthWatch England should be responsible and is, in part at least, servicing and supporting, have been properly consulted.
I think that the amendments are entirely modest, sensible and ones that the Government can accept without further problem. They are integral to ensuring that HealthWatch England is the proper voice of the users, patients and those who depend on the NHS.
Baroness Northover
My Lords, this has been another excellent debate. We have returned to the topic of HealthWatch, which we also discussed on 22 November. I listened very carefully to the views expressed in that debate. It seemed that there was a consensus, as there has been again today, about the need to have the patient voice very much at the heart of the NHS. There was agreement then, as I think there is today, that the Bill moves us forward in making sure that the patient voice is at the heart of the NHS. I thank the noble Lord, Lord Warner, for his comments in this regard.
However, I fully recognise that there are significant concerns about the way in which the Government are taking forward these proposals. When we discussed this previously, I made a commitment to continue discussing these issues. We have had subsequent meetings, which some noble Lords have attended; I thank them for their input. I found those meetings extremely constructive. I also attended the meeting between the noble Earl, Lord Howe, and the national association.
Our previous debate focused on the independence of HealthWatch England, which will be a statutory committee of the CQC. I understand that this risks, as the noble Lord, Lord Harris, said, dangerously compromising the independence that I talked about as being so important. Let me be clear why we are proposing this arrangement. There is a reason why, at present, there is no national statutory organisation to champion the patient voice. The last body, to which noble Lords made reference—the Commission for Patient and Public Involvement in Health—was abolished for being ineffective and lacking influence as well as being too expensive and too centralising. To quote from the Health Select Committee’s 2007 report into Patient and Public Involvement in the NHS:
“The evidence we received was overwhelmingly critical of the Commission”.
The noble Lord, Lord Warner, said that the Government should set up an authoritative, stand-alone body, and others have made similar points. This is, however, precisely the point. While I respect the view of the noble Lord, the Government have not been convinced that it would be possible to have such an authoritative stand-alone body in the form that they suggest. The previous Government’s attempt to do this with the commission did not work out well, as noble Lords know. The abolition of the commission was announced five months after it started work. It limped on for a further three years, chewing up £100 million and was universally criticised.
Lord Harris of Haringey
Bandying around figures—“it chewed up £100 million”—gives a completely misleading impression. Could she tell us what proportion of that £100 million was the administrative cost of the commission, as opposed to the provision of patient and public involvement forums in every part of the country? The figure of £100 million is totally misleading.
Baroness Northover
I suggest that the noble Lord talks to his noble friend Lady Pitkeathley about some of the details.
Lord Harris of Haringey
I suggest that if you use a figure like £100 million, which was not the figure used by the noble Baroness, Lady Pitkeathley, you need to explain that that includes the running of the public and patient involvement forums. It is not the cost of the administration of the national body itself.
Baroness Northover
The organisation used up £100 million. There were criticisms from the local organisations that they were not getting the money they needed, so there was widespread criticism. There was criticism at a national level within the NHS and, in particular and importantly, the local organisations did not feel that it was acting in the way they needed it to, or feeding through to them the resources they needed to do what they felt was appropriate.
Lord Harris of Haringey
One of the failings of the commission was that it did not have a relationship with local public and patient involvement. The purpose of the amendment which talks about direct election would be to obviate that problem and provide a constraint in terms of whether or not there were going to be overly centralised administrative costs, because the body itself would be accountable to the local bodies that would be the recipient of most of them. My concern and my frank irritation with the commission—which I had no part in at the time—was the suggestion that all the £100 million was somehow used by the central administration. That was not the case.
One of the failings of the commission was that it was not accountable and did not have a proper direct relationship with local public and patient involvement. That was a fault both of the way it was constructed in terms of the legislation, for which the Labour Government of the time must take responsibility, and of the way in which the commission chose to work, with the support of the Department of Health at that stage.
Lord Harris of Haringey
The noble Baroness made a very important point just now. She said explicitly that HealthWatch England could and should be a campaigning organisation, although it would be a sub-committee of the CQC. This is irrespective of the debate about where it is located. I think that the principle of creating a national patient organisation as a campaigning organisation on behalf of patients is extremely important. I am very grateful to the noble Baroness for making that commitment on behalf of the Government.
Baroness Northover
HealthWatch England will represent the voice of the patients. It will publish on that; it will advise on that; to take up a point raised under one of the earlier amendments, it will no doubt make recommendations within the areas of its advice. It has the obligation to make those recommendations to various organisations within the NHS. Various organisations, including the CQC, have the responsibility to respond to that. All those obligations will flag up problems, so I do not see that I have made a startling admission. I would have thought that the noble Lord, Lord Harris, would know that transparency—publishing information—was the best way forward.
However, I agree with many noble Lords that this has been rather a patchy area. We have to try to give greater strength to these organisations both locally and nationally. Much of that is not based on their structures, because all sorts of structures have been tried, but we are trying to take them further forward.
Baroness Northover
I am sure that it could. If it felt that it was not managing to persuade the CQC or some other part of the NHS to do what it considered to be in the best interests of patients, then I am sure it would go to greater lengths to ensure that it got its message across. It is very important that we have a louder patient voice within the NHS, and this is one means of seeking to achieve that.
I return to some of the amendments that noble Lords have flagged up. This is a very important debate. I think we agree on where we wish to head and what we are seeking to achieve, but I hear noble Lords’ concerns about whether this is the right way of going about it. Noble Lords talk about an independent organisation and so on but that route was tried. This is another route for trying to make sure that there is a body close to an organisation which itself must have a major role in driving up quality. The synergies there are very important.
The question was raised of how local healthwatch is going to influence HealthWatch England. I heard what the noble Lord, Lord Harris, said about elections to HealthWatch England from local healthwatch. Clearly, as my noble friend Lady Cumberlege said, a great deal will depend on who is on these organisations nationally and locally, and it will be necessary to ensure that they are as strong as possible. The Secretary of State will determine how the membership is comprised through regulations and we will be discussing with a wide range of stakeholders the contents of those regulations. I can confirm that we will discuss the suggestions put forward by noble Lords. We had from the noble Lord, Lord Harris, an emphasis on election and a concern about that route from the noble Baroness, Lady Pitkeathley. Both noble Lords might wish to feed in to how those regulations are taken forward so that we can best comprise HealthWatch England and local healthwatch.
Lord Harris of Haringey
Can the Minister indicate the timetable for consultation on the content of those regulations? Those of us who wish to see an election process in the Bill will need to know sooner rather than later whether that is the way in which the Government’s thinking is going. When is that consultation going to take place and when is it likely to conclude?
Baroness Northover
In the meeting that I was in yesterday with NALM this was an issue. The noble Lord, Lord Harris, is probably aware of that. No? That was one of the issues—perhaps the noble Lord, Lord Warner, referred to it—that did come up. The consultation will be early next year. Given that we are almost in next year, that is pretty soon.
The noble Lord, Lord Harris, wanted to make sure that HealthWatch England’s annual report was shared with local healthwatch. While we do not feel that that is a matter for the Bill, the annual report must be published. It is important that that information is made widely available. I am sure that the noble Lord’s suggestion will be noted by HealthWatch England and local healthwatch as the information between the two must go back and forth, in both directions.
Lord Harris of Haringey
The Bill does not refer just to the annual report. It refers to all reports.
Baroness Northover
It is clearly important that the information goes back and forth between the local and national organisations.
If HealthWatch England were significantly failing in its duties, the Secretary of State has powers to intervene. An amendment addressed whether the Secretary of State should consult local healthwatch. This was on the assumption that HealthWatch England was in effect failing local healthwatch. While the Secretary of State should not be bound into a rigid consultation—something else entirely could be in question here—we would fully expect him to seek the views of others where appropriate in coming to a decision to intervene. I hope that that will reassure noble Lords.
My noble friend Lady Jolly talked about local healthwatch needing to look widely at all groups of patients, including those with rare diseases and so on. She is right. We will be coming on to other amendments where we look at this a bit more. LINks and its predecessors recognise that they have not had as wide a coverage as they would like or been as representative of their communities as they would need to be. This concerns us. The noble Baroness, Lady Pitkeathley, referred to it briefly in relation to whether local healthwatch should elect to HealthWatch England. We are seeking to learn from this. We want to try to make sure that local healthwatch has as broad a spread as possible. It is worth bearing in mind that it has a place on the board of the health and well-being boards and so there will be information feeding back to local healthwatch from the others on the health and well-being boards and from local healthwatch into the health and well-being boards. We will come on to local healthwatch in relation to local authorities, but there is synergy there too.
While I feel that the Bill provides safeguards for the independence of HealthWatch England within CQC, I would like to repeat my commitment that we are prepared to listen to further views. It is very clear that we are all trying to head in the same direction. There is a variety of views about how best to do this. We would welcome noble Lords’ continued input as we take this further forward. In the mean time, I thank noble Lords for flagging up these issues. I hope that the noble Lord will withdraw his amendment.
Lord Harris of Haringey
My Lords, I will speak to the seven amendments in my name in this group, Amendments 319, 321, 322, 323, 325, 326 and 327. The noble Lord, Lord Rix, described this group as something of a Christmas stocking; I have to say that even my seven amendments do not have a common theme. They are on a variety of topics, ranging from some that simply correct what I assume are drafting errors in the Bill to others that raise rather more fundamental issues along the lines of the amendment of the noble Baroness, Lady Cumberlege.
Amendment 327 deals with what is, I think, a drafting error. Unless I have misinterpreted the interlaying Acts that are being subsequently amended, the Bill leaves a reference to primary care trusts in the base Act. Presumably the assumption is that the commissioning groups will take on those functions and should be expected to respond to the local issues raised by local healthwatch organisations. I am sure that is simply a drafting arrangement.
Amendment 323 would slightly tighten the wording on how independent advocacy is organised and says that the provision should be appropriate to the needs of those for whom that provision is being made available. I am sure that the Government will have no problem with that. It makes sure that advocacy arrangements recognise the very different nature of the problems and the client groups who will raise them.
Amendment 321 puts into the Bill a requirement that arrangements be made to enable members of local healthwatch organisations to have indemnity cover against the risk that a claim may arise from their duties. I am doing the Government a favour by highlighting this at this stage. I certainly recall, from the time of my involvement in community health councils, and in another sector prior to that—the work of electricity consultative groups for a completely different government department—that the same issue arose. I refer to the indemnity or protection that is there for people who are carrying out public duties if they are involved in an accident and a claim is made against them for it. What we will have—I am sure it will be in the Minister’s brief—is some vague statement about Treasury indemnity.
The problem for individuals in this position is that it is not clear what such indemnity will cover and how they will be able to access it if, for example, they are involved in an accident or an incident during their work as a member of a local healthwatch organisation. I would advise—I am trying, as ever, to be helpful to the Government—that this should be sorted out now rather than waiting to get into a tangle about it. I remember spending many happy years, when I was Director of the Association of Community Health Councils, trying to get a definition that would satisfy local CHC members that they were protected. Otherwise, the answer goes back that you should claim on your own insurance policies; yet those insurance policies often exclude people who are carrying out work—even voluntary work—or similar duties. Acting on behalf of a local healthwatch organisation will almost certainly be excluded by the individual members’ insurance policies. My experience on CHCs and in other organisations is that this is a constant pressure and a constant concern. There should be something explicit in the Bill to provide a degree of reassurance to people who are undertaking these activities on behalf of their communities.
Amendment 319 relates to the membership of local healthwatch organisations and is put forward today as a probing amendment. I hope the noble Baroness will give us details of how it is envisaged that local healthwatch members will emerge in that role. The question of how legitimate local healthwatch organisations will be—how representative they will be—depends critically on the precise arrangements by which people end up as members of the organisations. The previous Government’s proposals in respect of LINks, which I never fully understood, left it in a state of limbo and people were, essentially, self-appointed as members of LINks. There must be a degree of transparency and clarity in the process by which people end up as members of local healthwatch organisations. The proposal here is that there should be some system of election. Often, although this was not exclusively the case, the most effective members of local community health councils were those who were elected by local voluntary organisations in the areas concerned. They were often the people with the most detailed, personal knowledge of the services they were monitoring. They often had a constituency they could draw back into for information and support for the work they were doing. Above all, they had the added legitimacy of having been chosen for that role by other local voluntary organisations.
I am not suggesting that as a model that should necessarily be adopted. What I am saying is that the clarity it gave those individuals was very helpful. Other members were appointed directly by the local councils for the area. Again, that gave clarity about who they were representing and what their legitimacy was. Some were appointed by regional health authorities, though this changed every time the health service was reorganised, which was every two or three years. That is something that does not change, even now, and I am sure we will be back here in two or three years unpicking whatever finally emerges from the sausage machine of legislation that we are processing now.
It is going to be critical to have a clear process by which local healthwatch organisation members are appointed. It is also important that they have legitimacy. Otherwise the organisations to which they relate will say, “You are not representative. You are self-selecting” or “You do not represent the communities you purport to represent”. Clarity about the appointments process is important. Some system of election would be valuable, but it would be helpful if the noble Baroness could tell us today exactly what is envisaged. We certainly need to know that before we proceed further with the Bill.
The orange in the Christmas stocking is the relationship between the local authorities and local healthwatch organisations. I have tabled Amendment 322, which refers to local healthwatch organisations not being subservient to the body that is responsible for their establishment. That goes to the core of the issues raised by the noble Baroness, Lady Cumberlege, about the extent to which local healthwatch organisations can be effectively under the control of local authorities.
I know that we will be assured that local healthwatch organisations will be independent and have all this additional legitimacy because they will know that local authorities have provided them with support, and that that is why the proposed structure is being adopted. However, that model will not necessarily work. I speak as someone who was leader of a local authority for 12 years and I know how decisions are made. In particular, I know how decisions are made at times of financial stringency. Unless the resources for these local organisations are guaranteed in some way, they will be vulnerable—not necessarily because they are saying unhelpful things but simply because the local healthwatch organisation will not be seen as a core activity of the local authority at a time of stringent finances and resources. That is why this issue needs to be addressed head on.
There is a problem of potential conflict of interest. Local authorities are responsible for providing certain types of social care. They are responsible for commissioning and providing that care. They will have a responsibility with others through the local health and well-being boards. There is a danger that local healthwatch organisations will be seen as being conflicted because they are subordinate to the local authorities in their area.
There are two simple ways for the Government to solve this problem, both of which I know they are not currently minded to consider. One model is a separate structure that provides the funding and resourcing for local healthwatch organisations; and that would flow back to HealthWatch England. The other model is to ring-fence the resources that are passed through to local authorities for this purpose. I know that Her Majesty’s Treasury is always against ring-fencing and, indeed, the Local Government Association, of which I have the honour to be a vice-president, always argues against the ring-fencing of resources because it is always better for local authorities to make their own determinations. However, this is not about determining local needs. This is about providing something for the local community on behalf of another government department.
The Department of Health has, no doubt, fought a valiant battle with the Treasury to secure the resources for HealthWatch and the Treasury is passing that money through the Department for Communities and Local Government down to local authorities. There is no ring-fencing. The reality is that local authorities will not be able to say to the Treasury at the next comprehensive spending round how those resources have been used. They will not even be able to demonstrate that those resources have been used for the purposes for which they were given, and they will lose the battle for the continuation of that funding. If there is a ring-fenced structure, you will ensure that the resources are there for local healthwatch organisations. There may then be a question about how effectively those local organisations operate, but at least the resources will be clear and the local authority will be accountable for how it has used that money explicitly, rather than for whether or not it has used the money for that or for other purposes.
Unless that issue is addressed, there will be not only perceptions of conflicts of interest but the problem that local healthwatch organisations may, in time, be starved of resources. This is not an idle concern. We have all received the correspondence from LINks, talking about the budget cuts that they have faced in the current financial year. We can expect that to continue. If the Government are serious about having vibrant and effective local healthwatch organisations, they have also to solve the resourcing question and the perceived conflict of interest between the local authority and local healthwatch organisations.
We heard much in our earlier debates about the synergies and wonderful effects that talking in corridors would have within the CQC. I thought at one point that the noble Baroness was going to talk about talking in the toilets about decisions and how you infuse ideas from one organisation to another if they are co-located. That will not be the case with local authorities and local healthwatch. You will not get that same connection. The mere fact of being in the same organisation will not matter because they will not be physically located with the people who are making the decisions about social care; they will probably be in an outward-facing office, meeting the public. It will be an outpost of the local authority. There will not be that informal interchange which we were told would be so valuable if Healthwatch England was placed within CQC. The issue is how you make these organisations effective. That will require independent resources and it will require that the question of conflict of interest is dealt with.
Viscount Tenby
My Lords, very briefly, I support the amendment in the name of my noble friend Lord Rix. He has clearly outlined the rationale behind the amendment; accordingly, I do not intend to keep the House long—sighs of relief all round, I should think—although, like my noble friend, I should declare an interest. Until last Wednesday, I was chairman of a residential home for those with learning disabilities.
I think we are aware that the complaints process against the NHS can be extremely complex and challenging for those involved. That nearly always coincides with a period of some personal distress. Indeed, the very inclusion of Clause 182 indicates that the Government, to their great credit, are aware of that factor. However, there is a danger that the provision is not sufficiently explicit. My noble friend has highlighted the potential for advocacy support to stop before a conclusion has been reached. I share his concern, and add that the amendment safeguards against the freedom given to a local authority to define what it deems to be “appropriate arrangements” for the provision of independent advocacy services.
The critical point is that, at a time when local authority budgets are particularly stretched, to expect them to provide additional resources for advocacy support could result in the needs of people being sacrificed in favour of councils balancing their books. We all understand that that goes on. In other words, the level of advocacy support offered might be dictated by available funds and, accordingly, “appropriate arrangements” might be taken as being what is appropriate for the council to offer.
That detracts from what I assume is the object of making advocacy support available: to benefit the individual. The ability for people—often in mourning and in some distress—to seek justice should surely seek precedence over what is convenient to the local authority. By explicitly removing any upper limit on the length and type of advocacy, the amendment sends a strong message to councils that the individual must be the priority in this situation. It removes the excuse that a council might have not to provide the adequate level of advocacy support required by those who need it; and instead gives the individual the power to challenge any decision they feel is unjust on the basis that their advocacy needs are greater than the support proposed.
Baroness Northover
My Lords, again, we have had a very impressive and wide-ranging debate. It links in with the earlier debate on this area, as well as with our discussion the other day.
The noble Lord, Lord Low, made a very strong point when he talked about the need for confidentiality. I hope I can reassure him that HealthWatch England will be subject to the provisions of the Data Protection Act and other applicable law. However, these are complex matters, involving a number of interlocking pieces of legislation and other issues. As a result, I hope that the noble Lord will allow me to write to him with full details of how we see these provisions working. However, I hope that he will be reassured about the overarching effect of the Data Protection Act. He made some very telling and important points.
Our aim is for local healthwatch organisations to become an integral part of the commissioning of local health and social care services. They will build on the strengths of the existing Local Involvement Networks and, we hope, address their weaknesses. I have listened to the concerns that various noble Lords have expressed about independence, given local healthwatch organisations’ contractual relationships with local authorities. I hope I can reassure noble Lords that local healthwatch organisations will be very firmly in the lead in determining their own work programmes and local priorities. Local authorities, for example, cannot arbitrarily veto a local healthwatch organisation’s work plan or stop a local healthwatch organisation providing feedback or recommendations to HealthWatch England, nor can they suppress local healthwatch organisations’ reports with which they disagree. I am sorry that the noble Lord, Lord Warner, is not in his place, as no doubt he would be hopping up and down challenging me on these matters. It is extremely important that local healthwatch organisations are effective in this way: we have made the provision that we have. Nor can local authorities starve local healthwatch organisations of funds, as the noble Lord, Lord Harris, implies. Local healthwatch organisations must have sufficient resources to fulfil their statutory functions. Those are laid down and they have to deliver on that.
Lord Harris of Haringey
I thank the noble Baroness for giving way. The problem with not ring-fencing funds and simply relying on the statutory requirement is that there are many ways of interpreting a statutory obligation. For example, there is an obligation on local healthwatch organisations to provide information to the public. You can provide information at various levels. At one extreme, this could be leaflets to every household, or it could be telephone helplines. It could be all sorts of things—or it could simply be to say that the information manual has been placed in the local library. If the local healthwatch organisation does that, it has fulfilled its statutory obligation in providing information to the community. I am assuming that Ministers do not want that to be the scale of the provision, but simply saying that you have met your statutory obligation is not a sufficient safeguard to provide £60 million-worth of services, if that is the sum of money being made available to local healthwatch organisations.
Baroness Northover
The noble Lord, Lord Harris, made exactly this point at the meeting that we had the other day with my noble friend Lord Howe, who I thought countered his points extremely effectively. However, I realise that is now almost 6 pm and I know that noble friends have other appointments; maybe we would otherwise carry on until Christmas. We take on board what the noble Lord, Lord Harris, has said. I am sure that he takes on board the counterpoints from my noble friend Lord Howe, but we will continue to discuss how best to ensure that local healthwatch organisations are effective in the way that we need them to be.
Some of the amendments of my noble friend Lady Cumberlege would increase the role of the Secretary of State in relation to local healthwatch organisations. Though we understand the intent behind the amendments, we do not feel that that is quite the way to go. Nevertheless, we acknowledge the need to keep the issue of local healthwatch organisations’ independence under review and we are working closely with stakeholders to look at how best we can support that independence at local level.
My noble friend made a range of proposals which were extremely interesting and we will take those back, along with other noble Lords’ suggestions. We are keen that local healthwatch organisations have the flexibility to work with and for their local communities. I am aware of the concern expressed by a number of stakeholders that the Bill does not contain sufficient flexibility. I can confirm that we also want to make sure that the process of getting local healthwatch organisations started is as efficient as possible. We want to assist in that and again we discussed this with stakeholders yesterday. We would not want to see local healthwatch’s ability to get on with its valuable role slowed down.
My noble friend suggested that local healthwatch organisations should have a stronger role in relation to CCGs’ commissioning plans. I sympathise with the sentiment behind this amendment and with other proposals to try to make sure that the voice of the patient is heard. However, this would place a further statutory function on local healthwatch organisations, and it might be unnecessarily prescriptive. There are, of course, arrangements in place in the Bill for local healthwatch organisations to feed their concerns to HealthWatch England, and HealthWatch England can also provide the NHS Commissioning Board with information and advice on the views of local healthwatch organisations on the standard of healthcare. Were a local healthwatch organisation to have concerns that a clinical commissioning group had not taken proper account of its views in commissioning plans, they could be raised by this route. However, this is an important issue, and I will take it away to consider it further.
Lord Harris of Haringey
Will the Minister clarify whether she is seriously suggesting that rather than having a route going direct from a local healthwatch organisation to a clinical commissioning group, it is better to have a route that goes from the local healthwatch organisations to HealthWatch England—I do not know whether we would include CQC in that process—then through the national Commissioning Board and then back down to—
Baroness Northover
I did not put that clearly enough. Local healthwatch organisations will be feeding into clinical commissioning groups. That is already apparent. They have all sorts of ways, not least through the health and well-being boards, to make sure that the needs of the community are clearly expressed so that commissioning is as appropriate as possible. Where that is not being properly listened to, and therefore serious issues need to be addressed, there are other ways of ensuring that actions can be taken.
However, all these groups need to be talking to each other. I hope very much that they will. One of the reasons for local healthwatch organisations to have the association with local authorities is that local authorities have responsibility for so many areas that also affect the health of the population. They will have new responsibilities in public health as well. All this needs to link up to make sure that the quality of health is improved. This is part of that arrangement. We are looking at it locally and nationally. However, I will take back the suggestions that my noble friend Lady Cumberlege made. We want to make sure that this system works effectively without being overly prescriptive.
I agree that indemnity is a fundamental issue. It is one to which the Government have given significant consideration. We have concluded that it is most appropriate for it to feature in local contractual arrangements rather than in primary legislation that may lack flexibility.
The noble Lord, Lord Harris, is right that the system by which people serve on local healthwatch organisations needs to be transparent—all this needs to be transparent. I heard what he said in that regard, and I will feed it into the discussions that are going on at the moment.
On some matters it is probably best, if I need to follow up, that I do so in writing, as I am acutely aware that my noble friend Lord Howe and the noble Baroness, Lady Thornton, have another engagement this evening, and we must release them.
I turn to NHS complaints advocacy. Clause 182 has the effect of transferring a duty to commission independent advocacy services for NHS complaints from the Secretary of State to local authorities. The principle behind advocacy will remain unchanged: it is the provision of appropriate support to people who wish to make a complaint about the NHS to enable them to make their own decisions. We propose that commissioning of advocacy shifts from the Secretary of State to local authorities to best meet local needs.
I note the wonderful Amendment 324, tabled by the noble Lords, Lord Rix and Lord Wigley, which seeks to ensure that advocacy will be provided without limits on the length or type of support. I commend them for their ambition but it would not be appropriate to put that limit in the Bill. I am sure they understand that but we take what they say about the importance of advocacy and commend them for their strong advocacy of advocacy.
I realise that all these areas are of great concern to noble Lords. This may be just one part of the Bill but in many ways it is the heart of the Bill, which is about patients and how best you ensure that patients’ experience translates into an improvement in quality in practice. Other noble Lords have grappled with this before. The previous Government did and Governments before that. We are trying to take this further forward, both in terms of the national and local arrangements. We hear what people say in response to the proposals but I hope that in the mean time the noble Lord will not press his amendment.
Health and Social Care Bill
Lord Harris of Haringey Excerpts(12 years, 5 months ago)
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Lord Marks of Henley-on-Thames
My Lords, I start by adding my support for the amendments that change the duty to reduce inequalities by strengthening the wording from having “regard to the need” to reduce such inequalities to “acting with a view” to reducing such inequalities. Those are Amendments 112 and 113, in relation to the board, and Amendments 186 and 187 in relation to clinical commissioning groups. I do not want to add a great deal to what the noble Baroness, Lady Finlay, said in that regard, except merely to observe that the commitment to reducing health inequalities in the Bill is one of its great advantages and will be one of the great advantages and achievements of the legislation, if it is passed. I suggest that saying it loud and clear and imposing the stronger duty on the board and the Secretary of State would be the better way to achieve it.
I want to address the other amendments to which I have put my name, Amendments 153ZZA and 153ZZB, which concern the permitted disclosures of information by the board in proposed new Section 13Z2 on page 24 of the Bill. It is important to observe that the starting point for this clause is proposed new subsection (2):
“This provision has effect notwithstanding any rule of common law which would otherwise prohibit or restrict the disclosure”.
This proposed new subsection is about permitting disclosures by the board of information whose disclosure would otherwise be unlawful, which from the wording I take to include any disclosures that would be actionable either in tort or in contract. My concern is about how far this provision would sanction a breach of confidentiality owed to patients or others.
Most of the examples or circumstances outlined in proposed new subsection (1) are anodyne or obviously called for. The first, for instance, is that the information is already in the public domain; the second is where the disclosure has to be made pursuant to regulations, and so forth. However, the amendments are concerned with two sets of circumstances that are, I would suggest, entirely too wide. The first is under paragraph (d), where the suggestion is that disclosure should be permitted where,
“the disclosure is necessary or expedient for the purposes of protecting the welfare of any individual”.
As drafted, paragraph (d) is without regard to the wishes of the individual concerned or, in the case of an individual suffering from incapacity, to that individual’s care. I would suggest that that smacks of a certain arrogance that ignores the rights of the individual to choose whether information about him or her is released by the board. It is for that reason that our amendment suggests that the words,
“and is made with the agreement of that individual or of a person having legal responsibility for that individual’s care”,
should be placed as a qualification to the unfettered right to disclose based on the board’s view of what is,
“necessary or expedient for the purposes of protecting the welfare of”
that individual.
The second area where we say that the disclosure provision is far too wide is under paragraph (f), which suggests that disclosure should be permitted where,
“the disclosure is made for the purpose of facilitating the exercise of any of the Board’s functions”.
That permissive subsection would give the board an overall right to disclose any information it chose, notwithstanding that it was otherwise unlawful, on the basis that it was,
“made for the purpose of facilitating the exercise of any of the Board’s functions”.
It does not even go so far as to say that it would have to be necessary for the exercise of those functions. In the view of those of us who have put our names to this amendment, those lines should go. They are an unwarranted intrusion into the confidentiality of the individual, and they give far too wide a discretion to disclose information whose disclosure would otherwise be unlawful.
Lord Harris of Haringey
This is an extraordinarily wide group of amendments—I think there are 27 in this group. I sympathise—well, almost sympathise—with the Minister in terms of how he will respond to them.
I wish to comment on just three of the amendments. The first is Amendment 144, which the noble Lord, Lord Patel, has just spoken to, about the importance of sharing information collected on the safety of services provided by the health service. Particularly in the context of what I think we will see as a fragmentation of the service, where a pattern becomes apparent that suggests that particular practices or processes challenge patient safety, it is important that that information is disseminated.
Lord Marks of Henley-on-Thames
If the Minister were inclined to concede our amendment, subject to a proviso dealing with emergencies of the sort that the noble Lord has suggested might be important, would that meet his objection to the amendment?
Lord Harris of Haringey
No, the reason being that it may not be an emergency situation; it may be that an individual is being passed from one agency to another. The point at issue is a risk and the mitigation of that risk. The risk may be that an assessment has been done suggesting that a person is at risk of suicide. They may well not commit suicide; there may well not be an emergency; or there may well be things that the receiving agency can do which will reduce that risk. However, there is no emergency so there would not be circumstances in which you could say it is in response to a particular situation; it is to avoid a situation arising. I am sure that there could be a form of words which would both deal with the concerns the noble Lord has highlighted and permit the sensible passing on of information to safeguard the right to life of that individual. I do not think Amendment 153ZZA quite deals with that point, and the Minister may want to respond to that when we get to that stage.
The final amendment I wish to speak to, very briefly, is Amendment 299C in the name of the noble Baroness, Lady Finlay of Llandaff. I, too, think it is extremely important that NHS services explicitly in the Bill must not use NHS business to recruit private patient business. In a context where again we will see the fragmentation of services, the arrival of all sorts of new providers and the possible blurring of distinctions between NHS provision and that provided privately by NHS practitioners, this needs to be made explicit. It is already an issue. I will cite my personal experience. The last but one time I visited my general practitioner—I think it was the first time for some five years—he declined to make the referral for secondary care I wished to have, saying that I probably had not looked after myself as well as I should have done, but then he pushed across the table a card advertising his Chinese medicine service. I thought that was extremely inappropriate—disregarding whether it was an appropriate treatment; as far as I am concerned it is non-evidence-based medicine.
Under any circumstances for there to be a blurring of the NHS responsibility of a practitioner and their private concerns seems extremely dubious. It is important it is made explicit that this is not permitted. In a previous series of exchanges the noble Earl has said it is quite clear what should happen under those circumstances. However, it does happen and what is permitted becomes increasingly confused. Even if medical practitioners are not abusing their position, or there is no blurring of those lines and everyone has been quite proper, it is perfectly feasible that patients will be confused and will not be clear as to what is happening, and that will colour future relationships they have with people providing medical services to them. It certainly coloured my relationship with that GP because on the last occasion I saw him I was extremely dubious about receiving any advice from him. I confess I referred to him as being patronising. This was perhaps inappropriate; it was certainly unwise as he was about to perform a rectal examination. None the less, it certainly coloured the relationship we had. In the interests of both patients and medical practitioners the amendment of the noble Baroness, Lady Finlay of Llandaff, should be in the Bill.
Lord Warner
My Lords, I do not intend to follow that in a similar style. I support Amendment 144 in the name of the noble Lord, Lord Patel, to which I have added my name. I do not want to go over the ground covered by the noble Lord, Lord Patel, but I just wish to share with the Minister in particular and the House in general my own experience from introducing near-miss reporting in the NHS when the National Patient Safety Agency was established. In those good old days the figure was around 800,000 a year. The current figure, as my noble friend Lord Patel said, is of the order of 3,000 a day; it is on an upward incline.
The issue at stake in those days was not the principle of trying in effect to copy the airline industry and improve safety by having people come clean about near misses—some very serious, some less serious. No one disputed the merits of trying to learn from those experiences. Where everybody got a little concerned was around the making public of the information. I will not delight the House with some of the discussions that took place in Richmond House about whether the first lot of information should be made available, because who knew what the Daily Mail would do with it? Noble Lords will be pleased to know that the Daily Mail behaved in a predictable manner and ran screaming banner headlines about how near to death 800,000 people came each year.
The important point was that one was beginning to change the culture of the NHS, which knew that the information was being put in the public arena. The problem with the Bill is that it leaves to the board the decision about how to disseminate information. We as citizens would be better off putting in the Bill the specific organisations to which the information should be disseminated—which is what the amendment of the noble Lord, Lord Patel, does. I strongly support it and hope that the Minister will give it very careful consideration, and will carry on the publication and dissemination of the information on an agreed basis.
I will make a couple of remarks in response to the concerns expressed by the noble Baroness, Lady Williams, about a market in commissioning skills. I have no particular wish to promote a market in commissioning skills. However, as a former Minister responsible for the performance of primary care trusts, I say that many trusts seriously lacked commissioning skills. These were lacking particularly in areas such as collecting information, analysing it and using it to establish need and to procure services to meet those needs. We should not in the Bill do anything to limit the ability of the new clinical commissioning groups to receive and acquire the skills to enable them to do their job effectively, wherever the skills may be located. That is a very important part of introducing successful new arrangements for clinical commissioning.
I pray in aid of that approach the history of Dr Foster. The dear old NHS had been collecting data for decades but was unable to use them effectively to improve performance. It took an outsider coming in—Dr Foster—to use the information and turn it into something that was useful to the NHS in terms of improving its performance. We should not be too hung up on precisely where clinical commissioning groups get their skills from to do their job.
Lord Harris of Haringey
My Lords, this is an extremely important group of amendments, but I hope it is, by and large, an uncontroversial one. The Government say they are committed to patient involvement and patient choice. They say they want to see all decisions being taken with the patient rather than simply by professionals. These amendments all contribute to achieving those objectives. It is worth distinguishing between a number of different elements in terms of patient involvement. There is the involvement of the individual; there is the involvement of the specialist group of patients; and there is the collective involvement of patients. I hope that these amendments provide a means of addressing all three groups.
The involvement of the individual patient—specifically included in Amendment 121 and in Amendment 124, to which the noble Lord, Lord Patel, has just spoken, on access to medical records—is an example of where it is vital to write this into the Bill if you are serious about the Government’s mantra of, “No decision about me without me”. The experience is that, where patients are involved in all decisions about their medical care, better decisions are made and compliance with them by patients is far fuller than would otherwise be the case. Therefore, requiring patients to be involved in every decision affecting them is part of delivering a good and effective health system. My experience mirrors that of the noble Lord, Lord Patel, because the experience of patients’ organisations is that, where patients are given charge of their medical records, they look after them extremely carefully—often much more carefully than under the old system of trolley-loads of not dog-eaten but dog-eared files in hospitals—and are much more likely to be protected by the individuals concerned.
I have put my name to Amendments 123, 192 and 205, which talk about the involvement of healthwatch organisations. Amendment 123 places a duty on the board to promote the involvement of local healthwatch, and it is important that the board sets the tone for the NHS in the way in which healthwatch organisations are expected to be involved at every level. It needs to come from that level. Amendments 192 and 205 relate to the duties of clinical commissioning groups. There is a gap in the Bill, because it seems to be implied that commissioning groups will involve patients and healthwatch organisations, but I am not sure that that is stated explicitly, which is why those amendments are so important.
However, the reason why it is helpful to engage healthwatch at every level within the NHS is the support function that local healthwatch organisations and HealthWatch England will provide to the three levels of patient involvement that, as I have stated, are so important. That is because, as local healthwatch organisations and HealthWatch England, they will have an understanding of the way in which the health service is functioning. They will have an understanding of the pressures on the health service, commissioning groups and local providers and they can therefore support specialist groups of patients with a particular knowledge of their condition in how to exercise their influence most effectively within the organisation. It is those specialist groups of patients who will be tremendously valuable in improving the quality of service. They will often have far more knowledge about the way in which their condition operates than even the clinicians who support them—maybe not the specialists but general practitioners and so on—because they have that detailed knowledge and experience, day in and day out, particularly when they have a chronic condition that may continue over many years. That involvement is crucial in terms of the quality of decision-making, but it is important that they are supported by organisations such as healthwatch, which will then be able to put a context to the way that the local NHS is functioning.
Finally, there is the critical issue of the collective involvement of patients in decisions about the disposition and organisation of health services at a local level. That will be best articulated through local healthwatch organisations. This will be about what best serves the local community and what meets the differing needs within a community. The only simple mechanism by which that can be achieved is through something such as local healthwatch organisations. That is why such involvement must be built into the commissioning process, and the board must lay down how crucial this issue is crucial to the determination of services.
Lord Kakkar
I shall speak to Amendment 198 in my name and that of my noble friend Lord Patel. It would impose a duty on clinical commissioning groups to consult relevant academic bodies in their area, including potential future academic health partnerships. I remind noble Lords of the entry in the Register of Lords’ Interests on my involvement in University College London Partners—one of the five academic health science systems currently designated by the Department of Health.
Academic health science partnerships can take a variety of forms but are all based upon a simple principle: the delivery of healthcare should be combined with high-quality teaching, training and research to drive the highest possible clinical standards achievable. Indeed, throughout healthcare systems in the world it is well recognised that alliances between the academic and service-delivery elements of healthcare help us to achieve the best possible clinical outcomes. That view has been recognised by the Department of Health in the designation of the five current academic health science centres in our country.
A number of other initiatives are moving forward at the same time as this Bill and are considering a broader role for academic health service partnerships. These include the ongoing review, conducted under the auspices of the chief executive of the National Health Service, which is looking at innovation in the NHS and how that might best be promoted as we move forward. It is possible that that innovation review could propose a broadening of the current five academic health science centres to a larger number of academic health partnerships that would have responsibility for the promotion of innovation, and would ensure that the results of research and other innovative ways of delivering care are more broadly and rapidly disseminated across the NHS. That dissemination of best practice and innovation could also be used to create an environment in which to stimulate economic growth. That is an important additional opportunity that the NHS and academic medicine have for our country.
There is also the detailed discussion that has taken place in Committee, outside the Chamber, and in the work of the NHS Future Forum with regard to future arrangements for education and training. In those discussions, there is a recognition that academic health partnerships should play an important role, not only in the configuration of Health Education England but in local arrangements, potentially with academic health science partnerships playing an important role in defining the structure and core of local education and training boards.
Therefore, at least two initiatives, in addition to the mechanisms and structures proposed in the Bill, will turn to partnerships between the NHS, academic institutions and other academic elements in the delivery of healthcare in our country. The purpose of my amendment is probing in order to try to understand what view Her Majesty's Government take of the potential future role of academic health partnerships and what relationship the Government foresee with regard to clinical commissioning groups working at a more local level with potential academic bodies and partnerships in their vicinity. This is particularly important because we heard today in Committee about the vital importance of clinical commissioning groups being appropriately informed. One of the important roles that academic health partnerships may play in the future is providing that kind of information to better inform the decisions that local clinical commissioning groups take. With the vast amount of evidence that academic health partnerships will have in their structures, bearing in mind that these partnerships are broad and include not only academic institutions but a variety of different service providers brought together with a common purpose, it would be peculiar if clinical commissioning groups did not at least make themselves informed of their information and expertise. It would also be peculiar if, in creating a framework and structure for education and training based around a partnership between academic elements and service and provider elements at local level in local education and training boards, clinical commissioning groups did not avail themselves of the opportunities from that.
Previously in Committee, I proposed to the Minister that clinical senates may be constituted around these broad partnerships of academic health service alliances. There was some concern that this might represent a conflict of interest. However, the very broad nature of these partnerships, with multiples of potential providers as seen in the current five academic health science systems, potentially overcomes the risk of conflict of interest. They provide a natural structure and environment to serve the function of clinical senates, to serve the function of the core of local education and training boards, to provide a useful source of information to clinical commissioning groups with regard to understanding the best pathways of care available in their regions and to promote clinical outcomes, patient safety and patient experience. They also provide a very important basis to serve the objectives of the current innovation review to promote not only best practice but the benefits of economic growth associated with innovation and implementation with regard to healthcare.
I would like to ask the Minister about Her Majesty’s Government’s view of the future role of academic health partnerships, with specific reference to clinical commissioning groups, to understand whether there is an intention that the current five academic health science centres are more broadly expanded into health academic health partnerships. If they are, how will arrangements be made in future to ensure that clinical commissioning groups avail themselves of the great expertise and knowledge that will be available in such partnerships?