Health and Social Care Bill
Lord Harris of Haringey Excerpts(12 years, 8 months ago)
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Lord Harris of Haringey
My Lords, I think this is the part of the Bill which I assume the Minister had hoped would give him a quiet time. Indeed, he has passed on the responsibility for answering this amendment to his noble friend Lady Northover. Originally, one had to respect the Government’s intention with regard to HealthWatch because I am sure the intention was to create effective patient representation at national and local level. That intention has been challenged in the discussions that we have subsequently had and in some of the changes that have occurred over the past few months. However, it is worth going back for a moment to first principles. What constitutes effective patient representation? The first significant element of that has to be independence. The organisation representing patients’ interests has to be independent of the providers of health services, those who commission them and those who regulate them because the act of representation can potentially challenge any or all three of those interests.
Secondly, effective representation at national level must be representative. There must be real representativeness within that structure. It must be derived from local groups and local individuals and have that authority which is derived from being a representative structure. With the best will in the world, you cannot be an organisation which can speak with proper authority on behalf of patients or, indeed, any consumers if you are simply appointed from on high by a Secretary of State. In my time, I have worked for organisations that have been structured like that and I have to say that although they can do good work, they cannot be properly representative. They cannot properly have the authority that comes from being derived from the grass roots. The third element which is critical is that the work and the comments that these bodies produce have to be derived from sound local information, which necessitates being able to pick up information from local networks around the country. That has to be safeguarded in whatever proposals are put forward.
The Government originally promised us that HealthWatch England would be the independent patients’ champion. However, as the noble Lord, Lord Patel, has just pointed out, being a subcommittee of the Care Quality Commission does not demonstrate independence. It demonstrates a subsidiary role in relation to the Care Quality Commission. I am sure that the people currently at the Care Quality Commission are motivated to try to create an arm’s-length structure. We do not know, of course, whether that desire for independence would survive the first occasion when HealthWatch England challenged the decisions made by the Care Quality Commission, or how often it would survive after repeated such challenges. However, independence is also about the perception and the appearance of being independent. How can you appear to be independent if you are a subcommittee of one of the organisations that you may have to criticise from time to time?
This amendment seeks to do three key things. It would set up HealthWatch England as an independent statutory body and write that independence into statute, set out a clear relationship with local healthwatch organisations and safeguard their funding mechanism. I recall some very wise words said to your Lordships' House in July 2007 when we were debating the creation of the Commission for Patient and Public Involvement in Health. It was stated that,
“one signal advantage of the commission is that the money that it distributes to forum support organisations cannot be used for purposes other than those for which forums were established. Under the arrangements in the Bill, however, there is no guarantee at all that money intended to support the activities listed … will actually reach the front line. It would be possible for a local authority to say that it was delivering the activities in the Bill when, in reality, those activities were so minimal that they were hardly worth the name of patient and public involvement. What steps could be taken, in those circumstances, to ensure that such involvement in health and social care is delivered properly?”.—[Official Report, 23/7/07; col. 615.]
The person speaking said that the answer was not delivered by the Bill brought forward at that time by the Labour Government. Who was the person who delivered those words? It was, of course, the noble Earl, Lord Howe—the current Minister. He made it quite clear that the arrangements which he is now seeking to replicate were not adequate and would not, and could not, work. Yet the proposals which were going to establish the independent patients’ champion are weakened precisely because he has not accepted the lessons of his own words.
The noble Earl, Lord Howe, went on to say that he was concerned that, as:
“LINks are going to assume different forms and guises in different localities, it is axiomatic that the level of activity that they undertake is going to vary”.—[Official Report, 23/7/07; col. 615.]
He asked how the amount of money in any given area was to be assessed. Therefore, I ask the noble Baroness—who will respond on behalf of the noble Earl, who gave us that wise advice in 2007—what will be the mechanism for determining how much money is allocated to each local authority for healthwatch in its area? Will this be a global sum that will go from the Department of Health to the Department for Communities and Local Government, and then be allocated to local authorities by the mysterious process by which the block grant from the DCLG is decided for each local authority area? Or will there be a separate formula that will go with that money and decide how much money is allocated to local healthwatch around the country? If it is the latter, will that information be published? Will it be possible for residents in a local area to know how much money has been allocated so that they can see whether it is being used? I suspect that unless we have the answers to those questions we will know that the reality is that this money will disappear in the wash and not be effective. The point about the amendment is that it provides a solution to that problem because the same money would be channelled through a body that would be dedicated to the provision of local healthwatch organisations and want to ensure that the money was spent properly and appropriately.
The Government’s arguments—we have had several discussions about this with Ministers, and I am grateful to the noble Earl and the noble Baroness for providing those opportunities—seem to be broken down into three areas. First, they argue that there is a natural synergy with the work of the Care Quality Commission. However, I have already pointed out that the CQC is one of those bodies that HealthWatch England may have to criticise. There is also a synergy with the work of the NHS Commissioning Board, Monitor, Public Health England and all sorts of other parts of the new NHS. Why is there specifically a synergy with the CQC?
The Government’s second argument was that there would be cost efficiencies and that this would be the most efficient way of doing this because there would be savings due to the collocation. However, as the noble Lord, Lord Patel, pointed out, you can achieve that in many ways. You can simply say that one of the things that HealthWatch England, as an independent statutory body, could be required to do through guidance, would be to look at how its back-office operations could be provided from a variety of organisations of appropriate stature and size, where the issue of conflict would not necessarily arise. That provision could then be made by way of a clear legal agreement. However, that is not being done, and I am not quite sure why the Government are saying that there are efficiencies and cost savings that could be made only by the precise structure that they propose. In terms of providing the funding to local healthwatch, our proposal has to be a more efficient provision that will deliver the resources without leakage and without local authorities deciding that perhaps there is a greater local priority than local healthwatch.
The noble Baroness, Lady Northover, spoke vehemently about the way in which the former Commission for Public and Patient Involvement in Health had operated, and how it had a wasteful and top-heavy way of distributing resources to local patients and for public involvement. That is not the only way to distribute resources. The only reason that the former commission distributed resources in that wasteful and inefficient way is because the Department of Health at that time—I regret, led by a Labour Minister—insisted that it was done in that rather ridiculous and cumbersome way. If Ministers want distribution done efficiently and simply, perhaps that can happen. If you appoint the right people to the initial board of HealthWatch England, I am sure that they would want to ensure that that is the case. It does not have to be done in the way I described.
The third argument that I have heard Ministers make for locating this body within the CQC is that it will provide all sorts of informal support and guidance—that there will be a library, information resources and so on. However, the Government have told us how important the duty of collaboration is within the new NHS and how significant it will be. Why do you need to collocate and have HealthWatch England as a subordinate structure within the CQC when there is a duty to collaborate? Indeed, why cannot HealthWatch England collaborate with other national bodies as part of the NHS?
Baroness Northover
My Lords, this has been another excellent debate. I listened very carefully—as I did before—to the views expressed. Overall, there is clearly complete agreement on all sides of the House that the voice of patients and the public should be at the heart of the NHS. As the noble Lords, Lord Patel and Lord Harris, and the noble Baroness, Lady Masham, and others indicated, the history of how previous Governments tried to implement this is tortuous. The recent past has borne witness to a number of attempts to do it, and noble Lords referred to some of the problems. No attempt—not even Community Health Councils—managed to fulfil the worthy intentions of its architects, and we went from one to another.
As the noble Lord, Lord Patel, recognised—I appreciate his words—we seek here to take the strengths from past attempts, build on them and ameliorate the weaknesses as we develop our proposals for HealthWatch England. In the light of the comments of the noble Lord, Lord Harris, and as the noble Baroness, Lady Murphy, emphasised, it is worth remembering one of these previous attempts: the Commission for Patient and Public Involvement in Health. It was established in July 2003 and operated nationally and regionally, following regional government boundaries. Within five years it had been abolished after being seen to lack clout, to be too bureaucratic and too top-down for the public and those on the ground. Perhaps I may again remind the House of the judgment from the Health Select Committee’s 2007 Report into Patient and Public Involvement in the NHS, which stated:
“The evidence we received was overwhelmingly critical of the Commission”.
We are convinced that trying to recreate the commission is not the best way forward, and instead propose that HealthWatch England should be a statutory committee hosted—that was a very good description from the noble Lord, Lord Patel—by the CQC, which is a far more viable option.
I am well aware that this proposal has met with concern.
Baroness Northover
I will finish and then I will respond to the noble Lord if I need to. I am well aware that this proposal has met with concern from some quarters. I will explain why we are proposing this arrangement and why we do not feel that the case for having a separate body is stronger.
HealthWatch England will have clout. It will have a seat at the top table, taking centre stage in providing advice on patient and public views to the CQC, Monitor, English local authorities and the Secretary of State for Health. Noble Lords were right to say that Healthwatch England must influence all these bodies; that will be its responsibility. My noble friend Lady Jolly, too, made that clear. Each of these persons or bodies will have a duty to respond to the advice. Through local healthwatch, HealthWatch England will be closely linked to the views of people expressing views about the services that most directly impact on their lives. Our proposals for HealthWatch England will place it at the heart of the system—not at the top, divorced from the views of local people, as CPPIH turned out to be.
As a committee of CQC, HealthWatch England will be able to draw on the best of CQC’s evidence base on quality and standards of care. The enthusiasm with which CQC wishes to learn via healthwatch is instructive. It will be helpful to CQC to have information coming from local healthwatch and HealthWatch England to CQC to alert it to problems such as those at Winterbourne View. This will give HealthWatch England a prominent position within a CQC that will have a strengthened role in assuring the safety and quality of health and adult social care services, and a strengthened focus on the concerns of health and social care consumers. This will ensure that from the outset HealthWatch England will have a greater presence and ability to influence than would a body established from scratch.
The Bill already contains significant safeguards to ensure that HealthWatch England will be able to operate effectively in that situation. For example, it will provide advice to a wide range of organisations. I have just mentioned central national organisations and local authorities. However, we listened carefully to concerns expressed in Committee about possible conflicts of interest between the CQC and HealthWatch England. This issue was raised again today. We therefore welcome Amendment 228, tabled by my noble friends Lady Cumberlege and Lady Jolly. It places duties on CQC and HealthWatch England to have regard to guidance from the Secretary of State about managing conflicts between these bodies. This is a sensible suggestion, and we are happy to support the amendment.
While acting independently, HealthWatch England must of course be accountable. Government Amendment 229 places a duty on it to send all local healthwatch organisations a copy of its annual report. It was the noble Lord, Lord Harris, who thought that this was a good idea and tabled an amendment to this effect in Committee. We agreed that it would help to secure the intended wide transparency and communication between HealthWatch England and local healthwatch. I am grateful to the noble Lord for flagging that up and suggesting the idea.
It is also important that local healthwatch—
Baroness Northover
No, I am going to continue, and if there are things that need to be dealt with at the end, I shall deal with them. It is also important that local healthwatch is able not only to provide information to HealthWatch England but to influence HealthWatch England’s actions on matters raised locally that may have national importance. Various noble Lords made that point and they were quite right. We therefore welcome, and will support, the amendments of my noble friend Lady Tyler.
Baroness Northover
My Lords, it may help the House if I continue, but I am very happy to give way to noble Lords who wish to ask questions once I have gone through the various elements.
Government Amendment 226ZG will enable HealthWatch England to make recommendations of a general nature to local authorities about the making of arrangements for local healthwatch organisations and, where HealthWatch England is of the opinion that local healthwatch organisations’ activities are not being carried out properly, to draw this to the attention of the local authority.
Amendment 226A, tabled by my noble friend Lady Cumberlege, would place a duty—I see Companions spinning all around the House, so while noble Lords are studying that—
Lord Harris of Haringey
I want to ask a question, and I think the Minister has moved on to another point.
Baroness Northover
I am very happy to take noble Lords’ questions completely out of order, if need be, at the end if I have not addressed them.
Amendment 226A would place a duty on local healthwatch organisations to have regard to any advice or assistance provided by HealthWatch England under new Section 45A(2). We believe that this is too prescriptive. While we anticipate that local healthwatch organisations will welcome advice and assistance from HealthWatch England, a blanket requirement to have regard to the advice and assistance does not seem appropriate.
The Government very much agree that it is very important to get the membership of HealthWatch England right, the better to ensure its independence, and I thank noble Lords for their contributions on this issue. The Bill already gives the Secretary of State the power to make regulations about the appointment of members, and it is a power that we intend to use. In Committee, we said that we would take away and consider the suggestions put forward by noble Lords. We have heard what was said and have undertaken a public consultation on these regulations. Noble Lords have flagged up that a number of noble Lords are interested in local elections from local healthwatch organisations to HealthWatch England, and that is one of the issues flagged up in that consultation.
The consultation closed on 2 March, and the responses are now being analysed. Government Amendments 225 and 226—I thank my noble friend Lady Cumberlege for adding her name to Amendment 226—would ensure that regulations are able to make adequate and appropriate provision about HealthWatch England’s membership, including procedures for appointing members. It would also ensure that the regulations must require that the majority of members cannot be members of the CQC.
I now turn to aspects of the amendments relating to specific functions of HealthWatch England. It is interesting that some of these have not been flagged in the debate. Amendment 223A includes elements on patients’ complaints, and I think it is important for noble Lords to be aware of some of the elements in it. I would point out that statutory mechanisms have been in place for the investigation of NHS and adult social care complaints for a number of years, and a great deal has recently been done to improve these arrangements.
In 2009, the previous Government—and I give credit to them—following considerable public consultation, introduced new complaints arrangements for the NHS and adult social care. These reforms placed a greater focus on the outcome of the complaint and on speeding up the process. Importantly, they placed emphasis on resolving complaints at local level with recourse to the independent Health Service Ombudsman, if appropriate, so that organisations were better able to learn from their mistakes and to use the information to improve future service delivery. While there is room for improvement in the local handling of complaints, we support the reforms put in place by the previous Government, and it remains this Government’s view that complaints are best dealt with initially at local level. We wish to build upon these solid foundations. However, it is extremely important that the information that can be gathered from people’s experience is fed in and that an individual complaint is taken forward in a largely satisfactory way.
The relevant part of Amendment 223A, which deals with complaints, could, we believe, fundamentally change the nature of HealthWatch, compromise its primary role of consumer champion, lead to confusion among service users, duplicate current arrangements and impact adversely upon the role of the Health Service Ombudsman.
The noble Lord, Lord Patel, laid out extremely clearly what HealthWatch England needs to do. It is extremely important that it is recognised as a very important body in the new structure and that it has input from practical experience. The noble Lord is quite right that information needs to come up from local level to national level and that it needs to feed in at every point of the new architecture. HealthWatch England needs to be part of what drives up standards, and it is different from the regulator. Many noble Lords emphasised that. It is indeed the voice of the people. All, including the Secretary of State, have to listen to HealthWatch England, so it has a huge and important job. The noble Lord is quite right. It will not be buried in the CQC. Hosting is a very good way of describing its situation. It does not have to spend time and effort on back-office functions as CPPIH had to.
How Healthwatch England will be made up, its relationship to local HealthWatch and elections will be dealt with through regulations that will be informed by the consultation to which I have referred.
I now turn to the noble Lord, Lord Harris—
Baroness Northover
I am very happy to indicate when I think I have finished. I now come to answer some of the points made by the noble Lord, Lord Harris, or to address them at least. He may feel that I have not adequately answered them and, after that, he might like to hop up.
Baroness Northover
I bear in mind a long history with the noble Lord, Lord Harris, that goes back quite a way and includes his very complimentary remarks when I gave my maiden speech in your Lordships’ House. Noble Lords might want to look at them.
Both HealthWatch England and local healthwatch have statutory forms—perhaps the noble Lord, Lord Harris, might wish to hear this.
Baroness Northover
I am so glad. Both have statutory forms and functions so they cannot simply disappear in the way that he fears. I pay credit to him for all his work in this area over many years.
It was a shame that the noble Lord, Lord Harris, was not at the meeting yesterday to which the noble Baroness, Lady Murphy, has referred. With his formidable local government experience, I am quite surprised that he does not welcome the local authority involvement in the arrangements that we are putting forward. Had he been there yesterday, he would have heard the enthusiasm of the LGA, the chief executive of East Sussex County Council and others for their new involvement in health services. They are extremely keen to be best informed by flourishing local healthwatches. As they take on their new task, they see having that information as very important.
The noble Lord, Lord Harris, asked about the funding formula. Funding for local healthwatch will continue in a very similar fashion to LINks. It will be allocated primarily through the formula-based grant. Like LINks, this funding will not be ring-fenced, but each local authority’s allocation through the formula-based grants will be publicly available. I hope that that is of help to him. In addition, local healthwatch will receive additional funding through the DH learning disabilities and NHS reform grant.
I have various other responses to various other people, but perhaps the noble Lord wishes to put a question to me.
Lord Harris of Haringey
I am enormously grateful to the noble Baroness. She has answered some of the questions that I put. However, the question I wanted to ask related to her remarks about 15 minutes ago, when her argument seemed to be that this amendment recreated the former Commission for Patient and Public Involvement in Health. Does she acknowledge that this is a completely different structure, because it would be derived from the bottom up, with the support of local healthwatch organisations? What is more, it would not have to be encumbered by the bureaucracy that the Department of Health formerly imposed on that commission. It is a completely different structure.
Baroness Northover
I hear what the noble Lord says, but if he remembers the relationship and the aims of CPPIH, a lot of them echo the arguments that he has been making about such a structure. We may simply have to differ. The Government are very keen to have a structure that is up and running immediately, linking to, plugged into and influencing the national bodies that it needs to, and that it is not spending its time on its central structure. That is why this arrangement has been sought and that is the philosophy behind it.
The noble Baroness, Lady Masham, raised a number of issues, some of which will be considered in the next grouping. Perhaps I could come back to them then so that I do not take too long. I am astonished and delighted to see so many noble Lords who are interested in what I have to say on this.
My noble friend Lady Jolly asked about information-gathering, and she is absolutely right. In many ways this bears out how the CQC is very useful in this regard. By being hosted within the CQC, HealthWatch England will gain support from CQC expertise on the best methods of gathering and making the most of intelligence from local healthwatch. As part of HealthWatch England’s set-up plan, the CQC has dedicated resources to identify and develop the system that will support information flow between HealthWatch England and local healthwatch. I take on board very strongly what she said about the need for that information to be produced in a form that can be generalised and applied nationally, and that there are not lots of disparate bits of information that cannot be put together.
The noble Lord, Lord Warner, asked again about campaigning. I said in Committee that HealthWatch England and local healthwatch can campaign. I followed that up with a letter confirming that, which I hope he got—but perhaps he did not—and I reiterate it here. I hope that that is of help to the noble Lord.
Baroness Jolly
My Lords, I was happy to add my name to Amendment 232, tabled by the noble Baroness, Lady Cumberlege, which puts in the Bill that it absolutely is the responsibility of the local authority to provide the finance for the local healthwatch to carry out its functions.
The local authority needs to develop confidence in its local healthwatch organisation—to see it as a partner, not a threat—enabling it to deliver not only its own services more effectively but those of its health partners. I hope that the Minister can indicate what might be the route to resolve any disputes about funding allocations to local healthwatch.
I will now talk about lay leadership on local healthwatch organisations. Lay leadership is absolutely critical to local healthwatch, and the noble Baroness, Lady Cumberlege, has outlined exactly why that is. It is a new PPI organisation and will need quickly to demonstrate integrity and independence to inspire local trust. The Government’s own model for user-led organisations points the way and I commend it to the Minister. It calls for 75 per cent lay or user representation on the board. Will my noble friend confirm that any guidance the Government produce will give clarity on the composition of lay membership and the involvement of lay members in the day-to-day work of the local healthwatch and that the results of the government consultation exercise will be taken due note of?
Finally, I come to a definition contained within my Amendments 234 and 235. “Local care services” are defined in the Health and Social Care Act 2008 as both health and social care, but “local people” are not defined. This definition is to ensure that no one is omitted from the remit of local healthwatch. It encompasses people living in the council area covered by the local healthwatch, people receiving care in the area and people from the area who are receiving care elsewhere.
Local healthwatch organisations will be critical in the monitoring of the new patterns of health delivery called for within this Bill. They will be vital to ensure that standards do not fall in the time of austerity, and I wish them success.
Lord Harris of Haringey
My Lords, this is a complicated group of amendments. There are, I think, 50 government amendments in this group that completely change the direction of this part of the Bill. Of course, we do not have the benefit of a Committee consideration of these changes, which is unfortunate, given the nature of the changes that are envisaged.
In fact, what we are being confronted with is an almost extraordinary volte-face by the Government about how local healthwatch organisations are going to operate and proceed. As it stood, before these amendments, the Bill provided local healthwatch with a very clear structure and very clear governance. It defined membership and it defined their role. As such, the arrangements were better than LINks, better than PPI forums and, in one or two respects, better than community health councils. It was a very clear statement. There remained the problem that local healthwatches were going to be the creatures of local government without the benefit of ring-fenced money and with the potential issues around conflicts of interest concerning social care. I am reminded that on 15 October 2007, the noble Earl, Lord Howe, clearly took the view that it was inappropriate for a local authority to be host to a LINk. Presumably, the same arguments that influenced his thinking then apply on this occasion.
We have been offered guidance on conflicts but, again, it is not clear how this will work, which is something that we could have pursued perhaps in detail in Committee. The amendment refers to having regard to the guidance on conflicts, which I suspect will not necessarily be strong enough for the sorts of conflicts of interest that potentially could arise. We also have the enormous concession, to which I referred earlier, of Amendment 226ZG, which enables HealthWatch England to write a letter if it feels that something has gone wrong.
That is where we were but now the Government, without explanation or consultation, have decided that local healthwatches will no longer be statutory bodies. We are told that that is all in the name of the need for flexibility. The noble Baroness has mentioned repeatedly the briefing which took place yesterday evening, to which, incidentally, I was not invited. Even had I been, I would not have been able to attend because the meeting clashed with the regular meeting of Labour Peers, which one would think that the Government would wish to avoid. At that meeting various papers were tabled which referred to the importance of flexibility but we are not clear as to what that flexibility will deliver.
In moving the amendment the noble Baroness talked about the Government’s proposals in the Bill as creating a series of “unaccountable quangos”. I recall previous briefings which I attended with Ministers and the Bill team when it was explained that there would be guidance about how the membership of local healthwatch was going to be derived and to demonstrate that these were going to be accountable bodies and not unaccountable quangos. Somewhere along the line, in the past few weeks, there has been this amazing change of attitude, which does not seem to follow the benefit of any real explanation or consultation with those who might take an interest in it.
That underpins the amendments spoken to by the noble Baronesses, Lady Cumberlege and Lady Jolly. The noble Baroness, Lady Cumberlege, highlighted the difficulty that would arise between members and staff. The noble Baroness, Lady Jolly, talked about the importance of lay leadership. In terms of the changes, the Government are going to make it more difficult for there to be lay leadership and the role of members versus staff will be blurred still further. Indeed, the staff will be the dominant influence.
This is not a matter on which there has been consultation. I have received a note from the National Association of LINks Members, which states:
“Ministers say that they are ‘not convinced’ that LHW needs to be a stand-alone, statutory body corporate. It is not ministers who will be relying on LHW to get them a fair shake but the old, sick, vulnerable, frightened and marginalised and these, along with the rest of the patients and the public, are the ones who need to be ‘convinced’ that we have a model that will work”.
It says that it is not convinced. It points out that local healthwatch should,
“have a standard ‘platform’ of presence everywhere in England, not merely through logos, straplines and brands”—
which the Government’s amendments will make happen—
“but through a locally elected membership, a single ‘address’ and identifiable staff that it has appointed”.
It says that only:
“Statutory, body corporate status would deliver this”.
It continues:
“Government says it does not want a top-down model but it is making top-down decisions, and these fly in the face of all the evidence of the past three and a half years of LINks, all the advice of all the LINks’ members of the government’s own HealthWatch Advisory Board, of the National Association of LINks Members, all the advice of many, many LINks all over England. ‘Being heard’ has simply vanished from the national scene. The government pontificates on what it does not practise. It legislates but it does not listen”.
It suggests, although I could not possibly automatically agree, that:
“What the Government actually fears is 152 statutory LHWs, with genuine independence, with real clout and public buy-in, a separate identity, and powerful and committed membership”.
If that is the concern, where do we go from here? I am taken with the sage advice your Lordships received from the noble Earl, Lord Howe, when we debated the creation of LINks, the slightly ill-fated proposal by the previous Labour Government. The noble Earl, in his typically courteous but forceful way, said then—given these government amendments, you can simply substitute HealthWatch for LINks:
“We have come to a group of amendments most of which in their different ways relate to the same problem. I use the word ‘problem’ as the most neutral term I can readily think of for what many of us regard as a most serious and regrettable weakness in this part of the Bill; namely, the absence of even the slightest hint of a statutory identity for LINks. There is a complete lack of any descriptive reference to what a LINk might look like and practically no definition of a LINk”.
That was the noble Earl, Lord Howe, talking about the creation of LINks. Yet today he has brought forward amendments—admittedly he has delegated this to the noble Baroness, Lady Northover, who is acting as his mouthpiece on this occasion—that will do precisely what he complained that the previous Government did.
Of course he said much more than that. I will not burden the House by repeating all the remarks he made in October 2007, but if we substitute HealthWatch for LINks every time it appears, we will get the flavour. He went on to say:
“As the Bill stands there are no provisions for LINks to have any form of governance arrangements; it is left completely open as to how a LINk would be able to make decisions or authorise people to act on its behalf. This is a major issue because without some form of governance you cannot have accountability. If there are no people authorised to act on its behalf, a LINk cannot be accountable”.—[Official Report, 15/10/07; col. 567.]
He later said:
“The key issues around governance are really three: how decisions are to be made; how activities are to be undertaken; and, who is to do these things? Without those minimum requirements we would be left with a situation where someone who has joined a LINk, but who never attended any meetings or received any training or signed any code of conduct”,—[Official Report, 15/10/07; col. 568.]
could proceed in particular ways. So the lack of statutory identity was something that the noble Earl, Lord Howe, told this House was absolutely critical when we debated the creation of LINks. And he was absolutely right. I remember agreeing with him at the time and feeling that my Government had got it wrong. But this is the point. The Government have now brought forward amendments which undo all his fine words at that time and all his attempts to put this right, and that is because statutory status at the local level was what was going to give HealthWatch a cutting edge, an authority in terms of its relationships with other bodies.
The noble Earl also had a few words to say about the underlying argument that this should be delegated down. He said then, and we could say it to him now, that we were told that the Government did not want to be “prescriptive” and that it would be up to each LINk to set itself up in the way it wanted.
In June 2007, he quoted a telling Greek legend. Indeed, he may remember using this example:
“I think it was Proteus who was able to assume any shape or form that he liked. The reason why he did this was in order to avoid foretelling the future. For us debating this part of the Bill, it is almost impossible to foretell the future because neither the governance arrangements of LINks, nor their structures, nor their powers, nor even the precise scope of their activities, are set out here. In a real sense, as with Proteus, we do not know who or what we are dealing with”.
With these amendments before us today, the Government are substituting something else when we would have known what we were dealing with and where there were precise governance arrangements. But they are taking all that away and moving towards something that the noble Earl also, presciently, described in that debate, saying:
“As I understand it—the Minister may correct me—because LINks are not defined they are not classifiable as statutory bodies. We may know a LINk when we see it—although I am not completely sure about that—by virtue of the things that it does … The Bill refers to activities being ‘carried on’”.
I look at these amendments and, my goodness, Amendment 236C in the name of the noble Earl talks about,
“activities carried on for the benefits of the community in England”.
Incidentally, how a local organisation is supposed to act in the benefits of “the community in England” seems to be a very odd use of words. However, phrases such as “activities carried on” were precisely what he said then was the wrong way of going on.
The noble Earl went on to say in that June 2007 debate:
“In fact, in one way or another, there is quite a lot of carrying on in this part of the Bill. There may be a joke there somewhere but I shall refrain from trying to find it. But that nebulous form of drafting is as far as we get. It will be incumbent on us in Committee”—
we do not have the benefit of being in Committee today—to sort out this unsatisfactory regime. He continued:
“The main problem with the Bill is that because LINks”—
and you could say the same about HealthWatch now—
“have no identity or definition, they can be seen neither as bodies whose independence is guaranteed, nor as bodies which have the power to hold local health and social care commissions to account”.—[Official Report, 20/6/07; cols. 252-3.]
Those were the wise words of the noble Earl, Lord Howe, then, but he is the same noble Earl who is bringing forward amendments that create the same precisely the structure that he said was totally inappropriate then.
Let us look at what the Government are doing and I will be brief. Amendment 231B removes the statutory status. Amendment 231C removes all structure, form and governance from the Bill. Amendment 234A talks about “one set of arrangements”. It implies not just a single arrangement in any local authority area, but a set of arrangements, so it would not necessarily be one contractual arrangement: it would be a set of contractual arrangements. The word “arrangement” is in the plural.
Amendment 235C is the great catchall that tells us it is all going to be all right and that all these bodies are going to be the same in that there will be a licence to use a trademark. I am enormously reassured by that. Amendment 235D provides for subcontractors for the different functions. So what we are envisaging is that a local authority will divide up the functions of HealthWatch organisations and contract each of them to a separate organisation. Does that really make sense? Is that the strong patient voice that we were promised at local level?
In Amendments 238ZM and 238ZN there are specific references to contractors. This is essentially moving from a position where there will be a clear number of local statutory bodies delivering patient representation on behalf of their communities, with members from those communities running those organisations, because that is what the governance arrangements were before. This is essentially privatising that process, albeit by so-called social enterprises. This is privatising consumer representation.
How can contractors be representative? Yes, there is an amendment that says that these contractors will be broadly representative of the local community, but how can an enterprise itself be representative of the local community? I find this concept difficult to understand. Because we are not in Committee, we do not have the opportunity to have it explained to us fully and a chance to probe the Government.
The amendments that we talked about a few minutes ago envisaged that local healthwatch would be able to have local representation on the board of HealthWatch England. How will we have representatives from local healthwatch organisations—the arrangements that will be subcontracted for different functions to social enterprises— at the national level for HealthWatch England? Is this going to be board members of a social enterprise, charged with the effective running of that enterprise not the representation of the community? Will it be the staff? That comes back to the point about lay leadership that the noble Baroness, Lady Jolly, raised earlier.
Last night, I got an e-mail from an existing LINk member, with whom I have never previously communicated, saying:
“I’m much involved with my local LINk, which it can be argued, has already been ‘taken over’ by its Host in advance of the Privatisation of the Public’s voice when HealthWatch comes about. Lay ‘Volunteers’ have been demoted from being Members to Participants”—
there is the lay leadership of the noble Baroness, Lady Jolly—
“and our Management Committee has been redesignated as an ‘Advisory Group’”—
again, lay leadership—
“with few if any powers over anything. Expulsions have been initiated against those who don’t toe the new autocratic line—and the local authority just turns a blind eye despite appeals to the Council Leader, CEO and Portfolio holder. What hopes for a voice for the public/patient when Local Healthwatch is in place?”.
I believe that the Minister received a letter from another member of a local LINk who talks about his dedicated service. He lists at some length all the different bodies that he has sat on representing the public, then says that,
“My most precious resource—the time I have given—has, at a stroke, been set to nought”.
There is no local lay leadership in these arrangements. That is why these amendments are so sad.
We have to ask why the Government are doing this. Is it because some unit in the Cabinet Office has suddenly discovered this bit of the Health and Social Care Bill and said, “Oh, they have missed something out about the opportunity to introduce competition so let us put it in this bit of the Bill”? Or perhaps it is because Government Ministers have suddenly realised that the Bill is rather unpopular. There are some difficulties with it, the public’s perceptions of it are increasingly negative, so having proper patient representation would now be extremely dangerous.
Lord Trefgarne
My Lords, the noble Lord has been going on for a considerable period in connection with the government amendment. He now speaks about the Bill in general. That is really a Second Reading issue. This is Report. Could he indicate how much longer he intends to be?
Lord Harris of Haringey
Actually, I had finished my last sentence when the noble Lord stood up. I raised that because the question arises as to why the Government have introduced these amendments. Given the attitude to the whole Bill, one has to question their motivations. I hope that when the noble Baroness eventually—I assume—gives us her usual, extremely full exposition, she will explain precisely the motivation for this change, so as to indicate that the fears being expressed are totally misplaced.
Lord Harris of Haringey
I was trying to establish whether it would be possible, under these amendments, to segment the various functions of local healthwatch and contract them separately. I think the noble Baroness has just confirmed that. Am I right?
Baroness Northover
The key fact is that there is one local healthwatch for any local authority area. If it decides that it wants to subcontract something to best achieve what it needs, that is up to that local healthwatch. The noble Lord might want to bear in mind the statutory functions of local healthwatch and its responsibilities as eyes and ears. If it was not working, I am sure that noble Lords such as he would flag that up. Local healthwatch would then have to justify what it was doing and might need to move away from it.
I realise that time is pressing and it is a Thursday afternoon. I have listened to the concerns expressed about the need for local healthwatch to have strong lay involvement. I completely agree. This will be vital to the success of local healthwatch. Therefore, I confirm to the House today that we will use the power of the Secretary of State to specify criteria, which local healthwatch must satisfy, to include strong involvement by volunteers and lay members, including in its governance and leadership. This will have the effect that a local authority cannot award a local healthwatch contract to a social enterprise unless this condition is satisfied. I hope that that provides reassurance to noble Lords. My noble friend Lady Jolly also flagged this up.
The noble Lord, Lord Low, the noble Baroness, Lady Wheeler, and others raised the issue of funding for local healthwatch. It is important that local authorities can manage local priorities, since they are best placed to respond to their local communities. Therefore, local healthwatch will remain within local authority funding mechanisms, as I mentioned earlier. This view was supported by the NHS Future Forum, which made clear in its Patient Involvement and Public Accountability report that it did,
“not agree that budgets for local Healthwatch should be ring fenced”.
However, to reassure noble Lords, I point out that statutory functions must be delivered. This helps to protect what local healthwatch is there to do.
I believe that there is consensus over our ambition for local healthwatch. We do not disagree about what we want it to do for people or to accomplish in order to raise the quality of care. I hope that I have reassured noble Lords that it is right for local healthwatch to be delivered at a local level by organisations that are accountable locally. To embed healthwatch in localism will not only enable the organisational form of local healthwatch to best meet the needs of the local population but better enable local healthwatch to play an effective role in feeding back people’s views and promoting their involvement in the scrutiny and provision of local care services. I refer again to the positive reaction of several different local authorities and councillors who are very pleased that they will now be involved in many elements of the healthcare services, as they are in public health.
Lord Harris of Haringey
Could the noble Baroness tell us how many LINks have been in touch with the department to say that they welcome these changes?
Baroness Northover
Like the noble Lord, I recognise that the organisations which are in place when change occurs are always concerned. LINks have rightly expressed concern about whether what they know works well in what they do will be taken forward. They are very open about the challenges that they faced and some of the areas in which they have not done as well as intended. I pay tribute to the then Government for trying to make the system work when it was set up. It was a reaction to what had been done before and a looser model. Everybody in the system wanted that to work as a model. However, I think that the noble Lord has admitted that it has not worked universally. It is therefore understandable that the relevant organisations expressed concerns. I hope that they will become involved in the new system and that what they have contributed—the volunteers among them have made an effective contribution in many areas—will feed into local healthwatch. With that, I hope that noble Lords will accept the Government’s amendments.
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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.
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Baroness Cumberlege
My Lords, this is a very simple and non-controversial amendment. Under Clause 51, the Secretary of State has a duty to keep under review the effectiveness of key bodies in the NHS. This is a crucial part of the Secretary of State’s responsibilities in ensuring that he or she can exercise ministerial accountability for the health service. As this is a new body, through the Secretary of State, we will want to ensure that it is to carry out its functions effectively. Healthwatch England has to undertake certain tasks—for example, making annual reports to be laid before Parliament. Other reports will be at its discretion. These activities will be easy to monitor, but it will be much more difficult to assess the quality and the appropriateness of the advice and information or other assistance it chooses to give.
In her letter to noble Lords on 21 December, my noble friend Lady Northover told us that she did not expect Healthwatch England to give the CQC, the NHS Commissioning Board or other bodies an easy ride. She went on to state:
“We fully expect HealthWatch England to raise what at times may be awkward, difficult questions with respect to health … and to be able to do this publicly”.
It is the Government's intention to create not a patsy organisation but one that will be a champion of health and, on occasions, a difficult and awkward companion, focused on improving the quality of care in both health and social services. If it does not, it will not fully represent the voice of patients and service users.
The Care Quality Commission is one body listed in the clause. As the Bill stands, HealthWatch England will be a committee of the CQC. However, as we have discussed in many debates on the Bill—and I believe that more are to come when we come to debate the amendment of the noble Lord, Lord Patel—there will be a need for it to remain operationally independent of the Care Quality Commission. Therefore, I suggest that a review of the Care Quality Commission may not be an appropriate way of fully scrutinising the role of HealthWatch England, and that such scrutiny should be included in its own right in the clause.
That is why I tabled an amendment to add HealthWatch England to the list of bodies that the Secretary of State must keep under review. It would make it clear that HealthWatch England is independently accountable for how effectively it goes about its work, and cannot be overshadowed by—or hide behind—the review of the role of the CQC. I hope that my noble friend will look kindly on this simple and not very earth-shattering amendment. I beg to move.
Lord Harris of Haringey
My Lords, I seek clarification on the amendment. I am sure that the noble Baroness, Lady Cumberlege, means well, but I note that the formulation she used was,
“and its Healthwatch England committee”.
I am sure that it would have been possible to draft the amendment so that it referred simply to HealthWatch England, which would have avoided raising the question that we will come to at a later stage of whether HealthWatch England should be part of the CQC or any other august structure of the NHS. It is an important technical point; I hope that the amendment does not pre-empt any later discussions.
The motivation that the noble Baroness ascribed to the amendment—to demonstrate that HealthWatch England is independently accountable—is extremely important. It is entirely proper that HealthWatch England should be seen to be accountable to the Secretary of State. Certainly it should not exercise that accountability through another body, particularly one which it might on occasions wish to criticise, or about which it might want to raise important concerns or say that it has not done what it might have. Therefore, to demonstrate that HealthWatch England is independently accountable is an important objective. My concern is that the amendment may solidify something that at the moment comes later in the Bill, but which I trust will not remain there by the time we have finished Report: namely, the requirement that HealthWatch England is simply a committee of the CQC.
There is also a question about how accountability will work with respect to the Secretary of State. I suspect that the quotation from the noble Baroness, Lady Northover, to which the noble Baroness, Lady Cumberlege, so approvingly referred, about how difficult and painful would be some of the discussions with HealthWatch England, will sometimes apply also to the Secretary of State. When I was for a number of years director of the Association of Community Health Councils, I collected personal denunciations that I had received from successive Secretaries of State. They came from both parties: indeed, the most vehement denunciation was from a Secretary of State from my own party, who perhaps expected more from me than the criticisms that I had raised.
The point is that this will not be an easy relationship. Even the accountability that is envisaged by the reference to “keeping under review” will, I suspect, lead to tensions. However, I do not believe that one can have a body of this nature that is not accountable in some way to the Secretary of State. I simply look forward to the maturity of future Secretaries of State, of whatever party, who will recognise that a body such as HealthWatch England, and local healthwatch organisations, are intended sometimes to be irritants.
Baroness Wheeler
My Lords, I would have liked to debate this amendment in the light of next week’s debate on the status, powers and functions of HealthWatch England under Clause 180, when we will fully air once again the serious and continuing concerns across the House about the proposed relationship between HealthWatch England and the CQC, and hear from the Minister how the Government intend to address these concerns as they flesh out their proposals for healthwatch, and as the CQC comes under closer scrutiny. However, we support this amendment requiring the Secretary of State to include HealthWatch England in the organisations specified in the Bill that he or she must keep under review. Obviously we do this in the context of the separate independence of HealthWatch and not as a committee of the CQC.
However, it is also important to make it clear that we do not think that the measure in itself, or combined with other government proposals, for example, on the HealthWatch board membership, will be anywhere near enough to provide the independence that HealthWatch England needs if it is to be the robust and trusted patients’ watchdog that is needed—and I emphasise trusted by the public.
The Minister must appreciate that the concerns across the House over the CQC’s relationship are not addressed by referring to the close synergies between the two organisations or to the powers and influence of the CQC rubbing off on HealthWatch. In this context it is difficult not to dwell on the recent developments in the commission and the Department of Health performance and capability review of the commission. I say this as a genuine supporter of the CQC and its work—for example, last year’s excellent special review of stroke services, and the one of residential care—but the department’s major findings that the CQC needs to be more strategic, that accountabilities within the CQC are unclear, as well as the strong concern over the blurring of boundaries between the CQC board and executive team, do not augur well for the future relationship between the CQC and HealthWatch.
Of course, we will come to these matters in detail when we have the full debate on HealthWatch and local healthwatch organisations. I hope that at that stage the Minister will address these ongoing concerns, particularly about the clash of cultures between HealthWatch and the CQC, about public faith and trust in HealthWatch if it is to be formally linked to the CQC, and the lack of confidence in the new arrangements on the part of the overwhelming number of LINks organisations and NALM. As the letter from NALM in the Guardian earlier this week underlined:
“Healthwatch will only be considered the true voice of the public, if it is seen to be independent of those it monitors”.
I look forward to next week’s debate.
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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.
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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, 9 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, 9 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.
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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.
