National Health Service (Clinical Commissioning Groups) Regulations 2012

Debate between Lord Harris of Haringey and Baroness Cumberlege

Tuesday 16th October 2012 Lords Chamber

[Lord Harris of Haringey]

My Lords, I declare an interest as a vice-president of the Local Government Association and as an adviser to KPMG, which I understand also advises on health matters, although I do not advise it on those matters.

In this debate we are perhaps being asked to suspend our disbelief that the governance arrangements for the clinical commissioning groups make sense. We are being asked to suspend our belief on the question of whether pigs may fly. However, the extraordinary statement from the noble Baroness, Lady Cumberlege, that somehow locally elected councillors are incapable of making decisions which affect the livelihoods of the populations that elect them is disgraceful.

[Baroness Cumberlege]

My Lords, I object to that. I said that they have a role on health and well-being boards, which is where the strategy is set out, and that is where the NHS, local authorities, Healthwatch and other organisations come together.

[Lord Harris of Haringey]

I understand that. My point is that the noble Baroness does not seem to understand that today, all over the country, locally elected councillors are making decisions about closures because they are having to balance the reductions in budgets that this Government are forcing on them and on their local communities. They are making those decisions on behalf of the people whom they represent. Why is it being said that somehow they have a conflict of interest which means that they are incapable of making decisions along with colleagues about health matters?

There are issues of principle here and issues of sheer practicality. The issue of principle concerns conflict of interest. The noble Baroness, Lady Cumberlege, has talked about conflict of interest. Perhaps we will also hear about that from the noble Earl in a minute. However, the biggest conflict of interest will be the fact that the primary care practitioners are key elements of the boards of CCGs’ governing bodies. They are not being excluded; it is just everyone else who is being excluded. Let us be clear about who is being excluded. It is not simply elected members but any employee not just of the local authority in the CCG’s area but of any local authority in the country. Therefore, any person who, under paragraph (4) of Regulation 12, the CCG feels has knowledge about the area and who does not have the misfortune of being an elected councillor but does have the misfortune of being a part-time employee of a neighbouring local authority is exempt.

When the Minister replies, I should like him to explain to us why every single employee of every single local authority in the country is being excluded from participation in CCGs. While he is about it and we are talking about conflicts of interest, we have already heard the point made by my noble friend Lord Hunt of Kings Heath that any person who has been public-spirited enough to decide to become—and frankly it is a fairly meaningless undertaking—a member of a local foundation trust or a local NHS trust is also excluded from membership of a CCG. Again, what is the point of that? It is being said that any person who is public-spirited enough already to have had some engagement with the local NHS is not allowed to sit on the board of the CCG.

This is frankly fatuous. You have ended up with a situation in which you have enshrined one set of conflicts of interest and excluded from the membership of the CCG all sorts of other people who could make a valuable and useful contribution. I am afraid that for the first time in our considerations I agree with 99% of what the noble Baroness, Lady Jolly, said. The 1% with which I disagreed was that we should allow this instrument to go through and review it again in two years’ time. It is so flawed and riddled with poorly thought-out considerations of what would work at local level, and so dismissive of the best judgment of local people to decide who is best to be part of the board, that frankly we should endorse my noble friend’s Motion. I urge the Minister to withdraw the regulations and bring forward revised, more sensible regulations.

Health and Social Care Bill

Debate between Lord Harris of Haringey and Baroness Cumberlege

Wednesday 29th February 2012 Lords Chamber

[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.

Health and Social Care Bill

Debate between Lord Harris of Haringey and Baroness Cumberlege

Wednesday 29th February 2012 Lords Chamber

[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.

Health and Social Care Bill

Debate between Lord Harris of Haringey and Baroness Cumberlege

Tuesday 22nd November 2011 Lords Chamber

[Baroness Cumberlege]

My Lords, I have listened to the debate, and some powerful arguments have been put forward for an independent HealthWatch England. However, I am not sure that that is the right answer. The noble Lord, Lord Harris, said that he feels that the Bill is setting up the new arrangements, and of course he is right. However, when one is setting up new arrangements, it is a good idea to look at what has happened in the past. Looking back to the confederation of CHCs, one sees that it never actually made an impact. I think that that was probably because the initiative for setting up that body came from the CHCs themselves, and so the confederation had no formal legitimacy, no clout and few resources.

[Lord Harris of Haringey]

I would not disagree with the point about the resources, but the initiative to set up the association—not a confederation—came from the noble Lord, Lord Owen, who was Minister of Health. He announced, in what he assumed would be a very positive fashion, that he wanted to see a national Association of Community Health Councils. However, as he had not spoken to community health councils first, they felt considerable dismay about the setting-up of a national association at the behest of a Minister. The resolution to support the creation of the association was carried—I cannot remember the precise figures—by something like only 107 to 93. I am afraid that the noble Baroness’s argument is flawed.

[Baroness Cumberlege]

My Lords, I am very grateful to the noble Lord, Lord Harris, for his history lesson. Perhaps I should not go on to the Commission for Patient and Public Involvement in Health. Perhaps he remembers that organisation, which never quite worked. I think that it did its best, but it failed to influence the Labour Government of the time. Perhaps it was a bit too strident. Maybe it was not canny enough. Maybe it did not build the relationships that are so critical when one is negotiating a change, especially with a big beast like a Government. Of course, the Labour Government closed that one down very hurriedly.

The proposal in the Bill is that HealthWatch England should be a committee of the CQC, as has already been said. There are advantages in that, provided that there are some safeguards in the way that it works. My three amendments seek to achieve those safeguards.

There are advantages in being at the top table, knowing what is going on, and building the necessary relationships to influence policy and practice. The CQC will, of course, have the resources to collect and analyse data on a national scale. Provided that it shares that data generously—and it must do so—it will enable HealthWatch England not to have to build its own infrastructure in order to operate effectively. That will also enable HealthWatch England to have a strategic role in shaping the new NHS. It is very important that it should not just be a sounding board for local issues, but should have a strategic vision as well. The CQC will of course learn of the issues that need addressing through the real experiences of patients, through HealthWatch England, which will be at the table.

We have to understand what both organisations bring to the party. The CQC is the regulator. Its duty is governed by the statutory standards for healthcare and it has the indicators to measure them, as set out in the Health and Social Care Act 2008. HealthWatch England brings something different: the priorities, the experiences and the views of patients and the public, through local healthwatch organisations. Played right, this combination could be very powerful. It could deliver the accountability that reflects both the priorities of government, derived from the democratic process, which I think of as the theory, and the actual experience of those who depend on health and social services during what may be the most vulnerable time in their lives, which is the reality.

If this combined perspective, to be embedded in regulation, is to work well, it is essential that HealthWatch cannot be dictated to or steered by the CQC. It must speak with a clear, strong, independent voice. This requires two things: first, the appropriate balance of membership within HealthWatch England; and, secondly, the appropriate status for its advice within the functions of the CQC. The status of HealthWatch England as a committee of the CQC may be quite pleasing in its value for money and its legislative simplicity, but it does not guarantee that clear, strong and independent voice. This is the voice of the victims who have been so badly let down by the NHS. It is the voice that has been chronicled so meticulously in the first Francis report on the mid-Staffordshire scandal, the Bristol inquiry, and other reports.

Therefore, my first amendment, Amendment 307A, ensures that the majority of the members of HealthWatch England are not also members of the CQC. This avoids the advice of HealthWatch England being biased through corporate responsibility with the CQC. My second amendment, Amendment 308A, ensures that the majority of the membership of HealthWatch England is elected from the members of local healthwatch organisations. This permits the introduction through regulation of provisions to ensure that elections cover local healthwatch organisations from across the country, and that representatives are elected through due process for an appropriate term and with appropriate accountability. We know that this works very well. We have seen regional elections to national bodies in the voluntary sector and even outside it, from student unions, to national professional associations, to the National Association of Citizens Advice Bureaux. The National Association of LINks Members recently conducted elections from its regions which were overseen externally and the process proved to be satisfactory.

--- Later in debate ---

[Baroness Cumberlege]

I will think about that. Having dealt with the Treasury in the past, I know how difficult it is to get anything ring-fenced. However, the noble Baroness’s suggestion is very interesting and I will take it on board.

We have examples of other consumer groups being very effective within their parent organisation. I think in particular of NICE, which has done a lot to get views on its work from the general public. The Council for Healthcare Regulatory Excellence has also done that.

[Lord Harris of Haringey]

I am sorry to intervene again on the noble Baroness, Lady Cumberlege. It is probably because we know each other too well that I feel able to interrupt at regular intervals. The examples she has just cited are examples of bodies that are there specifically to advise the organisation concerned. The consumer panels that NICE set up are about advising NICE about particular issues in terms of clinical effectiveness and what patients in that area are concerned about. They are not representing patients more generally and they are certainly not representing patients in terms of the statutory obligations of NICE and where there might be a disagreement about what NICE is doing. They are there to inform. That is the distinction.

Health and Social Care Bill

Debate between Lord Harris of Haringey and Baroness Cumberlege

Monday 14th November 2011 Lords Chamber

[Baroness Cumberlege]

My Lords, I am very grateful for that intervention. I have no experience of gymnasts and, sadly, I cannot remember that particular time. However, I have chaired very big boards. I have chaired a board of 26 and it was a nightmare. It was a nightmare because we are such a lovely nation and we always try to get consensus. Trying to do that takes time and tough and speedy decisions are not taken. In the end, the board loses the grip necessary to manage the service, the organisation or whatever it is in charge of. Therefore, I strongly support my noble friend on the issue of having 11 members on the board. When one has a very large board, a clique forms; one gets a few people who in the end run the board. They run it outside board meetings. They make the decisions before they come to the board. One gets a body of people who are responsible on the board but are actually disenfranchised—they are accountable but disenfranchised—and I think that that makes the board totally dysfunctional. Therefore, we should resist the temptation to have representatives on the board. We need a chairman with considerable leadership skills; a chief executive of proven management expertise; executives who know the business; and non-executives who bring a breadth of experience.

I have some sympathy with the arguments that have been put on the issue of the Director of Public Health but I wish to reserve my position on that, as I do on the suggestion put forward by my noble friend Lady Jolly on HealthWatch England, because it could be that the board, or whoever, might decide that there is a non-executive who has wider experience and possibly could be more effective on the board than the chairman of HealthWatch England. This needs discretion and we should leave it in the hands of the board and the Bill and not try to make it representative.

In an earlier debate the noble Lord, Lord Davies of Stamford, who is not in his place today, referred to the “fatal tendency” of the NHS to be bureaucratic and exercise producer catch-up. He said that:

“the tendency of any organisation that is in a monopolistic position [is] to be run for the convenience and in the interests of those who are providing the service, whether doctors, nurses, managers or whatever”.—[Official Report, 9/11/11; col. 251.].

We have to be very careful that we do not fall into that situation and we must try to address that “fatal tendency”, as he described it.

I wish to make one comment on the seductive amendment on limiting the numbers to be employed to 500. That again is a mistake. If we set a number, it is very likely that that number will be reached where possibly only 100 are required. It needs a great deal of scrutiny by the Secretary of State and others, through the mandate, to see what the board is doing and whether it is effective and keeping to its budget, which I am sure will be closely watched. I would like to keep the number on the board to 11.

[Lord Harris of Haringey]

My Lords, it is always a pleasure to follow the noble Baroness, Lady Cumberlege. She and I have sat opposite each other at meetings for more years than I care to remember.

However, her belief that the chair of the NHS Commissioning Board will only be able to manage a board of 11 is slightly misplaced. We already know that the person who holds this office will be able to walk on water, with due deference to the most reverend Primate. We know that this individual will have the most extraordinary qualities. Indeed, the Health Select Committee has demonstrated that by the overwhelming vote that it gave him on his appointment. Therefore, any person of such calibre who is able to manage a quango with such an enormous budget must surely be able to manage a board of more than 11 people. That goes without saying.

It is probably unhelpful for the Bill to specify precisely the number of people who will be appointed because circumstances will change. At different times it may be appropriate to have particular people or specialisms involved, but that will change over time. To lay down the numbers too specifically is probably a mistake. Indeed, I am not sure that 11 is a sensible number for the effectiveness of boards. It is too large for the most efficient and effective of boards but it is not quite large enough to bring together all the strands of opinion and expertise that you might wish to bring.

My main reason for intervening was not to pick up on that point but to question a couple of the amendments, in particular Amendment 52C in the name of the noble Baroness, Lady Jolly. The amendment refers to the board,

“including one member who is also the Chair of Healthwatch England”.

That is a misguided amendment. It is very important that the viewpoint of the patient is heard clearly by the NHS Commissioning Board, but it would be wrong to bind HealthWatch England into the collective decisions that will be taken by the NHS Commissioning Board. Had the amendment said something along the lines of, “The chair of HealthWatch England will be able to attend all meetings of the NHS Commissioning Board and to contribute to them fully” rather than talking about membership, it would have been much better.

There is already a concern that HealthWatch England will not be seen as a properly independent organisation, partly because in the Bill it is framed as a committee of the CQC and also because the local healthwatch organisations will be wholly owned subsidiaries of local councils around the country and the money for them will not even be ring-fenced. Under those circumstances, there is a real problem about the reality of the independence of HealthWatch England. Further, to put the chair of that body in the position of perhaps having collective responsibilities for NHS Commissioning Board decisions is potentially a serious mistake. I would like to see a position where the board has the chair of HealthWatch England as an adviser. His advice may or may not be accepted, but it will be on the record what advice has been given.

I hesitate to oppose an amendment moved by my noble friend Lord Hunt of Kings Heath but the same applies to the Chief Medical Officer. He should be there to advise the board—and that advice should be recorded—rather than being a member of the board and therefore being part of that collective responsibility. In framing the structure of the NHS Commissioning Board, there needs to be clarity of thought. There are a number of areas of expertise and interests that ought to be reflected in board membership—those individuals should bring their expertise to the table—but they cannot be there as representatives of those particular interests because they will have to take collective responsibility for the decisions of the board. However, it is also important that you have explicitly there a number of people to give advice. That should certainly include the chair of HealthWatch England and the Chief Medical Officer.

Health and Social Care Bill

Debate between Lord Harris of Haringey and Baroness Cumberlege

Tuesday 25th October 2011 Lords Chamber

[Baroness Cumberlege]

My Lords, this is the first time that I have entered this Committee debate, so I declare an interest as the executive director of Cumberlege Connections, which is a training company.

I am very grateful to the noble Lord, Lord Owen, for mentioning micromanagement, because a lot of our debate stretches beyond just the accountability of the Secretary of State to the organisations that are going to be set up that will have devolved powers. I can understand some of the concern felt about financial probity and the money that is going to the National Health Service, £80 billion of which will go to the NHS Commissioning Board. I shall try to provide a little comfort to the noble Baroness, Lady Williams, and the noble Lord, Lord Harris, who seemed to imply that this money was going to be shelled out by the Secretary of State and he was then going to disappear, leaving no accountability. However, paragraph 14(1) of Schedule 1 states:

“The Secretary of State may require the Board to provide the Secretary of State with such information as the Secretary of State considers it necessary to have for the purposes of the functions of the Secretary of State in relation to the health service”.

Paragraph 14(2) states:

“The information must be provided in such form, and at such time or within such period, as the Secretary of State may require”.

There is clearly an opportunity here for intervention and for the Secretary of State to make sure that probity is being exercised.

[Lord Harris of Haringey]

But surely that simply states that there shall be a requirement to provide information. It does not then give the Secretary of State a power to intervene. All it means is that one has an informed Secretary of State, which is tremendously helpful, but not a Secretary of State who is able to say, “Well, this is clearly not in the public interest in terms of the way that these moneys have been disbursed”.

[Baroness Cumberlege]

That is true up to a point, but can you imagine, when the Secretary of State receives that information, that he will do nothing about it? That would be extremely unlikely.

The other thing I would like to say is about the comments of the noble Lord, Lord Hennessy, on ambiguity and clarity. It seems quite strange to put a word into this Bill that is archaic and no longer used. It no longer serves a purpose, in that what is being done at the moment does not relate to the Secretary of State providing anything. If we are going to be really clear about legislation, surely we want to make sure that the words used are relevant to today. Including the word provide, which is no longer being used—the Secretary of State has powers to provide, but he does not actually provide services—seems a pretty irrelevant and an archaic way of producing legislation. I very strongly support the noble and learned Lord, Lord Mackay of Clashfern.