Health and Social Care Bill

Debate between Lord Harris of Haringey and Viscount Tenby

Thursday 15th December 2011 Lords Chamber

[Lord Harris of Haringey]

My Lords, I will speak to the seven amendments in my name in this group, Amendments 319, 321, 322, 323, 325, 326 and 327. The noble Lord, Lord Rix, described this group as something of a Christmas stocking; I have to say that even my seven amendments do not have a common theme. They are on a variety of topics, ranging from some that simply correct what I assume are drafting errors in the Bill to others that raise rather more fundamental issues along the lines of the amendment of the noble Baroness, Lady Cumberlege.

Amendment 327 deals with what is, I think, a drafting error. Unless I have misinterpreted the interlaying Acts that are being subsequently amended, the Bill leaves a reference to primary care trusts in the base Act. Presumably the assumption is that the commissioning groups will take on those functions and should be expected to respond to the local issues raised by local healthwatch organisations. I am sure that is simply a drafting arrangement.

Amendment 323 would slightly tighten the wording on how independent advocacy is organised and says that the provision should be appropriate to the needs of those for whom that provision is being made available. I am sure that the Government will have no problem with that. It makes sure that advocacy arrangements recognise the very different nature of the problems and the client groups who will raise them.

Amendment 321 puts into the Bill a requirement that arrangements be made to enable members of local healthwatch organisations to have indemnity cover against the risk that a claim may arise from their duties. I am doing the Government a favour by highlighting this at this stage. I certainly recall, from the time of my involvement in community health councils, and in another sector prior to that—the work of electricity consultative groups for a completely different government department—that the same issue arose. I refer to the indemnity or protection that is there for people who are carrying out public duties if they are involved in an accident and a claim is made against them for it. What we will have—I am sure it will be in the Minister’s brief—is some vague statement about Treasury indemnity.

The problem for individuals in this position is that it is not clear what such indemnity will cover and how they will be able to access it if, for example, they are involved in an accident or an incident during their work as a member of a local healthwatch organisation. I would advise—I am trying, as ever, to be helpful to the Government—that this should be sorted out now rather than waiting to get into a tangle about it. I remember spending many happy years, when I was Director of the Association of Community Health Councils, trying to get a definition that would satisfy local CHC members that they were protected. Otherwise, the answer goes back that you should claim on your own insurance policies; yet those insurance policies often exclude people who are carrying out work—even voluntary work—or similar duties. Acting on behalf of a local healthwatch organisation will almost certainly be excluded by the individual members’ insurance policies. My experience on CHCs and in other organisations is that this is a constant pressure and a constant concern. There should be something explicit in the Bill to provide a degree of reassurance to people who are undertaking these activities on behalf of their communities.

Amendment 319 relates to the membership of local healthwatch organisations and is put forward today as a probing amendment. I hope the noble Baroness will give us details of how it is envisaged that local healthwatch members will emerge in that role. The question of how legitimate local healthwatch organisations will be—how representative they will be—depends critically on the precise arrangements by which people end up as members of the organisations. The previous Government’s proposals in respect of LINks, which I never fully understood, left it in a state of limbo and people were, essentially, self-appointed as members of LINks. There must be a degree of transparency and clarity in the process by which people end up as members of local healthwatch organisations. The proposal here is that there should be some system of election. Often, although this was not exclusively the case, the most effective members of local community health councils were those who were elected by local voluntary organisations in the areas concerned. They were often the people with the most detailed, personal knowledge of the services they were monitoring. They often had a constituency they could draw back into for information and support for the work they were doing. Above all, they had the added legitimacy of having been chosen for that role by other local voluntary organisations.

I am not suggesting that as a model that should necessarily be adopted. What I am saying is that the clarity it gave those individuals was very helpful. Other members were appointed directly by the local councils for the area. Again, that gave clarity about who they were representing and what their legitimacy was. Some were appointed by regional health authorities, though this changed every time the health service was reorganised, which was every two or three years. That is something that does not change, even now, and I am sure we will be back here in two or three years unpicking whatever finally emerges from the sausage machine of legislation that we are processing now.

It is going to be critical to have a clear process by which local healthwatch organisation members are appointed. It is also important that they have legitimacy. Otherwise the organisations to which they relate will say, “You are not representative. You are self-selecting” or “You do not represent the communities you purport to represent”. Clarity about the appointments process is important. Some system of election would be valuable, but it would be helpful if the noble Baroness could tell us today exactly what is envisaged. We certainly need to know that before we proceed further with the Bill.

The orange in the Christmas stocking is the relationship between the local authorities and local healthwatch organisations. I have tabled Amendment 322, which refers to local healthwatch organisations not being subservient to the body that is responsible for their establishment. That goes to the core of the issues raised by the noble Baroness, Lady Cumberlege, about the extent to which local healthwatch organisations can be effectively under the control of local authorities.

I know that we will be assured that local healthwatch organisations will be independent and have all this additional legitimacy because they will know that local authorities have provided them with support, and that that is why the proposed structure is being adopted. However, that model will not necessarily work. I speak as someone who was leader of a local authority for 12 years and I know how decisions are made. In particular, I know how decisions are made at times of financial stringency. Unless the resources for these local organisations are guaranteed in some way, they will be vulnerable—not necessarily because they are saying unhelpful things but simply because the local healthwatch organisation will not be seen as a core activity of the local authority at a time of stringent finances and resources. That is why this issue needs to be addressed head on.

There is a problem of potential conflict of interest. Local authorities are responsible for providing certain types of social care. They are responsible for commissioning and providing that care. They will have a responsibility with others through the local health and well-being boards. There is a danger that local healthwatch organisations will be seen as being conflicted because they are subordinate to the local authorities in their area.

There are two simple ways for the Government to solve this problem, both of which I know they are not currently minded to consider. One model is a separate structure that provides the funding and resourcing for local healthwatch organisations; and that would flow back to HealthWatch England. The other model is to ring-fence the resources that are passed through to local authorities for this purpose. I know that Her Majesty’s Treasury is always against ring-fencing and, indeed, the Local Government Association, of which I have the honour to be a vice-president, always argues against the ring-fencing of resources because it is always better for local authorities to make their own determinations. However, this is not about determining local needs. This is about providing something for the local community on behalf of another government department.

The Department of Health has, no doubt, fought a valiant battle with the Treasury to secure the resources for HealthWatch and the Treasury is passing that money through the Department for Communities and Local Government down to local authorities. There is no ring-fencing. The reality is that local authorities will not be able to say to the Treasury at the next comprehensive spending round how those resources have been used. They will not even be able to demonstrate that those resources have been used for the purposes for which they were given, and they will lose the battle for the continuation of that funding. If there is a ring-fenced structure, you will ensure that the resources are there for local healthwatch organisations. There may then be a question about how effectively those local organisations operate, but at least the resources will be clear and the local authority will be accountable for how it has used that money explicitly, rather than for whether or not it has used the money for that or for other purposes.

Unless that issue is addressed, there will be not only perceptions of conflicts of interest but the problem that local healthwatch organisations may, in time, be starved of resources. This is not an idle concern. We have all received the correspondence from LINks, talking about the budget cuts that they have faced in the current financial year. We can expect that to continue. If the Government are serious about having vibrant and effective local healthwatch organisations, they have also to solve the resourcing question and the perceived conflict of interest between the local authority and local healthwatch organisations.

We heard much in our earlier debates about the synergies and wonderful effects that talking in corridors would have within the CQC. I thought at one point that the noble Baroness was going to talk about talking in the toilets about decisions and how you infuse ideas from one organisation to another if they are co-located. That will not be the case with local authorities and local healthwatch. You will not get that same connection. The mere fact of being in the same organisation will not matter because they will not be physically located with the people who are making the decisions about social care; they will probably be in an outward-facing office, meeting the public. It will be an outpost of the local authority. There will not be that informal interchange which we were told would be so valuable if Healthwatch England was placed within CQC. The issue is how you make these organisations effective. That will require independent resources and it will require that the question of conflict of interest is dealt with.

[Viscount Tenby]

My Lords, very briefly, I support the amendment in the name of my noble friend Lord Rix. He has clearly outlined the rationale behind the amendment; accordingly, I do not intend to keep the House long—sighs of relief all round, I should think—although, like my noble friend, I should declare an interest. Until last Wednesday, I was chairman of a residential home for those with learning disabilities.

I think we are aware that the complaints process against the NHS can be extremely complex and challenging for those involved. That nearly always coincides with a period of some personal distress. Indeed, the very inclusion of Clause 182 indicates that the Government, to their great credit, are aware of that factor. However, there is a danger that the provision is not sufficiently explicit. My noble friend has highlighted the potential for advocacy support to stop before a conclusion has been reached. I share his concern, and add that the amendment safeguards against the freedom given to a local authority to define what it deems to be “appropriate arrangements” for the provision of independent advocacy services.

The critical point is that, at a time when local authority budgets are particularly stretched, to expect them to provide additional resources for advocacy support could result in the needs of people being sacrificed in favour of councils balancing their books. We all understand that that goes on. In other words, the level of advocacy support offered might be dictated by available funds and, accordingly, “appropriate arrangements” might be taken as being what is appropriate for the council to offer.

That detracts from what I assume is the object of making advocacy support available: to benefit the individual. The ability for people—often in mourning and in some distress—to seek justice should surely seek precedence over what is convenient to the local authority. By explicitly removing any upper limit on the length and type of advocacy, the amendment sends a strong message to councils that the individual must be the priority in this situation. It removes the excuse that a council might have not to provide the adequate level of advocacy support required by those who need it; and instead gives the individual the power to challenge any decision they feel is unjust on the basis that their advocacy needs are greater than the support proposed.