Health and Social Care Bill

Lord Hunt of Kings Heath Excerpts

Tuesday 22nd November 2011 Lords Chamber

[Lord Warner]

My Lords, this is probably not the best time of night to be concentrating on this set of amendments, because it brings us to the difficult and controversial issue of service reconfigurations. Let me start with why I think that we need to move upstream from the full-scale failure regimes which are provided for in this Bill, and with why I do not consider that one can rely totally on local commissioners and elected Health Secretaries to undertake the scale of service reconfiguration that the NHS requires, or as quickly as it requires. In making that statement I start from a position that the best predictor of future behaviour is past behaviour. In the field of service reconfigurations past behaviour has not been a speedy or easy process to start, let alone finish.

I do not want to spend long on why it is urgent, but the essence of this is the Nicholson challenge, which is £20 billion of productive improvements in the NHS in the four years to 2015-16. As the Health Select Committee has pointed out, no health system in the developed world has ever delivered this level of productivity. To say that it is a big ask is a masterpiece of understatement. The NHS’s track record on productivity improvement is, putting it at its best, modest, so we are dealing with a difficult set of issues, on top of which there are constant pressures from demography, advances in science and rising public expectations in the UK healthcare system and, indeed, in virtually every advanced healthcare system. That is what confronts the NHS.

It is crystal clear that the public and politicians are beginning to recognise more openly that the historic patterns of service provision built around district general hospitals do not meet current or future healthcare needs. They certainly have a capacity to gobble up resources without necessarily delivering the type of services that many patients of the NHS need and which could be delivered more cost-effectively but probably not using the present pattern of hospital configuration. What that means is that we are facing a situation where in many parts of the country we have to change those hospital services very rapidly indeed, and we have to make some painful decisions on those service configurations, which can often mean closing some services, doing some services in a different place, redeploying and retraining staff and, in some cases, in all probability making some staff redundant. That is why this is contentious territory and why it has proven difficult to do. We are now moving towards a financial situation where we cannot put off the job of reconfiguring these services much longer.

The difficult problem we have in the way this Bill is structured and in the way we are approaching this is that we are expecting this painful stuff to be done in a situation where we are saying that local clinicians and local people have got to face up to these difficult decisions. They have got to start the process, unless it gets so bad that Monitor is required to trigger a failure regime. In many cases, the problem manifests itself in an acute hospital, but often you cannot solve the problems of that acute hospital without looking at the wider health economy within which it is situated, so we have a situation which is asking quite a lot of local clinicians, certainly based on experience, to start the process of reshaping those services however right it is in principle to expect local people to take the initiative in these areas.

Historically, we have faced a situation where elected politicians in the form of MPs have found this extremely difficult territory—whether they are going to be Kidderminstered, or whether they are going to find themselves having a very small majority and feeling honour bound to carry a placard around outside the local hospital without making a change. That is not a criticism of them; that is a fact of life. Asking local elected politicians and local people to, in effect, fall on their sword to some extent in relation to changing these hospital services is a big ask. This amendment tries to face up to some of those realities. It suggests that waiting for things to fail, to get so bad that they trigger the failure regime, is putting Monitor in a pretty tough situation.

This amendment tries to move upstream from that and to advance the argument that Monitor, with the support of the national Commissioning Board, should be able to look upstream and see the hospital services that are heading towards failure—in this case, I have taken a period of 12 months before failure—and start to do something about it. In co-operation with the national Commissioning Board, Monitor could trigger an independent panel to work with local people to come up with a set of proposals for reconfiguring services within a reasonable timescale set by Monitor that would make those services sustainable financially and clinically for the future. That is not to say that local people should be excluded but we should have a trigger that brings in some facilitation to help them get there.

Fast-forward, then, to the end of that process. We have often talked about the Chase Farm example. Seventeen years is a bit of a long time to sort out an A&E department, but that is what it has taken. My noble friend Lady Wall is still struggling with what comes next. We have to have something better than that. Elected Ministers are also constituency MPs. They understand the problems that some of their colleagues face. Sometimes they even understand the problems that their opposition colleagues face in these situations. It is not surprising that they find it difficult to take decisions quickly, even armed with the current independent review panel. No stone is left unturned in trying to give local people an endless chance to stop progress. We call it public consultation but it is in fact a stopping of progression of the reconfiguration.

What my amendment also does is to say, at the end of that process, that the Secretary of State cannot be taken out of the loop, but if he is going to turn down this independent panel’s set of proposals for making services sustainable clinically and financially in a given area, he has got to give his reasons to Parliament for doing that and has to come up with an alternative proposal for making those services sustainable. That is why I think we badly need a process of this kind where there is a trigger, some independent facilitation and some lock on the ability of the Secretary of State to endlessly procrastinate or avoid taking a decision coming out of an independent panel.

I am the first to recognise that this may not be enthusiastically received by the elected political class. It is probably a bit much to stomach appointed Peers proposing this idea. However, I am putting this forward on a non-partisan basis in the hope that we can move forward in this area on a basis similar to the one that I am proposing. At the end of the day what I am doing is pinching something. This is not a totally original thought. I am pinching it from Canada’s experience, where in the 1990s the healthcare system in Ontario was literally going broke and they had to find a way of not bypassing the elected political class but facilitating a set of changes that made it easier for elected politicians to take difficult decisions. That is the purpose of this amendment and I move it in that spirit, as a constructive attempt to deal with what I acknowledge is an extremely difficult and complex problem. I beg to move.

[Lord Hunt of Kings Heath]

My Lords, we are indebted to my noble friend for raising what I think is one of the most difficult issues the health service is going to face. There is no doubt that if the efficiency challenge is to be met, there has to be a major reconfiguration of services. Yet, as my noble friend has said, we know that this is often very difficult to undertake and get local sign-off. Both my noble friend and I enjoyed—if that is the word—experience as Minister for the health services in London, and both of us have been involved in some of the agonised discussions with the outer-lying hospitals and boroughs. The whole London area is littered with proposals that have been made for many years and which have not been put into effect. There are other examples up and down the country. The problem is that the health service no longer has the luxury of being able to rely on the uncertainties that are caused by the current system. Reconfiguration needs to take place, and rapidly, over the next two or three years.

I am enormously sympathetic to my noble friend’s amendment. It is interesting that in our previous debates the view has been expressed that ministerial intervention has often caused the problem. My noble friend would still push this substantive decision back to the Secretary of State. That is probably right, because in the end, however much the Government might wish to push this back onto the health service or onto the NHS Commissioning Board, I should have thought that the interest of MPs in reconfiguration issues would have sucked the decision back to the Secretary of State one way or another. We have to assume, therefore, that any process that is put forward does involve the Secretary of State.

I have no doubt that the noble Earl will say that we do not need to go down this route and that he is confident that clinical commissioning groups will be able to embrace reconfiguration of acute services and get sign-off from the appropriate or relevant local authority. I am sure that there may be some areas where that might happen, but of course, one has first of all to recognise that if a major reconfiguration is proposed, it will involve a number of clinical commissioning groups. The first test will be whether a number of CCGs will be able to come together to achieve a strategic outcome. Secondly, even if that happens, those clinical commissioning groups have yet to feel the heat of battle. They may well theoretically sign up to a reconfiguration, but they are inexperienced, I would suggest, in the kind of pressure that they will come under from politicians and the public. I suspect that one or two will find it very difficult to hold the line.

The other problem with the current proposals of the Government is that clearly they wish the NHS Commissioning Board to have a leadership role. However, the Commissioning Board will have much less legitimacy than Ministers when it comes to controversial decisions such as closures of accident and emergency departments. It is easy to see how these may come, in the end, to little fruition.

I certainly support my noble friend. The only question I put to him is whether his process is really tough enough. I wonder whether what really needs to happen is that every area of the country should be reviewed by some kind of independent body as to whether the configuration of services is safe and appropriate. It no doubt could have examinations in public, similar to the old strategic planning process that we have had in the planning system. I would favour a much stronger statutory approach to this, which forces each health economy to come to the table, to put their viewpoint, but then to have an outside group of experts who would then make strong recommendations to the Secretary of State. I fear that without such external views we will find it very difficult to make progress. I suggest to my noble friend that he should consider whether he might need something stronger to make this bite.

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[Earl Howe]

My Lords, this group of amendments usefully focuses us on reconfiguration and the sustainability of NHS services. The sustainability of services will be centre stage for commissioners and providers alike. I should like to set out some key features of the Government’s reforms, which I hope will reassure noble Lords that the system we have put in place will deliver sustainable NHS services. The first key feature is that local clinical commissioners will be responsible for securing continued access to healthcare that meets the needs of local communities in consultation with health and well-being boards. Any proposals for service change will be locally led by clinicians in consultation with patients and the wider community.

The second key feature is that the continuity of services regime requires Monitor to support commissioners to secure continued access to NHS services. Monitor will do this by undertaking an ongoing assessment of risk and intervening to support recovery and to prevent failure where possible. Therefore, the onus is on commissioners and providers to address any problems with the sustainability of NHS services. Only as a last resort where commissioners and providers have failed will Monitor step in to appoint an administrator to take control of the provider in order to secure continued access to NHS services.

The noble Lord, Lord Warner, suggested that there would be nothing between a locally led process leading to an agreed reconfiguration and Monitor triggering the failure regime. That really is not so. It may be helpful to the Committee if I explain. There are various levers available to Monitor before failure is even thought of. First, regulatory interventions are available to Monitor through the licence in order to protect patients’ access to essential services where Monitor considers that a foundation trust is at risk of becoming clinically or financially unsustainable. I agree that there should be a way for the system to respond when, as the noble Lord put it, trouble is seen to be coming down the railway track.

Where it is appropriate, Monitor would be able to direct a provider to appoint turnaround specialists that would provide additional capacity and expertise to support a provider’s management in turning an organisation around. Monitor would also be able to appoint a pre-failure planning team to work with commissioners to develop plans for securing continued access to services in the unlikely event that turnaround was unsuccessful. That process may identify reasons why service reconfiguration would be needed to secure sustainability, but it would remain a commissioner-led process. I hope that I have made it clear that it is appropriate for local clinical commissioners and not Monitor to lead this process with support from the NHS Commissioning Board. The board will be able to support clinical commissioning groups by providing support and advising on the possible effects of larger changes, and Monitor will support commissioners in protecting patients’ access to essential services through the licensing regime.

The noble Lord, Lord Hunt, suggested that the board should play a leadership role. The Bill allows for that to happen in a number of ways, using commissioning guidance to set expectations on how CCGs should deal with reconfigurations that span CCG boundaries. It would also provide access to advice in the form of senates to help them develop their proposals. Ultimately, where a local authority challenges a proposal, the board will be able to direct the CCGs on their plans, so there is an interest in making sure that those plans are robust to start with.

[Lord Hunt of Kings Heath]

My Lords, I am grateful to the noble Earl for giving way. I understand that, but is not the problem as my noble friend said? If you look back over the past 20 to 30 years, the NHS has found reconfiguration decisions very difficult indeed. The new system potentially has weaker bodies, in the form of the clinical commissioning groups, covering smaller areas, such that taking a bold decision on matters such as closing an accident and emergency department would be very difficult. In one way or another, what is being suggested is some kind of external mechanism that essentially forces the local health economy, both commissioners and providers, to come to terms with the latest knowledge in relation to safety and quality. They would actually have to face up to the challenge.

This happens in a way with the various inspections of the colleges and the deaneries, and we know of a number of hospitals where the viability suddenly goes because of an inspection and they are not approved for training. This has a devastating domino effect on the rest of their services. But surely the time has come for a much more proactive external review of each local health economy area. It would be of assistance to those who wish to move and modernise services because they would be able to turn to the mechanism, whatever it is, and say, “We have to change”. If the Government are simply relying in this legislation on local forces, my fear is that that simply will not happen quickly enough.

[Earl Howe]

I understand the noble Lord’s point; it is one that we have thought carefully about, as he might imagine we would. The trigger for local service reconfiguration is often a joint decision by commissioners and providers that the current configuration of services does not offer the highest quality care or that it does not meet current and modern clinical practice. It is usually a dialogue between commissioners and providers which identifies services as being, in some way, not optimal for patients, and that a reconfiguration is the most appropriate way to improve and modernise services, rather than smaller scale operational change.

We are proposing that commissioners should engage and consult on these changes in the normal way, working closely with providers and engaging with patients, the public and local authorities in developing their proposals. However, I agree that there are clear roles for the board, and for Monitor, in ensuring that this process is given a fair wind. They have an interest in ensuring that services are of high quality and sustainable and they will wish to add value to the process.

We talk as if all reconfigurations were long and drawn out—we all know of some that are like that—but the successful reconfigurations tend to be those that have involved more, rather than fewer, local stakeholders. That is why we are strengthening the powers provided by the Bill, so that reconfigurations can take place in a genuine spirit of local engagement and partnership.