Health and Social Care Bill

Lord Hunt of Kings Heath Excerpts

Monday 5th December 2011 Lords Chamber

Moved by

[Lord Hunt of Kings Heath]

236A: Clause 30, page 58, line 11, at end insert—
“(3) This section comes into force on a date to be specified by order by the Secretary of State.
(4) The time specified in subsection (3) must be after such time as the Secretary of State is satisfied that all duties and functions of Strategic Health Authorities are being fulfilled by another body.”

[Lord Hunt of Kings Heath]

My Lords, these amendments are grouped around the structure of the National Health Service and certainly serve to illustrate the turbulence that the Government have brought to the service. Essentially, the Government have torn up the current structure by its roots and are now piecing together a much more complex and potentially bureaucratic edifice. It still remains a complete mystery why the Government did not build on what was there. On day one, they could have ordered primary care trusts to divest themselves of any service provision responsibility, and could certainly have given them a kick up the backside to get a move on with GP commissioning. The noble Earl reminded me last week that the previous Government was keen to encourage GPs to have more involvement there. Instead of that incremental, organic approach, we have seen primary care trusts dismembered, with many experts on commissioning—good people—thrown out of the system at a time when the NHS should be solely focused on the financial and quality challenge it undoubtedly faces.

In its place, listening to the Government's original proposals, one might have expected a rather more streamlined system. Instead, we see a convoluted and rather Heath Robinson-type system, where the capacity for delay and obfuscation seems endless. Of course, the Government’s building blocks are clinical commissioning groups. At first, I believe that the intention was for GPs to sit round in small groups commissioning healthcare for their patients. However, reality has dawned; the GPs are being corralled into much larger clinical commissioning groups, where the necessary demands of corporate governance mean that individual GPs are likely to be very far removed from the actual decisions made on commissioning. Because decisions are to be made in GPs’ names, however, they will be expected to defend those commissioning decisions—at some potential cost, I suggest, to the doctor-patient relationship. It would be interesting to know how many clinical commissioning groups the noble Earl considers are now likely to be created. I do not know whether he is able to confirm that. Could he compare that to the number of primary care trusts which, formally at least, are still in existence?

The new structure does not stop there, as we have health and well-being boards. This side of the Committee has no problem at all with the involvement of local authorities in health service matters and I particularly welcome the leadership role that they are to be given in public health, albeit with the caveats that we have heard during the previous two debates—and, I am sure, will hear in future debates as well. Yet no one should be in any doubt that health and well-being boards bring the potential for delays and lack of clarity, particularly over commissioning decisions.

The Government are also establishing clinical senates. I welcome clinical oversight at a regional level, but there can be no denying that this is another layer in what is emerging as a pretty complex picture. It is also unclear what levers clinical senates will have over clinical commissioning decisions. What happens if they consider that the combined impact of clinical commissioning group decisions might damage the integrity of a regional health system? For instance, there might not be sufficient cover in terms of comprehensive provision, or care networks could be undermined. What can these senates do in such cases?

The health service has lost a lot of its commissioning expertise. It looks as though commissioning groups will have to buy in commissioning support, mainly from the private sector. The Minister will be aware of the BMA’s concerns on that matter. I understand that at the moment PCT clusters are forming commissioning support units and that from 2016 CCGs will be encouraged to commission from those units, which are in turn being encouraged to form social enterprises and partnerships with the private sector. The concern of the BMA is that this undermines the key aim of entrusting GPs to lead on commissioning. It looks increasingly likely that these clinical commissioning groups will have a small core of people concerned with clinical aspects of commissioning and a very large hinterland which deals with transactional and large-scale commissioning decisions.

Of course, there is to be another layer as well. It has become known in our debates that the NHS Commissioning Board is to establish local field offices, as I think they are being called. I am not surprised at that. We know that clinical commissioning groups are not to hold the contracts of GPs, presumably because of the potential for conflict of interest. That means that the national body, the NHS Commissioning Board, will have to get involved in the nitty-gritty of dealing with thousands of GPs, because it will hold the contracts of every GP in England. It will also involve the NHS Commissioning Board in the allocation of patients; where patients cannot find a GP, the current rules ensure that patients are allocated to GPs. That will have to go on in the future. As far as I can see, that too falls to the NHS Commissioning Board.

There is then the performance management of primary medical services, which will not fall to clinical commissioning groups because, again, of potential conflict of interest; that will fall to the NHS Commissioning Board. Sitting in its headquarters in Leeds, it is hardly likely that the board can do without some form of local branch structure. Indeed, with the demise of the SHAs, the uncertainties of clinical senates and the—quite understandable—likely very local focus of many clinical commissioning groups and health and well-being boards, there will be a glaring lack of strategic leadership across a local health economy.

Given the financial challenge which I think all of us in your Lordships’ House accept as being huge, and given the need for a pretty radical reconfiguration of acute services—this came from our debate two weeks ago—there will need to be some kind of strategic leadership at the local level. I suspect that it will be the local field offices of the NHS Commissioning Board which will have to provide that leadership.

However, if that is to be the case, surely those local field offices ought to be accountable in some way to the local community? I have no doubt that the Minister will say that the field offices will be accountable; they will be accountable to the NHS Commissioning Board. I do not want to reopen this, as the noble Baroness, Lady Williams, was putting yet more into the pot of our debates on Clause 1. We have argued for many weeks now about the accountability of the NHS Commissioning Board. However, I am sure that most noble Lords would agree that the Minister has made it clear that the Secretary of State is going to be pretty hands-off as far as the NHS Commissioning Board is concerned. The mandate will reflect the key objectives which the Secretary of State wishes to have delivered by the board. However, my argument is that these field offices are actually going to be hugely influential at local level, rather as the SHAs have been over a number of years. If that is the case, why should they not be proper public statutory bodies, properly accountable for what they do? My Amendment 236A has to be seen alongside Amendment 236AA, where I set out in fairly brief form how a local NHS commissioning board could be established as a statutory body.

If one thinks of the original proposition for the governance and looks at the current architecture, we see a very complex picture in which public accountability is likely to be lessened. We have seen that clinical commissioning groups are already being corralled into large units that may well be very remote from individual GPs and their practices. They are being forced to use the private sector support organisations, which will also be supporting other clinical commissioning groups. Their room for manoeuvre will be hedged in by the health and well-being boards and the clinical senates, and they will be overseen closely by the local branches of the NHS Commissioning Board. To me, that is a pretty incoherent picture. How relevant does the Minister really think that is to the real issues facing the NHS—safety, quality, efficiency and the effective reorganisation and reconfiguration of acute services? No wonder that in a recent briefing the NHS Confederation said:

“Our biggest concern following the … changes”,

which had been made after the NHS Future Forum had reported,

“is the risk of paralysis in commissioners’ decision-making just when the NHS needs to be radical. The proposed NHS structure is much more complex than the present system. This has the potential to cause confusion and duplication”.

Amen to that. I beg to move.

--- Later in debate ---

[Earl Howe]

My Lords, the SHAs have already published their plans for delivering the Nicholson challenge and those are on the SHA website. There is no secret about that. I can tell the noble Lord that we are on target to deliver the Nicholson challenge over the four-year period as a result of savings already made.

[Lord Hunt of Kings Heath]

My Lords, this has been a very interesting and instructive debate. I should tell the noble Earl, Lord Howe, that I do not have a rose-tinted view of primary care trusts. They were improving, I believe. But the question that I put to the Government is why on earth, instead of going through this convoluted and complex restructuring, they did not say immediately to primary care trusts that they should divest themselves of the services that they ran and get a move on with giving more responsibility to GPs? They could have done it on their first day, instead of which, instead of SHAs and PCTs, we have a much more complex structure, with clinical commissioning groups, health and well-being boards, senates, the NHS Commissioning Board and—blow me down—their field offices as well. I can tell the noble Baroness, Lady Murphy, that as the NHS Confederation says, we now have a very complex structure—not a streamlined approach that will deal with all the problems of the NHS. My goodness me, this structure will cause as many problems as it is potentially there to deal with.

There are some very serious questions about how the Government have done this. I am glad to know from the noble Lords, Lord Mawhinney and Lord Newton, that I am now part of the same region as they are. I look forward to further discussions and perhaps meetings in Nottingham from time to time, if we are summoned together.

The fact is that, in effect, primary care trusts have been abolished in advance of legislation. I understand what the Minister says—that by creating a cluster with non-execs from the PCTs, in effect those non-execs become the non-execs of each primary care trust. That is how the Government are essentially doing it, but that is a very disingenuous way in which to deal with the issue. They are skating on very thin ice, and the potential for judicial review is, I suspect, quite considerable.

Let us take this issue of the interest of the non-execs in Peterborough and Cambridge. I do not know the area particularly well, but let us say that, because of the financial issues facing Peterborough, a decision was made by the cluster to reduce services in Peterborough and ensure that those patients then went into Addenbrooke’s. I suspect that might well be a proposal. The question arises as to the legitimacy of that decision if people in Peterborough think that they are being marginalised from that decision. That some bold decisions need to be taken I do not doubt, but I suspect that there will be some issues about legitimacy.

As for the issue of tiers, my noble friend Lord Warner is surely right. Since 1948, the health service has not done without a regional tier. The fact that the Commissioning Board is going to have to set up local field forces is a recognition of that, but they will have a heavy responsibility. The financial challenge, the reconfiguration challenge and the specialty challenge call for strong leadership at that level. My argument for the Minister is that they surely need to be accountable and seen to be accountable in their communities. I do not believe that in the end the mandate set by the Secretary of State or the outcomes framework really satisfies that kind of accountability, given that they are clearly going to have to intervene at local level and deal with issues to do with finance and reconfiguration.

I have listened to the noble Lord, Lord Mawhinney, when he advised me not to oppose that Clause 30 or 31 stand part of the Bill. I fully accept what he says. However, as the Minister has made clear, my Amendment 236A stands apart from that. It is a question of timing, and I do not believe that these changes should take place until we are sure that they are right. I beg leave to test the opinion of the House.

--- Later in debate ---

Debate on whether Clause 32 should stand part of the Bill.

[Lord Hunt of Kings Heath]

My Lords, we come to a no less interesting subject than the issue of fluoridation of the water supply, which I know will be of interest to many noble Lords. I ought to start by declaring an interest as president of the British Fluoridation Society and, as someone convinced by the benefits of fluoridation, I want to ensure that those benefits continue in the future.

In 1964, Birmingham became the first UK city to introduce a water fluoridation scheme. By 1970, six years after its introduction, the number of teeth affected by decay in five year-olds had dropped by 46 per cent in a part of Birmingham, Northfield, as compared to those in Dudley, which fell by only 2 per cent. A report by the regional director of public health in 2006 found that children in fluoridated areas of the West Midlands with relatively high levels of social deprivation often had better dental health than children in relatively affluent areas where water supplies were not fluoridated. I am keen that progress continues to be made and that more areas are fluoridated in the future. The question before us is whether the arrangements in the Bill actually help or hinder that.

Under the new arrangements, it will be for a local authority, or local authorities, to make a proposal on fluoridation to the Secretary of State. If the Secretary of State agrees that such a proposal should be supported, the proposer must notify all other local authorities affected by the proposal and make arrangements as to how they should proceed. Regulations are apparently to be made on how local authorities might come to a consensus view.

An important question arises as to payment. The current 1999 Act provides a mechanism under which authorities can be made to bear the full cost of fluoridation. The Secretary of State can require the local authorities affected by arrangements made by the Secretary of State for the fluoridation of water with the water undertaker to meet the Secretary of State’s cost incurred under the terms of the arrangement. In the new situation that we have, I am concerned that the whole process of approval and funding of such schemes seems to be rather convoluted. I hope that the noble Baroness may be able to reassure me on this point.

The first key question is: will there be sufficient resources to meet the cost of existing or future fluoridation schemes? Local authorities do not, of course, provide dental services and they do not have dental service budgets to call upon; yet clearly the impact of fluoridation is to reduce tooth decay. If less money is spent on treating tooth decay, that money should be able to become available for other aspects of dental and oral health care. If local authorities do not have a direct interest in the cost of dental health care, will that be an impediment to the expenditure of money on fluoridation schemes? Again, it would be very helpful if the Minister could inform me as to her view on that as well.

At this stage, this is essentially a probing amendment to ensure that the Government are as committed to fluoridation schemes as I believe they ought to be. I see that the noble Earl, Lord Baldwin, is in his place. From my point of view, the evidence is convincing. It is important that if local authorities come to a view that they wish to fluoridate or to continue to fluoridate, the money will still flow as smoothly as the fluoride in the water in places that are lucky enough to benefit from water fluoridation schemes. I hope that the Minister can assure me.

[Earl Baldwin of Bewdley]

My Lords, I support what the Government are doing here, though with some reluctance, for reasons that will not surprise the noble Lord, Lord Hunt. I am reluctant for two reasons that lie at the heart of a fluoridation policy: the scientific evidence for it and the medical ethics. It will pay to revisit those briefly this evening.

It is now 15 years since I started putting down Questions to the Government, chiefly on the evidence surrounding fluoridation. In the late 1990s the previous Government conceded that the studies they relied on were old and not of very good quality. Sir Iain Chalmers, a leading healthcare scientist who was then director of the UK Cochrane Centre, joined me in pressing for a high-quality systematic review. The Government agreed. That review, which came to be known as the York review, was conducted by the NHS Centre for Reviews and Dissemination at the University of York. I served on its advisory board as it examined 50 years of the world literature. The results, published in 2000, surprised many people.

Not one good-quality study could be found. This meant that nothing could be stated with clear confidence: not efficacy in preventing caries—though that did appear likely—not safety, and significantly not the hoped-for evidence that fluoridation might even out the inequalities in dental health between social groups. So poor was the evidence for that question that the four senior research scientists who were involved in the review described it in a letter to Health Ministers at the time as “weak, contradictory and unreliable”.

I know from the previous amendment that it is dangerous to quote the noble Earl, but I was interested to reread the speech of the noble Earl, Lord Howe, on the regulations of the Water Act in 2005, and to read that he, too, was impressed by the lack of good evidence as shown by York. I emphasise that the York review was not just any old review—there have been plenty of those. This was a Rolls-Royce systematic review, conducted to the highest international standards, the only one of its kind in the field. A more recent Australian systematic review has been unable to find anything that would change York’s conclusions.

I wish I could say that this better understanding of the evidence had influenced policy. Having accepted York’s findings, through gritted teeth, governments have downplayed them and, at times, subverted them. For the past 10 years the York scientists, when they had the time to do so, and I have been trying to point people back to what the known evidence shows. In the face of deeply held beliefs, this has been quite an uphill task.

The question of ethics, which is my second objection, can be put in a nutshell. In our society, a person faced with a healthcare intervention is free to accept or reject it. This is the principle of individual informed consent. We find it in case law and in pronouncements from all kinds of medical bodies. Fluoridation is invasive and unavoidable. Therefore fluoride designed to protect teeth should not be delivered by this method. I could say much more, as indeed I have many times in your Lordships’ House, but now is not the time or the place. These twin objections, evidence and ethics, are what motivate most of the large number of people who oppose community water fluoridation.

Given, however, that such schemes exist, and that the Government are determined to provide for new schemes, how best should they be structured? I believe that what the Government are proposing here is a significant improvement on what went before. The old system where water companies had a veto over new schemes was clearly not ideal. Since the Water Act 2003, strategic health authorities have been in the driving seat. Curiously enough, the All-Party Group against Fluoridation that I subsequently chaired was given an assurance by Health Ministers in the previous Government that they would put elected local authorities in charge, as is now proposed. However, when it came to their Water Act, it did not happen.

The problem with the unelected SHAs was—is—that they almost inevitably reflected the dominant medical view. Fluoridation was a classic case of premature consensus, on weak evidence from the 1950s and 1960s, and it became a kind of sacred cow, resistant to new evidence, as I have indicated with the York review. The regional director of public health who advised the SHA that recently decided to fluoridate Southampton, against the expressed wishes of its population, described fluoridation correctly as the “professional orthodoxy”. Sir Iain Chalmers, who knows more about medical evidence than most people, has described it publicly as a “religion”.

A most unfortunate feature in all this is that so many prominent bodies should have signed up with the National Alliance for Equity in Dental Health as campaigners for fluoridation—not just supporters, campaigners. The website of the British Fluoridation Society shows the British Dental Association, the British Medical Association, the Faculty of Public Health Medicine, the NHS Confederation, the UK Public Health Association, among dozens of other such bodies, including some royal colleges and about 60 primary care trusts. If you have signed up to a campaign, not only are you compromised in terms of impartial advice but it is very hard to draw back. It is much easier to keep going forward with your professional peer group. And, if you are the people whose advice is being sought and heeded, there is likely to be only one outcome.

While fluoridation continues, these clauses may offer the least worst way forward. In parenthesis, referendums would show more clearly what local people want. There have been quite a number in America, but as they have tended to reject fluoridation the Government may be wary of them. Even here, to have your healthcare treatment decided by a majority vote of your neighbours is not a principle known to medical ethics. At least local authorities are accountable to the populations they serve and, while quite properly taking advice from all quarters, should be better able to gauge than the SHAs have been what is right for their communities. People should not have to accept what Big Brother, or rather Big Doctor, thinks is good for them. I broadly support these clauses, but the devil will be in the regulations.

I conclude by putting three questions to the Minister. First, will she consider providing for a neutral body to set out the current state of the evidence in any future public consultation? This was suggested by Iain Chalmers back in 2003. Some of the misstatements during the Southampton consultation were pretty terrible. Secondly, will she include in that a revision of the Chief Dental Officer’s guidance letter of February 2008 to decision-makers over fluoridation? I think that the noble Earl, Lord Howe, suggested to me that this would happen. Thirdly, will she give the undertaking, given by the previous Government during the passage of the 2003 Act and the regulations in 2005, that no new scheme will go ahead unless the local population is in favour? If so, will she ensure that any undertaking given—the noble Lord, Lord Warner, who is not in his place, was one who gave it at the time—will not be watered down in the regulations so as to lose its effect, as happened last time?

--- Later in debate ---

[Lord Hunt of Kings Heath]

My Lords, I am very grateful to the noble Baroness, the noble Lord, Lord Colwyn, and the noble Baroness, Lady Gardner of Parkes, for their support for fluoridation. The noble Earl, Lord Baldwin of Bewdley, with whom I have very much enjoyed taking part in previous debates on fluoridation, put his points powerfully. I do not agree with him, but that is not the point at issue tonight. I certainly agree with the noble Baroness, Lady Eaton, that the transfer of responsibility from SHAs to local authorities is a key advance. Birmingham City Council took a decision in this regard in 1962, which had a very positive impact on oral health in Birmingham and led to a more general introduction of fluoridation through much of the West Midlands.

I note what has been said about the role of health and well-being boards in relation to oral health. That is important. I also note that the Government believe that this is a local matter. That is fair enough, but I hope that the Government will also take a somewhat more strategic role. It is for the Government to make the general point that improving oral health is a good thing to do and that fluoridation can play its part. I hope that in saying that this is a local decision, the Government will remain in support of the general principle of fluoridation.

On funding, I took the noble Baroness to mean that a part of the ring-fenced grant to be given to local authorities in relation to their new public health responsibilities will reflect the cost of fluoridation schemes in areas that currently have fluoridation. I hope that she will confirm that in writing. For instance, Birmingham City Council will get an additional grant because the water is being fluoridated. Taking that principle further, I assume that if Manchester finally decides to fluoridate its water schemes, the city council will then receive an additional grant. That is very important.

As regards the convoluted and complex basis of the legislation, it is hard to see how the money circulates. I will not press my opposition to this clause stand part debate but I hope that the Government will give a little more thought to whether they can come up with a rather more straightforward approach to how the money circulates. The present arrangement is rather complex. I am very grateful to noble Lords who have taken part in this debate.

Clause 32 agreed.