Health and Social Care Bill

Lord Hunt of Kings Heath Excerpts

Wednesday 29th February 2012 Lords Chamber

These amendments address that central difficulty. They do so in each case by making it clear that a relevant body is failing to discharge its functions if it is failing to discharge them properly, and it is failing to discharge them properly for these purposes if it is failing to discharge them in a way that the Secretary of State considers not to be in the interests of the health service.

[Lord Hunt of Kings Heath]

My Lords, as this is a government-supported amendment, perhaps I may seek clarification from the noble Lord. In the past three months the Secretary of State has intervened in the health service any number of times: for example, on issues arising from primary care trusts massaging figures on waiting times and on the way in which A&E departments work. If an issue was raised in Parliament, would the Secretary of State be able to intervene without any question or worry about whether it meets the terms for failure set out in the amendment? It is important to clear that up.

[Lord Marks of Henley-on-Thames]

It is indeed important to clear that up, and the answer is yes. If the Secretary of State considers that the body with which he proposes to intervene is acting in a way that is not consistent with the interests of the health service, then, for the purpose of these amendments, it is not acting properly and the Secretary of State’s powers of intervention are triggered. That was the point of our amendment in Committee and it is the point of these amendments, which have now been accepted, as the noble Lord points out, by the Government. So the answer to his question is indeed yes.

A similar test applies in the case of the board’s powers to intervene in the conduct of clinical commissioning groups, where a parallel test is applied. It is, then, the board’s view of the interests of the health service that counts, just as, where it is for the Secretary of State to intervene, it is his view that counts.

As my answer to the noble Lord’s intervention makes clear, the amendment puts the Secretary of State right back in the driving seat. He has of course to have regard to autonomy, and a failure has to be sufficiently significant for him to take the view that an intervention is warranted, but, subject to those two points, if he takes that view, he may intervene in the ways prescribed by the Bill, and his ministerial responsibility and his answerability to Parliament are assured.

I am grateful to my noble friend the Minister for his support and to those in his department who have helped with these amendments. I am grateful also to all those who spoke in Committee on the intervention and failure regime and who took part in the quite involved discussions about it that we had privately. By going carefully through the Bill to pick up all the relevant powers of intervention, and by then applying a consistent trigger within the control of the Secretary of State, we have developed a coherent and effective way of ensuring that the failure regime is workable.

Amendments 294 and 295, in my name and the names of my noble friends Lady Tyler and Lady Barker and the noble Baroness, Lady Murphy, are designed to rectify a small but not insignificant failure in the arrangements in the Bill as it stands. Clause 287 deals with the consequences of a failure to co-operate, a duty imposed by the Bill on Monitor, the Care Quality Commission, the board, NICE, the NHS Information Centre and strategic health authorities. If the Secretary of State is of the opinion that there is a breach, or the risk of a breach, of one of the specified duties to co-operate, he may under the Bill as it stands give a notice setting out the opinion that it is in breach to each relevant body, and he must publish the notice. If the breach continues and it is detrimental to the performance of the health service, he may then prohibit each body from exercising specified functions until the other body with which it is not co-operating agrees in writing what the first body may do. The Secretary of State’s prohibition may last for a year in the first instance but can be extended year on year. In default of agreement by the bodies concerned there is a long-stop power to go to arbitration.

Quite apart from the utter complexity of these provisions, there is an Alice in Wonderland feel of unreality about them. With all this activity, there is a serious danger that nothing will get done. The power of the Secretary of State arises only in the event that there is a breach of duty to co-operate—and then it is only a power to stop anything being done. The first problem is that the parties can, honestly and in good faith, co-operate with each other so that there is no breach of the duty, but nevertheless fail to reach agreement so that a conflict persists. The trigger for intervention should not be a mere breach of a duty to co-operate but the existence of an actual or potential conflict. That is the point of Amendment 294.

The second problem is that the power should not be simply a power to stop all action but should instead be a power to act in such a way as to resolve the conflict. In respect of the intervention powers that we have already considered with the other amendments in this group, the power has generally been to direct that the body concerned exercises functions or exercises them in a specified manner. Why is that not an appropriate power here? I suggest that it is and that Amendment 295 would give the Secretary of State a power to give such a direction, thus effectively resolving any conflict.

The power in our amendment is an additional power. If a stop order of the kind proposed in the clause at present is considered likely to be effective in resolving a failure to co-operate or an outright conflict, then let that power be exercised. However, there must be some power accorded to the Secretary of State to step in and resolve a stalemate. That power is not currently in the clause and there is a risk that not only the bodies concerned but the health service, patients and the standing of the Secretary of State may suffer in consequence. I beg to move.

[Baroness Murphy]

My Lords, I will very briefly say that I added my name to two of these amendments because I have, in practice, come across occasions when organisations such as the former Monitor and CQC had difficulties in their relationships, which had to be sorted out with some difficulty. It seems that they could be in the very position that the noble Lord, Lord Marks of Henley-on-Thames, has described so eloquently, and that we need some way of resolving these conflicts to the benefit of patients so that decisions are made quickly. I support these amendments.

[Lord Hunt of Kings Heath]

My Lords, this is an important debate. I want the noble Earl, Lord Howe, to make it absolutely clear in relation to Amendment 71 that the intervention of the Secretary of State will follow if the Secretary of State considers it to be in the interests of the health service when one of these bodies is failing to discharge a function properly. The wording of this amendment means, in effect, that if issues are raised in Parliament about NHS performance on which the Secretary of State, quite naturally and properly, wished to intervene, the Secretary of State can indeed do that. In the end, only the Secretary of State can, in those circumstances, consider what is in the interests of the health service. It is absolutely right and proper for the Secretary of State to be in that position.

The second set of amendments starts with Amendment 294. The noble Baroness, Lady Murphy, is absolutely right to point out the problem of conflict between the CQC and Monitor, which is almost built in intentionally. The second report of the Francis inquiry into the Mid-Staffordshire trust may have some points to make about that. However, we are also adding to the architecture of the national Commissioning Board, and there is inevitably going to be tension between those three bodies. For instance, the national Commissioning Board and Monitor are to be given roles relating to the tariff, and it is clear that there is confusion over the roles in respect of quality issues. Monitor is now involved in making some inquiries of foundation trusts relating to quality, which is no doubt a defensive reaction to the criticism that will flow from the Francis inquiry. The national Commissioning Board is so powerful in the new structure that there are bound to be some issues about its relationship with the quality and economic regulators. We would like to hear from the noble Earl, Lord Howe, that the Secretary of State will not hesitate to intervene and knock heads together if the natural—and probably useful—tension goes beyond that and becomes a problem.

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)]

My Lords, this group consists of amendments to the Secretary of State and the Commissioning Board’s powers of intervention over health bodies and to the Secretary of State’s powers in the case of breaches of duty to co-operate. First, I should like to discuss the amendments relating to the powers of intervention. In doing so, I thank my noble friend Lord Marks for tabling the amendments and presenting them to the House so ably. He committed a great deal of time and effort to developing these amendments and I believe that they will make this a better Bill.

As noble Lords will be aware, the amendments sit within the package of amendments relating to ministerial accountability that was agreed through a process of cross-party negotiation and consensus-building. They address concerns from several Peers that, in the words of my noble friend Lord Marks,

“the bar may be set too high against the Secretary of State’s intervention”.—[Official Report, 11/10/11; col. 1572.]

I hope they provide reassurance to the House that this will not be the case. I support the amendments and hope that other noble Lords will follow me in doing so.

In answer to the noble Lord, Lord Hunt, my noble friend’s amendments clarify that the Secretary of State can intervene where he considers that a national body is failing to discharge its functions consistently with what he considers to be the interests of the health service, provided that he considers that the failure is significant. They also clarify the same point for the Commissioning Board’s intervention powers over CCGs and, in addition, where a national body may have functions beyond the remit of the health service, these amendments clarify that the Secretary of State can intervene where the body significantly fails to exercise the function consistently with the purpose for which it was conferred. I hope that that explains fully the point of the amendments and answers the noble Lord’s question.

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[Lord Marks of Henley-on-Thames]

My noble friend the Minister has certainly persuaded me not to press those amendments. I never had any intention that they should go to the vote. However, I still express some concern about the point made by the noble Lord, Lord Hunt, as to whether the stop power can actually involve the Secretary of State in having the power to knock heads together in the way that he describes. Of course, I entirely accept that the intervention powers under the other amendments go a great deal of the way to improving the position, but if he would like to give it further thought that would be very helpful.

[Lord Hunt of Kings Heath]

I thought that there was a question to the Minister as to whether he would consider the matter between now and Third Reading. Am I not right?

[Earl Howe]

My Lords, I should be happy to meet my noble friend to discuss the matter further between now and Third Reading.

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[Lord Hunt of Kings Heath]

Does that mean that the matter can be brought back at Third Reading? I think that is the point here.

[Earl Howe]

I am not giving my noble friend a green light to do that, because I genuinely do not think that these amendments are necessary, but that can be a matter for discussion.

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[Baroness Hollins]

My Lords, I have been reflecting on the amendment tabled by my noble friend Lady Finlay. I declare an interest as one of my daughters has one of the conditions that she mentioned in her speech.

This lacuna must be addressed because the discretionary powers of clinical commissioning groups to apply the appropriateness test provide no assurance for those with these rare diseases. Today’s debate shows that it is essential that this is addressed in the Bill. I hope that the Minister will be able to suggest a way in which perhaps a government amendment might be able to address this lacuna.

[Lord Hunt of Kings Heath]

My Lords, this is a very interesting group of amendments. They do not entirely fit together but all of them raise important points.

I very much support the noble Baroness, Lady Cumberlege, in her comments about HealthWatch. This is my mea culpa moment about the demise of community health councils. It is clear that having a statutory body with the right to be heard and listened to is very important at local level. Of course, I would link the noble Baroness’s amendment with the desire for HealthWatch England to be wholly independent of CQC, which is another important ingredient in ensuring that the patient voice is heard as effectively as possible.

We support Amendment 96. There has been a persuasive argument about the need to ensure that services for patients with less common conditions are commissioned effectively. We debated these issues on Monday. We know that primary care trusts have often found it difficult to give proper attention to these services. With clinical commissioning groups, this will become even more problematic. I hope that the noble Baroness will be able to pursue that.

I entirely support the noble Baroness, Lady Williams, on Amendment 75. This is a very important statement of principle. I understand the points made by the noble Lords, Lord Mawhinney and Lord Newton. I am sure that this matter will be put to the vote. The whole point about Third Reading is that it can be used for parliamentary counsel to tidy up the wording of such amendments. I do not think that we should let minor technical difficulties get in the way of passing an amendment which has a very important principle. It may be that the noble Earl, Lord Howe, will agree to it. Let us hope so.

My amendments relate to the corporate governance of clinical commissioning groups. On Monday, I developed my arguments when we discussed conflict of interest issues. I do not want to go over the same ground again, save to say that clinical commissioning groups will have a crucial role to play in the new system. They are to be handed billions of pounds by the NHS Commissioning Board to commission services. Essentially, a clinical commissioning group is not an NHS board as we know it. It is a group of small business people—GPs—who will be able to benefit financially from the decisions of that board. I cannot conceive that the Government could be going down this route if they did not want more resource spent in primary care. That must be one of the end results of the Bill. The Government want to spend more money in primary care and to reduce expenditure in acute hospital services, which is a very fair aim. But that means that the board of clinical commissioning groups will be spending public money and placing it in the hands of GPs who also sit round the board of the clinical commissioning group.

The conflict of interest amendment in the name of the noble Baroness, Lady Barker, which the noble Earl accepted, was very weak and does not provide the kind of assurance that we require. I have to say to him that there will be trouble in the future with clinical commissioning groups in this area. The proper safeguard would be for clinical commissioning groups to have a proper board. Proper boards in the public sector usually ensure that there are a majority of non-executives, people who are appointed independently, who can make sure that the public interest is protected. We have the extraordinary proposal that we are guaranteed only two non-executives on the board of clinical commissioning groups. We are not even guaranteed that one of them will be the chair of that clinical commissioning group. Looking over all the corporate governance difficulties in this country in the past 20 years, can noble Lords imagine that any of those inquiries would endorse the kind of governance arrangements that the Government are putting forward for clinical commissioning groups? I say to the noble Earl, Lord Howe, that I just wonder how long it will be before the first group of members is prosecuted for corruption. This is an open invitation for corrupt action. The Government show no signs of understanding or realising what difficulties they will put the whole service in by these proposals.

I have put forward a number of amendments to put in place proper corporate governance protection. I also believe that the constitution of clinical commissioning groups should be subject to approval by your Lordships’ House. In relation to primary care trusts, orders go through. I do not see why the same thing should not happen to clinical commissioning groups. I also endorse everything said by the noble Lord, Lord Patel, about quality payments. It is absolutely abominable that quality payments could be made to clinical commissioning groups where those payments end up in the pockets of individual GPs. That money ought to go into the commissioning of services. Again we see the conflict of interest. There is so much potential for conflict of interest between commissioning decisions in the public interest and commissioning decisions which are to the financial advantage of the members of the clinical commissioning group.

Finally, Amendment 118 would remove the quality premiums altogether. This is very much a probing amendment. I am content to support the noble Lord, Lord Patel, in his argument that, if quality payments are to be made, they should simply be put back into the commissioning pot.

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Moved by

[Lord Hunt of Kings Heath]

76: Clause 24, page 35, line 9, at end insert—
“( ) provide for the chair and non-executive members of each governing body to be appointed using an independent process, the details of which are to be laid out in regulations;”

[Lord Hunt of Kings Heath]

The Minister thought that I was projecting a doomsday view of corporate governance within clinical commissioning groups. It is not doomsday but a warning that if you give enormous power to professionals who can take advantage financially from their decisions, you need strong corporate governance safeguards. The best safeguard is to have independent appointment of non-execs, who should be in a majority on a board. That is such a well known process and a safeguard in all public bodies. I beg to test the opinion of the House.

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Moved by

[Lord Hunt of Kings Heath]

130: Clause 35, page 64, line 32, at end insert—
“(8) That the funds to meet the running costs of fluoridation schemes covered by legal agreements entered into before 1 April 2013 shall be—
(a) met from the identified fluoridation funds within the ring-fenced public health grants to be made by the Department of Health to local authorities with effect from 1 April 2013;(b) held by Public Health England on behalf of the responsible local authorities in order to meet the costs incurred by water companies in operating those fluoridation schemes;(c) accounted for by Public Health England to the responsible local authorities in annual reports on the expenditure incurred on behalf of those authorities.(9) That the funds required to meet the running costs of new fluoridation schemes covered by legal agreements entered into after 1 April 2013 shall be—
(a) met from additional ring-fenced public health grants allocated by the Department of Health to the local authorities requesting fluoridation of all or part of their areas following a public consultation held under the provisions of this Act and its associated regulations;(b) held by Public Health England on behalf of the responsible local authorities in order to meet the costs incurred by water companies in operating those fluoridation schemes;(c) accounted for by Public Health England to the responsible local authorities in annual reports on the expenditure incurred on behalf of those authorities.

[Lord Hunt of Kings Heath]

My Lords, I shall be brief. I was very grateful to the Minister for a meeting with her and her officials a week ago. I have two concerns about fluoridation schemes. The first is to make sure that where there are current fluoridation schemes, the amount of money being spent on their running costs will transfer to local authorities and that it will be recognised in terms of the allocation that is given. I think the noble Baroness will be able to reassure me on that.

The other question I want to put relates to where new schemes come into being. The proposed system seems rather convoluted, with various bodies involved, including Public Health England at a national level but also many local authorities. I just want some assurance that if a local authority or a combination of local authorities decide to go for a fluoridation scheme, the system of financing will be as smooth and easy as possible and that resources will be available to enable those schemes to go ahead. I beg to move.

[Lord Colwyn]

My Lords, I support everything that the noble Lord, Lord Hunt, has said and declare an interest as vice-president of the British Fluoridation Society. I believe in the efficacy of the fluoride ion, and during my own dental career have seen the beneficial results of this public health measure.

I do not want to repeat what the noble Lord, Lord Hunt, has said, but the Government envisage that, in future, local authorities will be the bodies that consult on fluoridation and decide whether to introduce and maintain a scheme. The issue is about funding for existing schemes and for possible future schemes. The Bill as it stands would mean that on 1 April 2013 the money currently spent by the NHS on existing schemes would pass to local authorities, which would then have to pass it on to the Secretary of State via the new organisation, Public Health England, to pay the bills presented by water companies. This would be a complex, bureaucratic process. If, for example, the money got stuck somewhere, the water company affected would quickly get fed up and stop fluoridating. How much smoother and quicker it would be if the money that the NHS is currently spending went directly on 1 April 2013 to the Secretary of State and Public Health England. This would mean that the organisation that will actually pay the bills will have the money in its account and not be reliant on local authorities transferring it.

The Bill as it stands also means that if any of the new schemes are ever voted for by local authorities when they take charge of consultations on fluoridation, the Secretary of State will look to them to pay for those schemes. Yet local authorities are not responsible for dentistry and have no dental budget. So where would they get the money from? In all probability they would not get it and, as a result, no new schemes would ever be implemented. This amendment means that, although the local authorities will be the decision-making bodies in future, the money for any fluoridation schemes that they support will come from the dental health services budget of the NHS Commissioning Board, the body that stands to benefit from the reduced treatment costs that would follow. The NHS Commissioning Board would transfer funds to the Secretary of State, who would pay the bills submitted by the water companies. I may have got this wrong, but I would be delighted to hear what my noble friend the Minister has to say.

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[Baroness Northover]

I thank noble Lords for that extremely brief and consensual approach to this issue. We debated this in detail in Committee, and I commend all noble Lords for their work in this area.

We certainly agree that the rates of tooth decay in children and adults is an important public health measure. I point noble Lords to the public health outcomes framework, which my noble friend Lord Colwyn might like to have a look at, which is a document to which local authorities will have to have regard.

The noble Lord, Lord Hunt, asked whether, in terms of the public health funding allocation to local authorities, if a local authority has a fluoridation scheme, whether it will be covered within the budget. I can assure him, as I did in the meeting that we had earlier, that indeed it will be covered in the budget, which will look at the public health needs of the area—and that will be reflected in the grant. Those are the current schemes. The noble Lord asked about future schemes. Public health funding is ring-fenced, and the Government look at the needs of the area. However, local authorities will be deciding how they prioritise various issues, so it would not be appropriate for us to say that they must address this issue through a fluoridation scheme. They might be looking at all sorts of other public health issues and seeking to address their responsibilities in terms of dental health in some other way. However, I point out something that I did not know before—and I do not think that the noble Lord knew before—which is that just about all fluoridation schemes currently in place have been initiated by local authorities over their history.

I recognise the commitment of noble Lords to dental health. I appreciate it and realise that noble Lords want to speed it along. I hope that reassurances about the level of funding for current schemes will reassure the noble Lord, Lord Hunt, so that he feels able to withdraw his amendment. We continue to be very keen to engage in this area.

[Lord Hunt of Kings Heath]

My Lords, I should have declared in moving my amendment that I am president of the British Fluoridation Society. The noble Baroness, Lady Gardner, reminded me by making her own declaration. I am most grateful to the Minister and beg leave to withdraw my amendment.

Amendment 130 withdrawn.