National Health Service (Clinical Commissioning Groups—Disapplication of Responsibility) Regulations 2012

Lord Hunt of Kings Heath Excerpts

Tuesday 29th January 2013 Grand Committee

[Baroness Northover]

My Lords, the draft National Health Service (Clinical Commissioning Groups—Disapplication of Responsibility) Regulations 2012 set out the persons for whom a CCG will not be responsible, where it otherwise would be. We are here to discuss them today because the Delegated Powers and Regulatory Reform Committee recommended that they be subject to the affirmative procedure. The committee advised that the power being exercised to make the regulations, Section 3(1D) of the National Health Service Act 2006, relates to a fundamental provision of the new commissioning arrangements. In theory it could be exercised in such a way that some groups of people were left without a body responsible for commissioning their healthcare services. But I hope to be able to reassure noble Lords that this has never been the policy intention, nor is it the effect of these regulations.

It may be helpful if I first explain these draft regulations in their wider context. As with PCTs, each CCG will cover a geographical area defined in their constitution, and the whole of England will be covered by CCGs, with no overlap. Under Section 3(1A) of the National Health Service Act 2006, CCGs will have continuity of commissioning responsibility for all patients registered with a GP practice member of the CCG, and anyone usually resident in the CCG area who is not registered with a GP practice anywhere. They will be under a duty to commission secondary care health services to meet the reasonable requirements of the people they are responsible for, with the exception of certain services commissioned directly by the NHS Commissioning Board, and those public health services commissioned by local authorities.

Additional provision relating to the responsibilities of CCGs is made in the NHS Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012. This includes imposing on CCGs responsibility for every person in their area in relation to the provision of ambulance services or accident and emergency services. That instrument also makes provision about the services to be commissioned by the NHS Commissioning Board. Taken together with this affirmative instrument, this will ensure that the board and CCGs do not have overlapping responsibilities for particular services or particular patients. There will be no gaps, and a commissioner will not be able to dispose of a commissioning obligation by moving the patient out of area.

It is also important to emphasise that both sets of regulations concerning commissioning responsibilities do not introduce any new policies, but apply the existing principles of PCT responsibilities to CCGs, taking into account, of course, some necessary differences to reflect the responsibilities of the board and local authorities.

These draft regulations for affirmative resolution prescribe, by way of exception, categories of people and circumstances where CCGs will not have the duty to commission services. I will briefly describe the provisions set out in these regulations. Regulation 1 defines the terms used throughout the regulations and sets out a coming into force date of 1 April 2013.

I have already explained that under Section 3 of the 2006 Act, CCGs will have commissioning responsibility for all patients registered with a GP practice member of the CCG, and anyone usually resident in the CCG area who is not registered with a GP practice anywhere. However, within the categories of people for whom a CCG will otherwise be responsible, there will be some for whom, and some circumstances under which, it is appropriate that the responsibility will lie with another CCG or another health body. These are set out in Regulation 2, which has the following provisions.

People registered with a GP in England, but who are usually resident in Scotland, Wales or Northern Ireland will not be the responsibility of the CCG of whom the English GP practice is a member. Instead, under Regulations 2(2)(a) to 2(2)(c), the responsible body will be the health body in the relevant Administration – the Scottish Health Body, the Welsh Local Health Board or the Health and Social Care Board in Northern Ireland.

Where a person, normally the responsibility of one CCG, becomes the temporary patient of another, the first CCG will not be responsible for them; instead, under Regulation 2(2)(d) the patient temporarily becomes the responsibility of the CCG where they access GP services. This is to ensure that the patient can access any subsequent care he or she needs while remaining a temporary patient; otherwise, there could be delays in their receiving prompt treatment. The provision also ensures that the receiving CCG has responsibility for commissioning services to meet the needs of temporary patients—particularly important in CCG areas with significant numbers of such patients, for example in areas containing holiday resorts.

Regulation 2(2)(e) provides that, if a person is provided with primary medical services by a member of a CCG and these do not include essential services within core hours, that CCG is not responsible for that person. Instead, they would be the responsibility of the CCG, a member of which does provide those services, or, if not, the CCG in whose area they usually reside. This reinforces the principle that a core requirement of CCG membership is to be a provider of essential services.

Under Regulation 2(2)(f), CCGs will not be responsible for people detained in an immigration removal centre, secure training centre or young offender institution. In such cases the responsible commissioner will either be the board or another commissioning body such as the Home Office. Under Regulation 2(2)(g), a CCG will not be responsible for people for whom another CCG is wholly responsible under Regulation 4 and Schedule 1 of the corresponding negative responsibilities regulations.

Where another CCG or a local authority has placed a person in a CCG’s area, the second CCG will not be the responsible commissioner. Like the other provisions in these regulations, this continues the current policy under PCTs. This occurs, for example, for the purposes of NHS continuing healthcare, whereby the responsibility remains with the placing commissioner. However, in these cases the disapplication of responsibility relates only to the services for which the other CCG is responsible. For example, where a person receiving continuing healthcare is placed outside a CCG’s area, the placing CCG would be responsible for nursing care but not for secondary care.

Regulation 2(3)(a) makes it clear that a CCG that has responsibility for a person on the basis of GP registration or usual residence in its area is not responsible for securing the provision of ambulance services or accident and emergency services if that person is present in the area of another CCG. Responsibility for this falls to the CCG of that other area. For the avoidance of doubt, Regulation 3 sets out the rules for determining where a person is usually resident for the purposes of Regulation 2.

Noble Lords may have noticed that these regulations cross-refer in places to “the Responsibilities Regulations 2012”. These are the National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 that I mentioned. We are not here today to discuss them, but since they are so closely related I will briefly set out the content of relevant parts so that the noble Lords may have the full picture before them.

Regulations in Parts 2, 3 and 4, with their associated schedules, make provision about additional commissioning responsibilities for both CCGs and the board. Regulation 4 and Schedule 1 make provisions effectively mirroring Regulation 2 of the draft National Health Service (Clinical Commissioning Groups—Disapplication of Responsibility) Regulations 2012, in prescribing the categories of people for whom a CCG will be responsible for commissioning—

[Lord Hunt of Kings Heath]

My Lords, I am sorry to interrupt the noble Baroness. She said that we were not here to discuss the standing rules today, but are they not subject to the regulations that we are debating? I would like to clarify that.

[Baroness Northover]

My understanding—no doubt I will get clarification on this—is that the Delegated Powers and Regulatory Reform Committee picked up certain elements of this and thought that they should be subject to the affirmative procedure. What I seek to do here is lay that out, but also lay out a fuller picture so that noble Lords can set it in context. I will continue and seek clarification. It is to give that fuller picture, which I hope will help noble Lords, that I am outlining this.

Regulations in Parts 2, 3 and 4, with their associated schedules, make provision about additional commissioning responsibilities for both CCGs and the board. Regulation 4 and Schedule 1 make provisions effectively mirroring Regulation 2 of the draft National Health Service (Clinical Commissioning Groups—Disapplication of Responsibility) Regulations 2012, in prescribing the categories of people for whom a CCG will be responsible for commissioning health services in addition to those set out in the 2006 Act.

The list in Schedule 1 includes people placed by their local authority or a CCG in a care home, children’s home or independent hospital outside the CCG’s area. It also includes two other categories of person: the first is all persons in the CCG area who are resident outside the UK and who are not provided with primary medical services by a member of any CCG. The second is all persons resident in Scotland, Wales or Northern Ireland and present in the CCG’s area who are “qualifying persons” within the meaning of Section 130C of the Mental Health Act 1983 and who are not provided with primary medical services by a member of any CCG. Qualifying persons are broadly those persons detained under the Mental Health Act 1983, conditionally discharged restricted patients, those subject to guardianship under the Act and supervised community treatment patients.

Paragraph 6 of the schedule also includes provision for continuity of responsibility where a PCT has made arrangements and is then succeeded by a CCG. Part 3 of the regulations sets out additional services that will be commissioned by the board under Section 3B of the 2006 Act. Under Regulation 6, the board will commission all hospital and community dental services; a list of the hospital services is included in Schedule 2.

Regulation 7 provides that except for emergency services which are, of course, the responsibility of CCGs, the board will be responsible for all secondary and community services for members of the Armed Forces and their families where they are registered with Defence Medical Services. This includes fertility treatment services. Regulations 8 and 9 require the board to commission fertility services for those who have lost their fertility in service, generally due to injury caused by a blast, and are in receipt of compensation from the Armed Forces Compensation Scheme.

Regulation 10 sets out the requirements for prisoners and other persons detained in prescribed accommodation. The services concerned are, except for emergency services, all community and secondary services. The prescribed accommodation includes all prisons, whether public or private, all but one young offender institutions and, as specified in the schedules, some secure children’s homes, secure training centres and immigration removal centres. Regulation 11 and Schedule 4 require the board to commission specified specialised services for rare and very rare conditions. Regulation 12 requires the board to make arrangements for the continued provision of services currently provided by certain independent sector treatment centres under contracts currently held by the Secretary of State. Regulation 13 requires the board to commission specialist mental health services for people who may pose a risk to prominent people or locations.

Finally, Regulations 14 and 15 require CCGs and the board respectively to commission mental health aftercare services for certain groups of people who have been detained in hospital for treatment of their mental disorder after their discharge from hospital; this is under Section 117 of the Mental Health Act as amended by the Health and Social Care Act 2012. These regulations make it clear that the responsibility for commissioning aftercare services should, wherever possible, sit with the CCG commissioning services to meet that patient’s other healthcare needs. However, the board would be responsible for commissioning services as part of a person’s aftercare under Section 117 if it, rather than any individual CCG, would otherwise be responsible for commissioning the NHS part of the aftercare package.

I realise that I have described these regulations at some length, but I hope that I have demonstrated that CCGs’ commissioning responsibilities under the 2006 Act, when looked at as a whole and as supplemented by regulations, form a coherent set of responsibilities. I commend the draft regulations to the Committee.

[Baroness Jolly]

My Lords, I shall be brief. The main purpose of this secondary legislation is to transfer responsibilities for patient care and commissioning from the PCTs and SHAs of the old world on to the CCGs and the National Commissioning Board of the new. It seems complicated, but it is relatively straightforward. I note as well that some individuals are actually covered by the board, and I welcome developments such as the board’s responsibility to fund fertility treatment for members of the Armed Forces. I shall be asking the Minister for assurance and clarification in a few areas.

I note that care needs to be taken at the borders of Wales and Scotland as far as residence is concerned so that the appropriate arrangements are made with the NHS bodies in Wales, Scotland and Northern Ireland.

I note that my noble friend said that the commissioning groups would be responsible for commissioning ambulance services and accident and emergency services. If there is a major disaster in a CCG area, how is that covered? It would certainly be a big, unexpected hit on a CCG’s budget so I would assume that the board might pick that up. I would welcome clarification on this.

I note, too, that the board has responsibility for those in immigration removal centres, secure training centres and young offender institutions. My noble friend also indicated that some services might actually be commissioned by the Home Office. Can she give the Committee some assurance that in all these areas the mandate will be adhered to and reported, that health inequalities will be addressed and that governance will be transparent, so that reporting would be available on an annual basis as to what is commissioned in each of these establishments, and the outcomes?

In Committee on the Health and Social Care Bill, and elsewhere, we were all very concerned to ensure that everybody was going to be covered by CCGs. There was a lot of debate about people who are at the margins: Gypsies and Travellers; those who are homeless; people with chaotic lifestyles, substance dependence, mental health issues, and so on. I am sure that these groups are now swept up into these regulations.

I welcome the clarification on temporary patients. In Cornwall, our population rises by several hundred thousand during the summer and it is welcome news that it is really clear how that is going to be commissioned.

In conclusion, clearly much work has been done in this piece of secondary legislation to ensure that everybody is covered. The way that it is laid out is very complex. I would be grateful if my noble friend could explain who is the arbiter in future should either a category of person or a certain individual not fall into any of the areas covered in this secondary legislation. Who should decide who should commission these services?

[Lord Hunt of Kings Heath]

My Lords, I, too, thank the noble Baroness for her explanation of the two statutory instruments that are covered in the Explanatory Memorandum that we have received. I particularly noted her reassurance in relation to temporary arrangements, which is very helpful, as I do not think the instrument itself is particularly easy to follow.

As far as the affirmative instrument is concerned, perhaps I could ask the noble Baroness about the situation with regard to patients from Northern Ireland. Indeed, some of my remarks would apply to patients from Scotland and Wales as well. Regulation 2(2)(a) refers to,

“a person usually resident in Northern Ireland who is provided with primary medical services by a member of the CCG”,

and says that for such a person,

“a CCG does not have responsibility in relation to its duty to commission services”.

But what if the person who comes from Northern Ireland, Scotland or Wales needs services that a GP cannot give—for example, in a hospital—and this is regarded as secondary care? Who has responsibility for commissioning secondary care services in such circumstances?

I would like to ask the Minister about abortion services, because I have asked a number of questions recently about the eligibility for abortion services in England of people normally resident in Northern Ireland. On 8 January, I received a response from the noble Earl, Lord Howe, which referred to the fact that the Secretary of State,

“has a duty under Section 3 of the National Health Service Act 2006 to provide a variety of secondary care services to such extent as he considers necessary to meet all reasonable requirements. This duty is delegated to primary care trusts … in Regulation 3(2) of, and Part 2 of Schedule 1 to, the National Health Service (Functions of strategic health authorities and primary care trusts and administration arrangements) (England) Regulations 2002”.

The noble Earl went on to say:

“Regulation 3(7) of the regulations sets out who a PCT is responsible for exercising functions (including the Section 3 duty) in respect of. Under Regulation 3(7), there are two sets of limited circumstances in which PCTs would be able to exercise their delegated functions to provide abortion services to women resident in Northern Ireland. The first is set out in Regulation 3(7)(a)(iii), which provides that a PCT shall exercise its delegated functions in so far as those functions consist of the provision (or securing the provision) of certain services to ‘qualifying patients’ resident in Scotland, Wales or Northern Ireland who are present in its area and do not fall under the responsibility of another PCT. This essentially covers persons resident in the above countries with serious mental illness who are present in a PCT’s area. The second is set out in Regulation 3(7)(b)(i), which provides that a PCT must exercise its delegated functions in so far as those functions consist of the provision (or securing the provision) of accident and emergency services for the benefit of all persons resident in its area”.

He then said:

“A PCT’s functions under Regulation 3(7)(a)(iii) will clearly be exercisable only in respect of the limited number of women who fall within that provision. A PCT’s functions under Regulation 3(7)(b)(i) will be exercisable in respect of any person present in the PCT’s area”.

He then went on to say, I think rather controversially:

“There is no absolute right for a patient to receive particular treatment under the NHS. A PCT has delegated powers to provide abortion services to a woman who is ordinarily resident in Northern Ireland but present in the PCT’s area in so far as that provision falls within Regulation 3(7)(a)(iii) or (b)(i) and is considered by the PCT to be necessary to meet all reasonable requirements”.—[Official Report, 8/1/13; cols. WA 1-2.]

I am well aware that of course the noble Earl was referring to the current legislation and that the 2012 Act made amendments to the 2006 Act, including changing the words around “reasonable requirements”. However, I hope the noble Baroness will be able to reassure me that women coming to England from Northern Ireland for an abortion service will continue to be able to be eligible to receive that service. I would be very grateful for any reassurance she can give me on that.

I now want to come on to the standing rules. The noble Baroness said we were not debating these this afternoon but I must confess to being a little surprised, because the two had been put together in one Explanatory Memorandum and the noble Baroness has referred to them, so I had assumed we would be able to discuss them. I will ask four questions and see how we go.

First, there is the issue of consultation. Paragraph 18 of the standing rules says that the board “must consult” persons specified, including Healthwatch England. The noble Baroness will probably know what is coming. She will know that, in a week or so, we are debating the NHS bodies and local authorities partnership arrangements. This relates to the issue of whether local Healthwatch organisations can campaign. There has been some controversy. Healthwatch England has not made any public comment on the regulations. Did it respond to them? If so, why did it not publish its response? The noble Baroness responded for the Government and said that there was a great deal of debate. She assured us that Healthwatch England, despite coming under the CQC, would be independent. So far, we have seen very little sign of that independence. Will the Minister reassure me that when the board consults the CQC, CCGs, Healthwatch England, Monitor, the Secretary of State and such other persons as the board considers it appropriate to consult, those submissions will be published?

My second question relates to the issue of commissioning and relevant bodies in paragraph 34. This concerns the duty of any relevant body in respect of the funding of the commissioning of drugs and other treatments. The noble Baroness will know that this can often be a controversial area. She will also know that there is continuing concern about the local accountability—or lack of it—of clinical commissioning groups. They can, in accordance with the Act, make judgments about whether a treatment will be available to local people. Will the Minister consider amending the rules to make sure that when a member of the public wishes to appeal against a decision of the commissioning body, a panel must be convened to hear the appeal? I noted from paragraph 23(3) of the standing rules, which relates to decisions about continuing healthcare that are equally controversial, that panels must be established to hear appeals by people who do not agree with the decision reached about their eligibility. Why is it not considered necessary that a similar arrangement should be put in place when it comes to commissioning decisions either by the CCG or by the NHS Commissioning Board?

CCGs are about to start work formally. In Birmingham, I have been very impressed with the leadership of the two CCGs with which I am in contact. However, nationally I do not think that the public have heard very much about them. I do not get any sense that clinical commissioning groups feel that they are accountable to the local population when it comes to making commissioning decisions. If a CCG turns down a request for a certain drug or treatment to be given to a patient, surely there ought to be a way in which that member of the public can challenge the decision.

My fourth question relates to paragraph 39, which covers the important issue of patient choice. Can the Minister say anything about how that choice is to be exercised? In particular, what information needs to be given to any member of the public to make a choice, and who will be available to offer advice to that patient? It is all very well talking about patient choice, but we all know that that is very difficult to exercise unless there is a mechanism by which a member of the public can obtain help and advice in exercising it.

My final question relates to Schedule 5, which I am sure all noble Lords have studied with great care. It relates to the panels that must be established to review decisions about continuing healthcare. Schedule 5(1) disqualifies a number of persons from being a chair, CCG member or social services authority member of a review panel, including a Member of Parliament, a Member of the European Parliament and a member of the London Assembly. Can the noble Baroness tell me why that is so? Why is it deemed okay for Members of the House of Lords to serve on such a panel while Members of Parliament may not? I would be grateful for a response to that.

--- Later in debate ---

[Lord Hunt of Kings Heath]

My Lords, I am grateful to the noble Baroness and I realise that it is a complex question. However, I am concerned about this order going through the House without me knowing the answer. The key question here is whether, under these regulations, CCGs are allowed to provide NHS services for persons normally resident in Northern Ireland, including abortion services. It is a very important question. I do not know when this order is going back to the Chamber, but if it goes back tomorrow it does not give me very much time to decide whether or not to call for a debate in the Chamber. It might be a matter for the usual channels to deal with. I accept that the noble Baroness will need to write to me, but the question is: how soon?

[Baroness Northover]

I would like to be able to give a fuller answer. I hope that BlackBerrys are buzzing behind me and that, perhaps while I respond to his other questions, I will be given a fuller answer because I would prefer that. I will speed along any such response, bearing in mind what he has just said.

[Baroness Northover]

I shall be very happy to copy it to anyone who would like to see it.

I think I may not have answered fully my noble friend Lady Jolly—I hope that I did—when she asked about where a patient might come in terms of who is responsible. I would like to emphasise what I said in my introductory remarks, that the default position is that the 2006 Act applies, covering everybody. So a CCG where the person’s GP is a member would be responsible for them, and if they are not registered with a GP, it would be a CCG in which the person usually resides. Perhaps I may emphasise, in relation to temporary patients, that if a person is registered with a GP in England but is not resident here, the Scottish, Welsh or Northern Irish body commissions secondary care, assuming the person is in one of those areas.

I am seeking answers to some of the other questions. The noble Lord, Lord Hunt, flagged up the point about Healthwatch England, and I remember very acutely giving the assurance that Healthwatch bodies could campaign. He asked whether any public comment on regulations has been published. I am looking for an instant answer to that, which seems not to be coming. I may need to return to him on that in a moment.

In terms of local accountability, the noble Lord wanted to know whether a member of the public might be able to insist on an appeal if certain treatments were turned down. CCGs will be under a statutory obligation to arrange for provision of care to meet the reasonable requirements of the people for whom they have responsibility. The CCG must work closely with the local authority through the health and well-being board to assess local needs and to develop a strategy to meet them which will inform their commissioning plans. Where a CCG chooses not to commission a service, as in the kind of instance the noble Lord is talking about, it would have to be satisfied that it was not necessary to do so in order to meet the reasonable requirements of its patient population. The CCG will be under a duty to involve patients in the planning of their commissioning arrangements. The noble Lord will be aware that not everything is possible under the NHS and never has been, but obviously, as before, it is important that all reasonable requirements are provided for, and the CCGs, just like the PCTs, have that responsibility.

The noble Lord asked about the membership of panels. Again, I am hoping that a light bulb will suddenly come on and I will be able to inform him as to why there should be those differences and answer some of his other questions.

To clarify further on Northern Ireland and the issue about abortion, but unfortunately I have some difficulty reading writing that is not as clear as it might be, so I do not think I will provide that answer in case it is not what it is supposed to be. I can assure the noble Lord that I will not move the approval Motion until he gets his response.

[Lord Hunt of Kings Heath]

My Lords, that is very helpful. I thank the noble Baroness.

[Baroness Northover]

The noble Lord is extremely welcome.

I am hoping that clarification will suddenly appear in my brain for the answers to the other questions that the noble Lord has put because I would like to be able to answer as much as I possibly can. My brain is moving very slowly, I am afraid, and I will write to him to address anything that is outstanding. We will not expect anything to be finally agreed until we have those answers for the noble Lord. I hope that, with those reassurances, noble Lords will accept the regulations.

[Lord Hunt of Kings Heath]

My Lords, I am very grateful to the noble Baroness. Of course, I do not want to detain the Grand Committee any longer. The issue of the panels that are to be convened to hear appeals by members of the public against decisions to restrict treatment made by clinical commissioning groups is something that I hope will be given further thought. CCGs are different from primary care trusts. A CCG is essentially a group of professional people. Most CCGs will have only a limited number of lay people who could be said to represent the public interest. If those CCGs make decisions that restrict drugs or treatment, there should be some mechanism whereby a member of the public can refer such a decision to an independent panel. I hope that this will be given some consideration by the noble Baroness’s department.

[Baroness Northover]

I am very happy to take the noble Lord’s suggestion back for it to be given further consideration.